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


3-25-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2905




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"USA v. Fisher" (2005). 2005 Decisions. Paper 1433.
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                                                  NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 03-2905


                       UNITED STATES OF AMERICA


                                       v.

                             DAVID LEE FISHER,

                                            Appellant



                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                              (D.C. No. 01-cr-00769)
                  District Judge: The Honorable Robert F. Kelly



                    Submitted under Third Circuit LAR 34.1(a)
                            Date: September 24, 2004

          Before: MCKEE, ALDISERT and GREENBERG, Circuit Judges

                             (Filed: March 25, 2005)



                           OPINION OF THE COURT


ALDISERT, Circuit Judge.

                                       1
       Appellant David Lee Fisher appeals his conviction and sentence for possession of

a loaded firearm and ammunition by a convicted felon. Fisher was sentenced to, inter alia,

327 months incarceration. We must decide whether the district court: (1) erred in

instructing the jury regarding evidence of flight; (2) exceeded the permissible bounds of

discretion by: (a) refusing to allow Fisher to dismiss his counsel and appoint a substitute;

(b) admitting eyewitness testimony; (c) denying Fisher’s request for a mistrial; and (d)

admitting the prosecutor’s rebuttal comments; and (3) erred by applying enhancements to

Fisher’s sentence. We have jurisdiction to review the district court pursuant to 28 U.S.C.

§ 1291 (2000). We will affirm the conviction, vacate the sentence and remand for re-

sentencing in accordance with United States v. Booker, 543 U.S.---, 125 S. Ct. 738

(2005).

                                              I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                             II.

       Fisher contends that the district court usurped the jury’s fact-finding function when

it stated that the jury had “heard evidence that the defendant, David Lee Fisher, fled from

the scene and from police officers immediately prior to his arrest . . . .” Because Fisher

did not make a contemporaneous objection, we review the instruction for plain error. It is



                                              2
the defendant’s burden to establish plain error. United States v. Olano, 507 U.S. 725, 734-

735 (1993). To do so, he must prove that: (1) the court erred; (2) the error was obvious

under the law at the time of review; and (3) the error affected substantial rights—the

outcome of the proceeding. Johnson v. United States, 520 U.S. 461, 467 (1997). If all

three elements are established, the court may, but need not, exercise its discretion to

award relief. Id. Here, there was no plain error because the court conditioned

consideration of the evidence by stating: “If proved, flight of the defendant after he

knows that he may be arrested for the commission of a crime, may tend to prove that the

defendant believed he was guilty.” (Trial trans. at 83.)

                                              III.

       We review the district court’s refusal to dismiss Fisher’s counsel and appoint

substitute counsel for abuse of discretion. United States v. Goldberg, 67 F.3d 1092, 1098

(3d Cir. 1995). To qualify for substitution of counsel, a defendant must demonstrate good

cause, such as a “conflict of interest, a complete breakdown in communication, or an

irreconcilable conflict with the attorney.” Id. “If the district court denies the request to

substitute counsel and the defendant decides to proceed with unwanted counsel, we will

not find a Sixth Amendment violation unless the district court’s ‘good cause’

determination was clearly erroneous or the district court made no inquiry into the reason

for the defendant's request to substitute counsel.” Id.

       Here, Fisher contends that his Sixth Amendment right to counsel was violated by



                                               3
the district court’s refusal to appoint new counsel. The district court inquired into Fisher’s

request for a continuance and new counsel. It determined that Fisher’s disagreements with

his counsel did not constitute “good cause.” Accordingly, there was no abuse of

discretion.

       Fisher contends that the district court should have instructed him that he had a

right to represent himself at trial. Fisher asserted no reasons to support this contention. An

examination of the record shows that Fisher’s attorney was well prepared and provided

Fisher with vigorous representation. The court was not obligated to advise Fisher that he

had a right to represent himself at trial. At no time did Fisher clearly and unequivocally

request that he be permitted to represent himself at trial. See Buhl v. Cooksey, 233 F.3d

783, 792 (3d Cir. 2000) (requiring that a defendant’s request for self-representation at a

trial be made clearly and unequivocally).

                                             IV.

       We review the district court’s decision regarding the admissibility of evidence for

abuse of discretion. United States v. Serafini, 233 F.3d 758, 768 n. 14 (3d Cir. 2000). If

the court’s ruling was based on an interpretation of the Federal Rules of Evidence, the

review is de novo. Id. Here, Fisher argues that the district court erred in admitting the eye

witness testimony of Belinda Brown, who identified him as being at the scene of the

crime, because Fisher was not given notice that she was subpoenaed and he was

prejudiced. Because Brown was a recalcitrant witness and had to be subpoenaed on the



                                              4
eve of the trial, the government had no formal Jencks Act statement prior to trial. The

government had no obligation to provide something to Fisher that did not exist.

See United States v. Bernard, 625 F.2d 854, 859-860 (9th Cir. 1980) (rejecting a claim

that the government is required to create Jencks Act material by recording everything a

potential witness says). We determine that there was no error.

                                                 V.

       We review a district court’s decisions regarding the management of a trial for

abuse of discretion. Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 609

(3d Cir. 1995). Without citing any authority, Fisher argues that the court erred in denying

his motion for a mistrial following his repeated outbursts and his eventual removal from

the courtroom. The court specifically instructed the jury to disregard Fisher’s behavior

and his temporary absence from the courtroom and did not exceed the permissible bounds

of discretion by refusing to grant a mistrial.

                                                 VI.

       We review a district court’s ruling that a prosecutor was not vouching during

rebuttal for abuse of discretion. United States v. Nelson, 284 F.3d 472, 476 n. 3 (3d Cir.

2002). Fisher contends that, in rebuttal, the prosecutor improperly vouched for the

credibility of government witness Terrill Bailey and improperly inflamed the jury. In

accordance with the rule against vouching, the prosecutor did not give the jury any

personal assurance of Bailey’s credibility. See United States v. Saada, 212 F.3d 210, 225



                                                 5
(3d Cir. 2000) (stating that vouching occurs if the prosecutor assures the jury that the

testimony of a witness is credible based on information not in evidence). Here, the

prosecutor only addressed the facts in the record. Accordingly, the district court did not

exceed the permissible bounds of discretion.

                                            VII.

       Fisher challenges his sentence under United States v. Booker, 543 U.S. - -, 125 S.

Ct. 738 (2005). Having determined that the two sentencing issues raised here are best

determined by the district court in the first instance, we will vacate the sentence and

remand for re-sentencing in accordance with Booke r.

                                          *****

       We have considered all the arguments advanced by the parties and conclude that

no further discussion is necessary.

       The judgment of the district court relating to Fisher’s conviction will be affirmed,

we will vacate the sentence and remand for re-sentencing in accordance with Booker.




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