Petition for Writ of Certiorari — Joshua Peters, Petitioner v. United States

APPENDIX

TABLE OF APPENDECES

Appendix A, Non-Precedential Opinion of the

U.S. Court of Appeals for the Third Circuit

(Jordan, Phipps, and Freeman, JJ.) (Mar. 14, 2024)

Appendix B, Memorandum Order of the

U.S. District Court for the Western District of

Pennsylvania (Schwab, J.) (Nov. 9, 2022)

APPENDIX A

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 23-1725

_______________

UNITED STATES OF AMERICA

v.

JOSHUA PETERS,

Appellant

_______________

On Appeal from the United States District Court

For the Western District of Pennsylvania

(D.C. No. 2-22-cr-00220-001)

District Judge: Honorable Arthur J. Schwab

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 4, 2024

Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges

(Filed: March 14, 2024)

_______________

OPINION

_______________

JORDAN, Circuit Judge.

A jury convicted Joshua Peters of one count each of drug trafficking, possession of

a firearm in furtherance of drug trafficking, and being a felon in possession of a firearm



This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,

does not constitute binding precedent.

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and ammunition. Peters challenges his convictions and the District Court’s application of

a sentencing enhancement for obstruction of justice. Because his arguments lack merit,

we will affirm.

I.

BACKGROUND

Peters was a drug dealer who trafficked large quantities of cocaine and fentanyl in

Mercer County, Pennsylvania. Following a series of controlled purchases by a

confidential informant, police executed a search warrant at Peters’s home and found

drugs and drug paraphernalia, money, and six firearms, plus ammunition. [The

Commonwealth of Pennsylvania charged Peters with essentially the same crimes for

which he was later federally prosecuted.

The United States adopted the case, and a federal grand jury indicted Peters for

possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C), possession of a firearm in furtherance of drug trafficking in violation of 18

U.S.C. § 924(c)(1)(A)(i), and being a felon in possession of a firearm and ammunition in

violation of 18 U.S.C. § 922(g)(1). He had a prior felony conviction in Pennsylvania for

possession with intent to distribute cocaine and had been sentenced to not less than 182

days’ and not more than 12 months and two days’ imprisonment.

On September 2, 2022, federal law enforcement attempted to arrest Peters at his

parents’ residence, but he was not there. At that time, however, officers spoke with

Peters on the phone and arranged for him to turn himself in. He never did. Peters was

scheduled to appear at a corresponding proceeding in state court on September 7, so

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officers tried to arrest him then, but he failed to appear. Eventually, at around 3:00 am on

September 9, police arrested Peters in a convenience store parking lot.

The District Court set trial for December of 2022. Before trial, Peters filed a

motion in limine to bar the government from introducing evidence that he had not

obtained fingerprint and DNA tests on the recovered firearms. He argued that such

evidence would constitute improper burden shifting, allowing a jury to infer that he could

have proved his innocence by having the guns tested. The Court granted the motion in

part. It stated, “if [Peters] here puts on … evidence to show that the Prosecution did not

test the weapons at issue for fingerprints or DNA, the Government may use its closing

argument to issue a comment that points to a lack of testing conducted by either party.”

(App. at 12.)

During trial, the government asked its final witness, City of Hermitage police

officer Marc Frampton, whether the evidence found inside Peters’s home “was … made

available for testing by the defense?” to which Frampton answered, “Yes.” (App. at

211.) Peters’s counsel objected, citing the Court’s pre-trial ruling, and moved for a

mistrial. The Court overruled the objection, finding that the question did not violate its

prior order.

The government also put on evidence regarding Peters’s knowledge of his prior

state felony conviction and sentence, which precluded him from owning a gun. The

parties stipulated that he had been convicted of a crime punishable by imprisonment for a

term exceeding one year. The government introduced testimony from someone who

spoke with Peters about Peters’s inability to lawfully own a firearm (App. at 158 (“Mr.

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Peters told me he was a felon and he was not allowed to own guns.”)), as well as

testimony from Officer Frampton that in the Mercer County Court of Common Pleas,

where Peters was sentenced, the “[s]tandard practice” is that a defendant learns of his or

her sentence when the judge reads it in open court (App. at 177-78). The government

also entered into evidence Peters’s sentencing order, which states that “[t]he defendant is

required to undergo incarceration for a period of not less than 182 days, nor more than 12

months and 2 days.” (App. at 177, 352.)

