United States v. James Perrin

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 22-2196, 22-2368

____________

UNITED STATES OF AMERICA

v.

JAMES PERRIN,

Appellant 22-2196

UNITED STATES OF AMERICA

v.

PRICE MONTGOMERY,

Appellant 22-2368

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Nos. 2:14-cr-00205-002, 2:14-cr-00205-001)

Chief District Judge: Honorable Mark R. Hornak

____________

Argued September 19, 2024

____________

BEFORE: RESTREPO, McKEE and SMITH, Circuit Judges

(Filed: August 25, 2025)

____________

Keith M. Donoghue [ARGUED]

Brett G. Sweitzer

Lisa Evans Lewis

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

(Attorney for Appellant Perrin)

Evan J. Austin [ARGUED]

Alison Brill

K. Anthony Thomas

Office of the Federal Public Defender

For the District of New Jersey

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, NJ 08609

(Attorneys for Appellant Montgomery)

Matthew S. McHale [ARGUED]

Laura S. Irwin

Eric G. Olshan

Officer of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

(Attorneys for Appellee)

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OPINION OF THE COURT

____________

RESTREPO, Circuit Judge

Price Montgomery and James Perrin ran a profitable

drug distribution business, trafficking hundreds of thousands

of dollars’ worth of heroin into Pennsylvania. A jury convicted

both men of numerous drug and gun possession offenses.

Additionally, Montgomery was convicted of witness tampering

offenses arising from the killing and attempted killing of two

women, respectively. On appeal both men raise multiple

claims of trial and sentencing errors. We will affirm Perrin’s

convictions and judgments of sentence. As for Montgomery,

we will affirm his convictions and judgments of sentence

except the term of imprisonment ordered for using a firearm to

2

kill a witness, which we will vacate and remand for

resentencing consistent with this opinion.

I.

a. The wiretap application.

In the summer of 2013, an informant provided

information about Montgomery’s drug dealing to the

Organized Crime Unit of the Pennsylvania Attorney General’s

Office. Working with the federal Drug Enforcement Agency

(DEA) and the Pittsburgh police, the Unit began an

investigation into Montgomery’s heroin-trafficking business.

The investigation progressed until it became a topic of

discussion at the Office’s senior leadership meetings, attended

by both then-Attorney General Kathleen Kane (AG Kane) and

First Deputy Attorney General Adrian King.

Beginning in early 2014, AG Kane expressed her

support for pursuing a wiretap to further the investigation,

which had become a top priority for the Office’s criminal

division. Agents from the Organized Crime Unit and DEA

began preparing the application to wiretap Montgomery’s

cellphone with the intention of having AG Kane authorize and

submit it on April 14, 2014. On that day, however, AG Kane

was scheduled to travel outside the country. Before she left,

AG Kane had her assistant Kathryn Smith prepare a letter

designating First Deputy King as the acting Attorney General

in her absence. AG Kane reviewed the letter but did not sign

it, instructing Smith to call and get her permission before

signing her name. The evening before her departure, AG Kane

spoke with King about the wiretap and verbally authorized him

to sign the application in her absence.

On the morning of April 14th, First Deputy King

informed Smith that the designation letter needed to be signed

before the wiretap application could be submitted. After

making numerous attempts to reach AG Kane, Smith signed

Kane’s name at King’s direction. Upon hearing the letter had

been signed, AG Kane expressed displeasure but made no

attempt to rescind the designation letter or withdraw the

wiretap application. The wiretap application, signed by King,

was approved by Pennsylvania Superior Court Judge Mary

Jane Bowes on April 16, 2014.

Over the course of that summer, AG Kane approved a

continuation of the original wiretap as well as submitted

3

additional applications to wiretap Perrin’s phone and a second

phone belonging to Montgomery. These applications were also

approved by a Pennsylvania state court judge. All told, these

wiretaps provided a significant amount of evidence,

establishing both the participants and innerworkings of the

drug trafficking conspiracy.

b. Evidence of drug trafficking and witness tampering.

The investigation revealed that Montgomery ran a drug-

trafficking operation that sourced heroin from Newark, New

Jersey to be sold in Pittsburgh, Pennsylvania. Tina Crawford

acted as a courier, driving the heroin into Pittsburgh in the trunk

of a rental car. Co-defendant Perrin, who agents saw with

Montgomery “countless times,” supported the business in

numerous ways, including traveling with Montgomery to

Newark and buying the heroin. A1272.

On June 8, 2014, agents observed Perrin and

Montgomery return to Montgomery’s house from a trip to

Newark. Both men carried bags from the car into the house;

Perrin had a suitcase and Montgomery had a brown backpack

that agents had seen him carry when meeting with his source.

After several hours, the two men left the house and returned to

the car. This time the agents stopped the car, arrested both men,

and conducted a search. The brown backpack had been at

Perrin’s feet and contained approximately 125 bricks of heroin,

$1,600 in cash, and seven cell phones. After securing a

warrant, the agents searched Montgomery’s house. There they

found a suitcase containing 1,500 bricks of heroin, over

$21,000 in cash, 16 firearms, and multiple rounds of

ammunition.

Seven of the firearms recovered had been acquired

illegally in January 2014. Acting on Montgomery’s behalf,

Perrin exchanged cash and heroin for 10 guns and ammunition

from Jeremiah Pashuta, a heroin addict who had stolen the guns

from his brother.1 One of the guns was a rare .22 Magnum Kel-

Tec PMR-30. Pashuta provided ammunition for the Kel-Tec,

which required a particular brand of .22 Magnum bullets.

1

Pashuta’s brother later testified at trial and identified seven of

the guns recovered from Montgomery’s home as among those

stolen from him.

4

While the Kel-Tec gun was not recovered during the search of

Montgomery’s house, agents found .22 Magnum bullets.

The next day, on June 9, 2014, agents searched the home

of Tina Crawford, Montgomery’s courier who had transported

heroin from Newark to Pittsburgh approximately eight times.

Tina spoke with the agents conducting the search and admitted

her role in the drug-trafficking operation. Montgomery, who

had posted bond and been released from custody, visited Tina

after the search. Tina told Montgomery that she shared no

information with the agents. Later, however, she confided to

their mutual friend Khrysta Brown that she told the agents she

transported bags for Montgomery but did not know what they

contained. She also told Brown that she had to meet with an

attorney. Brown, acting as an intermediary, relayed her

conversations with Tina to Montgomery.

After the search of her home, Tina moved in with her

mother, Patsy Crawford. On August 22, 2014, Tina and Brown

exchanged text messages. Approximately thirty-five minutes

later, Tina left the house with Patsy, who had agreed to drive

Tina to a meeting with federal prosecutors after her ride failed

to show. Upon reaching Patsy’s car, the two women were

ambushed in their driveway. Two or three assailants opened

fire and continued to shoot until a neighbor came out of her

house and screamed. The assailants, who masked their faces

with the hoods of their sweatshirts, fled the scene in a car. Tina

Crawford was shot eight times and died on the floor of the

garage; her body lay next to the passenger side of the car.

Patsy, found on the driver’s side, had been shot multiple times

but remained conscious and was yelling for her daughter. A

police sergeant at the scene described Patsy as being in critical

condition.

Law enforcement recovered twenty-four casings from

the scene, including casings from the .22 Magnum bullets used

in the rare Kel-Tec handgun Perrin bought from Pashuta. Also

recovered was an abandoned cellphone on the sidewalk near

the Crawfords’ home. Investigators tied the phone to

Montgomery by comparing its contact lists, call logs, and

frequently used cell towers to another one of his cell phones.

Montgomery was also tied to the phone through DNA

analytics, which identified him as a possible match for the

DNA found on the phone.

