NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No s . 18

- 3736 and 19

- 1636

_______________ UNITED STATES OF AMERICA v. SHAWN MILLS and RAPHAEL HUNT

- IRVING , Appellants

_________ _______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No s . 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

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

. (Opinion filed: June 9, 2021 )

______________2 OPINION *

______________ 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 de nial 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 support ing 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 becaus e 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 Hunt

Irving 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, whe n 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 omitt ed). 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. Al though Hun t

- 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 th e 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 d idn’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 C ourt’s reject ion of Hunt

Irvin g ’s challenge to the sweep substantially for the reasons set forth by the District Court. Hunt

- Irvington next argues that this s earch 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 collater al 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 505.5 prejudice to his right to raise thi s claim on a collateral attack brought pursuant to 28 U.S.C. § 2255

. C.

Hunt

- Irving ’s final argument is th at 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 L ike 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 Co

8 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 standard s 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 D istrict C ourt. 10 In reviewing a Rule 29 motion, we ap ply “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 Di strict C ourt’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 hi m at his address , and the individual speaking on the phone was addressed as “Lil Shawn.” 14 The Government also presented wiretap evidence that C o - D efendant 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., 12.7 amount of money. Thus, the evidence was sufficient, and the D istrict C ourt 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 D istrict C ourt’s ruling regarding the admissibility of ex pert 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 T he D istrict C ourt relied partly on United States v. Ang le ton , which concluded that the proposed expert testimony on aural spectrographic voice identification faile d to meet the Daubert standard for reliab ility. 18 Even s ince Angleton , the District C ourt noted, no federal court ha s 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 D istrict C ourt 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, t he D istrict C ourt 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.
II I . For the reasons set forth above, we will affirm the District Court’s judgments in both Hunt

- Irving’s and Miller’s cases.