United States v. Jamar Battle ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1042
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UNITED STATES OF AMERICA
v.
JAMAR BATTLE,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2-18-cr-00524)
District Judge: Honorable William J. Martini
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Argued: June 24, 2021
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Before: CHAGARES, PORTER, and ROTH, Circuit Judges
(Opinion filed: August 5, 2021)
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Michael P. Koribanics [ARGUED]
Koribanics & Koribanics
685 Van Houten Avenue
Clifton, NJ 07013
Counsel for Appellant
Mark E. Coyne
Steven G. Sanders [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION*
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CHAGARES, Circuit Judge.
A jury convicted Jamar Battle of knowingly possessing a firearm after having
previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Battle now
argues that he is entitled to a new trial because the Government engaged in prosecutorial
misconduct and failed to prove that he knew he was a convicted felon. For the following
reasons, we will affirm the District Court’s judgment of conviction.
I.
We write solely for the parties and so recite only the facts necessary to our
disposition. Battle was incarcerated from March 2013 through May 2018 because he
committed a felony. On July 4, 2018, he had an argument with his then-girlfriend
Takiyah Todd, who was at a party with a friend. Battle threatened to shoot that friend
during a phone call with Todd that night. After the call, Todd sent Battle a text message
saying “u not bout shoot at my friend car.” App. 272; Supp. App. 14. When Todd’s
friend drove her back to her apartment, Battle approached the car and a gun was fired.
Todd’s neighbor George Molina believed he saw Battle fire the gun at the friend’s car
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
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and then leave in another car owned by a man named Jahid Vauters. The bullets fired
that night struck L.W., a girl who was passing by with her family. Battle texted Todd
shortly after the shooting; in response to her message “You scared me 4real,” he
answered “U tried to play me wit ur friend so thts wat it is. Bet!” App. 272; Supp. App.
14.
Battle was later indicted on one count of knowingly possessing a firearm as a
convicted felon, to which he pleaded not guilty. In pretrial custody, Battle spoke on a
recorded prison line with Vauters. He told Vauters to meet him in person, saying “I don’t
even want to talk . . . over this phone.” App. 411–14; Supp. App. 16–17. Also before
trial, Battle filed a motion in limine to preclude the admission of L.W.’s medical records
and testimony from her father. The District Court entered an order precluding the
Government from introducing L.W.’s medical records, allowing her father to testify
“except that he is prohibited from testifying about the shooting victim’s age,” and
providing that “no party or witness shall make any reference or argument to the shooting
victim’s medical records or age.” App. 19. Prior to jury selection, the court orally
confirmed with the parties “that at the trial there [would] be no mention of the age of the
victim.” App. 42–43.
The Government and its witnesses referred to L.W. as a “child” or “little girl”
multiple times at trial, but Battle did not object to these references. The Government also
entered the recorded phone call between Battle and Vauters into evidence without
objection. The parties stipulated that Battle had been convicted of a crime punishable by
imprisonment for a term exceeding one year. Battle argued at trial that he did not possess
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the gun that injured L.W. He elicited testimony reflecting that he was imprisoned from
2013 through 2018, a time in which others used the same gun to commit various crimes.
In summation, the Government argued that Battle told Vauters that he did not want
to speak on the phone because he knew it was being recorded. Battle objected that this
reference violated his right to remain silent, but the District Court disagreed. During
rebuttal, the Government also asked the jury to consider “what was proven” to support
Battle’s theory of the case, prompting Battle to object that the Government sought to shift
the burden of proof. In response, the District Court instructed the jury that the
Government bore the burden of proof at all times and Battle did not have to prove
anything. The District Court later instructed the jury that it did not need to find that
Battle knew of his status as a felon in order to find him guilty. The jury convicted Battle.
Battle filed a motion for acquittal or a new trial, arguing that the evidence was
insufficient to prove that he possessed a firearm and that the Government’s comments
during rebuttal deprived him of his right to a fair trial. The District Court denied the
motion, holding that the evidence sufficed in light of Battle’s text messages, witness
testimony that Battle was the shooter, and video evidence corroborating that testimony.
The court also held that its curative instructions mitigated any prejudice that would have
resulted from the Government’s comments in rebuttal. Battle filed a second motion for a
new trial following the United States Supreme Court’s decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019), arguing that the Government failed to prove that Battle
knew of his status as a convicted felon. The District Court denied that motion too,
reasoning that no rational jury would conclude that Battle did not know his status since
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he elicited testimony that he had been incarcerated for five years. The court entered a
judgment of conviction, and Battle timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291. As explained below, Battle’s claims are subject to
plain error review. See Fed. R. Crim. P. 52(b). That standard of review requires Battle to
show “(1) an error; (2) that is ‘clear or obvious;’ and (3) that ‘affected [his] substantial
rights.’” United States v. Gonzalez, 905 F.3d 165, 183 (3d Cir. 2018) (quoting United
States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013)). When those requirements are met,
“the court of appeals should exercise its discretion to correct the forfeited error if the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1905
(2018) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)). The
third prong of plain error review typically requires the defendant to show a reasonable
probability that, but for the error, the outcome of the proceeding would have been
different. United States v. Welshans, 892 F.3d 566, 573 (3d Cir. 2018).
