2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2004/688NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 03-2866

UNITED S TATES OF AMERI CA

v. CHRI STOP HER RAS HEED S MITH, Appellant
App eal from th e Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Crimi nal No. 02-cr -00502) Distri ct Court J

udge: J. Curtis Joyne r Argued April 16, 2004 Bef or e: RENDEL L, STAP LETON, an d LAY 

### * , Circu it Judges

(Fil ed: May 19, 2004)

____________________________ 

### * Hon. Donald P. Lay , Senior Judge of the Unit ed State s Court of Appeals for the Eighth Cir cuit, sitting by designation.2 Bre tt G. Swe itze r [ ARGUED] Ro bert E pstein De fend er A ssocia tion of Philad elphia Federal Court

Divisi on Suite 540 West Curtis Center Independence Squ are West Philadelphia, PA 19106 Counsel for

Appellant Ch ristoph er Ra shee d Sm ith
Ri ch ar d A. Ll or et

[ARGUE D] Office of United St ates Att orney Room 1250 615 Chestnut St

reet Philadelphia, PA 19106 Counsel for

Appellee United Stat

es of America

OPINI ON OF THE COURT
RE ND EL L, Circuit

Judge Christ opher Rasheed Smit h was convicte d by a j uryof being a fel on in posses sion of a firearm and w as sen tence d by the D istrict Co urt to 23 6 m onth s’ imp risonm ent. Sm ith level s severa l chal lenges t o the conduct of the trial . Fir st, Smith attacks t he Distr ict Court’s r efusal to admit evi dence of a phone conver sati on based upon appli cati on of the hearsay rule. Second, Smith contends t hat the re was insuf

fici ent evi dence to suppor t the1 We ne ed n otdi sc uss Smi th ’s con te nt io n that th e fe lo n- in -p oss es si on s tatute , 1 8 U. S. C. § 922(g)(1) , is an inval id exerc ise of t he Commerce Clause, bec ause thi s Court has alrea dy rule d th at thi s stat uto ry pro visio n do es p ass c ons titutio nal m uste r, United States v. Singletary , 268 F.3d 196 ( 3d Cir. 2001) , and that rul ing can onl y be over turned by

the cour t sitting en banc or by the S upre me C ourt. 3 giving of a “ joint po ssessio n” ins truction proffered by the go vern men t. Third , Smith contends t

hat the government at

torney committed prosecutorial mi sconduct, based upon
com men ts mad e to the jury in his re buttal a t the time of clo sing a rgum ent. 1 W e ha ve ju risdi ction ove r this app eal b ase d up on 2 8 U .S.C
. 

### § 129 1, bec ause it is
an a ppe al fr om a fin al de cisio n of the D istrict Co urt. W e w ill affirm.

I. At 2:30 in t

he morning on August 31, 2001, the Philadelphia Poli ce responded to a repo rt that a m an w as carr ying a gu n in S am’s Clam Bar o n Sp ring G arden Street in Philadelphia. The officers responded, and one officer test ifie d that he saw a man fitt ing the descripti on provided in the dis patch walki ng out of Sam’s. Officer Butl er tes tifi ed that the man , Smith , lifted up his sw eatshirt, re vealin g the h andle of a b lack p istol in his waistband, and then walked t oward a car parke d on Spring Garden Street and got int o the passeng er side of the c ar. The officers then saw Smith “rea r back, reach forw ard tow ard his w aistb and , and then lean for wa rd to wa rd th e flo or in fro nt o f the pas sen ger sea t.” (Apx. 169A) Smith t

hen got out of

the car as other police vehicl es arr ived, and Butler test ifie d he saw the handl e of the gun i n plain vi ew sticking out from underne ath the passenger

seat of t he car. Smith was then t aken int o custody . Smith was ar rest ed, and4

was subsequently t

ried in the Court of

Common Pleas of Philadelphia County , but t he gun was suppresse d based upon the Common Pleas Court Judge’s det erminat ion that the police officer s were not cr edible . The federa l prose cution t hen ensued. The defe nse th eory in his fede ral trial esse ntially cons isted of two argu men ts: (1) the police offic ers sho uld n ot be b elieve d; and (2) the gun belon ged, n ot to S mith, b ut, rather , to t

he owner of the car , Troy Ealey , who was a longtime friend of Smit h’s. The defense sought

to focus on t

he former ar gument in orde r to pr ove the l atte r. Eal ey was dece ased at the tim e of tria l. II. Troy Eal ey and Chri stopher Smith were longtime fri ends, and cons idered e ach other “c ousins, ” as their mothers were very close as well. The defense attempted to offe r test imony of Roslyn Jone s, Smit h’s mother , that she had known Troy Ealey for y ears, and that, on the night

