                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1367




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-1367


                          UNITED STATES OF AMERICA

                                           v.

                                   HASAN REED,

                                                            Appellant


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              (D.C. Crim. No. 04-00042)
                       Honorable Alan N. Bloch, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 6, 2006

               BEFORE: ROTH and GREENBERG, Circuit Judges, and
                        BUCKWALTER, District Judge*

                                 (Filed: April 4, 2006)


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.


*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
 the Eastern District of Pennsylvania, sitting by designation.

                                 I. INTRODUCTION
       This matter comes on before this court on appeal by defendant Hasan Reed from a

judgment of conviction and sentence entered on January 27, 2005. Following a jury trial,

Reed was convicted under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for possession of a

firearm by a convicted felon and sentenced to a 78-month custodial term to be followed

by a three-year term of supervised release. For the following reasons, we will affirm.1



                              II. FACTUAL BACKGROUND

       The parties do not dispute the relevant facts. On January 11, 2004, Officers Robert

Kavals, Daniel Hartung, and Philip Mercurio of the Pittsburgh Police Department

observed a black Ford Focus with three occupants fail to stop at a stop sign. Although the

officers activated the lights and siren on their patrol car, the driver did not pull the vehicle

over. During the ensuing pursuit, the officers observed the front-seat passenger, who was

wearing a beige coat, extend his right arm out of the car window and drop a black gun.

The officers continued to pursue the vehicle, and alerted officers in another patrol car to

retrieve the gun.2

       Shortly thereafter, the Ford Focus crashed, and its three occupants fled on foot.

Officer Kavals apprehended the person who fled from the front passenger seat of the


   1
   The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
   2
   The police later identified the gun as a loaded Ruger semi-automatic pistol but they
were unable to detect any fingerprints on the gun. There were, however, prints on the
magazine but they were not those of the car driver, Gene Hughey, or of Reed.
                                               2
vehicle and later identified him as Reed. Although Reed was not wearing a beige coat at

the time of his apprehension, Officer Kavals testified that Reed initially had on a beige

coat when he fled on foot, but “he threw it off.” App. at 167. The officers also

apprehended the driver, Gene Hughey, and the rear-seat passenger, Danielle Smith.

       A grand jury subsequently indicted Reed for possession of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Reed pleaded not

guilty following which a jury trial commenced on August 23, 2004. Prior to trial, Reed

filed an in limine motion seeking an order that at the trial the court would admit into

evidence “reverse [Rule] 404(b) evidence” to the effect that Gene Hughey, the driver of

the Ford Focus, had a prior conviction for unlawful possession of a firearm. Moreover,

Reed sought an order permitting the defense to call Hughey as a witness at trial for the

sole purpose of having him invoke his Fifth Amendment privilege not to testify in front of

the jury. At the time that Reed filed his motion he knew that, if called as a witness,

Hughey would invoke his Fifth Amendment privilege against self incrimination as

Hughey’s attorney had advised him that he would do that. The district court denied both

requests.

       At trial, Reed testified that he was in the Ford Focus with Hughey, its driver, at the

time of the incident because Hughey was a jitney driver, and Reed had called Hughey to

take him from his cousin’s residence to his own residence.3 According to Reed, Hughey



   3
    Reed does not contest that he was a convicted felon.
                                             3
sped up when the police attempted to stop the car, and “[Hughey] said he wasn’t going to

stop the car until he got away[.]” App. at 198. Reed further testified that he became

nervous because Hughey was “almost crashing,” as he was “speeding off trying to get

away from [the police].” App. at 200. At that point, Reed noticed a gun “in between

[the] console and [Hughey’s] seat[,]” app. at 200, and, as Hughey made a sharp turn,

Reed “rolled the window down and reached for the gun and put it in [his] right hand and

threw it out the window,” app. at 200-01. Reed explained that he threw the gun away

because “[Hughey] might have been planning to do something with [the gun] to the cops

or to [him], . . . so [Reed] was trying to get it away from him.” App. at 201. Reed

claimed that Hughey was yelling and told Reed that Reed “was going to make matters

worse for [him]self.” App. at 201. At the close of trial, the district court denied Reed’s

request to instruct the jury on the defense of justification on the grounds that “[Reed]

failed to establish [the] unlawful and present threat of death or serious bodily injury.”

