2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-2013

USA v. Antonio Figueroa

Precedential or Non-Precedential: Precedential

Docket No. 12-3575

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3575

____________

UNITED STATES OF AMERICA

v.

ANTONIO FIGUEROA

a/k/a BABY FAT FACE

Antonio Figueroa,

 Appellant

On Appeal from the United States District Court 

for the District of New Jersey

(D. C. No. 1-10-cr-00685-001)

District Judge: Honorable Robert B. Kugler 

 

 

Argued on July 17, 2013

Before: RENDELL, SMITH and ROTH, Circuit Judges
2

(Opinion filed: September 3, 2013)

Ralph A. Jacobs, Esquire (Argued)

Jacobs Singer Kivitz & Herman LLC

34 Tanner Street

Haddonfield, NJ 08033

Counsel for Appellant

Glenn J. Moramarco, Esquire (Argued)

Office of United States Attorney 

Camden Federal Building & Courthouse

401 Market Street, Fourth Floor

Camden, NJ 08101

Mark E. Coyne, Esquire

Office of United States Attorney 

970 Broad Street, Suite 700

Newark, NJ 07102-2535

Counsel for Appellee

O P I N I ON 
3

ROTH, Circuit Judge:

Antonio Figueroa appeals the District Court‟s 

September 11, 2012, judgments of conviction and sentence. 

Figueroa was convicted of civil rights violations under 18 

U.S.C. §§ 241 and 242 and sentenced to ten years 

imprisonment. On appeal, he challenges his conviction on 

four grounds: (1) the District Court erred by admitting the 

out-of-court statement of co-defendant Robert Bayard, (2) the 

District Court erred by excluding, as cumulative, police 

reports that Figueroa offered into evidence, (3) the District 

Court erred by allowing improper expert opinion testimony 

from a prosecution fact witness on issues of constitutional 

law, and (4) the District Court erred by refusing to give the 

jury Figueroa‟s requested instruction concerning specific 

intent. Figueroa challenges his sentence on two grounds: (1) 

the District Court erred by applying the drug distribution 

sentencing guideline to Figueroa‟s civil rights violations, and 

(2) his sentence was substantively unreasonable. For the 

following reasons, we will affirm the District Court‟s 

judgments of conviction and sentence.

I. Background

Figueroa joined the police force in Camden, New 

Jersey, in 2003. In July 2008, he was transferred to a new 

Special Operations Unit created to target guns, drugs and 

violence in Camden‟s most crime ridden neighborhoods. 

Figueroa was assigned to the “fourth platoon” with his regular 

partner, Robert Bayard, as well as Sergeant Dan Morris, and 

officers Jason Stetser and Kevin Parry. On September 6, 

2011, Figueroa and Bayard were charged in a six count 

superseding indictment with a series of civil rights violations. 
4

In addition to five substantive civil rights violations, they 

were charged with conspiring with Stetser, Parry, and Morris 

to deprive others of their civil rights. A three week jury trial 

began on November 15, 2011. Stetser, Parry, and Morris all 

testified at trial as cooperating witnesses with plea 

agreements. Other law enforcement officers and citizens who 

were victims of or witnesses to the activities alleged in the 

indictment also testified. Over the course of trial, the 

government presented evidence regarding twelve incidents in 

which Figueroa allegedly deprived individuals of their civil 

rights. There are six specific incidents of misconduct 

described below that are relevant to Figueroa‟s arguments on

appeal.

August 9, 2008: Figueroa and Stetser were 

conducting surveillance on an open-air drug market and 

observed “A.K” sell drugs to “T.C.” When they arrested the 

participants, Stetser found a bundle of crack cocaine and 

Figueroa found a bag filled with money. Morris, Figueroa,

and Stetser took some of this money for themselves. After 

the arrest, T.C. cooperated with the officers and gave them 

information about other drug-dealing activity, but A.K. did 

not. Stetser and Figueroa attributed to A.K. drugs and a gun 

that were not actually found on him. Specifically, they 

attributed to him (1) drugs that Stetser had stashed in a nearby 

tree, (2) a handgun located in a house that T.C. told them 

about, and (3) the “re-up stash” of drugs they found in a 

nearby garage. Figueroa wrote the falsified police report 

about this incident.

