United States v. Tommie Telfair

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 11-3456
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UNITED STATES OF AMERICA
v.
TOMMIE TELFAIR a/k/a “Hassan Gatling”,
Appellant
______
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2:08-cr-00757-001)
District Judge: Honorable Dennis M. Cavanaugh
______
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 11, 2012
Before: GREENAWAY, JR., and NYGAARD and VAN ANTWERPEN, Circuit Judges
(Filed: December 12, 2012)
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OPINION OF THE COURT
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VAN ANTWERPEN, Circuit Judge.
I.
Tommie Telfair a/k/a “Hassan Gatling” (“Telfair”) appeals from a judgment of
conviction for violations of 21 U.S.C. § 846, 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18
U.S.C. § 2. His court-appointed counsel has filed a motion to withdraw and a brief in
support of his motion (“Anders brief”) pursuant to Anders v. California, 386 U.S. 738(1967) and Local Appellate Rule (“L.A.R.”) 109.2(a). Though counsel‟s Anders brief
should have been more thorough, our independent review of the record reveals no
nonfrivolous issues on appeal. Accordingly, we will grant counsel‟s motion to withdraw
and affirm the judgment of the District Court.
II.1
On September 5, 2006, the Newark Police Department received a call that shots
had been fired at 185 Parker Street, Newark, New Jersey. Jennifer Filpo (“Filpo”) and
Catherine Sanchez (“Sanchez”), two of the occupants of 185 Parker Street, were at the
residence when police arrived, and informed the police that they had called 911 because
someone shot at the rear of the residence. Filpo and Sanchez allowed the police into the
residence. The police proceeded to the kitchen area in the rear of the premises, where
they found bullet holes in the door between the kitchen and the backyard, and damage
from gunfire in the kitchen. Detectives from the robbery unit arrived and found shell
casings in the backyard near the kitchen door. Detective Pablo Gonzalez noticed bullet
holes on the refrigerator, and opened it in search of evidence of the shooting. Inside the
refrigerator, he saw a projectile and, in a separate drawer, two clear containers holding
what appeared to be heroin. The detective seized the containers and performed a field
test on the substance. The substance tested positive for heroin.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
Detective Luigi Corino noticed a bullet hole in the kitchen floor, and traced the
trajectory to locate the projectile. He concluded the bullet traveled into the basement.
After asking Filpo and Sanchez how to get into the basement, the detective followed the
bullet‟s trajectory and discovered that it had traveled into a room that was behind a
locked door. After Filpo and Sanchez indicated they did not have a key to that door,
Corino forced it open. Behind the door, Corino discovered a heroin mill.2 Filpo and
Sanchez were arrested and taken into custody. In total, 130 grams of heroin were found
at 185 Parker Street.
The Drug Enforcement Administration (“DEA”) was notified that a heroin mill
had been found at 185 Parker Street. DEA agents interviewed Filpo and Sanchez, who
both identified Telfair as the owner or controller of the heroin mill. The DEA obtained a
warrant to search 185 Parker Street for drug evidence and for evidence linking Telfair to
the premises. When DEA agents executed the warrant, they collected the drug evidence
from the basement and seized documentary evidence connecting Telfair to the location.3
2
A heroin mill is a processing center in which bulk quantities of heroin are mixed with
other materials to add volume, and are then packaged into individual doses for street-
level distribution. The heroin mill at 185 Parker Street contained a long table with a scale
on it, a blender, stamps and inkpads used to place heroin “brands” on envelopes and bags,
boxes of new and used glassine envelopes used to package heroin, and a computer.
3
This evidence included: rent receipts for 185 Parker Street in the name of “Tommy
Hassan” (another of Telfair‟s aliases); a receipt for “Hass” (another alias) for rims for a
1998 Lincoln Navigator; a letter from DirecTV addressed to Hass Gatling at 185 Parker
Street, Newark, New Jersey; three letters from Meg Radio to Hass Gatling at 185 Parker
Street; a letter from Chase to Hass Gatling at 185 Parker Street; a letter from Cablevision
to Hass Gatling at 185 Parker Street; a bill from Cablevision to Hass Gatling at 185
Parker Street; and a bill from Gold Touch Carpet and Flooring to Hass at 185 Parker
Street. The owner and landlord of 185 Parker Street also testified that he had been
renting the premises to Telfair at the time the heroin was found, that Telfair had made
3
Shortly after the shooting, the DEA attempted to find Telfair at the residence of
his girlfriend, Catrina Gatling (“Gatling”), but she denied knowing Telfair. The DEA
then obtained an arrest warrant for Telfair. On January 23, 2007, Telfair was arrested
outside Gatling‟s residence. After he was Mirandized, Telfair admitted he was a heroin
dealer, and told the DEA agents that he had been leaving to meet his heroin supplier,
Carlos Alberto Antigua (“Carlito”), when he was arrested. Carlito repeatedly called
Telfair during the interview.
Carlito testified at trial that he began supplying heroin to Telfair in late August
2006. At the height of the relationship, Telfair was purchasing 100 bricks of heroin every
three days. This continued for roughly four months. During this period, Carlito sold
between four and five kilograms of heroin to Telfair.
