                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5444




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Recommended Citation
"USA v. Spurell" (2007). 2007 Decisions. Paper 576.
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                                                  NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 05-5444
                        ___________

              UNITED STATES OF AMERICA

                              v.

                    HAROLD SPURELL
                 a/k/a JAMAINE JOHNSON

                         Harold Spurell,
                                Appellant

                        ___________

       On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                (D.C. Criminal No. 04-cr-00491)
       District Judge: The Honorable R. Barclay Surrick

                         _________

         Submitted Under Third Circuit LAR 34.1(a)
                      June 15, 2007

BEFORE: McKEE, STAPLETON, and NYGAARD, Circuit Judges.

                   (Filed: August 17, 2007)
                         ___________

                 OPINION OF THE COURT
                      ___________
NYGAARD, Circuit Judge.

       Harold Spurell a/k/a Jamaine Johnson was apprehended by Philadelphia police

officers after leading them on a high-speed car chase. Attempting to elude arrest, Spurell

eventually stopped his car and fled on foot. As he ran from his car, Philadelphia police

officers noted a “shiny object” fall from Spurell’s waistband. Officers found the object

— a .38 caliber revolver loaded with live ammunition. Spurell was apprehended several

blocks away and was arrested. Spurell had served more than a year in prison on a felony

charge in Montgomery County, Pennsylvania. He was on parole from that conviction and

sentence when arrested. Spurell was charged with and found guilty of being a convicted

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

       While his charges were pending, Spurell made requests of the court and the

government to disclose grand jury testimony of Special Agent Uvena of the Bureau of

Alcohol, Tobacco and Firearms. The Government refused the request.

       After his conviction, but before sentencing, Spurell again requested grand jury

testimony, this time arguing that he needed the testimony to challenge his sentence. The

District Judge conducted an in camera review and denied Spurell’s request. Spurell was

sentenced to sixty months incarceration and timely appealed.

       Spurell raises two principal issues on appeal, both of which we find meritless.

First, Spurell argues that the District Court erred by denying his motion to disclose grand

jury testimony. Additionally, Spurell argues that he had a right to confront government



                                             2
trial witnesses — the arresting officers — with any statements they made to the ATF

agent.

         Spurell’s concession that the Government “throughout this prosecution has been

completely forthright and complied with all the requirements thrust upon [it]” leaves us

less than clear as to what he is challenging on appeal. He does not directly claim a Brady

error resulting from the District Court’s in camera review of the grand jury testimony. As

he argues in his brief:

         When the District Court reviewed the grand jury testimony before
         sentencing of the Appellant, it would have been evaluating it only for Brady
         material as that was the basis of Appellant’s then submission for the
         authorization of the release of the grand jury testimony itself.

Appellant’s Brief at 13.

         Spurell’s claims most resemble an alleged Jencks Act violation. The Jencks Act

requires a court, upon motion of the defendant and after direct examination of a

government witness, to order the United States to produce to the defense “any statement

... of the witness in [its] possession ... which relates to the subject matter as to which the

witness has testified.” 18 U.S.C. § 3500(b). The key to the application of the Jencks Act

is that the witness in question must have testified at the trial. Put another way, there is no

obligation under the Jencks Act for the Government to provide statements made by a

witness who does not testify at trial. Here, the ATF agent did not testify at trial. Indeed,

none of the witnesses who testified at trial testified to the grand jury. There was no error




                                               3
in the Government’s failure to provide the ATF agent’s grand jury testimony to Spurell

post-trial.

       Second, Spurell challenges the instructions the District Judge gave to the jury on

the issue of witness credibility. Spurell did not object to the instructions at trial.

Consequently, our review is limited to plain error — see Jones v. United States, 527 U.S.

373, 389 (1999) — and we find none. The District Court’s charge on witness credibility

was lengthy, detailed and thorough. It is undisputed that the challenged jury instruction in

its entirety was a correct statement of the law. Spurell claims instead that the District

Court erred when it failed to instruct the jury that it should consider the relationships

“witnesses may have to each side of the case and how the witnesses may be affected by

the outcome of the case.” The record convinces us that the District Court’s instruction

sufficiently address how jurors are to evaluate a witness’s testimony.1 We find no

reversible error.



              1
              The District Court’s extensive instructions on this subject included, for
example, the following:

              “But in making your assessment, you should carefully
              scrutinize all of the testimony given by the witness. You
              should consider the circumstances under which the witness
              has testified, and all of the other evidence which tends to
              show whether the witness, in your opinion, is worthy of
              belief. You should consider each witness’s intelligence, each
              witness’s motive to falsify, the state of mind, appearance, and
              demeanor of the witness on the witness stand.”

Appellant’s Br. at 16-17.

                                               4
       Finally, Spurell’s brief contains several additional issues he believes entitle him to

a new trial. His court-appointed counsel states in Spurell’s brief that he has reviewed

these issues and that he informed Spurell that they are either meritless or cannot properly

be considered at this stage in the litigation. Counsel identified the following issues: (1)

Officer Lorenzo provided testimony that was inconsistent with testimony in Municipal

Court involving the arrest of Spurell prior to the adoption of the case for federal

prosecution; (2) the Government failed to present a fingerprint expert; (3) the

Government did not provide Spurell a copy of the pursuit memo prepared by Officer

Lorenzo prior to trial; (4) there was conflicting testimony between officer Lorenzo and

Lieutenant Ginaldi about where Lorenzo recovered the gun; (5) the Government did not

introduce into evidence clothing allegedly recovered during Spurell’s arrest; and, (6) there

were no fingerprints found on the gun recovered by Lorenzo.

       We agree with Spruell’s counsel and the Government that these issues are

frivolous. Spurell’s counsel has fulfilled his responsibilities under Anders v. California,

386 U.S. 738 (1967).2




               2
                 We gave Spurell permission to file a supplemental brief in which he
instructed his counsel to raise additional issues. Specifically, Spurell argues that his
rights under the Speedy Trial Act and Brady v. Maryland were violated. The government
was also given an opportunity to respond. We have reviewed the arguments raised in the
supplemental brief as well as the entire record and find these issues to be frivolous as
well.