September 14, 2008: Figueroa, Stetser, Parry, and 

Morris conducted illegal searches in the Winslow Court 

apartment complex based on information from an informant. 
5

The officers broke into Apartment C, where they found 

between $1,500 and $2,000, and then searched, without 

consent or a warrant, Apartment G, where they found 

$10,000. When they found no drugs, they confronted their 

informant who pointed them to a mailbox in the complex, 

where they found a large stash of cocaine. Figueroa wrote the 

police report, in which he falsely claimed that they had seen 

someone take drugs out of the mailbox, throw a bag in 

Apartment G and flee through Apartment C. The report 

stated that they had recovered only $1,531 in cash.

September 17, 2008: Figueroa and Bayard arrested 

“D.B.#1” on the street who then told them that he had a gun 

at home. The officers then drove to his house, coerced his 

mother into signing a consent to search form, and found a 

firearm in a bedroom closet. Figueroa‟s police report falsely 

claimed that he found the firearm in plain view after chasing 

D.B.#1 into the house and arresting him there. Figueroa also 

underreported the amount of money that was seized during 

the events.

September 17, 2008: Figueroa, Bayard, Stetser, and 

Parry apprehended “A.F” and “T.R.” Angry that A.F. and 

T.R. had fought them, Figueroa, Bayard, Stetser, and Parry 

decided to plant drugs on A.F. and T.R. Bayard wrote the 

false police report about this incident.

April 3, 2009: Figueroa, Stetser, and Parry, based on 

information from an informant, found “L.M.” in a car and 

searched the car, expecting to find drugs. They found no 

drugs in L.M.‟s car, but Parry found crack cocaine in the gas 

cap of a vehicle that was parked on the opposite side of the 

street and several cars away. Figueroa falsely stated in the 
6

police report that he had seen L.M. walking down the street 

carrying the drugs in his right hand. Parry gave the drugs he 

found in the gas cap to Figueroa, and Figueroa turned the 

drugs in as evidence.

August 21, 2009: Stetser conducted a warrantless 

search of a trailer based on a tip that “J.M.” was selling drugs 

out of it. He found 32 bags of crack cocaine in a 

compartment on the door of the trailer. Figueroa falsely 

claimed in his police report that he had observed J.M. engage 

in a hand-to-hand drug transaction and that J.M. had 32 bags 

of a rock-like substance in his right pocket.

On December 9, 2011, the jury returned a guilty 

verdict against Figueroa on Count 1 of conspiracy to deprive 

others of civil rights and on Counts 2 and 3 of substantive 

civil rights violations relating to incidents occurring between 

September 14 and September 17, 2008. The jury acquitted 

Figueroa of the remaining counts and acquitted Bayard on all 

counts. Figueroa filed motions for a judgment of acquittal, or 

in the alternative, a new trial under Federal Rules of Criminal 

Procedure 29 and 33 on December 23, 2011. The District 

Court denied both motions. He was sentenced to ten years 

imprisonment on September 7, 2012. This appeal followed.

III. Discussion1

Figueroa challenges both his conviction and sentence 

on appeal. Because the most significant issue in this appeal is 

the application of the drug distribution sentencing guideline 

 

1

The District Court had jurisdiction over this case pursuant to 

18 U.S.C. § 3231, and we have jurisdiction over the appeal 

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
7

to Figueroa‟s civil rights violations, we will deal with that 

issue first.

A. Application of the Drug Distribution 

Guideline

Figueroa argues that the District Court erred in 

applying the drug distribution sentencing guideline, U.S.S.G. 

§ 2D1.1, to his civil rights violations in this case because he 

was not convicted of offenses involving the distribution of 

drugs.2

Figueroa was convicted of violations of 18 U.S.C. §§ 

241 and 242. The applicable sentencing guideline for these 

violations is U.S.S.G. § 2H1.1. Under U.S.S.G. § 2H1.1(a), 

the base offense level should be the greatest of the 

enumerated options, including “the offense level from the 

offense guideline applicable to any underlying offense.” 

U.S.S.G. § 2H1.1(a). Application Note 1 explains that 

“offense guideline applicable to any underlying offense” 

refers to “the offense guideline applicable to any conduct 

established by the conviction that constitutes an offense under 

federal, state, or local law . . ..” U.S.S.G. § 2H1.1, 

Application Note 1. Where the conduct established by the 

conviction constitutes more than one underlying offense, the 

court should look to the underlying offense that carries the 

highest offense level. U.S.S.G. § 2H1.1, Application Note 1. 

