                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2008

USA v. Weatherly
Precedential or Non-Precedential: Precedential

Docket No. 07-1019




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                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-1019


          UNITED STATES OF AMERICA

                            v.

              THOMAS WEATHERLY,

                             Appellant




    On Appeal from the United States District Court
              for the District of New Jersey
            (District Court No. 06-cr-00258)
     District Judge: Honorable Anne E. Thompson


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                   March 14, 2008

Before: FUENTES, CHAGARES, and VAN ANTWERPEN,
                   Circuit Judges.

                (Filed: March 31, 2008)
Lisa Van Hoeck, Esq.
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

      Counsel for Appellant

Eric H. Jaso, Esq.
George S. Leone, Esq.
Steven G. Sanders, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

      Counsel for Appellee




                OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Thomas Weatherly appeals from the
judgment of conviction and sentence entered by the District
Court for the District of New Jersey on December 20, 2006.
For the following reasons, this Court will affirm.

                              I.

                              2
       At approximately noon on August 31, 2005, Officer
John Ryel observed Thomas Weatherly sitting in Zelley Alley
in Trenton, New Jersey. Appendix (“App.”) at 144. As
Officer Ryel approached Weatherly, he realized that
Weatherly was drinking alcohol in public in violation of a city
ordinance. Id. at 144-45. When requested by Officer Ryel,
Weatherly provided his name and identification, and Officer
Ryel radioed this information into a police dispatch in order to
conduct a warrant check. Id. at 146-47. During this
encounter, Weatherly made no attempt to resist arrest or
otherwise flee. Id. at 173.

        Upon hearing back from the police dispatch, Officer
Ryel learned that Weatherly had an active warrant out for his
arrest. App. at 149. A few minutes prior to receiving the call
about the active warrant, in response to a call to radio dispatch
by Officer Ryel, Detective Luis Medina arrived at the scene.
Id. at 210A-11, 148-49. Both Officer Ryel and Detective
Medina stated that as they were helping Weatherly to his feet
in order to arrest him for the active warrant, they observed a
handgun protruding out of the waistband in the rear of his
pants. Id. at 149, 211-12. Upon seeing the weapon, Detective
Medina seized the gun and the officers handcuffed and
arrested Weatherly. Id. at 150, 212.

      Weatherly was charged in an indictment with violating
18 U.S.C. § 922(g)(1), as a prior convicted felon in




                               3
possession of a firearm.1 App. at 14. Weatherly’s defense at
trial “was that the officers found the firearm in question in the
alley near Mr. Weatherly, assumed it was his, and embellished
their story to strengthen their case against him.” Defendant’s
Brief (“Def. Br.”) at 7; see also App. at 297. In support of this
theory, Weatherly introduced the following evidence at trial.

       First, Weatherly described a discrepancy in the
testimony of the officers as to whether Weatherly was sitting
throughout the entirety of the encounter. Def. Br. at 7.
Officer Ryel’s testimony seems to indicate that Weatherly was
seated throughout the encounter.2 App. at 149, 172.
However, Detective Medina stated that Weatherly was
standing at some point during the encounter, and was told to
sit while Officer Ryel and Detective Medina waited for a
response about the warrant check.3 Id. at 211-12.



       1
         Weatherly was also charged with violating 18 U.S.C. §
924(e)(1), which provides for a mandatory minimum sentence
of fifteen years for a felon-in-possession convicted under 18
U.S.C. § 922(g) who also has sustained three or more
convictions for violent felonies or serious drug offenses.
       2
        It is not entirely clear that Officer Ryel stated that
Weatherly was seated throughout the entire encounter, only that
he was seated when Officer Ryel first observed him and was
seated when advised of the active warrant.
       3
        Weatherly argues that this discrepancy is important,
because if Weatherly was standing at some point prior to the

                               4
        In addition, Weatherly offered evidence to attempt to
prove that it was common to find abandoned guns in Zelley’s
Alley. Detective Jerome James Commiso testified that 152
abandoned guns were found in Trenton, New Jersey during
2005. App. at 233. However, on cross examination,
Detective Commiso stated that no abandoned guns were
recovered in Zelley Alley (or the immediately surrounding
area) during 2005. Id. at 242. Weatherly also introduced the
testimony of Carniell Peagler, a 20-year-old ex-convict who
testified that while playing pickup baseball4 in a field adjacent
to Zelley Alley, he observed gang members stashing or
discarding guns in Zelley Alley. Id. at 257.

