                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2681




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                                                             NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2681


                           UNITED STATES OF AMERICA

                                           v.

                                  ROY CAMPBELL,
                                                       Appellant


                    On Appeal From the United States District Court
                             For the District of New Jersey
                            (D.C. Criminal No. 03-cr-00658)
                      District Judge: Honorable William H. Walls


                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 28, 2007


               Before: BARRY, FUENTES, and GARTH, Circuit Judges.

                           (Opinion Filed: December 3, 2007)


                                       OPINION


GARTH, Circuit Judge:

      Roy Campbell (“Campbell”) appeals his conviction following a jury trial for dealing

in firearms without a license. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3231. For the following reasons, we will affirm his conviction.
                                             I.

       Because we write only for the parties’ benefit, we will only recite those facts

essential to decide this appeal. Campbell was charged in a two count superseding

indictment of conspiring to deal in firearms without a license in violation of 18 U.S.C. §§

371, 922(a)(1)(A) (“Count I”), and dealing in firearms without a license in violation of 18

U.S.C. §§ 922(a)(1)(A) and (2) (“Count II”). On October 6, 2004, a jury acquitted

Campbell on Count I but convicted him on Count II.

       The charges against Campbell stemmed from his illegal purchase of firearms in

Colorado, which he sold to an individual in New Jersey. The evidence adduced at trial

established that Campbell, a resident of New Jersey, purchased at least 86 handguns in

Colorado while pretending to be a Colorado resident. He then transported those firearms

back to New Jersey, where he sold them for a profit to a member of the gang, the

“Bloods.” Campbell committed these acts even though he never obtained a license to

deal in firearms. The guns were later recovered in crime scenes in Newark and East

Orange, New Jersey, all within a four-mile radius of Campbell’s home.

                                            II.

       The first issue Campbell raises on appeal concerns the Government’s conduct at

trial. During Campbell’s cross examination, the prosecutor used a chart-sized notepad to

chronicle his various trips to Colorado. On the chart, the prosecutor wrote “Roy

Campbell’s Excellent Denver Adventure.”1 Campbell’s attorney objected to this


       1
       This was an apparent reference to the movie, “Bill & Ted’s Excellent
Adventure.”
comment and requested a curative jury instruction. The trial judge sustained the objection

and promised to instruct the jury “to forget about” the chart. However, when the time

came to instruct the jury, the trial judge never provided the instruction. Moreover,

Campbell raised no objection to the trial judge’s failure to provide the instruction.

       Campbell contends that the Government’s conduct, and the trial judge’s failure to

provide a curative instruction, warranted a mistrial. Because Campbell never requested a

mistrial when he objected to the Government’s conduct, nor objected when the trial judge

failed to provide the instruction, we review these matters for plain error. Fed. R. Crim. P.

30(d); see also United States v. Richards, 241 F.3d 335, 342 (3d Cir. 2001) (holding that

where defendant objected to a Jencks Act violation but did not request mistrial we review

for plain error). Plain error occurs only when the error is clear and obvious and affects

substantial rights. United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001). Substantial

rights are affected if the error was sufficiently prejudicial to affect the outcome of the

trial. Id.; see also United States v. Olano, 507 U.S. 725, 736 (1993). A favorable

exercise of discretion to correct plain error is warranted if the defendant is actually

innocent or the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Wolfe, 245 F.3d at 261. (internal quotation marks and citation

omitted). A defendant has the burden of establishing plain error. Id. “In order to

demonstrate prosecutorial misconduct under a plain error standard, the review must reveal

egregious error or a manifest miscarriage of justice.” United States v. Brennan, 326 F.3d

176, 182 (3d Cir. 2003) (internal quotation marks and citations omitted). Here, we find

no error.
       By titling the chart as he did, the prosecutor appears to have attempted to interject

humor into Campbell’s trial. When Campbell’s attorney objected to the Government’s

conduct, the trial judge immediately excused the jury and ordered the comment

expurgated. The prosecutor then flipped over the chart and, the following day, removed

the offending comment entirely so that it could not be seen by the jury.

       In sum, Campbell has failed to show that the prosecutor’s conduct affected his

substantial rights or actually affected the outcome of the trial. The lack of a curative

instruction does not change this analysis. Accordingly, Campbell failed to show that the

trial court committed plain error warranting a new trial.



                                             III.

