                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 17-2409
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                     WILLIE DAVIS,
                                              Appellant

                                     ______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Crim. No. 4-16-cr-00138-001)
                     Honorable Malachy E. Mannion, District Judge
                                    ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   February 6, 2018

            BEFORE: CHAGARES, SCIRICA, and COWEN, Circuit Judges

                                   (Filed: April 3, 2018)
                                     ______________

                                       OPINION*
                                     ______________




____________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.

       Willie Davis appeals from the criminal judgment entered by the United States

District Court for the Middle District of Pennsylvania. We will affirm.

                                             I.

       Davis was indicted for possessing contraband in prison in violation of 18 U.S.C. §

1791(a)(2) and (b)(3). It was alleged that Davis, an inmate of the United States

Penitentiary, Lewisburg, knowingly possessed a prohibited object, namely a weapon or

an object designed to be used as a weapon. The object was described as a sharpened

piece of plastic, approximately eight inches in length, which was discovered attached to

his body by a lanyard.

       Davis elected to represent himself (and a federal public defender was appointed to

serve as stand-by counsel). Over the course of the proceeding, he filed numerous

motions for relief, which were all denied or dismissed by the District Court. In particular,

Davis challenged the government’s proposed jury instructions, specifically Government’s

Point for Charge No. 9 (which listed the elements of the crime) and Government’s Point

for Charge No. 10 (which defined “prohibited object”). The District Court overruled

Davis’s objections and incorporated the government’s proposed language in its charge to

the jury. The District Court specifically instructed the jury on the elements of the

offense:

              The elements of an offense which the United States must prove in
       order to establish the offense of possessing a prohibited object of
       contraband by a prisoner are:

              First: That Willie Davis was an inmate of a prison;

                                             2
               Second: That Willie Davis knowingly possessed an object; and

               Third: That the object is a prohibited object as described in the
        Indictment, that is, a weapon or object designed to be used as a weapon.

(Doc. #110 at 32.) Furthermore, the District Court defined “prohibited object” for the

jury:

               Section 1791(d)(1)(B) defines ‘prohibited object’ to mean, in part, ‘a
        weapon or an object that is designed or intended to be used as a weapon.
        What is a weapon is a question of fact for you alone to decide. You can
        consider in reaching your determination any pertinent aspect of the item,
        including the general purposes for which the item can be used, whether the
        item had a legitimate purpose or practical function, the manner in which the
        item was carried, and other factors which you believe are important in
        reaching your conclusion.

(Id. at 34.)

        The jury returned a guilty verdict, and the District Court sentenced Davis to 37

months’ imprisonment (to be served consecutively to the current sentence imposed by the

United States District Court for the Western District of Tennessee). It also dismissed his

motion to arrest judgment as frivolous. Davis filed this pro se appeal. 1

                                             II.



        1
          Davis submitted a motion to hold the case in abeyance pending his return to
USP Florence. Because he subsequently filed a reply brief, we deny this motion as moot.
He subsequently filed a motion to consolidate the document entitled “Petition for
Rehearing En Banc” with his reply brief. The Clerk had entered an order on February 22,
2018, stating that no action will be taken on the “Petition for Rehearing En Banc”
because a decision has not yet been entered by the Court. “If, however, Appellant wants
the Court to consider the argument contained in the submission, he must file a motion
requesting such. The motion will then be forwarded to the merits panel for
consideration.” (2/22/18 Order at 1.) We deny Davis’s motion to consolidate because
this case has been fully briefed on the merits.
                                              3
       Davis, in particular, challenges the District Court’s order overruling his objections

to the government’s proposed instructions. 2 Among other things, he argues that a number

of constitutional errors occurred, the indictment failed to charge an actual offense, and

the District Court lacked subject matter jurisdiction. According to Davis, “the 1986

amendments of 18 U.S.C. § 1791, codified in the Act of November 10, 1986, omitted the

earlier enacted 18 U.S.C. § 1791(d)(1)(B) definition of prohibited object, which removed

the prohibited object element under that definition and broadened § 1791(a)(2)’s

substantive scope.” (Appellant’s Brief at 2.) Davis further asserts that “nothing in the

text of 18 U.S.C. § 1791(a)(2) indicates that Congress intended to enact it as a means to

execute U.S. Const. Art. III, § 1, and 18 U.S.C. § 1791 ‘(a)(2)(c)’ gave the Appellant

notice that his conduct is non-criminal.” (Appellant’s Reply Brief at 4.)