Smith was arr ested, in the mi ddle of the night, Ealey call ed Jones and his own mother and admi tted to them that the gun that the pol ice had t aken from the car
wa s Ea ley’s g un. At the outs et of the tri al, in the ope ning st atement t o the jur y, defense counsel indica ted tha t this testim ony w ould be offered . The prose cuting attorne y imme diately object ed, but

after a sidebar

conference t

he Distr ict Court

ruled t hat defens e counsel could ref er to t his t esti mony because it mi ght be admiss ible a s an except ion to t he hearsay rule as an ad mission of

Ealey against his ow n interest. Fed. R. E vid. 804(b)(3 ). Later,5

during t he tri al, the government again chal lenged the admissibili ty of the proff

ered stat ement. The Dist

rict Court heard e xtensi ve testimony from Jones and proffer s from defense counselregardi ng the tr ustworthiness of the stat ement. J ones tes tifi ed as to what Eale y had sa id:

Jones: He [T roy Ealey] said, no, it wasn’t Ra sheed [S mith]’s gun , it was m y gun, bu t they ain’t ca tching on m e. I wa sn’t in the car and neither was Rasheed. Idon’t know why they had him up against

the car like t hat. (App 373a, lines3-7)
Jone s also te stified th at she h ad tried to loca te Ea ley after sp eakin g w ith him , but co uld not. She testi fied as well to the close r elationship between Smith and Ealey. She also admitt ed she had not informed the pol ice about the te lephone cal l or of Eal ey’ s admissi on. Defense counsel argued that the st atement s hould be hel d to be an exception to t he hearsay rul e since it was an admission against int erest that was trustworthy. Defense counsel argued that

it was t rustwort hy because of the c lose r elat ionship between Ealey and Smith’s mother, Ms. Jones. In additi on, the stat ement was made soon afte r the arrest, and the gu n wa s actually found to b e in Ealey’s car. After consi dering t

hese argument s, t

he Distr ict Court

ruled t hat Jones ’s te sti mony as to her conversation with Eal ey was i nadmissible becaus e there was a lack of
cor rob ora ting circu ms tanc es to sup por t it as tr ustw orth y. See Fed. R. Evid. 804(b)(3) (provi ding that

a “stat ement tending to expose t he declar ant to c riminalliabi lit y and offered t o exculpat e the accus ed is not admissible unle ss corr oborating circumst ances2 Smith al so argued t hat the fact t

hat he had, over the gove rnment’s object ion, be en allowed t o refer t o the conver sati on between Ealey and Jones i n his openi ng remarks made the later exclusion of the evidence harmful. However, we no te that defense 6 clea rly indi cate the tr ustw orth ines s of the s tatem ent” ). We review ruli ngs of the Dis tri ct Court r egarding a dmissi bili ty of evidence for abu se o f dis creti on. United Stat es v. Ser afini , 233 F.3d 758, 768 n.14 (3d C ir. 2000). While thi s may have be en a close call , the Distri ct Court’ s evidentiary ruli ng did not consti tute a

buse. The cl ose rel ations hip of Jones and Ealey did not “c learly i ndicat e” that Eale y’s statem ent w as trustw orthy. Inde ed, tha t relation ship, the close r elation ship between Ealey

and Smith, and Jones’s fail ure to r eport t he stat ement to t

he polic e or otherw ise act on it could b e view ed as sug gesting lack o f trustworthine ss. Mo reover, Eale y’s prior de nial of

ow nersh ip of th e gun casts f urther dou bt on the reliab ility of his alle ged admissi on. Although t he Distr ict Court

seemed to focus more on the cr edibil ity of Jones, rather

than that of the out-of- court dec larant , Ealey , we nonethel ess bel ieve that the ultim ate ru ling exc lud ing the s tatem ent w as n ot an abu se o f dis creti on. Furth er, we are co nfide nt that th e exc lusion of E aley’s asse rtion of ow nersh ip to Jones did not

affect t he jury ’s verdi ct. It i s evident from that

verdict that t he jury credit ed the officer’s testimo ny that he saw S mith in posse ssion of the g un. Give n that Ealey’s assertion was entirely

consist ent with t

hat te sti mony, t

here is no reason for

concern that adm issio n of

that a sser tion wo uld hav e alte red the ju ry’s co nclu sion
. Accordingly , we find no er ror i n the Dist

