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


5-11-2005

USA v. Agnew
Precedential or Non-Precedential: Precedential

Docket No. 03-2654




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Recommended Citation
"USA v. Agnew" (2005). 2005 Decisions. Paper 1100.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1100


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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          NO. 03-2654
                          __________

              UNITED STATES OF AMERICA

                                v.

                      AARON AGNEW,
                             Appellant
                      ________________

         Appeal from the United States District Court
             for the Middle District of Pennsylvania
        District Judge: Honorable William W. Caldwell
                (D.C. Criminal No. 02-cr-00055)

                 Argued May 27, 2004 and
       On Remand from the United States Supreme Court
               by Order of February 22, 2005

      BEFORE: RENDELL and COWEN, Circuit Judges,
           and SCHWARZER,* District Judge.


  *
   The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California, sitting by
designation.
                    (Filed May 11, 2005)


LORI J. ULRICH [ARGUED]
JAMES V. WADE
DANIEL I. SIEGEL
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
  Counsel for Appellant

JAMES T. CLANCY
THEODORE B. SMITH, III [ARGUED]
THOMAS A. MARINO
Office of the United States Attorney
220 Federal Building & Courthouse
228 Walnut Street, P.O. Box 11754
Harrisburg, PA 17108-1754
  Counsel for Appellee
                          _________

                 OPINION OF THE COURT


SCHWARZER, Senior District Judge.

       Aaron Agnew appeals his conviction for distributing
crack cocaine and being a felon in possession of a firearm. He
contends that the District Court erred in denying his motion to
suppress physical evidence, and in preventing him from
impeaching a witness with evidence of a sixteen-year-old

                              2
forgery conviction. The District Court had jurisdiction pursuant
to 18 U.S.C. § 3231 and we exercise jurisdiction pursuant to 28
U.S.C. § 1291. We will affirm the conviction.

       FACTUAL AND PROCEDURAL HISTORY

        Agnew was charged in an indictment with distribution of
crack cocaine in violation of 21 U.S.C. § 841(a)(1), possession
of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2), and possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

        Before trial, Agnew moved to suppress the fruits of the
search in connection with his arrest. At the suppression
hearing, Dauphin County Sheriff's Deputy Gary Duncan
testified that he was assigned to the Fugitive Task Force
charged with "the service of all violent felony warrants, drug
warrants and any other cases referred to [it] from Dauphin
County or the surrounding communities." Agnew's case was
referred to Duncan's unit because Agnew had twice previously
evaded capture by jumping from a second story window and by
holding onto the roof rack of a passing car for a block and a
half. Duncan had learned from an informant that Agnew "was
at the residence [at 2740 Ludwig Street] and that he was to be
in possession of a firearm, a revolver, . . . and that he was also
to be in possession of some narcotics." Duncan checked with
the Drug Task Force and learned that it had no investigations
pending against Agnew.

     Duncan and a group of other officers went to 2740
Ludwig Street. He and six other officers approached the front

                                3
of the residence, and four or five officers were posted around
the perimeter and at the rear of the residence. Some of the
officers wore "raid gear," including bulletproof vests, and
carried ballistics shields. Duncan testified that when the
officers knocked on the front door of the residence and
announced, "Police, open the door," he saw Agnew pull aside
a curtain in a window of the home. He then heard "what
sounded like scuffling inside, running around." Duncan
testified that he "felt that due to the knowledge that [Agnew]
had a handgun that we were compromised and we decided to
take the door." The officers then entered the residence and
apprehended Agnew as he ran up a flight of stairs. Once inside,
officers noticed in plain view a clear plastic bag containing
cocaine. They thereafter obtained a search warrant and found
a .22 caliber revolver and fifteen grams of cocaine in the home.

       The District Court denied Agnew's suppression motion.
It found that the officers acted pursuant to an arrest warrant, and
held that exigent circumstances justified the entry into the
home.

        The day before trial, the government made a motion in
limine to prevent Agnew from cross-examining a government
witness, Wyatt Dawson, using a sixteen-year-old forgery
conviction. The court granted the motion at trial, stating, "I
have read the motion and your brief. I am going to sustain the
objection." Dawson subsequently testified that he had
purchased crack cocaine from Agnew on numerous occasions
and that he rented and lived in the residence at 2740 Ludwig
Street. In addition to the testimony of an officer who searched
the residence, the government also presented several witnesses

                                4
who testified to buying crack from Agnew. Agnew himself
took the stand and testified that the firearm and drugs were
owned by Dawson, who was in fact the dealer who supplied
Agnew with drugs.

