                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2142




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-2142


                          UNITED STATES OF AMERICA

                                           v.

                                TAUCHI MITCHELL
                                       a/k/a
                                  Tauhshi Mitchell
                                       a/k/a
                                       Star

                                                Tauchi Mitchell,

                                                                      Appellant


                    On Appeal from the United States District Court
                            for the District of Delaware
                           (D.C. Crim. No. 03-00021-1)
                      Honorable Sue L. Robinson, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 6, 2006

               BEFORE: ROTH and GREENBERG, Circuit Judges, and
                        BUCKWALTER, District Judge*

                                (Filed: March 14, 2006)




*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
 the Eastern District of Pennsylvania, sitting by designation.
                                OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before the court on an appeal by Tauchi Mitchell from a

conviction and sentence entered on April 5, 2005, on a single-count indictment charging

him with possession of ammunition while being a convicted felon in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). After a jury convicted Mitchell, the district court

sentenced him to a 47-month custodial term to be followed by a 36-month term of

supervised release. The district court had jurisdiction under 18 U.S.C. § 3231 and we

have jurisdiction under 28 U.S.C. § 1291.

       Mitchell, who is a convicted felon, raises three issues on this appeal: (1) the

police’s original warrantless entry into the premises at 528 N. Monroe Street,

Wilmington, Delaware, at which Mitchell resided at the time of their entry, where they

later found the ammunition after they obtained a search warrant for the premises, was

unlawful as they did not have probable cause for the entry and there were no extant

exigent circumstances justifying it; (2) the subsequent search of the premises pursuant to

a search warrant during which the police found the ammunition was unlawful as the

justice of the peace issuing the warrant relied on illegally obtained evidence described in

the affidavit on which the warrant was predicated and the affiant executed the affidavit

with a reckless disregard of the truth of its assertions; (3) the justice of the peace issued

                                               2
the warrant on the basis of a false material assertion; and (4) the district court erred in not

admitting into evidence Mitchell’s uncle’s statement claiming possession of the

ammunition.

       The basic circumstances leading to the indictment and conviction are not in

dispute. On October 1, 2002, Artese Williams found Lisa Ferguson who had been shot in

the 500 block of North Monroe Street in Wilmington, and took her to the Wilmington

Hospital. Following the reporting of the incident, the police went to the area where

Williams indicated that she found Ferguson. At that time and place, the police found a

drop of blood on the sidewalk and another drop of blood on the front steps of the

premises at 528 N. Monroe Street where Mitchell lived. These discoveries led the police

to knock on the front door at 528 N. Monroe Street to ascertain if anyone inside had been

shot. When the police knocked on the door, which apparently was not secured, it opened

and they saw blood inside the premises. The premises, however, were empty of people.

During this warrantless entry the police did not find any ammunition.

       Thereafter, on the basis of an affidavit in which, in some places, the affiant police

officer confused nearby North Madison Street with North Monroe Street, the police

obtained a search warrant for the North Monroe Street address to search for evidence

related to the shooting. When executing the warrant they found ammunition in the

living/dining area and in Mitchell’s bedroom.

       Mitchell intended to call his uncle, Allen Fair, who also is a convicted felon, who



                                               3
previously resided at 528 N. Monroe Street, as a witness at the trial to establish that the

ammunition in the living/dining area may have been in Fair’s possession. Fair, however,

invoked the privilege against self incrimination and thus did not testify. Nevertheless,

Mitchell attempted to introduce Fair’s statement claiming possession of the ammunition

into evidence as a statement against Fair’s interest under Federal Rule of Evidence

804(b)(3). The court rejected the proffer because, using an objective standard, the court

believed that the record did not establish that Fair knew that the statement was against his

interest and, in any event, the court believed that the statement was not corroborated.

