2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

8-10-2004 

# U S A v . S mith

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 03-2265

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Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

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w . v i l l a no v a . e du/thir dc ir c uit_2004/4041 NOT PRECED ENTIAL

UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT No. 03-2265 UNITED STATES OF AMERICA

v. BENJAMI

N SMITH, Appellant Appeal from the United States Dist rict Court for the Easte rn District of P ennsylvania (Crim . No. 02-cr-0030) District Court: H on. Stewart D alzell Submitted pursuant to Third Circuit LAR 34.1(a)

June 25, 2004 Before: NYGAARD, McKEE and CHERTOFF,

Circuit Judges (Opinion fil ed: August 10, 2004)

OPINI ON McKEE, Circuit

Judge

. Benjamin Smith ap peals the district cou rt’s judgment o f convictio n and senten ce. For the r easo ns th at fo llow , we w ill af firm. I. On September 7 , 2001, P hiladelphia P olice Offic ers Jerold Seiple a nd Nate Smith2

were riding in a marked patrol car in Philadelph ia, Pennsylvania when , around 2 a.m., they s aw a green Lexus operating without its headlights. After a r adio check confirmed that the car’slicens e plate

had expire d they

pulled the

Lexus over ne ar the interse ction of 4th Street and Lehigh Avenue. Officer Seiple appr

oached the

driver’ s side of t

he Lexus and a sked Smith, who was in the driver’s sea

t, for his license and regis tration. Smith re plied that he only

had an ID card and then reached into his left pocket with his left hand as he reached over toward the glove box. As he rea ched, Offic er Seipl e saw the butt of a handgun pr

otruding from Smith’s waistband, and he asked Sm ith if he had any weapons in the ca r. Smith denied that he di d and Seiple

asked Sm

ith to get out of the ca

r. Smith responde d by ki cking the door open and climbing between the door and the door frame. Seiple then grabbed Smith by his sweatshirt and Smith and Seiple fell backward. A struggle then ensued between Offi cer Sei

ple, Offic er Smith, and defendant Smith. During t hat str uggle, the defendant pointed the gun at the police officers, but they were eventually

able to knock the gun away . Officer

Smith t hen threw t

he weapon on top of t

he police car and out

of the defenda

nt’s re ach. At s ome point during the s truggle, the defenda nt stat ed that he was not go ing back to jail. Smith wa s ultim

ately subdued and ar

reste d, and the police se

ized the gun. Subsequ ent investigatio n disclosed th at it was an oper able Smith & Wesson .9 mm, semiautomatic pistol with an obliterated se rial number and th at it contained six rounds.3 II. A federal

grand jury

returne d an indict

ment charging Sm

ith with one

count of being a fel on in posses sion of a fir earm , in viola

tion of 18 U.S.C. § 922(g)(1). The indictment also con tained a notice o f forfe iture for the S mith & Wesson .9mm semiautoma tic pis tol and the

amm unition. On June 14, 2002, t

he Federa l Defender ’s Assoc iation wa s appointe d to repre sent Smi th. At

Smi th’s reque st, his t

ria l was then c ontin

ued unt il Se ptem ber 30 , 2002. On July 31, 2002, Smith fil ed a pro se motion t o suppressevidence . On August 1, 2002, he filed a pro se motion t

o dismi ss the indictm

ent for la ck of subject

matt er juris diction based upon a t

heory that Congre ss lacked the aut hority to enact the felon in possess ion statut e. The dis trict

court relied on United Sta tes v. Singletary , 268 F.3d 196 (3d C ir. 2001), in dis miss ing that m otion. On August 9, 2002, Sm

ith file d a moti on to dism iss the indictm ent base d on the Second Amendment. On September 4, 2002, he filed another pro se motion to dismiss the indictment and the next day he filed a pro se addendu m to his pro se motion to dismi ss. He t

hereaft er file d an amended pro se motion to dismis s. The district court denied the se mot