       The next error Campbell raises concerns the prosecutor’s comments during

summation. At the end of his initial summation, the prosecutor commented about the

anticipated remarks from defense counsel, Mr. Roberts, by stating:

              Now, Mr. Roberts is going to come up and he is going to talk to
              you and he will attempt to explain how these guns showed up in
              Newark and East Orange with obliterated serial numbers in the
              hands of Bloods gang members.

              But, I would like you to think about certain questions and see if
              Mr. Roberts answers those questions to your satisfaction while
              he is trying to explain all of this away....

              If the defendant sold all 86 guns to ABC Loan as he stated, how
              come he didn’t keep the receipt? And see if Mr. Roberts can
              explain that. Why, if the defendant sold the guns to ABC Loan
              store in March of 2000 as he explained, how five of those guns
              just happened to follow him to Newark and East Orange and end
              up in the hands of Bloods gang members.
S.A. 608-09. Campbell contends that these remarks were improper because they

improperly shifted the burden of producing evidence onto him. He also argues that the

remarks openly challenged him to present a summation even though he was not obligated

to do so. Finally, Campbell contends that the comments regarding the gang members

were factually inaccurate and not in evidence. Because Campbell failed to raise any of

these objections at trial, we will review them for plain error. United States v. Moore, 375

F.3d 259, 263 (3d Cir. 2005). Again, we find no error.

       Campbell’s assertion that the above-quoted summation amounted to improper

burden-shifting by the Government lacks merit. We have explained that there is nothing

improper about a prosecutor “attempt[ing] to focus the jury’s attention on holes in the

defense’s theory.” United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996). Such

comments do “not implicate any of the burden-shifting concerns that are raised when a

prosecutor points to a defendant’s failure to testify or improperly suggests that the

defendant has the burden of producing evidence.” Id.2

       Campbell’s argument that the Government’s remarks challenged him to provide a

summation is likewise meritless. Even if such conduct by the Government could be

considered sufficient to warrant retrial under the plain error standard, the record shows

that Campbell’s counsel gave every indication at trial that he would provide a summation.



       2
        Campbell also argues that the prosecutor’s posing of rhetorical questions
constituted prosecutorial misconduct. We disagree. See United States v. Lore, 430 F.3d
190, 213 (3d Cir. 2005) (holding that the use of a rhetorical question during rebuttal
summation fell far short of the showing necessary to establish misconduct).
(S.A. 501-02, 609.) Furthermore, the Government’s assertion that gang members

ultimately received the weapons was supported by the record. (S.A. 184-206.)

       In sum, the District Court committed no plain error no allowing the above-quoted

summation.

                                             IV.

       Finally, Campbell raises an argument concerning the trial court’s jury instruction

on Count II, dealing in firearms without a license. The trial court instructed the jury that

Campbell could be found guilty of this count if he aided and abetted another person in the

commission of that offense. Campbell argues that this instruction was improper because

it violated the Double Jeopardy Clause’s prohibition against duplicitous charges in

indictments (i.e., charging two or more distinct offenses in the same count). Again, since

Campbell never raised this argument at trial, we review it for plain error. United States v.

Dobson, 419 F.3d 231, 236 (3d Cir. 2005).3

       Again, we find no plain error. It is well-established that the aiding and abetting

statute for which Campbell was charged, 18 U.S.C. § 2, “‘is an alternative charge in

every count, whether explicit or implicit.’” United States v. Bryan, 483 F.2d 88, 95 (3d

Cir. 1973) (quoting United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971)); see also


       3
        There is some evidence that this matter was brought to the trial court’s attention
when the jurors, during their deliberations, sent the judge a note asking whether they had
to determine whether Campbell aided and abetted the commission of the offense charged
in Count II (S.A. 661-67). The record shows that the trial judge heard argument on the
issue and that Campbell’s counsel expressed some concerns about the charge. However,
the record shows that Campbell never raised any objection during the reading of the
charge (S.A. 570-71), or at the charge conference held prior to the reading (S.A. 531-43).
Therefore, we will review this matter for plain error. Fed R. Crim. P. 30(d).
United States v. Pungitore, 910 F.2d 1084, 1132 (3d Cir. 1990) (“Federal courts have

long recognized that a defendant indicted as a principal may be convicted upon proof that

he aided and abetted the charged offense.”). Accordingly, we find no plain error.



                                           V.

      For the foregoing reasons, we will affirm Campbell’s conviction.




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