5

At the time of the murder, Montgomery was free on

bond awaiting state charges. Immediately after the murder he

violated the terms of his bond and fled Pittsburgh. He was

found living in Columbus, Ohio under a false name in February

2015. Perrin also went on the run but was later taken into

custody.

c. Charges

On April 4, 2016, Montgomery and Perrin were charged

by a grand jury of multiple crimes: Count 1 charged both men

with conspiring to possess with the intent to distribute heroin

from on or about April 2013 to June 2014; Count 2 charged

both men with possession with intent to distribute heroin “on

or about June 8, 2014,” the day of their initial arrest; Counts 3

and 4 charged each man, respectively, with unlawful

possession of a firearm as a convicted felon also “on or about

June 8, 2014”; and Count 5 charged both men with possessing

firearms in furtherance of a drug trafficking crime, which the

indictment specified as the possession with intent to deliver

heroin charge in Count 2. A178-85.

Montgomery was charged with additional counts:

Count 6 charged him with conspiring to launder money;

Counts 7 and 9 charged him with killing Tina Crawford and

attempting to kill her mother, Patsy, to prevent them from

communicating with law enforcement; Count 8 charged him

with using a gun to kill Tina, a crime committed “with malice

aforethought” and “by shooting her with a firearm willfully,

deliberately, maliciously and with premeditation”; and Count

10 charged him with using a gun to commit the attempted

murder of Patsy Crawford. Montgomery was also charged as

an accomplice for each of these counts. A186-91. 2

2

The specific charges associated with each count are as

follows: Count 1 charged violations of 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(A)(i); Count 2 charged violations of 21

U.S.C. §§ 841 (a)(1), (b)(1)(A)(i); Count 3 charged violations

of 18 U.S.C. §§ 2, 922(g)(1), 924(e); Count 4 charged

violations of 18 U.S.C. §§ 2, 922(g)(1); Count 5 charged a

violation of 18 U.S.C. § 924(c)(1)(A)(i); Count 6 charged a

violation of 18 U.S.C. § 1956(h); Counts 7 and 9 charged

violations of 18 U.S.C. §§ 2, 1512(a)(1)(C); Count 8 charged a

violation of 18 U.S.C. §§ 2, 924(c)(1)(A), (c)(1)(C)(i), (j)(1);

6

d. Motion to suppress.

Prior to trial, both Montgomery and Perrin sought to

suppress the evidence derived from the wiretap of

Montgomery’s phone under Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2516-18.

They argued suppression was warranted under Title III because

the wiretap order was issued in violation of applicable state

law, namely the Pennsylvania Wiretapping and Electronic

Surveillance Control Act, 18 Pa. C.S. § 5701 et seq. (the

Wiretap Act). Montgomery and Perrin argued the Act required

that the wiretap application be signed by an official AG Kane

had designated in writing. Because AG Kane had not signed

the written designation letter herself, they claimed the

application signed by First Deputy King was unauthorized

under both federal and state law and that all wiretapped

evidence should therefore be suppressed.

The District Court denied the motion, ruling that

Pennsylvania law allows for non-written designations in

circumstances where, as here, the Attorney General is absent

“in circumstances fraught with uncertainty as to her

whereabouts and accessibility.” A47. Specifically, the Court

found that First Deputy King was authorized to sign the

application under both Pennsylvania’s Administrative Code,

71 P.S. § 73, and the Commonwealth Attorneys Act, 71 P.S. §§

732-201, 762. It further ruled that, because the wiretap

application was authorized under Pennsylvania law, the

requirement in Title III subsection 2516(2) that a “high-ranking

executive law enforcement official approve such an

application” was satisfied. A52.3

e. Verdict and sentences

In November 2018, a jury convicted Montgomery and

Perrin of all counts. Montgomery was sentenced to life

and Count 10 charged violations of 18 U.S.C. §§ 2,

924(c)(1)(A), (c)(1)(C)(i).

3

Also prior to trial, the District Court ordered the parties to

submit an agreed-upon set of proposed jury instructions. The

government complied, submitting instructions with a statement

that the instructions had been approved by the parties. Neither

Perrin nor Montgomery raised objections to the instructions

before or during the trial.

7

imprisonment for the killing of Tina Crawford, with an

additional consecutive term of eighty years imprisonment for

the remaining counts. Perrin was sentenced to 380 months

imprisonment, followed by ten years supervised release. This

appeal followed. 4

II.5

In an argument joined by co-defendant Montgomery on

appeal, Perrin challenges the District Court’s denial of their

joint motion to suppress. He argues suppression of the wiretap

evidence was warranted because the Pennsylvania Attorney

General’s wiretap application was unauthorized under both

federal and state law. His challenge is two-fold. First, he

argues that Title III prohibits a state’s principal prosecuting

attorney from delegating their authority to apply for wiretaps,

rendering the application signed by First Deputy King directly

violative of 18 U.S.C. § 2156(2).6 Second, he appeals the

4

Specifically, the District Court sentenced Perrin to an

aggregate term of imprisonment of 320 months for Counts 1, 2

and 3 to run concurrently with one another, with the sentence

of 60 months for Count 5 to run consecutively. For

Montgomery, the Court imposed a life sentence for Count 7

with the sentences for Counts 1, 2, 4, 6, and 9 to run

concurrently. Consecutive to the life sentence, the Court

imposed an aggregate term of imprisonment of 960 months for

Counts 5, 8, and 10.

5

The District Court had subject matter jurisdiction under 18

U.S.C. § 3231. We have appellate jurisdiction under 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291.

6

The relevant text of 18 U.S.C. § 2516(2) is as follows:

(2) The principal prosecuting attorney of any

State, or the principal prosecuting attorney of

any political subdivision thereof, if such attorney

is authorized by a statute of that State to make

application to a State court judge of competent

jurisdiction for an order authorizing or approving

the interception of wire, oral, or electronic

communications, may apply to such judge for,

and such judge may grant in conformity with

8

denial of his suppression motion, again raising the claim that

the application was unauthorized under state law because King

was not designated in writing as required by Pennsylvania’s

Wiretap Act. This alleged failure to abide by Pennsylvania law,

the argument goes, indirectly violated Title III because it

transgressed the Act’s core concern of establishing

accountability for the wiretap’s execution. Perrin argues these

alleged violations rendered the wiretap application

unauthorized and the resultant evidence unlawfully

intercepted. Because we conclude Title III’s authorization

requirements have been substantially complied with and the

Act’s statutory purpose has been satisfied, we agree with the

District Court that suppression is not warranted.

To prove suppression of the wiretapped evidence is

justified, Perrin and Montgomery must first establish the

government unlawfully intercepted their wiretapped

communications. 18 U.S.C. § 2518(10)(a)(i).7 They must then

section 2518 of this chapter and with the

applicable State statute an order authorizing, or

approving the interception of wire, oral, or

electronic communications by investigative or

law enforcement officers having responsibility

for the investigation of the offense as to which

the application is made, when such interception

may provide or has provided evidence of the

commission of the offense of . . . dealing in

narcotic drugs, marijuana or other dangerous

drugs . . . or any conspiracy to commit any of the

foregoing offenses.

7

The text of 18 U.S.C. § 2518(10)(a)(i) is as follows:

(10)(a) Any aggrieved person in any trial,

hearing, or proceeding in or before any court,

department, officer, agency, regulatory body, or

other authority of the United States, a State, or a

political subdivision thereof, may move to

suppress the contents of any wire or oral

communication intercepted pursuant to this

chapter, or evidence derived therefrom, on the

grounds that—

9

prove the unlawful interception violated “those statutory

requirements that directly and substantially implement the

congressional intention to limit the use of intercept procedures

to those situations clearly calling for the employment of this

extraordinary investigative device.” United States v.