ions by order dat ed Septem

ber 20, 2002. Hi s earlier suppr ession m otion was denied f ollowing an evidentiary hearing , and the matter pro ceeded to a j ury trial. At tria l, the t estim ony of ATF Special Agent Jam es Juvena was adm itted without objection. He testified that the gun had been manufactured in Mass achusetts, and that1 The district court ordered the l etter and affidavit docketed as a m otion for a new trial under Fed.R. Crim. P. 33. 4 parts had been manufactured in Maine and Minnesota. The parties also sti pulated that Smith had previously

been convicted of a crime punishable by imprisonment for a t

erm exceeding one yea

r. On the firs t day

of trial , Septem

ber 30, 2002, t

he distr ict cour t re-opened the suppression motion and permitt ed Smith to personally

argue another pro se motion, i.e., that the stop o f his car violated the Fourteen th Amendment’s Eq ual Protection Clause. At the conclusion of the first day of trial, the distri ct court denied that moti on, the trial continued , and the ju ry convicted Smith. On October 3, 2002, Smith sent a letter a nd accompanying affidavit to the district court, alleging , inter alia , that trial counsel w as ineffectiv e for den ying him the right to te st ify. 1 On October 8, 2002, Smith filed a pro se motion for withdrawal of trial counsel. The court granted that moti on on October 12, 2002, and appointed new counsel for Smith. On November 27, 2002, Smith filed a pro se motion for judgment of acquittal and new tri al pursua

nt to Fed.R. Crim. P. 29, 33 and 34, in which he re peated hi s claim of ineffective ness of trial cou nsel. On April 15, 2003, the dist rict c ourt held a

hearing t o addressall outs tanding motions . The witne sses included Defender Assoc iation a ttorney s Kenneth Edelin and Leigh Skipper, and the defendant’s mother, Sheketter Sm ith. Thereafter, the c ourt5

denied all of the outs tanding m otions and Sm

ith was s ubsequentl

y s entence d to 120 months incarceratio n plus a term of su pervised release, a sp ecial assessment and a fin e. Smith filed a tim

ely appeal. However, on April 29, 2003, he filed a pro se motion for reducti on of sentenc e under Fed. R.Crim .P. 35(b). The distr ict cour t cause d this m

otion to be docketed under Rule 35(a), as a motion for correct ion of sentence caused by error, and thereafter denied it. III. Smith’s appointe d counsel has file d a brief pursuant to And ers v. C aliforn ia , 386 U.S . 738 (19 67) , statin g th at he is un able to id entif y any no n-f rivo lou s issu e fo r rev iew

. An a ppointed a ppellate coun sel who “finds [a] c ase to be w holly frivolous, after a conscientious examination of” the case, must so advise t he court of appeals and request per mis sion to w ithd raw . Anders , 386 U.S. at 744 ( 1967). Counsel ’s reque st must be

accom panied b y a “brief referring to an ything in the record that m ight arguab ly support the appeal .” Id. The brief must identi fy any

“issue arguably

supporti ng the appeal even though the appeal was wholly frivol ous,” Smith v. Robbins , 528 U .S. 259, 285 (2000), “ex plain wh y the iss ues are f rivo lou s,” Un ited Sta tes v. M arvin , 211 F.3d 778, 781 (3d Cir. 20 00), an d sho w th at cou nsel “th orou ghly sco ured the rec ord in search of ap peala ble issues .” Id. at 780 ; see a lso U nited S tates v. Y oula , 241 F.3d 296, 300 (3d Cir. 200 1). Counsel’s Anders brief r efers us to the por tions of the re cord that

arguably

present non-frivolous issues and he identifi es the following issues: the credibility of trial2 We ex er ci se pl en ar y re vi ew ov er th e d is tr ic t c ou rt ’s le ga l c on cl us io ns an d a pp ly a

clearly erroneous standard to the court’s f actual findin gs. United Sta tes v. Cepero , 224 F.3d 256, 258 (3d C ir. 2000) (en banc). 6 witnesses and the sufficiency of the evidence at trial. However, Smith’s counsel has concluded t

hat any claim of error woul d be frivolousand we agre e for the r easons explained in the Anders brief. Smith has also filed a pro se brief raising th e followin g issues: (1) inef fectiveness of trial counsel; (2) the va

lidity of the tra ffic stop unde

r the Fourt

h Amendm

ent and the Equal Prote ction Cla

use of the Four

teenth Am

endment ; (3) an a

lleged Brady violati on; (4) erroneo us jury instructions; an d (5) a due process challen ge to § 92 2(g). We will addre ss e ach a

