                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2002

USA v. Coward
Precedential or Non-Precedential: Precedential

Docket No. 01-2547




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PRECEDENTIAL

       Filed July 3, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2547

UNITED STATES OF AMERICA

v.

ALFONZO COWARD,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 00-cr-00088)
District Judge: Hon. Stewart Dalzell

Argued April 1, 2002

Before: SLOVITER, FUENTES and MICHEL,*
Circuit Judges

(Filed July 3, 2002)

Jules Epstein (Argued)
Kairys, Rudovsky, Epstein, Messing
Philadelphia, PA 19106

 Attorney for Appellant
_________________________________________________________________

* Hon. Paul R. Michel, United States Circuit Judge for the Federal
Circuit, sitting by designation.



       Patrick L. Meehan
        United States Attorney
       Laurie Magid
        Deputy United States Attorney
        for Policy and Appeals
       Robert A. Zauzmer (Argued)
        Assistant United States Attorney
        Senior Appellate Counsel
       Kathleen M. Rice
        Assistant United States Attorney
       Office of United States Attorney
       Philadelphia, PA 19106

        Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge:

Appellant Alfonzo Coward was convicted for violating 18
U.S.C. S 922(g)(1) (2001), possession of a firearm by a felon.
His appeal raises two issues: (1) whether the District Court
erred in denying his motion to suppress on the ground that
the government failed to present at the suppression hearing
essential evidence of reasonable suspicion to justify the
stop of Coward’s vehicle, and (2) whether S 922(g)(1) is a
constitutional exercise of Congress’ Commerce Clause
powers. This court recently decided the latter issue in
United States v. Singletary, 268 F.3d 196 (3d Cir. 2001),
which is controlling on this panel. We concentrate on the
first issue.

I.

BACKGROUND

At the pretrial suppression hearing, Philadelphia Police
Lieutenant Michael Chitwood testified that on the evening
of September 23, 1998, he and his partner, Terrence
Sweeney, were patrolling the area around 43rd and Walnut
Streets. Shortly before 9:00 p.m., a call was broadcast over

                                2


the police radio requesting the stop of a green Subaru with
the license plate BMS 9857, driven by an African-American
male. The call did not state the reasons for the requested
stop.

Almost immediately after hearing this call, Officers
Chitwood and Sweeney saw the vehicle and pulled it over.
Chitwood testified that prior to approaching the vehicle, he
saw the driver reach for the glove compartment and duck
down under the passenger seat before returning to an
upright position. When the officers approached the car, the
driver, later identified as Coward, stated, "It’s not mine."
App. at 61. Chitwood then observed a nine-millimeter
weapon on the floor of the passenger’s side.1

Chitwood’s testimony was the only evidence offered by
the government at the suppression hearing to support the
legality of the stop. The government did not present the
testimony of the officer who requested the stop by radio nor
any evidence demonstrating the reason for the request to
stop Coward’s vehicle.

The defense argued that all evidence arising out of the
stop of Coward’s vehicle should be suppressed for lack of
reasonable suspicion to justify the stop. In response, the
government argued that it "was a lawful stop . . . [b]ased on
the radio call." App. at 97. The government argued that the
" ‘fellow officer rule’ . . . kind of imputes the knowledge of
the transmitting officer to the receiving officer, whether it is
actually transmitted or not." App. at 98. The government
advised the District Court both in its memorandum and at
the oral argument that there was authority in the Ninth
Circuit’s decision in United States v. Robinson , 536 F.2d
1298 (9th Cir. 1976), that "[e]ffective law enforcement
cannot be conducted unless police officers can act on
directions and information transmitted by one officer to
another; and that officers who must often act swiftly,
cannot be expected to cross-examine fellow officers about
_________________________________________________________________

1. Coward disputes these facts, specifically whether he reached in the
car and whether he made any statement to the officers, but these factual
disputes are not relevant to the issues on appeal.