III.
We address Battle’s two claims of error in turn, starting with the claim that the
Government did not prove Battle knew he was a felon and ending with the claim of
prosecutorial misconduct. We disagree with both contentions.
A.
The jury convicted Battle of violating 18 U.S.C. § 922(g)(1), which provides that
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it “shall be unlawful for any person . . . who has been convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting
commerce, any firearm.” Section 924(a)(2) of Title 18 sets forth penalties for any person
who “knowingly violates” § 922(g). Contrary to earlier precedents from the Courts of
Appeals, the Supreme Court held in Rehaif that the Government “must show that the
defendant knew he possessed a firearm and also that he knew he had the relevant status
when he possessed it” in order to prove guilt under these statutes. 139 S. Ct. at 2194.
Battle’s trial took place before the Supreme Court decided Rehaif, so the District
Court instructed the jury that it did not need to find that Battle knew of his status to
convict him. Because Battle did not object to that instruction at trial, we review his claim
only for plain error. Greer v. United States, 141 S. Ct. 2090, 2096 (2021). As the
Government concedes, the first two prongs of plain error review are satisfied. The
instruction that the jury could convict Battle without finding that he knew his status was
an actual error, and that error is obvious after Rehaif.
Battle’s claim fails at the third prong of plain error review, though, as he has not
shown that the error affected the outcome of his trial. Battle argues that the Government
did not prove his guilt, as it only offered a stipulation that he was convicted of a felony
without further evidence showing that he knew that fact on July 4, 2018. Battle might
have a point under the logic of our prior decision in United States v. Nasir. We held there
that while such a stipulation establishes the fact of conviction, it does not establish a
defendant’s knowledge of that fact on its own. See 982 F.3d 144, 172–73 (3d Cir. 2020)
(en banc). However, the Supreme Court recently clarified that “[i]f a person is a felon, he
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ordinarily knows he is a felon. . . . Thus, absent a reason to conclude otherwise, a jury
will usually find that a defendant knew he was a felon based on the fact that he was a
felon.” Greer, 141 S. Ct. at 2097 (emphasis in original). As a result, “unless the
defendant first makes a sufficient argument or representation on appeal that he would
have presented evidence at trial that he did not in fact know he was a felon,” a Rehaif
error is not a basis for relief on plain error review. Id. at 2100. Battle makes no such
representation on appeal. On the contrary, he elicited testimony establishing that he was
continuously incarcerated over a five-year period ending just before the shooting on July
4.
The Supreme Court’s decision in Greer furnishes another basis for us to affirm on
this claim of error. While we previously restricted ourselves to the trial record on plain
error review, see Nasir, 982 F.3d at 162, the Supreme Court has since explained that “an
appellate court conducting plain-error review may consider the entire record.” Greer,
141 S. Ct. at 2098 (emphasis in original). So “when an appellate court conducts plain-
error review of a Rehaif instructional error, the court can examine relevant and reliable
information from the entire record — including information contained in a pre-sentence
report.” Id. Battle did not object to his pre-sentence report’s description of his criminal
history, which reflects that his sentence from 2013 to 2018 corresponded to a felony
count for unlawful possession of a handgun. Again, Battle has not provided us with any
reason to doubt that he recognized this fact on July 4, 2018. Accordingly, we cannot
conclude that the Rehaif error here warrants vacating Battle’s conviction.
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B.
Battle next claims that he was prejudiced by the cumulative effect of various
instances of prosecutorial misconduct at trial. We first consider whether there actually
was misconduct, and if so, “whether that misconduct so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Welshans, 892 F.3d at 574
(quotation marks omitted). We view “the prosecutor’s offensive actions in context and in
light of the entire trial, assessing the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the defendant.” Id. (quotation marks
omitted).