rgum ent below. A. Ineffec tiveness of tria l counsel. 2 As noted, the day a

fter his conviction, Smith wrote a letter to the dist

rict court alleging that h is trial counsel was in effective b ecause they would n ot let him or his brother testify

at trial. He s ubsequently file d a pro se § 2255 motion reiterating h is claim of ineffectiveness, and moved for a new trial under Rules 29, 33 and 34. The district court appo inted new co unsel and h eld an eviden tiary hearing before d enying the posttrial claims. Smith challenges that ru ling on ap peal. Smith’ s tria

l counsel , Federa

l Defender s Leigh Skippe r and Kennet

h Edelin, testified that al

though Smith initially

said that he wanted to testi fy, they strongly a

dvised against it, since

Smith would thereby

open himself up to damaging impeachment based7

on his two pri or robbery

convicti ons. Tria

l counsel believe d it mor

e prudent t

o impugn the credibility

of the police officers rather than advise Sm ith to take the stand. The tria l transcript reflectscounsels ’ atte mpts t o aggress ively

impea ch the offic ers’ t

estim ony a nd to exploit alleg ed discrepan cies between th eir testimony and their reports. Defense counsel also presented evidence t o suggest that the police officers assaulted Smith in th e hospital after h is arrest. This includ ed testimony from a Temple University

emergency

room physi cian, Dr. Schwell, regar ding contusions on Smith’s forehead, lip and back following the arrest. The phy sician also tes tified that Smith had reporte d being ass aulted by police while in the

hospital and that a

n officer c ame into the

emer gency room and hit Smit

h in the m

outh. Counsel also testified that, prior to trial, Sm ith claime d that his brother (“ Andre ”) could testify

that he had loaned Smith his car. Smith had told counsel that the police took the gun from the trunk of the car. Counsel interviewed André on the Friday before trial but conclu ded that An dre would not be help ful. Altho ugh they thoug ht him credibl e, he wasreluct

ant to te stify . He confir

med tha t he had loa

ned the ca

r to Smith, but claimed to kn ow noth ing abou t any gun in the trun k. On the Monday

morning of t

rial, André sought out

counsel a

nd told them

that he loved his br

other and t

hat he want

ed to tes tify . However, André was c oncerned a bout getting into trouble and told coun sel he was not g oing to lie. H e then show ed counsel a letter from t

he defendant in which the defendant had asked André to say that he loaned3 Edelin’s recollect ion is consistent with Skipper’s. Both counsel believed that Smith acquiesced af ter consulting with his mother. 8 the car to someone else before h e loaned it to S mith. Attorney Skipper sp ecifically recalled the po rtion of th e letter that said “tell them – someon e whose name I f orgot – had the car. They ’ll never find him because he’sdead.” Defense counsel and André both inter preted t his as a n attem pt to suborn pe

rjury and counsel

responded by

telling André that h e would n ot be called as a w itness. Coun sel also told Smith th at they would have to ask th e court to remove them if he decide d to testify because they refused to

as si st hi s p er

ju ry. Sm it h d id no t t es ti fy. At the conclusion of the government’s case, t he court granted a recess for counsel to confer with Smit

h. Counsel onc e again t

old Smit h that he ha

d a right t o testify, but they r ecommended against

it. Counsel testified that Smith was dissati sfied with counsel and wanted his mother’s advice. Skipper then conferred with Mrs. Smith. He told her that he and Edelin recomm ended against Smith test

ifying. When Sm

ith made an inquiry of his mot

her about t

estify ing, Mrs. Smith s hook her head “ no” and told Ski pper that she al so be li ev ed th at Sm it h s ho ul d n ot te st ify. 3 Smith testifie d during the post-trial hearings that w hen he first met Ed elin and told him that he wanted to testify at trial, Edelin had no respon se whatsoeve r. Smith claimed that neither o f his attorneys ever told him tha t he had the