       Weatherly also offered evidence in an attempt to
demonstrate that he was not in possession of a weapon shortly
before the arrest. Bernadette Humphrey, Weatherly’s wife’s
adult daughter, testified that when Weatherly left the house at
approximately 11:20 a.m., she never saw “the handle of a
handgun sticking out of his pants” or “any bulges in his
waistband area.” App. at 307. Longino Martinez, who
worked at the liquor store where Weatherly (a regular
customer) allegedly bought his alcohol, stated that during



arrest for the active warrant, Officer Ryel and Detective Medina
should have been able to see the gun. Def. Br. at 7.
       4
        Despite testifying that he played baseball “five days out
of a week” during the summer, Peagler was unable to remember
what position he played and admitted that he did not know the
positions in baseball. App. at 261-63.

                                5
August 2005 he never observed a customer with a gun and
would have called the police if he had. Id. at 284-85.
However, on cross examination, Mr. Martinez testified that he
did not recall August 31, 2005 in great detail, and he further
testified that he does not pay a lot of attention to Weatherly
when he is in the store. Id. at 288-89.

        Before trial began, Weatherly submitted the following
proposed “mere presence” jury instruction in order to explain
to the jury the legal justification for his defense theory: “Mere
presence in the area of any contraband, including a firearm, or
awareness of its location is not sufficient to establish
possession.” App. at 63. After the judge declined to include
the “mere presence” instruction in her proposed jury charge
on the issue of possession, Weatherly objected and explained
that the “mere presence” instruction went to the very heart of
his defense. Id. at 297-298. The District Court, however,
stated in response to the request to include the “mere
presence” instruction, “I don’t think it’s relevant.” Id. at 298.

       Instead, the District Court gave the following
instructions to the jury regarding the issue of “possession”:

              In order to sustain its burden of proof for
       the crime of possessing a firearm as charged in
       the indictment, the Government must prove . . .
       that the defendant knowingly possessed the
       firearm described in the indictment.

                             ***


                                6
       To possess means to have something
within your control. This does not necessarily
mean that you must hold it physically, that is to
have actual possession of it. As long as the
firearm is within your control, you would possess
it.

       Proof of ownership is not required. The
Government is not required to prove that at the
time of possession the defendant knew he was
breaking the law. It is sufficient if you find that
the defendant knowingly possessed the firearm
charged.

      Knowingly is defined as knowledge,
voluntarily and intentionally, and not because of
mistake or accident or other innocent reason.

                       ***

       Now, to possess means to have it within
the person’s control. That does not mean, and I
said earlier, it doesn’t have to be held physically.
It doesn’t even have to be on the person. But in
this case, the proofs and the allegations are that
the defendant had it on his person [and] had
actual possession of it. In other words, you can be
in possession of a weapon in your car and you can
be 25-50 feet from the car. But that’s not this
case. That’s all I’m saying. This case, the
allegation is that the defendant had possession of

                         7
       it, actual possession on his person.

              To satisfy the possession element, you
       must find that the defendant knowingly possessed
       – we said that earlier.

App. at 343-46.

        In summation, Weatherly conceded that he was only
contesting the issue of whether he “possessed” the gun. App.
at 364. Weatherly argued that his guilt hinged upon the
credibility of Officer Ryel and Detective Medina, id., and he
asserted that Ryel and Medina lied in their testimony. Id. at
370-72. In rebuttal, the Government argued that Weatherly
failed to show any reasons why Ryel and Medina would lie.
Id. at 384. Towards the end of his rebuttal, the Government
posed this rhetorical question: “Why would Officer Ryel and
Detective Medina risk their 32-34 years of experience on the
police force over this case?” Id. at 396. Weatherly’s attorney
objected to this statement as “vouching for the witnesses,” but
the District Court never ruled on the objection. Id. at 396-
397.