                                3


the foundation for the transmitted information." App. at 97
(quoting Robinson, 536 F.3d at 1299).2

Following the arguments of the government and counsel
for Coward, the District Court at the pretrial hearing on
January 4, 2001, denied the motion to suppress, noting
that it was sufficient that Chitwood reasonably relied on the
radio request. App. at 101 (stating that Chitwood’s
testimony demonstrated "ample reasonable suspicion,
indeed fear, on the part of . . . Chitwood that[led] to the
search"). In an amendment to the order to suppress filed
the same day, the District Court added that the burden was
on the defendant to show that there was no reasonable
suspicion behind the police radio request. The court stated:

       The question then becomes who has the burden of
       showing that there was no reasonable suspicion behind
       the police radio request. It seems to us that the
       Government, having prima facie shown the
       reasonableness of Sergeant Chitwood’s behavior,
       should not have to take on the added burden of looking
       behind the request from police radio. Since the
       defendant has as much access to this proof as the
       Government, it seems to us not excessive to place the
       burden of such proof upon the party claiming that the
       radio dispatch was illegitimate. As there is not a
       scintilla of evidence in this record regarding such
       illegitimacy, we will not infer it retrospectively absent
       some basis for doing so.

App. at 27. On February 26, 2001, the defense moved to
reconsider that order and on March 5, 2001, the District
Court denied that motion reiterating the reasons given in
the January 4, 2001 Order. App. at 124.

Thereafter, evidence derived from the stop of Coward’s
vehicle was admitted at the jury trial. On June 13, 2001,
Coward was found guilty of being a felon in possession of
a firearm that had traveled in interstate commerce in
_________________________________________________________________

2. Although the government noted that under Robinson, "the officer who
issues a Wanted Bulletin must have a reasonable suspicion sufficient to
justify a stop," App. at 96, it did not advise the court of the government’s
necessity to produce such evidence.

                                4
violation of 18 U.S.C. S 922(g)(1) and was sentenced to
sixty-eight months imprisonment and three years of
supervised release. Coward moved for a judgment of
acquittal pursuant to Federal Rule of Criminal Procedure
29(c) on the Commerce Clause issue. The District Court
denied his motion. United States v. Coward, 151 F. Supp.
2d 544 (E.D. Pa. 2001). This is the direct appeal of that
judgment pursuant to 18 U.S.C. S 1291.

II.

DISCUSSION

A.

Suppression of Evidence

We review the District Court’s denial of the motion to
suppress for clear error as to the underlying factual
findings and we exercise plenary review over questions of
law. United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002).

1. Proof of Reasonable Suspicion

The government concedes, as it must, that it did not
meet its burden of proof in establishing that the stop of
Coward’s car was based on reasonable suspicion. Br. of
Government at 4. The government further acknowledges
that the District Court incorrectly shifted the burden of
proof to the defendant on this issue.

Under the applicable law, the government was required to
present evidence at the suppression hearing of the
requesting police officer’s reasonable suspicion. In Whitely
v. Warden, 401 U.S. 560 (1971), the Supreme Court held
that although a police officer may rely on the
representations of other officers when making an arrest, the
officers requesting assistance must have sufficient
information to show probable cause. Id. at 568 ("[A]n
otherwise illegal arrest cannot be insulated from challenge
by the decision of the instigating officer to rely on fellow
officers to make the arrest.").

                                5


The Supreme Court reached a similar result in United
States v. Hensley, 469 U.S. 221 (1985). In that case, the
Supreme Court stated:

       [W]hen evidence is uncovered during a search incident
       to an arrest in reliance merely on a flyer or bulletin, its
       admissibility turns on whether the officers who issued
       the flyer possessed probable cause to make the arrest.
       It does not turn on whether those relying on the flyer
       were themselves aware of the specific facts which led
       their colleagues to seek their assistance.
Id. at 231 (emphasis in original). Hensley makes clear that
if a flyer or bulletin was issued without reasonable
suspicion, the stop made in "the objective reliance upon it
violates the Fourth Amendment." Id. at 232. "Assuming the
police made a Terry[v. Ohio, 392 U.S. 1 (1968)] stop in
objective reliance on a flyer or bulletin, we hold that the
evidence uncovered in the course of the stop is admissible
if the police who issued the flyer or bulletin possessed a
reasonable suspicion justifying a stop." Id. at 233
(emphasis in original). Our court reached the same
conclusion in Berg v. County of Allegheny, 219 F.3d 261,
270-71 (3d Cir. 2000), where we concluded that an arrest
violated the Fourth Amendment because the government
officials who issued the arrest warrant, which was later
executed by another police officer, did not have probable
cause. Therefore, the law at the time of the suppression
hearing on Coward’s motion was clear that a finding of
reasonable suspicion to justify the stop required the
presentation of evidence by the government that the officer
who issued the radio bulletin had reasonable suspicion, not
simply that it was reasonable for the arresting officer to
have relied on the bulletin. The government presented no
such evidence.

