                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                    ______

                                      No. 11-3456
                                        ______

                           UNITED STATES OF AMERICA

                                            v.

                     TOMMIE TELFAIR a/k/a “Hassan Gatling”,
                                Appellant
                                 ______

                    On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Criminal No. 2:08-cr-00757-001)
                    District Judge: Honorable Dennis M. Cavanaugh
                                          ______

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 11, 2012


Before: GREENAWAY, JR., and NYGAARD and VAN ANTWERPEN, Circuit Judges

                               (Filed: December 12, 2012)
                                         ______

                              OPINION OF THE COURT
                                      ______

VAN ANTWERPEN, Circuit Judge.
                                            I.

      Tommie Telfair a/k/a “Hassan Gatling” (“Telfair”) appeals from a judgment of

conviction for violations of 21 U.S.C. § 846, 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18

U.S.C. § 2. His court-appointed counsel has filed a motion to withdraw and a brief in
support of his motion (“Anders brief”) pursuant to Anders v. California, 386 U.S. 738

(1967) and Local Appellate Rule (“L.A.R.”) 109.2(a). Though counsel‟s Anders brief

should have been more thorough, our independent review of the record reveals no

nonfrivolous issues on appeal. Accordingly, we will grant counsel‟s motion to withdraw

and affirm the judgment of the District Court.

                                            II.1

       On September 5, 2006, the Newark Police Department received a call that shots

had been fired at 185 Parker Street, Newark, New Jersey. Jennifer Filpo (“Filpo”) and

Catherine Sanchez (“Sanchez”), two of the occupants of 185 Parker Street, were at the

residence when police arrived, and informed the police that they had called 911 because

someone shot at the rear of the residence. Filpo and Sanchez allowed the police into the

residence. The police proceeded to the kitchen area in the rear of the premises, where

they found bullet holes in the door between the kitchen and the backyard, and damage

from gunfire in the kitchen. Detectives from the robbery unit arrived and found shell

casings in the backyard near the kitchen door. Detective Pablo Gonzalez noticed bullet

holes on the refrigerator, and opened it in search of evidence of the shooting. Inside the

refrigerator, he saw a projectile and, in a separate drawer, two clear containers holding

what appeared to be heroin. The detective seized the containers and performed a field

test on the substance. The substance tested positive for heroin.




1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                             2
       Detective Luigi Corino noticed a bullet hole in the kitchen floor, and traced the

trajectory to locate the projectile. He concluded the bullet traveled into the basement.

After asking Filpo and Sanchez how to get into the basement, the detective followed the

bullet‟s trajectory and discovered that it had traveled into a room that was behind a

locked door. After Filpo and Sanchez indicated they did not have a key to that door,

Corino forced it open. Behind the door, Corino discovered a heroin mill.2 Filpo and

Sanchez were arrested and taken into custody. In total, 130 grams of heroin were found

at 185 Parker Street.

       The Drug Enforcement Administration (“DEA”) was notified that a heroin mill

had been found at 185 Parker Street. DEA agents interviewed Filpo and Sanchez, who

both identified Telfair as the owner or controller of the heroin mill. The DEA obtained a

warrant to search 185 Parker Street for drug evidence and for evidence linking Telfair to

the premises. When DEA agents executed the warrant, they collected the drug evidence

from the basement and seized documentary evidence connecting Telfair to the location.3


2
  A heroin mill is a processing center in which bulk quantities of heroin are mixed with
other materials to add volume, and are then packaged into individual doses for street-
level distribution. The heroin mill at 185 Parker Street contained a long table with a scale
on it, a blender, stamps and inkpads used to place heroin “brands” on envelopes and bags,
boxes of new and used glassine envelopes used to package heroin, and a computer.
3
  This evidence included: rent receipts for 185 Parker Street in the name of “Tommy
Hassan” (another of Telfair‟s aliases); a receipt for “Hass” (another alias) for rims for a
1998 Lincoln Navigator; a letter from DirecTV addressed to Hass Gatling at 185 Parker
Street, Newark, New Jersey; three letters from Meg Radio to Hass Gatling at 185 Parker
Street; a letter from Chase to Hass Gatling at 185 Parker Street; a letter from Cablevision
to Hass Gatling at 185 Parker Street; a bill from Cablevision to Hass Gatling at 185
Parker Street; and a bill from Gold Touch Carpet and Flooring to Hass at 185 Parker
Street. The owner and landlord of 185 Parker Street also testified that he had been
renting the premises to Telfair at the time the heroin was found, that Telfair had made
                                             3
       Shortly after the shooting, the DEA attempted to find Telfair at the residence of

his girlfriend, Catrina Gatling (“Gatling”), but she denied knowing Telfair. The DEA

then obtained an arrest warrant for Telfair. On January 23, 2007, Telfair was arrested

outside Gatling‟s residence. After he was Mirandized, Telfair admitted he was a heroin

dealer, and told the DEA agents that he had been leaving to meet his heroin supplier,

Carlos Alberto Antigua (“Carlito”), when he was arrested. Carlito repeatedly called

Telfair during the interview.

