NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2409

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UNITED STATES OF AMERICA

v.

WILLIE DAVIS,

 Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 4-16-cr-00138-001)

Honorable Malachy E. Mannion, District Judge

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

February 6, 2018

BEFORE: CHAGARES, SCIRICA, and COWEN, Circuit Judges

(Filed: April 3, 2018)

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OPINION*

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* 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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COWEN, Circuit Judge.

Willie Davis appeals from the criminal judgment entered by the United States 

District Court for the Middle District of Pennsylvania. We will affirm.

I.

Davis was indicted for possessing contraband in prison in violation of 18 U.S.C. § 

1791(a)(2) and (b)(3). It was alleged that Davis, an inmate of the United States 

Penitentiary, Lewisburg, knowingly possessed a prohibited object, namely a weapon or 

an object designed to be used as a weapon. The object was described as a sharpened 

piece of plastic, approximately eight inches in length, which was discovered attached to 

his body by a lanyard. 

Davis elected to represent himself (and a federal public defender was appointed to 

serve as stand-by counsel). Over the course of the proceeding, he filed numerous 

motions for relief, which were all denied or dismissed by the District Court. In particular, 

Davis challenged the government’s proposed jury instructions, specifically Government’s 

Point for Charge No. 9 (which listed the elements of the crime) and Government’s Point 

for Charge No. 10 (which defined “prohibited object”). The District Court overruled 

Davis’s objections and incorporated the government’s proposed language in its charge to 

the jury. The District Court specifically instructed the jury on the elements of the 

offense:

The elements of an offense which the United States must prove in 

order to establish the offense of possessing a prohibited object of 

contraband by a prisoner are:

First: That Willie Davis was an inmate of a prison; 
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Second: That Willie Davis knowingly possessed an object; and

Third: That the object is a prohibited object as described in the

Indictment, that is, a weapon or object designed to be used as a weapon.

(Doc. #110 at 32.) Furthermore, the District Court defined “prohibited object” for the 

jury:

Section 1791(d)(1)(B) defines ‘prohibited object’ to mean, in part, ‘a 

weapon or an object that is designed or intended to be used as a weapon. 

What is a weapon is a question of fact for you alone to decide. You can 

consider in reaching your determination any pertinent aspect of the item, 

including the general purposes for which the item can be used, whether the 

item had a legitimate purpose or practical function, the manner in which the 

item was carried, and other factors which you believe are important in 

reaching your conclusion.

(Id. at 34.) 

The jury returned a guilty verdict, and the District Court sentenced Davis to 37 

months’ imprisonment (to be served consecutively to the current sentence imposed by the 

United States District Court for the Western District of Tennessee). It also dismissed his 

motion to arrest judgment as frivolous. Davis filed this pro se appeal.1

II.

 1

 Davis submitted a motion to hold the case in abeyance pending his return to 

USP Florence. Because he subsequently filed a reply brief, we deny this motion as moot. 

He subsequently filed a motion to consolidate the document entitled “Petition for 

Rehearing En Banc” with his reply brief. The Clerk had entered an order on February 22, 

2018, stating that no action will be taken on the “Petition for Rehearing En Banc” 

because a decision has not yet been entered by the Court. “If, however, Appellant wants 

the Court to consider the argument contained in the submission, he must file a motion 

requesting such. The motion will then be forwarded to the merits panel for 

consideration.” (2/22/18 Order at 1.) We deny Davis’s motion to consolidate because 

this case has been fully briefed on the merits.
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Davis, in particular, challenges the District Court’s order overruling his objections 

to the government’s proposed instructions.2

 Among other things, he argues that a number 

of constitutional errors occurred, the indictment failed to charge an actual offense, and 

the District Court lacked subject matter jurisdiction. According to Davis, “the 1986 

amendments of 18 U.S.C. § 1791, codified in the Act of November 10, 1986, omitted the 

earlier enacted 18 U.S.C. § 1791(d)(1)(B) definition of prohibited object, which removed 

the prohibited object element under that definition and broadened § 1791(a)(2)’s 

substantive scope.” (Appellant’s Brief at 2.) Davis further asserts that “nothing in the 

text of 18 U.S.C. § 1791(a)(2) indicates that Congress intended to enact it as a means to 

execute U.S. Const. Art. III, § 1, and 18 U.S.C. § 1791 ‘(a)(2)(c)’ gave the Appellant

notice that his conduct is non-criminal.” (Appellant’s Reply Brief at 4.)

