2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-3-2002

USA v. Coward

Precedential or Non-Precedential: Precedential

Docket No. 01-2547

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Coward" (2002). 2002 Decisions. Paper 372.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/372
PRECEDENTIAL 

 Filed July 3, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-2547 

UNITED STATES OF AMERICA 

v. 

ALFONZO COWARD, 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 00-cr-00088) 

District Judge: Hon. Stewart Dalzell 

Argued April 1, 2002 

Before: SLOVITER, FUENTES and MICHEL,* 

Circuit Judges 

(Filed July 3, 2002) 

Jules Epstein (Argued) 

Kairys, Rudovsky, Epstein, Messing 

Philadelphia, PA 19106 

 Attorney for Appellant 

_________________________________________________________________ 

* Hon. Paul R. Michel, United States Circuit Judge for the Federal 

Circuit, sitting by designation. 

 

 Patrick L. Meehan 

 United States Attorney 

 Laurie Magid 

 Deputy United States Attorney 

 for Policy and Appeals 

 Robert A. Zauzmer (Argued) 

 Assistant United States Attorney 

 Senior Appellate Counsel 

 Kathleen M. Rice 

 Assistant United States Attorney 

 Office of United States Attorney 

 Philadelphia, PA 19106 

 Attorneys for Appellee 

OPINION OF THE COURT 

SLOVITER, Circuit Judge: 

Appellant Alfonzo Coward was convicted for violating 18 
U.S.C. S 922(g)(1) (2001), possession of a firearm by a felon. 

His appeal raises two issues: (1) whether the District Court 

erred in denying his motion to suppress on the ground that 

the government failed to present at the suppression hearing 

essential evidence of reasonable suspicion to justify the 

stop of Coward’s vehicle, and (2) whether S 922(g)(1) is a 

constitutional exercise of Congress’ Commerce Clause 

powers. This court recently decided the latter issue in 

United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), 

which is controlling on this panel. We concentrate on the 

first issue. 

I. 

BACKGROUND 

At the pretrial suppression hearing, Philadelphia Police 

Lieutenant Michael Chitwood testified that on the evening 

of September 23, 1998, he and his partner, Terrence 

Sweeney, were patrolling the area around 43rd and Walnut 

Streets. Shortly before 9:00 p.m., a call was broadcast over 

 2 

 

the police radio requesting the stop of a green Subaru with 

the license plate BMS 9857, driven by an African-American 

male. The call did not state the reasons for the requested 

stop. 

Almost immediately after hearing this call, Officers 

Chitwood and Sweeney saw the vehicle and pulled it over. 

Chitwood testified that prior to approaching the vehicle, he 

saw the driver reach for the glove compartment and duck 

down under the passenger seat before returning to an 

upright position. When the officers approached the car, the 

driver, later identified as Coward, stated, "It’s not mine." 

App. at 61. Chitwood then observed a nine-millimeter 

weapon on the floor of the passenger’s side.1 

Chitwood’s testimony was the only evidence offered by 

the government at the suppression hearing to support the 

legality of the stop. The government did not present the 

testimony of the officer who requested the stop by radio nor 

any evidence demonstrating the reason for the request to 

stop Coward’s vehicle. 

The defense argued that all evidence arising out of the 

stop of Coward’s vehicle should be suppressed for lack of 

reasonable suspicion to justify the stop. In response, the 

government argued that it "was a lawful stop . . . [b]ased on 

the radio call." App. at 97. The government argued that the 

" ‘fellow officer rule’ . . . kind of imputes the knowledge of 

the transmitting officer to the receiving officer, whether it is 

actually transmitted or not." App. at 98. The government 

advised the District Court both in its memorandum and at 

the oral argument that there was authority in the Ninth 

Circuit’s decision in United States v. Robinson , 536 F.2d 

1298 (9th Cir. 1976), that "[e]ffective law enforcement 

cannot be conducted unless police officers can act on 
directions and information transmitted by one officer to 

another; and that officers who must often act swiftly, 

cannot be expected to cross-examine fellow officers about 

_________________________________________________________________ 

1. Coward disputes these facts, specifically whether he reached in the 

car and whether he made any statement to the officers, but these factual 

disputes are not relevant to the issues on appeal. 

