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


4-27-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2212




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                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                       No. 04-2212
                      ____________


              UNITED STATES OF AMERICA

                            v.

                   MARQUI STEWART,

                                        Appellant


                 ____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

               District Court No. 02-cr-00808-1
      District Judge: The Honorable Petrese B. Tucker
                    ___________________

            Submitted pursuant to LAR 34.1(a)
                     March 31, 2005

    Before: ALITO, SMITH, and FISHER, Circuit Judges

                  (Filed: April 27, 2005)


               ________________________

               OPINION OF THE COURT
               ________________________
PER CURIAM:

       Marqui Stewart challenges his convictions for various drug trafficking and

conspiracy charges.1 For the reasons set forth below, we affirm the judgment of the

District Court.

       As we write for the parties only, we do not set out the facts.

                                             I.

       We review the District Court’s denial of a motion to suppress for clear error as to

the facts, and exercise plenary review of the District Court’s application of the law to

those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). The denial of a

suppression motion may be affirmed on any ground supported by the record. See United

States v. Belle, 593 F.2d 487, 499 (3d Cir. 1979).

       The law enforcement officers had a warrant for Stewart’s arrest and had every

reason to believe that he resided at 6718 Media Street. He was seen there the day before,

his car was parked in the vicinity, and the officers saw him coming down the stairs when

they knocked on the door at 6:00 a.m. The warrant and the reasonable belief that Stewart

was in the house gave the officers the authority to enter and seize him. Payton v. New




1
       In response to an inquiry from the Clerk of Court regarding the applicability of
       United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), Stewart’s counsel
       advised us by letter dated April 4, 2005, that “Blakely v. Washington, 124 S.Ct.
       2531 (2004) has no applicability to the above captioned appeal since the sentence
       that was given was statutorily mandated by the applicable statutes.” Thus we do
       not address the applicability of Booker to Stewart’s sentence.

                                             -2-
York, 445 U.S. 573, 603 (1980) (“[F]or Fourth Amendment purposes, an arrest warrant

founded on probable cause implicitly carries with it the limited authority to enter a

dwelling in which the suspect lives when there is reason to believe the suspect is

within.”).

       Stewart argues that the arrest warrant provided insufficient authority for the entry

because 6718 Media Street was not his residence and because the Supreme Court held in

Steagald v. United States, 451 U.S. 204 (1981), that officers seeking to execute an arrest

warrant in the residence of a third-party need a search warrant in order to enter. (See

Appellant’s Br. at 11-13.) Thus, asserts Stewart, the officers’ entry was illegal.

       Stewart is wrong for several reasons. First, there is evidence that Stewart resided

at 6718 Media Street; among other things, he listed the address as his residence on the

biographical information report submitted to the Philadelphia Police Department.

Second, even if 6718 Media Street were not Stewart’s residence, Stewart would still be

unable to challenge the officers’ entry. Steagald protects the rights of a resident third-

party, not a non-resident arrestee, and a non-resident arrestee has no standing to assert the

rights of a resident third-party. See United States v. Buckner, 717 F.2d 297, 299-300 (6th

Cir. 1983). Third, even if Stewart had some assertable right or privacy interest against

unlawful entry to a building in which he did not reside, the entry in question was obtained

with a warrant and thus was not unlawful and did not violate any rights Stewart might

have. As we have written:



                                             -3-
       A person has no greater right of privacy in another’s home than in his own. If an
       arrest warrant and reason to believe the person named in the warrant is present are
       sufficient to protect that person’s [F]ourth [A]mendment privacy rights in his own
       home, they necessarily suffice to protect his privacy rights in the home of another.

United States v. Agnew, 385 F.3d 288, 291 (3d Cir. 2004) (quoting United States v.

Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (en banc) (parallel citations omitted)),

judgment vacated on other grounds by --- S.Ct. ----, 2005 WL 405647 (February 22,

2005)).2 Finally, by fleeing the building, Stewart abandoned any privacy interest he may

have had in it. See, e.g., United States v. Winchester, 916 F.2d 601, 603-04 (11th Cir.

1990) (fugitive who left rental property and drove past 25 officers preparing to stake out

cottage abandoned the property). The officers’ entry into 6718 Media Street was

therefore valid.

       After entering, the officers conducted an appropriate protective sweep of the

premises to determine if anyone was present in the building. In the course of the sweep,

they came upon multiple firearms on the second floor of the house and discovered that the

three men had escaped through a skylight to the roof. After finding the three men on the

roof, the officers obtained a search warrant for 6718 Media Street based on what they had

seen during their protective sweep.

       In sum, there was no illegality or constitutional infirmity in the procedure. The




2
       On February 22, 2005, the Supreme Court granted certiorari in Agnew and ordered
       that the judgment be vacated and the case remanded to the Third Circuit “for
       further consideration in light of United States v. Booker, 543 U.S. ___ (2005).”

                                            -4-
officers followed to arrest Stewart, and the District Court was right to deny Stewart’s

motion to suppress the evidence seized during the search.

