                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1606




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Recommended Citation
"USA v. Livingston" (2004). 2004 Decisions. Paper 972.
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                                                         NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 03-1606
                                    ________________

                            UNITED STATES OF AMERICA

                                            v.

                                    FABIAN LIVINGSTON #04524-015,
                                              Appellant

                       ____________________________________

                     On Appeal From the United States District Court
                                For the District of Delaware
                                  (D.C. No. 02-cr-00041)
                      District Judge: Honorable Joseph J. Farnan, Jr.
                     _______________________________________

                           Submitted February 26, 2004
              Before: RENDELL, BARRY, and BECKER, Circuit Judges.

                                 (Filed February 27, 2004 )

                                 _______________________

                                        OPINION
                                 _______________________

BECKER, Circuit Judge.

       Defendant Fabian Livingston appeals from the judgment of the District Court,

following a jury trial, in which he was convicted of being a felon in possession of a

firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The facts are well known to the parties

and need not be repeated here.
       Although this is a direct appeal, Livingston’s principal claim is ineffective

assistance of counsel. It will be useful to set forth the summary of Livingston’s position

on the issue:

              Mr. Livingston was denied his Sixth Amendment right to effective
       assistance of counsel in the district court. The evidence of both
       incompetence and conflict of interest leading to ineffective assistance is
       clear on the record. First, the record contains two very clear and numerous
       other confirmations and indications that Mr. Livingston’s counsel gave him
       erroneous advise on a number of occasions. Most significantly trial counsel
       incorrectly advised his client that he was not prohibited from possessing a
       firearm in his home. Trial counsel also refrained from responding to the
       government’s motion in limine and filing a defense motion in limine that
       was clearly prescribed by the professional standard in the community.

              Second, the record clearly contains indications that the poor advice
       rendered by trial counsel created a conflict of interest, in that counsel had an
       interest in keeping the erroneous advice a secret, whereas Mr. Livingston
       had an interest in arguing that this flawed advice was the reason for his
       conduct. Given the record’s support of these contentions and the fact that
       new counsel is representing Mr. Livingston in this appeal, it is appropriate
       to decide the issue of trial counsel’s ineffectiveness at this point.

               This issue comes down to one fact that this Court must be able to
       find evidence of in the record. If this Court believes that Mr. Stern did
       advise his client that he was allowed to have a firearm in is home, prior to
       the incident spurring the criminal charges, then there is a sufficient record
       to find that Mr. Stern was ineffective in representing Mr. Livingston.
       Either, Mr. Stern did not realize the advise was erroneous prior to and
       through at least part of the trial, and he was therefore rendering incompetent
       legal representation, or Mr. Stern became aware that his prior advice was
       incorrect early on, and then he was burdened by a conflict of interest
       throughout the representation, due to his personal interest in keeping secret
       the mistaken advice. Under either scenario or a combination of the two, it
       is clear that Mr. Livingston was denied his right to effective assistance of
       counsel.

Aided by this summary, we can dispose of this aspect of the matter summarily.

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       Our jurisprudence is clear that we do not review claims of ineffective assistance of

counsel on direct appeal except under very narrow circumstances where there is clear

evidence in the record of both deficient performance and prejudice requiring no further

factual development. See United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.

2003); see also Massaro v. United States, 123 S. Ct. 1690, 1694 (2003) (holding that

“ineffective-assistance claims ordinarily will be litigated in the first instance in the district

court, the forum best suited to determining the adequacy of representation during an

entire trial.”). The Supreme Court explained that district courts, unlike appellate courts,

may take testimony from witnesses from both parties as well as from the counsel alleged

to have rendered deficient performance, see id., and that without such factual

development, a court is ill-equipped to make the highly fact-specific determination of

whether counsel was ineffective and what, if any, prejudice resulted therefrom. See id. at

1694-95; Thornton, 327 F.3d at 271-72 (quoting Massaro).

       We have carefully considered Livingston’s argument but are unpersuaded. In our

view there is no adequate record at this juncture upon which trial counsel’s alleged

ineffectiveness can be determined. The quoted statement from Livingston’s brief itself

reveals the inappropriateness of disposing of the ineffective assistance claim on direct

appeal. To the extent that Livingston relies upon remarks made by counsel during

sentencing that he contends show a misapprehension of the law prohibiting possession of

a firearm by a felon, he is not aided. These unsworn remarks were made in the context of



                                               3
a plea for leniency, not in response to Livingston’s claim, and at all events, did not

explain what, if any, advice Livingston was provided regarding his felon status and

restrictions on possessing firearms. Also underdeveloped are the conflict of interest claim

as well as the claim of poor advice concerning sentencing range. In short then, the

ineffective assistance of counsel claim will have to be developed in a proceeding under

28 U.S.C. § 2225. While we will affirm the judgment, we do so without prejudice to

Livingston’s right to proceed under § 2255.

       Livingston does make one claim cognizable on direct appeal, but it is without

merit. The claim concerns a discovery violation regarding Detective Donlon’s notes

recording the “post-Lou’s statements,” i.e. those concerning purchases at Lou’s Pawn

Shop, which turned out to be in Chester, Pennsylvania. In Livingston’s submission,

information regarding these statements was not given to the defense in accord with the

government’s discovery obligations, and the District Court recognized the violation. In

order to remedy the violation, the District Court ruled that all references to the

undiscovered statements were inadmissible, including prior references that had already

been heard by the jury. However, the District Court did not deliver a curative instruction

telling the jurors to disregard the earlier references to these statements, as it said it would.

Livingston argues that a new trial is therefore necessary.

       Assuming the validity of Livingston’s contentions, we are satisfied that he District

Court’s omission constituted harmless error under our (applicable) highly probable



                                               4
standard. As the government points out:

               The contested statements mostly reiterated appellant’s previous
       admissions concerning the missing gun, testimony about which was
       adduced at trial. Long before any mention of the follow-up conversation,
       Detective Donlon’s testimony established that : (1) appellant admitted to
       keeping two guns in his bedroom safe, both of which were, to his
       knowledge, at his house on the day of the shooting; (2) only one gun, a
       9mm Walther pistol, was recovered; (3) appellant admitted that he bought
       the missing gun from Lou’s Pawn Shop in Chester, Pennsylvania; (4)
       appellant initially thought the missing gun was a .32 caliber but thereafter
       conceded that it might be a .380 caliber; (5) Lou’s Pawn Shop had a record
       of sale of a .380 Lorcin pistol to “Fabian B. Brown” whose birth date was
       the same as appellant’s; and (6) appellant admitted to using variously both
       the surnames “Brown” and “Livingston”. This testimony was corroborated
       by both the Firearms Transaction Record and the box of .380 caliber
       ammunition found in appellant’s master bedroom. Detective Donlon’s
       follow-up conversation with appellant did little more than reiterate what
       appellant had already admitted – that the missing gun, which was then
       identified as a Lorcin pistol, was one of the two guns appellant kept in his
       safe, and that it was in fact .380 caliber.

       The summarized testimony was largely repetitive of earlier testimony concerning

Livingston’s statements about the missing handgun. Additionally, the jury found that

Livingston possessed both handguns charged in the indictment, either one of which

supported his conviction; any error in admitting statements relating solely to one of the

guns was therefore harmless.

       The judgment of the District Court will therefore be affirmed without prejudice to

Livingston’s right to pursue a petition under 28 U.S.C. § 2255, alleging ineffective

assistance of counsel.




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