right to t estify . He adm

itted, however, t

hat counsel believed he should not te stify

because of potentia

lly damaging revela

tions conc erning hisprior9

conviction s. Yet, accordin g to Smith, du ring discussio ns of trial strategy, when he told both counsel that he wanted to testify and that he was serious about it, both counsel sta rte d laug hing a

nd jokin g. Acc ordin gly

to Sm ith, his br other was pr epar ed to t est ify that the f irear m was i n th e tru nk o f th e car whi ch A ndr é had loan ed to him. S mith c laims that counsel never explained why they would not call André asa witness other than Skipper sa

ying that histrial

experience led him to bel ieve tha t the jury had a doubt. Not surprisingly , André Smith did not testify during the post-trial hearing on the defendant’s inef fect iven ess cl aim. The district court acc epted the testim ony of Skipper and Edelin and rejected Smith’s test

imony about his decision not to testify . Nothing on this record suggests that the court’s credibility det ermination was cl early

erroneous. In fact, Smit h’s claim t

hat counsel refused to comply with his decision to testify is belied by

the record. In the lett

er he wrote to the district c ourt the day a fter his conviction complaining about his counsel’s ineffective ness, Smith wrote th at he told his law yers that he would no t testify if his mother told him not to. He al so wrote that “my mother told me don’t te stify and I listened even thou gh I wanted to testify.” Supp. Ap p. 356. Smith’s post-trial testimony also show s that he volu ntarily relinquished his rig ht to testify. Smith a

dmitt ed that he told counsel that t

he only person who coul d tell him not to test ify was his m

other. W hen he saw hi s mothe

r shake he

r head “no”while spe aking to Skipp er, he thoug ht that she did not want h im to testify. He then explained , “[s]o, I10

didn’t testify.” Supp . App. 27 5. Under th ese circumstances, the district co urt properly accepted the d efense attorn eys’ reasonable belief that S mith had assented to their

recommendation that he not testify . The district court al so correctly noted that counsel acted ethically in advising S mith that they would move to withdraw if Smith decided to testify. Nix v. W

hitesi de , 475 U.S . 157, 17 1 (1986 ). We will not no w allow Smith to spin counsel’s ethica l conduct in to a claim of ineff ectiveness. Smith a lso cla ims t hat counsel was ineffective for not calling a hospital tr iage nurse to testify . He claimsthat she would have testified about injuries he had when admitted to the hospital

following his arrest. Purportedly , she would have testified that some of the injuries noted in hospital rec ords resulted from the ar resting officers punching Smith in the hos pital. In his view, had thisinforma tion been pr

ovided to the jury, the polic e officers’ credibility would have been undermined since they testified that they went to the hosp ital only to identify Smith. However, t

he nurse’ s purporte d testimony would have been cumula tive in l ight of Dr. Schwell’s testimon y. Schwell’s testimony raised a question ab out the of ficers’ credibility and we can n ot, therefore , conclude th at defense co unsel were ine ffective in failing to call an other witness to testify about the same thing. Smith also claims that counsel were ineffective for failing to object to the jury instruction co ncerning co nstructive po ssession of a f irearm. In order to p revail on this claim , Smit

h must s how that couns el’s fa ilure t o object to t

his inst ruction wa s an err

or11

“so serious that co unsel was no t function ing as the ‘cou nsel’ guaran teed by the Sixth Amendment,” and h e must also show th at his counsel’s d eficient perf ormance resulted in prejudice. T he Supreme Co urt has defin ed prejud ice as a “reasonable p robability that, but for counsel’s unprofessional errors, the res ult of the proceeding would have been different.” Strick

land v. Washington , 466 U.S . 668, 68 7 (1984 ). The district cou rt’s charge was tak en directly from Sand’s Modern F ederal Jury Instruc tions , and counsel’s failure to obje ct to a s tandard jur y charge ca

n hardly be viewed as so inept as to fall outside “the wide range of reasonable professional assistance. ” Strick

land , 466 U.S. at

689; Supp. App. 388. Mor eover, Sm

ith cannot show prejudice because the distri ct court also instruct ed on actual possession. The jury obviously accept ed the poli ce office

rs’ ver sion of what ha

ppened, and t

heir te stim

ony establishes actual

possess ion. Finally , Smit

h claims that c ounsel er

red in not pr

operly articulating a

theory of

cross- examination and t

hereby depriving him of his Sixth Amendm ent right to confront witness es against him . At tri al, defense counsel atte mpted t o question Offi cer Sei