An indictment was returned against Telfair on March 29, 2007, charging him with
one count of conspiracy to distribute and to possess with intent to distribute 100 grams or
more of heroin.4 A superseding indictment was filed on May 7, 2007, charging Telfair
with conspiracy to distribute one kilogram or more of heroin.5 On April 7, 2008, the
District Court held a hearing regarding several motions filed by Telfair‟s then-counsel,
James Kimball, including a motion to suppress the evidence seized from 185 Parker
Street. The District Court denied the motions and issued a written order, without an
several renovations to the property, and that he had never informed the landlord of an
intent to leave or to sublet the premises to Filpo and Sanchez.
4
21 U.S.C. §§ 841(a), 841(b)(1)(B)(I), and 846.
5
21 U.S.C. §§ 841(a), 841(b)(1)(A)(I), and 846.
4
accompanying opinion, on May 20, 2008. On October 7, 2008, this indictment was
dismissed without prejudice due to violations of the Speedy Trial Act, 18 U.S.C. § 3161.
On October 8, 2008, a second indictment was returned against Telfair, charging
him with one count of conspiracy to distribute and possess with intent to distribute one
kilogram or more of heroin,6 and one count of distribution and possession with intent to
distribute 100 grams or more of heroin.7 Though represented by counsel, Telfair filed a
number of pro se motions, including a motion to suppress the evidence seized from 185
Parker Street, which were nearly identical to the motions filed under the prior indictment.
The District Court denied these motions in a December 10, 2008 opinion, noting it had
denied “substantially similar” motions in its May 20, 2008 Order. The court found the
officers‟ warrantless entry of 185 Parker Street justified by the consent of Filpo and
Sanchez. The court also concluded the search was justified by the plain view exception
to the warrant requirement.
In March 2009, roughly one year before trial, Mr. Kimball was replaced by
Michael Pedicini as counsel for Telfair. Telfair demanded that Mr. Pedicini file new
motions on many of the same subjects and based on the same arguments as the earlier
motions. Mr. Pedicini declined, saying “my position with regard to motions is, if they‟ve
been filed and argued and denied, you can‟t refile them until you get the answer you
want.” (Pretrial Transcript (“P.Tr.”) at 14).
6
21 U.S.C. §§ 841(a), 841(b)(1)(A)(I), and 846.
7
21 U.S.C. §§ 841(a), 841(b)(1)(B), and 18 U.S.C. § 25
After a jury trial, during which he was represented by Mr. Pedicini, Telfair was
convicted on both counts of the indictment. At the sentencing hearing, the District Court
calculated Telfair‟s Guidelines range at 360 months‟ to life imprisonment, but determined
that this range was overly harsh, and so imposed a sentence of 240 months‟
imprisonment. Telfair filed a timely notice of appeal, and John Azzarello, who
represented Telfair at sentencing and is representing him on appeal, filed a motion to
withdraw as defense counsel and an accompanying Anders brief.
III.
In Anders v. California, the Supreme Court of the United States described the
procedure by which court-appointed appellate counsel may withdraw from representing a
criminal defendant without offending the defendant‟s Sixth or Fourteenth Amendment
right to counsel.8 386 U.S. 738, 744 (1967). This Court has adopted Local Appellate
Rule (“L.A.R.”) 109.2(a), which requires the same process as the one described in
Anders. United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). When we receive a
motion to withdraw and an accompanying Anders brief, our inquiry is twofold. United
States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). We first determine “whether counsel
adequately fulfilled the rule‟s requirements.” Id. We then conduct “an independent
review of the record” to determine whether any nonfrivolous issues exist. Id.8
The Court stated that “if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw. That request must, however, be accompanied by a brief referring to anything
in the record that might arguably support the appeal.” Anders v. California, 386 U.S.
738, 744 (1967).
6
To fulfill the first prong, counsel‟s brief must “satisfy the court that counsel has
thoroughly examined the record in search of appealable issues” and “explain why the
issues are frivolous.” Id. Counsel “need not raise and reject every possible claim,” so
long as she demonstrates she has made a “conscientious examination” of the record. Id.An issue is frivolous “where none of the legal points are arguable on their merits.” Simon
v. Gov’t of Virgin Islands., 679 F.3d 109, 114 (3d Cir. 2012).
A finding that an Anders brief is inadequate does not preclude us from affirming
the conviction without appointing new counsel; if we determine, after our independent
review of the record, that there are no nonfrivolous issues, we may affirm the judgment.
United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009). When conducting an
independent review of the record, the court need not comb the record in search of
appealable issues. Youla, 241 F.3d at 301 (citing United States v. Wagner, 103 F.3d 551,
553 (7th Cir. 1996)). If the Anders brief is adequate, our review will be guided by that
brief. Id. If the Anders brief is inadequate, we may rely on the appellant‟s pro se brief to
guide our review. Id. The determination of whether an issue is frivolous is informed by
the standard of review to which that issue is normally subject. See United States v.
Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002).