In addition, the District Court erred in holding the
burden was on the defense to prove reasonable suspicion.
Once a defendant has challenged the admissibility of such
evidence, the government must bear the burden of proving
the existence of reasonable suspicion. See Florida v. Royer,
460 U.S. 491, 500 (1983) (stating that government has
burden of proving seizure was "sufficiently limited in scope
and duration to satisfy the conditions of an investigative

                                6


seizure"); United States v. Johnson, 63 F.3d 242, 245 (3d
Cir. 1995) ("once the defendant has established a basis for
his motion . . . the burden shifts to the government to show
that the search or seizure was reasonable").

The parties do not dispute that the evidence offered in
the District Court was insufficient or that the burden of
proving reasonable suspicion should have been on the
government. The only question before us is the appropriate
resolution. Coward requests that we reverse the denial of
his motion to suppress and order a new trial at which all
evidence derived from the stop of his vehicle will be
suppressed. The government requests that we remand the
case to allow the District Court to decide whether the
government should be given an opportunity to introduce
new evidence on the issue of reasonable suspicion.

2. Reopening the Suppression Hearing

The question of whether the government may augment
the record at a suppression hearing after a remand
following the conviction of the defendant is analogous to the
question of whether the government may reopen its case
after resting. United States v. Vastola, 915 F.2d 865, 876
(3d Cir. 1990) (citing United States v. Blankenship, 775
F.2d 735, 740-41 (6th Cir. 1985)). In Vastola , we noted that
decisions to reopen proceedings are "traditionally a
discretionary matter for the district court." Id. (citing
Blankenship, 775 F.2d at 740-41). For example, we review
a district court’s decision on a motion to reopen for abuse
of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 332 (1971). However, we have cautioned that
" ‘courts should be extremely reluctant to grant
reopenings.’ " United States v. Kithcart , 218 F.3d 213, 219
(3d Cir. 2000) (Kithcart II) (quoting Blankenship, 775 F.2d
at 740).

Our decision in Kithcart II provides our most recent
analysis of this issue. In United States v. Kithcart, 134 F.3d
529, 532 (3d Cir. 1998) (Kithcart I), we reversed a district
court’s denial of a motion to suppress for lack of probable
cause and remanded the case to determine if the evidence
could support a finding of the lesser standard of reasonable
suspicion. On remand, the district court allowed the

                                7


introduction of new evidence on the revisited suppression
motion that had not been presented at the initial hearing.
Kithcart II, 218 F.3d at 217. On appeal, we held that the
district court erred in allowing the prosecution to present
additional testimony without explanation of its failure to
introduce the evidence at the original suppression hearing.
Id. at 221.

In Kithcart II, we set forth a number of factors that a
court must consider in deciding whether to permit
reopening. We stated that "[w]hen faced with a motion to
reopen, the district court’s primary focus should be on
whether the party opposing reopening would be prejudiced
if reopening is permitted." 218 F.3d at 220 (citing
Blankenship, 775 F.2d at 740; 28 Charles A. Wright &
Victor J. Gold, Federal Practice and Procedure S 6164
(1993)). A critical factor in evaluating prejudice is the
timing of the motion to reopen. As the court stated in
Blankenship:

       If [the motion to reopen] comes at a stage in the
       proceedings where the opposing party will have an
       opportunity to respond and attempt to rebut the
       evidence introduced after reopening, it is not nearly as
       likely to be prejudicial as when reopening is granted
       after all parties have rested, or even after the case has
       been submitted to the jury. Where, as in this case,
       reopening is permitted after the government has rested
       its case in chief, but before the defendant has
       presented any evidence, it is unlikely that prejudice
       sufficient to establish an abuse of discretion can be
       established.