ple on his knowledge

of police di

rectives conce

rning the us e of deadly

force, but

the governme

nt objecte d. At a si debar, c ounsel sa id that he wanted to br

ing out that , if the police really

believed they

were threatened when Smith pointed his weapon at them , they would have been justifie d in shooting him. The di strict court found t hat the line of questioning was unnecessarily confusing since there was no shooting and it precluded4 We review the d istrict court’s denial o f a motion to su ppress for c lear error as to

the underlying factual findings but we exercise plenary review of the district court’ s application o f the law to th ose facts. United States v. Perez , 280 F.3d 318, 336 (3d Cir. 2002). 12 further qu estioning. Smith c laim s that c ounsel wasineffect ive beca use they did not argue

that the testimony showed bias . However, Smith’ s defense was that the polic e officer s’ vers ion of the incid ent was not cre dible, not th at the police we re biased. Smith’s Six th Amendment challeng e to his attorneys’ stewardsh ip is utterly frivolous. B. Traffic s top. 4 Smith r eiter ates hi s suppres sion mot

ion argum

ent that the tra ffic stop vi olated t

he Fourth A mendment because th e police off icers never wro te citations for traf fic violati ons. He al so claims tha t the st op violate d the Equal Pr

otecti on Clause of t

he Fourteent h Amendm

ent beca use the s top was ra

ciall y m otivate d. Smit

h is an Afri canAmerican male. He argues that t he arresting police officer te stified that factors s uch as the defenda

nt’s ra ce, the price of hi s autom

obile and t

he neighborhood in which he traveled were all f actors in the of ficer’s decision to stop the car. N ot surprising ly, Smith provides n o record citatio n for tho se allegations. During cross-examinati on, Officer Smith did agree with defense counsel’s characterization th at the Lexus S mith was driving was a “high- end” car; it was. D efense counsel a lso eli cited t

estim ony t hat the police re cognized t he gender a

nd race of t

he5 The officers’ 48s did contain statem ents that the car wasbeing driven with an expired t ag. 13 driver of the car before it was stopped. Counsel brought out that Smith was not ti cketed for the expi

red tag or failure to use hisheadlight s, both of which are viol ations of t he traffic cod e. Nevertheless, the t

estimony at the suppression supported the court’s finding that the polic e officer s stopped t he car onl y be cause t

hey were sus picious of a

car being driven at 2 a.m. in a h igh-crime area witho ut headligh ts and with an expired reg istration. Officer Sm

ith tes tified t

hat he had be en patrolling the a rea for a bout six y ears, and that he knew it to be a high-crime ar ea, with numerous shootings, robberies a nd drug-related cri mes . During cro ss- exam inat ion, O ffice

Seipl e re ite

rat ed tha t hisatt enti on was drawn to the Lexus only because the headlights were out, and that the ca r was stopped only afte

r the police learn ed that the registra tion had ex pired. Officer Seiple admitt

ed that neither his nor Officer Smith’s police “48,” contained a statement about the L exus being driven with out headlig hts. 5 However, Officer Seiple’s investi gation int

erview m emora ndum, a m

ore deta iled handwr

itten a ccount of the incident prepare d shortly

after t he 48, did note

that the Lexus had an expired ta

g and no he ad li gh ts . I n a dd it io n, Of fi ce r S mi th ’s me mo ra nd um , p re pa re d t he sa me da y, confirm ed that he stopped the

defendant be cause t

he car wa s operat

ing without headlights at 2 :00 a.m. and the rad io check disclo sed an expire d registration.14