The government rested and Peters moved for judgment of acquittal on the firearm

offenses, which the Court denied. The following day, both sides gave closing arguments.

In closing, Peters’s counsel asked why the government did not test the recovered bullets

for fingerprints. As a result, on rebuttal, the government noted that “all [of] the evidence

… was made available for defense testing as well. If the defense thought that there was

something meaningful … the defense could have tested it[.]” (App. at 298.) Peters

renewed his motion for a mistrial, but the Court denied it.

The jury convicted Peters on all three counts of the indictment. [The District

Court scheduled sentencing and Peters filed objections to his Presentence Investigation

Report, particularly a two-level enhancement for obstruction of justice under U.S.S.G.

§ 3C1.1. At sentencing, the Court overruled the objection and applied the enhancement,

finding as fact that Peters evaded arrest on September 2 and that he failed to appear at his

state court proceedings despite knowing of the federal arrest warrant. The Court

sentenced Peters to two 120-month terms of imprisonment, to run concurrently, and one

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60-month term of imprisonment, to run consecutively, and a three-year term of

supervised release. This appeal timely followed.

II.

DISCUSSION1

Peters challenges his convictions and sentence, arguing that the District Court

should have granted his motion for a mistrial, that there was insufficient evidence for his

felon-in-possession conviction, and that the Court incorrectly applied an obstruction-ofjustice sentencing enhancement.

1.

The District Court correctly denied Peters’s motions for mistrial.2

Peters challenges his convictions, arguing that the District Court should have

granted a mistrial because the government improperly shifted the burden of proof by

introducing evidence that he did not conduct forensic testing on the recovered firearms.

It is well settled that prosecutors “may not improperly suggest that the defendant

has the burden to produce evidence.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.

1996). But, when the defense advances an argument, the prosecution may make, in

closing, a “comment that points to a lack of evidence in the record which supports …

[that] argument,” United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998), or one that

“attempt[s] to focus the jury’s attention on holes in the defense’s theory.” Balter, 91 F.3d

at 441.

1

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

2

We review a denial of a motion for mistrial for abuse of discretion. United

States v. Noble, 42 F.4th 346, 354 n.9 (3d Cir. 2022).

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The government, during direct examination, asked one question of Officer

Frampton regarding fingerprint testing: “Was the evidence that was found inside

[Peters’s house], was that made available for testing by the defense?” (App. at 211.)

Frampton replied, “Yes.” (App. 211.) Peters objected and moved for mistrial on the

basis that he had been careful not to previously introduce evidence related to the lack of

testing or fingerprints.3 The government argued in opposition that the order directed

what it was allowed to argue in closing and “[w]ithout that question, there would be no

foundation for the comment that th[e] [C]ourt authorized [it] to make in closing[,]”

should Peters open the door. (App. at 212.) The Court sided with the government and

overruled the objection. Even if the question violated the Court’s pretrial order, which

we need not decide, the Court did not abuse its discretion by denying the motion for a

mistrial. Viewing the record as a whole, that single question did not shift the

government’s burden; it preserved for the government the possibility of noting the lack of

testing in closing.

Later, during closing argument, Peters’s counsel asked the jury: “You know how

you prove beyond a reasonable doubt pretty conclusively who possessed things? Test it.”

(App. at 283.) While noting that Detective Eric Harpster testified regarding the futility of

3

This is not exactly so. Peters, not the government, actually first elicited

testimony about fingerprint testing during his cross-examination of Detective Eric

Harpster. Counsel asked that if Harpster was to find a gun, he “wouldn’t just pick it up

with your bare hands, [he] would pick it up with like a pen or glove. Right?” to which

Harpster replied, “No,” because he wouldn’t worry about trying to get a fingerprint off a

gun. (App. at 93-94.) But, he continued, “[s]ometimes if you’re going to get … a print,

you’ll get the print off the bullet.” (App. at 94.)

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attempting to fingerprint firearms, Peters argued that the government could have pulled

prints “[o]ff of bullets[,]” as Harpster suggested, and asked again, “Why didn’t they test

that? Why did they leave that to your imagination? What are they concerned about?”

(App. at 284.)

Only on rebuttal did the government then note that the “physical evidence … was

made available for defense testing as well. If the defense thought that there was

something meaningful – you actually could get something meaningful from that

evidence, the defense could have tested it as well.” (App. at 298.) It made those

comments shortly after reminding the jury that “the defense has no obligation to present

evidence.” (App. at 296.)