App. at 212.

       As we have indicated, the jury found Reed guilty. Prior to sentencing, Reed urged

the district court to reduce his offense level based on his “acceptance of responsibility”

pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 3E1.1. The district court

calculated Reed’s total offense level as 20, which it declined to reduce for acceptance of

responsibility as it reasoned that “[m]erely admitting to conduct comprising the offense . .

. does not necessarily demonstrate that a defendant has ‘clearly’ accepted responsibility

for the ‘offense.’” App. at 272-73. The district court, however, increased Reed’s criminal

                                              4
history category from IV to V,4 reasoning that his criminal history, “as calculated in

accordance with the guidelines does not adequately reflect the seriousness of the

defendant’s criminal history or the likelihood that [he] would commit other crimes.”

App. at 283-84. As we have indicated, the district court sentenced Reed to a custodial

term of 78 months to be followed by a three-year period of supervised release. Reed

timely appealed.



                                       III. DISCUSSION

A. Justification Defense

       Reed first argues that the district court erred in declining to charge the jury on the

defense of justification. Reed asserts that, “[t]o the extent that Third Circuit case law

requires that potential harm be imminent and immediate in order to satisfy the first

element of justification, it is too far restrictive and should be expanded.” Appellant’s br.

at 26. We exercise plenary review over the district court’s refusal to charge the jury on

the defense of justification. United States v. Paolello, 951 F.2d 537, 539 (3d Cir. 1991)

(“[W]e will . . . make a plenary legal determination of whether justification could have

been a defense to the indictment.”).

       In general, a defendant must demonstrate the following four elements to establish



   4
    At the total offense level of 20 involved here, category IV carries a sentencing
guideline range of 51 to 63 months, and category V carries a sentencing range of 63 to 78
months.
                                              5
the defense of justification:

   (1) he was under unlawful and present threat of death or serious bodily injury; (2)
   he did not recklessly place himself in a situation where he would be forced to
   engage in criminal conduct; (3) he had no reasonable legal alternative (to both the
   criminal act and the avoidance of the threatened harm); and (4) there is a direct
   causal relationship between the criminal action and the avoidance of the threatened
   harm.

Id. at 540. Therefore, as Reed correctly observes, justification may be a valid defense to a

felon in possession of a firearm charge under 18 U.S.C. § 922(g). United States v. Dodd,

225 F.3d 340 (3d Cir. 2000). Courts, however, narrowly construe the defense of

justification in the felon-in-possession context, see Paolello, 951 F.2d at 541-42, in

recognition of the reality that “[i]f ex-felons who feel endangered can carry guns, felon-

in-possession laws will be dead letters.” United States v. Perez, 86 F.3d 735, 737 (7th

Cir. 1996); see also United States v. Perrin, 45 F.3d 869, 874 (4th Cir. 1995) (“It has been

only on the rarest of occasions that our sister circuits have found defendants to be in the

type of imminent danger that would warrant the application of a justification defense.”).

       Here, the district court correctly determined that Reed failed to satisfy the first

element necessary to establish the defense of justification, namely that “he was under

unlawful and present threat of death or serious bodily injury,” because “[he] presented no

evidence of an altercation, nor did he present any evidence that would suggest that the

driver had threatened to shoot anyone.” App. at 212. Although it may have been

perfectly rational for Reed to have been concerned about Hughey’s conduct, he failed to

meet the legal standard of a justification defense because he was not in imminent danger.


                                              6
We reach this conclusion because our study of the record convinces us that Reed did not

have a “well-grounded” fear that the driver would shoot him, or for that matter the police.

See 951 F.2d at 542. We realize that Reed testified that Hughey, the jitney driver, was

yelling and refused to pull over. That conduct, however, even coupled with the presence

of a firearm in the console, did not put Reed in a position that he reasonably feared “an

immediate threat of death or serious bodily harm” to himself or even to the police. See id.

at 542. Therefore, the district court properly refused to charge the jury on the defense of

justification.

B. Evidentiary Rulings

       Next, Reed argues that the district court denied Reed the constitutional right to a

defense by (1) excluding evidence of Hughey’s prior conviction under Fed. R. Evid.