Accordingl

y, the dist rict c ourt corr

ectly found that the

officershad the aut

hority to stop Smith’s car. United Sta tes v. Moorefield , 11 F.3d 10, 12 (3d Cir. 1997 ). Moreover, th e absence of traffic citations d oes not impair the v alidity of the traffic stop. The offi cers a

pparentl y t hought the fac t that Sm

ith pointe d a gun at the

m and announced that he wasn’t going back to prison was a bit more weighty than the fact that th e c ar he wa s d ri vi ng al so ha d a n e xp ir ed re gi st ra ti on an d n o h ea dl ig ht s. Ac co rd in gl y, Smith’ s argum

ent is s imply

not compelling. The district court believed that Smith had comm itted a traffic infrac tion and that he was le gally

stopped bec ause of it . Once the police s topped Smith and saw t he gun, they were cl early

justifie d in arre sting him and seizing the wea

pon after t

he ensuing scuffle. At the hearing the district court allo wed Smith to make a len gthy argument in support of hisEqual Prote ction Cla im. Sm ith argue d that he wa s stopped be cause he was a Black man driving a Lexus in a high-crim e area. The distri ct court rejected that argume nt based upon t

he credi ble tes timony

regarding the tra

ffic viola tions, a nd nothing in Smith’s pro se brief conv inces us the district co urt erred. C. Failure to disclose Brady material. Smi th ar gues t hat t he gove rnment vi olat

ed the disc losur e re quire ments of Brady v. Maryland , 373 U.S. 83 (1963) because it “ambushed him with Brady materia l.” Smith’s Br. at 23. He refer s to Governm ent Exhibit

3, a com puteriz ed recor

d of callsto the6 Because there wa s no objecti on to the adm ission of t he radio l og, we revi ew for plain error. United Stat

es v. Boone , 279 F.3d 163, 174 n.6 (3d Cir. 2002). It is Smith’s burden to establish plain erro r. United Stat es v. Ol ano , 507 U. S. 725, 734-35 ( 1993). To do so, he must prove: (1) that the court e rred; (2) the error was obvious under the law at the time of review; a

nd (3) the error affected substantial rights, that is, t

he error affected the outcome of

the trial. Johnson v. United States , 520 U.S. 461, 467 (199 7). If all three elements are established, th e reviewing c ourt may exercise its discretion to af ford relief

. That discretion should b e exercised on ly in cases where the defen dant is “actually innocent”or the er

ror “se riously affect[s ] the fair

ness, integrit

y or public re putation of judicial proceedings.” Olano , 507 U.S. at 736 (cita tion omitted). The “plain-error exception to the contemporan eous obj ection rule is to b e used sparing ly, solely in those circumsta nces in which a misca

rriage of justice would otherwise result .” United States v. Young , 470 U.S. 1, 15 (1985) (citation and internal quotations omitted). 15 Philadel phia Polic e radio r

oom, which was intr

oduced into evidence by

the governm

ent without o bjection from defense co unsel. 6 Smith claims that counsel w as unfamiliar with the radio log and could not properly confront the government’s “timeline. ” Id. The governm

ent intr oduced the r

adio log to fr

ame t he tim e of the events. The l og noted that th e traffic stop was at 1:53 a.m., the ca ll was changed to officer a ssist within the m inute and, a t 1:54 a.m ., t he lognotes“ma

le a ppreh ended .” Thu s, t

he logshows that the entire epis ode after the car stop took approximatel y one m inute. Smith argues that, since Officer Seiple ’s investigative re port notes that the struggle took two to three minutes, a se

rious contradiction exists bet ween the radio log and Officer Seiple’s testimony. The governm

ent cla ims t hat the r adio log wasgiven to the defense, but it doesnot say when. In any

event, a ssuming arguendo that the radio log was not properly turned over, we s till fa

il to see how Smit

h’s defens e was pre

judiced. The

radio log doe s not16

amount t o impea chment . At best , it sugge sts tha t the offic ers simply

thought that

the struggle took two minutes longer than it act ually did. Since they

were wrestling with an armed suspect wh o had po inted a gun at them and procla imed he wasn’t go ing back to jail, it is not hard to conclude that t heir measure

of time was a bit le ss accurate t han that of a finall y t uned stop wat

ch. The police testified that Sm ith was taken from the scene by a police transport van and taken to the hospital for treatm ent. The arresting officers went to the hospita l to get Smith’s name and ID ca rd, then arrive d at the police statio n at approx imately 2:42 a.m. This time is c onfirmed by t he radio log. Officer Seiple testi fied that he and Officer Smith first completed th eir 48s, appro ximately 10 to 15 minutes later. Smith c ontends tha

t the hospital re cords, introduced a s a defens e exhibit , show that he did not arrive at the hospital until 2:43 a.m., one minute after the police say that had retur ned to East