 

2

 We exercise plenary review over the District Court‟s 

construction of the Sentencing Guidelines but review the 

District Court‟s factual determinations for clear error. United 

States v. Cordo, 324 F.3d 223, 229 (3d Cir. 2003).
8

Additionally, under U.S.S.G. § 2H1.1(b), if the defendant was 

a public official or the offense was committed under color of 

law, the base offense level should be increased by 6 levels. 

U.S.S.G. § 2H1.1(b).

Here, the presentence report, in accordance with 

U.S.S.G. § 2H1.1, presented an analysis of the conspiracy‟s 

underlying offenses and offense levels. The presentence 

report concluded that applying U.S.S.G. § 2D1.1, the drug 

distribution sentencing guideline, would produce the highest 

offense level in Figueroa‟s case: an offense level of 26.3 

Once increased by 6 levels as provided in U.S.S.G. § 

2H1.1(b), Figueroa‟s proposed offense level was 32. At 

sentencing, the District Court adopted this base offense level 

over Figueroa‟s objection. 

In using U.S.S.G. § 2D1.1 to determine Figueroa‟s 

base offense level, the District Court relied heavily on a 

recent case, United States v. Cortes-Caban, 691 F.3d 1, 16 

(1st Cir. 2012), in which the First Circuit Court of Appeals 

held that police officers who conspired to plant drugs on 

individuals to fabricate criminal offenses were properly 

convicted of conspiracy to possess controlled substances with 

an intent to distribute in violation of 21 U.S.C. §§ 841(a) and 

846.4 The court reasoned that the plain language of 21 U.S.C. 

 

3

The other underlying offenses and offense levels proposed 

in the presentence report were: (1) illegal searches (offense 

level 18); (2) false reports (offense level 8); larceny (offense 

level 6); and perjury (offense level 17). 

4 A violation of § 841(a) falls under U.S.S.G. § 2D1.1, and 

thus the Cortes-Caban analysis of the term “distribute” in § 

841(a) is relevant to Figueroa‟s sentencing under U.S.S.G. § 
9

§ 841(a), which deems it “unlawful for any person knowingly 

or intentionally— (1) to manufacture, distribute, or dispense, 

or possess with intent to manufacture, distribute, or dispense, 

a controlled substance . . .”, encompassed the police officers‟ 

conduct. Cortes-Caban, 691 F.3d at 16 (quoting 21 U.S.C. § 

841(a)). The court focused on the meaning of “distribute” in 

the statute, noting that the Controlled Substances Act defines 

“to distribute” as “to deliver (other than by administering or 

dispensing) a controlled substance or a listed chemical” and 

defines “deliver” as “the actual, constructive, or attempted 

transfer of a controlled substance or a listed chemical, 

whether or not there exists an agency relationship.” Id. at 17 

(quoting 21 U.S.C. §§ 802(11), 802(8)).5 Based on this 

definition of “distribute,” that court found that “[t]he 

defendants‟ acts of transferring drugs amongst each other and 

to the victims constitutes an intent to distribute the drugs 

under § 841(a)(1), which results in a transfer of possession of 

a controlled substance, in other words a „distribution,‟” and 

upheld the police officers‟ convictions under 21 U.S.C. §§ 

841(a) and 846.6 Id. at 18, 26. 

 

2D1.1. 

5

The court interpreted “transfer” by reference to its 

commonly accepted meaning because it is not defined in the 

Controlled Substances Act. Cortes-Caban, 691 F.3d at 17 

(“To transfer means „to carry or take from one person or place 

to another . . . ; to move or send to a different location . . . ; to 

cause to pass from one person or thing to another.‟” (quoting 

Webster’s Third New International Dictionary 2426-27 

(1993))).

6 We note that the police officers in Cortes-Caban, in addition 

to being convicted of violations of 21 U.S.C. §§ 841(a) and 

846, were also convicted of civil rights violations under 18 
10

In this case, the District Court, upon identifying the 

distribution of narcotics as an underlying offense based on 

relevant paragraphs of the superseding indictment, which “all 

allege trafficking in drugs, planting of drugs on individuals,” 

reviewed the evidence from trial regarding four specific 

instances of drug distribution on August 9th, September 17th, 

April 3rd and August 21st. Applying the reasoning of CortesCaban, the District Court stated: “The [Cortes-Caban] 

defendants‟ act of transferring the drugs amongst each other 

and to the victims constitutes . . . a distribution. And that‟s 

what happened in some of these instances here.”7 On that 

basis, the District Court found “beyond a reasonable doubt

that [Figueroa] was involved in distribution of narcotics.” 

