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


6-21-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2520




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"USA v. Georgacarakos" (2005). 2005 Decisions. Paper 982.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/982


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                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 04-2520


                          UNITED STATES OF AMERICA

                                            v.

                           PETER N. GEORGACARAKOS,
                                             Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                           D.C. Crim. No. 02-cr-00034-2
               District Judge: The Honorable James F. McClure, Jr.


                              Argued: April 4, 2005


               Before: BARRY, AMBRO, and COWEN, Circuit Judges


                                  (Filed: June 21, 2005 )




Ronald C. Travis, Esq. (Argued)
Rieders, Travis, Humphrey
Harris, Waters & Waffenschmidt
161 West Third Street
P.O. Box 215
Willimsport, PA 17703

Counsel for Appellant
Frederick E. Martin, Esq. (Argued)
Office of the United States Attorney
240 West Third Street
Suite 316
Williamsport, PA 17701

Counsel for Appellee




                                        OPINION




BARRY, Circuit Judge

       Because we write only for the benefit of the parties, our discussion will be limited

to those facts necessary for the disposition of this appeal. In November 1996, Peter

Georgacarakos (“Georgacarakos”) and Marek Kowaalski (“Kowaalski”) were inmates at

USP-Lewisburg and stabbed to death a fellow inmate, Randall Anderson (“Anderson”).

An indictment was returned on February 13, 2002.1 On June 13, 2003, Kowaalski entered

a plea of guilty to voluntary manslaughter and testified against Georgacarakos at his jury

trial, which began in January 2004. The jury found Georgacarakos guilty of murder in the

second degree and he was subsequently sentenced to life in prison. He appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and will

affirm Georgacarakos’ conviction, We will, however, vacate his sentence and remand for




   1
    The indictment charged both defendants with premeditated murder and aiding and
abetting a premeditated murder, in violation of 18 U.S.C. §§ 1111 and 2.

                                             2
resentencing.

                                                I.

         Georgacarakos raises ten issues on appeal. We have carefully considered each of

these issues and have heard oral argument. Although none of the issues is ultimately

meritorious, we will briefly address three of them.2

A.       Government’s Use of Georgacarakos’ Silence

         Georgacarkos’ strongest argument, at least at first blush, is that his Fifth

Amendment rights were violated when the prosecutor allegedly commented on his post-

Miranda silence during an extensive cross-examination of him. Two questions are

challenged: “[W]hat did you share with the FBI in terms of information that night about

your presence in Mr. Anderson’s cell?” and “Was this part of the trick, not to tell the FBI

that you were involved in a self-defense situation?” 744a; see Appellant’s Br. at 32.

Georgacarkos responded that he told the FBI agents “nothing” other than details about his

religion and admitting the “obvious” about being found in cell B-206 on the night of the



     2
    The remaining seven issues do not warrant discussion: (1) the extensive pre-
indictment delay violated his due process rights; (2) because Kowaalski pled guilty to
voluntary manslaughter under a defense of heat of passion, Georgacarakos was also only
guilty of voluntary manslaughter, for “heat of passion for one is heat of passion for both”;
(3) disclosure of a multi-page document violated the co-defendants’ oral joint defense
agreement; (4) Kowaalski’s attorney should have turned over copies of his investigator’s
interviews because they were paid for with joint defense funds; (5) the District Court
erroneously denied his Rule 29 motion at the conclusion of the government’s case; (6) the
“abnormality of the verdict form” warranted a new trial; and (7) the District Court erred
in refusing to impose the death penalty.

                                                3
murder. Georgacarakos also challenges the prosecutor’s comment during closing

argument that Georgacarakos “told the FBI very little, and only what was convenient.”

(881a). No objection was made either to the two questions on cross-examination or to the

one comment on closing argument. Thus, as Georgacarkos concedes, plain error applies.

       Although the Supreme Court has held that a prosecutor may use a defendant’s

post-Miranda statements for impeachment purposes, see Anderson v. Charles, 447 U.S.

404, 408 (1980), it has also held that a prosecutor may not cross-examine a defendant

about his post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 611 (1976).