Giordano, 416 U.S. 505, 527 (1974). We must therefore

identify which requirements “occupy a central, or even

functional, role in guarding against unwarranted use” of

wiretaps. United States v. Chavez, 416 U.S. 562, 578 (1974).

Relevant to this appeal are the requirements for the

authorization of state wiretap applications set forth in Title III’s

subsection 2516(2), intended to “establish uniform standards .

. . governing the authorization of interceptions, and to ensure

adherence to these standards through centralizing

responsibility in top level state and county prosecutors who can

be held accountable for departures from preestablished policy.”

United States v. Smith, 726 F.2d 852, 856 (1st Cir. 1984).

Because we are primarily concerned with implementing

Congress’s intent, not every failure to comply with state or

federal authorization requirements warrants suppression.

Suppression motions premised on authorization errors can be

denied “on the ground of substantial compliance with Title III

requirements.” Chavez, 416 U.S. at 568 n.2. Put another way,

when assessing such alleged errors, this Court will not suppress

evidence over a mere technical defect in authorization

procedures if the statute’s underlying purpose has been met.

United States v. Acon, 513 F.2d 513, 517 (3d Cir. 1975).

Perrin argues, for the first time on appeal, that the

Pennsylvania Attorney General’s application directly violated

Title III because subsection 2516(2) does not allow a state’s

principal prosecuting attorney to delegate their authority to

apply for a wiretap. His argument is premised on the plain

language of Title III’s section 2516, which identifies those

officials who are authorized to submit wiretap applications.

While the subsection addressing federal wiretaps names the

delegate of the United States Attorney General as such an

official, see 18 U.S.C. § 2516(1), the subsection addressing

state wiretaps does not name the delegate of a state’s principal

prosecuting attorney as having such authority, see 18 U.S.C. §

(i) the communication was unlawfully

intercepted.

10

2516(2). Perrin contends this omission means that such a

delegation violates Title III. He argues in the alternative that,

if such a delegation of authority is permitted on the state level,

the principal prosecuting attorney of a state must personally

review the wiretap application to substantially comply with the

purpose behind Title III’s authorization requirements. Perrin

contends AG Kane’s alleged failure to personally review the

Montgomery wiretap application signed by First Deputy King

rendered it unauthorized.

Because this argument regarding the direct violation of

subsection 2516(2) was not raised before the suppression court,

we will review for plain error. “Under that test, before an

appellate court can correct an error not raised at trial, there

must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]

substantial rights.’” Johnson v. United States, 520 U.S. 461,

466-67 (1997) (alteration in original) (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)). To be “plain,” an error must

be “clear under current law.” Id. at 467 (internal quotation

marks omitted). Even if these three conditions are met,

however, we may exercise our discretion to correct the error

only if it (4) “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id. (alternation in original)

(quoting Olano, 507 U.S. at 732) (internal quotation marks

omitted).

We disagree that subsection 2516(2) prohibits a state’s

principal prosecuting attorney from delegating their authority

to approve and submit wiretap applications. Instead, the statute

recognizes that whether such a delegation is permitted is

dictated by state law, not by Title III. The plain language of

subsection 2516(2) defers to state statutes three times to

illustrate Congress’s intention to keep procedures for

authorizing wiretaps under a state’s purview when

implementing Title III’s statutory mandates. 18 U.S.C. §

2516(2); United States v. Johnson, 696 F.2d 115, 121 (D.C. Cir.

1982). Interpreting subsection 2516(2) to render null and void

those Pennsylvania statutes allowing the state Attorney

General to delegate his or her authority would be diametrically

opposed to Congress’s clear direction.8

8

The Senate Report introducing subsection 2516(2) expressly

stated that “[t]he issue of delegation by that [state’s principal

prosecuting attorney] would be a question of State Law.” S.

11

In addition to consistency with Congressional intent,

allowing state principal prosecutors to delegate their authority

makes good sense. We agree with the Second and Ninth

Circuits that “Congress simply could not have intended that

local wiretap activity would be completely suspended during

the absence or disability of the official specifically named in

[Section 2516(2)].” United States v. Perez-Valencia, 727 F.3d

852, 855 (9th Cir. 2013) (quoting United States v. Fury, 554

F.2d 522, 527 n.4 (2nd Cir. 1977)). Where the principal

prosecutor of the state is unavailable or indisposed, as was the

case here, it would be unreasonable to expect all state wiretap

applications to remain on hold.

Rep. No. 1097, 2187, 90th Cong. 2d Sess. (1968). The report

explained that the state officer authorized to apply for a wiretap

would depend on “not name but function” and who serves that

function would be dictated by state law. Id. Those laws would,

in turn, serve to create a “centralization of policy” regarding

electronic surveillance. Id. Senator McClellan, when

presenting Title III on the senate floor, recognized that state

laws would permit such a delegation of authority:

Initially, approval of all applications will have to

be secured from the appropriate chief

prosecuting officer. On the federal level, that

will be the Attorney General or his special

designee, while on the state level, that will be the

State Attorney General or the District Attorney

of a county or their special designees. This

provision will centralize authority and

responsibility for the formulation of policy in

this area in a visible, usually political

accountable, individual. This should be a strong

safeguard against abuse.

114 Cong. Rec. 11,208 (1968) (emphasis added). Indeed, more

than merely approving wiretap applications, Congress

acknowledged that state designees could further Title III’s

statutory purpose of bringing uniformity and accountability to

the use of electronic surveillance. Id.

12

Perrin argues in the alternative that, if the authority to

apply for a wiretap can be delegated under subsection 2516(2),

the principal prosecuting attorney must remain actively

involved and be personally familiar with the application to

satisfy Congress’s objectives in enacting Title III.9 He claims

that such a requirement was not met in this case, where there

was “no sign Kane personally reviewed the wiretap

application” or was even aware of the circumstances justifying

electronic surveillance. Perrin Br. 32. The government

counters that there is no such “personal review” requirement in

this Circuit or any other and, to the extent familiarity with the

application was required under Title III, AG Kane in this

instance was actively involved in the process of applying for

the wiretap.

Given the absence of precedent in this Circuit clarifying

the role a state’s principal prosecuting attorney must play after

delegating their authority to apply for a wiretap, we first hold

that any error in the Attorney General’s review of the

application post-delegation was not plain. We will find plain

error only if it is “absolutely clear legal norms compel that

conclusion.” United States v. Cammarata, 129 F.4th 193, 224

(3d Cir. 2025) (internal citations omitted). Second, we note

that the plain text of subsection 2516(2) does not prescribe

what role a principal prosecuting attorney should play after

delegating their authority. Instead, as discussed above, we

interpret the subsection to leave the issue of delegation by the

principal prosecutor to state law, which means state

legislatures—not federal courts—determine the scope and

nature of the designees’ duties. Even if Title III preempts a

9

Perrin supports this argument by citing cases from the First

and Ninth Circuits. See e.g., United States v. Smith, 726 F.2d

852, 859 (1st Cir. 1984) (holding “[t]he detailed review by a

district attorney of every application for a proposed use of

electronic surveillance on a case by case basis . . . would seem

to satisfy fully the congressional objectives”); Villa v.

Maricopa County, 865 F.3d 1224, 1234 (9th Cir. 2017)

(holding that substantial compliance with Title III requires that

principal prosecuting attorney be “personally familiar” with

the facts underlying an application). See also United States v.

Lyons, 740 F.3d 702, 721 (1st Cir. 2014) (noting that

Massachusetts law requires principal prosecuting attorney to

“personally review” the wiretap application).