       Carlito testified at trial that he began supplying heroin to Telfair in late August

2006. At the height of the relationship, Telfair was purchasing 100 bricks of heroin every

three days. This continued for roughly four months. During this period, Carlito sold

between four and five kilograms of heroin to Telfair.

       An indictment was returned against Telfair on March 29, 2007, charging him with

one count of conspiracy to distribute and to possess with intent to distribute 100 grams or

more of heroin.4 A superseding indictment was filed on May 7, 2007, charging Telfair

with conspiracy to distribute one kilogram or more of heroin.5 On April 7, 2008, the

District Court held a hearing regarding several motions filed by Telfair‟s then-counsel,

James Kimball, including a motion to suppress the evidence seized from 185 Parker

Street. The District Court denied the motions and issued a written order, without an




several renovations to the property, and that he had never informed the landlord of an
intent to leave or to sublet the premises to Filpo and Sanchez.
4
  21 U.S.C. §§ 841(a), 841(b)(1)(B)(I), and 846.
5
  21 U.S.C. §§ 841(a), 841(b)(1)(A)(I), and 846.
                                              4
accompanying opinion, on May 20, 2008. On October 7, 2008, this indictment was

dismissed without prejudice due to violations of the Speedy Trial Act, 18 U.S.C. § 3161.

         On October 8, 2008, a second indictment was returned against Telfair, charging

him with one count of conspiracy to distribute and possess with intent to distribute one

kilogram or more of heroin,6 and one count of distribution and possession with intent to

distribute 100 grams or more of heroin.7 Though represented by counsel, Telfair filed a

number of pro se motions, including a motion to suppress the evidence seized from 185

Parker Street, which were nearly identical to the motions filed under the prior indictment.

The District Court denied these motions in a December 10, 2008 opinion, noting it had

denied “substantially similar” motions in its May 20, 2008 Order. The court found the

officers‟ warrantless entry of 185 Parker Street justified by the consent of Filpo and

Sanchez. The court also concluded the search was justified by the plain view exception

to the warrant requirement.

         In March 2009, roughly one year before trial, Mr. Kimball was replaced by

Michael Pedicini as counsel for Telfair. Telfair demanded that Mr. Pedicini file new

motions on many of the same subjects and based on the same arguments as the earlier

motions. Mr. Pedicini declined, saying “my position with regard to motions is, if they‟ve

been filed and argued and denied, you can‟t refile them until you get the answer you

want.” (Pretrial Transcript (“P.Tr.”) at 14).




6
    21 U.S.C. §§ 841(a), 841(b)(1)(A)(I), and 846.
7
    21 U.S.C. §§ 841(a), 841(b)(1)(B), and 18 U.S.C. § 2
                                                5
       After a jury trial, during which he was represented by Mr. Pedicini, Telfair was

convicted on both counts of the indictment. At the sentencing hearing, the District Court

calculated Telfair‟s Guidelines range at 360 months‟ to life imprisonment, but determined

that this range was overly harsh, and so imposed a sentence of 240 months‟

imprisonment. Telfair filed a timely notice of appeal, and John Azzarello, who

represented Telfair at sentencing and is representing him on appeal, filed a motion to

withdraw as defense counsel and an accompanying Anders brief.

                                           III.

       In Anders v. California, the Supreme Court of the United States described the

procedure by which court-appointed appellate counsel may withdraw from representing a

criminal defendant without offending the defendant‟s Sixth or Fourteenth Amendment

right to counsel.8 386 U.S. 738, 744 (1967). This Court has adopted Local Appellate

Rule (“L.A.R.”) 109.2(a), which requires the same process as the one described in

Anders. United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). When we receive a

motion to withdraw and an accompanying Anders brief, our inquiry is twofold. United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). We first determine “whether counsel

adequately fulfilled the rule‟s requirements.” Id. We then conduct “an independent

review of the record” to determine whether any nonfrivolous issues exist. Id.



8
  The Court stated that “if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw. That request must, however, be accompanied by a brief referring to anything
in the record that might arguably support the appeal.” Anders v. California, 386 U.S.
738, 744 (1967).
                                             6
       To fulfill the first prong, counsel‟s brief must “satisfy the court that counsel has

thoroughly examined the record in search of appealable issues” and “explain why the

issues are frivolous.” Id. Counsel “need not raise and reject every possible claim,” so

long as she demonstrates she has made a “conscientious examination” of the record. Id.

An issue is frivolous “where none of the legal points are arguable on their merits.” Simon

v. Gov’t of Virgin Islands., 679 F.3d 109, 114 (3d Cir. 2012).

       A finding that an Anders brief is inadequate does not preclude us from affirming

the conviction without appointing new counsel; if we determine, after our independent

review of the record, that there are no nonfrivolous issues, we may affirm the judgment.

United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009). When conducting an

independent review of the record, the court need not comb the record in search of

appealable issues. Youla, 241 F.3d at 301 (citing United States v. Wagner, 103 F.3d 551,

553 (7th Cir. 1996)). If the Anders brief is adequate, our review will be guided by that

brief. Id. If the Anders brief is inadequate, we may rely on the appellant‟s pro se brief to

guide our review. Id. The determination of whether an issue is frivolous is informed by

the standard of review to which that issue is normally subject. See United States v.

Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002).