       On September 8, 2006, the jury returned a guilty
verdict against Weatherly. App. at 2. At the sentencing
hearing on December 15, 2006, Weatherly argued that the
application of the Armed Career Criminal Act, and
particularly 18 U.S.C. § 924(e)(1), violated his Fifth and Sixth
Amendment rights. Id. at 409-10. However, the District
Court disagreed, and sentenced Weatherly to 200 months’
imprisonment, to be followed by five years’ supervised

                               8
release. Id. at 418-19. Weatherly filed a timely notice of
appeal on January 4, 2007. Id. at 1.

                               II.

       The District Court had subject matter jurisdiction
under 18 U.S.C. § 3231. This Court has appellate jurisdiction
to review the defendant’s appeal of his conviction and
sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Because a different standard of review applies to each
of Weatherly’s three issues, these standards will be addressed
individually with respect to each issue in the analysis section.

                              III.

                      A. Jury Instructions

        The District Court’s refusal to give a requested jury
instruction is reviewed for abuse of discretion. United States
v. Flores, 454 F.3d 149, 156 (3d Cir. 2006). “A defendant is
entitled to an instruction on his theory of the case where the
record contains evidentiary support for it.” United States v.
Davis, 183 F.3d 231, 250 (3d Cir. 1999). “A court errs in
refusing a requested instruction only if the omitted instruction
is correct, is not substantially covered by other instructions,
and is so important that its omission prejudiced the
defendant.” Id. Because the actual instructions substantially
covered Weatherly’s requested “mere presence” instruction
and because Weatherly was not prejudiced by the District
Court’s refusal to give the “mere presence” instruction, the

                               9
District Court did not err in refusing to include Weatherly’s
proposed instruction in her actual jury instructions.

        Weatherly argues that because the actual instructions
failed to include the explanation that the defendant had to
“intend to exercise dominion and control” 5 over the firearm,
the actual instructions did not substantially cover his
requested instruction. Def. Br. at 15. As a result, Weatherly
argues that the jury could have found him guilty even if they
believed his defense, because the actual instructions defined
possession to include the situation where the firearm was
simply near him or susceptible to his control. Id. However,
this is an incorrect interpretation of the actual jury
instructions.

       At two different points during the jury instructions,
once at the beginning and once at the end, the District Court
clearly indicated that the government must prove that
Weatherly “knowingly possessed” the firearm in order to find
him guilty. App. at 343, 346. The District Court stated that
“[k]nowingly is defined as knowledge, voluntarily and


       5
         Although Weatherly objected to the District Court’s
rejection of his proposed “mere presence” instruction, Weatherly
failed to object to the District Court’s instructions defining
“possession” and “knowingly.” App. at 296-98. Therefore, we
review any alleged error in the actual jury instructions for plain
error, and we conclude that Weatherly’s arguments fail under
this standard. Gov’t of Virgin Islands v. Smith, 949 F.2d 677,
681 (3d Cir. 1991).

                               10
intentionally, and not because of mistake or accident or other
innocent reason.” Id. at 344-45. The District Court defined
“possession” to mean “to have something within your
control.” Id. at 344. Putting those two definitions together,
the District Court’s jury instructions defined the “possession”
element of the felon-in-possession statute to mean “to
voluntarily and intentionally have [a firearm] within your
control.” Id. at 343-46. Therefore, the actual jury instructions
covered Weatherly’s proposed “mere presence” instruction,
because the jury could not find that Weatherly knowingly
possessed the firearm under the actual jury instructions due
simply to his “[m]ere presence in the area of any contraband,
including a firearm, or awareness of its location.” Id. at 63,
343-46.