13

state’s wiretapping laws, that does not give this Court license

to dictate what roles state officers play. Our role is to determine

whether the officers have substantially complied with Title

III’s statutory requirements. If this Court were to dictate the

conduct of a state’s principal prosecuting attorney after they

had exercised their statutory right to delegate their authority,

we run the risk of intruding into an area which Congress has

deemed best left for state law. Not only would we be

overreaching if we were to define the role of Pennsylvania’s

Attorney Generals but not their federal counterparts, we would

be implying that state officials require special scrutiny and

oversight.10

We therefore decline Perrin’s invitation to hold that AG

Kane violated Title III by not “personally reviewing” the

wiretap application after she delegated her authority to submit

the application. Not only does Title III’s plain language not

support such a holding, but requiring such a level of personal

involvement invites non-compliance. If the principal

prosecuting attorney designated her authority in anticipation of

an extended absence, expecting her personal review of each

wiretap application would be unreasonable and possibly

unattainable. We therefore conclude that the designee of the

state’s principal prosecuting attorney, if properly authorized

under state law, may submit a wiretap application under

10

The Ninth Circuit recognized that, in reviewing wiretap

applications out of the federal Attorney General’s office, there

is “no requirement in 18 U.S.C. § 2516 or anywhere else that

the authorizing official explain the reasons for [giving his

authorization].” United States v. Martinez, 588 F.2d 1227,

1233 (9th Cir. 1978). Instead, “[o]nce a proper authorizing

officer is properly identified, . . . thereby fixing on him the

responsibility for a particular authorization,” compliance with

subsection 2516(1) is met. United States v. Turner, 528 F.2d

143, 151 (9th Cir. 1975). The reasons or methods used in

giving such authorization are not subject to review by courts;

“[r]ather it is []presumed that the officer has properly exercised

the judgment called for by the statute” when they sign their

name to authorize a wiretap application. Id. (rejecting

argument that the Attorney General or specially designated

Assistant Attorney General must personally review facts in

application). We can think of no reason why the same

deference should not be awarded a state’s counterpart.

14

subsection 2516(2). Our purview, therefore, is to determine

whether the application meets the authorization requirements

of Title III and whether Title III’s protections against

unwarranted wiretaps are upheld. Chavez, 416 U.S. at 578.

This brings us to the claim Perrin and Montgomery

raised before the suppression court: that First Deputy King was

not authorized under Pennsylvania law to submit the wiretap

application because AG Kane failed to sign the letter granting

him such authority. They argued that the alleged violation of

Pennsylvania law meant King was not authorized to submit the

application under subsection 2516(2) and suppression was

warranted because the wiretap evidence was unlawfully

intercepted under subsection 2518(10)(a). The District Court

disagreed.

“Where a motion to suppress has been denied, we

review the order for clear error as to the underlying facts, but

exercise plenary review as to its legality in the light of the

court’s properly found facts.” United States v. Davis, 726 F.3d

434, 439 (3d Cir. 2013) (quoting United States v. Brownlee,

454 F.3d 131, 137 (3d Cir. 2006)). The District Court found

that AG Kane failed to designate First Deputy King in writing

but ruled this failure did not justify suppressing the wiretap

evidence under Title III.11 We will affirm this ruling.

Again, violations of even Title III’s “central

requirements” do not warrant suppression “if the Government

demonstrates to the court’s satisfaction that [Title III’s]

statutory purpose has been achieved despite the violation.”

Johnson, 696 F.2d at 121. First Deputy King’s signing of the

application, assuming he was not authorized to do so under

Pennsylvania law, warrants suppression only if Title III’s

purpose of centralizing authorization “in a publicly responsible

official” so that “the lines of responsibility [will] lead to an

11

The District Court denied the suppression motion because

First Deputy King, while arguably not authorized to sign the

wiretap application under the Pennsylvania Wiretap Act, was

authorized to sign under other applicable Pennsylvania

statutes. We agree with this reasoning but also recognize that

we generally “decide evidence questions in federal criminal

cases on the basis of federal, rather than state, law.” United

States v. Williams, 124 F.3d 411, 428 (3d Cir. 1997) (citing

United States v. Rickus, 737 F.2d 360, 363 (3d Cir. 1984)).

15

identifiable person” was not achieved. Giordano, 416 U.S. at

520 (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., at 96–97

(1968)).

To determine whether there was substantial compliance

with the substantive requirements of the statute, we look

“beyond the face of the [wiretap] order to the facts as they

actually existed[.]” United States v. Traitz, 871 F.2d 368, 379

(3d Cir. 1989) (citing Acon, 513 F.2d at 518). Here, the District

Court decided that King was authorized by AG Kane despite

the lack of written designation. It found credible First Deputy

King’s suppression hearing testimony that he had a

conversation with AG Kane the evening before her departure,

where she “orally and actually directed” him to submit the

application the following day. A51. The Court also found

relevant that AG Kane, who did not testify at the hearing, knew

that First Deputy King had signed the wiretap application

before it was presented to a Pennsylvania judge and “did

nothing to stop that presentation.” A52. All told, the District

Court found the weight of the evidence established that

“authorization in fact occurred” under Pennsylvania law,

rendering the requirements of Title III’s subsection 2516(2)

substantially fulfilled. A52. Because these facts were properly

found, the denial of the suppression motion was proper.

III.

Perrin, again with Montgomery joining, argues the

government and the District Court constructively amended

Count 5 of the indictment. Count 5 charged that Montgomery

and Perrin each violated 18 U.S.C. § 924(c) by possessing

firearms in furtherance of the charge in Count 2, possession of

heroin with the intent to deliver “on or about June 8, 2014.”

A179. Perrin claims the government instead argued at trial that

their firearms possession furthered the drug trafficking

conspiracy charged in Count 1, which alleged the conspiracy

existed from April 2013 until June 2014. He contends the

District Court compounded the government’s error by

instructing the jury that they could convict under Count 5 if the

defendants possessed the guns to further either the June 8th

possession offense (Count 2) or the drug trafficking conspiracy

(Count 1). According to Perrin, both subsection 924(c)

convictions must be vacated because these errors lowered the

government’s burden of proof by lengthening the period of

time—from one day to over a year—during which the jury

16

could find their possession of firearms furthered a drug

trafficking offense.

Neither defendant raised this argument before the

District Court so we will again review for plain error. Johnson,

520 U.S. at 465–66. We conclude that this constructive

amendment claim fails under the final condition: whether the

error alleged “seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 467 (alteration

in original) (quoting United States v. Young, 470 U.S. 1, 15

(1985)). Accordingly, we decline to exercise our discretion to

grant relief.

In the constructive amendment context, the fourth

condition of plain error is difficult to overcome if there is

strong evidence proving guilt of the crime as charged. Even if

the government and the District Court plainly erred by

constructively amending Count 5, such an error did not

seriously affect the proceedings’ fairness, integrity, or

reputation if the record was largely uncontroverted and

overwhelmingly proved the crime described in the indictment.

See United States v. Greenspan, 923 F.3d 138, 152 (3d Cir.

2019). Neither defendant contests their conviction for

possessing firearms on June 8, 2014 (Counts 3 and 4,

respectively) or their conviction for possessing heroin with the

intent to deliver on June 8, 2014 (Count 2). The only dispute,

therefore, is whether the record established that they possessed

the firearms to further their intent to deliver the heroin found

in their possession on June 8, 2014. If we conclude that

evidence sustaining Count 5 was overwhelming and

uncontroverted, there was no reversible error. See Id.

To further a drug trafficking offense, the “mere presence

of a gun” at the same location as the drugs is not enough.