                         A. Adequacy of Counsel’s Anders Brief

       In our view, Telfair‟s appellate counsel, Mr. Azzarello, has not fully demonstrated

that he has “thoroughly examined the record in search of appealable issues.” Youla, 241

F.3d at 300. In his Anders brief, Mr. Azzarello discussed five issues, and concluded that

appeal on each of those issues would be frivolous. Three of those issues were raised by

                                              7
Telfair in his pro se filings: alleged ineffective assistance of counsel, challenges to the

sufficiency of the indictment, and allegations of discovery violations. Mr. Azzarello also

raised two issues which Telfair did not discuss in his pro se filings: the District Court‟s

denial of motions for a mistrial, and the propriety of the sentencing proceedings.

       Though Mr. Azzarello raised issues not discussed in any of Telfair‟s numerous

and lengthy pro se filings, he failed to discuss one issue that was consistently raised by

Telfair, at both the trial and appellate levels: the District Court‟s denial of Telfair‟s

motion to suppress. Defense counsel‟s failure to address issues raised by her client in his

pro se filings is evidence that defense counsel‟s Anders brief is inadequate. Youla, 241

F.3d at 301; Marvin, 211 F.3d at 781–82.

       In his pro se filings, Telfair alleged the evidence from 185 Parker Street was

discovered as a result of a warrantless, and therefore unreasonable, search. The dockets

for this case and for the case under the first indictment show Telfair vigorously litigated

this issue. In the proceedings against Telfair, the Government twice filed briefs

responding to a motion to suppress the evidence found at 185 Parker Street, and the

District Court twice issued orders addressing this issue. Telfair‟s trial counsel, Mr.

Pedicini, explicitly noted that he was not filing a new motion to suppress because the

court had already ruled on the matter and because Telfair had preserved his right to

appeal. The frequency of the litigation below regarding the search at 185 Parker Street

and Telfair‟s continual mention of it in his filings should have alerted counsel of the need

to address the issue.



                                               8
       In addition, the importance of the evidence seized from 185 Parker Street to the

Government‟s case, and the circumstances of its discovery, should have alerted Mr.

Azzarello that he must address the issue. The heroin found at 185 Parker Street was the

source of the investigation of Telfair; if this evidence is tainted, it is not “fruit of the

poisonous tree,” but rather is the root of the poisonous tree. This evidence provided the

foundation for the investigation and prosecution of Telfair. Without that foundation, the

case collapses. Furthermore, because this quintessential evidence was discovered during

a warrantless search--which is per se unreasonable, subject to a few, narrow exceptions,

Katz v. United States, 389 U.S. 347, 356 (1967)--Mr. Azzarello was obligated to discuss

the issue in his brief and explain why it would be frivolous to seek a reversal of the

District Court‟s order.

       Given the foregoing, Mr. Azzarello‟s Anders brief does not satisfy this Court that

he has conducted a thorough examination of the record in search of appealable issues.

Finding that his Anders brief is inadequate, we proceed to step two of the analysis, and

conduct an independent review of the record to determine whether any nonfrivolous

issues exist. Coleman, 575 F.3d at 321; Youla, 241 F.3d at 301.

                           B. Independent Review of the Record

       This Court has held that if an Anders brief is insufficient, we may still grant

counsel‟s motion to withdraw and affirm the judgment if independent review of the

record demonstrates that appeal would be frivolous. Coleman, 575 F.3d at 321–22.

Recognizing that Mr. Azzarello failed to discuss the Fourth Amendment issue, the

Government argues the Fourth Amendment claim is frivolous because the search of the

                                                9
refrigerator was justified by the exigent circumstances and plain view exceptions.9 We

first address the lawfulness of the warrantless entry into 185 Parker Street before

discussing the permissibility of the warrantless search of the refrigerator inside the

kitchen of 185 Parker Street.

                       1. The Initial Entry into 185 Parker Street

       In its December 10, 2008 Opinion, the District Court stated the officers‟

warrantless entry into 185 Parker Street was justified by the consent of Filpo and Sanchez

and by exigent circumstances. We review a district court‟s determination of consent for

clear error. United States v. Kim, 27 F.3d 947, 954–55 (3d Cir. 1994).

       The Government “has the burden of proving that the consent was, in fact, freely

and voluntarily given.” Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (citations

and internal quotation marks omitted). To assess the voluntariness of consent, we use a

totality of the circumstances analysis. Kim, 27 F.3d at 955.

       In this instance, the District Court did not err in finding Filpo and Sanchez

consented to the officers‟ entry of the premises. Filpo and Sanchez, two of the occupants

of the premises, called 911 because someone shot at the back of the residence while they


9
  The Government also claims Telfair waived his ability to seek appellate review of the
suppression issue because his trial counsel, Mr. Pedicini, did not file a motion to
suppress. Citing United States v. Rose, 538 F.3d 175 (3d Cir. 2008), in which this Court
held that under Federal Rule of Criminal Procedure 12(e), a motion to suppress not
timely filed may not be appealed, the Government argues Telfair cannot appeal this issue.
However, prior to Mr. Pedicini‟s involvement, Telfair filed a motion to suppress the
evidence seized from 185 Parker Street, arguing the evidence was the fruit of a
warrantless search not justified by exigent circumstances. The District Court ruled on
this motion in its December 10, 2008 Order and Opinion. Therefore, the issue was
preserved for appeal.
                                             10
were inside of it. They advised the officers that they were the ones who had called 911

and they directed the police to the rear of the house and kitchen. In addition, the

occupants assisted the officers in their investigation by showing them through the house.

