United States v. Sadiq Calloway

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-3421
____________
UNITED STATES OF AMERICA
v.
SADIQ CALLOWAY,
a/k/a Omar Mullins;
a/k/a Marcus Arrington
SADIQ CALLOWAY,
Appellant
____________
On Appeal from United States District Court
for the District of New Jersey
(D. NJ. No. 2-08-cr-00775-001)
District Judge: Faith S. Hochberg
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 13, 2014
Before: FISHER, VAN ANTWERPEN and TASHIMA,* Circuit Judges.
(Filed: July 2, 2014)
____________
OPINION OF THE COURT
____________
*
The Honorable A. Wallace Tashima, Senior Circuit Judge for the Ninth Circuit
Court of Appeals, sitting by designation.
TASHIMA, Circuit Judge.
Appellant Sadiq Calloway (ACalloway@) was convicted of possession of a
detectable amount of heroin with intent to distribute, pursuant to 21 U.S.C. '' 841(a)(1)
& (b)(1)(C) (Count 1); using and carrying a firearm during and in relation to a drug
trafficking crime, and possessing that gun in furtherance of the crime, pursuant to 18
U.S.C. ' 924(c)(1)(A) (Count 2); and possessing a firearm and ammunition after having
been convicted of a felony, pursuant to 18 U.S.C. ' 922(g)(1) (Count 3). The conviction
was based on a firearm and drugs found on Calloway=s person during a May 22, 2008
traffic stop (the AMay 22 stop@).
Calloway filed a pre-trial motion to suppress the evidence obtained during the
May 22 traffic stop, which the District Court denied. After trial, Calloway moved for a
new trial pursuant to Federal Rule of Criminal Procedure 33, contending that he was
incompetent to stand trial and that he received ineffective assistance of counsel. He did
not file a renewed suppression motion or otherwise raise the suppression issue after trial.
The District Court denied the Rule 33 motion.
Calloway now appeals, asserting three arguments: (1) that this Court should order
a new trial because he received ineffective assistance of counsel; (2) that his conviction
on Count 2 must be vacated because the jury instructions on that count were flawed; and
(3) that the District Court erred in denying his suppression motion. For the reasons set
forth below, we will affirm the conviction and the orders of the District Court.
2
I.
Because we write principally for the parties, who are familiar with the factual
context and legal history of this case, we will set forth only those facts that are necessary
to our analysis.
On May 22, 2008, four Newark, New Jersey, police officers patrolling in a high
crime area of Newark heard a loud noise emanating from an approaching Cadillac and
observed the Cadillac moving at a high rate of speed in an oncoming traffic lane while
passing another vehicle. Based on the traffic infraction and the noise emanating from the
vehicle, the officers followed the Cadillac in two unmarked cars. After several blocks,
before the officers activated the siren and lights on the lead car, the Cadillac pulled over
and the driver exited. The officers, who were dressed in plainclothes and wore their
badges around their necks, approached the vehicle. Officer Horacio Lorenzo (ALorenzo@)
approached the driver, who was by then approximately ten steps away from the car, while
the other three officers approached the vehicle, in which Calloway and two other
passengers were seated. Lieutenant Eric Ingold (AIngold@) ordered the passengers to
show their hands. According to Ingold, two passengers obeyed, but Calloway did not.
Ingold then ordered the passengers to place their hands on the ceiling of the car.
According to Ingold, again, the two passengers complied, but Calloway did not. At that
time, Ingold could not see Calloway=s hands, which appeared to be around his waist area.
Ingold testified that Calloway=s behavior indicated a safety issue. He therefore
alerted the other officers to Calloway=s behavior, saying Ahe=s moving B he=s moving, he=s
moving, he=s not showing his hands. He=s not showing his hands.@ Ingold and the other
3
officers then drew their weapons and Lorenzo approached the vehicle where he, too,
observed that Calloway had not placed his hand on the ceiling of the car. At that time,
Calloway had his hands partially up, Alike half up and half down,@ and Lorenzo noticed
that he was Alooking all around, as if B as if you were looking for a way out.@ Lorenzo
reached into the car and touched Calloway=s waistband, where he felt the handle of a gun.
He took the gun, handcuffed Calloway, and removed him from the vehicle. In the search
that followed, officers found $1,350 and twenty decks of heroin in Calloway=s pockets.
Before trial, Calloway moved to suppress the gun and the heroin recovered during
the search on the ground that the search of his person during the May 22 stop was illegal
under the Fourth Amendment. The District Court denied the motion. Calloway was then
convicted by a jury on all counts. After trial, he moved for a new trial under Rule 33.
The District Court denied the motion. Calloway timely appealed.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. ' 3231. This Court has
jurisdiction pursuant to 28 U.S.C. ' 1291.
III.
A.