        The jury convicted Agnew of distribution of crack
cocaine and possession a firearm by a convicted felon, but
acquitted him of use or possession of a firearm during a of drug
trafficking crime. He was sentenced to a term of 300 months’
imprisonment for distributing crack and to a concurrent
sentence of 120 months’ imprisonment for possessing a firearm
when a convicted felon. Agnew timely appealed to this Court.
On appeal, we affirmed the conviction. See United States v.
Agnew, 385 F.3d 288 (3d Cir. 2004). On February 22, 2005,
the Supreme Court granted certiorari; in the same opinion, it
vacated the judgment and remanded the case to this Court for
consideration in light of United States v. Booker, 543 U.S. __,
160 L. Ed. 2d 621, 125 S. Ct. 738 (2005). See Agnew v. United
States, __ U.S. __, 125 S. Ct. 1333; 161 L. Ed. 2d 94 (2005).
In vacating the judgment, the Supreme Court did not indicate
any disagreement with our analysis wherein we affirmed
Agnew’s conviction. Herein, we will again affirm the
conviction, and repeat our analysis below. However, having
concluded that the sentencing issues based on Booker are best
determined by the District Court in the first instance, we will
vacate the sentence and remand for resentencing in accordance
with Booker.




                               5
                         DISCUSSION

                                I.

        Agnew first argues that the District Court erred in
finding that the officers' entry into 2740 Ludwig Street was
justified by exigent circumstances. We review the denial of a
suppression motion for clear error as to the underlying facts, but
exercise plenary review as to its legality in light of the court's
properly found facts. United States v. Givan, 320 F.3d 452, 458
(3d Cir. 2003). We may affirm on any ground supported by the
record. United States v. Jasin, 280 F.3d 355, 362 (3d Cir.),
cert. denied, 537 U.S. 947 (2002); United States v. Belle, 593
F.2d 487, 499 (3d Cir. 1979) (en banc) (affirming denial of
suppression motion on different ground).

        We find that the entry into the residence did not violate
Agnew's Fourth Amendment rights because the officers were
armed with a warrant for his arrest. Payton v. New York, 445
U.S. 573 (1980), establishes that police may enter a suspect's
residence to make an arrest armed only with an arrest warrant if
they have probable cause to believe that the suspect is in the
home. Id. at 602-03; see also United States v. Clayton, 210
F.3d 841, 843 (8th Cir. 2000) (holding that a valid
misdemeanor arrest warrant "carries with it the authority to
enter the residence of the person named in the warrant in order
to execute the warrant so long as the police have a reasonable
belief that the suspect resides at the place to be entered and that
he is currently present in the dwelling"). The District Court
found that the officers entered the residence for the purpose of
executing an arrest warrant, and this finding has not been

                                6
challenged. Indeed, Duncan testified that he was assigned to
the Fugitive Task Force charged with serving arrest warrants,
and Agnew testified that he was aware that there was "a warrant
out for [his] arrest" at the time of the arrest. Moreover, the
police had probable cause to believe that Agnew was in the
home because they saw him through the window.

        We note that Payton only addresses entry by officers into
the residence of the subject of the warrant, 445 U.S. at 603, and
that there was no testimony at the suppression hearing about
whether 2740 Ludwig Street was Agnew's residence. However,
whether the home was Agnew's residence is ultimately
irrelevant because under any of the possible alternatives the
entry pursuant to the arrest warrant did not violate Agnew's
Fourth Amendment rights.

       If Agnew resided at 2740 Ludwig Street, his arrest was
lawful under Payton because the police acted pursuant to an
arrest warrant. See id. at 602-03. If Agnew did not reside at
2740 Ludwig Street, he may have lacked a privacy interest in
the residence and would have no standing to challenge the
police officers' entry. Minnesota v. Olson, 495 U.S. 91, 95-97
(1990) (holding that only a person with a reasonable
expectation of privacy in a residence—like an overnight
guest—may complain that an entry into the residence was
unlawful). In any event, even if Agnew, although not a resident
at 2740 Ludwig Street, did have a privacy interest, the entry did
not violate his privacy rights. The Supreme Court held in
United States v. Steagald, 451 U.S. 204, 211-14 (1981), that the
Fourth Amendment does not permit police to enter a third
person's home to serve an arrest warrant on a suspect. But

                               7
Steagald protected the interests of the third-party owner of the
residence, not the suspect himself. See id. at 212 (stating the
issue to be "whether an arrest warrant—as opposed to a search
warrant—is adequate to protect the Fourth Amendment interests
of persons not named in the warrant, when their homes are
searched without their consent and in the absence of exigent
circumstances"). As the Ninth Circuit observed:

       A person has no greater right of privacy in
       another's home than in his own. If an arrest
       warrant and reason to believe the person named
       in the warrant is present are sufficient to protect
       that person's fourth amendment privacy rights in
       his own home, they necessarily suffice to protect
       his privacy rights in the home of another.