There is no evidence in the record to contradict a finding of voluntary consent.

                           2. The search of the Refrigerator10

       The District Court found that the detective‟s warrantless search of the refrigerator

was justified by exigent circumstances and the plain view exception.11 It is well-

established that “searches and seizures inside a home without a warrant are presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). Although “the Fourth

Amendment has drawn a firm line at the entrance to the house,” Kirk v. Louisiana, 536

U.S. 635, 638 (2002) (citation and internal quotation omitted), the “ultimate touchstone

of the Fourth Amendment is „reasonableness.‟” Brigham City v. Stuart, 547 U.S. 398,

403 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13 (1999) (per curiam)).

10
   None of the pretrial motions, from either Mr. Kimball or Telfair, focused on the
discovery of the heroin mill in the basement of 185 Parker Street. Any mention of this
evidence is also omitted from the appellate filings of Telfair, Mr. Azzarello and the
Government. We will not address the issue in depth, but we do note that the search was
justified by exigent circumstances. Officers responding to the scene of a violent crime
may make a warrantless search for the perpetrator or for victims. Mincey v. Arizona, 437
U.S. 385, 392 (1978). Detective Corino was following the trajectory of a bullet out of
concern that a victim may have been hit by that bullet, and in so doing, discovered the
heroin mill.
11
   Although the District Court held the warrantless entry of 185 Parker Street was
justified by consent, it did not so hold regarding the search within the premises. We
cannot make a determination of consent on appeal. See Flippo v. West Virginia, 528 U.S.
11, 15 (1999) (per curiam) (declining to make finding of consent when trial court did not
do so); Thompson v. Louisiana, 469 U.S. 17, 23 (1984) (per curiam) (“Because the issue
of consent is ordinarily a factual issue unsuitable for our consideration in the first
instance, we express no opinion as to whether the search at issue here might be justified
as consensual.”).
                                             11
Therefore, once the home‟s threshold is lawfully crossed, police may seize evidence in

plain view. Mincey v. Arizona, 437 U.S. 385, 393 (1978).

                            a. Elements of the Plain View Exception

       In addition to the fact that the item must be in plain view, there are three

requirements for a valid plain view seizure. United States v. Menon, 24 F.3d 550, 559

(3d Cir. 1994) (citing Horton v. California, 496 U.S. 128, 136 (1990)). First, the officer

must lawfully be in the place “from which the evidence could be plainly viewed.”

Horton, 496 U.S. at 136. Second, the officer must have a “lawful right of access to the

object itself,” meaning the police cannot commit illegal trespass to access the item in

plain view. Id. at 137; see also United States v. Davis, 690 F.3d 226, 234 (4th Cir. 2012)

(“[T]he lawful access requirement is intended to clarify that police may not enter a

premises to make a warrantless seizure, even if they could otherwise see (from a lawful

vantage point) that there was contraband in sight.”) Third, the incriminating nature of the

item must be “immediately apparent.” Horton, 496 U.S. at 136. (citation omitted).

                               b. Lawful Presence and Access

       As established above, the officers were lawfully within the kitchen of 185 Parker

Street due to the consent of Filpo and Sanchez. Because the officers were lawfully within

the kitchen, their access to the refrigerator did not require illegal trespass of Telfair‟s

property. The bullet-riddled refrigerator was within the plain view of the officers as they

stood within the kitchen. The only issue is whether the bullet marks on the refrigerator

made the incriminating nature of the refrigerator “immediately apparent” under the third

prong of the plain view doctrine.

                                              12
                         c. The “Immediately Apparent” Analysis

       To satisfy the “immediately apparent” prong, the police must have probable cause

to believe the object in plain view is contraband. Minnesota v. Dickerson, 508 U.S. 366,

375 (1993) (citations omitted). The plain view exception is not limited to contraband, but

rather applies to all incriminating evidence. See Menon, 24 F.3d at 559 (“The Supreme

Court has allowed officers to seize incriminating evidence in plain view during the course

of a lawful search . . . .”).12 Courts use a totality of the circumstances analysis to assess

whether probable cause existed. Maryland v. Pringle, 540 U.S. 366, 371 (2003).

       Though the probable cause standard defies easy definition, Illinois v. Gates, 462

U.S. 213, 231–32 (1983), the totality of the circumstances indicate the police had

probable cause to believe that (1) the refrigerator itself was evidence of the shooting and

(2) the refrigerator may contain further evidence, such as projectiles, of the shooting.

The police had been called to respond to a shooting at the rear and kitchen area of 185

Parker Street. In investigating, they found bullet holes in the refrigerator in the kitchen.

