United States v. Weatherly

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

3-31-2008

USA v. Weatherly

Precedential or Non-Precedential: Precedential

Docket No. 07-1019

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-1019

UNITED STATES OF AMERICA

v.

THOMAS WEATHERLY,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(District Court No. 06-cr-00258)

District Judge: Honorable Anne E. Thompson

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 14, 2008

Before: FUENTES, CHAGARES, and VAN ANTWERPEN,

Circuit Judges.

(Filed: March 31, 2008)

Lisa Van Hoeck, Esq.

Office of Federal Public Defender

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, NJ 08609

Counsel for Appellant

Eric H. Jaso, Esq.

George S. Leone, Esq.

Steven G. Sanders, Esq.

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Appellant Thomas Weatherly appeals from the

judgment of conviction and sentence entered by the District

Court for the District of New Jersey on December 20, 2006.

For the following reasons, this Court will affirm.

I.

2

At approximately noon on August 31, 2005, Officer

John Ryel observed Thomas Weatherly sitting in Zelley Alley

in Trenton, New Jersey. Appendix (“App.”) at 144. As

Officer Ryel approached Weatherly, he realized that

Weatherly was drinking alcohol in public in violation of a city

ordinance. Id. at 144-45. When requested by Officer Ryel,

Weatherly provided his name and identification, and Officer

Ryel radioed this information into a police dispatch in order to

conduct a warrant check. Id. at 146-47. During this

encounter, Weatherly made no attempt to resist arrest or

otherwise flee. Id. at 173.

Upon hearing back from the police dispatch, Officer

Ryel learned that Weatherly had an active warrant out for his

arrest. App. at 149. A few minutes prior to receiving the call

about the active warrant, in response to a call to radio dispatch

by Officer Ryel, Detective Luis Medina arrived at the scene.

Id. at 210A-11, 148-49. Both Officer Ryel and Detective

Medina stated that as they were helping Weatherly to his feet

in order to arrest him for the active warrant, they observed a

handgun protruding out of the waistband in the rear of his

pants. Id. at 149, 211-12. Upon seeing the weapon, Detective

Medina seized the gun and the officers handcuffed and

arrested Weatherly. Id. at 150, 212.

Weatherly was charged in an indictment with violating

18 U.S.C. § 922(g)(1), as a prior convicted felon in

3

possession of a firearm.1 App. at 14. Weatherly’s defense at

trial “was that the officers found the firearm in question in the

alley near Mr. Weatherly, assumed it was his, and embellished

their story to strengthen their case against him.” Defendant’s

Brief (“Def. Br.”) at 7; see also App. at 297. In support of this

theory, Weatherly introduced the following evidence at trial.

First, Weatherly described a discrepancy in the

testimony of the officers as to whether Weatherly was sitting

throughout the entirety of the encounter. Def. Br. at 7.

Officer Ryel’s testimony seems to indicate that Weatherly was

seated throughout the encounter.2 App. at 149, 172.

However, Detective Medina stated that Weatherly was

standing at some point during the encounter, and was told to

sit while Officer Ryel and Detective Medina waited for a

response about the warrant check.3 Id. at 211-12.

1

Weatherly was also charged with violating 18 U.S.C. §

924(e)(1), which provides for a mandatory minimum sentence

of fifteen years for a felon-in-possession convicted under 18

U.S.C. § 922(g) who also has sustained three or more

convictions for violent felonies or serious drug offenses.

2

It is not entirely clear that Officer Ryel stated that

Weatherly was seated throughout the entire encounter, only that

he was seated when Officer Ryel first observed him and was

seated when advised of the active warrant.