A. Adequacy of Counsel’s Anders Brief
In our view, Telfair‟s appellate counsel, Mr. Azzarello, has not fully demonstrated
that he has “thoroughly examined the record in search of appealable issues.” Youla, 241
F.3d at 300. In his Anders brief, Mr. Azzarello discussed five issues, and concluded that
appeal on each of those issues would be frivolous. Three of those issues were raised by
7
Telfair in his pro se filings: alleged ineffective assistance of counsel, challenges to the
sufficiency of the indictment, and allegations of discovery violations. Mr. Azzarello also
raised two issues which Telfair did not discuss in his pro se filings: the District Court‟s
denial of motions for a mistrial, and the propriety of the sentencing proceedings.
Though Mr. Azzarello raised issues not discussed in any of Telfair‟s numerous
and lengthy pro se filings, he failed to discuss one issue that was consistently raised by
Telfair, at both the trial and appellate levels: the District Court‟s denial of Telfair‟s
motion to suppress. Defense counsel‟s failure to address issues raised by her client in his
pro se filings is evidence that defense counsel‟s Anders brief is inadequate. Youla, 241
F.3d at 301; Marvin, 211 F.3d at 781–82.
In his pro se filings, Telfair alleged the evidence from 185 Parker Street was
discovered as a result of a warrantless, and therefore unreasonable, search. The dockets
for this case and for the case under the first indictment show Telfair vigorously litigated
this issue. In the proceedings against Telfair, the Government twice filed briefs
responding to a motion to suppress the evidence found at 185 Parker Street, and the
District Court twice issued orders addressing this issue. Telfair‟s trial counsel, Mr.
Pedicini, explicitly noted that he was not filing a new motion to suppress because the
court had already ruled on the matter and because Telfair had preserved his right to
appeal. The frequency of the litigation below regarding the search at 185 Parker Street
and Telfair‟s continual mention of it in his filings should have alerted counsel of the need
to address the issue.
8
In addition, the importance of the evidence seized from 185 Parker Street to the
Government‟s case, and the circumstances of its discovery, should have alerted Mr.
Azzarello that he must address the issue. The heroin found at 185 Parker Street was the
source of the investigation of Telfair; if this evidence is tainted, it is not “fruit of the
poisonous tree,” but rather is the root of the poisonous tree. This evidence provided the
foundation for the investigation and prosecution of Telfair. Without that foundation, the
case collapses. Furthermore, because this quintessential evidence was discovered during
a warrantless search--which is per se unreasonable, subject to a few, narrow exceptions,
Katz v. United States, 389 U.S. 347, 356 (1967)--Mr. Azzarello was obligated to discuss
the issue in his brief and explain why it would be frivolous to seek a reversal of the
District Court‟s order.
Given the foregoing, Mr. Azzarello‟s Anders brief does not satisfy this Court that
he has conducted a thorough examination of the record in search of appealable issues.
Finding that his Anders brief is inadequate, we proceed to step two of the analysis, and
conduct an independent review of the record to determine whether any nonfrivolous
issues exist. Coleman, 575 F.3d at 321; Youla, 241 F.3d at 301.
B. Independent Review of the Record
This Court has held that if an Anders brief is insufficient, we may still grant
counsel‟s motion to withdraw and affirm the judgment if independent review of the
record demonstrates that appeal would be frivolous. Coleman, 575 F.3d at 321–22.
Recognizing that Mr. Azzarello failed to discuss the Fourth Amendment issue, the
Government argues the Fourth Amendment claim is frivolous because the search of the
9
refrigerator was justified by the exigent circumstances and plain view exceptions.9 We
first address the lawfulness of the warrantless entry into 185 Parker Street before
discussing the permissibility of the warrantless search of the refrigerator inside the
kitchen of 185 Parker Street.
1. The Initial Entry into 185 Parker Street
In its December 10, 2008 Opinion, the District Court stated the officers‟
warrantless entry into 185 Parker Street was justified by the consent of Filpo and Sanchez
and by exigent circumstances. We review a district court‟s determination of consent for
clear error. United States v. Kim, 27 F.3d 947, 954–55 (3d Cir. 1994).
The Government “has the burden of proving that the consent was, in fact, freely
and voluntarily given.” Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (citations
and internal quotation marks omitted). To assess the voluntariness of consent, we use a
totality of the circumstances analysis. Kim, 27 F.3d at 955.
In this instance, the District Court did not err in finding Filpo and Sanchez
consented to the officers‟ entry of the premises. Filpo and Sanchez, two of the occupants
of the premises, called 911 because someone shot at the back of the residence while they
9
The Government also claims Telfair waived his ability to seek appellate review of the
suppression issue because his trial counsel, Mr. Pedicini, did not file a motion to
suppress. Citing United States v. Rose, 538 F.3d 175 (3d Cir. 2008), in which this Court
held that under Federal Rule of Criminal Procedure 12(e), a motion to suppress not
timely filed may not be appealed, the Government argues Telfair cannot appeal this issue.
However, prior to Mr. Pedicini‟s involvement, Telfair filed a motion to suppress the
evidence seized from 185 Parker Street, arguing the evidence was the fruit of a
warrantless search not justified by exigent circumstances. The District Court ruled on
this motion in its December 10, 2008 Order and Opinion. Therefore, the issue was
preserved for appeal.