                                             II.

       This Court reviews the District Court’s denial of a motion for a new trial for abuse

of discretion. Hook v. Ernst & Young, 28 F.3d 366, 370 (3d Cir. 1994).

       Stewart contends the government suggested in its opening statement and through

the testimony of the officers that he had committed prior bad acts. Specifically, he

contends the government did so by alluding to the existence of a warrant for his arrest.

For this reason, Stewart demanded a new trial.

       As the District Court observed, however, the potential danger in mentioning the

arrest warrant related not so much to the existence of an arrest warrant per se, but to the

content of the specific arrest warrant at issue: it was an arrest warrant for a homicide.

(App. 567.) The government’s opening statement and the non-specific testimony about

an arrest warrant did not suggest Stewart was being arrested for anything other than the

crimes with which he was actually charged. Furthermore, it is unreasonable of Stewart to

insist that the government not be allowed to mention the existence of a valid arrest

warrant. For if the government had not offered a lawful reason for entering the building,

the jury might have wondered whether the entry was legal.

                                             III.

       We review the District Court’s evidentiary rulings for abuse of discretion. United



                                             -5-
States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003).

       Stewart argues that Clouden, a government cooperator, should not have been

allowed to testify on direct examination concerning threats to him and his family made by

defendants in another case — threats that led Clouden to attempt to withdraw his guilty

plea and end his agreement to cooperate and testify in this and the other case. Stewart

contends that by eliciting Clouden’s responses on this topic, the government improperly

bolstered Clouden’s credibility.

       In fact, this line of questioning was a proper attempt to blunt an expected line of

cross-examination and to directly address a matter that arguably impeached Clouden’s

credibility. Because a cooperation agreement can be a very desirable thing — co-

defendants sometimes compete to cooperate — an attempt to end a cooperation

agreement naturally appears significant, and a skillful defense lawyer can make it appear

suspicious. After all, why would someone give up a good thing? Without information

indicating that Clouden’s wavering was caused by threats to his person and his family, the

jury could, for example, be led to believe that Clouden was wavering because he knew his

testimony was untruthful and did not want to perjure himself. It was therefore proper to

elicit testimony regarding the attempted withdrawal from the plea agreement. See United

States v. Saada, 212 F.3d 210, 225 n. 16 (3d Cir. 2000) (approving admission of a plea

agreement’s provision requiring truthful testimony by a cooperating witness in response

to, or in reasonable anticipation of, defense counsel’s impeachment of witness).



                                             -6-
                                             IV.

       In reviewing Stewart’s claim that the evidence is not sufficient to establish

possession of a firearm in furtherance of a drug trafficking crime, we examine the

“totality of the evidence, both direct and circumstantial,” and must credit “all available

inferences in favor of the government.” United States v. Gambone, 314 F.3d 163, 170

(3d Cir.), cert. denied, 540 U.S. 815 (2003). We will sustain the verdict if “‘any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citations omitted).

       In this case, the government presented overwhelming evidence on which a jury

could rely to find Stewart guilty of violating 18 U.S.C. § 924(c). Clouden and Griffin

testified that Stewart resided with them at 6718 Media Street and engaged in the full-time

distribution of illegal drugs. Clouden testified that he and Stewart sold and distributed

drugs together. Detectives found drugs and large amounts of cash in the building. They

also found seven guns, six of which were loaded, scattered on the second floor of the

building. Clouden testified that Stewart knew of the guns, that they were accessible to

him, and that he shared control of at least some of them (the “big guns”) with Clouden

and Griffin. And Clouden and Griffin both testified that Stewart had actual physical

possession of the Glock .45 caliber pistol when Clouden and Stewart attended a “linen

party” a couple of days before the search of 6718 Media Street.




                                             -7-
                                             V.

       Stewart contends that the District Court erred in failing to charge the jury that the

dominion and control sufficient to establish constructive possession is not established by

mere proximity, mere presence, or mere association.

       Where a jury charge is attacked for legal error, we must determine whether “the

charge as a whole fairly and adequately submits the issues in the case to the jury.” Bennis

v. Gable, 823 F.2d 723, 727 (3d Cir. 1987). If the District Court has properly articulated

the relevant legal criteria, we review the particular language it used for abuse of

discretion. United States v. Pelullo, 964 F.2d 193, 215 n.21 (3d Cir. 1992).

       The instructions concerning actual and constructive possession were legally

correct and complete. The District Court made clear that, in order to have actual

possession of an object, a person must have direct physical control or authority over the

object, such as the control one has when one holds an object in one’s hands. And in order

to have “constructive” possession over an object, the District Court explained, a person

must have the ability to take actual possession of the object when the person wants to do

so. Because mere proximity, mere presence, or mere association is not enough for even

constructive possession, these instructions adequately conveyed to the jury that

constructive possession is not established by mere proximity, mere presence, or mere

association.




                                             -8-
                                    VI.

For the foregoing reasons, we affirm the Judgment of the District Court.