Battle’s claim focuses on instances where the Government and its witnesses
referred to the shooting victim, L.W., as a “child” or “little girl.” He argues that these
references prejudiced him and violated the pretrial order forbidding references to L.W.’s
age.1 As the Government concedes, calling L.W. a little girl or child was inadvisable in
hindsight, as it might increase the risk that the jury would render a verdict based on
sympathy rather than evidence. See id. at 576. But that is not clear here, and we doubt
that the references amounted to misconduct. First, it is ambiguous whether the District
Court’s order forbade only direct references to L.W.’s numerical age, or also indirect
allusions to her age range. The Government may reasonably have believed the former, as
1
Battle argues that he raised this objection at trial by challenging a witness’s reference to
a child in a stroller, as he objected that “this is the fourth or fifth time, one of the Court’s
rulings was stating the age of the child who was shot.” App. 92. But the child in the
stroller was not L.W., and Battle concedes that he did not actually object to any allegedly
improper references that occurred beforehand. We consequently review Battle’s
unpreserved claim of cumulative prosecutorial misconduct for plain error.
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Battle did not object to the court’s later clarification “that at the trial there [would] be no
mention of the age of the victim.” App. 42–43. The Government’s use of the phrases
“little girl” and “child” may not have contravened the District Court’s order as a result.
See United States v. Taylor, 284 F.3d 95, 100 (1st Cir. 2002) (declining to find
misconduct where “[t]he scope of the court’s order was ambiguous” and defense counsel
“made no effort to clarify the scope . . . or object contemporaneously”). Second, the
Government’s witnesses usually used these phrases without prompting from the
Government, and the prosecutors typically used them to quote or follow up with the
witnesses, again without objection from Battle. Cf. United States v. Haar, 931 F.2d 1368,
1375 (10th Cir. 1991) (declining to find misconduct where “it appears the witness gave
an unresponsive and inappropriate response to a valid, narrowly tailored question by the
prosecutor”). Even assuming that these references amounted to misconduct, we could not
consider the misconduct severe under the circumstances.
Battle also argues that the Government sought to shift a burden of proof to him
during its rebuttal summation, as it asked the jury to consider “what was proven” to
support Battle’s defense. We agree that this remark was improper. The Government
specifically asked what was “proven” to support Battle, which may have suggested Battle
had to prove something in his defense. See United States v. Balter, 91 F.3d 427, 441 (3d
Cir. 1996). However, the District Court immediately instructed the jury that the
Government bears the burden of proof at all times and Battle did not need to prove
anything. We presume that juries follow these instructions, and that the instructions are
most effective when given immediately after potential misconduct. See Welshans, 892
9
F.3d at 577. Consequently, we have little reason to believe that this comment infected
Battle’s trial with unfairness.
Battle finally argues that the Government improperly referenced his exercise of
the Fifth Amendment right to remain silent when it mentioned that he did not want to talk
with Vauters over the recorded prison line. The Government undoubtedly cannot draw
negative inferences from a defendant’s exercise of the right to remain silent. See Doyle
v. Ohio, 426 U.S. 610 (1976); Hassine v. Zimmerman, 160 F.3d 941, 949 (3d Cir. 1998).
More specifically, the Supreme Court held in Doyle that the Government may not “seek
to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-
examining the defendant about his failure to have told the story after receiving Miranda
warnings at the time of his arrest.” 426 U.S. at 611. The Government’s comment here
does not fall within the scope of Doyle because Battle did not testify, and the
Government pointed not to Battle’s silence, but to his statement to Vauters. See
Anderson v. Charles, 447 U.S. 404, 408 (1980); see also, e.g., United States v. Lopez-
Lopez, 282 F.3d 1, 12 (1st Cir. 2002) (noting that when an accused waives his Miranda
rights “by voluntarily making statements, he may not rely on Doyle to object to the
admission of those statements simply because the statements refer to the act of keeping
silent.”). Rather than invoking a right to remain silent, Battle expressed a desire to speak
with Vauters. He simply asked to do so in person rather than on a recorded line. And
because this was a conversation between friends, it is unclear why the jury would have
drawn a connection between Battle’s statement and the rights he may exercise during
custodial interrogation. Indeed, if Battle was exercising his Miranda rights on the call, it
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is unclear why he did not object to entering his statement into evidence. Under the
circumstances, we agree with the District Court’s conclusion that the Government did not
impermissibly reference Battle’s exercise of the right to remain silent.
Even if we assume that the foregoing actions were improper, the misconduct was
not severe and the trial evidence against Battle was strong. Battle’s girlfriend and her
neighbor both identified him as the shooter, and their accounts were largely consistent
with the other testimony and video evidence presented at trial. Battle’s text messages to
his girlfriend also corroborated his guilt, as he did not deny her suggestions that he shot at
her friend’s car; on the contrary, he acknowledged “thts wat it is.” App. 272; Supp. App.
14. On the whole, Battle’s trial was not “so infected . . . with unfairness as to make the
resulting conviction a denial of due process.” Welshans, 892 F.3d at 574 (quotation
marks omitted). As a result, Battle is not entitled to a new trial.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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