NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 18-3736 and 19-1636 

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UNITED STATES OF AMERICA

v.

SHAWN MILLS

and

RAPHAEL HUNT-IRVING,

 Appellants

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court Nos. 2-14-cr-00520-003 and

2-14-cr-00520-005

District Judge: Honorable Gerald A. McHugh

______________________

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

May 18, 2020

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Before: McKEE, BIBAS, and COWEN, Circuit Judges.

(Opinion filed: June 9, 2021)

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2

OPINION*

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McKee, Circuit Judge.

Raphael Hunt-Irving and Shawn Mills were jointly tried and convicted of crimes 

arising from their involvement with a conspiracy to distribute cocaine. Their appeals 

have been consolidated. Hunt-Irving appeals the denial of his motion to suppress and 

motion for a new trial. He also argues that his trial counsel was constitutionally 

ineffective and that he constitutionally cannot be convicted of being a felon-in-possession 

of the firearm that he possessed. The latter claim is based upon his assertion that his prior 

felony conviction is not sufficient to disqualify him from owning a firearm. 

Shawn Mills challenges the sufficiency of the evidence supporting his conviction 

and the exclusion of his expert’s testimony. For the reasons that follow, we will affirm 

the District Court’s judgments for both defendants. 1

I. 

A.

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not 

constitute binding precedent. 

1 The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231. We have 

jurisdiction under 28 U.S.C. § 1291.
3

Hunt-Irving argues that the protective sweep that the agents performed violated 

the limitations the Supreme Court imposed in Maryland v. Buie.

2 Although the 

government argues that this aspect of Hunt-Irving’s Fourth Amendment claim has been 

waived because it was not raised before trial, the District Court correctly concluded that 

this argument was, at least arguably, subsumed in Hunt-Irving’s suppression hearing.

3

The District Court’s analysis is a careful parsing of Hunt-Irving’s pretrial suppression 

hearing and a very good explanation of why any violation of Buie would not entitle HuntIrving to relief, even if that claim was preserved. Hunt-Irving asks for the physical 

evidence seized from his home to be suppressed. However, the AK-47 was not 

discovered as a result of the protective sweep. Rather, it was discovered as a result of 

Hunt-Irving’s telling the agents that he had “a hunting rifle” in the closet, when the 

agents asked if he had any weapons in the house.4

 Moreover, as the District Court 

2 494 U.S. 325 (1990). We review the factual findings the court made in its suppression 

rulings for clear error, and we afford de novo review to the court’s legal rulings. United 

States v. Goldstein, 914 F.3d 200, 203 n.15 (3d Cir. 2019) (internal quotation marks 

omitted). We review the denial of a motion for a new trial pursuant to Rule 33 for abuse 

of discretion. United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008). 3 We agree with the District Court’s conclusion that the argument was not waived. 

Although Hunt-Irving did not raise this argument in his motion to suppress, he did raise 

the argument in the suppression hearing. At the suppression hearing, he stated, “I think 

they can secure the weapon, but I don’t think that that gives them probable cause to do 

anything else. I mean I think the fact they’re saying, hey, we discovered a weapon in the 

house and because we discovered the weapon, we now -- we now have some reason to 

search for what?” App. 313. These statements mirror his appellate argument, that the 

sweep lasted for too long and reached areas too far away from the area of arrest under 

Buie. The same facts and law underlie both.

4 App. 17. The District Court didn’t address the AK-47 because it thought Mills was not 

challenging that evidence, though on appeal, Mills claims that the District Court 

misunderstood his argument.
4

explains in its thorough and well-reasoned opinion, the scale, the cash, and the handgun 

were not recovered as a part of the sweep. We will affirm the Court’s rejection of HuntIrving’s challenge to the sweep substantially for the reasons set forth by the District 

Court. 

Hunt-Irvington next argues that this search tainted his subsequent consent to a 

search of the second floor, and, as a result, all fruits of that search should be suppressed 

under the exclusionary rule and the test set forth in Brown v. Illinois.

5 The District Court 

readily rejected that claim, and we agree. The protective sweep was irrelevant to his 

consent to search.

B.

Hunt-Irving argues that his attorney rendered ineffective assistance by conceding

the existence of the rifle upstairs because it was not supported by a reasonable strategy. 

However, ordinarily, we defer issues of ineffective assistance of counsel to a collateral 

attack rather than reviewing them on direct appeal, unless the record is sufficient to allow 

a ruling on the issue.

6

 Here, as described in Massaro, the record from the suppression 

hearing was “not developed precisely for the object of litigating or preserving the claim,” 

and while it does “reflect the action taken by counsel [it does] not [reflect] the reasons for 

it.”7

 Thus, we will deny Thornton’s claim of ineffective assistance of counsel without 

5 422 U.S. 590 (1975).