rict Court’s e xclusi on of this evidence. 2counsel had de scri bed the hear saystat ement to t he jury without any

assuranc e that

the evidence would i n fact be admi ssibl e, and t he government’ s objection came after defense counsel had indicat ed to the jury the substance of the conve rsat ion it self. We do not think this aspect of

the case impli cates t

he Distr ict Court

in any error or abuse. 7 III. The government offer ed a jury instructi on, to whic h defense counselobject ed, regardi ng the abi lit

y t o convict

Smith even i f the j urywere to fi nd that Eal ey was t he owner of the gun. We review a tri al’s courts jury inst ructi ons for abuse of discr etion,
cons idering wh ether, in light of the ev idenc e, the ch arge a s a w hole fairly and a dequ ately sub mitte d th e issu es in the c ase to th e jur y. United Stat es v. Zehrba ch , 47 F.3d 1252, 1264 (3d Cir. 1995) (en banc) . “We must rever se if ‘ the ins truction was capabl e of confusing and t

hereby misleading the jur

y. ’” Id. (quoti ng Ben nis v. G able , 823 F.2d 723, 727 (3d Cir. 1987 )). The instruction given was as follows: THE C OUR T: If y ou find that the de fendant ei ther had a ctive possessi on of the gun desc ribed in the indi ctment, or that he had the power and inte ntion t o exerci se contr ol over t he gun described in the indict ment, even t

hough it was not

in his physi cal poss ession, you may fi nd that t

he government has proven posses sion. Proof of ownership of

the gun is not required. Pos sessi on may be sole o r joint. In o ther w ords, th e pos session may be kno win gly exerci sed byone person exclusively, or the pos sessi on may be know ingly exercised jointly when it is shared by two or m ore persons. Defense counsel argues that the re was insuf fici ent evi dence to suppor t the giving3 The se inclu de the prose cutor’ s accu sations that de fens e cou nsel ina ppro priately

harassed and intimidated the poli ce officers who testified; t he assertion that

defense cou nse l wa s trying to d ece ive th e jur y; the c om me nt th at S mith wa s “w alkin g aw ay,” perhaps r eferring to Smith’ s decis ion not t o test ify ; and, last ly , the remarks i n the government’s summation, which, defens e counsel argues, sought t o have the j uryreplac e the c onc ept o f rea son able dou bt w ith “t ruth and justic e.”
8 of this instructi on. We disagr ee. Admitt edly , defense counsel’ s primar y argument was that E aley wa s the o wn er of th e gun , and th at the ju ry should disbe lieve th e polic e w ith respe ct to Sm ith’s po ssessio n of it. How ever, th e two view s are n ot nec essarily inconsi stent

or ir reconci lable . The joi nt posses sion i nstruc tion t ook into ac count the sit uation where the jur

y coul d belie ve that

in fact Ealey was the owner of the gun, as defe nse c oun sel arg ued, b ut cou ld also b elieve that Sm ith had som e invo lvem ent in possessing it. Accordingly , we find no er ror i n the giving of the i nstruc tion. IV. Sm ith poin ts to sev eral insta nces in w hich th e pro secu ting atto rney eng aged in wh at he c harac terizes a s pros ecuto rial misc ond uct. 3 There was no objection to any of the
as pe ct s o f mi sc ond

uc t t ha t S mi thnow ur ge s c ons ti tute gr oun ds fo r ane w tria l, so we
rev iew them for plain erro r. United Stat es v. Boone , 279 F.3d 163, 174 n.6 (3d C ir. 2002). We do not find these com ments to am ount to such an “egreg ious error or a manifest miscarriage of j usti ce,” United Stat es v. Brennan , 326 F.3d 176, 182 (3d Cir. 2003), as to warrant

a new tria l based on pl ain error. Smit h had the burde n to prove t hat9

these comments affected hi s subst antia l ri ghts, and Smith had t o demonstrat e that he was “actu ally innoc ent” o r that an y error “se riously affect[e d] the fairnes s, integrity or p ublic rep utati on o f jud icial p roc eed ing s.” United Stat es v. Olano , 507 U.S . 725 , 736 (19 93)
. We have considered e ach of the s tate ments Smith a llege s were probl ematic and c onclude that, even if ar guably

improper, the st atements were not “egr egious” and di d not und erm ine th e fu nda me ntal fairn ess o f Sm ith’s trial. V. Accordingly , the Distri ct Court’ s Judgment and Commitment Order will be AFFI RMED.10