        Alternatively, even if the actual jury instructions did
not substantially cover Weatherly’s proposed jury instruction,
the District Court did not err because the “mere presence”
instruction was not “so important that its omission prejudiced
the defendant.” See Davis, 183 F.3d at 250. At trial, the
Government’s theory was that Weatherly actually possessed
the firearm. See App. at 355 (Government’s closing
statement). In addition, the District Court’s jury instructions
made it clear at several points that this was a case of actual
possession, not constructive possession.6 The “mere


       6
          “But in this case, the proofs and the allegations are that
the defendant had it on his person [and] had actual possession of
it. In other words, you can be in possession of a weapon in your
car and you can be 25-50 feet from the car. But that’s not this

                                11
presence” defense is clearly not relevant or applicable to a
case where the Government’s allegations and the District
Court’s instructions limit the theory of “possession” to actual
possession. See, e.g., United States v. Meads, 479 F.3d 598,
601-02 (8th Cir. 2007). Because the “mere presence”
instruction is not relevant to this actual possession case,
Weatherly was not prejudiced by the omission of his proposed
jury instruction; therefore, the District Court did not err in
refusing to give the proposed instruction.

                          B. Vouching

        In order for vouching to be improper, the prosecutor’s
assurance of a witness’s credibility must be “‘based on either
the prosecutor’s personal knowledge, or other information not
contained in the record.’” United States v. Harris, 471 F.3d
507, 512 (3d Cir. 2006) (quoting United States v. Walker, 155
F.3d 180, 187 (3d Cir. 1998)). Weatherly contends that the
prosecutor improperly vouched for the credibility of the
government witnesses by posing the following rhetorical
question: “Why would Officer Ryel and Detective Medina
risk their 32-34 years of experience on the police force over
this case?” App. at 396. This Court concludes that the
statement made by the prosecutor in his rebuttal was not
improper for two reasons.




case. That’s all I’m saying. This case, the allegation is that the
defendant had possession of it, actual possession on his person.”
App. at 345-46.

                               12
        First, although we acknowledge that in some cases
statements that a police officer would be risking his career to
lie under oath are improper vouching,7 the statements by the


       7
         In United States v. Pungitore, 910 F.2d 1084, 1125 (3d
Cir. 1990), this Court determined that the prosecutor’s vouching
was improper where “there was no evidence backing the
prosecutor’s comments that the U.S. Attorneys and law
enforcement officers could not have behaved as unscrupulously
as defense counsel alleged they did without violating their oaths
of office and jeopardizing their careers.” However, the
Pungitore case dealt with a situation where the prosecutor
invoked his own oath of office to defend the credibility of
government witnesses, a situation that greatly concerned this
Court and one which is not before us today. Id.
        This Court also notes that we look favorably upon the
comments of Judge McKee, who responded as follows to a
similar argument by the prosecutor in the case before him: “That
argument [that the government agent would not risk his career
to lie] was forceful, responsive, and absolutely proper. The
Assistant U.S. Attorney was asking the jury to reach a common
sense conclusion that the agent had too much to lose to commit
perjury merely to convict this defendant. It was the kind of
effective and logical response to an attack on an agent’s
credibility that has been made in countless numbers of closing
arguments, and will be made in countless more.” United States
v. Bethancourt, 65 F.3d 1074, 1082 (3d Cir. 1995) (McKee, J.,
dissenting) (dissenting from the majority’s conclusion that other
improper statements by the prosecutor did not constitute plain
error).

                               13
prosecutor in this case were proper because they were based
on evidence in the record. During Officer Ryel’s redirect, the
prosecutor asked Ryel what would be taken into consideration
by his superiors in making the decision of whether to promote
him from the position of police patrol officer (an entry level
position that Ryel currently held) to Sergeant (a supervisory
position). App. at 184. Ryel testified that in addition to the
result on the written exam and sick time, he stated his
superiors would consider “disciplinary action taken against
[him] if [he] had any.” Id. at 185. Although not actually
introduced into evidence, the average juror could easily infer
that a police officer who conspired with another officer to
deliberately fabricate evidence and perjured himself in open
court while testifying under oath in an official capacity would
risk at least some sort of disciplinary action. Therefore, the
prosecutor’s rhetorical question about why the police officers
would risk their careers to testify falsely against this single
defendant was proper because it called for an inference
directly based upon evidence in the record.