10
were inside of it. They advised the officers that they were the ones who had called 911
and they directed the police to the rear of the house and kitchen. In addition, the
occupants assisted the officers in their investigation by showing them through the house.
There is no evidence in the record to contradict a finding of voluntary consent.
2. The search of the Refrigerator10
The District Court found that the detective‟s warrantless search of the refrigerator
was justified by exigent circumstances and the plain view exception.11 It is well-
established that “searches and seizures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). Although “the Fourth
Amendment has drawn a firm line at the entrance to the house,” Kirk v. Louisiana, 536
U.S. 635, 638 (2002) (citation and internal quotation omitted), the “ultimate touchstone
of the Fourth Amendment is „reasonableness.‟” Brigham City v. Stuart, 547 U.S. 398,
403 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13 (1999) (per curiam)).
10
None of the pretrial motions, from either Mr. Kimball or Telfair, focused on the
discovery of the heroin mill in the basement of 185 Parker Street. Any mention of this
evidence is also omitted from the appellate filings of Telfair, Mr. Azzarello and the
Government. We will not address the issue in depth, but we do note that the search was
justified by exigent circumstances. Officers responding to the scene of a violent crime
may make a warrantless search for the perpetrator or for victims. Mincey v. Arizona, 437
U.S. 385, 392 (1978). Detective Corino was following the trajectory of a bullet out of
concern that a victim may have been hit by that bullet, and in so doing, discovered the
heroin mill.
11
Although the District Court held the warrantless entry of 185 Parker Street was
justified by consent, it did not so hold regarding the search within the premises. We
cannot make a determination of consent on appeal. See Flippo v. West Virginia, 528 U.S.
11, 15 (1999) (per curiam) (declining to make finding of consent when trial court did not
do so); Thompson v. Louisiana, 469 U.S. 17, 23 (1984) (per curiam) (“Because the issue
of consent is ordinarily a factual issue unsuitable for our consideration in the first
instance, we express no opinion as to whether the search at issue here might be justified
as consensual.”).
11
Therefore, once the home‟s threshold is lawfully crossed, police may seize evidence in
plain view. Mincey v. Arizona, 437 U.S. 385, 393 (1978).
a. Elements of the Plain View Exception
In addition to the fact that the item must be in plain view, there are three
requirements for a valid plain view seizure. United States v. Menon, 24 F.3d 550, 559
(3d Cir. 1994) (citing Horton v. California, 496 U.S. 128, 136 (1990)). First, the officer
must lawfully be in the place “from which the evidence could be plainly viewed.”
Horton, 496 U.S. at 136. Second, the officer must have a “lawful right of access to the
object itself,” meaning the police cannot commit illegal trespass to access the item in
plain view. Id. at 137; see also United States v. Davis, 690 F.3d 226, 234 (4th Cir. 2012)
(“[T]he lawful access requirement is intended to clarify that police may not enter a
premises to make a warrantless seizure, even if they could otherwise see (from a lawful
vantage point) that there was contraband in sight.”) Third, the incriminating nature of the
item must be “immediately apparent.” Horton, 496 U.S. at 136. (citation omitted).
b. Lawful Presence and Access
As established above, the officers were lawfully within the kitchen of 185 Parker
Street due to the consent of Filpo and Sanchez. Because the officers were lawfully within
the kitchen, their access to the refrigerator did not require illegal trespass of Telfair‟s
property. The bullet-riddled refrigerator was within the plain view of the officers as they
stood within the kitchen. The only issue is whether the bullet marks on the refrigerator
made the incriminating nature of the refrigerator “immediately apparent” under the third
prong of the plain view doctrine.
12
c. The “Immediately Apparent” Analysis
To satisfy the “immediately apparent” prong, the police must have probable cause
to believe the object in plain view is contraband. Minnesota v. Dickerson, 508 U.S. 366,
375 (1993) (citations omitted). The plain view exception is not limited to contraband, but
rather applies to all incriminating evidence. See Menon, 24 F.3d at 559 (“The Supreme
Court has allowed officers to seize incriminating evidence in plain view during the course
of a lawful search . . . .”).12 Courts use a totality of the circumstances analysis to assess
whether probable cause existed. Maryland v. Pringle, 540 U.S. 366, 371 (2003).
Though the probable cause standard defies easy definition, Illinois v. Gates, 462
U.S. 213, 231–32 (1983), the totality of the circumstances indicate the police had
probable cause to believe that (1) the refrigerator itself was evidence of the shooting and
(2) the refrigerator may contain further evidence, such as projectiles, of the shooting.
The police had been called to respond to a shooting at the rear and kitchen area of 185
Parker Street. In investigating, they found bullet holes in the refrigerator in the kitchen.
