2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-2-2012

USA v. Carl Rose

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1980

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Recommended Citation

"USA v. Carl Rose" (2012). 2012 Decisions. Paper 770.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1980

_____________

UNITED STATES OF AMERICA

v.

CARL ROSE,

Appellant

_____________

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-09-cr-00084-001

District Judge: The Honorable Mary A. McLaughlin

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 29, 2012

Before: SMITH and FISHER, Circuit Judges, and RAKOFF, District Judge∗

(Filed: July 2, 2012)

_____________________

 OPINION OF THE COURT

_____________________ 

RAKOFF, Senior District Judge.

 ∗ The Honorable Jed S. Rakoff, Senior District Judge for the United States District 

Court for the Southern District of New York, sitting by designation.
2

Carl Rose (“Rose”) appeals from his conviction for possessing cocaine and for 

carrying a firearm in violation of two federal laws. For the reasons set forth below, we 

affirm.

I.

We write exclusively for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we set forth only those facts pertinent to our 

analysis.

After a trial that began on January 18, 2011, a jury convicted Rose on three 

counts: possession of cocaine base with intent to deliver, a violation of 21 U.S.C. 

§ 841(a)(1) & (b)(1)(C); carrying a firearm during and in relation to a drug trafficking 

crime, a violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted 

felon, a violation of 18 U.S.C. § 922(g)(1). At trial, the Government offered the results of 

two different tests to show that the substance found when officers arrested Rose was 

cocaine base. First, the Government called Herman Madera, a forensic scientist who 

worked for the Philadelphia Police Department. The Government sought to qualify 

Madera as an expert witness based on the fact that he had conducted narcotics tests for 

the Philadelphia Police Department for more than twenty years. Defense counsel stated 

on the record that he was “very satisfied with [Madera’s] credentials.” After qualification 

as an expert, Madera testified that he had analyzed the substances that the Government 

had recovered when it arrested Rose and that those substances “contained the presence of 

cocaine base.”
3

The Government also sought to admit into evidence the results of a separate field 

test that the Philadelphia Police Department had conducted. While the Government was

examining Anthony Ricci, one of the arresting officers, the following colloquy occurred:

Q: And do you know whether the drugs were tested before they were 

submitted into evidence?

A: Yes. That’s -- They always have to be tested.

Q: Okay. And do you know the results of that test?

[Defense Counsel]: Objection.

THE COURT: Did you do the test yourself?

THE WITNESS: I did not do the test, no.

THE COURT: Then I’ll sustain the objection.

The results of the field test to which the Government referred in this line of 

questioning were never admitted into evidence. Nonetheless, during the 

Government’s closing argument, the Assistant United States Attorney made the

following statement: 

[Madera’s] been working for the Philadelphia Police Chem Lab, I 

think his testimony was 21 years. Analyzing drugs for 21 years. He knows 

crack cocaine when he sees it. He told you the test that he performed.

And he told you that the controlled substance in that bag was crack 

cocaine. In fact, he confirmed that it was crack cocaine, because you might 

recall that the crack was actually field tested by the Philadelphia police, and 

it tested positive for crack cocaine. 

In a sidebar following the Government’s closing argument, defense counsel reminded the 

district court that the field test to which the Government had referred had not been 

admitted into evidence. The district court remarked that defense counsel was correct, and 

the Assistant United States Attorney apologized for his mistake. Defense counsel did not, 

however, request that the district court issue any curative instruction in response to the 

Government’s statement. 
4

In defense counsel’s closing statement, defense counsel, rather than arguing that 

the substance was not cocaine base, contended that the Government could not attribute 

possession of the substance to Rose. Specifically, defense counsel noted that “there’s [no] 

cocaine on his gun -- his hands that would be consistent with the bagging of that cocaine. 

Where he puts the cocaine in those 72 separate bags.”

After closing statements, the district court specifically admonished the jury that 

“[a]ny proposed testimony . . . to which an objection was sustained by the Court . . . must 

be entirely disregarded.” The district court further instructed the jury that “[q]uestions, 

objections, statements and arguments of counsel, are not evidence in the case,” and thus 

could not supply the basis for the jury’s verdict. 

II.

The District Court had jurisdiction over this case under 18 U.S.C. § 3231. 