 3 

 

the foundation for the transmitted information." App. at 97 

(quoting Robinson, 536 F.3d at 1299).2 

Following the arguments of the government and counsel 

for Coward, the District Court at the pretrial hearing on 

January 4, 2001, denied the motion to suppress, noting 

that it was sufficient that Chitwood reasonably relied on the 

radio request. App. at 101 (stating that Chitwood’s 

testimony demonstrated "ample reasonable suspicion, 

indeed fear, on the part of . . . Chitwood that[led] to the 

search"). In an amendment to the order to suppress filed 

the same day, the District Court added that the burden was 

on the defendant to show that there was no reasonable 

suspicion behind the police radio request. The court stated: 

 The question then becomes who has the burden of 

 showing that there was no reasonable suspicion behind 

 the police radio request. It seems to us that the 

 Government, having prima facie shown the 

 reasonableness of Sergeant Chitwood’s behavior, 

 should not have to take on the added burden of looking 

 behind the request from police radio. Since the 

 defendant has as much access to this proof as the 

 Government, it seems to us not excessive to place the 

 burden of such proof upon the party claiming that the 

 radio dispatch was illegitimate. As there is not a 

 scintilla of evidence in this record regarding such 

 illegitimacy, we will not infer it retrospectively absent 

 some basis for doing so. 

App. at 27. On February 26, 2001, the defense moved to 

reconsider that order and on March 5, 2001, the District 

Court denied that motion reiterating the reasons given in 

the January 4, 2001 Order. App. at 124. 

Thereafter, evidence derived from the stop of Coward’s 

vehicle was admitted at the jury trial. On June 13, 2001, 

Coward was found guilty of being a felon in possession of 

a firearm that had traveled in interstate commerce in 

_________________________________________________________________ 

2. Although the government noted that under Robinson, "the officer who 

issues a Wanted Bulletin must have a reasonable suspicion sufficient to 

justify a stop," App. at 96, it did not advise the court of the government’s 

necessity to produce such evidence. 

 4 

 
violation of 18 U.S.C. S 922(g)(1) and was sentenced to 

sixty-eight months imprisonment and three years of 

supervised release. Coward moved for a judgment of 

acquittal pursuant to Federal Rule of Criminal Procedure 

29(c) on the Commerce Clause issue. The District Court 

denied his motion. United States v. Coward, 151 F. Supp. 

2d 544 (E.D. Pa. 2001). This is the direct appeal of that 

judgment pursuant to 18 U.S.C. S 1291. 

II. 

DISCUSSION 

A. 

Suppression of Evidence 

We review the District Court’s denial of the motion to 

suppress for clear error as to the underlying factual 

findings and we exercise plenary review over questions of 

law. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 

2002). 

1. Proof of Reasonable Suspicion 

The government concedes, as it must, that it did not 

meet its burden of proof in establishing that the stop of 

Coward’s car was based on reasonable suspicion. Br. of 

Government at 4. The government further acknowledges 

that the District Court incorrectly shifted the burden of 

proof to the defendant on this issue. 

Under the applicable law, the government was required to 

present evidence at the suppression hearing of the 

requesting police officer’s reasonable suspicion. In Whitely 

v. Warden, 401 U.S. 560 (1971), the Supreme Court held 

that although a police officer may rely on the 

representations of other officers when making an arrest, the 

officers requesting assistance must have sufficient 

information to show probable cause. Id. at 568 ("[A]n 

otherwise illegal arrest cannot be insulated from challenge 

by the decision of the instigating officer to rely on fellow 

officers to make the arrest."). 

 5 

 

The Supreme Court reached a similar result in United 

States v. Hensley, 469 U.S. 221 (1985). In that case, the 

Supreme Court stated: 

 [W]hen evidence is uncovered during a search incident 

 to an arrest in reliance merely on a flyer or bulletin, its 

 admissibility turns on whether the officers who issued 

 the flyer possessed probable cause to make the arrest. 

 It does not turn on whether those relying on the flyer 

 were themselves aware of the specific facts which led 

 their colleagues to seek their assistance. 
Id. at 231 (emphasis in original). Hensley makes clear that 

if a flyer or bulletin was issued without reasonable 

suspicion, the stop made in "the objective reliance upon it 

violates the Fourth Amendment." Id. at 232. "Assuming the 

police made a Terry[v. Ohio, 392 U.S. 1 (1968)] stop in 

objective reliance on a flyer or bulletin, we hold that the 

evidence uncovered in the course of the stop is admissible 

if the police who issued the flyer or bulletin possessed a 

reasonable suspicion justifying a stop." Id. at 233 

(emphasis in original). Our court reached the same 

conclusion in Berg v. County of Allegheny, 219 F.3d 261, 

270-71 (3d Cir. 2000), where we concluded that an arrest 

violated the Fourth Amendment because the government 

officials who issued the arrest warrant, which was later 

executed by another police officer, did not have probable 

cause. Therefore, the law at the time of the suppression 

hearing on Coward’s motion was clear that a finding of 

reasonable suspicion to justify the stop required the 

presentation of evidence by the government that the officer 

who issued the radio bulletin had reasonable suspicion, not 

simply that it was reasonable for the arresting officer to 

have relied on the bulletin. The government presented no 

such evidence. 