Peters moved for a mistrial again after closing, arguing that he did not put on a

case and only made an argument about the lack of evidence. The government responded

that Peters presented evidence about fingerprinting in cross-examination and, during

closing, implied that additional testing should have been done, which made the rebuttal

proper. The Court sided with the government and denied the motion because it

“believe[d] the argument made by prosecution in closing was proper and did not in any

way imply or shift the burden of proof to the defendant.” (App. at 304.) There was no

abuse of discretion in that ruling. Walker, 155 F.3d at 187.

In denying Peters’s motion, the District Court correctly noted that the “preliminary

and final instructions [made] it very clear, as did [its] questioning of the jurors when [the

parties] selected the jury, that the burden all remains with … the government and never

shifts.” (App. at 304); cf. United States v. Franz, 772 F.3d 134, 152 (3d Cir. 2014)

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(“Absent … extraordinary situations, … we adhere to the crucial assumption underlying

our constitutional system of trial by jury that jurors carefully follow instructions.” (first

alteration in original) (quoting Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985))). The

Court informed the jury at least four times that “[t]he presumption of innocence means

that Mr. Peters has no burden or obligation to present any evidence at all or to prove that

he’s not guilty. The burden … is on the government[.]” (App. at 316.) Additionally,

during closing argument, the government reminded jurors that it maintained the burden of

proof through the trial, and the defense gave the same reminder in its opening and

closing. Therefore, as the District Court stated, “the record [was] really clear … that the

burden [was] not on the defendant, that [it was] on the government and remain[ed] there.”

(App. at 304.) The Court did not abuse its discretion in denying the motion for a mistrial.

2.

There was sufficient evidence to support Peters’s conviction under

18 U.S.C. § 922(g)(1).4

Peters also argues that his felon-in-possession count must be vacated because the

government presented insufficient evidence to demonstrate that he knew he was

previously convicted of a crime with a sentencing exposure of more than one year. His

entire argument turns on the claim that, while he knew he was a felon, he did not know

“We review the record in the light most favorable to the prosecution to determine

whether any rational trier of fact could have found proof of guilt[] beyond a reasonable

doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (internal

quotation marks and citation omitted). “Under this particularly deferential standard, we

must … not … usurp the role of the jury by weighing credibility and assigning weight to

the evidence, or by substituting [our] judgment for that of the jury” and must “review the

evidence as a whole, not in isolation[.]” Id. (internal quotation marks and citations

omitted).

4

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that he was sentenced to a term of imprisonment of more than one year. That argument

fails.

“[T]he Government must prove both that the defendant knew he possessed a

firearm and that he knew he belonged to the relevant category of persons barred from

possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Section

922(g)(1) of title 18 of the United States Code makes it “unlawful for any person who has

been convicted … of a crime punishable by imprisonment for a term exceeding one year”

to “possess … any firearm or ammunition[.]” (cleaned up). “[I]f the maximum term of

imprisonment authorized is … more than one year,” the offense “is classified … as a …

felony[.]” Id. § 3559(a)(5). In Greer v. United States, the Supreme Court expanded on

the knowledge-of-status requirement, holding that “[i]f a person is a felon, he ordinarily

knows he is a felon. … Thus, absent a reason to conclude otherwise, a jury will usually

find that a defendant knew he was a felon based on the fact that he was a felon.” 593

U.S. 503, 508-09 (2021). “Greer, in effect, created a presumption that the ‘knowledgeof-status’ element is satisfied whenever a § 922(g)(1) defendant is, in fact, a felon.”

United States v. Adams, 36 F.4th 137, 152 (3d Cir. 2022). Here, evidence introduced at

trial showed that Peters knew he was a felon. (App. at 158 (“Peters told [the witness] he

was a felon and he was not allowed to own guns[,]” due to his possession with intent to

deliver crack cocaine conviction).) There is nothing in the record to suggest that Greer’s

presumption does not apply.