Accordingly, we have appellate jurisdiction under 28 U.S.C. § 1291. Rose argues that his 

conviction must be overturned because the Government relied in its closing argument on 

evidence that had not been admitted during trial.1

The parties agree that, since defense counsel neither objected to the Government’s 

 1 On November 14, 2011, Rose requested leave to file a supplemental brief pro se. On November 17, 

2011, the Clerk of the Court denied that motion under 3d Cir. LAR 31.3, which provides that “parties 

represented by counsel may not file a brief pro se.” The practice embodied in Rule 31.3 “tends to benefit 

the appellant as well as the court” by focusing the court’s attention on those arguments that, in the opinion 

of experienced counsel, have the greatest chance of success. Martinez v. Court of Appeal, 528 U.S. 152, 

163 (2000). Defense counsel subsequently included Rose’s pro se brief as an appendix to his own brief 

and, without endorsing any of Rose’s arguments, asked the court to consider Rose’s brief as a supplement 

to his own. On May 17, 2012, we denied defense counsel’s motion to treat Rose’s pro se brief as a 

supplemental brief. Notwithstanding that denial, we permitted Rose’s counsel to seek “leave to file a 

supplemental brief, drafted by counsel, that sets forth only those arguments raised by the client that 
5

statement nor requested a curative instruction, we review Rose’s claim only for plain 

error. See Fed. R. Crim. P. 52(b). When reviewing for plain error, before an appellate 

court may correct an error, “there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that 

‘affect[s] substantial rights.’” Johnson v. United States, 520 U.S. 461, 467 (1997) 

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “If all three conditions are 

met, an appellate court may then exercise its discretion to notice a forfeited error, but 

only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of 

judicial proceedings.’” Id. (quoting Olano, 507 U.S. at 732 (internal quotation marks 

omitted)). “[T]he plain-error exception to the contemporaneous-objection rule is to be 

‘used sparingly, solely in those circumstances in which a miscarriage of justice would 

otherwise result.’” United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States 

v. Frady, 456 U.S. 152, 163 n.14 (1982)). 

The parties agree that the Government’s reference to the field test constituted error 

and that the error was plain. However, the parties dispute whether the error affected “the 

fairness, integrity, or public reputation of judicial proceedings.” In prior cases, we have 

found that prosecutorial misconduct -- including improper statements made during a 

closing argument -- merits reversal under the plain error standard only where the record 

reveals “egregious error or a manifest miscarriage of justice.” United States v. Brennan, 

326 F.3d 176, 182 (3d Cir. 2003) (quoting United States v. Brown, 254 F.3d 454, 458 (3d 

Cir. 2001)). 

 

counsel believes are meritorious.” Defense counsel never sought leave to submit such a brief. 

Accordingly, we consider only the issue presented in defense counsel’s brief. 
6

III.

The Government’s reference to the field test does not rise to the level of 

“egregious error or a manifest miscarriage of justice.” As noted above, an experienced 

forensic scientist, Herman Madera, testified at trial that the substances officers discovered 

when they arrested Rose “contained the presence of cocaine base.” Defense counsel did 

not challenge Madera’s qualifications, and the parties do not dispute that the district court 

admitted his testimony into evidence. In his closing argument, defense counsel did not 

dispute that the evidence in the record established that the substance was cocaine base, 

arguing instead that the Government had failed to prove that Rose had possessed the 

cocaine. Thus, the evidence in the record on which the Government based its argument 

amply supported the conclusion that the substance was cocaine base, and Rose essentially 

conceded this point. 

Moreover, the district court clearly admonished the jury that neither “arguments of 

counsel” nor “testimony . . . to which an objection was sustained by the Court” could 

provide a basis for the jury’s verdict. Cf. United States v. Lee, 573 F.3d 155, 162 (3d Cir. 

2009) (“We do presume that juries follow their instructions.”). While the district court 

did not specifically refer to the field test that the Government had mentioned, the jury, in 

this relatively short and simple case, could easily make that connection based on its own 

recollection that, when the Government sought to introduce testimony about the field test, 

the district court sustained defense counsel’s objection. 

Thus, although the Government erred in referring in its closing argument to 
7

evidence that the district court had not admitted, Rose suffered no prejudice because the 

evidence in the record amply supported the Government’s argument, the Government’s 

error did not affect Rose’s central contention -- i.e., that he had not possessed the relevant 

substance -- and the district court’s instruction admonished the jury not to consider the 

Government’s erroneous reference. Under these circumstances, the Government’s 

reference to the field test was neither “egregious error” nor “a manifest miscarriage of 

justice,” and the Court’s response to that reference did not impair “the fairness, integrity, 

or public reputation of judicial proceedings.” Accordingly, we have no discretion to 

notice the error on review.2

IV.

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

 2 Rose has also moved to dismiss appellate counsel and proceed pro se, arguing that counsel knowingly refused to 

include certain meritorious issues in the appellate briefs. We construe this as a claim for ineffective assistance of 

appellate counsel. Such a claim is generally inappropriate on direct appeal. See United States v. Thornton, 327 F.3d 

268, 271–73 (3d Cir. 2003). Accordingly, we will deny Rose's claim for ineffective assistance of appellate counsel 

without prejudice to his right to raise this claim on collateral attack.