                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2009

USA v. Mathis
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1688




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"USA v. Mathis" (2009). 2009 Decisions. Paper 1160.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1160


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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       ___________

                       No. 08-1688
                       ___________

             UNITED STATES OF AMERICA

                             v.

              SHANNON LAMONT MATHIS,
                       a/k/a
                   SHAN MONEY

                   Shannon Lamont Mathis,

                                  Appellant

                       ___________

       On Appeal from the United States District Court
            for the Western District of Pennsylvania
            (D.C. Criminal No. 1-06-cr-00059-001)
      District Judge: The Honorable Sean J. McLaughlin
                         ___________

         Submitted Under Third Circuit LAR 34.1(a)
                      May 22, 2009

BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

                   (Filed: June 22, 2009)

                       ___________

                OPINION OF THE COURT
                     ___________
NYGAARD, Circuit Judge.

       A jury found Shannon Lamont Mathis guilty on two counts of possession with

intent to distribute five grams or more of a controlled substance (cocaine base), in

violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(ii) and 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C). He was sentenced to 185 months’ imprisonment on each count. Mathis

appeals raising both evidentiary and sentencing issues. We will affirm.

       Because we write for the parties, who are familiar with the factual background of

this matter, we recount only those facts that are relevant to our disposition. First, Mathis

argues that the court should have instructed the jury that Trooper Tylman’s prior sworn

testimony, concerning his affidavit of probable cause, could be considered as substantive

evidence under Rule 801(d)(1)(A) rather than merely as impeachment evidence. Mathis’

defense at trial focused on his belief that the arresting officer had a vendetta or grudge

against him and that he planted evidence of cocaine base inside the vehicle used to take

Mathis to the Erie police station. Second, he argues that Trooper Tylman’s allegedly

inconsistent prior testimony concerning the circumstances under which the drugs were

found in the police car should have been admitted as substantive evidence under that

same rule.

       As to Trooper Tylman’s statement, Mathis’ argument fails for a very simple

reason: it does not meet the requirements of Rule 801(d)(1)(A). Trooper Tylman’s

statement is not an inconsistent witness statement because he has not contradicted



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himself. Also, Tylman testified under oath that he did not see the video surveillance of

Mathis’ booking nor did Tylman see what took place at the booking counter. Moreover,

the District Court permitted defense counsel to cross-examine Trooper Tylman regarding

the contents of the probable cause affidavit. Defense counsel attempted to point out

alleged inconsistencies between Tylman’s affidavit and Officer Nolan’s testimony at trial.

On these facts, there is no Rule 801(d)(1) issue and thus there are no grounds for counsel

to object to the District Court's refusal to provide an 801(d)(1) instruction.

       Before trial, the Government filed a motion pursuant to Fed.R.Evid. 404(b)

seeking permission to introduce Mathis’ prior drug conviction. The District Court denied

this request, but indicated the Government would be permitted to impeach Mathis with

this information should he testify in his own defense. The District Court specifically

warned defense counsel of the risks involved. Defense counsel ignored the District

Court’s warnings and specifically asked arresting officer Nolan several questions to elicit

reasons why Mathis was being followed. During a sidebar conference, the police officer

indicated that if he answered the question, he would testify that he has known Mathis all

his life and that he knew of Mathis’ previous drug crimes. Ultimately, the District Court

permitted Officer Nolan to answer the question why he was following Mathis: “The

reason why I followed him is because I know that he’s on federal supervision for a prior

drug conviction.”




                                              3
       The District Court did not abuse its discretion. Defense counsel disregarded a

clear warning from the District Court and opened the door to this damaging answer by

questioning Nolan’s reason for following Mathis. Moreover, the District Court gave an

appropriate cautionary instruction to the jury that they may not consider the fact of

Mathis’ prior conviction for a drug crime as evidence that he committed the present

crimes, but may “only consider those facts as you consider what Lieutenant Nolan’s

motive was in following Shannon Mathis on the day of arrest.”

       Mathis also argues that the District Court erred in calculating the applicable

Guidelines range and that his sentence was unreasonable. The District Court determined

that a two-level increase in the offense level for obstruction of justice, U.S.S.G. § 3C1.1,

was warranted. After hearing testimony, the District Court found three instances of

retaliatory and threatening behavior that were not taken into account by § 3C1.1. One

offense level point was added for each action. Mathis was sentenced to 185 months

imprisonment on each count, to run concurrently, and eight-years supervised release.

       Mathis maintains that the Government did not prove these sentencing

enhancements beyond a reasonable doubt. Next, he argues that he was entitled to have a

jury determine the facts surrounding the enhancements. These arguments are, of course,

precluded by our decisions in United States v. Fisher, 502 F.3d 293 (3d Cir. 2007) and

United States v. Grier, 475 F.3d 556 (3d Cir. 2007).




                                              4
       Mathis additionally argues that the evidence supporting the upward departure was

insufficient. We are satisfied with the District Court's finding that Mathis obstructed

justice. Obstruction of justice under U.S.S.G. § 3C1.1 includes “threatening, intimidating,

or otherwise unlawfully influencing a ... witness ... directly or indirectly, or attempting to

do so.” U.S.S.G. § 3C1.1, cmt. n. 4(a). Mathis threatened Carmen Dawson when he said

“you’re going to die bitch.” App. 143. Further, the District Court found that Mathis

threatened harm to Hercules Rieger and his family. Id. Finally, the District Court found

that the government had proven that Mathis threatened Chad Bolden with a gesture of

moving his fingers across his neck. Id. Thus, we conclude that the District Court did not

err by finding that Mathis willfully obstructed justice. See U.S.S.G. § 3C1.1, comment.

(n.4(a)) (obstruction-of-justice enhancement is warranted when defendant threatens,

intimidates, or otherwise unlawfully influences co-defendant, witness, or juror, directly or

indirectly, or attempts to do so). The District Court properly departed upwards for the

obstruction of justice not adequately taken into consideration by the Guidelines.

       For the foregoing reasons, we will affirm the conviction and judgment of sentence.




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