775 F.2d at 741.

The Blankenship court offered further guidelines for
courts to use in deciding whether to reopen a proceeding:

       In exercising its discretion, the court must consider the
       timeliness of the motion, the character of the
       testimony, and the effect of the granting of the motion.
       The party moving to reopen should provide a
       reasonable explanation for failure to present the
       evidence in its case-in-chief. The evidence proffered
       should be relevant, admissible, technically adequate,

                                8


       and helpful to the jury in ascertaining the guilt or
       innocence of the accused. The belated receipt of such
       testimony should not imbue the evidence with distorted
       importance, prejudice the opposing party’s case, or
       preclude an adversary from having an adequate
       opportunity to meet the additional evidence offered.

Id. (quoting United States v. Thetford , 676 F.2d 170, 182
(5th Cir. 1982) (quotation omitted)).

In Kithcart II, we placed emphasis on the need for an
adequate explanation of the failure to present the relevant
evidence earlier. "In order to properly exercise its discretion
the district court must evaluate that explanation and
determine if it is both reasonable, and adequate to explain
why the government initially failed to introduce evidence
that may have been essential to meeting its burden of
proof." Kithcart II, 218 F.3d at 220. In that case, we
reversed the district court’s decision to reopen the
suppression hearing on remand because "the government
offered absolutely no explanation for its initial failure to
present the additional witnesses at the original suppression
hearing, nor did the district court demand an explanation."
Id. at 217.

We have made clear that the " ‘party moving to reopen
should provide a reasonable explanation for failure to
present the evidence [initially].’ " Kithcart II, 218 F.3d at 220
(alteration in original) (quoting Blankenship , 775 F.2d at
741 (quoting Thetford, 676 F.2d at 182)). Consideration
should be given to whether the law on point at the time was
unclear or ambiguous, as well as to whether new evidence
came to light after the proceedings closed. Id . (suggesting
reopening inappropriate because the government "was fully
aware of what it had to establish to successfully oppose
Kithcart’s suppression motion" and nothing suggested "that
evidence was either newly discovered or unavailable during
the first hearing"); see also Vastola, 915 F.2d at 876
(remanding determination on adequacy of government’s
explanation for delay in sealing wiretap tapes because
government may have relied on a case that was later
overruled by the Supreme Court).

Unlike in Kithcart II where the government offered no
explanation for its failure to present the evidence, the

                                9
government in this case offers two justifications for its
failure to produce evidence that would have satisfied its
burden of proof: (1) a mistake due to the "relative
inexperience" of the prosecutor, and (2) the acquiescence of
the judge. The government proffers no evidence of its
assertion that the prosecutor was indeed inexperienced,
stating that such proof would be provided on remand. We
note that the prosecutor’s "inexperience" did not prevent
the government from selecting her to handle the obligations
of a criminal trial and, indeed, she secured Coward’s
conviction. Moreover, there is testimony at the suppression
hearing suggesting that the prosecutor was familiar with
the controlling precedent on this issue. App. at 98-99
(discussing applicability of Hensley and Berg). In fact, at
the suppression hearing the prosecutor quoted from United
States v. Robinson, 536 F.2d 1298 (9th Cir. 1976), a case
that specifically articulated the government’s burden to
prove that the directing officer had reasonable suspicion to
support a stop. App. at 96-97. As for the judge’s misplaced
acquiescence to the government’s faulty interpretation of
the law, the government may not shift the blame to the
District Court for its own failure to advise the court of the
applicable law and to bear its burden of proof on a clearly
established requirement. At oral argument, government
counsel restated its argument, making clear that the
government was not suggesting that the court somehow
induced the government’s failure to submit the missing
evidence.

A district court may consider the purpose for reopening.
In Blankenship, the court stated, "[r]eopening is often
permitted to supply some technical requirement such as
the location of a crime--needed to establish venue--or to
supply some detail overlooked by inadvertence." 775 F.2d
at 740 (citing United States v. Hinderman, 625 F.2d 994,
996 (10th Cir. 1980)). Nothing suggests that the
government in Coward’s case "overlooked" a"detail" by
"inadvertence." Instead, the government neglected to put on
evidence it had readily available to it, out of a faulty
interpretation of the law. This case is not one in which the
misinterpretation can be justified because the law was
ambiguous or changing. The government’s burden of proof
to show probable cause is not merely a "technical

                                10


requirement" as in Blankenship but a critical requirement
of criminal law.