In addition, the District Court erred in holding the 

burden was on the defense to prove reasonable suspicion. 

Once a defendant has challenged the admissibility of such 

evidence, the government must bear the burden of proving 

the existence of reasonable suspicion. See Florida v. Royer, 

460 U.S. 491, 500 (1983) (stating that government has 

burden of proving seizure was "sufficiently limited in scope 

and duration to satisfy the conditions of an investigative 

 6 

 

seizure"); United States v. Johnson, 63 F.3d 242, 245 (3d 

Cir. 1995) ("once the defendant has established a basis for 

his motion . . . the burden shifts to the government to show 

that the search or seizure was reasonable"). 

The parties do not dispute that the evidence offered in 

the District Court was insufficient or that the burden of 

proving reasonable suspicion should have been on the 

government. The only question before us is the appropriate 

resolution. Coward requests that we reverse the denial of 

his motion to suppress and order a new trial at which all 

evidence derived from the stop of his vehicle will be 

suppressed. The government requests that we remand the 

case to allow the District Court to decide whether the 

government should be given an opportunity to introduce 

new evidence on the issue of reasonable suspicion. 

2. Reopening the Suppression Hearing 

The question of whether the government may augment 

the record at a suppression hearing after a remand 

following the conviction of the defendant is analogous to the 

question of whether the government may reopen its case 

after resting. United States v. Vastola, 915 F.2d 865, 876 
(3d Cir. 1990) (citing United States v. Blankenship, 775 

F.2d 735, 740-41 (6th Cir. 1985)). In Vastola , we noted that 

decisions to reopen proceedings are "traditionally a 

discretionary matter for the district court." Id. (citing 

Blankenship, 775 F.2d at 740-41). For example, we review 

a district court’s decision on a motion to reopen for abuse 

of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 

401 U.S. 321, 332 (1971). However, we have cautioned that 

" ‘courts should be extremely reluctant to grant 

reopenings.’ " United States v. Kithcart , 218 F.3d 213, 219 

(3d Cir. 2000) (Kithcart II) (quoting Blankenship, 775 F.2d 

at 740). 

Our decision in Kithcart II provides our most recent 

analysis of this issue. In United States v. Kithcart, 134 F.3d 

529, 532 (3d Cir. 1998) (Kithcart I), we reversed a district 

court’s denial of a motion to suppress for lack of probable 

cause and remanded the case to determine if the evidence 

could support a finding of the lesser standard of reasonable 

suspicion. On remand, the district court allowed the 

 7 

 

introduction of new evidence on the revisited suppression 

motion that had not been presented at the initial hearing. 

Kithcart II, 218 F.3d at 217. On appeal, we held that the 

district court erred in allowing the prosecution to present 

additional testimony without explanation of its failure to 

introduce the evidence at the original suppression hearing. 

Id. at 221. 

In Kithcart II, we set forth a number of factors that a 

court must consider in deciding whether to permit 

reopening. We stated that "[w]hen faced with a motion to 

reopen, the district court’s primary focus should be on 

whether the party opposing reopening would be prejudiced 

if reopening is permitted." 218 F.3d at 220 (citing 

Blankenship, 775 F.2d at 740; 28 Charles A. Wright & 

Victor J. Gold, Federal Practice and Procedure S 6164 

(1993)). A critical factor in evaluating prejudice is the 

timing of the motion to reopen. As the court stated in 

Blankenship: 

 If [the motion to reopen] comes at a stage in the 

 proceedings where the opposing party will have an 

 opportunity to respond and attempt to rebut the 

 evidence introduced after reopening, it is not nearly as 

 likely to be prejudicial as when reopening is granted 

 after all parties have rested, or even after the case has 

 been submitted to the jury. Where, as in this case, 

 reopening is permitted after the government has rested 

 its case in chief, but before the defendant has 

 presented any evidence, it is unlikely that prejudice 

 sufficient to establish an abuse of discretion can be 

 established. 

775 F.2d at 741. 

The Blankenship court offered further guidelines for 
courts to use in deciding whether to reopen a proceeding: 

 In exercising its discretion, the court must consider the 

 timeliness of the motion, the character of the 

 testimony, and the effect of the granting of the motion. 