United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004)

(internal quotation marks omitted). Instead, the evidence must

establish a connection between the two crimes, whereby the

guns “advanced or helped forward” the drug dealing offense.

Id. To determine whether such a connection exists, this Court

has applied these nonexclusive factors:

the type of drug activity that is being

conducted, accessibility of the firearm,

the type of the weapon, whether the

weapon is stolen, the status of the

possession (legitimate or illegal), whether

17

the gun is loaded, proximity to drugs or

drug profits, and the time and

circumstances under which the gun is

found.

Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409,

414–15 (5th Cir. 2000)).

On June 8, 2014, law enforcement watched the

defendants return to Montgomery’s home from a trip to New

Jersey, where they had met with their heroin supplier. Hours

later, the men returned to the car with a backpack. The agents

conducted a traffic stop and searched the car, finding $1,600 in

cash, seven cell phones, and 125 bricks of heroin in the

backpack. After obtaining a warrant, the agents searched

Montgomery’s house and found 1,500 bricks of heroin, 16 guns

stored with ammunition in the basement and master bedroom,

$21,000 in cash in the master bedroom and bathroom, a money

counter, and a cutting agent for the heroin.

Applied to this evidence, the Ceballos-Torres factors

overwhelmingly support a conviction under Count 5 as it

appears in the indictment. The car and house contained a

significant amount of heroin and drug paraphernalia on June 8,

2014, establishing that Perrin and Montgomery intended to

traffic the heroin. The guns were accessible to the occupants,

including a rifle found behind the headboard in the master

bedroom. The guns, consisting of shotguns, handguns, a TEC-

9 and a knock-off AK-47, were lethal firearms. Seven of the

recovered firearms were traced back to the transaction between

Perrin and Jeremiah Pashuta, where Perrin gave cash and

heroin to Pashuta for stolen guns and ammunition. Due to prior

convictions, neither Perrin nor Montgomery could lawfully

purchase or possess firearms. While the record did not specify

whether the guns were loaded, testimony established that they

were stored with ammunition. They were found in various

places within the same house as $21,000 in drug proceeds and

$300,000 worth of heroin. The search of the house was the

culmination of a year-long investigation, during which law

enforcement learned that the defendants ran an expansive and

profitable drug operation that employed couriers to transport

heroin across state lines.

More than merely sufficient, the evidence that the guns

furthered the heroin distribution business was overwhelming

and uncontroverted, which means any error at trial did not

18

seriously affect the proceeding’s fairness. See, e.g., United

States v. Thomas, 970 F.3d 809, 817 (7th Cir. 2020) (holding

evidence that guns possessed in furtherance of drug offense

was overwhelming where drugs and loaded guns were within

reach of one another in same location); United States v.

Robinson, 435 F.3d 1244, 1251 (10th Cir. 2006) (deeming

evidence of subsection 924(c) violation overwhelming where

rifle found in close proximity of drug manufacturing and

paraphernalia). Relevant to our analysis is that neither Perrin

nor Montgomery point to any portion of the record that refutes

the inference that the guns were integral to their business, nor

do they present a “plausible argument” that the guns did not

advance their plans to distribute the heroin uncovered on June

8, 2014. Johnson, 520 U.S. at 470. Moreover, in analyzing the

fourth prong of plain error review, this Court may view the

alleged error “against the entire record” when deciding

whether it “seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.” Young, 470 U.S. at 15–16

(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).

Viewed in this context, any claim of plain error is further

undermined by the fact that heroin was used to acquire seven

of the recovered guns, and the same type of ammunition found

in the house was used to shoot Tina Crawford to prevent her

cooperation with law enforcement. Because guns indisputably

advanced the plans to distribute the 1,625 bricks of heroin

found in the same house, any error causing Count 5 to be

constructively amended did not “undermine the fundamental

fairness of the trial and contribute to a miscarriage of justice.”

Id. at 16.

Finally, we note that Perrin and Montgomery, together

with the government, jointly submitted the jury instruction that

gave rise to this claim of court error. The proposed charge for

Count 5, which the District Court adopted, instructed the jury

to determine whether the firearms, if knowingly possessed,

were held in furtherance of the drug trafficking crimes alleged

in both Counts 1 and 2. Although we do not deem this claim

waived and foreclosed from review, see Virgin Islands v. Rosa,

399 F.3d 283, 290–91 (3d Cir. 2005), we recognize it is difficult

for Appellants to overcome the fourth prong of plain error

review if their own conduct invited the error. 7 Wayne R.

LaFave, et al., Criminal Procedure § 27.5(d) (4th ed. 2015) (“A

court is unlikely to find the fourth prong met if conduct by the

defense ‘invited’ the error” even if “the reviewing court

19

concluded those actions fell short of ‘waiver.’”); see, e.g.,

United States v. Lespier, 725 F.3d 437, 450–51 (4th Cir. 2013)

(holding defendant’s conviction of greater offense after he

opposed instruction on a lesser-included offense did not

threaten integrity of the justice system or represent a

miscarriage of justice under plain error review). Given the

overwhelming evidence proving the crime as charged and the

fact that Perrin and Montgomery proposed the instruction

underlying their convictions, any error here did not rise to the

level of plain error. We will therefore affirm their convictions

under Count 5.

IV.

Montgomery next challenges the legality of his life

sentence. Count 7 of the indictment charged him with killing

Tina Crawford to prevent her from communicating with law

enforcement in violation of 18 U.S.C. § 1512(a)(1)(C).12

Montgomery argues that, because the type of “killing” was not

specified in the charge or the District Court’s jury instruction,

he was charged and convicted of manslaughter, not murder. As

a result, his sentence of life imprisonment under Count 7

violates his Fifth and Sixth Amendment rights under Apprendi

and Alleyne.

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) held

that any fact that increases the penalty of the crime beyond the

statutory maximum must be submitted to the jury. Alleyne v.

United States, 570 U.S. 99, 103 (2013) held that any fact that

increases a sentence beyond the minimum mandatory sentence

must be submitted to a jury. Montgomery alleges both

12

The relevant portion of 18 U.S.C. § 1512 is as follows:

(a)(1) Whoever kills or attempts to kill another

person, with intent to—

* * *

(C) prevent the communication by any person to

a law enforcement officer or judge of the United

States of information relating to the commission

or possible commission of a Federal offense or a

violation of conditions of probation, parole, or

release pending judicial proceedings; shall be

punished as provided in paragraph (3).

20

holdings were violated because his life sentence exceeds both

the statutory maximum and mandatory minimum sentences for

manslaughter.

This Apprendi and Alleyne claim was preserved so we

will apply a harmless error standard of review. United States

v. Vasquez, 271 F.3d 93, 103 (3d Cir. 2001). Montgomery

contends that he alleges a sentencing error because he was

charged and convicted of manslaughter but sentenced for

murder. Under a sentencing error analysis, an error is harmless

if it did not contribute to the sentence imposed. United States

v. Lewis, 802 F.3d 449, 456 (3d Cir. 2015). Montgomery

argues the error of being sentenced for a crime more serious

than the one for which he was convicted cannot be deemed

harmless.