Georgacarakos claims there was a Doyle violation, while the government relies on the

Anderson line of cases to argue that the prosecutor’s questions and his comment were

permissible. See, e.g., United States v. Johnson, 302 F.3d 139 (3d Cir. 2003); United

States v. Agee, 597 F.2d 350, 354 (3d Cir. 1979) (en banc) (it was the defendant’s

attempted deception, not his silence, that the prosecutor used to impeach the defendant).

       As we emphasized in Johnson, “[I]t is important to evaluate the prosecutor’s

question in context.” 302 F.3d at 144. The context here is this. When Georgacarakos

encountered the FBI following the murder, he answered questions about his religion and

the “obvious” fact of where he was found; he was not “silent.” So, when asked on cross-

examination what he shared with the FBI about his presence in the cell, he admitted what

he had said, but also said that he had told the FBI nothing about self-defense. 774a, 778a.

The prosecutor then asked if it was part of the “trick” not to tell the FBI that he was


                                              4
“involved in a self-defense situation.” 774a. This question was in direct response to

Georgacarakos’ repeated statements on direct examination – “we decided to try to trick

the government by not letting on that that was what we were going to do,” namely, that he

and Kowaalski were not going to raise self-defense at the outset, 726a; “the trick was that

we were gong to pretend . . . it wasn’t us . . . you can’t prove it was us. And that was the

trick of it,” 729a; [i]t was going to be a trick on the prosecutor, 730a; “[i]t was my trick,

my idea,” 732a. To ask whether it was “part of the trick, not to tell the FBI that [he was]

involved in a self-defense situation” was perfectly appropriate. So, too, was the lone

comment on summation.

       But even if we assume some sort of Doyle violation, before an appellate court can

correct an error not objected to at trial, the defendant has the burden of proving that the

(1) error (2) was plain and (3) affected substantial rights. United States v. Cotton, 535

U.S. 625, 631 (2002). If the first three conditions are satisfied, we may notice the

forfeited error in the rare case where the error “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (quotations and citations omitted).

       Georgacarakos has not produced any evidence to suggest that the government’s

improper use of his “silence” affected his substantial rights, i.e., altered the outcome of

the trial. Accordingly, this argument is unavailing.

B.     Improper Jury Instruction

       Georgacarakos’ only defense at trial was that he stabbed Anderson in response to


                                               5
Anderson attacking Kowaalski. Georgacarakos contends that the District Court, therefore,

committed a “clear error” when it instructed the jury that “heat of passion” was his

alternative defense. Georgacarakos argues that “[t]he court advising jurors that [he] acted

in the heat of passion was the functional equivalent of a directed verdict of guilty since

the court’s charge told the jurors that [he] conceded he was guilty of voluntary

manslaughter.” (Reply Brief at 14.) According to Georgacarakos, this mistaken

instruction warrants a new trial because it undermined his actual defense.

       Because Georgacarakos did not object to the jury instruction, this issue, as well, is

reviewed for plain error. Georgacarakos is technically correct that he never raised a heat

of passion defense at trial and that, therefore, the District Court erred when it told the jury

that this was one of his defenses. We note, however, that wholly aside from his failure to

object, “heat of passion” was referenced in the proposed instructions Georgacarakos

himself submitted, 245a, as well as in the final written instructions, 891a, 823a, 824a,

which presumably he had the opportunity to review and to which he could have objected

prior to the actual charge being delivered. In any event, because Georgacarakos has not

produced any persuasive evidence that the District Court’s instruction affected his

substantial rights, this argument, too, is unavailing.3




   3
    Indeed, because Georgacarakos was found guilty of murder in the second degree, the
jury never reached the issue of whether he was guilty of voluntary manslaughter.

                                               6
C.     Remand for Resentencing

       Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, ___

U.S.    , 124 S.Ct. 2531 (2004); and United States v. Booker, 543       U.S.    , 125 S.Ct.

738 (2005), Georgacarakos argues that he should not have been sentenced as a career

offender pursuant to U.S.S.C. § 4A1.3. In light of United States v. Davis, 397 F.3d 173

(3d Cir. 2005), and our determination that issues with respect to Booker are best

determined by the District Court in the first instance, we will vacate the sentence and

remand for resentencing in accordance with that opinion.

                                            II.

       For the reasons set forth above, we will affirm the judgment of conviction, vacate

the judgment of sentence, and remand for re-sentencing.




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