       The right of a third party not named in the arrest
       warrant to the privacy of his home may not be
       invaded without a search warrant. But this right
       is personal to the home owner and cannot be
       asserted vicariously by the person named in the
       arrest warrant.

United States v. Underwood, 717 F.2d 482, 484 (9th Cir. 1983)
(en banc) (citations omitted); see also United States v. Kaylor,
877 F.2d 658, 663 n.5 (8th Cir. 1989) ("Steagald addressed
only the right of a third party not named in the arrest warrant to
the privacy of his or her home. This right is personal to the
homeowner and cannot be asserted vicariously by the person
named in the arrest warrant."). Thus, even if Agnew was a
non-resident with a privacy interest, the Fourth Amendment

                                8
would not protect him from arrest by police armed with an
arrest warrant.

        Because the officers entered the residence armed with a
warrant for Agnew's arrest, and had probable cause to believe
that he was inside, the District Court properly denied the motion
to suppress.

                               II.

       Agnew next contends that the District Court erred in
preventing him from cross-examining Dawson using the
witness's sixteen-year-old forgery conviction. He argues that
we should review the district court's decision de novo, and that
the evidence should have been admitted because it would have
helped resolve a dispute between two witnesses—Dawson and
Agnew—about who owned the gun found in Agnew's room.

              A.

        Agnew concedes that we usually review decisions to
exclude evidence for abuse of discretion. See United States v.
Saada, 212 F.3d 210, 220 (3d Cir. 2000). He contends that we
should employ plenary review here, however, because the
record does not reflect that the district court actually exercised
its discretion.

       In United States v. Himelwright, 42 F.3d 777 (3d Cir.
1994), we stated that "[w]here . . . the district court fails to
explain its grounds for denying a [Federal] Rule [of Evidence]
403 objection and its reasons for doing so are not otherwise

                                9
apparent from the record, there is no way to review its
discretion. In such cases, we need not defer to the reasoning of
the district court." Id. at 781 (citation omitted). Agnew asks us
to extend this principle to decisions under Rule 609. The
District Court stated, "I have read the [government's] motion
and your brief. I am going to sustain the objection." We
believe that this statement adequately reveals the Court's
reasons for sustaining the objection: it agreed with the
arguments contained in the government's brief. In any case, we
find that the Court's decision should be affirmed even under a
plenary standard of review.

              B.

      Federal Rule of Evidence 609(a) permits parties to use
evidence of a past conviction to impeach witnesses "if it
involved dishonesty or false statement." Forgery, of course,
involves dishonesty and false statement. Wagner v. Firestone
Tire & Rubber Co., 890 F.2d 652, 655 n.3 (3d Cir. 1989). But
Rule 609(b) states that

       Evidence of a conviction under this rule is not
       admissible if a period of more than ten years has
       elapsed since the date of the conviction . . . unless
       the court determines, in the interests of justice,
       that the probative value of the conviction
       supported by specific facts and circumstances
       substantially outweighs its prejudicial effect.




                                10
Here, Dawson's conviction was more than ten years old.

        We find that the probative value of the evidence of
Dawson's forgery conviction was sufficiently small that the
"interests of justice" did not warrant its admission, and that any
error in refusing to admit the evidence was harmless. See
United States v. Colletti, 984 F.2d 1339, 1343 (3d Cir. 1992)
(employing harmless-error analysis in the Rule 609(b) context).
Two witnesses other than Dawson testified that Agnew sold
crack numerous times, and Agnew admitted as much shortly
after the crime. The police found cocaine in Agnew's shoes.
Likewise, Agnew admitted that he knew that the gun had "come
from" two individuals named "Nature" and "Light," and a police
officer testified that drug dealers commonly keep guns at their
disposal. Indeed, the jury had already learned that Dawson used
crack cocaine. It would not have resolved the question of
ownership of the gun and drugs in favor of Agnew simply
because it also learned that Dawson had an old forgery
conviction.

       For the reasons stated, we will AFFIRM the conviction.
However, we will vacate the sentence and remand for
resentencing in accordance with Booker.




                               11
