                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1548




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                                                        NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 03-1548




                 UNITED STATES OF AMERICA

                                 v.

                  LUIS ARTURO MELENDEZ,

                                            Appellant




            Appeal from the United States District Court
                     for the District of New Jersey
               (D.C. Criminal Action No. 00-cr-00319)
         District Judge: Honorable Joseph A. Greenaway, Jr.


            Submitted Under Third Circuit LAR 34.1(a)
                        October 30, 2003

Before: SCIRICA, Chief Judge, NYGAARD and AMBRO, Circuit Judges

                 (Opinion filed: February 24, 2004)




                            OPINION
AM BRO, Circuit Judge

         Luis Arturo Melendez appeals his conviction of, and sentence for, knowing

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922 (g)(1) and

(2).1 He contends that: (1) the Government shifted its burden of proof to the defense, thus

violating his right to due process; (2) the District Court abused its discretion by admitting

evidence of his prior felony convictions; (3) and the District Court incorrectly calculated

his criminal history for the purpose of sentencing. We find that there was no shift of the

burden of proof and that Melendez waived his right to appeal the admission of his prior

convictions. We also conclude that the District Court correctly calculated Melendez’s

criminal history. Therefore we affirm.2

                                    I. Factual Background

         In May 2000 Melendez, a convicted felon, was charged with knowing possession

of a firearm. At trial, the only issue for the jury was whether he knew that he possessed




  1
      This statute provides in pertinent part:
         (g) It shall be unlawful for any person –
                 (1) who has been convicted in any court of, a crime punishable by
                 imprisonment for a term exceeding one year;
                 (2) who is a fugitive from justice; . . .
              to ship or transport in interstate or foreign commerce, or possess in or
              affecting commerce, any firearm or ammunition . . . .

      While we discern no evidence of Melendez being a fugitive, he does not challenge
      that he was convicted under subsection (2) as well.
  2
      We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                                2
the firearm.3

       The Government’s witness, Officer Nelson Rivera, testified that he observed

Melendez while patrolling a high-drug area in Jersey City. According to Officer Rivera,

Melendez would talk to pedestrians, open his canvas bag, close it, and engage in further

conversation. Suspecting that Melendez was selling stolen items or drugs, Officer Rivera

approached him. Rivera recounted that he overheard from about six feet away Melendez

telling his company that “I have to sell this gun.” At the time of arrest, Rivera found a

.357 caliber revolver in the canvas bag Melendez was carrying. The gun was registered to

Melendez’s girlfriend, a former Hudson County Sheriff’s Officer.

       Melendez explained at trial that he went to his parents’ house to pick up clothes

that day and found the canvas bag while looking for something to carry the clothes.

Although the sleeve of a sweater was sticking out from the bag, Melendez claimed he did

not remove it because he was tired after his day at work. He claims that he put clothes in

the bag without finding out what was inside. Therefore, Melendez argues, the gun must

already have been in the bag and he did not know about it until his arrest.

       On cross-examination, the Government questioned Melendez about what happened

to the clothes in the bag. He testified that the Jersey City Police Department took them

into its possession. When the Government asked Melendez if it would have been




  3
    Melendez stipulated that he had a prior felony conviction and that the firearm found in
his possession had traveled in interstate commerce

                                             3
important for him to keep the clothes so he could present them to the jury, the defense

counsel objected. The counsel argued that the question suggested that Melendez had to

prove his innocence. The District Court overruled the objection and explained that,

although Melendez had “no burden to establish his guilt or innocence,” cross-examination

about those items was proper since he was asserting that those items were in the bag.

       Melendez then testified that, when he went to the Police Department to pick up his

personal items, he inquired about the clothes. He claimed he was told that he would get

them back after the trial. In Officer Rivera’s report as to what items were in the canvas

bag, he only listed the gun and the ammunition. However, Rivera conceded that plastic

bags also were inside the bag. He further conceded that there could have been clothes but

claimed that he did not remember any.