Given the crime they were investigating (a shooting) and the location of the crime (the

kitchen area), the police had probable cause to believe the bullet markings on the

refrigerator were ballistic evidence of the crime, and that the interior refrigerator would



12
   This Court is not alone in applying the plain view doctrine to all evidence in plain
view. See United States v. Davis, 690 F.3d 226, 237 (4th Cir. 2012) (“[A]n item need not
itself be contraband before it has an „incriminating nature,‟ but instead, an item need only
be evidence of a crime.”); United States v. Smith, 459 F.3d 1276, 1293 (11th Cir. 2006)
(“[T]he scope of the „plain view‟ doctrine extends to the seizure of items that, while not
contraband themselves, may be used as evidence against a defendant.”).

                                              13
contain further evidence, in the form of projectiles or more bullet marks. Therefore, the

police could lawfully seize the refrigerator without a warrant.

                                    d. Plain View Search

   The Supreme Court has suggested that if the plain view doctrine supports seizure of

an item, it also supports a search of the item. Arizona v. Hicks, 480 U.S. 321, 326 (1987)

(“It would be absurd to say that an object could be lawfully seized and taken from the

premises, but could not be moved for closer examination. It is clear, therefore, that the

search here was valid if the „plain view‟ doctrine would have sustained a seizure of the

equipment.”) Several Courts of Appeals have used this language to uphold warrantless

searches of items found under the plain view exception. See United States v. Lemus, 582

F.3d 958, 965 (9th Cir. 2009) (upholding detective‟s lifting of couch cushion to confirm

firearm underneath was illegal when butt of firearm was in plain view); United States v.

Banks, 514 F.3d 769, 774–76 (8th Cir. 2008) (upholding warrantless search of black case

containing a firearm that was discovered in plain view because police had probable cause

to seize case); United States v. Buchanan, 70 F.3d 818, 825–26 (5th Cir. 1995)

(upholding field test of narcotics as lawful warrantless search because officers could have

seized narcotics under plain view doctrine); Bradway v. Gonzales, 26 F.3d 313, 320 (2d

Cir. 1994) (upholding warrantless search of interior of camp stove discovered in plain

view because immediately apparent it was stolen).

   The refrigerator was seizable under the plain view doctrine because the police had

probable cause to believe the appliance both was and contained incriminating evidence.

Because the refrigerator was seizable, the detective could open the refrigerator to conduct

                                            14
a “closer examination” of it. Hicks, 480 U.S. at 326. Therefore the detective was

lawfully within the refrigerator when he seized the heroin.

                           e. The “Outward Appearance” Doctrine

     Even if we were to decline to implement the rule described above, the detectives were

justified in opening the refrigerator based on its outward appearance. This Court has

determined that the outward appearance of certain containers may be so suggestive of

their contents that the containers may be opened without a warrant. Gov’t of Virgin

Islands v. Rasool, 657 F.2d 582, 589–90 (3d Cir. 1981). The Courts of Appeals of

several other Circuits have also adopted this rule. Banks, 514 F.3d at 773–74; United

States v. Meada, 408 F.3d 14, 23 (1st Cir. 2005); United States v. Gust, 405 F.3d 797,

800–802 (9th Cir. 2005); United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994);

United States v. Corral, 970 F.2d 719, 725–26 (10th Cir. 1992); United States v.

Sylvester, 848 F.2d 520, 525 (5th Cir. 1988); United States v. Eschweiler, 745 F.2d 435,

439–40 (7th Cir. 1984); United States v. Bachner, 706 F.2d 1121, 1126 n.7 (11th Cir.

1983).13

     This rule, considered an extension of the plain view doctrine, applies when the

contents of a container “can be inferred from the container‟s outward appearance.”

Sylvester, 848 F.2d at 525. Some courts refer to this as the “single-purpose container”


13
  These cases often draw support for the “outward appearance” exception from
Arkansas v. Sanders, 442 U.S. 753 (1979), overruled on other grounds by California v.
Acevedo, 500 U.S. 565 (1991), in which the Court stated, “[S]ome containers . . . by their
very nature cannot support any reasonable expectation of privacy because their contents
can be inferred from their outward appearance.” 442 U.S. at 764 n.13. See Banks, 514
F.3d at 773–74; Meada, 408 F.3d at 23; Sylvester, 848 F.2d at 525.
                                             15
exception, and thus only apply it when the container could have only a single purpose,

apparent from its outward appearance. E.g., Gust, 405 F.3d at 801–02. Other courts,

while still applying the exception narrowly, do not restrict its application to “single-

purpose containers.” For example, in United States v. Williams, the Court of Appeals for

the Fourth Circuit used this doctrine to uphold the warrantless search of five packages

“wrapped in cellophane with a brown opaque material inside.” 41 F.3d at 197–98. In so

doing, the court considered both the appearance of the container and the circumstances

surrounding its discovery. Id. Though the Court of Appeals for the Ninth Circuit applies

the doctrine narrowly, it determined that “the rationale behind the exception „focuses

upon the individual‟s reasonable expectation of privacy, which is established by general

social norms.‟” Gust, 405 F.3d at 801 (quoting United States v. Miller, 769 F.2d 554,

560 (9th Cir. 1985)).

