                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2003

USA v. Thornton
Precedential or Non-Precedential: Precedential

Docket 02-2151




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                                  PRECEDENTIAL

                                                Filed May 7, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 02-2151


                UNITED STATES OF AMERICA
                                  v.
              MICHAEL BENJAMIN THORNTON
                        Michael Thornton,
                                  Appellant

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                (D.C. Crim. No. 99-cr-00600)
         District Judge: Hon. Bruce W. Kauffman

         Submitted Under Third Circuit LAR 34.1(a)
                     March 13, 2003
              Before: SLOVITER, NYGAARD, and
                  ALARCON,* Circuit Judges

                       (Filed: May 7, 2003)




* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                             2


                      Maureen Kearney Rowley
                       Chief Federal Defender
                      David L. McColgin
                       Assistant Federal Defender
                       Supervising Appellate Attorney
                      Federal Court Division
                      Defender Association of Philadelphia
                      Philadelphia, PA 19106-2414
                        Attorneys for Appellant
                      Patrick L. Meehan
                       United States Attorney
                      Laurie Magid
                       Deputy United States Attorney
                       for Policy and Appeals
                      Robert A. Zauzmer
                       Assistant United States Attorney
                       Senior Appellate Counsel
                      Richard J. Zack
                       Assistant United States Attorney
                      Philadelphia, PA 19106
                        Attorneys for Appellee


                OPINION OF THE COURT

SLOVITER, Circuit Judge.
   Michael Thornton appeals from the District Court’s
judgment convicting him of possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g)(1), and sentencing
him pursuant to the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). Thornton contends that his defense counsel was
ineffective for introducing a police report into evidence in
unredacted form, that the felon-in-possession statute is
unconstitutional and that he should not be subjected to a
sentence increase required under 18 U.S.C. § 924(e).
                               3


                               I.

                       BACKGROUND
  On June 28th, 1999, Philadelphia Police Sergeant Jamill
Taylor was supervising a crowd in Philadelphia as two
nightclubs let out. He was sitting in his patrol car and
speaking to Officers Jacob Williams and Curtis Younger of
the Philadelphia Highway Patrol, who were standing near
the car. Sergeant Taylor saw Thornton standing on the
street nearby. He recognized Thornton as they had grown
up in the same neighborhood.
   Sergeant Taylor informed Officers Younger and Williams
that Thornton was wanted on a warrant for assaulting
Taylor’s brother in New Jersey. Officer Williams walked
towards Thornton and Thornton fled. Officers Younger and
Williams pursued Thornton on foot, while Sergeant Taylor
blocked the street with his car. Officer Younger ultimately
knocked Thornton to the ground. According to the three
officers, a loaded gun fell out of Thornton’s waistband. The
gun was on the street momentarily before Officer Williams
picked it up and unloaded it. The gun was not submitted
for fingerprinting because the three officers said that they
had seen Thornton in possession of the gun and because
the officers had handled the gun.
  Following Thornton’s arrest, the grand jury returned an
indictment charging him with being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). Prior to trial,
the District Court ruled that because Thornton was charged
with possession of a gun, admission of the fact that the
charges for assault on Sergeant Taylor’s brother involved a
shooting would unfairly prejudice him. Counsel agreed that
the charges underlying the warrant would be referred to as
an aggravated assault and that the parties would not refer
to a gun or a shooting. Thornton’s trial ended in a hung
jury and the District Court declared a mistrial.
  At the second trial, where Thornton was represented by
new counsel, the parties stipulated that the firearm traveled
in interstate or foreign commerce within the meaning of 18
U.S.C. §§ 921, 922, and that Thornton had been previously
convicted of a crime punishable by a term of imprisonment
                             4