404(b) (“Rule 404(b)”), and (2) refusing to allow Hughey to testify for the purpose of

invoking his Fifth Amendment privilege in front of the jury. We review the district

court’s evidentiary rulings for abuse of discretion. See United States v. Versaint, 849

F.2d 827, 831 (3d Cir. 1988) (“We review district court decisions to admit or exclude

evidence under an abuse of discretion standard.”); United States v. Griffin, 66 F.3d 68, 70

n.6 (5th Cir. 1995) (reviewing for abuse of discretion district court’s denial of defendants’

request to call witness to the stand for purpose of asserting Fifth Amendment privilege).

Under the abuse of discretion standard, the decision is to be reversed if arbitrary or

irrational. United States v. Universal Rehab. Servs., 205 F.3d 657, 665 (3d Cir. 2000).

       1. Reverse Rule 404(b) Evidence

                                              7
       “In contrast to ordinary ‘other crimes’ evidence [under Rule 404(b)], which is used

to incriminate criminal defendants, ‘reverse [Rule] 404(b)’ evidence is utilized to

exonerate defendants.” United States v. Stevens, 935 F.2d 1380, 1402 (3d Cir. 1991).

The admissibility of reverse Rule 404(b) evidence depends on a straightforward balancing

of the probative value of the evidence under Fed. R. Evid. 401 against Fed. R. Evid. 403

considerations, such as undue waste of time and confusion of the issues. Id. at 1404-05.

The relevancy and probative value of reverse Rule 404(b) evidence depends on the degree

of similarity between the charged offense and the reverse Rule 404(b) evidence. Id. at

1401. Nonetheless, we have recognized that “a lower standard of similarity should

govern ‘reverse Rule 404(b)’ evidence because prejudice to the defendant is not a factor.”

Id. at 1404. Thus, “[a]ll that is necessary is that the evidence satisfy the relevancy

standard of Rule 401.” Id. at 1405.

       In Stevens, we held that the district court erred in excluding evidence of a similar

robbery involving a victim who failed to identify the defendant as the assailant. We

based our conclusion on the significant similarities between the charged robbery and the

evidence concerning the later robbery, such as location (occurring within a “few hundred

yards of one another”), weapon used (handgun), and the time at which the robberies

occurred. Id. at 1401. We also noted the inherent unreliability of the cross-racial

identifications on which the government’s case rested. Id. at 1405. Therefore, we

concluded that evidence of a similar robbery involving a different assailant “had a

tendency to make [the defendant’s] guilt less probable.” Id.

                                              8
       Here, the district court properly excluded the evidence concerning Hughey’s prior

conviction because it failed to satisfy the relevancy standards set forth in Rule 401. More

specifically, the evidence regarding Hughey’s prior conviction did not tend to make

Reed’s guilt less probable, see Stevens, 935 F.2d at 1405, because Reed’s conduct

indisputably satisfies the elements necessary to prove a felon-in-possession charge.5

After all, Reed’s act of throwing the firearm out of the car window was sufficient to

establish his possession of the weapon, see United States v. Barnett, 398 F.3d 516, 522

(6th Cir 2005); United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995), and Reed

admitted that he “rolled the window down and reached out for the gun and put it in [his]

right hand and threw it out the window.” App. at 200-01. Therefore, the district court

properly excluded evidence of Hughey’s prior conviction inasmuch as such evidence in

no way could present the jury with a way to find that Reed’s unlawful possession of the

weapon was justified. In this regard we point out that if in fact Hughey owned the

firearm his ownership did not negate the overarching fact that, as we have explained,

Reed had possession of it.

       2. Testimony of Hughey

       We have held that a criminal defendant may not call a witness for the sole purpose


   5
    To establish that a defendant was a felon in possession of a firearm in violation of
section 922(g)(1), the government is required to prove the following elements beyond a
reasonable doubt: (1) that the defendant previously had been convicted of a crime
punishable by imprisonment for a term exceeding one year; (2) that the defendant
knowingly possessed a firearm; and (3) that the firearm had passed in interstate
commerce. Dodd, 225 F.3d at 344.
                                             9
of allowing the jury hear the witness invoke his or her Fifth Amendment privilege. See

Nezowy v. United States, 723 F.2d 1120, 1124 n.6 (3d Cir. 1983) (noting “that a criminal

defendant is not entitled to call a witness for the purpose of having the jury hear him ‘take

the Fifth’”). Other courts of appeals similarly have held that “a witness should not be put

on the stand for the purpose of having him exercise his privilege before the jury,” Bowles

v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970) (en banc); accord United States v.