Given the crime they were investigating (a shooting) and the location of the crime (the
kitchen area), the police had probable cause to believe the bullet markings on the
refrigerator were ballistic evidence of the crime, and that the interior refrigerator would
12
This Court is not alone in applying the plain view doctrine to all evidence in plain
view. See United States v. Davis, 690 F.3d 226, 237 (4th Cir. 2012) (“[A]n item need not
itself be contraband before it has an „incriminating nature,‟ but instead, an item need only
be evidence of a crime.”); United States v. Smith, 459 F.3d 1276, 1293 (11th Cir. 2006)
(“[T]he scope of the „plain view‟ doctrine extends to the seizure of items that, while not
contraband themselves, may be used as evidence against a defendant.”).
13
contain further evidence, in the form of projectiles or more bullet marks. Therefore, the
police could lawfully seize the refrigerator without a warrant.
d. Plain View Search
The Supreme Court has suggested that if the plain view doctrine supports seizure of
an item, it also supports a search of the item. Arizona v. Hicks, 480 U.S. 321, 326 (1987)
(“It would be absurd to say that an object could be lawfully seized and taken from the
premises, but could not be moved for closer examination. It is clear, therefore, that the
search here was valid if the „plain view‟ doctrine would have sustained a seizure of the
equipment.”) Several Courts of Appeals have used this language to uphold warrantless
searches of items found under the plain view exception. See United States v. Lemus, 582
F.3d 958, 965 (9th Cir. 2009) (upholding detective‟s lifting of couch cushion to confirm
firearm underneath was illegal when butt of firearm was in plain view); United States v.
Banks, 514 F.3d 769, 774–76 (8th Cir. 2008) (upholding warrantless search of black case
containing a firearm that was discovered in plain view because police had probable cause
to seize case); United States v. Buchanan, 70 F.3d 818, 825–26 (5th Cir. 1995)
(upholding field test of narcotics as lawful warrantless search because officers could have
seized narcotics under plain view doctrine); Bradway v. Gonzales, 26 F.3d 313, 320 (2d
Cir. 1994) (upholding warrantless search of interior of camp stove discovered in plain
view because immediately apparent it was stolen).
The refrigerator was seizable under the plain view doctrine because the police had
probable cause to believe the appliance both was and contained incriminating evidence.
Because the refrigerator was seizable, the detective could open the refrigerator to conduct
14
a “closer examination” of it. Hicks, 480 U.S. at 326. Therefore the detective was
lawfully within the refrigerator when he seized the heroin.
e. The “Outward Appearance” Doctrine
Even if we were to decline to implement the rule described above, the detectives were
justified in opening the refrigerator based on its outward appearance. This Court has
determined that the outward appearance of certain containers may be so suggestive of
their contents that the containers may be opened without a warrant. Gov’t of Virgin
Islands v. Rasool, 657 F.2d 582, 589–90 (3d Cir. 1981). The Courts of Appeals of
several other Circuits have also adopted this rule. Banks, 514 F.3d at 773–74; United
States v. Meada, 408 F.3d 14, 23 (1st Cir. 2005); United States v. Gust, 405 F.3d 797,
800–802 (9th Cir. 2005); United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994);
United States v. Corral, 970 F.2d 719, 725–26 (10th Cir. 1992); United States v.
Sylvester, 848 F.2d 520, 525 (5th Cir. 1988); United States v. Eschweiler, 745 F.2d 435,
439–40 (7th Cir. 1984); United States v. Bachner, 706 F.2d 1121, 1126 n.7 (11th Cir.
1983).13
This rule, considered an extension of the plain view doctrine, applies when the
contents of a container “can be inferred from the container‟s outward appearance.”
Sylvester, 848 F.2d at 525. Some courts refer to this as the “single-purpose container”
13
These cases often draw support for the “outward appearance” exception from
Arkansas v. Sanders, 442 U.S. 753 (1979), overruled on other grounds by California v.
Acevedo, 500 U.S. 565 (1991), in which the Court stated, “[S]ome containers . . . by their
very nature cannot support any reasonable expectation of privacy because their contents
can be inferred from their outward appearance.” 442 U.S. at 764 n.13. See Banks, 514
F.3d at 773–74; Meada, 408 F.3d at 23; Sylvester, 848 F.2d at 525.
15
exception, and thus only apply it when the container could have only a single purpose,
apparent from its outward appearance. E.g., Gust, 405 F.3d at 801–02. Other courts,
while still applying the exception narrowly, do not restrict its application to “single-
purpose containers.” For example, in United States v. Williams, the Court of Appeals for
the Fourth Circuit used this doctrine to uphold the warrantless search of five packages
“wrapped in cellophane with a brown opaque material inside.” 41 F.3d at 197–98. In so
doing, the court considered both the appearance of the container and the circumstances
surrounding its discovery. Id. Though the Court of Appeals for the Ninth Circuit applies
the doctrine narrowly, it determined that “the rationale behind the exception „focuses
upon the individual‟s reasonable expectation of privacy, which is established by general
social norms.‟” Gust, 405 F.3d at 801 (quoting United States v. Miller, 769 F.2d 554,
560 (9th Cir. 1985)).