3

Weatherly argues that this discrepancy is important,

because if Weatherly was standing at some point prior to the

4

In addition, Weatherly offered evidence to attempt to

prove that it was common to find abandoned guns in Zelley’s

Alley. Detective Jerome James Commiso testified that 152

abandoned guns were found in Trenton, New Jersey during

2005. App. at 233. However, on cross examination,

Detective Commiso stated that no abandoned guns were

recovered in Zelley Alley (or the immediately surrounding

area) during 2005. Id. at 242. Weatherly also introduced the

testimony of Carniell Peagler, a 20-year-old ex-convict who

testified that while playing pickup baseball4 in a field adjacent

to Zelley Alley, he observed gang members stashing or

discarding guns in Zelley Alley. Id. at 257.

Weatherly also offered evidence in an attempt to

demonstrate that he was not in possession of a weapon shortly

before the arrest. Bernadette Humphrey, Weatherly’s wife’s

adult daughter, testified that when Weatherly left the house at

approximately 11:20 a.m., she never saw “the handle of a

handgun sticking out of his pants” or “any bulges in his

waistband area.” App. at 307. Longino Martinez, who

worked at the liquor store where Weatherly (a regular

customer) allegedly bought his alcohol, stated that during

arrest for the active warrant, Officer Ryel and Detective Medina

should have been able to see the gun. Def. Br. at 7.

4

Despite testifying that he played baseball “five days out

of a week” during the summer, Peagler was unable to remember

what position he played and admitted that he did not know the

positions in baseball. App. at 261-63.

5

August 2005 he never observed a customer with a gun and

would have called the police if he had. Id. at 284-85.

However, on cross examination, Mr. Martinez testified that he

did not recall August 31, 2005 in great detail, and he further

testified that he does not pay a lot of attention to Weatherly

when he is in the store. Id. at 288-89.

Before trial began, Weatherly submitted the following

proposed “mere presence” jury instruction in order to explain

to the jury the legal justification for his defense theory: “Mere

presence in the area of any contraband, including a firearm, or

awareness of its location is not sufficient to establish

possession.” App. at 63. After the judge declined to include

the “mere presence” instruction in her proposed jury charge

on the issue of possession, Weatherly objected and explained

that the “mere presence” instruction went to the very heart of

his defense. Id. at 297-298. The District Court, however,

stated in response to the request to include the “mere

presence” instruction, “I don’t think it’s relevant.” Id. at 298.

Instead, the District Court gave the following

instructions to the jury regarding the issue of “possession”:

In order to sustain its burden of proof for

the crime of possessing a firearm as charged in

the indictment, the Government must prove . . .

that the defendant knowingly possessed the

firearm described in the indictment.

***

6

To possess means to have something

within your control. This does not necessarily

mean that you must hold it physically, that is to

have actual possession of it. As long as the

firearm is within your control, you would possess

it.

Proof of ownership is not required. The

Government is not required to prove that at the

time of possession the defendant knew he was

breaking the law. It is sufficient if you find that

the defendant knowingly possessed the firearm

charged.

Knowingly is defined as knowledge,

voluntarily and intentionally, and not because of

mistake or accident or other innocent reason.

***

Now, to possess means to have it within

the person’s control. That does not mean, and I

said earlier, it doesn’t have to be held physically.

It doesn’t even have to be on the person. But in

this case, the proofs and the allegations are that

the defendant had it on his person [and] had

actual possession of it. In other words, you can be

in possession of a weapon in your car and you can

be 25-50 feet from the car. But that’s not this

case. That’s all I’m saying. This case, the

allegation is that the defendant had possession of

7

it, actual possession on his person.

To satisfy the possession element, you

must find that the defendant knowingly possessed

– we said that earlier.

App. at 343-46.

In summation, Weatherly conceded that he was only

contesting the issue of whether he “possessed” the gun. App.

at 364. Weatherly argued that his guilt hinged upon the

credibility of Officer Ryel and Detective Medina, id., and he

asserted that Ryel and Medina lied in their testimony. Id. at

370-72. In rebuttal, the Government argued that Weatherly

failed to show any reasons why Ryel and Medina would lie.