Griffin, 66 F.3d 68, 70-71 (5th Cir. 1995); United States v. Deutsch, 987 F.2d 878, 883-

84 (2d Cir. 1993); United States v. Vandetti, 623 F.2d 1144, 1148 (6th Cir. 1980); United

States v. Harris, 542 F.2d 1283, 1298 (7th Cir. 1976); United States v. Johnson, 488 F.2d

1206, 1211 (1st Cir. 1973).

       This rule is well grounded as allowing a witness to testify for the purpose of

invoking the Fifth Amendment “would only invite the jury to make an improper

inference.” Bowles, 439 F.2d at 542. Furthermore, as the court explained in United

States v. Klinger, 128 F.3d 705, 709 (9th Cir. 1997), “[t]he rationale for this rule is that

the prosecution would be denied the opportunity to cross-examine the defendant’s witness

if that witness were simply to invoke his or her Fifth Amendment privilege with respect to

questions on non-collateral matters. Thus insulated from cross-examination, the witness’s

testimony cannot be considered reliable.” (citations and internal quotation marks

omitted). In this case we see no circumstances that could have justified the court to

depart from the general rule set forth in Nezowy v. United States, 723 F.2d at 1124 n.6.

Accordingly, we find that the district court properly refused to allow Reed to call Hughey

                                              10
to testify for the sole purpose of having him invoke the Fifth Amendment in front of the

jury.

C. Sentencing

        Next, Reed argues that the district court erred in declining to reduce his offense

level based on his acceptance of responsibility under U.S.S.G. § 3E1.1 (“section 3E1.1”).

Reed also argues that the district court misapplied the sentencing guidelines when it

departed upwards from Reed’s criminal history category as computed in his presentence

report. Appellant’s br. at 47. We reverse a district court’s determination as to whether or

not to grant a reduction based on a defendant’s acceptance of responsibility only if the

determination is clearly erroneous. United States v. Cianscewski, 894 F.2d 74, 83 (3d

Cir. 1990). We review the district court’s decision to depart upwards from Reed’s

criminal history category for reasonableness pursuant to United States v. Booker, 543

U.S. 200,    , 125 S. Ct. 738, 765-66 (2005).6

        1. Acceptance of Responsibility under Section 3E1.1

        Section 3E1.1(a) of the sentencing guidelines provides: “If the defendant clearly

demonstrates acceptance of responsibility for this offense, decrease the offense level by 2

levels.” We acknowledge that a “[c]onviction by trial . . . does not necessarily or


   6
     In United States v. Cooper, 437 F.3d 324, 326 (3d Cir. 2006), we indicated that “[i]n
United States v. Booker, the Supreme Court directed appellate courts to review sentences
for reasonableness, stating this review applied ‘across the board.’”(quoting 543 U.S. at
   , 125 S. Ct. at 764-67). To determine if the court acted reasonably in imposing the
resulting sentence, we must determine whether the district court properly considered the
relevant factors under 18 U.S.C. § 3553(a). Cooper, 437 F.3d at 331-32.
                                             11
automatically preclude a defendant from consideration for [an acceptance of

responsibility] reduction.” U.S.S.G. § 3E1.1, cmt. 2. However, a defendant’s admission

of factual guilt coupled with an assertion of a recognized defense at trial may preclude

such a reduction. United States v. Gorsuch, 404 F.3d 543, 546-47 (1st Cir. 2005). For

example, “[a]n assertion of self-defense is a denial of an essential factual element of guilt

for purposes of [an acceptance of responsibility reduction].” United States v. Bello, 194

F.3d 18, 27 (1st Cir. 1999); see also United States v. Reed, 114 F.3d 1053, 1058 (10th

Cir. 1997) (assertion of good faith defense “demonstrated that [defendant] did not accept

responsibility for his conduct”). But see United States v. Pastor, 173 F.3d 206, 221 n.12