 The party moving to reopen should provide a 

 reasonable explanation for failure to present the 

 evidence in its case-in-chief. The evidence proffered 

 should be relevant, admissible, technically adequate, 

 8 

 

 and helpful to the jury in ascertaining the guilt or 

 innocence of the accused. The belated receipt of such 

 testimony should not imbue the evidence with distorted 

 importance, prejudice the opposing party’s case, or 

 preclude an adversary from having an adequate 

 opportunity to meet the additional evidence offered. 

Id. (quoting United States v. Thetford , 676 F.2d 170, 182 

(5th Cir. 1982) (quotation omitted)). 

In Kithcart II, we placed emphasis on the need for an 

adequate explanation of the failure to present the relevant 

evidence earlier. "In order to properly exercise its discretion 

the district court must evaluate that explanation and 

determine if it is both reasonable, and adequate to explain 

why the government initially failed to introduce evidence 

that may have been essential to meeting its burden of 

proof." Kithcart II, 218 F.3d at 220. In that case, we 

reversed the district court’s decision to reopen the 

suppression hearing on remand because "the government 

offered absolutely no explanation for its initial failure to 

present the additional witnesses at the original suppression 

hearing, nor did the district court demand an explanation." 

Id. at 217. 

We have made clear that the " ‘party moving to reopen 

should provide a reasonable explanation for failure to 

present the evidence [initially].’ " Kithcart II, 218 F.3d at 220 

(alteration in original) (quoting Blankenship , 775 F.2d at 

741 (quoting Thetford, 676 F.2d at 182)). Consideration 

should be given to whether the law on point at the time was 

unclear or ambiguous, as well as to whether new evidence 

came to light after the proceedings closed. Id . (suggesting 

reopening inappropriate because the government "was fully 

aware of what it had to establish to successfully oppose 

Kithcart’s suppression motion" and nothing suggested "that 

evidence was either newly discovered or unavailable during 

the first hearing"); see also Vastola, 915 F.2d at 876 

(remanding determination on adequacy of government’s 

explanation for delay in sealing wiretap tapes because 

government may have relied on a case that was later 

overruled by the Supreme Court). 

Unlike in Kithcart II where the government offered no 

explanation for its failure to present the evidence, the 

 9 
 

government in this case offers two justifications for its 

failure to produce evidence that would have satisfied its 

burden of proof: (1) a mistake due to the "relative 

inexperience" of the prosecutor, and (2) the acquiescence of 

the judge. The government proffers no evidence of its 

assertion that the prosecutor was indeed inexperienced, 

stating that such proof would be provided on remand. We 

note that the prosecutor’s "inexperience" did not prevent 

the government from selecting her to handle the obligations 

of a criminal trial and, indeed, she secured Coward’s 

conviction. Moreover, there is testimony at the suppression 

hearing suggesting that the prosecutor was familiar with 

the controlling precedent on this issue. App. at 98-99 

(discussing applicability of Hensley and Berg). In fact, at 

the suppression hearing the prosecutor quoted from United 

States v. Robinson, 536 F.2d 1298 (9th Cir. 1976), a case 

that specifically articulated the government’s burden to 

prove that the directing officer had reasonable suspicion to 

support a stop. App. at 96-97. As for the judge’s misplaced 

acquiescence to the government’s faulty interpretation of 

the law, the government may not shift the blame to the 

District Court for its own failure to advise the court of the 

applicable law and to bear its burden of proof on a clearly 

established requirement. At oral argument, government 

counsel restated its argument, making clear that the 

government was not suggesting that the court somehow 

induced the government’s failure to submit the missing 

evidence. 

A district court may consider the purpose for reopening. 

In Blankenship, the court stated, "[r]eopening is often 

permitted to supply some technical requirement such as 

the location of a crime--needed to establish venue--or to 

supply some detail overlooked by inadvertence." 775 F.2d 

at 740 (citing United States v. Hinderman, 625 F.2d 994, 

996 (10th Cir. 1980)). Nothing suggests that the 

government in Coward’s case "overlooked" a"detail" by 

"inadvertence." Instead, the government neglected to put on 

evidence it had readily available to it, out of a faulty 

interpretation of the law. This case is not one in which the 

misinterpretation can be justified because the law was 

ambiguous or changing. The government’s burden of proof 

to show probable cause is not merely a "technical 

 10 

 

requirement" as in Blankenship but a critical requirement 

of criminal law. 