Id. at 384. Towards the end of his rebuttal, the Government

posed this rhetorical question: “Why would Officer Ryel and

Detective Medina risk their 32-34 years of experience on the

police force over this case?” Id. at 396. Weatherly’s attorney

objected to this statement as “vouching for the witnesses,” but

the District Court never ruled on the objection. Id. at 396-

397.

On September 8, 2006, the jury returned a guilty

verdict against Weatherly. App. at 2. At the sentencing

hearing on December 15, 2006, Weatherly argued that the

application of the Armed Career Criminal Act, and

particularly 18 U.S.C. § 924(e)(1), violated his Fifth and Sixth

Amendment rights. Id. at 409-10. However, the District

Court disagreed, and sentenced Weatherly to 200 months’

imprisonment, to be followed by five years’ supervised

8

release. Id. at 418-19. Weatherly filed a timely notice of

appeal on January 4, 2007. Id. at 1.

II.

The District Court had subject matter jurisdiction

under 18 U.S.C. § 3231. This Court has appellate jurisdiction

to review the defendant’s appeal of his conviction and

sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Because a different standard of review applies to each

of Weatherly’s three issues, these standards will be addressed

individually with respect to each issue in the analysis section.

III.

A. Jury Instructions

The District Court’s refusal to give a requested jury

instruction is reviewed for abuse of discretion. United States

v. Flores, 454 F.3d 149, 156 (3d Cir. 2006). “A defendant is

entitled to an instruction on his theory of the case where the

record contains evidentiary support for it.” United States v.

Davis, 183 F.3d 231, 250 (3d Cir. 1999). “A court errs in

refusing a requested instruction only if the omitted instruction

is correct, is not substantially covered by other instructions,

and is so important that its omission prejudiced the

defendant.” Id. Because the actual instructions substantially

covered Weatherly’s requested “mere presence” instruction

and because Weatherly was not prejudiced by the District

Court’s refusal to give the “mere presence” instruction, the

9

District Court did not err in refusing to include Weatherly’s

proposed instruction in her actual jury instructions.

Weatherly argues that because the actual instructions

failed to include the explanation that the defendant had to

“intend to exercise dominion and control” 5 over the firearm,

the actual instructions did not substantially cover his

requested instruction. Def. Br. at 15. As a result, Weatherly

argues that the jury could have found him guilty even if they

believed his defense, because the actual instructions defined

possession to include the situation where the firearm was

simply near him or susceptible to his control. Id. However,

this is an incorrect interpretation of the actual jury

instructions.

At two different points during the jury instructions,

once at the beginning and once at the end, the District Court

clearly indicated that the government must prove that

Weatherly “knowingly possessed” the firearm in order to find

him guilty. App. at 343, 346. The District Court stated that

“[k]nowingly is defined as knowledge, voluntarily and

5

Although Weatherly objected to the District Court’s

rejection of his proposed “mere presence” instruction, Weatherly

failed to object to the District Court’s instructions defining

“possession” and “knowingly.” App. at 296-98. Therefore, we

review any alleged error in the actual jury instructions for plain

error, and we conclude that Weatherly’s arguments fail under

this standard. Gov’t of Virgin Islands v. Smith, 949 F.2d 677,

681 (3d Cir. 1991).

10

intentionally, and not because of mistake or accident or other

innocent reason.” Id. at 344-45. The District Court defined

“possession” to mean “to have something within your

control.” Id. at 344. Putting those two definitions together,

the District Court’s jury instructions defined the “possession”

element of the felon-in-possession statute to mean “to

voluntarily and intentionally have [a firearm] within your

control.” Id. at 343-46. Therefore, the actual jury instructions

covered Weatherly’s proposed “mere presence” instruction,

because the jury could not find that Weatherly knowingly

possessed the firearm under the actual jury instructions due

simply to his “[m]ere presence in the area of any contraband,

including a firearm, or awareness of its location.” Id. at 63,

343-46.