       Taking into consideration its appearance, the circumstances surrounding its

discovery, Williams, 41 F.3d at 197–98, and the possessors‟ reasonable expectation of

privacy, Gust, 405 F.3d at 801, the search of the refrigerator was justified. The outward

appearance of the refrigerator in conjunction with the circumstances surrounding its

viewing by the officers rendered it highly probable that incriminating evidence, in the

form of bullets or bullet markings, would be found inside.14 The police had been called


14
  Since the plain view doctrine applies to contraband and to incriminating evidence, e.g.,
Menon, 24 F.3d at 559, and the “outward appearance exception” is merely one
permutation of the plain view doctrine, e.g., Sylvester, 848 F.2d at 524, we see no reason
why the outward appearance exception should not apply when the container clearly
contains incriminating evidence, as opposed to just contraband. See United States v.
Villarreal, 963 F.2d 770, 776 (5th Cir. 1992) (citing Horton, 496 U.S. 128 (“The plain
                                             16
to investigate a shooting at the rear of the house. The refrigerator, located in the rear of

the house, was riddled with bullet holes. Therefore, it could be inferred from the

appearance of the refrigerator that it contained incriminating evidence in the form of

projectiles or interior markings from the shooting. Additionally, since the occupants of

the premises, Filpo and Sanchez, had called the police to investigate the shooting, their

reasonable expectation of privacy in the bullet-riddled refrigerator was reduced.15 Thus

the search of the refrigerator was justified, and appeal on the matter would be frivolous.

                                     3. Seizure of the Heroin

       Detective Gonzalez‟ seizure of the heroin was valid under the three-prong test for

the plain view exception. As explained above, under both the Hicks justification for a

plain view search and the “outward appearance” exception, the detective was lawfully

“within” the refrigerator, and he did not need to commit a further trespass to access the

heroin. From that vantage point, the heroin was in plain view. Finally, it was


view exception is intended to allow police officers to seize incriminating items that they
discover in the course of their legitimate law enforcement activities . . . .”)) (emphasis in
original); see also Eschweiler, 745 F.2d at 439-40 (upholding seizure and search of
envelope for evidence under outward appearance exception).
15
   We are not taking the position that whenever an individual calls 911 regarding an
emergency within her residence, she forfeits her expectation of privacy in the entire
premises. To do so would run afoul of Thompson v. Louisiana, 469 U.S. 17 (1984).
However, when an individual calls the police regarding a crime within her residence, and
one of the individual‟s possessions in plain view contains obvious evidence of the crime,
under the plain view doctrine she has a reduced expectation of privacy in that possession.
Id. at 18–19; see also Horton 496 U.S. at 141 (“As we have already suggested, by
hypothesis the seizure of an object in plain view does not involve an intrusion on
privacy.”); Illinois v. Andreas, 463 U.S. 765, 771 (1983) (“The plain-view doctrine is
grounded on the proposition that once police are lawfully in a position to observe an item
first-hand, its owner‟s privacy in that item is lost; the owner may retain the incidents of
title and possession but not privacy.”).
                                             17
immediately apparent that the substance was contraband. When he opened the

refrigerator, the detective saw, in plain view, two clear containers which held marked

glassine envelopes. The detective knew that glassine envelopes are used to package

heroin, and that such envelopes are stamped with markings, such as the ones on the

envelopes he found, that indicate the “brand” of heroin contained therein. Therefore, the

seizure of the heroin in the refrigerator was valid under the plain view exception, and any

attempt on appeal to challenge that seizure would be frivolous.

                                       C. Remaining Claims

        In addition to the suppression issue, Telfair raised three claims in his pro se filing,

which Mr. Azzarello discussed in his brief.16 Mr. Azzarello also discussed two additional

claims not raised by Telfair. After reviewing these claims we find no nonfrivolous issues

for appeal.

                              1. Ineffective Assistance of Counsel

     Telfair makes several arguments that could only be characterized as ineffective

assistance of counsel claims. Telfair alleges that trial counsel, Mr. Pedicini, failed to file

pretrial motions, failed to call witnesses, and conspired with the Government to prevent

an appeal.



16
   Aside from these three claims, which were addressed by Mr. Azzarello, Telfair raises
numerous claims in which he alleges violations of Ms. Gatling‟s rights. A defendant
cannot seek suppression of evidence used against him at trial by claiming the
Government violated a third party‟s rights. Rakas v. Illinois, 439 U.S. 128, 133 (1978);
United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010). Therefore, Telfair lacks
standing to challenge the Government‟s treatment of Ms. Gatling, and so all of his claims
regarding the alleged mistreatment of Ms. Gatling are frivolous.
                                              18
       Generally, we will not address ineffective assistance of counsel claims on direct

appeal, and instead will defer such claims to collateral proceedings. United States v.

Thornton, 327 F.3d 268, 271 (3d Cir. 2003). This is because an appellate court ruling on

a direct appeal “„must proceed on a trial record not developed precisely for the object of

litigating or preserving the [ineffectiveness] claim and thus often incomplete or

inadequate for this purpose.‟” Id. at 272 (quoting Massaro v. United States, 538 U.S.

500, 505 (2003)). In rare circumstances, the record on the ineffectiveness issue may be

sufficiently developed for the matter to be resolved on direct appeal. United States v.

Cocivera, 104 F.3d 566, 570–71 (3d Cir. 1996).