       The Government demonstrated the gun in the bag in front of the jury and pointed

out that it was “pretty heavy.” Melendez rejoined that he did not notice the weight of the

bag because he was tired and because he picked up heavy items every day.

       The Government filed a motion in limine to admit evidence of Melendez’s prior

felony convictions to attack his credibility. The District Court denied the motion in part

and granted it in part, ruling that the Government could use evidence of Melendez’s two

prior convictions for impeachment purposes. Melendez introduced this evidence on

direct examination by admitting that he pled guilty to receiving stolen property in 1992

and again in 1993. No more facts were elicited about the convictions.



                                             4
       During its summation, the Government again displayed the gun in the bag,

reiterating how heavy the gun was. Melendez moved for mistrial, and the motion was

denied.

       The jury found Melendez guilty. The District Court sentenced him to 92 months in

prison, considering his prior conviction and sentence. Melendez appeals both his

conviction and sentence.

                                 II. Standard of Review

       We review the scope of cross-examination for abuse of discretion. United States v.

Werme, 939 F.2d 108, 117 (3d Cir. 1991). We also review the denial of a motion for

mistrial for abuse of discretion. United States v. Resko, 3 F.3d 684, 688 (3d Cir. 1993).

Likewise, the District Court’s decision to admit evidence is reviewed for abuse of

discretion. United States v. Johnson, 302 F.3d 139, 152 (3d Cir. 2002). We exercise

plenary review in determining whether the District Court misapplied the Sentencing

Guidelines. United States v. McNeill, 887 F.2d 448, 454 (3d Cir. 1989).

                                      III. Discussion

                                            A.

       Melendez first argues that when the Government questioned him as to the

whereabouts of the clothes and demonstrated the gun in the empty bag, the burden was

shifted to him to disprove an element of the crime – his knowledge of the gun in the bag.

Thus, Melendez contends, this shift of the burden violated his due process right. We



                                             5
disagree.

       The Due Process Clause of the Fourteenth Amendment to the Constitution requires

the Government to “prove every element of criminal offense beyond a reasonable doubt.”

Sandstrom v. Montana, 442 U.S. 510, 512 (1979). Melendez contends that the

Government’s question suggested that he had some burden of preserving evidence. He

also claims that, because the Government mischaracterized the condition of the bag by

demonstrating the gun in it without additional clothes, the burden of proof was

improperly shifted to him. We do not agree, however, that the question and the

demonstration relieved the Government of its burden of proving M elendez’s knowledge.

       First, Melendez explained to the jury that he tried to retrieve his clothes but was

told by the Police Department that he would get them back after the trial. As the District

Court noted, his testimony, if believed, showed to the jury that “he took more than

adequate steps to try to recover his property.” We also reject Melendez’s contention that

the way the gun and the bag were modeled in front of the jury created the type of unfair

prejudice that requires mistrial because the jury was well aware of his testimony about the

additional clothes. Furthermore, as the District Court correctly called attention, the

Government was modeling what Melendez was doing at his parents’ home before he put

any additional items in the bag to make a point that he must have noticed the gun’s weight

(two to three pounds). It was irrelevant whether he put the clothes in the bag afterward.

Thus, the motion for mistrial was properly denied.



                                              6
          Besides, the jury instruction clearly conveyed the correct standard. The District

Court instructed the jury that “[t]he burden of proving [the] guilt beyond a reasonable

doubt remains with the United States throughout the case and never shifts to a defendant.”

The jury was also instructed that “the defendant is presumed to be innocent of the crime

unless and until the United States proves his guilt of the crime beyond reasonable doubt,”

and that if “you have a reasonable doubt as to the defendant’s guilt, you must find him not

guilty.” The District Court further charged the jury that “the defendant is under no

obligation to prove his innocence and likewise has no burden to present evidence.”