Alternatively, even if the actual jury instructions did

not substantially cover Weatherly’s proposed jury instruction,

the District Court did not err because the “mere presence”

instruction was not “so important that its omission prejudiced

the defendant.” See Davis, 183 F.3d at 250. At trial, the

Government’s theory was that Weatherly actually possessed

the firearm. See App. at 355 (Government’s closing

statement). In addition, the District Court’s jury instructions

made it clear at several points that this was a case of actual

possession, not constructive possession.6 The “mere

6

“But in this case, the proofs and the allegations are that

the defendant had it on his person [and] had actual possession of

it. In other words, you can be in possession of a weapon in your

car and you can be 25-50 feet from the car. But that’s not this

11

presence” defense is clearly not relevant or applicable to a

case where the Government’s allegations and the District

Court’s instructions limit the theory of “possession” to actual

possession. See, e.g., United States v. Meads, 479 F.3d 598,

601-02 (8th Cir. 2007). Because the “mere presence”

instruction is not relevant to this actual possession case,

Weatherly was not prejudiced by the omission of his proposed

jury instruction; therefore, the District Court did not err in

refusing to give the proposed instruction.

B. Vouching

In order for vouching to be improper, the prosecutor’s

assurance of a witness’s credibility must be “‘based on either

the prosecutor’s personal knowledge, or other information not

contained in the record.’” United States v. Harris, 471 F.3d

507, 512 (3d Cir. 2006) (quoting United States v. Walker, 155

F.3d 180, 187 (3d Cir. 1998)). Weatherly contends that the

prosecutor improperly vouched for the credibility of the

government witnesses by posing the following rhetorical

question: “Why would Officer Ryel and Detective Medina

risk their 32-34 years of experience on the police force over

this case?” App. at 396. This Court concludes that the

statement made by the prosecutor in his rebuttal was not

improper for two reasons.

case. That’s all I’m saying. This case, the allegation is that the

defendant had possession of it, actual possession on his person.”

App. at 345-46.

12

First, although we acknowledge that in some cases

statements that a police officer would be risking his career to

lie under oath are improper vouching,7 the statements by the

7

In United States v. Pungitore, 910 F.2d 1084, 1125 (3d

Cir. 1990), this Court determined that the prosecutor’s vouching

was improper where “there was no evidence backing the

prosecutor’s comments that the U.S. Attorneys and law

enforcement officers could not have behaved as unscrupulously

as defense counsel alleged they did without violating their oaths

of office and jeopardizing their careers.” However, the

Pungitore case dealt with a situation where the prosecutor

invoked his own oath of office to defend the credibility of

government witnesses, a situation that greatly concerned this

Court and one which is not before us today. Id.

This Court also notes that we look favorably upon the

comments of Judge McKee, who responded as follows to a

similar argument by the prosecutor in the case before him: “That

argument [that the government agent would not risk his career

to lie] was forceful, responsive, and absolutely proper. The

Assistant U.S. Attorney was asking the jury to reach a common

sense conclusion that the agent had too much to lose to commit

perjury merely to convict this defendant. It was the kind of

effective and logical response to an attack on an agent’s

credibility that has been made in countless numbers of closing

arguments, and will be made in countless more.” United States

v. Bethancourt, 65 F.3d 1074, 1082 (3d Cir. 1995) (McKee, J.,

dissenting) (dissenting from the majority’s conclusion that other

improper statements by the prosecutor did not constitute plain

error).

13

prosecutor in this case were proper because they were based

on evidence in the record. During Officer Ryel’s redirect, the

prosecutor asked Ryel what would be taken into consideration

by his superiors in making the decision of whether to promote

him from the position of police patrol officer (an entry level

position that Ryel currently held) to Sergeant (a supervisory

position). App. at 184. Ryel testified that in addition to the

result on the written exam and sick time, he stated his

superiors would consider “disciplinary action taken against

[him] if [he] had any.” Id. at 185. Although not actually

introduced into evidence, the average juror could easily infer

that a police officer who conspired with another officer to

deliberately fabricate evidence and perjured himself in open

court while testifying under oath in an official capacity would

risk at least some sort of disciplinary action. Therefore, the

prosecutor’s rhetorical question about why the police officers

would risk their careers to testify falsely against this single

defendant was proper because it called for an inference

directly based upon evidence in the record.

