2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-7-2003

USA v. Thornton

Precedential or Non-Precedential: Precedential

Docket 02-2151

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Recommended Citation

"USA v. Thornton" (2003). 2003 Decisions. Paper 517.

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PRECEDENTIAL

Filed May 7, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2151

UNITED STATES OF AMERICA

v.

MICHAEL BENJAMIN THORNTON

Michael Thornton,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 99-cr-00600)

District Judge: Hon. Bruce W. Kauffman

Submitted Under Third Circuit LAR 34.1(a)

March 13, 2003

Before: SLOVITER, NYGAARD, and

ALARCON,* Circuit Judges

(Filed: May 7, 2003)

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals

for the Ninth Circuit, sitting by designation. 
Maureen Kearney Rowley

Chief Federal Defender

David L. McColgin

Assistant Federal Defender

Supervising Appellate Attorney

Federal Court Division

Defender Association of Philadelphia

Philadelphia, PA 19106-2414

Attorneys for Appellant

Patrick L. Meehan

United States Attorney

Laurie Magid

Deputy United States Attorney

for Policy and Appeals

Robert A. Zauzmer

Assistant United States Attorney

Senior Appellate Counsel

Richard J. Zack

Assistant United States Attorney

Philadelphia, PA 19106

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Michael Thornton appeals from the District Court’s

judgment convicting him of possession of a firearm by a

felon, in violation of 18 U.S.C. § 922(g)(1), and sentencing

him pursuant to the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). Thornton contends that his defense counsel was

ineffective for introducing a police report into evidence in

unredacted form, that the felon-in-possession statute is

unconstitutional and that he should not be subjected to a

sentence increase required under 18 U.S.C. § 924(e). 

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I.

BACKGROUND

On June 28th, 1999, Philadelphia Police Sergeant Jamill

Taylor was supervising a crowd in Philadelphia as two

nightclubs let out. He was sitting in his patrol car and

speaking to Officers Jacob Williams and Curtis Younger of

the Philadelphia Highway Patrol, who were standing near

the car. Sergeant Taylor saw Thornton standing on the

street nearby. He recognized Thornton as they had grown

up in the same neighborhood. 

Sergeant Taylor informed Officers Younger and Williams

that Thornton was wanted on a warrant for assaulting

Taylor’s brother in New Jersey. Officer Williams walked

towards Thornton and Thornton fled. Officers Younger and

Williams pursued Thornton on foot, while Sergeant Taylor

blocked the street with his car. Officer Younger ultimately

knocked Thornton to the ground. According to the three

officers, a loaded gun fell out of Thornton’s waistband. The

gun was on the street momentarily before Officer Williams

picked it up and unloaded it. The gun was not submitted

for fingerprinting because the three officers said that they

had seen Thornton in possession of the gun and because

the officers had handled the gun. 

Following Thornton’s arrest, the grand jury returned an

indictment charging him with being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). Prior to trial,

the District Court ruled that because Thornton was charged

with possession of a gun, admission of the fact that the

charges for assault on Sergeant Taylor’s brother involved a

shooting would unfairly prejudice him. Counsel agreed that

the charges underlying the warrant would be referred to as

an aggravated assault and that the parties would not refer

to a gun or a shooting. Thornton’s trial ended in a hung

jury and the District Court declared a mistrial. 

At the second trial, where Thornton was represented by

new counsel, the parties stipulated that the firearm traveled

in interstate or foreign commerce within the meaning of 18

U.S.C. §§ 921, 922, and that Thornton had been previously

convicted of a crime punishable by a term of imprisonment

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of more than one year. The only issue for the jury was

whether Thornton possessed the gun. 

The officers testified that they saw the gun fall from

Thornton’s person. In his defense, Thornton called two

friends who saw him at one of the clubs that evening. They

testified that admission to the club required passing

through metal detectors. One of the witnesses testified that

she saw Thornton on the street before the arrest, hugged

him and did not feel a gun. Both witnesses were on the

street when the arrest occurred and testified that they did

not see a gun fall from Thornton’s person. 