(3d Cir. 1999) (insanity defense may allow reduction for acceptance of responsibility)

(citing United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995)). A district court’s decision

as to whether to grant an adjustment based on a defendant’s acceptance of responsibility

“is entitled to great deference on review because the sentencing judge is in a unique

position to evaluate a defendant’s acceptance of responsibility.” United States v. Bennett,

161 F.3d 171, 196 (3d Cir. 1998) (internal quotation marks omitted).

       Here, the district court did not clearly err in finding that Reed did not demonstrate

an acceptance of responsibility because he asserted a justification defense at trial. Indeed,

in a sense asserting that an act was justified reflects a state of mind completely the

opposite of that of a defendant accepting responsibility. Therefore, the district court

properly declined to reduce Reed’s offense level for acceptance of responsibility under

U.S.S.G. § 3E1.1.

                                             12
         2. Upward Departure

         U.S.S.G. § 4A1.1 establishes a system for assigning criminal history points to

establish a defendant’s criminal history category predicated on the severity of his prior

convictions. U.S.S.G. § 4A1.3 states, however, that a court may depart from the

applicable guideline range if reliable information leads it to believe that a defendant’s

criminal history category under- or over-represents the seriousness of the defendant’s past

criminal history. But a court contemplating departing upwards from the applicable

guideline range must give the defendant notice of a possible upward departure, and the

court did not do that here. See United States v. Queensborough, 227 F.3d 149, 153 (3d

Cir. 2000). As the Supreme Court said in Burns v. United States, 501 U.S. 129, 138-39,

111 S.Ct. 2182, 2187 (1991):

         before a district court can depart upward on a ground not identified as a
         ground for upward departure either in the presentence report or in a
         prehearing submission by the Government, . . . the district court [must] give
         the parties reasonable notice that it is contemplating such a ruling. This
         notice must specifically identify the ground on which the district court is
         contemplating an upward departure.

Nonetheless, “[a] district court’s failure to provide notice before departing upward may

be considered harmless unless the defendant can prove that he would have done things

differently had notice been given.” United States v. Himler, 355 F.3d 735, 742 (3d Cir.

2004).

         In this case, the district court’s failure to provide Reed with notice of the upward

departure was a harmless error because Reed failed to “prove that he would have done


                                               13
things differently had notice been given.” Id. at 742. Furthermore, we cannot say that the

district court’s sentence was unreasonable. In imposing the sentence, the district court

expressly considered “the nature and circumstances of the offense and the history and

characteristics of the defendant” and the need to “protect the public from further crimes of

the defendant.” See 18 U.S.C. § 3553(a). Therefore, because the district court believed

that the criminal history points under-represented the seriousness of Reed’s prior

convictions, it properly departed upwards from the presentence report.

D. Constitutionality of 18 U.S.C. § 922(g)

       Finally, Reed argues that 18 U.S.C. § 922(g) (“section 922(g)”), which

criminalizes a prior felon’s possession of a firearm that has passed through interstate

commerce, is unconstitutional, and that “Congress exceeded its power under the

Commerce Clause of the Constitution by enacting this statute.” Appellant’s br. at 49.

According to Reed, “a gun which, like the gun in this case, once crossed a state line does

not forever have a ‘substantial’ relation to interstate commerce,” and thus falls outside of

Congress’ authority under the Commerce Clause. Appellant’s br. at 53 (emphasis in

original). We review the district court’s order upholding the constitutionality of section

922(g) and refusing to dismiss the indictment on a plenary basis. See United States v.

Singletary, 268 F.3d 196, 198-99 (3d Cir. 2001).

       We will not linger on this point inasmuch as our decision in Singletary in which

we held that “proof . . . that the gun had traveled in interstate commerce, at some time in

the past, was sufficient to satisfy the interstate commerce element,” 268 F.3d at 205,

                                             14
forecloses Reed’s constitutional challenge to section 922(g). Though Reed argues that

“Singletary was wrongly decided,” appellant’s br. at 55, plainly it is binding on this panel.

See Third Circuit I.O.P. 9.1.

                                   IV. CONCLUSION

       For the foregoing reasons, we will affirm the judgment of conviction and sentence

entered January 27, 2005.




                                             15