       Here, though the record indicates Mr. Pedicini was not ineffective in many, if not

all, aspects, we are not comfortable ruling on Telfair‟s claim at this time. The factual

record is not sufficiently developed regarding Mr. Pedicini‟s failure to file pretrial

motions or call witnesses on Telfair‟s behalf. 17 We do not have a sufficient record to

decide these claims and so decline to do so.


17
   For a defendant to prevail on an ineffective assistance of counsel claim, he must
establish that “counsel‟s performance was deficient” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is
deficient if counsel “made errors so serious that counsel was not functioning as „counsel‟
guaranteed the defendant by the Sixth Amendment.” Id. Such deficiency prejudices the
defendant when the errors were so serious as to undermine the trial process so that its
results are not reliable. Id.
        With regards to the “conspiracy” allegation, Mr. Pedicini was not ineffective.
Telfair had filed a notice of appeal immediately after the trial verdict but before the
imposition of a judgment and sentence. Mr. Pedicini wrote several letters explaining that
the appeal was premature under Federal Rule of Appellate Procedure 4(b)(A). He
explained he would consent to the Government‟s motion to dismiss without prejudice,
and that Telfair could refiled after the sentence was imposed. Telfair views this as a
conspiracy to deprive him of his right to appeal.
                                               19
                                2. Challenge to the Indictment

   Telfair alleges the second superseding indictment, the indictment upon which he was

convicted, was deficient and that it contained embellished and misleading information.

   To be sufficient, an indictment must charge every element of the offense. United

States v. Polan, 970 F.2d 1280, 1282 (3d Cir. 1992). In count one, Telfair was charged

with conspiring to violate 21 U.S.C. §§ 841(a), (b)(1)(A) in violation of 21 U.S.C. § 846.

(Appendix (“App.”) 72).        The elements of this offense are: (1) knowingly and

intentionally (2) conspiring to (3) distribute or possess with the intent to distribute (4) one

kilogram or more of a mixture or substance containing a detectable amount of heroin.

The indictment charged that Telfair “did knowingly and intentionally conspire and agree

with others to distribute and possess with the intent to distribute 1 kilogram or more of

heroin, a Schedule I controlled substance, contrary to Title 21, United States Code,

Sections 841(a) and 841(b)(1)(A). In violation of Title 21, United States Code, Section

846.” (App. 73). The indictment stated every element of the offense charged in count

one.

       Count two charged Telfair with violating 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and

18 U.S.C. § 2. The elements of this offense are: (1) knowingly and intentionally (2)

distributing or possessing with intent to distribute (3) 100 grams or more of a mixture or

substance containing a detectable amount of heroin. The indictment charged that Telfair

“did knowingly and intentionally distribute and possess with intent to distribute 100

      Mr. Pedicini‟s consent to the non-prejudicial dismissal of the appeal was not
evidence of his ineffectiveness and it did not prejudice Telfair.

                                              20
grams or more of heroin, a Schedule I controlled substance. In violation of Title 21,

United States Code, Sections 841(a)(1) and (b)(1)(B), and Title 18, United States Code,

Section 2.” The indictment stated every element of the offense charged in count two.

        Aside from the elements of the offenses, the only other details in the indictment

were the dates and locations of the alleged violations. Telfair‟s claim that the indictments

contained embellished or misleading information is unfounded.

                                    3. Discovery Violations

     Telfair makes general allegations of discovery violations, but provides no specifics.

Telfair‟s trial counsel, the Government, and the District Court continually reiterated there

were no discovery violations. Additionally, a thorough examination of the record shows

defense counsel was not deprived of discovery. Telfair also alleges defense counsel

failed to share the discovery with Telfair. This is an ineffective assistance of counsel

claim, and as explained above, we will not rule on it at this juncture.

                                     4. Motions for Mistrial

     The next potential issue for appeal is whether the District Court erred in twice

denying motions for a mistrial.18 We review a district court‟s denial of a mistral for

abuse of discretion. United States v. Hakim, 344 F.3d 324, 328 (3d Cir. 2003).

                                a. The first motion for a mistrial

     Defense counsel first moved for a mistrial during the testimony of Carlos Jose

Antigua, Carlito‟s brother. Antigua testified he had received a call from Telfair‟s cell


18
   Mr. Azzarello raised this issue in his brief though Telfair did not discuss it in his pro se
filings. In the interest of thoroughness, we will review it.
                                              21
phone, and that the person on the other end stated Telfair was not available because he

was in jail for domestic violence. Defense counsel moved for a mistrial.

   The person on the other end of the phone call was an undercover federal agent. He

had told Mr. Antigua that Telfair was in jail for domestic violence because the

Government was investigating the Antiguas for heroin distribution. Telfair had been a

customer of the Antiguas, and the Government did not want to alert them to the

possibility that Telfair had been caught, and so the Agent made up the domestic violence

story to explain Telfair‟s absence.

       Immediately after defense counsel‟s motion, the District Court held a sidebar

conference, during which the Government confirmed it had not been expecting, and had

not attempted to elicit, the testimony Antigua provided. The court determined the best

remedy would be an immediate jury instruction:

              Ladies and gentlemen, you just heard the witness mention
              domestic violence.       I want it to be clear that the
              Government‟s position, and they agree with defense that there
              are no allegations of any domestic violence; that that
              apparently was told to this witness as a ruse to let him know
              why the Defendant wasn‟t present. Nobody is suggesting that
              Telfair was involved in any domestic violence, and that‟s not
              a part of this case, so please don‟t let that enter into your
              deliberations at all. I think that answer came up even as
              somewhat of an unknown to the prosecutor. But that‟s what
              this witness was told, but not true.