We first consider Calloway=s ineffective assistance of counsel contention. In order
to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984), a defendant must show that Acounsel=s performance was so deficient that it
fell below an objective standard of reasonableness under prevailing professional norms@
and that the deficient performance prejudiced the defense. Buehl v. Vaughn, 166 F.3d
4
163, 169 (3d Cir. 1999). On the reasonableness prong, the defendant must show that
counsel=s conduct fell outside Athe wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action >might be considered sound trial strategy.=@ Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). On the prejudice prong, A[t]he
defendant must show that there is a reasonable probability that, but for counsel=s
unprofessional errors, the result of the proceeding would have been different.@ Id. at 694.
We do not address the merits of Calloway=s claim, however, because we conclude
that the claim should be brought in a collateral attack on the conviction pursuant to 28
U.S.C. ' 2255. AIneffective assistance of counsel claims are not generally entertained on
direct appeal.@ United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). Rather,
A[t]his court has held repeatedly, the proper avenue for pursuing such claims is through a
collateral proceeding in which the factual basis for the claim may be developed.@ Id.
(internal quotation marks omitted).
A narrow exception to this rule exists A[w]here the record is sufficient to allow
determination of ineffective assistance of counsel, [and] an evidentiary hearing to
develop the facts is not needed.@ Id. We do not, however, find the narrow exception
applicable in this case. Calloway asserts several ways in which his trial counsel was
purportedly inadequate, all challenging counsel=s strategic decisions at trial.
Based on the record before us, we Ahave no way of knowing whether [these] . . .
action[s] by counsel had a sound strategic motive or [were] taken because the counsel=s
alternatives were even worse.@ Massaro v. United States, 538 U.S. 500, 505 (2003).
5
Because there has been no hearing at which Calloway=s trial counsel could have
Aexplained the reasons for his actions,@ United States v. Cocivera, 104 F.3d 566, 571 (3d
Cir. 1996), the record only Areflect[s] the action taken by counsel but not the reasons for
it,@ Massaro, 538 U.S. at 505. We therefore conclude that the record is not sufficiently
developed to allow us to evaluate Calloway=s ineffective assistance of counsel claim on
direct appeal. See id.; Gov=t of V.I. v. George, 741 F.2d 643, 646 (3d Cir. 1984)
(declining to address an ineffective assistance of counsel claim when the defendant made
various allegations about facts outside the record); cf. Cocivera, 104 F.3d at 571
(considering an ineffective assistance of counsel claim on direct appeal when the district
court had held a hearing on the issue part-way through trial, at which the attorney
Aexplained the reasons for his actions and confirmed his preparedness and willingness to
proceed@).
We will, therefore, affirm the District Court=s denial of Calloway=s motion for a
new trial based on ineffective assistance of trial counsel, without prejudice to his right to
initiate a collateral proceeding for the resolution of this claim on the merits.
B.
We next consider Calloway=s argument that his conviction on Count 2 should be
vacated because the District Court=s jury instructions were flawed. We will not, however,
address the merits of Calloway=s argument because we conclude that his challenge to the
jury instructions is barred. ABecause [Calloway] made a joint request in favor of the very
instructions he now challenges, he waived his right to raise these instructional issues on
appeal under the invited error doctrine.@ United States v. Ozcelik, 527 F.3d 88, 97 n.6 (3d
6
Cir. 2008). We are unpersuaded by Calloway=s contention that he should not be barred
from challenging the instructions because he merely agreed to the Government=s
proposed instructions. Contrary to Calloway=s assertion, he did not merely agree to the
Government=s instructions, but submitted a joint request with the Government proposing
the exact instructions that the District Court used at trial. He thus cannot escape the
invited error doctrine by arguing that he merely acquiesced to instructions proposed by
the Government or the court. We will, therefore, deny Calloway=s challenge to Count 2
based on purported errors in the jury instructions.
C.
Finally, we turn to Calloway=s appeal of the District Court=s denial of his motion to
suppress the firearm and drugs that were found during the May 22 stop. AWe review the
district court=s denial of the motion to suppress 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) (internal quotation marks and
alterations omitted).
1.
As a preliminary matter, the Government contends that the arguments raised in
this appeal are waived because Calloway relies on different evidence than the evidence
the District Court considered in ruling on the suppression motion. A[T]o preserve an
argument and avoid waiver, the argument presented in the Court of Appeals must depend
on both the same legal rule and the same facts as the argument presented in the District
Court.@ United States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013).
7
The District Court held a hearing on Calloway=s suppression motion and, based on
the evidence adduced at that hearing, denied the motion. Calloway did not renew his
suppression motion before the District Court after trial, but now relies on evidence
adduced at trial in support of his argument that the gun and heroin should have been
suppressed. For this reason, the Government contends that Calloway=s argument on
appeal does not rely on the Asame facts as the argument presented in the District Court,@
id., and is thus waived.
In this context, some circuits have held that the appellate court may consider the
arguments on appeal but its review is limited to the record that was before the lower court
when it ruled on the suppression motion and it may not consider evidence adduced at
trial. See, e.g., United States v. Bass, 661 F.3d 1299, 1303-04 (10th Cir. 2011); United
States v. Hicks, 978 F.2d 722, 724-25 (D.C. Cir. 1992). We do not decide, however,
whether Calloway may appeal a suppression motion based on new evidence adduced at
trial because, as discussed below, Calloway=s argument that the evidence derived from
the May 22 stop should be suppressed fails even if we consider the new evidence.