of more than one year. The only issue for the jury was
whether Thornton possessed the gun.
   The officers testified that they saw the gun fall from
Thornton’s person. In his defense, Thornton called two
friends who saw him at one of the clubs that evening. They
testified that admission to the club required passing
through metal detectors. One of the witnesses testified that
she saw Thornton on the street before the arrest, hugged
him and did not feel a gun. Both witnesses were on the
street when the arrest occurred and testified that they did
not see a gun fall from Thornton’s person.
  As in the first trial, the witnesses did not mention that
the charges for aggravated assault on Sergeant Taylor’s
brother involved a shooting. Thornton’s counsel, however,
introduced into evidence a police report summarizing
Thornton’s arrest. The report described the police chase
and stated that Thornton was wanted on a warrant on an
aggravated assault with a gun for shooting Sergeant
Taylor’s brother. Defense counsel did not seek to redact the
report to remove the reference to the gun or a shooting.
  During deliberations, the jury asked whether it could
consider information from the report that was not
discussed during the trial. Counsel agreed that since the
report was in evidence the jury could do so and the District
Court so instructed the jury. The jury returned a guilty
verdict.
  At sentencing, Thornton unsuccessfully argued that he
was subject to a maximum of ten years imprisonment, not
the life sentence applicable under the Armed Career
Criminal Act, 18 U.S.C. § 924(e), because his prior
convictions were not submitted to the jury as required by
Apprendi v. New Jersey, 530 U.S. 466 (2000). The District
Court rejected Thornton’s argument and sentenced him to
235 months in prison, five years supervised release, a fine
of $1,000 and a special assessment of $100.
                              5


                              II.

                        DISCUSSION
A.   Ineffective Assistance of Counsel
  Thornton argues that defense counsel “was plainly
ineffective for placing into evidence, without any redaction,
a police investigation report which twice stated that Mr.
Thornton’s aggravated assault charge in Camden involved a
gun and a shooting.” Appt’s. Br. at 14. He argues that
defense counsel should have been aware that the District
Court had ruled before the first trial that reference to the
shooting or the gun was unfairly prejudicial, and that
counsel should have redacted the report. Because the
Government concedes that counsel’s performance in this
case was deficient, the only issue before this court is
whether his performance prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 691-92 (1984).
  To establish prejudice for purposes of an ineffective
assistance of counsel claim, the defendant must show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694.
   Thornton argues that counsel’s deficient performance in
failing to object to the admission of the police report in
unredacted form was prejudicial to his defense. He notes
that the court had excluded it at the first trial because it
would “unfairly prejudice” him. After the jury began
deliberating, it asked the court “[s]hould we consider
information from [the police report] that was not discussed
during the trial?” App. at 333. Counsel agreed that the jury
may consider such information. The police report
summarizes the statements of Sergeant Taylor and Officers
Williams and Younger about the incidents leading to
Thornton’s arrest, all of which was discussed during the
trial. The only information in the report that was not
discussed at trial was the fact that Thornton was wanted
on a warrant “on an agg. assault with a gun for shooting
Sgt. Taylor’s brother,” that Thornton was wanted on a
                              6


warrant for an assault “by handgun,” and that he did not
have a valid permit to carry the gun obtained on the night
at issue. App. at 365.
  The jury’s question may suggest that it considered the
fact that Thornton was charged with a crime involving a
gun in the course of its determination of whether he
possessed a gun on the night at issue. This would be
relevant to the issue of prejudice from the introduction of
the unredacted police report. Nonetheless, we will not reach
this issue on this appeal. It has long been the practice of
this court to defer the issue of ineffectiveness of trial
counsel to a collateral attack. See, e.g., United States v.
Haywood, 155 F.3d 674, 678 (3d Cir. 1998). Nonetheless,
we have held that we may address the claim of ineffective
assistance of counsel on direct appeal when the record is
sufficient to allow determination of the issue. See United
States v. Headley, 923 F.2d 1079 (3d Cir. 1991).
  A recent decision of the United States Supreme Court has
now provided a thorough analysis of why it is preferable
that such claims be considered on collateral review rather
than on direct appeal. In Massaro v. United States, No. 01-
1559 (U.S. April 23, 2003), the Court considered the rule of
the Court of Appeals for the Second Circuit that required
that a defendant represented by new counsel on appeal
raise any ineffective assistance of counsel claim on direct
appeal if ineffectiveness was evident from the record. The
Supreme Court rejected that rule, stating:
    When an ineffective-assistance claim is brought on
    direct appeal, appellate counsel and the court must
    proceed on a trial record not developed precisely for the
    object of litigating or preserving the claim and thus
    often incomplete or inadequate for this purpose. Under
    Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
    2052, 80 L.Ed.2d 674 (1984), a defendant claiming
    ineffective counsel must show that counsel’s actions
    were not supported by a reasonable strategy and that
    the error was prejudicial. The evidence introduced at
    trial, however, will be devoted to issues of guilt or
    innocence, and the resulting record in many cases will
    not disclose the facts necessary to decide either prong
    of the Strickland analysis. If the alleged error is one of
                                    7


