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


6-30-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4852




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NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-4852

                           UNITED STATES OF AMERICA

                                               v.

                                   FRANK CHINA,
                                        Appellant




                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       District Court Crim. No.: 02-cr-00656-3
                    District Judge: The Honorable Cynthia M. Rufe


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 28, 2005


               Before: NYGAARD, SMITH, and FISHER, Circuit Judges

                                 (Filed: June 30, 2005)




                                       OPINION


SMITH, Circuit Judge.

      Frank China was convicted by a jury of violating federal narcotics and robbery

statutes. He was a Pennsylvania State Trooper at the time of the offenses. China appeals

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the District Court’s denial of his Rule 29 motion for a judgment of acquittal. He asserts

that the government’s case was based on the uncorroborated testimony of an alleged

accomplice, and was thus insufficient to sustain his conviction. He also asserts that his

counsel was ineffective, thus depriving him of his rights to counsel and to a fair trial. We

have jurisdiction under 28 U.S.C. § 1291. We will affirm the denial of China’s Rule 29

motion. We will deny his claim of ineffective assistance of counsel without prejudice.

We will remand the case for resentencing in accordance with United States v. Booker, 543

U.S. __, 125 S. Ct. 738 (2005).

Sufficiency of the Evidence

       Our review on an appeal that attacks the sufficiency of the evidence is “particularly

deferential.” United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002). We view the

evidence in a light most favorable to the government and sustain the jury’s verdict if any

rational juror could have found all of the elements of the crime beyond a reasonable

doubt. Id.

       China contends that the largely uncorroborated testimony of alleged accomplice

Terrence Perkins was inherently suspect because Perkins is an incorrigible criminal

offender. Moreover, China continues, portions of Perkins’ testimony were contradicted

by other government witnesses, and thus there was no basis for a legitimate conviction.

This contention is meritless. The first contradiction noted by China concerned Perkins’

testimony about an incident in which various dramatis personae had to wait for assistance



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when keys were locked in a car. This is an inconsequential detail about which

contradictory testimony should trouble no one.

       China’s second contention colors as “incredible” Perkins’ testimony of a scheme in

which China “arrested” Perkins, his alleged partner-in-crime, as a cover in a sham drug

bust in which they stole a kilo of cocaine from Troy Brinkley, with whom Perkins was

riding in a car. China denied Perkins’ rendition, which had China driving a handcuffed

Perkins through the State Trooper barracks, as being the “most stupidest thing to do if I

had done that.” China argues that Perkins’ story makes no sense under the government’s

theory that China and Perkins were in cahoots.

       Evidently, China does not watch many crime dramas. The sight of the gang mole

or the confidential informant who makes the controlled narcotics buy being subject to

fake arrest, and his share of roughing up, at the time of the bust should be familiar to

anyone familiar with the genre. The jury was entitled to believe Perkins’ version of the

trope and disbelieve China’s competing conspiracy theory. In short, China claimed that

he became unwittingly entangled in the crimes when he attempted to clear his name in the

community by shaking down Dionne Steave in a mall parking lot as a favor to Perkins.

Perkins, in China’s sordid screenplay, had besmirched China’s good name by accusing

him of stealing the kilo of cocaine from Perkins and Brinkley.

       We have no difficulty in affirming the District Court’s denial of China’s Rule 29

motion. Perkins’ testimony supplied only the motivation for China’s admitted



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lawlessness. A rational juror could have believed Perkins’ version of the events in

finding China guilty of the crimes charged beyond a reasonable doubt.

Ineffective Assistance of Counsel

       China contends that his trial counsel’s failure to call a handwriting expert to

bolster a portion of his defense, which hinged on identifying who had filled out certain

portions of a police form, effectively denied him assistance of counsel. In most cases,

whether this claim has any merit is best addressed in a collateral action rather than on

direct appeal, and we do not think this case merits deviating from this Court’s normal

practice. See United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). The trial

record below was focused on enabling the jury to determine whether China was guilty of

the charges against him, not for testing the soundness of his counsel’s strategy or

counsel’s skill in implementing it. See Massaro v. United States, 538 U.S. 500, 505

(2003). Here, for instance, the record does not reveal whether his trial counsel’s

supposed failure was a strategic move or a blundering omission. This information is

basic to China’s claim. Therefore, the best course is to deny China’s claim without

prejudice. He may, if he chooses, develop the theory on collateral attack pursuant to 28

U.S.C. § 2255.

China’s Sentence

       In response to this Court’s March 3, 2005 “Booker order,” China argues that

judicial fact finding and the concomitant increases in his sentence were precluded under



                                              4
Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004). On Blakely’s heels, the

Supreme Court decided United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005).

There, the Supreme Court determined that the Guidelines were only advisory, not

mandatory.

       Having determined that the sentencing issues China raises are best determined by

the District Court in the first instance, we will vacate the sentence and remand for

resentencing in accordance with Booker.




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