2.
Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may Astop and frisk@ an
individual if two circumstances are satisfied: First, the investigatory stop must be lawful;
and second, the officer must have a reasonable suspicion that the person apprehended is
armed and dangerous. See Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).
The first requirement is not at issue in this case. In the traffic-stop setting, the first
requirement is satisfied Awhenever it is lawful for police to detain an automobile and its
8
occupants pending inquiry into a vehicular violation.@ Id. at 327. Because the officers
here approached the Cadillac in which Calloway was a passenger after observing it drive
at a high rate of speed in the oncoming traffic lane, the stop was lawful. See United
States v. Moorefield, 111 F.3d 10, 12 (3rd Cir. 1997) (AIt is well-established that a traffic
stop is lawful under the Fourth Amendment where a police officer observes a violation of
the state traffic regulations.@ (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)).
Calloway contends that, even if the stop was lawful, Lorenzo did not have a
reasonable suspicion that Calloway was armed and dangerous; therefore, the second
Terry requirement is not satisfied. We disagree. A[A] pat-down for weapons can occur
only where the officer is >able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion.=@ Id.
at 13 (quoting Terry, 392 U.S. at 21). AThe officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in danger.@ Terry,
392 U.S. at 27. We conclude that the officers here have pointed to specific and
articulable facts showing a reasonable suspicion that Calloway was armed and dangerous.
The traffic stop occurred in a high crime area where an officer had been shot the
previous year. While not enough to create suspicion in itself, that a stop occurred in an
unsafe or high crime area can, along with other factors, support the reasonable inference
that an individual is armed and dangerous. See Illinois v. Wardlow, 528 U.S. 119, 124
(2000) (noting that the fact that a stop occurred in a high crime area is Aamong the
relevant contextual circumstances in a Terry analysis@).
9
Under this Court=s precedent, the circumstances here are sufficient to justify a
Terry frisk. We confronted a similar set of circumstances in Moorefield and concluded
that the frisk of a passenger during a traffic stop was permissible under Terry. See 111
F.3d at 14. There, the defendant made Afurtive hand movements and refus[ed] to obey
the officers= orders.@ Id. In response to instructions to the defendant to remain in the car
with his hands in view, he Aattempted to exit the vehicle and then raised and lowered his
hands several times . . . and appeared to shove something down toward his waist.@ Id.
The frisking officer testified that this Abehavior was consistent with the behavior of a
person trying to conceal something.@ Id.
Although Calloway did not attempt to exit the vehicle, his other actions, like those
of the defendant in Moorefield, Aembodied the kind of specific, articulable facts that
Terry contemplates and, therefore, warranted a pat-down search for weapons.@ Id. As in
Moorefield, Calloway repeatedly disobeyed an order to show his hands and officers
observed him with his hands near his waist and then his hands partially in the air. Also as
in Moorefield, Ingold testified that this behavior creates a threat to officers effectuating a
traffic stop. Id.; see also Johnson, 555 U.S. at 330 (noting that Atraffic stops are
especially fraught with danger to police officers [and] [t]he risk of harm to both the
police and the occupants of the stopped vehicle is minimized . . . if the officers routinely
exercise unquestioned command of the situation@ (internal quotation marks, citations, and
alterations omitted)). In addition to these circumstances, the officers observed that
Calloway was looking around in a way that indicated he might attempt to escape and the
stop occurred in a high-crime area. See Moorefield, 111 F.3d at 14.
10
While Lorenzo, who conducted the frisk, did not observe all of the suspicious
behavior personally, the other officers communicated Calloway=s general behavior to
him; Lorenzo could therefore rely on the observations of his fellow officers, as well as on
his own observations, in assessing the risk that Calloway was armed and dangerous. See
United States v. Whitfield, 634 F.3d 741, 745-46 (3d Cir. 2010) (holding that the
reasonableness of a Terry stop and frisk may be measured by the collective knowledge of
the officers at the scene, who Awork[] together as a unified and tight-knit team@).
Accordingly, we conclude that the totality of the circumstances justified Lorenzo=s frisk
of Calloway. See Moorefield, 111 F.3d at 14; Whitfield, 634 F.3d at 744-46 (concluding
that a reasonable suspicion of criminal activity existed when officers making a stop in a
high crime area observed that the defendant refused to comply with orders and made a
Afurtive gesture@ in an Aapparent effort to protect something@). We will, therefore, affirm
the District Court=s denial of Calloway=s motion to suppress the evidence found as a
result of the May 22 stop.
IV.
For the foregoing reasons, we will affirm Calloway=s conviction under Count 2
and affirm the District Court=s orders denying Calloway=s motion for a new trial and his
motion to suppress.
11