                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 12-1262
                               _____________

                        UNITED STATES OF AMERICA

                                      v.

                            SHAWN COLEMAN,
                                       Appellant
                              _____________


               On Appeal from the United States District Court
                         for the District of New Jersey
                    District Court No. 1-10-cr-00484-001
                District Judge: Honorable Jerome B. Simandle


              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                            November 20, 2013

                  Before: AMBRO, SMITH, Circuit Judges
                  and O’CONNOR,Associate Justice (Ret.)

                          (Filed: November 20, 2013)
                           _____________________

                                 OPINION
                           _____________________


SMITH, Circuit Judge.
      Appellant, Shawn Coleman, was found guilty by a jury of being a convicted

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

U.S.C. § 2. Coleman appeals his conviction and argues that the District Court

erred by: (1) denying his suppression motion; (2) failing to order a new trial to

remedy a Brady violation;1 and (3) using a jury instruction to cure an instance of

prosecutorial vouching instead of declaring a mistrial. For the reasons that follow,

we will affirm.

                                         I.

      At about 2:00 AM on November 5, 2009, the Lindenwold, New Jersey

Police Department received a telephone call from a resident of an apartment

complex complaining that an unknown vehicle’s bright lights were shining into the

resident’s apartment unit. Officers Arthur Hall and George Przybylski responded

to the call and found the vehicle running with its high beams on and the radio

playing loudly. The officers observed Coleman in the front seat of the vehicle

either asleep or unconscious.    The officers’ attempts to rouse Coleman were

unsuccessful. Because they were concerned about Coleman’s unresponsiveness,

they checked and discovered the doors were unlocked. Officer Przybylski opened

the driver’s door and shook Coleman to no avail. Officer Hall, standing on the



  The Honorable Sandra Day O’Connor, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
1
  See Brady v. Maryland, 373 U.S. 83, 87-88 (1963).
                                         2
passenger side of the car, reached over to turn off the car’s engine and to check

Coleman’s pulse. While reaching across the car, Hall observed a firearm sticking

out of the car’s center console. Officer Przybylski took Coleman from the vehicle

and Officer Hall secured the firearm.         Coleman regained consciousness, after

which Officer Przybylski placed him in handcuffs. Officer Hall asked him why he

was carrying the gun and whether he was an off-duty officer or someone else

permitted to carry a gun. Coleman responded that the gun was for his protection.

         The officers placed Coleman in Przybylski’s patrol car. Przybylski advised

Coleman that he was being detained for the firearm but did not administer Miranda

warnings at the time.2 While driving to the police station, Przybylski was listening

to the radio. After a report that the New York Yankees had lost a World Series

Game to the Philadelphia Phillies, Coleman stated words to the effect that he was

“having a bad night, his Yankees lost and he shouldn’t have left the gun in the

open like that.” A87.

         At the police station, Officer Przybylski advised Coleman of his Miranda

rights and Coleman executed the Miranda Warnings form. Coleman indicated that

he understood his rights and invoked his right to remain silent. While being

fingerprinted a few minutes later, Coleman spontaneously stated: “I can’t believe I

left the gun there. I’m not having a good night. The Yankees lost and now this.”


2
    See Miranda v. Arizona, 384 U.S. 436, 468-72 (1966).
                                          3
A132. Przybylski reminded Coleman that he had previously exercised his right to

remain silent and asked whether he wanted to speak with the officers. Coleman

declined and said nothing more.

      After Coleman was indicted for being a felon in possession of a firearm, he

moved to suppress his statements and the firearm. The Government opposed the

motion but noted that it would not offer Coleman’s statement at the scene, which

was uttered while Coleman was handcuffed and before he was administered the

Miranda warnings.

      After a hearing and supplemental briefing by Coleman and the Government,

the District Court granted in part and denied in part Coleman’s suppression motion.

The District Court ruled: (1) that the officers’ warrantless entry into Coleman’s car

fell within the public safety exception to the Fourth Amendment; (2) that the

firearm found at the scene was legally seized under the plain view exception to the

Fourth Amendment; (3) that Coleman’s first statement did not satisfy the public

safety exception to Miranda and was inadmissible; and (4) that the Miranda

violation did not taint Coleman’s subsequent two statements because those

statements were uttered voluntarily and spontaneously.

      A jury found Coleman guilty as charged.

                                         II.



                                         4
      The District Court had subject matter jurisdiction under 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291.

      “We review the district court’s denial of the motion to suppress for clear

error as to the underlying facts, but exercise plenary review as to its legality in

light of the court’s properly found facts.” United States v. Silveus, 542 F.3d 993,

999 (3d Cir. 2008) (internal quotation marks and citations omitted). We apply this

same standard of review to Coleman’s Brady claim, which “presents questions of

law as well as questions of fact[.]” United States v. Perdomo, 929 F.2d 967, 969

(3d Cir. 1991). Because Coleman objected to the line of questioning that he

contends impermissibly vouched for Officer Przybylski’s credibility, we review for

an abuse of discretion and harmless error. United States v. Vitillo, 490 F.3d 314,

325 (3d Cir. 2007).

                                       III.

      Coleman argues that the District Court should have suppressed his second

and third statements, in which he admitted he had left the gun in the open. It is

unnecessary for us to address whether the District Court erred in admitting these

statements because the “admission of unconstitutionally obtained evidence does

not warrant reversing a conviction where ‘the prosecution can show that the

evidence is so overwhelming that it is beyond a reasonable doubt that the verdict

would have been the same without the improper evidence.’” United States v.

                                        5
Shabazz, 564 F.3d 280, 286 (3d Cir. 2009) (quoting United States v. Price, 13 F.3d

711, 720 (3d Cir.1994)). Here, the second and third statements pertain solely to

the element of whether Coleman knowingly possessed the firearm. See United

States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000) (establishing that elements of a

§ 922(g)(1) offense). It is undisputed that the firearm was discovered in plain view

beside Coleman in the center console of the car in which he was the sole occupant.

This was sufficient to prove beyond a reasonable doubt the element of possession.

      Coleman also contends that the prosecution violated its obligations under

Brady v. Maryland, 373 U.S. 83, 87-88 (1963), by failing to turn over statements

that he could have used to impeach Officer Przyblyski at the suppression hearing.

This claim lacks merit because the information, which was produced by the

government immediately after receiving it days before trial, would not have

impeached Officer Przybylski’s credibility because it did not relate to his character

for truthfulness.

      Finally, Coleman asserts that he was deprived of a fair trial because the

prosecution vouched for the credibility of Officer Przybylski during its direct

examination of him. Coleman objected to the question and answer he cites as

impermissible vouching. After hearing the parties at sidebar, the District Court

struck the question and answer, and instructed the jury not only to disregard the

question and answer but also to remember that they are to determine the credibility

                                         6
of the witnesses. Because the testimony was stricken and because the Court

provided an appropriate instruction to the jury, there is no basis for granting relief

for impermissible vouching. See United States v. Lee, 612 F.3d 170, 195 (3d Cir.

2010) (concluding relief unwarranted for vouching because, inter alia, defendant’s

objection was sustained).

      For the foregoing reasons, we will affirm the judgment of the District Court.




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