United States v. China ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-30-2005
USA v. China
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4852
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-4852
UNITED STATES OF AMERICA
v.
FRANK CHINA,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Crim. No.: 02-cr-00656-3
District Judge: The Honorable Cynthia M. Rufe
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 28, 2005
Before: NYGAARD, SMITH, and FISHER, Circuit Judges
(Filed: June 30, 2005)
OPINION
SMITH, Circuit Judge.
Frank China was convicted by a jury of violating federal narcotics and robbery
statutes. He was a Pennsylvania State Trooper at the time of the offenses. China appeals
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the District Court’s denial of his Rule 29 motion for a judgment of acquittal. He asserts
that the government’s case was based on the uncorroborated testimony of an alleged
accomplice, and was thus insufficient to sustain his conviction. He also asserts that his
counsel was ineffective, thus depriving him of his rights to counsel and to a fair trial. We
have jurisdiction under 28 U.S.C. § 1291. We will affirm the denial of China’s Rule 29
motion. We will deny his claim of ineffective assistance of counsel without prejudice.
We will remand the case for resentencing in accordance with United States v. Booker, 543
U.S. __, 125 S. Ct. 738 (2005).
Sufficiency of the Evidence
Our review on an appeal that attacks the sufficiency of the evidence is “particularly
deferential.” United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002). We view the
evidence in a light most favorable to the government and sustain the jury’s verdict if any
rational juror could have found all of the elements of the crime beyond a reasonable
doubt. Id.
China contends that the largely uncorroborated testimony of alleged accomplice
Terrence Perkins was inherently suspect because Perkins is an incorrigible criminal
offender. Moreover, China continues, portions of Perkins’ testimony were contradicted
by other government witnesses, and thus there was no basis for a legitimate conviction.
This contention is meritless. The first contradiction noted by China concerned Perkins’
testimony about an incident in which various dramatis personae had to wait for assistance
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when keys were locked in a car. This is an inconsequential detail about which
contradictory testimony should trouble no one.
China’s second contention colors as “incredible” Perkins’ testimony of a scheme in
which China “arrested” Perkins, his alleged partner-in-crime, as a cover in a sham drug
bust in which they stole a kilo of cocaine from Troy Brinkley, with whom Perkins was
riding in a car. China denied Perkins’ rendition, which had China driving a handcuffed
Perkins through the State Trooper barracks, as being the “most stupidest thing to do if I
had done that.” China argues that Perkins’ story makes no sense under the government’s
theory that China and Perkins were in cahoots.
Evidently, China does not watch many crime dramas. The sight of the gang mole
or the confidential informant who makes the controlled narcotics buy being subject to
fake arrest, and his share of roughing up, at the time of the bust should be familiar to
anyone familiar with the genre. The jury was entitled to believe Perkins’ version of the
trope and disbelieve China’s competing conspiracy theory. In short, China claimed that
he became unwittingly entangled in the crimes when he attempted to clear his name in the
community by shaking down Dionne Steave in a mall parking lot as a favor to Perkins.
Perkins, in China’s sordid screenplay, had besmirched China’s good name by accusing
him of stealing the kilo of cocaine from Perkins and Brinkley.
We have no difficulty in affirming the District Court’s denial of China’s Rule 29
motion. Perkins’ testimony supplied only the motivation for China’s admitted
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lawlessness. A rational juror could have believed Perkins’ version of the events in
finding China guilty of the crimes charged beyond a reasonable doubt.
Ineffective Assistance of Counsel
China contends that his trial counsel’s failure to call a handwriting expert to
bolster a portion of his defense, which hinged on identifying who had filled out certain
portions of a police form, effectively denied him assistance of counsel. In most cases,
whether this claim has any merit is best addressed in a collateral action rather than on
direct appeal, and we do not think this case merits deviating from this Court’s normal
practice. See United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). The trial
record below was focused on enabling the jury to determine whether China was guilty of
the charges against him, not for testing the soundness of his counsel’s strategy or
counsel’s skill in implementing it. See Massaro v. United States, 538 U.S. 500, 505
(2003). Here, for instance, the record does not reveal whether his trial counsel’s
supposed failure was a strategic move or a blundering omission. This information is
basic to China’s claim. Therefore, the best course is to deny China’s claim without
prejudice. He may, if he chooses, develop the theory on collateral attack pursuant to 28
U.S.C. § 2255.
China’s Sentence
In response to this Court’s March 3, 2005 “Booker order,” China argues that
judicial fact finding and the concomitant increases in his sentence were precluded under
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Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). On Blakely’s heels, the
Supreme Court decided United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
There, the Supreme Court determined that the Guidelines were only advisory, not
mandatory.
Having determined that the sentencing issues China raises are best determined by
the District Court in the first instance, we will vacate the sentence and remand for
resentencing in accordance with Booker.
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