Because U.S.S.G. § 2D1.1 is the offense guideline applicable 

to the distribution of narcotics, the District Court applied 

U.S.S.G. § 2D1.1 here and adopted the proposed offense level 

of 32.8 

 

U.S.C. § 241. Cortes-Caban, 691 F.3d at 5-6.

7 We note that the District Court adopted the reasoning of 

Cortes-Caban in a different context: whereas the court in 

Cortes-Caban adopted this interpretation of “distribute” in 

reviewing police officers‟ convictions of conspiracy to 

possess controlled substances with the intent to distribute, the 

District Court in this case adopted this interpretation in 

sentencing Figueroa for convictions of civil rights violations

involving the distribution of drugs. However, this distinction 

does not affect our analysis here. 

8

The District Court stated: “For this guideline to apply there 

only needs to be 28 grams. There‟s more than 28 grams in 

those four instances. Therefore I think the Probation 

Department is correct as to the offense level, and I‟m going to 
11

We conclude that the District Court correctly found 

that Figueroa engaged in distribution of narcotics and 

therefore its application of U.S.S.G. § 2D1.1 was proper in 

this case. In so holding, we adopt the court‟s interpretation in 

Cortes-Caban of the meaning of “distribute” under 21 U.S.C. 

§ 841(a). This interpretation comports with the plain 

language of the statute and its legislative history. Under the 

plain language of the statute, a “distribution” encompasses the 

transfer of a controlled substance from one person or place to 

another and thus the planting of controlled substances on 

individuals to facilitate false arrests. Cortes-Caban, 691 F.3d 

at 17-18. Congress made a deliberate choice to use broad 

language in § 841(a), and courts have interpreted “distribute” 

broadly in the context of § 841(a). Id. Moreover, the statute 

carves out specific exceptions for legitimate activities, such as 

the distribution of drugs by certain registered persons and by 

law enforcement officers lawfully engaged in the enforcement 

of controlled substances laws, which supports the application 

of § 841(a) to conduct outside those exceptions. Id. at 18-19 

(citing 21 U.S.C. §§ 822(b), 885(d)). 

 

In challenging his sentence, Figueroa attempts to rely 

on Judge Torruella‟s dissent in Cortes-Caban.

9

 Figueroa‟s 

 

find the total offense level is 32 in this case for the reasons 

expressed.” Figueroa does not challenge the drug quantity 

calculation on appeal.

9

Judge Torruella dissented in Cortes-Caban on the basis that 

the majority‟s “analysis incorrectly center[ed] on whether the 

officers‟ actions could properly constitute „distribution,‟ an

issue . . . not before [the court] . . .” and “blurr[ed] the 

distinction between the actus reus of one crime and the mens 

rea of another (distribution versus possession with intent to 
12

reliance on this dissent is misplaced because Judge Torruella 

focused on the specific intent required to convict for 

possession of controlled substances with the intent to 

distribute. Cortes-Caban, 691 F.3d at 30-31 (Torruella, J., 

dissenting). Here, however, the District Court did not find 

that Figueroa possessed narcotics with the intent to distribute 

but rather found that he was involved in the distribution of 

narcotics, a general intent crime. The specific intent 

discussion in Judge Torruella‟s dissent is irrelevant here.10 

Figueroa also argues that, even under the Cortes-

 

distribute) . . . .” Cortes-Caban, 691 F.3d at 30-31 (Torruella, 

J., dissenting). Because the police officers in Cortes-Caban

were convicted not of distribution but of possession with the 

intent to distribute, Judge Torruella asserted that the relevant 

inquiry was not whether the police officers‟ acts constituted 

distribution but whether the police officers had the specific 

intent to distribute controlled substances. Id. He concluded 

that the government had not proven the requisite specific 

intent and thus the police officers‟ convictions under 21 

U.S.C. §§ 841(a) and 846 should not be affirmed. Id. at 47.

