                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4211




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 04-4211


                           UNITED STATES OF AMERICA

                                          v.

                               MICHAEL D. FORBES,
                                             Appellant


               APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                                D.C. Crim. 03-cr-00250-1
                  District Judge: The Honorable Christopher C. Conner


                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 9, 2006


       Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE,* District Judge


                           (Opinion Filed: January 27, 2006)


                                      OPINION




   *
   The Honorable Dickinson R. Debevoise, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
BARRY, Circuit Judge

       Appellant, Michael D. Forbes, was convicted of multiple drug related offenses in

the United States District Court for the Middle District of Pennsylvania.1 Furthermore,

the jury found, beyond a reasonable doubt, that Forbes was “an organizer or leader” of a

drug dealing scheme involving five or more people. The District Court sentenced Forbes

to 50 years imprisonment. Forbes appeals both his conviction and his sentence. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We will affirm the

conviction, but will vacate the sentence and remand for resentencing in accordance with

United States v. Booker, 543 U.S. 220 (2005).

       Because we write primarily for the parties, who are familiar with the case, we

proceed directly to the analysis of Forbes’ claims.

                         I. Forbes’ Challenge to His Conviction

       The prosecution elicited testimony at trial that Forbes used a foam baseball bat

with a hard core to break the nose of a 21-year-old woman, who sold drugs for him,

because she owed him money. Forbes argues that the District Court abused its discretion

by allowing this testimony to be presented to the jury. Specifically, he claims that, even if




   1
     Following a four-day trial, the jury found Forbes guilty of unlawfully distributing 500
grams or more of crack cocaine and five grams or more but less than ten grams of heroin;
using a telephone to commit a felony drug offense; using and carrying a firearm during
and in relation to drug trafficking; and criminal conspiracy to distribute 500 grams or
more but no more than 1.5 kilograms of crack cocaine. The jury found Forbes not guilty
of interstate travel in aid of drug trafficking.

                                             2
relevant, the testimony was both cumulative and highly prejudicial, and therefore should

have been excluded under Federal Rule of Evidence 403, which provides:

       Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of
       time, or needless presentation of cumulative evidence.

       We review a district court’s ruling regarding the admissibility of evidence under

Rule 403 for abuse of discretion.

       “We have [repeatedly] held that because the trial judge is present in the
       courtroom as the challenged evidence is offered, and is therefore ‘in the
       best position to assess the extent of prejudice caused by the party,’ the trial
       judge must ‘be given very substantial discretion’ in ‘balancing’ probative
       value on one hand and ‘unfair prejudice’ on the other.”

United States v. Universal Rehabilitation Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir.

2000) (citing United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978)). Accordingly, we

will not reverse a district court’s ruling unless it is “arbitrary or irrational.” In re Paoli

R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir. 1997); see also Long, 574 F.2d at 767

(“If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is

reviewed by an appellate tribunal.”).

       The first step in a Rule 403 analysis is to determine whether the challenged

evidence has probative value. Here, the Second Superseding Indictment alleged that

Forbes maintained the drug trafficking conspiracy “through force, fear, violence and

intimidation.” Testimony regarding Forbes’ assault of a woman who was selling drugs

for him is certainly probative of this allegation.

                                                3
       Forbes nevertheless argues that the graphic testimony “was so severely prejudicial

that any probative value was . . . dramatically outweighed by that prejudice.” We

disagree. The District Court’s determination that the testimony was admissible to

establish that Forbes was “an organizer and leader of an activity and tried to control the

people in his organization through violence [and] intimidation” was neither arbitrary nor

irrational. (App. at 200.) We therefore find that it was well within the District Court’s

discretion to conclude that the probative value of the testimony was not substantially

outweighed by any potential unfair prejudice.

                          II. Forbes’ Challenge to His Sentence

       Forbes argues that the case should be remanded for resentencing pursuant to

United States v. Booker, 543 U.S. 220 (2005). Specifically, he contends that remand is

appropriate because the District Court incorrectly treated the Sentencing Guidelines as

mandatory.2 Forbes was sentenced prior to Booker. His appeal, therefore, falls within the

ambit of our decision in United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), in

which we held that defendants sentenced before Booker should have their sentencing




   2
    In Booker, the Supreme Court held that
        mandatory enhancement of a sentence under the Sentencing Guidelines
        based on facts found by the court alone, in the absence of a waiver of a
        jury trial, violates the Sixth Amendment. To remedy the constitutional
        infirmity of the Guidelines, the Court severed that portion of the statute
        making application of the Guidelines mandatory, rendering them
        effectively advisory.
United States v. Lore, 2005 U.S. App. LEXIS 26272, at *56 (3d Cir. Dec. 2, 2005)

                                             4
challenge “remand[ed] for consideration of the appropriate sentence by the District Court

in the first instance.” Id. at 166.

       The government concedes that the District Court assumed that the Guidelines were

mandatory, but nevertheless contends that there is no need to vacate Forbes’ sentence

because “it is clear from the record that the sentence imposed by the court would in fact

be imposed again were the matter sent back.” 3 We have held that “where . . . a District

Court clearly indicates that an alternative sentence would be identical to the sentence

imposed under the Guidelines,” a remand is not warranted, because “any error that may

attach to a defendant’s sentence under Booker is harmless.” United States v. Hill, 411

F.3d 425, 426 (3d Cir. 2005).

       The District Court’s statements in this case, however, lack the clarity demanded by

Hill. Unlike in Hill, where the District Court clearly stated that it was imposing an

identical alternative sentence under an indeterminate sentencing scheme, the District

Court here made no such statement. Indeed, in its supplemental statement of reasons

regarding the applicability of the Guidelines, the District Court checked a box indicating

that “[t]he Court applied the Guidelines and all relevant enhancements in this case.” It

could have, but did not, check a box indicating that the “judgment includes an alternative

sentence,” or that “the Court found the Guidelines unconstitutional in part, and imposed a



   3
     The government bases this assertion, in large part, on the fact that the District Court
declined to grant a downward departure and imposed a sentence ten years in excess of the
mandatory minimum.

                                             5
sentence in accordance with the constitutionally applied portions of the Guidelines.” We

will, therefore, vacate Forbes’ sentence and remand for resentencing in accordance with

Booker.4

                                     III. Conclusion

       For the foregoing reasons, we will affirm Forbes’ conviction, vacate his sentence,

and remand for resentencing in accordance with Booker.




   4
     Forbes also argues that the District Court erred by refusing to depart downward given
the disparity between his sentence and the sentences imposed upon his co-defendants. It
is well established that we lack jurisdiction to review a district court’s decision not to
grant a downward departure when the court understands that it has the power to depart,
but declines to do so. See United States v. Hart, 273 F.3d 363, 378 (3d Cir. 2001)
(holding that the court did not have jurisdiction to review the refusal to grant a downward
departure on the ground that the defendants received higher sentences than their co-
defendants who were sentenced by a different judge); United States v. Vitale, 159 F.3d
810, 816 (3d Cir. 1998); United States v. Miele, 989 F.2d 659, 668 n.11 (3d Cir. 1993);
United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989). Here, the District Court
expressly acknowledged its authority to depart downward from the applicable range, but
chose not to do so. (App. at 781-782) (“This court possesses authority under Section
5K2.0 to grant a departure from the guideline’s range to correct an unwarranted disparity
in the defendant’s sentences as compared to co-defendants . . . . Recognizing the authority
to depart, the court will decline to do so under these circumstances.”) Accordingly, we
lack jurisdiction to review this claim.

                                            6