Taking into consideration its appearance, the circumstances surrounding its
discovery, Williams, 41 F.3d at 197–98, and the possessors‟ reasonable expectation of
privacy, Gust, 405 F.3d at 801, the search of the refrigerator was justified. The outward
appearance of the refrigerator in conjunction with the circumstances surrounding its
viewing by the officers rendered it highly probable that incriminating evidence, in the
form of bullets or bullet markings, would be found inside.14 The police had been called
14
Since the plain view doctrine applies to contraband and to incriminating evidence, e.g.,
Menon, 24 F.3d at 559, and the “outward appearance exception” is merely one
permutation of the plain view doctrine, e.g., Sylvester, 848 F.2d at 524, we see no reason
why the outward appearance exception should not apply when the container clearly
contains incriminating evidence, as opposed to just contraband. See United States v.
Villarreal, 963 F.2d 770, 776 (5th Cir. 1992) (citing Horton, 496 U.S. 128 (“The plain
16
to investigate a shooting at the rear of the house. The refrigerator, located in the rear of
the house, was riddled with bullet holes. Therefore, it could be inferred from the
appearance of the refrigerator that it contained incriminating evidence in the form of
projectiles or interior markings from the shooting. Additionally, since the occupants of
the premises, Filpo and Sanchez, had called the police to investigate the shooting, their
reasonable expectation of privacy in the bullet-riddled refrigerator was reduced.15 Thus
the search of the refrigerator was justified, and appeal on the matter would be frivolous.
3. Seizure of the Heroin
Detective Gonzalez‟ seizure of the heroin was valid under the three-prong test for
the plain view exception. As explained above, under both the Hicks justification for a
plain view search and the “outward appearance” exception, the detective was lawfully
“within” the refrigerator, and he did not need to commit a further trespass to access the
heroin. From that vantage point, the heroin was in plain view. Finally, it was
view exception is intended to allow police officers to seize incriminating items that they
discover in the course of their legitimate law enforcement activities . . . .”)) (emphasis in
original); see also Eschweiler, 745 F.2d at 439-40 (upholding seizure and search of
envelope for evidence under outward appearance exception).
15
We are not taking the position that whenever an individual calls 911 regarding an
emergency within her residence, she forfeits her expectation of privacy in the entire
premises. To do so would run afoul of Thompson v. Louisiana, 469 U.S. 17 (1984).
However, when an individual calls the police regarding a crime within her residence, and
one of the individual‟s possessions in plain view contains obvious evidence of the crime,
under the plain view doctrine she has a reduced expectation of privacy in that possession.
Id. at 18–19; see also Horton 496 U.S. at 141 (“As we have already suggested, by
hypothesis the seizure of an object in plain view does not involve an intrusion on
privacy.”); Illinois v. Andreas, 463 U.S. 765, 771 (1983) (“The plain-view doctrine is
grounded on the proposition that once police are lawfully in a position to observe an item
first-hand, its owner‟s privacy in that item is lost; the owner may retain the incidents of
title and possession but not privacy.”).
17
immediately apparent that the substance was contraband. When he opened the
refrigerator, the detective saw, in plain view, two clear containers which held marked
glassine envelopes. The detective knew that glassine envelopes are used to package
heroin, and that such envelopes are stamped with markings, such as the ones on the
envelopes he found, that indicate the “brand” of heroin contained therein. Therefore, the
seizure of the heroin in the refrigerator was valid under the plain view exception, and any
attempt on appeal to challenge that seizure would be frivolous.
C. Remaining Claims
In addition to the suppression issue, Telfair raised three claims in his pro se filing,
which Mr. Azzarello discussed in his brief.16 Mr. Azzarello also discussed two additional
claims not raised by Telfair. After reviewing these claims we find no nonfrivolous issues
for appeal.
1. Ineffective Assistance of Counsel
Telfair makes several arguments that could only be characterized as ineffective
assistance of counsel claims. Telfair alleges that trial counsel, Mr. Pedicini, failed to file
pretrial motions, failed to call witnesses, and conspired with the Government to prevent
an appeal.
16
Aside from these three claims, which were addressed by Mr. Azzarello, Telfair raises
numerous claims in which he alleges violations of Ms. Gatling‟s rights. A defendant
cannot seek suppression of evidence used against him at trial by claiming the
Government violated a third party‟s rights. Rakas v. Illinois, 439 U.S. 128, 133 (1978);
United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010). Therefore, Telfair lacks
standing to challenge the Government‟s treatment of Ms. Gatling, and so all of his claims
regarding the alleged mistreatment of Ms. Gatling are frivolous.
18
Generally, we will not address ineffective assistance of counsel claims on direct
appeal, and instead will defer such claims to collateral proceedings. United States v.
Thornton, 327 F.3d 268, 271 (3d Cir. 2003). This is because an appellate court ruling on
a direct appeal “„must proceed on a trial record not developed precisely for the object of
litigating or preserving the [ineffectiveness] claim and thus often incomplete or
inadequate for this purpose.‟” Id. at 272 (quoting Massaro v. United States, 538 U.S.
500, 505 (2003)). In rare circumstances, the record on the ineffectiveness issue may be
sufficiently developed for the matter to be resolved on direct appeal. United States v.
Cocivera, 104 F.3d 566, 570–71 (3d Cir. 1996).