10 Figueroa also attempts to distinguish Cortes-Caban on the 

facts, but this attempt is unavailing. First, he asserts that the 

police acts in Cortes-Caban were entirely unlawful. Because 

his own acts were equally unlawful, this is not a convincing 

grounds on which to differentiate the instant case. Second, he 

argues that the police officers in Cortes-Caban intended to 

introduce drugs into society‟s illicit channels. This is 

inaccurate: Judge Torruella noted in his dissent that “the 

drugs never left the control or authority of the police 

officers.” Cortes-Caban, 691 F.3d at 46 n.57 (Torruella, J., 

dissenting).
13

Caban interpretation of “distribution” in § 841, there was no 

“distribution” here. Figueroa alleges that the only transfer of 

drugs was from Figueroa to the police evidence room and that 

“[t]he act of turning drugs into the police evidence room 

simply is not a criminal drug offense.” This is an inaccurate 

characterization of the facts. At sentencing, Figueroa‟s 

counsel suggested that at least one of the incidents involved a 

co-conspirator planting drugs on an individual or on the 

scene. He stated: “[t]hat except for Stetser‟s testimony about 

the stash in a tree, I believe all of the other incidents are 

incidents where Antonio Figueroa or someone with him at the 

scene took contraband and turned it in. And so, . . . I believe 

five out of six [of the incidents listed in the presentence 

report] don‟t fit into that category.” Moreover, the District 

Court stated in response, “[e]ven if one does [involve the 

planting of drugs], then [Figueroa] is to be judged under . . . 

the drug distribution guidelines . . ..” 

Because we conclude that Figueroa engaged in the 

distribution of drugs in committing civil rights violations, the 

District Court properly applied U.S.S.G. § 2D1.1 in 

sentencing him.11 However, we urge that this application of 

the drug distribution sentencing guideline be strictly limited

to civil rights violations in cases like this one where drug 

distribution constituted an active part of the civil rights 

violation, and where, as here, the District Court specifically 

finds that the drug distribution was clearly established by the 

 

11

 We note that this application of § 841(a) to the planting of 

drugs by police officers is not a common application. As the 

court noted in Cortes-Caban, there have not been any other 

decisions on prosecutions under § 841 for the planting of 

drugs. 691 F.3d at 22. 
14

offense of conviction.

12

 

B. Challenges to the Conviction

Turning to Figueroa‟s challenge to his conviction, he

raises four arguments: (1) the District Court erred by 

admitting the out-of-court statement of co-defendant Robert 

Bayard, (2) the District Court erred by excluding, as 

cumulative, police reports that Figueroa offered into 

evidence, (3) the District Court erred by allowing improper 

expert opinion testimony from a prosecution fact witness on 

issues of constitutional law, and (4) the District Court erred 

by refusing to give the jury Figueroa‟s requested instruction 

concerning specific intent. For the reasons that follow, these 

arguments are unavailing, and we will affirm his conviction.

 

12 Figueroa also suggests in a footnote in his opening brief 

that “[a]pplying the Narcotics Distribution guidelines would . 

. . run afoul of [his] Sixth Amendment rights by virtue of the 

fact that the jury in this case . . . was not asked to consider a 

drug dealing case, thus its verdict cannot be construed as a 

finding that narcotics distribution occurred.” The District 

Court‟s application of the drug distribution sentencing 

guidelines did not violate Figueroa‟s Sixth Amendment 

rights. Under Apprendi v. New Jersey, “[o]ther than the fact 

of a prior conviction, any fact that increases the penalty for a 

crime beyond the prescribed statutory maximum must be 

submitted to a jury and proved beyond a reasonable doubt.” 

530 U.S. 466, 490 (2000). Here, because Figueroa‟s sentence 

does not exceed the statutory maximum, this finding did not 

need to be made by a jury and thus Figueroa‟s Sixth 

Amendment rights were not violated.
15

First, Figueroa argues that the District Court erred by 

admitting an out-of-court statement by co-defendant 

Bayard.13 Figueroa challenges the admission of the following 

testimony by co-conspirator Parry regarding Bayard‟s out-ofcourt statement about Figueroa:

Q. Did you have a conversation with Mr. 

Bayard during one of these three nights about 

the search at 1017 Spruce Street?

A. Yes, I did.

Q. What was said during that conversation?

A. Bayard was complaining about the report 

that Figueroa had written. He said the report 

was F‟d up. And he tried talking to Figs about 

the right way to write the report and he didn‟t 

want to listen.