Furthermore, Peters’s professed ignorance does not stand up to scrutiny. The

order imposing his sentence, which was entered into evidence, states explicitly that “this

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6th day of November 2020, IT IS THE SENTENCE OF THIS COURT on Possession

With Intent to Deliver a Controlled Substance, … that …the defendant undergo

incarceration for a period of not less than one hundred eighty-two (182) days nor more

than twelve (12) months and two (2) days.”5 (App. at 352.) Officer Frampton also

testified that in Mercer County defendants learn of their sentences in open court and that

Peters had pled guilty to the possession charge in Mercer County. Therefore, the jury had

ample evidence from which to find that Peters had knowledge not only of his felon status

but also that his crime was punishable by imprisonment exceeding a year.

“Review[ing] the evidence as a whole, … a rational trier of fact” could have found

“guilt beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418,

430 (3d Cir. 2013) (internal quotation marks and citation omitted). Accordingly, we will

affirm the felon-in-possession conviction because “there is substantial evidence … to

uphold the jury’s decision.” Id. (citation omitted).

3.

The District Court correctly applied a sentencing enhancement for

obstruction of justice.6

Peters also challenges the District Court’s application of a sentencing

enhancement for obstruction of justice based on his evasion of arrest.

The parties also stipulated that “as of March 15, 2022, the defendant had been

convicted of a crime punishable by imprisonment for a term exceeding one year.” (App.

at 178.) See Greer v. United States, 593 U.S. 503, 509 (2021) (finding that a defendant

“stipulat[ed] to the fact that he was a felon” and his “prior convictions [were] substantial

evidence that [he] knew [he] w[as a] felon[]”).

5

In reviewing an application of a sentencing enhancement, we “exercise[] plenary

review over the District Court’s legal conclusions and review[] the District Court’s

6

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Section 3C1.1 of the sentencing guidelines increases a defendant’s offense level

“[i]f (1) the defendant willfully obstructed or impeded … the administration of justice

with respect to the investigation, prosecution, or sentencing of the instant offense of

conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of

conviction and any relevant conduct; or (B) a closely related offense[.]”7 In United

States v. Imenec, we affirmed the district court’s application of § 3C1.1 to a defendant

who failed to appear at a state court judicial proceeding when the effect was to avoid or

delay his federal arrest. 193 F.3d 206, 208, 210 (3d Cir. 1999). We held that “the

Sentencing Commission’s intent was to impose an enhancement for any conduct that

obstructs an investigation, prosecution or sentencing proceeding that is based on the

criminal conduct underlying the specific statutory offense for which the defendant is

being sentenced.” Id. at 208.

At sentencing, the Court heard testimony from narcotics agent Scott Patterson

from the Pennsylvania Attorney General’s office who testified regarding the state and

federal proceedings against Peters and law enforcement’s attempts to arrest him for the

factual findings for clear error.” United States v. Gray, 942 F.3d 627, 630-31 (3d Cir.

2019).

Peters argues that we should instead be guided by § 3C1.1’s commentary. He,

however, fails to demonstrate the provision’s ambiguity before turning to the

commentary, as required by United States v. Nasir, 17 F.4th 459, 469-70 (3d Cir. 2021)

(en banc). We decline to make such arguments for him. Barna v. Bd. of Sch. Dirs. of

Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) (“[W]e have consistently

refused to consider ill-developed arguments or those not properly raised and discussed in

the appellate briefing.”).

7

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federal crimes. After finding Patterson credible, the Court found as a fact that, on

September 2, Peters spoke with a law enforcement officer who informed him that a

federal warrant had been issued for his arrest and further that Peters told the officer he

would turn himself in. Peters never did. On the contrary, despite attending his prior state

court proceedings, Peters did not attend a proceeding five days later on September 7,

when it was likely federal law enforcement officers would arrest him. The District Court

thus justifiably found that Peters was evading arrest and that his actions “required that

law enforcement separately apprehend [him].” (App. at 480.)

Based on the record before us, we cannot conclude that the Court clearly erred in

so finding. Peters’s objection was properly overruled, and the sentencing enhancement

properly applied.

III.

CONCLUSION

For the foregoing reasons, we will affirm Peters’s conviction and sentence.

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APPENDIX B

Case 2:22-cr-00220-AJS Document 56 Filed 11/09/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

Plaintiff,

Criminal No. 22-220

ELECTRONICALLY FILED

v.

JOSHUA PETERS,

Defendant.

