                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-4301
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    ROBERT SMITH,
                                  a/k/a “B”, a/k/a “Born”

                                       Robert Smith,
                                          Appellant
                                     _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                   (D.C. Crim. Action No. 1-14-cr-00152-001)
                    District Judge: Honorable Noel L. Hillman
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 23, 2017
                                  ______________

       Before: GREENAWAY, JR., NYGAARD, AND FISHER, Circuit Judges.

                            (Opinion Filed: January 31, 2018)

                                     ______________

                                        OPINION *
                                     ______________



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Robert Smith appeals from the conviction and sentence entered by the United States

District Court for the District of New Jersey. Smith raises six claims on appeal. 1 First, he

argues that the District Court erred in denying his motion for discovery on a selective

enforcement claim. Second, Smith claims that the District Court erred in declining to find

the Government conduct at issue outrageous. Third, he contends that the jurisdictional

requirements of the Hobbs Act, 18 U.S.C. § 1951 (2012), were not satisfied. Fourth, Smith

asserts that the Government’s summation misstated the applicable legal standard and

denigrated the defense and defense counsel. Fifth, he challenges the trial court’s inclusion

of an instruction to the jury that withdrawal is not a defense to a Hobbs Act conspiracy.

Sixth, Smith argues that the sentence imposed was substantively unreasonable. We will


1
    Smith lists seven issues in his opening brief. We consider the sixth issue that he
identifies—asking whether the Government’s “argument to the jury denigrating the
defense and defense counsel, by itself or in conjunction with the erroneous giving of the
withdrawal instruction, work[ed] to deprive the defense of its defense, and thereby
deprive[d] Mr. Smith of a fair trial”—together with the summation and jury instruction
claims. Appellant Br. 3.
        Smith raises three additional arguments in his Supplemental Reply Brief: (1) the
Indictment should have been dismissed because it did not comply with Federal Rules of
Criminal Procedure 7 and 12; (2) “a fictionalized and illegal contraband article” should not
be considered property for the purposes of the Hobbs Act, Suppl. Reply Br. 6; and (3) the
District Court erred in failing to make a finding as to the drug quantity fairly attributable
to Smith. Because these arguments were not raised in his opening brief, they are waived.
See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d
375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief,
and for those purposes ‘a passing reference to an issue . . . will not suffice to bring that
issue before this court.’” (quoting Simmons v. City of Phila., 947 F.2d 1042, 1066 (3d Cir.
1991))).
                                             2
remand in part on the issue of selective enforcement and hold the remainder of the appeal

C.A.V.

                                     I. Background

       In 2013, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) began investigating Derrick Adams after corroborating information that he had

been involved in armed robberies and home invasion robberies of drug dealers in southern

New Jersey. In its investigation, the ATF utilized an undercover agent, Greg Sheridan, to

facilitate a sting operation entailing a proposed home invasion. Sheridan represented

himself as a courier for a Mexican drug cartel who would pick up and transport between

one to five kilograms of cocaine from somewhere in the area to a designated stash house.

He noted that there would be no less than fifteen kilograms inside the stash house and he

was looking for a crew that was “willing to go in there . . . and take everything,” JA 603,

as opposed to simply stealing the one to five kilograms that he would be transporting, as

Adams had suggested. Sheridan also emphasized to Adams that the cartel brings in the

cocaine from Mexico through Texas and into New Jersey.

       Upon being presented with the home invasion opportunity, Adams recruited other

individuals, including Smith, to participate and formed a plan to execute the robbery that

involved impersonating Drug Enforcement Administration (“DEA”) agents. On January

30, 2014, Sheridan, Adams, and the robbery crew met in the parking lot of a restaurant in

Moorestown, New Jersey to discuss the home invasion, which was supposed to be

conducted that day. Adams and the other crew members arrived in two cars. Smith and
                                            3
Sheridan discussed the logistics of the home invasion, during which Sheridan emphasized

that the cartel was dangerous but that he would go along with whatever plan the robbery

crew decided upon; he added that the “cocaine was of good quality . . . and it was

transported into the United States via Mexico.” JA 628-30.

         Smith’s statements during the conversation indicated that he was willing to kill the

stash house guards if necessary, that they planned to distribute the stolen cocaine, that

Adams had been relaying to him what Sheridan had said in previous discussions, and that

he had taken a leadership role in the robbery crew. Sheridan detected no hesitation on the

part of Smith in continuing with the proposed robbery. Sheridan also spoke with the other

robbery crew members, although Smith interrupted, saying “I put you on 50,” which was

interpreted to mean that he would relay the information. JA 635, 675-76.

         Sheridan then led both cars to a storage locker location to show them where he

wanted the robbery proceeds placed. Adams exited his car and met with Sheridan in the

storage facility. Sheridan explained to Adams that he wanted the proceeds of his cocaine

left in the storage locker, gave him the key and code for the locker, told him the crew could

meet at that location before they conduct the home invasion, and offered a rental vehicle

rented in a fictitious name that they could use.