Montgomery’s characterization of his claim—that he

was charged and convicted only of manslaughter—is

unavailing. Count 7 charged Montgomery with killing Tina

Crawford with the intention of preventing the communication

of information relating to a federal offense to a federal law

enforcement officer. The intention behind the killing is

therefore an element of the crime defined in subsection

1512(a)(1)(C).13 Killing a witness to prevent her from talking

to law enforcement in violation of subsection 15(a)(1)(C)

encompasses an unlawful killing with malice aforethought, in

other words, murder. Montgomery was not therefore

sentenced for a different crime than he was charged and

convicted. Accordingly, a harmless trial error analysis is

appropriate. See United States v. Johnson, 899 F.3d 191, 198

(3d Cir. 2018) (concluding Alleyne error was trial error where

defendant was charged with the same crime for which he was

sentenced, but an element was not submitted to the jury). Thus,

in assessing Montgomery’s Apprendi/Alleyne claim, we must

13

Murder is defined in 18 U.S.C. § 1111(a) as “the unlawful

killing of a human being with malice aforethought.” If the

killing is “willful, deliberate, malicious, and premeditated,” it

is murder in the first degree and is punishable by life

imprisonment or death. 18 U.S.C. § 1111(a) and (b). Any other

murder is second degree murder, punishable by imprisonment

for any term of years or for life. Id. Life imprisonment is

therefore a legal sentence for either first- or second-degree

murder. See id.

21

determine whether a rational jury would have still found

Montgomery guilty beyond a reasonable doubt of killing Tina

Crawford under Count 7 if the elements of murder had been

submitted to the jury. Id. at 200 (quoting Lewis, 802 F.3d at

456).

We conclude a rational jury would have found

Montgomery guilty of Tina Crawford’s murder because the

elements of first-degree murder were submitted to the jury

under a different count. Count 8 charged Montgomery with

using a firearm to kill Tina in violation of subsection

1512(a)(1)(c), as charged in Count 7. Count 8 described the

killing as “a murder as defined in 18 U.S.C. § 1111,” where

Tina Crawford was killed “with malice aforethought” and

“willingly, deliberately, maliciously and with premeditation.”

A189. The jury instruction for Count 7 and Count 8 was as

follows:

Count 7 of the indictment charges Price

Montgomery with tampering with a witness by

killing a person on or about August 22, 2014.

In order to find the defendant Price Montgomery

guilty of this offense, you must find that the

government proved each of the following four

elements beyond a reasonable doubt: First, that

Mr. Montgomery killed Tina Crawford. Second,

that he was motivated by a desire to prevent the

communication between Tina Crawford and law

enforcement authorities concerning the

commission or possible commission of the

offense described in Count 2 [trafficking heroin].

Third, that the offense described in Count 2 was

actually a federal offense. Fourth, that he

believed that there was a reasonable likelihood

that Tina Crawford would, in fact, make a

relevant communication to law enforcement

authorities.

* * * *

Mr. Montgomery is charged at Count 8 with

using and discharging a firearm in relation to a

crime of violence resulting in death on or about

August the 22, 2014.

22

Count 8 of the indictment charges Price

Montgomery with carrying, using, and

discharging a firearm during a crime of violence,

specifically the crime charged at Count 7. I

instruct you that the offense alleged in Count 7 is

a crime of violence.

In order to find Price Montgomery guilty of the

offense charged at Count 8 of the indictment, you

must find the prosecution proved each of the

following four elements beyond a reasonable

doubt: First, that Price Montgomery committed

the crime of tampering with a witness by killing

a person as charged at Count 7. Second, that the

killing was a murder, that is, a willful, deliberate,

malicious, premeditated killing. Third, that

during and in relation to the commission of that

crime, Price Montgomery knowingly carried or

used a firearm.

* * * *

Fourth, that Price Montgomery carried or used

the firearm during and in relation to the crime of

tampering with a witness by killing a person.

A2328–31 (emphasis added). The jury found Montgomery

guilty of Count 8, thereby establishing that it found the killing

of Tina Crawford constituted first-degree murder. The District

Court did not err in relying on these findings in imposing a life

sentence for Count 7. Because the elements of first-degree

murder were submitted to the jury, the sentence of life

imprisonment for killing Tina Crawford did not violate

Apprendi or Alleyne, nor, by extension, the Sixth Amendment.

This conclusion is supported by the prior conviction

exception to the Apprendi and Alleyne rules. A defendant’s

prior conviction, arising from a previous judicial proceeding,

can impact the minimum or maximum statutory sentence

without running afoul of Apprendi and Alleyne. It would make

little sense for us to conclude that the District Court can base a

sentence on a jury’s findings from a prior proceeding but not

the jury’s findings from the same trial. Because this jury found

the necessary elements of first-degree murder beyond a

reasonable doubt, we agree with the government that granting

23

Montgomery a new trial would result in another fact-finder

making the same factual determinations that the jury made

here.

Montgomery does not refute that the elements of first-

degree murder were before and found by the jury. Nor does he

claim the facts of record were insufficient to sustain either

conviction tied to the killing of Tina Crawford. He instead

argues that the elements of first-degree murder found under

Count 8 could not be applied to his sentence for Count 7

because the text of Count 7 did not incorporate the allegations

in Count 8 by reference. Citing our decision in United States

v. Stevenson, 832 F.3d 412, 425 (3d Cir. 2016), Montgomery

argues applying the elements found under Count 8 to the

sentence imposed for Count 7 would violate his Fifth and Sixth

Amendment rights because he did not receive notice of his

potential life sentence for witness tampering by murder.

Initially, we note that this argument conflates the issue

of whether the indictment provided Montgomery with notice

with the issue of whether his sentence was in accordance with

Apprendi and Alleyne. Montgomery’s invoking our holding in

Stevenson does not challenge our decision that the District

Court imposed a life sentence based on facts the jury found

beyond a reasonable doubt. When determining whether a

count provides a defendant with notice of charges, Stevenson

requires that we regard each count in isolation, independently

of the other counts in the indictment. There is no equivalent

requirement that courts consider each jury finding in isolation

when constructing a sentence. The findings supporting the life

sentence were made by the jury and for that reason his

punishment under Count 7 did not run afoul of Apprendi or

Alleyne.14

14

In any event, Count 7 provided Montgomery with notice that

he faced a potential life sentence. The count conveyed that

Montgomery was being charged with killing a witness to

prevent her from speaking with law enforcement. He was

charged with an intentional killing and therefore given notice

of the “species of offence” facing him prior to trial. Apprendi,

530 U.S. at 478. Here, the “species” included murder in either

the first- or second-degree, both of which carry potential life

sentences. Under the notice argument as well, therefore,

Montgomery is not entitled to relief.

24

We will therefore affirm Montgomery’s life sentence for

the killing of Tina Crawford in violation of 18 U.S.C. §

1512(a)(1)(C).

V.

Montgomery next claims his trial counsel’s assistance

was ineffective for not objecting to the District Court’s

instruction defining aiding and abetting liability for Counts 8

and 10, charging violations of 18 U.S.C. § 924(c). Specifically,

he asserts the Court failed to instruct the jury that accomplice

liability requires a finding that he possessed advance

knowledge that a gun would be used to kill Tina Crawford and

attempt to kill her mother Patsy, as mandated by Rosemond v.

United States, 572 U.S. 65 (2014). Montgomery contends both

convictions must be vacated because the jury could have

convicted him without finding all the elements of either crime.

Montgomery recognizes that, because his counsel

jointly submitted the proposed jury instructions, the invited

error doctrine prohibits him from challenging any error on

direct appeal. He instead challenges the instruction through an

ineffective assistance of counsel claim, contending that his

counsel’s decision to agree to the instruction rendered his

representation constitutionally deficient. While Montgomery

acknowledges that ineffective assistance of counsel claims are

generally not addressed on direct appeal, he argues that review

in this instance would be appropriate because the trial record is

sufficient to decide his claim. We disagree.

Our reasons for declining review of ineffectiveness

claims on direct appeal are well established. To warrant relief,

Montgomery must show that his counsel’s actions were

unreasonable and resulted in prejudice. The Supreme Court in

Massaro v. United States, 538 U.S. 500, 505 (2003) reasoned

that a trial record is “not developed precisely for the object” of

addressing counsel’s performance and is “thus often

incomplete or inadequate” to assess an ineffectiveness claim.