Initially, we conclude that Davis’s jurisdictional assertions clearly lack merit. 

Given Article III, Section 1 of the Constitution (“The judicial Power of the United States, 

shall be vested . . . in such inferior Courts as the Congress may from time to time ordain 

and establish.”), Congress possessed the power to establish the District Court. “The 

district courts of the United States shall have original jurisdiction, exclusive of the courts 

of the States, of all offenses against the laws of United States.” 18 U.S.C. § 3231. 

“Providing or possessing contraband in prison” in violation of § 1791 constitutes an 

 2 We have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 

1291. The government agrees that we exercise plenary review with respect to the issue of

federal jurisdiction. In turn, this Court applies a plenary standard of review if the 

challenge to the jury instructions implicates a question of statutory interpretation. See, 

e.g., United States v. Schneider, 14 F.3d 876, 878 (3d Cir. 1994).
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offense against the laws of the United States. In turn, Congress clearly has the 

constitutional authority to regulate criminal behavior in a federal prison. In fact, “Section 

1791(d)(4) defines ‘prison’ as a ‘[f]ederal correctional, detention, or penal facility or any 

prison, institution, or facility in which persons are held in custody by direction of or 

pursuant to a contract or agreement with the Attorney General.”3

 United States v. 

Wearing, 837 F.3d 905, 910 (8th Cir. 2016) (per curiam) (rejecting argument that 

indictment failed to allege that offense occurred in federal prison). 

Similarly, we must reject Davis’s reading of § 1791 and its history. This provision 

provides, inter alia, that whoever, “being an inmate of a prison, makes, possesses, or 

obtains, or attempts to make or obtain, a prohibited object” shall be punished by a fine 

under this title or imprisonment for not more five years or both “if the object is specified 

in subsection (d)(1)(B) of this section.” § 1791(a)(2), (b)(3). Subsection (d)(1)(B) then 

defines “prohibited object” to mean, among other things, “a weapon (other than a firearm 

or destructive device), or an object that is designed or intended to be used as a weapon or 

to facilitate escape from a prison.” The 1986 amendments did not eliminate this specific 

definition or element of the offense. In United States v. Holmes, 607 F.3d 332 (3d Cir. 

2010), we actually construed the post-1986 version of § 1791 (the offense at issue 

occurred on April 10, 2007), id. at 333-38. We made it clear that § 1791(d)(1)(B) 

 3 We note that the indictment expressly alleged that Davis was an inmate of the 

United States Penitentiary, Lewisburg. Incorporating the statutory definition of “prison,” 

the District Court specifically instructed the jury that the United States must prove that 

Davis “was an inmate of a prison.” (Doc. #110 at 32; see also id. at 31 (explaining that 

District Court has taken judicial notice that United States Penitentiary, Lewisburg, is a 

federal prison and that jury may but is not required to treat this fact as proven).)
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“covers, among other things, ‘weapon[s] (other than . . . firearm[s] or destructive 

device[s]).’” Id. at 334 (footnote omitted). According to Holmes, “Section 

1791(d)(1)(B) defines ‘prohibited object’ to mean, in part, ‘a weapon (other than a 

firearm or destructive device), or an object that is designed or intended to be used as a 

weapon.’” Id. at 336; see also, e.g., id. at 335 (“[Section 1791(a)(2)] provides that 

‘[w]however[,] being an inmate of a prison, makes, possesses, or obtains, or attempts to 

make or obtain, a prohibited object [,] shall be punished as provided in [§ 1791(b)].’”). 

In this case, the indictment appropriately alleged that Davis knowingly possessed a 

prohibited object, “that is, a weapon or an object designed to be used as a weapon, 

specifically a sharpened piece of plastic, approximately eight-inches in length, which was 

discovered attached to his body by a lanyard.” (Doc. #1 at 1.) The government’s 

proposed instructions as well as the jury instructions given by the District Court then 

properly tracked the applicable statutory language.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.