                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1733




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 07-1733
                                 ____________

                       UNITED STATES OF AMERICA,


                                        v.

                            TYHEEM BOOKMAN,

                                        Appellant

                                 ____________

                 On Appeal from the United States District Court
                          for the District of New Jersey
                            D. C. No.: 06-cr-00149
                  District Judge: Honorable Robert B. Kugler
                                  ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                                 May 6, 2008

     Before: SCIRICA, Chief Judge, BARRY, and HARDIMAN, Circuit Judges.

                             (Filed: May 12, 2008 )

                                 ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       A jury convicted Tyheem Bookman of possessing a firearm in violation of 18

U.S.C. § 922(g)(1). The District Court sentenced Bookman to 70 months imprisonment.

Bookman raises two trial errors and one sentencing error on appeal. For the reasons that

follow, we will affirm the judgment of the District Court.

                                              I.

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

recount only those facts necessary to our decision.

       On the evening of November 25, 2005, two police officers on supplemental patrol

of a high-crime area in Camden, New Jersey, observed Bookman reaching for his

waistband. After one of the officers saw what appeared to be the butt of a handgun,

Bookman was pursued briefly and arrested. Bookman later was charged with illegal

possession of a firearm by a convicted felon.

       Based on the parties’ pretrial stipulations, the sole question for the jury was

whether Bookman possessed the firearm. Prior to trial, Bookman moved to exclude any

testimony referring to the area in which he was arrested as a high-crime area under Rules

402 and 403 of the Federal Rules of Evidence. The District Court denied the motion.

       In his summation at trial, Bookman’s counsel argued that the officers’ testimony

was false. In rebuttal, the Government responded by telling the jurors that they should

acquit Bookman if they believed the Government’s witnesses had lied. Bookman




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objected, arguing that this statement misstated the issue the jury was required to decide.

The District Court overruled the objection, and the jury convicted Bookman.

       The Presentence Investigation Report calculated a sentencing Guidelines range of

51 to 63 months, but the District Court applied a two-level enhancement because

Bookman lied under oath during a pretrial suppression hearing, thereby increasing his

Guidelines range to 63 to 78 months. The District Court sentenced Bookman to 70

months after noting his criminal history, lack of credibility, lack of respect for the law,

violations of conditions of pretrial release, and the potential that he might obtain his GED

while in prison.

                                              II.

       We exercise appellate jurisdiction over Bookman’s claims of trial error under 28

U.S.C. § 1291, and we have jurisdiction to review the sentence imposed by the District

Court under 18 U.S.C. § 3742(a).

                                              A.

       Bookman first argues that the District Court erred when it denied his motion to

exclude testimony referring to the location where he was arrested as a high-crime area

because that testimony was unduly prejudicial and irrelevant under Rules 402 and 403 of

the Federal Rules of Evidence. We review the evidentiary rulings of the District Court

for an abuse of discretion. United States v. Williams, 458 F.3d 312, 315 (3d Cir. 2006).




                                              3
       Courts must balance the “genuine need for the challenged evidence” with the “risk

that the [evidence] will influence the jury to convict on improper grounds.” United States

v. Sriyuth, 98 F.3d 739, 747-48 (3d Cir. 1996). The question of relevancy turns on how

the evidence “fits into a chain of logical inferences.” United States v. Sampson, 980 F.2d

883, 887 (3d Cir. 1992).

       As an integral part of his defense, Bookman challenged the credibility of the

officer who initially observed the handgun in his waistband. By raising this challenge,

Bookman opened the door for testimony explaining the exact circumstances under which

the officer made his observation. The fact that the officer was on supplemental patrol in a

high-crime area is relevant for this reason. Thus, according the District Court’s ruling

under Rule 403 “particular deference,” In re Paoli R.R. Yard PCB Litig., 113 F.3d 444,

453 (3d Cir. 1997), we find no abuse of discretion.

                                             B.

       Bookman next argues that the District Court erred in overruling his objection to

the following statement made during the Government’s rebuttal summation:

       You need to evaluate each and every one of those witnesses and say did
       they come in and did they tell me the truth. And if you determine
       collectively that those officers took that stand and lied to you, then you need
       to acquit. You need to find the defendant not guilty because you should
       expect more from your Government.

Bookman claims that this statement violated his due process rights because it

unconstitutionally lowered the burden of proof. We review the District Court’s rulings on



                                             4
objections to closing arguments for an abuse of discretion. United States v. Brown, 254

F.3d 454, 458 (3d Cir. 2001).

       Where the Government or the trial court provides an inadequate definition of

reasonable doubt, reversal is appropriate. Sullivan v. Louisiana, 508 U.S. 275 (1993).

That is not what occurred in this case, however. During his summation, Bookman’s

counsel argued that the Government’s witnesses were less than candid, and the

Government responded to that argument by agreeing that if the jury believed that the

Government’s witnesses were lying, the jury should acquit Bookman. In fact, the

officers’ credibility was a central issue throughout the trial. The Government’s statement

addressed this issue; it did not, as Bookman argues, speak to the burden of proof.

Therefore, we find no abuse of discretion by the District Court in this regard.

                                              C.

       Finally, Bookman argues that we should vacate his sentence because the District

Court erred when it relied on the rehabilitative potential of prison in setting the length of

Bookman’s term of imprisonment in violation of 18 U.S.C. § 3582(a). Because this

objection was not raised below, we review for plain error. United States v. Watson, 482

F.3d 269, 274 (3d Cir. 2007).

       In United States v. Manzella, we observed that 18 U.S.C. § 3582(a) precludes

courts from carrying out the goal of rehabilitation “by imprisonment.” 475 F.3d 152, 158

(3d Cir. 2007) (emphasis in original) (citations omitted). Here, Bookman relies on the



                                              5
District Court’s mention at the sentencing hearing that he might receive his GED while in

prison. When viewed in context, however, the District Court’s statement does not

warrant reversal. The District Court considered all of the relevant 18 U.S.C. § 3553(a)

factors seriatim. The Court mentioned Bookman’s potential to obtain his GED in passing

when considering § 3553(a)(2)(D). Because the Court took special notice of Bookman’s

criminal history, lack of credibility, lack of respect for the law, and violation of conditions

of pretrial release, we cannot conclude that the District Court based the length of

Bookman’s sentence exclusively or primarily for his rehabilitation. Cf. Manzella, 475

F.3d at 161 (concluding that the district court “set the length of Manzella’s prison term

solely for rehabilitative reasons”) (emphasis added). Accordingly, we find no error, and

affirm the judgment of sentence imposed by the District Court.

                                             III.

       We have considered all of Bookman’s arguments and find no error. Accordingly,

we will affirm the judgment and sentence of the District Court.




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