       Initially, we conclude that Davis’s jurisdictional assertions clearly lack merit.

Given Article III, Section 1 of the Constitution (“The judicial Power of the United States,

shall be vested . . . in such inferior Courts as the Congress may from time to time ordain

and establish.”), Congress possessed the power to establish the District Court. “The

district courts of the United States shall have original jurisdiction, exclusive of the courts

of the States, of all offenses against the laws of United States.” 18 U.S.C. § 3231.

“Providing or possessing contraband in prison” in violation of § 1791 constitutes an



       2
         We have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. §
1291. The government agrees that we exercise plenary review with respect to the issue of
federal jurisdiction. In turn, this Court applies a plenary standard of review if the
challenge to the jury instructions implicates a question of statutory interpretation. See,
e.g., United States v. Schneider, 14 F.3d 876, 878 (3d Cir. 1994).
                                              4
offense against the laws of the United States. In turn, Congress clearly has the

constitutional authority to regulate criminal behavior in a federal prison. In fact, “Section

1791(d)(4) defines ‘prison’ as a ‘[f]ederal correctional, detention, or penal facility or any

prison, institution, or facility in which persons are held in custody by direction of or

pursuant to a contract or agreement with the Attorney General.” 3 United States v.

Wearing, 837 F.3d 905, 910 (8th Cir. 2016) (per curiam) (rejecting argument that

indictment failed to allege that offense occurred in federal prison).

       Similarly, we must reject Davis’s reading of § 1791 and its history. This provision

provides, inter alia, that whoever, “being an inmate of a prison, makes, possesses, or

obtains, or attempts to make or obtain, a prohibited object” shall be punished by a fine

under this title or imprisonment for not more five years or both “if the object is specified

in subsection (d)(1)(B) of this section.” § 1791(a)(2), (b)(3). Subsection (d)(1)(B) then

defines “prohibited object” to mean, among other things, “a weapon (other than a firearm

or destructive device), or an object that is designed or intended to be used as a weapon or

to facilitate escape from a prison.” The 1986 amendments did not eliminate this specific

definition or element of the offense. In United States v. Holmes, 607 F.3d 332 (3d Cir.

2010), we actually construed the post-1986 version of § 1791 (the offense at issue

occurred on April 10, 2007), id. at 333-38. We made it clear that § 1791(d)(1)(B)


       3
         We note that the indictment expressly alleged that Davis was an inmate of the
United States Penitentiary, Lewisburg. Incorporating the statutory definition of “prison,”
the District Court specifically instructed the jury that the United States must prove that
Davis “was an inmate of a prison.” (Doc. #110 at 32; see also id. at 31 (explaining that
District Court has taken judicial notice that United States Penitentiary, Lewisburg, is a
federal prison and that jury may but is not required to treat this fact as proven).)
                                              5
“covers, among other things, ‘weapon[s] (other than . . . firearm[s] or destructive

device[s]).’” Id. at 334 (footnote omitted). According to Holmes, “Section

1791(d)(1)(B) defines ‘prohibited object’ to mean, in part, ‘a weapon (other than a

firearm or destructive device), or an object that is designed or intended to be used as a

weapon.’” Id. at 336; see also, e.g., id. at 335 (“[Section 1791(a)(2)] provides that

‘[w]however[,] being an inmate of a prison, makes, possesses, or obtains, or attempts to

make or obtain, a prohibited object [,] shall be punished as provided in [§ 1791(b)].’”).

In this case, the indictment appropriately alleged that Davis knowingly possessed a

prohibited object, “that is, a weapon or an object designed to be used as a weapon,

specifically a sharpened piece of plastic, approximately eight-inches in length, which was

discovered attached to his body by a lanyard.” (Doc. #1 at 1.) The government’s

proposed instructions as well as the jury instructions given by the District Court then

properly tracked the applicable statutory language.

                                            III.

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




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