       We reject all of Mitchell’s arguments. First, there is no doubt that the police had a

right and, indeed, a duty to go to the 500 block of North Monroe Street after receiving the

report of the shooting. Then, when they saw blood on the sidewalk and on the front steps

at 528 N. Monroe Street, in view of their knowledge that there had been a shooting in the

area, they were justified if not compelled to enter the premises immediately as they had a

basis to believe that someone in the premises might be in imminent danger. See

Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996). After all, they were aware of where

Williams found Ferguson and that Ferguson had been shot, and it was logical for them to

be concerned that there could be more victims. Moreover, the presence of blood on the

front steps gave the police probable cause to believe that there would be evidence of the

crime inside the premises, though this point is more significant with respect to the

securing of the warrant than the initial entry. Of course, the police’s observation of the



                                              4
blood in the premises enhanced the basis for finding that there was probable cause to

believe that there would be evidence of the crime in the premises. See Illinois v. Gates,

462 U.S. 213, 238, 106 S.Ct. 2317, 2332 (1983).

       Second, even though the search warrant affidavit referred to a “blood trail” and the

police found only drops of blood, the somewhat expansive characterization of what they

found was not material because even the minimal amount of blood recovered pointed to

528 N. Monroe Street as the crime scene and thus supplied probable cause for issuing the

warrant. See Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). Third, the confusion

between Madison and Monroe Streets in the affidavit, when the affidavit is considered in

its entirety, does not undercut the reasonableness of the justice of the peace in issuing the

search warrant for 528 N. Monroe Street. See United States v. Conley, 4 F.3d 1200, 1206

(3d Cir. 1993).

       We believe that Mitchell’s strongest argument relates to the exclusion of Fair’s

statement. But even this contention fails. Under Rule 804(b)(3), Mitchell had the burden

to demonstrate that Fair’s statement was “so far contrary to [his] pecuniary or proprietary

interest or so tended to subject [him] to civil or criminal liability, . . . that a reasonable

person in [his] position would not have made the statement unless believing it to be true.”

Here we are concerned with the penal prong of Rule 804(b)(3).

       Initially on this point we are satisfied that Fair did not know that he was making a

statement against his penal interest when he claimed possession of some of the



                                                5
ammunition involved in this case because he did not know that it was unlawful for him to

possess the ammunition. That circumstance, however, does not complete our Rule

804(b)(3) inquiry for, as Mitchell emphasizes, the Rule 804(b)(3) standard is objective so

that Fair’s lack of knowledge that his possession of ammunition was illegal is not

controlling. But use of the objective standard does not help Mitchell because the district

court did not believe that a reasonable person convicted of a felony would realize that he

could not possess ammunition lawfully. We agree with the court’s conclusion in this

regard for, as it indicated, a court at a plea colloquy ordinarily does not warn a felon that

he cannot possess ammunition. Rather, the courts advise convicted defendants that they

should not have weapons. Furthermore, prosecutions of convicted felons for possession

solely of ammunition, such as that here, are unusual. Finally we point out that in at least

some criminal judgments used in district courts the conditions of supervised release recite

that “[t]he defendant shall not possess a firearm, destructive device, or any other

dangerous weapon.” While we do not know what the judgment in Fair’s case set forth we

note that in Mitchell’s case the judgment included this condition without mentioning

ammunition.

       In reaching our conclusion we have not overlooked Mitchell’s argument that “any

assertion that [Fair] was unaware of the consequences of his statement would be

irrelevant in determining whether his statement was indictive of criminal culpability.”

Appellant’s br. at 28. Indeed, we accept that statement as correct. The problem with the



                                              6
    argument, however, is that we are not concerned with the use of the statement in a

    prosecution of Fair as his admission. Instead, we are considering the statement’s use

    under Rule 804(b)(3), which does not deal solely with what the law is but rather with the

    mental state of a “reasonable person.” 1

           For the foregoing reasons the judgment of conviction and sentence entered April 5,

    2005, will be affirmed.




       1
1       In view of our conclusions we do not consider certain other bases that the government
2   has advanced for upholding the rejection of Fair’s statement.

                                                7