Additional fact-finding is required to ascertain whether a

“seemingly unusual or misguided action” by counsel was

strategic or otherwise justified. Id. Under collateral review,

ineffectiveness claims are litigated before the trial court, which

is the “forum best suited” for “determining the adequacy of

representation during an entire trial.” Id.

25

Montgomery argues no additional facts are needed to

develop his ineffective assistance of counsel claim because this

Court has already decided that a nearly identical instruction

violated Rosemond. Johnson, 899 F.3d at 205. Reviewing for

plain error, the Johnson Court held the violation did not justify

relief because there was no reasonable probability that the

instruction affected the trial’s outcome. Id. Montgomery

claims Johnson’s finding of error proves he was prejudiced by

his counsel’s failure to object to the accomplice liability

instruction. But Massaro instructs that such a prejudice

determination requires exploring whether trial counsel’s

performance as a whole was adequate and whether the

contested action or inaction was reasonable. The record here

is not sufficient to make such a determination. See United

States v. Olfano, 503 F.3d 240, 246–47 (3d Cir. 2007)

(concluding that, without a record addressing why counsel

failed to ask for a continuance, this Court could not determine

whether his representation was prejudicial). See also United

States v. McLaughlin, 386 F.3d 547, 556 (3d Cir. 2004) (noting

the “lack of a fully developed record often precludes a

comprehensive inquiry” into counsel’s alleged error). 15

We abstain from reviewing Montgomery’s claim at this

stage to protect him from “having res judicata attach to the

ineffective assistance claim” on an undeveloped record. Virgin

Islands v. Vanterpool, 767 F.3d 157, 164 (3d Cir. 2014). We

will deny the claim without prejudice to his right to raise the

claim in a collateral proceeding.

VI.

Montgomery challenges his convictions arising from

the shooting of Patsy Crawford, who was shot at the same time

her daughter Tina was murdered. He argues the evidence is

15

We further note that the District Court never assessed the

efficacy of counsel’s performance at trial. Such an assessment

could have made review of Montgomery’s ineffectiveness

claim on direct appeal “both feasible and efficient.” United

States v. Washington, 869 F.3d 193, 203 (3d Cir. 2017); accord

United States v. Jones, 336 F.3d 245, 252–55 (3d Cir. 2003)

(addressing ineffectiveness claim where District Court held a

hearing to assess counsel’s representation of defendant in

entering guilty plea).

26

insufficient to prove that Patsy’s shooting qualifies as witness

tampering by attempted murder under 18 U.S.C. §

1512(a)(1)(C). Because the government introduced sufficient

evidence to support the jury’s finding that Montgomery

attempted to kill Patsy Crawford to prevent her from

communicating to law enforcement about her daughter’s

murder, we will affirm.16

The applicable standard for overturning a jury verdict

for insufficient evidence presents a high hurdle for any

appellant. “[T]he relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979). Our precedent accordingly counsels us

to sustain a jury verdict “as long as it does not fall below the

threshold of bare rationality.” United States v. Caraballo-

Rodriguez, 726 F.3d 418, 431 (3d Cir. 2013) (internal quotes

and citing authority omitted). It is the rare jury verdict that will

fail to meet that “bare rationality” standard.

Section 1512(a)(1)(C) prohibits the killing or attempted

killing of “another person” with the intention of preventing a

“communication” to law enforcement of “information relating

to the commission . . . of a Federal offense.” Our precedent

has delineated four elements the government must prove to

sustain a conviction.

First, the defendant killed or attempted to kill another

person. Second, the defendant was motivated by a desire to

prevent the communication between any person and law

enforcement authorities concerning the commission or

possible commission of an offense. Third, that offense must be

a federal offense. And fourth, a reasonable likelihood existed

that the person whom the defendant believed may

16

The government charged Montgomery with two counts of

violating 18 U.S.C. § 1512(a)(1)(C). Count 7 charged that

Montgomery killed Tina Crawford to prevent her from

communicating with law enforcement about his drug dealing

business. Count 9, meanwhile, charged that Montgomery

attempted to kill Patsy Crawford (Tina’s mother) to prevent her

from communicating with law enforcement about Tina’s

murder. The jury convicted on both counts. Montgomery now

challenges his conviction on Count 9.

27

communicate with law enforcement would in fact make a

relevant communication to a federal law enforcement officer.

United States v. Tyler, 956 F.3d 116, 123 (3d Cir. 2020).

As to the first element, we agree with the government

that the record supports the jury’s finding that Montgomery

either attempted to kill Patsy Crawford or aided and abetted an

attempt to kill her. The evidence established that Patsy was

shot and lay in “critical condition” in the garage on the other

side of the car from Tina. App. 1450, 1453. Considering the

evidence establishing Montgomery’s role in shooting Tina, the

only reasonable inference from the record is that he or one of

his accomplices shot Patsy as well. It was never established at

trial where or how many times Patsy was shot, or whether she

was directly targeted by the shooters. But the government

introduced evidence that 24 shell casings were found at the

scene of the shooting. Given the sheer number of bullets fired

into the garage, a reasonable juror could have inferred the

shooters intended to kill Patsy as well as Tina. Jackson, 443

U.S. at 324 (stating that sufficiency review of a challenged

conviction requires reviewing the record in the light most

favorable to the prosecution).

As to element two, the jury was required to conclude

that Montgomery was motivated to attempt to kill Patsy by a

desire to prevent her from communicating with law

enforcement about the commission of a federal offense, i.e.,

Tina’s murder. Resolving this question requires a brief foray

into statutory interpretation. We begin, as we must, with the

statutory text.

Section 1512(a)(1)(C) criminalizes “attempts to kill

another person, with intent to prevent the communication by

any person to a law enforcement officer or judge of the United

States of information relating to the commission or possible

commission of a Federal offense.” The statute plainly

encompasses a broad range of those who may make such a

communication: “[A]ny person.” Likewise, the

communication embraces a capacious subject matter:

Information relating to the commission of a federal offense.

Information is a broad term meaning “knowledge of a

particular event or situation.” Information, MERRIAM-

WEBSTER DICTIONARY (11th ed. 2020). And “relating to” is a

broad phrase, as well, that we interpret similarly to having “a

connection with.” Pugin v. Garland, 599 U.S. 600, 607 (2023).

28

So to violate the statute, a defendant must have an intent to

prevent a communication by any person of information that

relates to or has a connection with the commission of a federal

offense.

The government offered sufficient circumstantial

evidence for the jury to determine that Montgomery possessed

the requisite intent. The government introduced evidence

suggesting that Montgomery appeared at Patsy’s home because

he was on a venture to eliminate at least one federal witness.

He knew that agents had raided Tina’s home. He knew that

Tina had lied to him when she denied telling agents anything

that incriminated Montgomery. And he knew that Tina was

heading to a meeting with her lawyer, and then with federal

prosecutors, the day he killed her.17 The government

introduced evidence that Patsy was shot at least once and found

in critical condition. The jury heard testimony from a witness

that the gunmen quickly fled after the shooting. And the jury

also had before it evidence that police officers arrived at the

scene to investigate and that federal investigators became fully

involved in the investigation after the murder.