We refrain from expressing our view as to whether the
government has provided a reasonable and adequate
explanation for its failure to present evidence that the
requesting officer had reasonable suspicion to justify the
stop, because we believe the District Court is the
appropriate body to weigh the government’s arguments and
evidence in favor of reopening. In Vastola, we remanded the
determination of whether the government had a reasonable
explanation because "the district court should be entitled to
exercise its discretion to decide whether the government
should now be permitted . . . to offer an explanation for its
violation . . . . It seems to us that this threshold
determination . . . is similar to that on a ruling on a motion
by the government to reopen, traditionally a discretionary
matter for the district court." 915 F.2d at 876 (citing
Blankenship, 775 F.2d at 740-41).

For the reasons articulated, we will remand to the
District Court to evaluate the government’s request to
reopen the suppression hearing in light of the
considerations expressed herein.

B.

Validity of Section 922(g)

In Coward’s brief, he argued that possession of a firearm
that has previously traveled in interstate commerce does
not have a substantial relation to and/or impact on
interstate commerce and thus falls outside of Congress’
authority under the Commerce Clause, U.S. Const., art. I,
S 8, cl. 3. On that basis, Coward argued that 18 U.S.C.
S 922(g)3 was not constitutionally applied to him. However,
_________________________________________________________________

3. 18 U.S.C. S 922(g) reads in part:

       (g) It shall be unlawful for any person --

       (1) who has been convicted in any court of, a crime punishable
       by imprisonment for a term exceeding one year;

                                11


his brief was written without the benefit of this court’s
recent decision in United States v. Singletary , 268 F.3d 196
(3d Cir. 2001).

In Singletary, we examined this precise issue in detail
and 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" of the
statute. Id. at 205. Taking note of our prior decision in
United States v. Gateward, 84 F.3d 670 (3d Cir. 1996), we
scrutinized the same line of Commerce Clause decisions of
the Supreme Court to which Coward directed our attention
and ruled that S 922(g) was constitutional. See id. at 200-
205 (analyzing Jones v. United States, 529 U.S. 846 (2000),
United States v. Morrison, 529 U.S. 598 (2000), United
States v. Lopez, 514 U.S. 549 (1995), Scarborough v. United
States, 431 U.S. 563, 564 (1977)). In light of the binding
effect we give to precedential opinions of panels of this
court, we reject Coward’s challenge to S 922(g). See 3d Cir.
Internal Operating P. 9.1.

Despite the rejection of identical constitutional challenges
in Singletary, Coward maintains that Singletary did not
address his challenges based on statutory construction and
thus has no preclusive effect over those challenges. Reply
Br. at 5-6. Coward argues that the term "possess in or
affecting interstate commerce" in S 922(g) cannot include
the intrastate possession of a gun that once traveled in
interstate commerce because to do so would violate three
principles of statutory construction: (1) the rule of lenity
and strict construction of criminal statutes; (2) the
necessity to construe statutes to give meaning to each
phrase and render no phrase superfluous; and (3) the rule
that statutes be construed to avoid grave constitutional
questions. Br. of Appellant at 23-31.
_________________________________________________________________

       . . . .

       to ship or transport in interstate or foreign commerce, or possess in
       or affecting commerce, any firearm or ammunition; or to receive any
       firearm or ammunition which has been shipped or transported in
       interstate or foreign commerce.

                                12


Although Singletary does not directly address these rules
of statutory construction, it effectively addresses and
overcomes Coward’s arguments. In Singletary, we examined
the phrases used in S 922(g) and compared them to the
language of the statutes at issue in other Commerce Clause
cases to find the language constitutional. 268 F.3d at 204.
Reading the statute according to the interpretation given by
this court in Singletary, as we must, we cannot find any
violations of these tenets of statutory construction and
decline to grant relief on this issue.

III.

CONCLUSION

For the reasons stated herein, we will remand this case
to the District Court to decide, in its discretion, whether to
allow the government to present additional evidence in
opposition to the suppression motion. In so considering,
the District Court must consider the factors articulated
above, including whether or not the government has an
adequate and reasonable explanation for its failure to
present the evidence initially and whether the presentation
of additional evidence will prejudice the defendant.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                13