          Thus, we reject Melendez’s contention that the jury would have believed that he

had to prove his innocence because the Government questioned him regarding the

whereabouts of his clothes and demonstrated the canvas bag without additional items in

it.

                                               B.

          Next, Melendez challenges the District Court’s in limine ruling that allowed the

Government to use his prior convictions for impeachment purposes. 4 We conclude that


      4
    The District Court ruled that evidence of Melendez’s prior convictions of receiving
stolen property would be admissible under Federal Rule of Evidence 609(a)(1) or (2),
alternatively. The Rule provides in pertinent part:
        Rule 609. Impeachment by Evidence of Conviction of Crime
       (a) General rule. For the purpose of attacking the credibility of a witness,
          (1) evidence that a witness other than an accused has been convicted of a crime
          shall be admitted, subject to Rule 403, if the crime was punishable by death or
          imprisonment in excess of one year under the law under which the witness was
          convicted, and evidence that an accused has been convicted of such a crime shall

                                                7
Melendez waived his objection to this ruling because he himself introduced the prior

convictions evidence during his direct examination.

       In Ohler v. United States, the Supreme Court held that “a defendant who

preemptively introduces evidence of a prior conviction on direct examination may not on

appeal claim that the admission of such evidence was error.” 529 U.S. 753, 760 (2000).

The Court noted that, even after the trial court’s favorable ruling, the Government must

still decide whether to impeach a defendant with his/her prior convictions evidence by

gauging risk of possible reversal on appeal from its use. Id. at 758. Such a right to

decide would be denied if a defendant introduced the conviction on direct examination.

Id. at 758. Accordingly, the Supreme Court concluded that a defendant cannot “short

circuit that decisional process by offering the conviction herself (and thereby removing

the sting) and still preserve its admission as a claim of error on appeal.” Id.

       In this case, Melendez, as noted, confronted the issue of his prior convictions

during his direct examination by admitting that he pleaded guilty to receiving stolen

property in 1992 and in 1993. Thus, he cannot complain on appeal that the prior

convictions evidence was erroneously admitted.




       be admitted if the court determines that the probative value of admitting this
       evidence outweighs its prejudicial effect to the accused; and
       (2) evidence that any witness has been convicted of a crime shall be admitted if it
       involved dishonesty or false statement, regardless of the punishment.

                                              8
                                             C.

       Melendez also challenges the District Court’s sentencing calculation, arguing that

it erroneously assigned three criminal history points to his prior conviction for which he

was sentenced to “time served,” not to a specific period of time. Again we disagree.

       The United States Sentencing Guidelines (“Guidelines”) direct the sentencing

court to “add three points for each prior sentence of imprisonment exceeding one year and

one month.” U.S.S.G. §4A1.1 (a). The District Court assessed three points based on

Melendez’s prior conviction of making terroristic threats, for which he was sentenced to

time served – 448 days in prison.

       Melendez claims that the sentence of time served should not be counted for the

purpose of his criminal history calculation because he was not subject to a mandatory

minimum sentence of one year and one month and because his sentence was mere

“happenstance.” However, contrary to Melendez’s argument, the Guidelines do not

require a mandatory minimum sentence of one year and one month, nor do they mandate

sentencing of a specific period of time to be counted as criminal history points. Morever,

Melendez’s claim that the sentence could have been shorter if he had been sentenced

earlier is irrelevant. The term of imprisonment actually imposed on a prior conviction,

here 448 days, should be treated as the term intended by the sentencing court. United

States v. Rodriguez-Lopez, 170 F.3d 1244, 1246 (9th Cir. 1999) (holding that defendant’s

prior sentence to time served was properly placed into the sentencing calculation because



                                             9
that was the actual time served). Here, Melendez was in prison for 448 days and was

sentenced to the same period of time. Therefore, the District Court correctly applied the

Guidelines when it assigned three criminal history points to M elendez’s prior sentence.

                                       * * * * *

       We affirm the District Court’s judgment and sentence.




                                            10