Second, the prosecutor’s statement in this case was not

improper vouching because it was a reasonable response to

allegations of perjury by Weatherly’s attorney. When

determining whether a prosecutor’s statements improperly

vouched for a witness’s credibility, the statements must be

considered in context. United States v. Brennan, 326 F.3d

176, 186 (3d Cir. 2003). In this case, the prosecutor gave his

closing argument first, and there are no statements from that

portion of his argument at issue here. App. at 350-59. Then,

Weatherly’s attorney delivered her closing argument, which

presented the defense’s single theory: the police officers

14

found a gun near the defendant, conspired with each other to

lie about the incident, and then proceeded to perjure

themselves in court. Id. at 360-79. Defense counsel

speculated at some length that the officers fabricated their

story because they were under “enormous pressure” and

wanted to demonstrate that they were “relevant” because

“there’s terrible crime in Trenton.” 8 App. at 371-72. It is

8

The defense counsel told the jury:

If they thought the gun

was his, does it make sense that

they would decide that the ends

would justify the means? And

consider the climate in which

they work. There’s terrible

crime in Trenton.

My goodness, you’re

hearing that there were 152

found and abandoned guns. . . .

[T]hat is a terrible problem in

Trenton. This is the climate in

which these officers work.

***

These are two officers on

the same police force, the same

fraternity if you will. Both

trying and struggling with the

crime that’s facing Trenton

right now and was facing

Trenton last summer.

15

permissible for counsel to argue inferences, but an inference

must flow logically and convincingly from the facts in the

record. See United States v. Navarro, 145 F.3d 580, 593 (3d

Cir. 1998). Defense counsel’s argument in this case crossed

the line, urging the jury to speculate rather than infer. It was

only in response to these accusations, in his rebuttal, that the

prosecutor felt the need to address the credibility of the two

So ask yourself whether

or not it makes sense whether

these officers are under

enormous pressure. They’re

under enormous pressure to

attempt to demonstrate that they

are making a difference in the

crime that is facing Trenton,

that they’re making a difference

by making an arrest. Maybe

you can understand that.

Maybe you can understand that

sometimes when we’re under

pressure, we feel this enormous

burden and we want to

demonstrate that we’re relevant,

that we are making a difference.

***

It’s been said that how

you treat the least of my

brothers is how you treat me.

App. at 371-72.

16

witnesses whom the defense attorney painted as not credible.

When looked at in context, this Court concludes that the

statement was nothing more than a brief and appropriate

response to the defense attorney’s speculation and attacks on

the credibility of the government witnesses.9

Even if we had determined that the prosecutor’s

statement was improper vouching, it would have been

harmless error. This Court reviews improper vouching for

witness credibility under the harmless error standard.10

9

Although there was evidence that 152 guns were found

on the streets of Trenton in 2005, there was no direct evidence

that the officers were “under enormous pressure to attempt to

demonstrate that they are making a difference in the crime that

is facing Trenton, that they’re making a difference by making an

arrest.” App. at 372. In fact, the evidence was to the contrary.

During redirect, Officer Ryel stated that his superiors were not

focused on foot patrol officers making arrests, but rather were

“primarily focused on quality of life issues,” such as drinking in

public. Id. at 185-86.

10

The Government argues that because Weatherly failed

to request relief (i.e. mistrial), this Court should only review the

vouching issue for plain error. Gov’t Br. at 28 (citing United

States v. Richards, 241 F.3d 335, 341-42 (3d Cir. 2001)).

Weatherly made a contemporaneous objection after the

prosecutor asked, “Why would Officer Ryel and Detective

Medina risk their 32-34 years of experience on the police force

over this case?” App. at 396. The District Court never ruled on

17

United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995).