Here, though the record indicates Mr. Pedicini was not ineffective in many, if not
all, aspects, we are not comfortable ruling on Telfair‟s claim at this time. The factual
record is not sufficiently developed regarding Mr. Pedicini‟s failure to file pretrial
motions or call witnesses on Telfair‟s behalf. 17 We do not have a sufficient record to
decide these claims and so decline to do so.
17
For a defendant to prevail on an ineffective assistance of counsel claim, he must
establish that “counsel‟s performance was deficient” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is
deficient if counsel “made errors so serious that counsel was not functioning as „counsel‟
guaranteed the defendant by the Sixth Amendment.” Id. Such deficiency prejudices the
defendant when the errors were so serious as to undermine the trial process so that its
results are not reliable. Id.With regards to the “conspiracy” allegation, Mr. Pedicini was not ineffective.
Telfair had filed a notice of appeal immediately after the trial verdict but before the
imposition of a judgment and sentence. Mr. Pedicini wrote several letters explaining that
the appeal was premature under Federal Rule of Appellate Procedure 4(b)(A). He
explained he would consent to the Government‟s motion to dismiss without prejudice,
and that Telfair could refiled after the sentence was imposed. Telfair views this as a
conspiracy to deprive him of his right to appeal.
19
2. Challenge to the Indictment
Telfair alleges the second superseding indictment, the indictment upon which he was
convicted, was deficient and that it contained embellished and misleading information.
To be sufficient, an indictment must charge every element of the offense. United
States v. Polan, 970 F.2d 1280, 1282 (3d Cir. 1992). In count one, Telfair was charged
with conspiring to violate 21 U.S.C. §§ 841(a), (b)(1)(A) in violation of 21 U.S.C. § 846.
(Appendix (“App.”) 72). The elements of this offense are: (1) knowingly and
intentionally (2) conspiring to (3) distribute or possess with the intent to distribute (4) one
kilogram or more of a mixture or substance containing a detectable amount of heroin.
The indictment charged that Telfair “did knowingly and intentionally conspire and agree
with others to distribute and possess with the intent to distribute 1 kilogram or more of
heroin, a Schedule I controlled substance, contrary to Title 21, United States Code,
Sections 841(a) and 841(b)(1)(A). In violation of Title 21, United States Code, Section
846.” (App. 73). The indictment stated every element of the offense charged in count
one.
Count two charged Telfair with violating 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and
18 U.S.C. § 2. The elements of this offense are: (1) knowingly and intentionally (2)
distributing or possessing with intent to distribute (3) 100 grams or more of a mixture or
substance containing a detectable amount of heroin. The indictment charged that Telfair
“did knowingly and intentionally distribute and possess with intent to distribute 100
Mr. Pedicini‟s consent to the non-prejudicial dismissal of the appeal was not
evidence of his ineffectiveness and it did not prejudice Telfair.
20
grams or more of heroin, a Schedule I controlled substance. In violation of Title 21,
United States Code, Sections 841(a)(1) and (b)(1)(B), and Title 18, United States Code,
Section 2.” The indictment stated every element of the offense charged in count two.
Aside from the elements of the offenses, the only other details in the indictment
were the dates and locations of the alleged violations. Telfair‟s claim that the indictments
contained embellished or misleading information is unfounded.
3. Discovery Violations
Telfair makes general allegations of discovery violations, but provides no specifics.
Telfair‟s trial counsel, the Government, and the District Court continually reiterated there
were no discovery violations. Additionally, a thorough examination of the record shows
defense counsel was not deprived of discovery. Telfair also alleges defense counsel
failed to share the discovery with Telfair. This is an ineffective assistance of counsel
claim, and as explained above, we will not rule on it at this juncture.
4. Motions for Mistrial
The next potential issue for appeal is whether the District Court erred in twice
denying motions for a mistrial.18 We review a district court‟s denial of a mistral for
abuse of discretion. United States v. Hakim, 344 F.3d 324, 328 (3d Cir. 2003).
a. The first motion for a mistrial
Defense counsel first moved for a mistrial during the testimony of Carlos Jose
Antigua, Carlito‟s brother. Antigua testified he had received a call from Telfair‟s cell
18
Mr. Azzarello raised this issue in his brief though Telfair did not discuss it in his pro se
filings. In the interest of thoroughness, we will review it.
21
phone, and that the person on the other end stated Telfair was not available because he
was in jail for domestic violence. Defense counsel moved for a mistrial.
The person on the other end of the phone call was an undercover federal agent. He
had told Mr. Antigua that Telfair was in jail for domestic violence because the
Government was investigating the Antiguas for heroin distribution. Telfair had been a
customer of the Antiguas, and the Government did not want to alert them to the
possibility that Telfair had been caught, and so the Agent made up the domestic violence
story to explain Telfair‟s absence.