The District Court admitted this statement as a 

statement in furtherance of the conspiracy under Federal Rule 

of Evidence 801(d)(2)(E) which provides that a statement 

“made by the party‟s coconspirator during and in furtherance 

of the conspiracy” is not hearsay. Fed. R. Evid. 801(d)(2)(E). 

For a statement to be admitted under this rule, “the proponent 

 

13

 “We review a District Court‟s decision to admit or exclude 

evidence for abuse of discretion, although our review is 

plenary as to the district court‟s interpretation of the Federal 

Rules of Evidence.” United States v. Duka, 671 F.3d 329, 

348 (3d Cir. 2011) (internal quotation marks and citations 

omitted).
16

must establish by a preponderance of the evidence that (1) the 

conspiracy existed; (2) both the defendant and the declarant 

were members of the conspiracy; and (3) the statement was 

made in the course of the conspiracy and in furtherance of the 

conspiracy.” United States v. Bobb, 471 F.3d 491, 498 (3d 

Cir. 2006). The furtherance requirement is usually given a 

broad interpretation. Duka, 671 F.3d at 348 

Figueroa argues that Bayard‟s statement was not made 

in furtherance of the conspiracy and therefore the third prong 

of this test was not met. In response to Figueroa‟s post-trial 

motion on this issue, the District Court held that the statement 

was a comment on the inability to instruct a co-conspirator on 

how to write police reports so that no one got into trouble.

We find ample evidence in the record to support the District 

Court‟s conclusion that the writing of false reports was part of 

the conspiracy and that Bayard‟s statement, expressing 

concern about Figueroa‟s inept report-writing, was in 

furtherance of the conspiracy.14

 

14 Figueroa also challenges the admission of this statement 

under the Confrontation Clause and Bruton v. United States, 

391 U.S. 123 (1968). The protections of the Confrontation 

Clause and Bruton apply only to testimonial statements. See 

United States v. Berrios, 676 F.3d 118, 126-29 (3d Cir. 2012) 

(noting that “where nontestimonial hearsay is concerned, the 

Confrontation Clause has no role to play in determining the 

admissibility of a declarant‟s statement” and that Bruton is 

also limited to testimonial statements). Bayard‟s statement to 

Parry was not a testimonial statement. See United States v. 

Crawford, 541 U.S. 36, 51-52 (2004) (identifying as the core 

class of testimonial statements “ex parte in-court testimony,” 

“extrajudicial statements,” and “statements . . . made under 
17

Second, Figueroa argues that the District Court erred 

by excluding, under Federal Rule of Evidence 403, police 

reports that Figueroa offered into evidence.

15

 Under Rule 

403, a court “may exclude relevant evidence if its probative 

value is substantially outweighed by a danger of . . . unfair 

prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative 

evidence.” Fed. R. Evid. 403. Here, the District Court 

excluded the proffered police reports because the defendants 

failed to establish that the reports had any probative value 

beyond the fact that they were false, which the witness had

already acknowledged in his testimony. On that basis, the 

District Court concluded that giving these reports to the jury 

would “just wast[e] time.” We conclude that there was no 

error in the District Court‟s exclusion of these reports.

Third, Figueroa argues that the District Court erred by 

allowing improper expert opinion testimony from a 

prosecution fact witness on issues of constitutional law.16 

Specifically, he alleges that prosecution fact witness Michael 

Lynch of the Camden Police Department impermissibly 

testified that a signed consent to search form was a 

 

circumstances, which would lead an objective witness 

reasonably to believe that the statement would be available 

for use at a later trial”). Therefore, Figueroa‟s Confrontation 

Clause and Bruton argument is inapposite.

15

 “We review a district court‟s decision to admit or exclude 

evidence for abuse of discretion, and such discretion is 

construed especially broadly in the context of Rule 403.” 

United States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007) 

(internal quotation marks and citation omitted).

16

 For standard of review see footnote 13.
18

constitutional requirement rather than just local police 

department procedure.

 

On direct examination, Lynch stated that a consent to 

search form must be signed before a search is conducted and

then added, “that‟s not a Camden Police Department 

procedure, that the [sic] established by law and constitutional 

procedure.” Figueroa did not contemporaneously object to 

this statement but instead questioned Lynch further on this 

point on cross-examination. Figueroa subsequently objected 

to “the law or legal concepts . . . coming from the witness 

stand, from fact witnesses” and asserted that Lynch‟s 

testimony “has confused the jurors into thinking they have 

gotten some guidance on what the constitutional law is.” In 

response to Figueroa‟s objection, the District Court found that 

the jury had not been left with an impression that Lynch was 

testifying about what the Constitution requires, stating, “[i]t 

was very clear to me and very clear to the jury [that the 

Camden Police Department procedures] is what the witness 

was talking about.” At the conclusion of trial, the District 

Court properly instructed the jury on constitutional 

requirements concerning consent to search. From our review 

of the record, we agree with the District Court‟s assessment 

that Lynch was testifying about Camden Police Department 

procedures, not constitutional law. 

