                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1587




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                                                        NOT PRECEDENTIAL




                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                No. 05-1587


                      UNITED STATES OF AMERICA




                                     v.

                              RASHID JIHAD,

                                        Appellant
                               ____________

                  Appeal from Judgment of Sentence Entered
                     in the United States District Court
                        for the District of New Jersey
                         at Criminal No. 04-cr-00108
                     The Honorable William J. Martini
                                ____________

               Re-Submitted Under Third Circuit L.A.R. 34.1(a)
                            December 13, 2005

Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALDISERT, Circuit Judges.

                         (Filed December 13, 2005)


                         OPINION OF THE COURT
ALDISERT, Circuit Judge.

       On the merits of his conviction, Appellant Rashid Jihad presents a single issue. He

asks us to conclude that the District Court erred by denying his request for an evidentiary

hearing to determine the propriety of both the police officers’ initial stop of him and the

subsequent seizure of a firearm. Jihad was charged with one count of possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g). We hold that the District

Court did not err in denying Jihad’s motion for an evidentiary hearing. Alternatively, if

there was any error, it was harmless. Accordingly, we will affirm the conviction.1

                                              I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                             II.




   1
     Because the District Court stated an alternative sentence identical to that imposed
under the Guidelines, we will also affirm Jihad’s sentence. See United States v. Hill, 411
F.3d 425, 426 (3d Cir. 2005) (“[W]here, as here, a District Court clearly indicates that an
alternative sentence would be identical to the sentence imposed under the Guidelines, any
error that may attach to a defendant’s sentence under Booker is harmless.”). Jihad
observes an apparent conflict between the District Court’s oral pronouncement of the
sentence, during which the Court stated the alternative sentence, and the “Supplemental
Statement of Reasons” attached to the Judgment, in which the Court did not provide an
alternative sentence. We have, however, previously held that, in the event of a conflict
between an oral sentence and judgment, the oral sentence controls. See United States v.
Chasmer, 952 F.2d 50, 52 n.2 (3d Cir. 1991). Accordingly, Jihad is not entitled to a
remand for re-sentencing under United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005).

                                              2
       In response to an anonymous tip that a black male wearing blue jeans and a black

shirt and riding a bicycle possessed a weapon, three police officers arrived at North 12th

and Sixth Avenue, an area in Newark, New Jersey known for its high crime and gang

activity. The responding officers immediately came upon Jihad, who was riding a bicycle

and wearing blue jeans and a black shirt. According to Jihad’s trial testimony, one of the

officers, while still sitting in the cruiser, asked him, “What are you doing?” Jihad

responded that he was a security guard in the area and that he was on break. When one of

the officers began to exit the car, Jihad fled.2 The officers then apprehended Jihad and

frisked him. At that point, they discovered a firearm on his person.

       Prior to trial, Jihad moved to suppress the gun as the fruit of an illegal search. He

alleged that the police report was vague and that “the basis of the information which led

to the stop of Mr. Jihad need[ed] to be more fully explored.” The District Court denied

the motion and refused to hold a hearing on the basis Jihad had not shown any contested

issues of material fact.

                                               III.

       We review the District Court’s decision whether to hold an evidentiary hearing on

a motion to suppress under an abuse of discretion standard. See United States v.




   2
     The officers’ testimony differs slightly. According to their testimony, Officer Cardona’s car
door was already open and he was getting out of the vehicle when he told Jihad that he wanted to
ask him a question. Jihad gave some type of response, the details of which are unclear, and then
fled. According to the officers, the entire exchange lasted two to three seconds.

                                                3
Calderon, 77 F.3d 6, 9 (1st Cir. 1996) (“The decision to hold an evidentiary hearing is

committed to the discretion of the district court and our review is for abuse of that

discretion.”); United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000); United States v.

Glass, 128 F.3d 1398, 1408-1409 (10th Cir. 1997).

       Rule 12(b)(1) of the Federal Rules of Criminal Procedure requires that all “defects

in the institution of the prosecution” be raised by pretrial motion. Rule 12(b)(1), Federal

Rules of Criminal Procedure. Although Rule 12 does not by its terms specify when such

a motion entitles a defendant to a pretrial evidentiary hearing, we have held that a

defendant’s moving papers must demonstrate a “colorable claim” for relief. United States

v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996); see also United States v. Brink, 39 F.3d 419,

424 (3d Cir. 1994) (remanding for hearing where Brink alleged facts that, if true, “could

violate a defendant's rights under the Sixth Amendment”). For a claim to be colorable, a

defendant must do more than merely allege that a constitutional violation has occurred;

the defendant must allege contested issues of fact material to the resolution of his

constitutional claim. Voigt, 89 F.3d at 1067; Howell, 231 F.3d at 620 (“An evidentiary

hearing on a motion to suppress need be held only when the moving papers allege facts

with sufficient definiteness, clarity, and specificity to enable the trial court to conclude

that contested issues of fact exist.”).

       In his moving papers, Jihad did not allege that any violation of constitutional rights

had occurred, nor did he contend that there were disputed facts with respect to his claim.



                                               4
His motion stated:

              The basis of the information which led to the stop of Mr. Jihad
              needs to be more fully explored. The precise information relied
              upon by the dispatched police officers is unclear. It is not certain
              how much time elapsed between the initial report and the
              subsequent “stop” of Mr. Jihad.