As in the first trial, the witnesses did not mention that

the charges for aggravated assault on Sergeant Taylor’s

brother involved a shooting. Thornton’s counsel, however,

introduced into evidence a police report summarizing

Thornton’s arrest. The report described the police chase

and stated that Thornton was wanted on a warrant on an

aggravated assault with a gun for shooting Sergeant

Taylor’s brother. Defense counsel did not seek to redact the

report to remove the reference to the gun or a shooting. 

During deliberations, the jury asked whether it could

consider information from the report that was not

discussed during the trial. Counsel agreed that since the

report was in evidence the jury could do so and the District

Court so instructed the jury. The jury returned a guilty

verdict. 

At sentencing, Thornton unsuccessfully argued that he

was subject to a maximum of ten years imprisonment, not

the life sentence applicable under the Armed Career

Criminal Act, 18 U.S.C. § 924(e), because his prior

convictions were not submitted to the jury as required by

Apprendi v. New Jersey, 530 U.S. 466 (2000). The District

Court rejected Thornton’s argument and sentenced him to

235 months in prison, five years supervised release, a fine

of $1,000 and a special assessment of $100. 

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II.

DISCUSSION

A. Ineffective Assistance of Counsel

Thornton argues that defense counsel “was plainly

ineffective for placing into evidence, without any redaction,

a police investigation report which twice stated that Mr.

Thornton’s aggravated assault charge in Camden involved a

gun and a shooting.” Appt’s. Br. at 14. He argues that

defense counsel should have been aware that the District

Court had ruled before the first trial that reference to the

shooting or the gun was unfairly prejudicial, and that

counsel should have redacted the report. Because the

Government concedes that counsel’s performance in this

case was deficient, the only issue before this court is

whether his performance prejudiced the defense. See

Strickland v. Washington, 466 U.S. 668, 691-92 (1984). 

To establish prejudice for purposes of an ineffective

assistance of counsel claim, the defendant must show that

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. at 694. 

Thornton argues that counsel’s deficient performance in

failing to object to the admission of the police report in

unredacted form was prejudicial to his defense. He notes

that the court had excluded it at the first trial because it

would “unfairly prejudice” him. After the jury began

deliberating, it asked the court “[s]hould we consider

information from [the police report] that was not discussed

during the trial?” App. at 333. Counsel agreed that the jury

may consider such information. The police report

summarizes the statements of Sergeant Taylor and Officers

Williams and Younger about the incidents leading to

Thornton’s arrest, all of which was discussed during the

trial. The only information in the report that was not

discussed at trial was the fact that Thornton was wanted

on a warrant “on an agg. assault with a gun for shooting

Sgt. Taylor’s brother,” that Thornton was wanted on a

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warrant for an assault “by handgun,” and that he did not

have a valid permit to carry the gun obtained on the night

at issue. App. at 365. 

The jury’s question may suggest that it considered the

fact that Thornton was charged with a crime involving a

gun in the course of its determination of whether he

possessed a gun on the night at issue. This would be

relevant to the issue of prejudice from the introduction of

the unredacted police report. Nonetheless, we will not reach

this issue on this appeal. It has long been the practice of

this court to defer the issue of ineffectiveness of trial

counsel to a collateral attack. See, e.g., United States v.

Haywood, 155 F.3d 674, 678 (3d Cir. 1998). Nonetheless,

we have held that we may address the claim of ineffective

assistance of counsel on direct appeal when the record is

sufficient to allow determination of the issue. See United

States v. Headley, 923 F.2d 1079 (3d Cir. 1991). 