Fourth, Figueroa argues that the District Court erred by 

refusing to give the jury his requested instruction concerning 

specific intent under 18 U.S.C. § 242.

17

 The District Court 

 

17

 “Review of the legal standard enunciated in a jury 

instruction is plenary, . . . but review of the wording of the 

instruction, i.e., the expression, is for abuse of discretion.” 
19

instructed the jury that to convict under § 242, the 

government must prove beyond a reasonable doubt that 

Figueroa (1) “acted under the color of law;” (2) “deprived a 

person or persons alleged in the particular count of the 

Indictment of their Constitutional liberty and property rights, 

without due process of law, or their Constitutional right to be 

free from unreasonable search and seizures;” and (3) “acted 

knowingly, intentionally, and willfully.” The District Court 

further instructed the jury:

The specific intent required by law . . . is an 

intent to deprive a person of a federal right 

which has been made definite either by express

terms of the Constitution or laws of the United 

States or by decisions interpreting them, or to 

act with reckless disregard of a constitutional 

requirement which has been made specific and 

definite. . ..

You may find the particular defendant under 

consideration acted with the requisite specific 

intent, even if you find the defendant had no 

real familiarity with the specific constitutional 

rights involved, provided you find that the 

defendant under consideration willfully and 

consciously did the act which deprived the 

person of his or her constitutional rights.

You may find a particular defendant acted 

 

United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1999) 

(citations omitted).
20

willfully if he performed an act in open defiance 

or reckless disregard of a constitutional 

[requirement] which has been made specific and 

definite.

On appeal, Figueroa claims that the District Court 

erred by rejecting the following proposed instruction on the 

issue of specific intent:

It is not necessary for the government to prove 

that the defendant was thinking in specific 

constitutional terms provided that the 

government proves that the defendant‟s aim was 

not to enforce local law but to deprive a citizen 

of a right and that right was protected by the 

Constitution.

We find no error here. The District Court‟s jury 

instruction correctly stated the law. See United States v. 

Johnstone, 107 F.3d 200, 208 (3d Cir. 1997) (holding that a 

defendant “need not be „thinking in constitutional terms‟ in 

order to be convicted of violating § 242” and that “it is 

enough to trigger § 242 liability if it can be proved . . . that a 

defendant exhibited reckless disregard for a constitutional or 

federal right.” (quoting Screws v. United States, 325 U.S. 91, 

106 (1945))). Furthermore, as the District Court noted, the 

use of the term “not to enforce local law” in Figueroa‟s 

proposed instruction is “very confusing.” We conclude,

therefore, that the District Court‟s jury instruction correctly 

stated the law and that the court did not abuse its discretion in 

rejecting Figueroa‟s proposed instruction.

C. Substantive Reasonableness of the Sentence
21

Finally, Figueroa argues that his sentence was 

substantively unreasonable based on the discrepancy between 

the length of his sentence and those of his co-conspirators. 

We review a sentence for substantive reasonableness under an 

abuse of discretion standard, and the party challenging the 

sentence bears the burden of showing unreasonableness. 

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). 

“A sentence that falls within the guidelines is more likely to 

be reasonable than one outside the guidelines range.” United 

States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). Figueroa 

has not borne his burden of proving the substantive 

unreasonableness of his within-guidelines sentence. He has 

done no more than note the disparity between his sentence 

and the sentences of his co-conspirators. This alone does not

demonstrate substantive unreasonableness. See United States 

v. Parker, 462 F.3d 273, 277 (3d Cir. 2006) (“Congress‟s 

primary goal in enacting § 3553(a)(6) was to promote 

national uniformity in sentencing rather than uniformity 

among co-defendants in the same case.”). Therefore,

Figueroa‟s sentence was not substantively unreasonable.

IV. Conclusion

For the foregoing reasons, we will affirm the District 

Court‟s judgments of conviction and sentence.