“[V]ouching that is aimed at the witness’s credibility and is

based on extra-record evidence is deemed non-constitutional

error.” United States v. Dispoz-O-Plastics, Inc., 172 F.3d

275, 286 (3d Cir. 1999). This Court finds non-constitutional

error harmless when “it is highly probable that the error did

not contribute to the judgment.” Id. (quoting Gov’t of Virgin

Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)). To

determine if the defendant was prejudiced, the Court must

consider “the scope of the comments and their relationship to

the proceeding, the extent of any curative instructions, and the

strength of the evidence against defendants.” Dispoz-O-

Plastics, 172 F.3d at 286.

Here, even if the rhetorical question posed by the

prosecutor is considered improper vouching, any error

stemming from the comment was harmless. First, as stated

above, this comment was made in rebuttal, in response to

speculation and an attack by the defense attorney on the

this motion, and we do not fault Weatherly for failing to seek

relief. Therefore, we review this statement under a harmless

error standard.

However, all other statements contained in the

prosecutor’s closing argument and rebuttal were not timely

objected to, and any arguments regarding improper vouching

related to these other statements would be subject to plain error

review. United States v. Harris, 471 F.3d 507, 512 (3d Cir.

2006). Under this more stringent standard, we conclude that

none of the other statements warrants reversal.

18

credibility of the government witnesses. As such, it is likely

that the jury simply viewed this statement as a response to the

defendant’s accusations. In addition, this statement was brief

and isolated, when it is considered that the prosecutor’s

rebuttal alone stretches for 18-pages in the transcript. App. at

379-397. Therefore, it is highly unlikely that this statement

had any influence on the jury. Finally, prior to the closing

arguments, the judge thoroughly instructed the jury as to the

nature of counsel’s arguments and credibility issues.11 These

instructions make it highly probable that the alleged improper

vouching by the prosecutor did not contribute to the jury

finding Weatherly guilty. See Dispoz-O-Plastics, 172 F.3d at

286. For all of the above reasons, even if the prosecutor’s

statement was improper vouching, this Court concludes that

the improper vouching was harmless because we have a “sure

conviction that the error did not prejudice” Weatherly. See id.

C. Constitutionality of the Armed Career Criminal Act

This Court reviews challenges to the constitutionality

of a statute under a de novo standard of review. United States

v. Singletary, 268 F.3d 196, 198-99 (3d Cir. 2001).

11

The District Court told the jurors that the statements of

counsel are meant to persuade, and should be considered as

argument, not evidence. App. at 331. Also, the judge told the

jurors that they are the sole judges of credibility, and that the

testimony of law enforcement officers does not deserve any

more weight than the testimony of non-government employee

witnesses. Id. at 338-40.

19

Weatherly challenges the constitutionality of the Armed

Career Criminal Act, which imposes a mandatory minimum

fifteen-year prison sentence for felons-in-possession

convicted under 18 U.S.C. § 922(g) who have sustained three

(or more) convictions for violent felonies or serious drug

offenses. 18 U.S.C. § 924(e)(1). Specifically, Weatherly

asserts that the statute is unconstitutional because the jury, not

the District Court, should determine whether any of his prior

convictions qualified as “violent felonies” or “serious drug

offenses” under 18 U.S.C. § 924(g)(1). However, as

Weatherly concedes, this argument was rejected already by

this Court in United States v. Coleman, 451 F.3d 154, 161 (3d

Cir. 2006).12 In light of our decision in Coleman, therefore,

we reject Weatherly’s argument that the Armed Career

Criminal Act is unconstitutional.

IV.

We have considered all other arguments made by the

parties on appeal, and conclude that no further discussion is

necessary. For the above reasons, the conviction and sentence

of the District Court will be affirmed.

12

Weatherly raises this issue before this Court only to

preserve the issue for review.

20