A recent decision of the United States Supreme Court has

now provided a thorough analysis of why it is preferable

that such claims be considered on collateral review rather

than on direct appeal. In Massaro v. United States, No. 01-

1559 (U.S. April 23, 2003), the Court considered the rule of

the Court of Appeals for the Second Circuit that required

that a defendant represented by new counsel on appeal

raise any ineffective assistance of counsel claim on direct

appeal if ineffectiveness was evident from the record. The

Supreme Court rejected that rule, stating:

When an ineffective-assistance claim is brought on

direct appeal, appellate counsel and the court must

proceed on a trial record not developed precisely for the

object of litigating or preserving the claim and thus

often incomplete or inadequate for this purpose. Under

Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L.Ed.2d 674 (1984), a defendant claiming

ineffective counsel must show that counsel’s actions

were not supported by a reasonable strategy and that

the error was prejudicial. The evidence introduced at

trial, however, will be devoted to issues of guilt or

innocence, and the resulting record in many cases will

not disclose the facts necessary to decide either prong

of the Strickland analysis. If the alleged error is one of

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commission, the record may reflect the action taken by

counsel but not the reasons for it. The appellate court

may have no way of knowing whether a seemingly

unusual or misguided action by counsel had a sound

strategic motive or was taken because the counsel’s

alternatives were even worse. 

Id., slip op. at 4. 

Even though the Government concedes defense counsel’s

error,1 the Court’s opinion in Massaro points out that the

issue of prejudice is also best decided in the first instance

in a collateral action rather than on direct review. The

Court states, “Without additional factual development . . .

an appellate court may not be able to ascertain whether the

alleged error was prejudicial.” Id. at 5. 

The Court further stated, “In addition, the § 2255 motion

often will be ruled upon by the same district judge who

presided at trial. The judge, having observed the earlier

trial, should have an advantageous perspective for

determining the effectiveness of counsel’s conduct and

whether any deficiencies were prejudicial.” Id.

Particularly persuasive is the Court’s comment that:

Even meritorious claims would fail when brought on

direct appeal if the trial record were inadequate to

support them. Appellate courts would waste time and

resources attempting to address some claims that were

meritless and other claims that, though colorable,

would be handled more efficiently if addressed in the

first instance by the district court on collateral review.

Id. at 6. 

Guided by the Supreme Court’s decision, we will deny

Thornton’s claim of ineffective assistance of counsel without

1. In its brief, the Government states: 

The government agrees that defense counsel’s failure to object to

the admission of the report was erroneous and that the issue before

the Court is whether Thornton was prejudiced by the error. 

Appellee Br. at 15 n.4. 

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prejudice to his right to raise this claim on a collateral

attack brought pursuant to 28 U.S.C. § 2255. 

B. Constitutionality of Felon-in-Possession Statute

Thornton also argues that the felon-in-possession

statute, 18 U.S.C. § 922(g)(1), is unconstitutional because

the conduct that it proscribes, the intrastate possession of

a firearm, does not have a substantial effect on interstate

commerce, and therefore the statute is not a valid exercise

of Congress’ Commerce Clause power. He also argues that

the statute is unconstitutional as applied to his case

because there was no evidence that he possessed the gun

in a manner affecting interstate commerce. 

As recognized by Thornton, his arguments are foreclosed

by this court’s decision in United States v. Singletary, 268

F.3d 196 (3d Cir. 2001), cert. denied, 535 U.S. 976 (2002),

which upheld the constitutionality of the statute against a

similar attack. Thornton states that he raises this claim in

order to preserve it for review by the Supreme Court or for

any subsequent collateral proceeding should the statute

later be declared unconstitutional by the Supreme Court.

Accordingly, we need not address it further. 

C. Status as an Armed Career Criminal

Thornton argues that he should not have been sentenced

under the Armed Career Criminal Act, 18 U.S.C. § 924(e),

because the prior convictions on which his characterization

as an armed career criminal was based should have been

treated as elements of the offense, charged in the

indictment and submitted to the jury under Apprendi v.

New Jersey, 530 U.S. 466 (2000). Like his prior claim,

Thornton recognizes that this court rejected his argument,

this time in our opinion in United States v. Mack, 229 F.3d

226, 231 n.7 (3d Cir. 2000), cert. denied, 532 U.S. 1045

(2001), and explains that he raises it only to preserve it for

review by the Supreme Court or for any subsequent

collateral proceedings. We decline to address it further. 

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III.

CONCLUSION

For the reasons stated above, we will affirm the judgment

of conviction and sentence, as noted without prejudice to

Thornton’s right to raise the ineffective assistance of

counsel claim in a collateral attack.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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