We refrain from expressing our view as to whether the 

government has provided a reasonable and adequate 

explanation for its failure to present evidence that the 

requesting officer had reasonable suspicion to justify the 

stop, because we believe the District Court is the 

appropriate body to weigh the government’s arguments and 

evidence in favor of reopening. In Vastola, we remanded the 

determination of whether the government had a reasonable 
explanation because "the district court should be entitled to 

exercise its discretion to decide whether the government 

should now be permitted . . . to offer an explanation for its 

violation . . . . It seems to us that this threshold 

determination . . . is similar to that on a ruling on a motion 

by the government to reopen, traditionally a discretionary 

matter for the district court." 915 F.2d at 876 (citing 

Blankenship, 775 F.2d at 740-41). 

For the reasons articulated, we will remand to the 

District Court to evaluate the government’s request to 

reopen the suppression hearing in light of the 

considerations expressed herein. 

B. 

Validity of Section 922(g) 

In Coward’s brief, he argued that possession of a firearm 

that has previously traveled in interstate commerce does 

not have a substantial relation to and/or impact on 

interstate commerce and thus falls outside of Congress’ 

authority under the Commerce Clause, U.S. Const., art. I, 

S 8, cl. 3. On that basis, Coward argued that 18 U.S.C. 

S 922(g)3 was not constitutionally applied to him. However, 

_________________________________________________________________ 

3. 18 U.S.C. S 922(g) reads in part: 

 (g) It shall be unlawful for any person -- 

 (1) who has been convicted in any court of, a crime punishable 

 by imprisonment for a term exceeding one year; 

 11 

 

his brief was written without the benefit of this court’s 

recent decision in United States v. Singletary , 268 F.3d 196 

(3d Cir. 2001). 

In Singletary, we examined this precise issue in detail 

and held that "proof . . . that the gun had traveled in 

interstate commerce, at some time in the past, was 

sufficient to satisfy the interstate commerce element" of the 

statute. Id. at 205. Taking note of our prior decision in 

United States v. Gateward, 84 F.3d 670 (3d Cir. 1996), we 

scrutinized the same line of Commerce Clause decisions of 

the Supreme Court to which Coward directed our attention 

and ruled that S 922(g) was constitutional. See id. at 200- 

205 (analyzing Jones v. United States, 529 U.S. 846 (2000), 

United States v. Morrison, 529 U.S. 598 (2000), United 

States v. Lopez, 514 U.S. 549 (1995), Scarborough v. United 

States, 431 U.S. 563, 564 (1977)). In light of the binding 

effect we give to precedential opinions of panels of this 

court, we reject Coward’s challenge to S 922(g). See 3d Cir. 

Internal Operating P. 9.1. 

Despite the rejection of identical constitutional challenges 

in Singletary, Coward maintains that Singletary did not 
address his challenges based on statutory construction and 

thus has no preclusive effect over those challenges. Reply 

Br. at 5-6. Coward argues that the term "possess in or 

affecting interstate commerce" in S 922(g) cannot include 

the intrastate possession of a gun that once traveled in 

interstate commerce because to do so would violate three 

principles of statutory construction: (1) the rule of lenity 

and strict construction of criminal statutes; (2) the 

necessity to construe statutes to give meaning to each 

phrase and render no phrase superfluous; and (3) the rule 

that statutes be construed to avoid grave constitutional 

questions. Br. of Appellant at 23-31. 

_________________________________________________________________ 

 . . . . 

 to ship or transport in interstate or foreign commerce, or possess in 

 or affecting commerce, any firearm or ammunition; or to receive any 

 firearm or ammunition which has been shipped or transported in 

 interstate or foreign commerce. 

 12 

 

Although Singletary does not directly address these rules 

of statutory construction, it effectively addresses and 

overcomes Coward’s arguments. In Singletary, we examined 

the phrases used in S 922(g) and compared them to the 

language of the statutes at issue in other Commerce Clause 

cases to find the language constitutional. 268 F.3d at 204. 

Reading the statute according to the interpretation given by 

this court in Singletary, as we must, we cannot find any 

violations of these tenets of statutory construction and 

decline to grant relief on this issue. 

III. 

CONCLUSION 

For the reasons stated herein, we will remand this case 

to the District Court to decide, in its discretion, whether to 

allow the government to present additional evidence in 

opposition to the suppression motion. In so considering, 

the District Court must consider the factors articulated 

above, including whether or not the government has an 

adequate and reasonable explanation for its failure to 

present the evidence initially and whether the presentation 

of additional evidence will prejudice the defendant. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 13