       Second, the prosecutor’s statement in this case was not
improper vouching because it was a reasonable response to
allegations of perjury by Weatherly’s attorney. When
determining whether a prosecutor’s statements improperly
vouched for a witness’s credibility, the statements must be
considered in context. United States v. Brennan, 326 F.3d
176, 186 (3d Cir. 2003). In this case, the prosecutor gave his
closing argument first, and there are no statements from that
portion of his argument at issue here. App. at 350-59. Then,
Weatherly’s attorney delivered her closing argument, which
presented the defense’s single theory: the police officers

                              14
found a gun near the defendant, conspired with each other to
lie about the incident, and then proceeded to perjure
themselves in court. Id. at 360-79. Defense counsel
speculated at some length that the officers fabricated their
story because they were under “enormous pressure” and
wanted to demonstrate that they were “relevant” because
“there’s terrible crime in Trenton.” 8 App. at 371-72. It is


      8
          The defense counsel told the jury:
                      If they thought the gun
               was his, does it make sense that
               they would decide that the ends
               would justify the means? And
               consider the climate in which
               they work. There’s terrible
               crime in Trenton.
                      My goodness, you’re
               hearing that there were 152
               found and abandoned guns. . . .
               [T]hat is a terrible problem in
               Trenton. This is the climate in
               which these officers work.
                             ***
                      These are two officers on
               the same police force, the same
               fraternity if you will. Both
               trying and struggling with the
               crime that’s facing Trenton
               right now and was facing
               Trenton last summer.

                               15
permissible for counsel to argue inferences, but an inference
must flow logically and convincingly from the facts in the
record. See United States v. Navarro, 145 F.3d 580, 593 (3d
Cir. 1998). Defense counsel’s argument in this case crossed
the line, urging the jury to speculate rather than infer. It was
only in response to these accusations, in his rebuttal, that the
prosecutor felt the need to address the credibility of the two


                     So ask yourself whether
             or not it makes sense whether
             these officers are under
             enormous pressure. They’re
             under enormous pressure to
             attempt to demonstrate that they
             are making a difference in the
             crime that is facing Trenton,
             that they’re making a difference
             by making an arrest. Maybe
             you can understand that.
             Maybe you can understand that
             sometimes when we’re under
             pressure, we feel this enormous
             burden and we want to
             demonstrate that we’re relevant,
             that we are making a difference.
                           ***
                     It’s been said that how
             you treat the least of my
             brothers is how you treat me.
App. at 371-72.

                               16
witnesses whom the defense attorney painted as not credible.
When looked at in context, this Court concludes that the
statement was nothing more than a brief and appropriate
response to the defense attorney’s speculation and attacks on
the credibility of the government witnesses.9

      Even if we had determined that the prosecutor’s
statement was improper vouching, it would have been
harmless error. This Court reviews improper vouching for
witness credibility under the harmless error standard.10


       9
         Although there was evidence that 152 guns were found
on the streets of Trenton in 2005, there was no direct evidence
that the officers were “under enormous pressure to attempt to
demonstrate that they are making a difference in the crime that
is facing Trenton, that they’re making a difference by making an
arrest.” App. at 372. In fact, the evidence was to the contrary.
During redirect, Officer Ryel stated that his superiors were not
focused on foot patrol officers making arrests, but rather were
“primarily focused on quality of life issues,” such as drinking in
public. Id. at 185-86.
       10
          The Government argues that because Weatherly failed
to request relief (i.e. mistrial), this Court should only review the
vouching issue for plain error. Gov’t Br. at 28 (citing United
States v. Richards, 241 F.3d 335, 341-42 (3d Cir. 2001)).
Weatherly made a contemporaneous objection after the
prosecutor asked, “Why would Officer Ryel and Detective
Medina risk their 32-34 years of experience on the police force
over this case?” App. at 396. The District Court never ruled on