Immediately after defense counsel‟s motion, the District Court held a sidebar
conference, during which the Government confirmed it had not been expecting, and had
not attempted to elicit, the testimony Antigua provided. The court determined the best
remedy would be an immediate jury instruction:
Ladies and gentlemen, you just heard the witness mention
domestic violence. I want it to be clear that the
Government‟s position, and they agree with defense that there
are no allegations of any domestic violence; that that
apparently was told to this witness as a ruse to let him know
why the Defendant wasn‟t present. Nobody is suggesting that
Telfair was involved in any domestic violence, and that‟s not
a part of this case, so please don‟t let that enter into your
deliberations at all. I think that answer came up even as
somewhat of an unknown to the prosecutor. But that‟s what
this witness was told, but not true.
(Tr. at 431). We presume the jury followed this curative instruction. United States v.
Lore, 430 F.3d 190, 206 (3d Cir. 2005). The immediacy with which the trial judge issues
the curative instruction is an important factor in determining whether the instructions
have cured any prejudice. United States v. Sotomayor-Vazquez, 249 F.3d 1, 18 (1st Cir.
22
2001). The stronger the evidence against the defendant, the more likely the erroneous
admission of evidence may be cured. Cf. Marshall v. Hendricks, 307 F.3d 36, 69 (3d Cir.
2002) (“[T]he stronger the evidence against the defendant, the more likely that improper
arguments or conduct have not rendered the trial unfair . . . .”)
The District Judge immediately addressed the improper testimony and issued the
above curative instruction. Without reciting the evidence against Telfair, the abundance
of proof connecting Telfair with the heroin found at 185 Parker Street, as well as to the
broader conspiracy, rendered the error a curable one. The District Court‟s instruction
alleviated any risk of prejudice.
b. The second motion for a mistrial
The second motion for a mistrial was made during summation arguments. At the
close of his argument, the Assistant U.S. Attorney said the following,
So, ladies and gentlemen, when you consider what the weight
of the evidence is, when you consider the defense tactics,
nothing but distractions in this case, and cast them aside in
your deliberations, the Government is confident that you will
return the only verdict that can be reached based on the law
and the evidence as you have seen, and we would ask you to
find the Defendant, Telfair, guilty as charged on both counts
of the indictment.
(Tr. At 636-37). Defense counsel moved for a mistrial based on the Government‟s use of
the word “tactics,” saying it was unduly pejorative. The District Court denied the
motion.
To grant a mistrial based on summation arguments by the Government, the inquiry
is “whether such remarks, in the context of the entire trial, were sufficiently prejudicial to
23
violate a defendant‟s due process rights.” United States v. Scarfo, 685 F.2d 842, 849 (3d
Cir. 1982). “[A]ttacks on the opposing advocate‟s arguments and tactics are acceptable,
and indeed [] attacking and exposing flaws in one‟s opponent‟s arguments is a major
purpose of closing argument.” United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007).
In Rivas, this Court found no fault when the Government attorney stated it was defense
counsel‟s “„job [] to take [the jury‟s] focus off the issue.‟” Id. at 139–40. The challenged
statement here is substantially similar to the one in Rivas. Given this similarity, and the
lack of any prejudicial effect on Telfair, the District Court did not abuse its discretion in
denying defense counsel‟s motion. Therefore, no nonfrivolous issues exist regarding the
denial of defense counsel‟s motions for a mistrial.
5. Sentencing
The last potential issue is whether the sentencing process was flawed. We review
imposition of a criminal sentence for abuse of discretion and conduct a two-step inquiry.
United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). We first review the
proceedings to determine whether the District Court committed procedural error; if we
find such error, we remand without further analysis. Id. If there is no procedural error,
we review for substantive reasonableness, and affirm “unless no reasonable sentencing
court would have imposed the same sentence on that particular defendant for the reasons
the district court provided.” Id. (citations and internal quotation marks omitted).
The District Court must follow a three step sentencing process: (1) the court must
calculate the Guidelines range, including sentencing enhancements; (2) the court must
consider any motions for departure; and (3) the court must consider the Guidelines range
24
in conjunction with the sentencing factors listed in 18 U.S.C. § 3553(a) to determine the
appropriate sentence. Id.The District Court followed the requisite procedure. At the outset of the
sentencing hearing, the court explained the three step procedure and structured the
hearing pursuant to that process. The court correctly calculated the offense level at
thirty-seven and Telfair‟s criminal history category at six, resulting in a Guidelines range
of 360 months to life imprisonment. Neither party moved for a departure, so the court
proceeded to step three. The District Court heard both parties‟ arguments for an
appropriate sentence in light of the § 3553(a) factors. After taking into consideration the
§ 3553(a) factors, the District Court imposed a sentence of 240 months‟ imprisonment.
There were no errors in the process.
The sentence was not substantively unreasonable. Noting that Telfair barely
satisfied the requirements to be considered a Career Offender under the Guidelines, the
court expressed concern that the Guidelines sentence was overly harsh. The court also
considered the sentences imposed on other individuals who had been convicted for
involvement in the same conspiracy as Telfair. In light of this, the District Court
concluded a downward variance from the Guidelines was appropriate. This was not
unreasonable, and therefore no nonfrivolous grounds for appeal arose during sentencing.
IV.
For the foregoing reasons, we grant counsel‟s motion to withdraw and affirm
Defendant‟s conviction and sentence. We have also reviewed the various pro se requests
and motions filed by Telfair and these are denied as being without merit.
25