         Sheridan provided the arrest signal to the other law enforcement agents on the scene

after the meeting. Agents recovered a total of five firearms from the two cars, among other

items.

         The members of the robbery crew were initially charged with conspiracy to commit
                                              4
robbery, in violation of 18 U.S.C. § 1951(a), and conspiracy to distribute and possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 846.

       In his pretrial motions, Smith sought, inter alia, discovery relating to selective

enforcement, dismissal for outrageous government conduct, and dismissal on the basis of

manufactured jurisdiction. He argued that law enforcement appeared to be focused on

members of minority communities, even though there were White candidates in the same

area that were not targeted. Moreover, he believed that an undercover agent’s provision of

drugs to Adams and encouragement of escalation to a home invasion robbery constituted

outrageous conduct. The District Court denied the motions, explaining that Smith had not

satisfied the requirements for discovery under United States v. Armstrong, 517 U.S. 456

(1996); the government conduct did not rise to the level of “shocking, outrageous, and

clearly intolerable,” JA 195; see United States v. Nolan-Cooper, 155 F.3d 221, 231 (3d Cir.

1998); and the jurisdictional foundation was justifiable.

       Smith ultimately proceeded to trial on a Third Superseding Indictment, which

charged him with conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a);

conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21

U.S.C. § 846; using, carrying, and possessing firearms in connection with a crime of

violence or a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and

possession of firearms and ammunition by a previously convicted felon, in violation of 18

U.S.C. § 922(g)(1).

       During trial, the Government presented cell phone records and recordings and
                                              5
presented as witnesses ATF agents, a member of the robbery crew, and expert witnesses.

Relevant here, Sheridan testified that he used the fifteen kilogram number based on a

consultation of what would be contained in a realistic stash house in the area and he upped

the stakes to raise the level of violence and “weed out the opportunists.” JA 603-04. DEA

Special Agent David McNamara testified for the Government that cocaine originates in

South America and is then transported to places including the United States. He added that

cocaine that is found in New Jersey, in particular, typically arrives after crossing state lines,

although it may also arrive directly to New Jersey from South America through the mail or

a port in the state. On the defense case, in addition to recalling a testifying agent, Smith

called a witness to speak to Adams’s abuse of prescription drugs and a private investigator

to testify as an expert.

       In summation, defense counsel argued that the evidence did not show that Smith

committed himself to the home invasion plan, but rather that he had been skeptical about

the proposition and the possibility that it was a sting. In response to the defense’s closing

statement, the Government requested the inclusion of a jury instruction clarifying that there

is no withdrawal defense to the conspiracy charges, which the District Court subsequently

added over defense counsel’s objection. In its rebuttal summation, the Government also

analogized the case to three friends going to a restaurant, explaining that a decision to go

to a restaurant, even if they do not know which one, is still an agreement, as is a decision

to go to a restaurant where one of the friends does not know the details of the menu but the

other two already know what they will order; an agreement does not require that they “have
                                               6
all the details worked out”—reaching an understanding of “what the goal is” and “where

they’re going to go” is sufficient. 2 JA 792. The Government concluded its summation by

making an entreaty for the jury to reject defense counsel’s argument, specifically noting

that, “as [defense counsel] pulls up his vehicle and opens the door and invites each and

every one of you to step inside,” the jury should reject the invitation to enter the defense

counsel’s car. JA 792-93.

       After the jury left the courtroom, defense counsel objected to the Government’s

characterization of an agreement under the law, which the Court did not find to be

inappropriate. The following day, defense counsel also lodged an objection to the imagery

used by the Government at the end of its rebuttal, arguing that it denigrated defense counsel

in light of the parallel between that and the earlier argument that none of the jurors would

have stayed in a car with Sheridan had he told them the details of his proposal. Again, the

District Court disagreed, concluding that it had not found anything the Government said

“to be particularly disturbing, either individually or in a cumulative way.” JA 801.

       On April 21, 2016, the federal jury convicted Smith of all four counts. At Smith’s

sentencing hearing, the District Court denied Smith’s motions under Rules 29 and 33 of

the Federal Rules of Criminal Procedure. With respect to the calculation of the sentence,


2
     The Government additionally included an example where “they’ve decided on the
restaurant, but two of the three friends do not know of the restaurant, one does not. That’s
an agreement between two of those three friends.” JA 792. In the context of the
prosecutor’s other examples in the analogy, this appears to be an inadvertent misstatement,
the intention likely being to say that two of the three friends know of the restaurant and one
does not. This slip does not change our analysis.
                                              7
the District Court adopted the recommendations in the Presentence Report, including the

application of a sentencing enhancement for being an organizer, leader, manager, or

supervisor and the denial of a reduction for acceptance of responsibility. It determined

Smith’s total offense level to be 37 and criminal history category to be VI. The District

Court also found that Smith was a career offender under U.S. Sentencing Guidelines §

4B1.1(b). The advisory guidelines range was therefore 420 months to life. The District

Court granted a downward variance and imposed a sentence of 360 months in prison to be

followed by five years of supervised release.