6 Massaro v. United States, 538 U.S. 500, 503-04 (2003); United States v. Thornton, 327 

F.3d 268, 271-72 (3d Cir. 2003).

7 Massaro, 538 U.S. at 505.
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prejudice to his right to raise this claim on a collateral attack brought pursuant to 28 

U.S.C. § 2255.

C.

Hunt-Irving’s final argument is that applying the weapons disenfranchisement 

contained in 18 U.S.C. § 922(g)(1) to him violates his Second Amendment rights because 

of the nature of his prior convictions. He was previously convicted of tampering with 

public records with the intent to defraud, in violation of 18 Pa. Cons. Stat. § 4911(a) and

(b). 

This argument is now foreclosed by our decision in Folajtar.8

 We there held that 

the legislature’s designation of an offense as a felony is generally conclusive in 

determining whether the offense is sufficiently serious to fall outside Second Amendment 

protections.9 Like Folajtar’s crime, Hunt-Irving’s predicate convictions include the intent 

to defraud, and necessarily entail deceit. 

II.

A.

Mills argues that insufficient evidence supported his conviction of conspiracy to 

possess 500 grams or more of cocaine with the intent to distribute. He contends that the 

Government failed to establish that he was the one speaking on the wiretap of Co8 Folajtar v. Att’y Gen., 980 F.3d 897 (3d Cir. 2020).

9 Id. at 900.
6

Defendant Church’s phone. However, there is sufficient evidence to support Mills’ 

conviction under both the deferential standards of Rule 29 and Rule 33. 

We exercise plenary review over a district court's denial of a motion for judgment 

of acquittal based on the sufficiency of the evidence and thus apply the same standard as 

the District Court.10 In reviewing a Rule 29 motion, we apply “a particularly deferential 

standard of review, viewing the record in the light most favorable to the prosecution to 

determine whether any rational trier of fact could have found proof of guilt beyond a 

reasonable doubt based on the available evidence.”11 “The verdict must be upheld as 

long as it does not ‘fall below the threshold of bare rationality.’”12 We review the 

District Court’s denial of a motion for a new trial for abuse of discretion.13

Viewing the evidence and reasonable inferences derived therefrom in the light 

most favorable to the Government, a rational trier of fact could have found Mills 

participated in the conspiracy. Mills acknowledges that the Government presented 

evidence that the phone at issue was registered to him at his address, and the individual 

speaking on the phone was addressed as “Lil Shawn.”14 The Government also presented

wiretap evidence that Co-Defendant Church needed $1500 to purchase cocaine and 

Pinkney, who was charged elsewhere, testified that Mills provided Church with that 

10 United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008).

11 Id. (citations omitted). 

12 United States v. Caraballo-Rodriguez, 726 F.3d 418, 431 (3d Cir. 2013) (en banc) 

(quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012)).

13 Hook v. Ernst & Young, 28 F.3d 366, 370 (3d Cir. 1994).

14 Mills Op. Br., 12.
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amount of money. Thus, the evidence was sufficient, and the District Court did not err in 

denying Mill’s motion for judgment of acquittal, nor did it abuse its discretion by 

denying Mills a new trial. 

B.

Mills contends that had he been able to present evidence from his forensic expert 

in voice identification analysis, she would have opined that the voice on the wiretap was 

not Mills’. We review the District Court’s ruling regarding the admissibility of expert

testimony for abuse of discretion.15

The District Court found the methodology the expert applied could not satisfy 

Daubert. In Daubert, the Supreme Court held that scientific expert testimony is 

admissible only if it is relevant and reliable.16 It identified factors to consider in 

assessing the reliability of a scientific theory or technique, including “whether the theory 

or technique has been subjected to peer review and publication” and whether the theory 

or method has been generally accepted by the scientific community.

17 The District Court 

relied partly on United States v. Angleton, which concluded that the proposed expert 

testimony on aural spectrographic voice identification failed to meet the Daubert

standard for reliability.18 Even since Angleton, the District Court noted, no federal court 

has accepted such voice identification evidence. The District Court acknowledged the 

15 United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001).

16 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

17 Id. at 593-94.

18 269 F. Supp. 2d 892, 905 (S.D. Tex. 2003). 
8

technology has improved but found the technology is not generally accepted by the 

scientific community. Moreover, the District Court pointed out that even the FBI, which 

has much to gain from such a powerful prosecutorial tool, considered voice recognition 

technology insufficiently reliable to be offered as evidence in court. Finally, the District 

Court carefully explained that the technology has not been validated by peer review and 

that the proposed expert admitted she subjectively chose which calls to sample. We find 

no fault with the District Court’s reasoning and will affirm its decision to exclude this 

testimony. 

III.

For the reasons set forth above, we will affirm the District Court’s judgments in 

both Hunt-Irving’s and Miller’s cases.