MEMORANDUM ORDER RE: OBJECTIONS TO TRIAL EXHIBITS (ECF 50) AND

MOTIONS IN LIMINE (ECF 42 and ECF 47)

This case is scheduled for jury selection on Monday November 28, 2022, and trial is to

begin on Monday, December 5, 2022. ECF 32. Pending before the Court are two motions in

limine filed by Defendant (ECF 42 and ECF 47) and Defendant’s objections to a trial exhibit

ECF 50.

1. Defendant’s Authenticity and Admissibility Objections to Exhibit 4.

Exhibit 4 is a handwritten document. Defendant objects to the authenticity of this exhibit

claiming that under Fed.R.Evid. 901, the document has not been properly authenticated. The

Government indicates that it will produce the alleged author of the document proffered at Exhibit

4 to authenticate the document, thus curing Defendant’s authenticity objection to Exhibit 4.

The Government must produce the author of the document at trial and elicit testimony from that

witness, satisfying the authenticity objection raised by Defendant, and authenticating Exhibit 4 in

accordance with Fed.R.Evid. 901 during trial. Exhibit 4 is not inadmissible at this point for lack

of authentication. Thus, the authenticity objection is OVERRULED at this juncture.

Case 2:22-cr-00220-AJS Document 56 Filed 11/09/22 Page 2 of 3

Next, Defendant objects to the admissibility of the document of this exhibit due, in part,

to its lack of authenticity and on the basis of hearsay under Fed.R.Evid. 802. The Court finds

that Exhibit 4 is not inadmissible at this point for lack of authentication. The Court finds that if

Exhibit 4 is sufficiently authenticated at trial, it may qualify as non-hearsay pursuant to

Fed.R.Evid. 801 (d)(2)(A) and/or 801 (d)(2)(B) and/or a hearsay exclusion pursuant to

Fed.R.Evid. 801 (c)(2). Thus, Defendant’s admissibility objection is OVERRULED at this

juncture.

2. Defendant’s Motion in Limine to Exclude Evidence of Sexual Acts

Defendant argues that the Government’s attempt to introduce testimony that Defendant

accepted sexual acts in lieu of monetary payment for drugs is more prejudicial than probative

under Fed.R.Evid. 403. The Government argues that this testimonial evidence may be necessary

to show that Defendant to demonstrate was not simply trafficking drugs to financially support his

own drug use. The Government further argues that this testimonial evidence may be necessary

to provide a more complete picture of Defendant’s “life story,” should Defendant attempt to

offer his life story as means of generating jury sympathy.

The Court hereby GRANTS Defendant’s Motion in Limine, finding the evidence of the

sexual acts Defendant received to be more prejudicial than probative, unless Defendant somehow

“opens the door” during trial.

3. Defendant’s Motion in Limine to Bar Government’s Attempt to Burden Shift

Defendant’s motion specifically concerns the fact that neither party conducted any DNA

or fingerprint evidence on the firearms at issue in this case. Defendant seeks to preclude the

Government from “shifting the burden” to Defendant, thereby requiring Defendant to prove that

the firearms did not contain any of his DNA or fingerprints. The Government’s response is that if

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Case 2:22-cr-00220-AJS Document 56 Filed 11/09/22 Page 3 of 3

the Defendant were to note that the Government did not have the weapons tested for DNA and/or

fingerprints, the Government would be permitted to respond by noting that Defendant could also

have had the weapons tested, but did not do so. See United States v. Robinson, No. 21-1667,

2022 WL 3666293, at *5 (3d Cir. Aug. 25, 2022) (“[P]rosecutors ‘may not improperly suggest

that the defendant has the burden to produce evidence[]’ United States v. Balter, 91 F.3d 427,

441 (3d Cir. 1996) . . . [t]his prohibition, however, does not extend to comments ‘attempt[ing] to

focus the jury's attention on holes in the defense's theory.’ Id. at 441.”)

Thus, if Defendant here puts on a evidence to show that the Prosecution did not test the

weapons at issue for fingerprints or DNA, the Government may use its closing argument to issue

a comment that points to a lack of testing conducted by either party. Id.

Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion

in Limine. The Government may not “shift the burden” to Defendant of proving that the firearms

at issue were not Defendant’s, but if Defendant notes that the Government failed to test the

firearms for DNA and fingerprints, the Government may use its closing argument to issue a

comment that points to a lack of testing conducted by either party.

SO ORDERED this 9th day of November, 2022

s/Arthur J. Schwab_______

Arthur J. Schwab

United States District Judge

cc:

All ECF Registered Counsel of Record

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