(Tr. at 431). We presume the jury followed this curative instruction. United States v.

Lore, 430 F.3d 190, 206 (3d Cir. 2005). The immediacy with which the trial judge issues

the curative instruction is an important factor in determining whether the instructions

have cured any prejudice. United States v. Sotomayor-Vazquez, 249 F.3d 1, 18 (1st Cir.

                                            22
2001). The stronger the evidence against the defendant, the more likely the erroneous

admission of evidence may be cured. Cf. Marshall v. Hendricks, 307 F.3d 36, 69 (3d Cir.

2002) (“[T]he stronger the evidence against the defendant, the more likely that improper

arguments or conduct have not rendered the trial unfair . . . .”)

       The District Judge immediately addressed the improper testimony and issued the

above curative instruction. Without reciting the evidence against Telfair, the abundance

of proof connecting Telfair with the heroin found at 185 Parker Street, as well as to the

broader conspiracy, rendered the error a curable one. The District Court‟s instruction

alleviated any risk of prejudice.

                            b. The second motion for a mistrial

       The second motion for a mistrial was made during summation arguments. At the

close of his argument, the Assistant U.S. Attorney said the following,

              So, ladies and gentlemen, when you consider what the weight
              of the evidence is, when you consider the defense tactics,
              nothing but distractions in this case, and cast them aside in
              your deliberations, the Government is confident that you will
              return the only verdict that can be reached based on the law
              and the evidence as you have seen, and we would ask you to
              find the Defendant, Telfair, guilty as charged on both counts
              of the indictment.

(Tr. At 636-37). Defense counsel moved for a mistrial based on the Government‟s use of

the word “tactics,” saying it was unduly pejorative.        The District Court denied the

motion.

       To grant a mistrial based on summation arguments by the Government, the inquiry

is “whether such remarks, in the context of the entire trial, were sufficiently prejudicial to


                                             23
violate a defendant‟s due process rights.” United States v. Scarfo, 685 F.2d 842, 849 (3d

Cir. 1982). “[A]ttacks on the opposing advocate‟s arguments and tactics are acceptable,

and indeed [] attacking and exposing flaws in one‟s opponent‟s arguments is a major

purpose of closing argument.” United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007).

In Rivas, this Court found no fault when the Government attorney stated it was defense

counsel‟s “„job [] to take [the jury‟s] focus off the issue.‟” Id. at 139–40. The challenged

statement here is substantially similar to the one in Rivas. Given this similarity, and the

lack of any prejudicial effect on Telfair, the District Court did not abuse its discretion in

denying defense counsel‟s motion. Therefore, no nonfrivolous issues exist regarding the

denial of defense counsel‟s motions for a mistrial.

                                        5. Sentencing

       The last potential issue is whether the sentencing process was flawed. We review

imposition of a criminal sentence for abuse of discretion and conduct a two-step inquiry.

United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). We first review the

proceedings to determine whether the District Court committed procedural error; if we

find such error, we remand without further analysis. Id. If there is no procedural error,

we review for substantive reasonableness, and affirm “unless no reasonable sentencing

court would have imposed the same sentence on that particular defendant for the reasons

the district court provided.” Id. (citations and internal quotation marks omitted).

       The District Court must follow a three step sentencing process: (1) the court must

calculate the Guidelines range, including sentencing enhancements; (2) the court must

consider any motions for departure; and (3) the court must consider the Guidelines range

                                             24
in conjunction with the sentencing factors listed in 18 U.S.C. § 3553(a) to determine the

appropriate sentence. Id.

       The District Court followed the requisite procedure.         At the outset of the

sentencing hearing, the court explained the three step procedure and structured the

hearing pursuant to that process. The court correctly calculated the offense level at

thirty-seven and Telfair‟s criminal history category at six, resulting in a Guidelines range

of 360 months to life imprisonment. Neither party moved for a departure, so the court

proceeded to step three.     The District Court heard both parties‟ arguments for an

appropriate sentence in light of the § 3553(a) factors. After taking into consideration the

§ 3553(a) factors, the District Court imposed a sentence of 240 months‟ imprisonment.

There were no errors in the process.

       The sentence was not substantively unreasonable.        Noting that Telfair barely

satisfied the requirements to be considered a Career Offender under the Guidelines, the

court expressed concern that the Guidelines sentence was overly harsh. The court also

considered the sentences imposed on other individuals who had been convicted for

involvement in the same conspiracy as Telfair.         In light of this, the District Court

concluded a downward variance from the Guidelines was appropriate. This was not

unreasonable, and therefore no nonfrivolous grounds for appeal arose during sentencing.

                                                 IV.

       For the foregoing reasons, we grant counsel‟s motion to withdraw and affirm

Defendant‟s conviction and sentence. We have also reviewed the various pro se requests

and motions filed by Telfair and these are denied as being without merit.

                                            25