Drawing all inferences in the government’s favor, the

jury reasonably found that Montgomery possessed the requisite

intent to return a guilty verdict on Count 9. The jury was aware

that Montgomery knew that Patsy was an eyewitness to his

crime. She not only witnessed the shooting from beginning to

end but was also one of its intended targets. Montgomery

would have known that, as an eyewitness, Patsy could speak to

such things as: The number of shooters; the physical features

of the gunmen; and other details surrounding the ambush of her

and her daughter. All such information would have related to

the commission of a federal offense—Tina’s murder. The

17

Brown had a history of passing on to Montgomery

information concerning Tina. Tina texted Brown that she was

meeting with a lawyer, and Brown texted Montgomery 35

minutes before the shooting began. The jury could logically

have inferred from Tina’s text to Brown, coupled with Brown’s

history of passing on Tina’s communications to Montgomery,

that Brown informed Montgomery about Tina’s upcoming

meeting with a lawyer.

29

communication of that information falls within the statute’s

ambit.

And the jury could rightly infer that Montgomery would

have known to a reasonable certainty that Patsy would speak

to law enforcement unless he eliminated her as a witness. Any

citizen should reasonably expect that police will soon arrive to

investigate a shooting at which three to four assailants have

opened fire at a home. And an investigation entails interviews

of eyewitnesses. Moreover, the government introduced

evidence that Montgomery and the other assailants quickly fled

the scene, suggesting they knew police would soon arrive.

Hence, the jury could infer Montgomery knew not only that

Patsy had knowledge of details related to Tina’s murder, but

also that it was likely she would communicate those details to

law enforcement.

Lastly, the jury would have known that Montgomery

was on a mission to eliminate witnesses who were then likely

to communicate information about his crimes. The jury could

rely on common sense to draw the inference that Montgomery,

in eliminating a witness to one federal crime—drug

trafficking—would not at the same time choose to leave behind

a new witness to an entirely new crime: The murder of a

federal witness. A jury is always entitled to use common sense

in drawing reasonable inferences. United States v. Holmes, 406

F.3d 337, 351 (5th Cir. 2005). Furthermore, our circuit’s

model jury instructions—which the District Court used in

relevant part—task jurors with “decid[ing] what reasonable

inferences, if any, [they]’ll draw based on all the evidence and

[their] reason, experience, and common sense.” Third Circuit

Model Criminal Jury Instructions, Ch. 3 Final Instructions:

General, Pt. 3.03 Direct and Circumstantial Evidence

(emphasis added).

Taken together, these inferences support the jury’s

finding that Montgomery possessed the requisite intent to

prevent Patsy from communicating with law enforcement.

The third element is whether the offense Montgomery

sought to prevent Patsy from communicating about—here

murdering a federal witness—“was actually a federal offense.”

Tyler, 956 F.3d at 123. No one has disputed that Tina’s murder

in violation of 18 U.S.C. § 1512(a)(1)(C) constituted a federal

offense.

30

Finally, the government offered sufficient evidence to

make out the fourth element: A “reasonable likelihood that the

person whom the defendant believes will communicate with

law enforcement,” here Patsy, “would in fact make a relevant

communication with a federal law enforcement officer.” Tyler,

956 F.3d at 123. The government introduced evidence showing

that Patsy’s daughter Tina Crawford was a target of the

investigation into Montgomery.18 The government also

introduced evidence showing that Tina was scheduled to meet

with federal prosecutors to discuss a cooperation agreement the

day of her murder. And the government offered evidence from

which the jury could have inferred that Patsy witnessed Tina

being shot. Together, this evidence sufficed to establish

element four; federal law enforcement officers would of course

speak to an eyewitness to the murder of a target of a federal

investigation who was scheduled to meet with federal

prosecutors.

Indeed, a government witness testified that, after Tina’s

murder, the Bureau of Alcohol, Tobacco, Firearms and

Explosives “and all of its resources became involved in [the]

investigation.” Appx 1605–06. As final proof, an investigation

into Tina’s murder and Patsy’s attempted murder did take

place. “[T]he fact that a federal investigation ultimately

occurred . . . is probative evidence of the likelihood that

[witnesses] would have eventually communicated.” Bruce v.

Warden Lewisburg USP, 868 F.3d 170, 186 (3d Cir. 2017)

(vacated on other grounds).

Because the government offered sufficient evidence for

the jury to find all four elements of Taylor, we will affirm

Montgomery’s conviction under 18 U.S.C. § 1512(a)(1)(C) for

the attempted murder of Patsy Crawford to prevent her from

communicating to law enforcement about the murder of her

daughter.

VII.

Finally, we agree with Montgomery that the District

Court committed plain error by imposing a mandatory

consecutive 25-year sentence for Count 8, charging the use of

a firearm to kill Tina Crawford in violation of 18 U.S.C. §

18

Investigators intercepted several calls between Tina and

Montgomery. They tracked the movement of Tina’s car, and

they searched her apartment.

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924(j). The imposition of the consecutive sentence for a

subsection 924(j) conviction was consistent with our then-

controlling precedent in United States v. Berrios, 676 F.3d 118,

143 (3d Cir. 2012), but this decision was later overruled by the

Supreme Court in Lora v. United States, 599 U.S. 453, 458

(2023) (holding that “[s]ubsection [924](j) contains no

consecutive-sentence mandate”).

Montgomery did not object to this sentence at the time

that it was imposed, which means this claim is subject to plain

error review. “Error is plain when it is clear or obvious and

affects a defendant’s substantial rights.” United States v. Diaz,

90 F.4th 335, 348 (5th Cir. 2024) (citing Olano, 507 U.S. at

732–33 (1993)). The parties agree that imposing a mandatory

consecutive term constituted a clear error, but the government

contends Montgomery cannot establish the sentence impacted

his substantial rights. We disagree.

Here, the 25-year term of imprisonment for his

subsection 924(j) conviction was imposed to run consecutively

to Montgomery’s life sentence for the murder of Tina

Crawford. An error affects a defendant’s substantial rights if it

affects “the outcome of the district court proceedings.” Olano,

507 U.S. at 734. “Because we cannot say with complete

confidence that the court would have imposed the same

sentence” had the consecutive term not been deemed

mandatory, “we must conclude that the error affected

[Montgomery’s] substantial rights.” United States v. Payano,

930 F.3d 186, 198 (3d Cir. 2019) (internal quotations and

citations omitted). That Montgomery was sentenced to a

longer term of imprisonment than he would have been absent

the error is enough to establish prejudice, despite his life

sentence remaining intact. Olano, 507 U.S. at 734; Diaz, 90

F.4th at 348 (vacating sentence where district court did not

exercise discretion under Lora and imposed three consecutive

life sentences for subsection 924(j) convictions); see also

United States v. Ortiz-Orellana, 90 F.4th 689, 705 (4th Cir.

2024) (vacating sentence where term of imprisonment for

subsection 924(j) conviction was imposed consecutive to life

sentence).

Before exercising our discretion to correct the error to

Montgomery’s sentence, we determine whether the error

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Olano, 507 U.S. at 736. Even though

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the corrected sentence would not decrease the time

Montgomery spends in prison, he is sentenced to a term of

imprisonment longer than permitted by law. We recognize that

“the public legitimacy of our justice system relies on

procedures that are neutral, accurate, consistent, trustworthy,

and fair, and that provide opportunities for error correction.”

United States v. Henderson, 64 F.4th 111, 121 (3d Cir. 2023)

(quoting Rosales-Mireles v. United States, 585 U.S. 129, 141

(2018)) (internal quotation marks omitted). We will therefore

provide the opportunity for error correction by vacating the

sentence so that a sentence in accordance with the Lora

decision may be imposed.

VIII.

For the above reasons, we will affirm the convictions

and judgments of sentence for James Perrin. For Price

Montgomery, we will affirm the convictions and judgments of

sentence except for the term of imprisonment imposed for

violating 18 U.S.C. § 924(j) (Count 8), which we will vacate

and remand for resentencing consistent with this opinion.

33