Detect ives. I n Smith’ s view, t

his dem onstrat es the impossi

bility of the office rs’ testimony. However, Smith has ig nored the testimon y of his own witn ess, Dr. Schwell, th e hospital emergen cy room physician, who testified tha t he treated Smith at approximately 2:15 a.m. The refore, the u ncontradicted testimony shows that Smith was taken from the scene afte r 1:54. He was taken to the hospital where he was tre ated in the emergency

room at 2:15 a.m., and thereafter; the police went t o the hospital to get Smith’s identificatio n and return ed to East Detec tives at approx imately 2:42 a.m. to be gi n t he ir re po rt s. We th er ef or e f ai l t o s ee an y Brady impea chment mate rial in the17

radio logs. Smith also claims that the ra dio log confirms his contention that the police stopped him , then se arched t he trunk of the

car wher e they found the gun. He c ontends that was don e during th e “unaccou nted for” time be tween 1:49 a.m., when the fir st radio call wa s made

by t he police , and 1:53 a. m. when t hey stopped hiscar. Tha

t argum ent ignores the undisputed testimony that after 1:49 a.m. , when the police were informed that the registrati on had expired, they m ade a U-turn, pulled behind Smith and stopped his car at approximately 1:53 a.m. The re is no impeachment material in th e radio log as to this issue either. In short, there wa s no Brady violati on.

D. Impr oper jury ins tructi on. Smith repeats the argu ment he made in his po st-trial motions that the in terstate portion of the

felon-in- possess ion jury

charge wa s impr

oper. Bec ause Sm

ith did not object to th e instruction, it is rev iewed for plain error. United States v. Antico , 272 F.3d 245, 265 (3d Cir. 2001). The challeng ed jury instruction w as as follows: Finally, as to the third element, you must find that the firearm traveled in inters tate c omme

rce. Com merc e mea

ns trade , traffi c or com

munica tion between or among the sever al states. The gov ernment does no t have to prove that

the defenda

nt hims elf car

ried it acrossstate

lines. In this r

egard, there ha s been evi dence tha t the fir earm in questi on was ma

nufacture d in a state other than Pennsy

lvania. You are permit

ted to infer from this fact t hat the firearm t

raveled in intersta

te comme rce. However, y ou are not required to do so.18

Smith a rgues tha t the use of “must ” in the fi rst se ntence demands t

hat the jur

ors acc ept the fact that the f irearm previously moved in inter state commerce. We disagree. “Must” simply emphasizes to the jury that the govern ment must prove that th e firearm traveled in inters tate c omme

rce. Sm ith als o contends t

hat the jur

y l ikely misunde rstood the instruction co ncerning th e use of the w ord “fact” an d thoug ht it meant that it shou ld accept the go vernment’s theor y of interstate movement of the gun. Ag ain we disagre e. “Fact” means only that the jur y could infer that the f irearm had moved in interstate

comm erce i f it cre dited the

testimony

that the firear m had been manufac tured outs ide of Pennsylvania. E. Due process violat ion. Smith’ s last

argume nt is tha t the “felon elem

ent” of § 922(g) violate s his due processrights. Smith c ontends tha t becaus e he is e

ntitle d to the pre sumpti on of innocence as to every element of the of fense, the intro duction o f the fact tha t he was a convicted f elon does n ot comport with due proce ss. He claims that allowing the jurors to know he was a felon resulted in unfair prejudice. However, a due process violation does not necessarily follow. See Old Chief v. United States , 519 U.S . 172, 18 9-192 (1 997). Moreover, c areful voir dire can help insure tha t jurors who woul d be influenc ed by knowledge of the element of a prior felony c onviction are not chosen for the jury. There is no allegation that any juror who was seated here in dicated that he/sh e would b e unable to afford Sm

ith the pr esumpt ion of innocens e becaus e of a prior felony convicti on.19

According ly, we also conclude this a rgument is meritless. IV. For all of t

he above re asons, we

will affi rm the judgment of c onviction a nd sentence.