     commission, the record may reflect the action taken by
     counsel but not the reasons for it. The appellate court
     may have no way of knowing whether a seemingly
     unusual or misguided action by counsel had a sound
     strategic motive or was taken because the counsel’s
     alternatives were even worse.
Id., slip op. at 4.
   Even though the Government concedes defense counsel’s
error,1 the Court’s opinion in Massaro points out that the
issue of prejudice is also best decided in the first instance
in a collateral action rather than on direct review. The
Court states, “Without additional factual development . . .
an appellate court may not be able to ascertain whether the
alleged error was prejudicial.” Id. at 5.
   The Court further stated, “In addition, the § 2255 motion
often will be ruled upon by the same district judge who
presided at trial. The judge, having observed the earlier
trial, should have an advantageous perspective for
determining the effectiveness of counsel’s conduct and
whether any deficiencies were prejudicial.” Id.
  Particularly persuasive is the Court’s comment that:
     Even meritorious claims would fail when brought on
     direct appeal if the trial record were inadequate to
     support them. Appellate courts would waste time and
     resources attempting to address some claims that were
     meritless and other claims that, though colorable,
     would be handled more efficiently if addressed in the
     first instance by the district court on collateral review.
Id. at 6.
  Guided by the Supreme Court’s decision, we will deny
Thornton’s claim of ineffective assistance of counsel without

1. In its brief, the Government states:
      The government agrees that defense counsel’s failure to object to
    the admission of the report was erroneous and that the issue before
    the Court is whether Thornton was prejudiced by the error.
Appellee Br. at 15 n.4.
                               8


prejudice to his right to raise this claim on a collateral
attack brought pursuant to 28 U.S.C. § 2255.
B.   Constitutionality of Felon-in-Possession Statute
  Thornton also argues that the felon-in-possession
statute, 18 U.S.C. § 922(g)(1), is unconstitutional because
the conduct that it proscribes, the intrastate possession of
a firearm, does not have a substantial effect on interstate
commerce, and therefore the statute is not a valid exercise
of Congress’ Commerce Clause power. He also argues that
the statute is unconstitutional as applied to his case
because there was no evidence that he possessed the gun
in a manner affecting interstate commerce.
   As recognized by Thornton, his arguments are foreclosed
by this court’s decision in United States v. Singletary, 268
F.3d 196 (3d Cir. 2001), cert. denied, 535 U.S. 976 (2002),
which upheld the constitutionality of the statute against a
similar attack. Thornton states that he raises this claim in
order to preserve it for review by the Supreme Court or for
any subsequent collateral proceeding should the statute
later be declared unconstitutional by the Supreme Court.
Accordingly, we need not address it further.
C.   Status as an Armed Career Criminal
   Thornton argues that he should not have been sentenced
under the Armed Career Criminal Act, 18 U.S.C. § 924(e),
because the prior convictions on which his characterization
as an armed career criminal was based should have been
treated as elements of the offense, charged in the
indictment and submitted to the jury under Apprendi v.
New Jersey, 530 U.S. 466 (2000). Like his prior claim,
Thornton recognizes that this court rejected his argument,
this time in our opinion in United States v. Mack, 229 F.3d
226, 231 n.7 (3d Cir. 2000), cert. denied, 532 U.S. 1045
(2001), and explains that he raises it only to preserve it for
review by the Supreme Court or for any subsequent
collateral proceedings. We decline to address it further.
                              9


                             III.

                      CONCLUSION
  For the reasons stated above, we will affirm the judgment
of conviction and sentence, as noted without prejudice to
Thornton’s right to raise the ineffective assistance of
counsel claim in a collateral attack.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