                                17
United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995).
“[V]ouching that is aimed at the witness’s credibility and is
based on extra-record evidence is deemed non-constitutional
error.” United States v. Dispoz-O-Plastics, Inc., 172 F.3d
275, 286 (3d Cir. 1999). This Court finds non-constitutional
error harmless when “it is highly probable that the error did
not contribute to the judgment.” Id. (quoting Gov’t of Virgin
Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)). To
determine if the defendant was prejudiced, the Court must
consider “the scope of the comments and their relationship to
the proceeding, the extent of any curative instructions, and the
strength of the evidence against defendants.” Dispoz-O-
Plastics, 172 F.3d at 286.

       Here, even if the rhetorical question posed by the
prosecutor is considered improper vouching, any error
stemming from the comment was harmless. First, as stated
above, this comment was made in rebuttal, in response to
speculation and an attack by the defense attorney on the


this motion, and we do not fault Weatherly for failing to seek
relief. Therefore, we review this statement under a harmless
error standard.
        However, all other statements contained in the
prosecutor’s closing argument and rebuttal were not timely
objected to, and any arguments regarding improper vouching
related to these other statements would be subject to plain error
review. United States v. Harris, 471 F.3d 507, 512 (3d Cir.
2006). Under this more stringent standard, we conclude that
none of the other statements warrants reversal.

                               18
credibility of the government witnesses. As such, it is likely
that the jury simply viewed this statement as a response to the
defendant’s accusations. In addition, this statement was brief
and isolated, when it is considered that the prosecutor’s
rebuttal alone stretches for 18-pages in the transcript. App. at
379-397. Therefore, it is highly unlikely that this statement
had any influence on the jury. Finally, prior to the closing
arguments, the judge thoroughly instructed the jury as to the
nature of counsel’s arguments and credibility issues.11 These
instructions make it highly probable that the alleged improper
vouching by the prosecutor did not contribute to the jury
finding Weatherly guilty. See Dispoz-O-Plastics, 172 F.3d at
286. For all of the above reasons, even if the prosecutor’s
statement was improper vouching, this Court concludes that
the improper vouching was harmless because we have a “sure
conviction that the error did not prejudice” Weatherly. See id.

    C. Constitutionality of the Armed Career Criminal Act

        This Court reviews challenges to the constitutionality
of a statute under a de novo standard of review. United States
v. Singletary, 268 F.3d 196, 198-99 (3d Cir. 2001).


       11
         The District Court told the jurors that the statements of
counsel are meant to persuade, and should be considered as
argument, not evidence. App. at 331. Also, the judge told the
jurors that they are the sole judges of credibility, and that the
testimony of law enforcement officers does not deserve any
more weight than the testimony of non-government employee
witnesses. Id. at 338-40.

                               19
Weatherly challenges the constitutionality of the Armed
Career Criminal Act, which imposes a mandatory minimum
fifteen-year prison sentence for felons-in-possession
convicted under 18 U.S.C. § 922(g) who have sustained three
(or more) convictions for violent felonies or serious drug
offenses. 18 U.S.C. § 924(e)(1). Specifically, Weatherly
asserts that the statute is unconstitutional because the jury, not
the District Court, should determine whether any of his prior
convictions qualified as “violent felonies” or “serious drug
offenses” under 18 U.S.C. § 924(g)(1). However, as
Weatherly concedes, this argument was rejected already by
this Court in United States v. Coleman, 451 F.3d 154, 161 (3d
Cir. 2006).12 In light of our decision in Coleman, therefore,
we reject Weatherly’s argument that the Armed Career
Criminal Act is unconstitutional.

                               IV.

        We have considered all other arguments made by the
parties on appeal, and conclude that no further discussion is
necessary. For the above reasons, the conviction and sentence
of the District Court will be affirmed.




       12
         Weatherly raises this issue before this Court only to
preserve the issue for review.

                               20