                                     II. Jurisdiction

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                      III. Analysis

       Smith first claims that the District Court should have granted him discovery “into

the ATF’s selection criteria and program for stash house sting cases.” Appellant Br. 20.

He questions whether Armstrong should apply to discovery requests regarding selective

enforcement, but argues that he had met the “demanding” Armstrong standard nonetheless.

United States v. Washington, 869 F.3d 193, 215 (3d Cir. 2017); see id. at 214-16

(explaining that under the Armstrong/Bass standard, “criminal defendants seeking

discovery on an anticipated selective prosecution claim” can rest their discovery motion on

“some evidence” of discriminatory effect and discriminatory intent, which must include a

credible “showing that similarly situated persons were not prosecuted” and “cannot
                                            8
generally be satisfied with nationwide statistics”). “While discovery rulings are ordinarily

reviewed for abuse of discretion, ‘we exercise de novo review over the standards the district

court used in exercising its discretion.’” Id. at 213 (quoting Redland Soccer Club v. Dep’t

of the Army, 55 F.3d 827, 845 (3d Cir. 1995)).

       Following the filing of Smith’s appeal in this case, this Court issued an opinion in

Washington, in which we held that “motions for discovery seeking information on putative

claims of unconstitutional selective enforcement are not governed by strict application of

the Armstrong/Bass framework.” 3 Id. at 220; see id. at 219-20 (explaining the reasons for

the distinction in treatment between selective enforcement and selective prosecution).

Rather, “[i]f claims of selective law enforcement are raised . . . , a district court retains the

discretion to conduct a limited pretrial inquiry into the challenged law-enforcement

practice on a proffer that shows ‘some evidence’ of discriminatory effect.” Id. at 220-21.

After enunciating the appropriate standard, we “vacate[d] the [d]istrict [c]ourt’s discovery

orders and remand[ed] for a renewed decision under the framework.” Id. at 222.

       The parties here agree that a remand on the issue of Smith’s discovery request would

be appropriate in light of our decision in Washington. We will accordingly order a limited

remand consistent with Washington, and—despite Smith’s suggestion otherwise—

“commit the inquiry to the District Court’s considerable discretion.” Id.


3
   On November 13, 2017, the Government filed correspondence in Washington stating
that it would not be seeking further review of the decision. On November 27, 2017, this
Court issued an order in Washington denying the appellant’s petition for en banc and panel
rehearing.
                                               9
       In light of the limited remand, we do not reach the merits of Smith’s remaining

issues on appeal. This Court recognized in Washington that a post-trial remedy for a

successful selective enforcement challenge is striking the indictment in whole or in part.

Id. at 223. If Smith succeeds on his discovery challenge on remand, such that the

underlying indictment is dismissed, the remaining issues on appeal would become moot

and our disposition of them would approach an advisory opinion. See United States v.

Thomas, 713 F.3d 165, 168 (3d Cir. 2012) (“A judicial decision rendered in the absence of

a case or controversy is advisory, and federal courts lack power to render advisory

opinions.”). Accordingly, we will hold the remaining issues on appeal C.A.V., 4 to be

considered if the District Court determines on remand that either Smith is not entitled to

discovery under the standard articulated by Washington or his selective enforcement

challenge is otherwise unavailing.

       We acknowledge that Washington did address and resolve the appellant’s

ineffective assistance of counsel claim and mandatory minimum due process challenge to

his sentence in that case, in addition to issuing a limited remand as to Washington’s

selective enforcement claim. See 869 F.3d at 202-13. Washington, however, did not



4
   “C.A.V. is the abbreviation for the Latin legal phrase, curia advisari vult, meaning ‘the
court will be advised, will consider, will deliberate.’ It is the term we use when we hold an
appeal in abeyance pending the outcome of another proceeding.” Mateo v. Attorney Gen.
U.S., 870 F.3d 228, 231 n.4 (3d Cir. 2017) (quoting In re Mystic Tank Lines Corp., 544
F.3d 524, 526 n.1 (3d Cir. 2008)); see, e.g., id. at 526 (noting that the case had been held
C.A.V. pending the resolution of a “petition for review in another deportation case” before
the Court and the grant of a petition for certiorari in a separate relevant case).
                                             10
expressly state that when evaluating a challenge to the standard employed regarding

selective enforcement along with other substantive issues, the Court must resolve all issues

in one opinion. In the interest of judicial economy and with an eye towards avoiding the

issuance of an advisory opinion, we opt to postpone a further ruling on the merits until the

District Court reevaluates Smith’s discovery motion.

                                     IV. Conclusion

       For the foregoing reasons, we will vacate the District Court’s discovery order,

remand for further proceedings, and hold the remainder of the appeal C.A.V. pending the

outcome of those proceedings.




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