              [T]he circumstances regarding the actual seizure of the firearm
              is [sic] plainly confusing. There is no way to determine if the
              firearm was taken from the person of Mr. Jihad or recovered in
              another manner. There is no effort made to describe the search
              of Mr. Jihad, if any, made by police officers. A hearing is
              necessary to more fully develop these issues.


       Such assertions do not identify a specific issue of material fact that is in dispute.

There is no allegation that the officers engaged in an illegal search or otherwise obtained

the concealed weapon illegally. Accordingly, on the basis of Jihad’s moving papers we

are unable to ascertain any material issue of fact for the District Court to resolve at an

evidentiary hearing.

                                              IV.

       On appeal, Jihad principally relies on the Supreme Court’s decision in Florida v.

J.L. in arguing that an evidentiary hearing was necessary to determine whether the

anonymous tip that caused the officers to arrive at the scene was sufficiently reliable to

establish reasonable suspicion. See Florida v. J.L., 529 U.S. 266 (2000) (holding that an

anonymous tip lacked sufficient indicia of reliability to establish reasonable suspicion for

an investigatory stop). Even if Jihad were correct that the circumstances surrounding the



                                               5
anonymous tip were sufficiently suspect to warrant an evidentiary hearing, Jihad’s claim

would still fail. As the District Court correctly found, it was Jihad’s flight from the

police, rather than the anonymous tip, that gave the police reasonable suspicion to stop

and frisk him.

       The police report indicated that the officers came upon Jihad late at night in a

high-crime area after being dispatched on the basis of an anonymous tip reporting a man

with a gun. Jihad fit the description, and after a brief exchange with the officers, he fled.

After they were able to apprehend him and conduct a pat-down search, he was found to

possess a concealed weapon.

       Jihad concedes that the officer did not need reasonable suspicion to ask him a

question. See United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (“[I]t is well

established that officers are allowed to ask questions of anyone – and gun owners are no

exception – without having any evidence creating suspicion.”). Although questioning

may constitute a seizure when an officer makes a showing of authority and the suspect

submits, Jihad’s brief exchange with the officers and his subsequent flight do not

demonstrate that he “submit[ted] in any realistic sense to the officers’ show of authority.”

Id. at 358-359 (holding that suspect’s momentary compliance with police order and

giving of his name was not sufficient to trigger a seizure); cf. United States v.

Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (holding that defendant was not seized

when he stopped his car at the curb in response to police commands, but then sped away



                                              6
when an officer approached on foot).

       Appellant’s counsel has also not disputed that Jihad’s presence in a high-crime

area, taken together with his unprovoked flight, created reasonable suspicion justifying an

investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968). See Illinois v. Wardlaw, 528

U.S. 119, 124 (2000) (holding that suspect’s unprovoked flight from officers in a high-

crime area supported reasonable suspicion that suspect was engaged in criminal activity

and justified stop).

       Accordingly, Jihad’s contention that an evidentiary hearing was necessary to

determine whether the anonymous tipster was reliable or the tip was “stale” is without

merit. The District Court correctly concluded that the anonymous tip was immaterial to

the constitutionality of Jihad’s stop because he was not actually seized until after he fled.

The District Court therefore properly denied his motion for an evidentiary hearing.

                                              V.

       Moreover, in light of the evidence adduced at trial, any error arising from the

District Court’s failure to hold an evidentiary hearing in this case is harmless. See Voigt,

89 F.3d at 1068 (examining the entire record to determine whether failure to order a

suppression hearing was harmless); see also Gov’t of Virgin Islands v. Williams, 739

F.2d 936, 939 (3rd Cir. 1984) (“[In reviewing the decision to deny a motion to suppress]

this court may look at the entire record; it is not restricted to the evidence presented at the

suppression hearing where the motion was denied.”). Although we are mindful that



                                               7
suppression hearings and trials serve markedly different purposes and that a defendant

may have no incentive at trial to challenge evidence supporting the pretrial ruling, see 5

W. LaFave, Search and Seizure § 11.7(d), at 417 (3d ed. 1996), we are satisfied that the

testimony at trial and the parties’ written submissions provided the District Court with

sufficient evidence to determine that Jihad’s constitutional rights were not violated by the

officers’ search and seizure of the firearm.

       The officers’ testimony at trial reaffirmed the police report and confirmed that the

officers had reasonable suspicion to stop and frisk Jihad and that the firearm was properly

found during the pat-down search. Jihad’s testimony at trial, although contradicting that

of the three officers in some respects, did not create a material issue of fact with respect

to any violation of his rights. He admitted that he was in a high-crime area and that he

fled from police on a bicycle. Jihad’s major contradiction of the officers’ testimony was

that the firearm was found in a nearby driveway, rather than on his body pursuant to a pat-

down search.

       Even if we were to credit Jihad’s testimony, it would weigh against holding a

suppression hearing. To assert a Fourth Amendment challenge to a search and seizure, a

defendant must show that he has a legitimate expectation of privacy in the area of search.

Rakas v. Illinois, 439 U.S. 128, 143 (1978). Jihad has not alleged, nor can he show, that

he had an expectation of privacy in the firearm or in the public driveway in which he

contends the gun was recovered. As a result, regardless of whether we credit his version



                                               8
of the events or that of the officers, no violation of his constitutional rights occurred.

Accordingly, any denial of a suppression hearing was, at most, harmless error.

                                              VI.

       We have considered all arguments raised by the parties and conclude that no

further discussion is necessary. We will affirm the judgment of conviction and sentence.

___________________________




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