United States v. Troy Kelly

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 09-2918 and 09-3932
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UNITED STATES OF AMERICA

v.

DEON HOLLOWAY,

Appellant in No. 09-2918
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UNITED STATES OF AMERICA

v.

TROY KELLY,

Appellant in No. 09-3932
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 08-00727)
Honorable C. Darnell Jones, II, District Judge
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Submitted under Third Circuit LAR 34.1(a)
November 18, 2010

BEFORE: AMBRO, FISHER, and GREENBERG, Circuit Judges

(Filed: November 18, 2010)
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OPINION OF THE COURT
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GREENBERG, Circuit Judge.

This matter comes on before the Court on appeals consolidated for disposition

from judgments of conviction and sentence in this criminal case. The case originated

when a grand jury indicted Deon Holloway and Troy Kelly on one count of possession of

a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Following their

trial, a jury convicted both defendants, now appellants, on the weapons offense.

On June 28, 2009, the District Court sentenced Holloway to a 210-month term of

imprisonment, five years of supervised release, a $1,500 fine, and a $100 special

assessment. Then, on October 7, 2009, the Court sentenced Kelly to a 180-month term of

imprisonment, five years of supervised release, a $1,500 fine, and a $100 special

assessment. The Court entered judgment on July 7, 2009, in Holloway’s case and on

October 15, 2009, in Kelly’s case. Appellants have filed timely notices of appeal.

The case is unusual because of the degree of a civilian’s participation in

appellants’ apprehension, particularly inasmuch as the civilian was not a victim of

appellants’ offense. At approximately 12:00 a.m. on August 9, 2008, Marvin Ravenell,

the civilian, while standing near a window with a street view and waiting for his order at

Dwight’s Bar-B-Que, a restaurant on Lancaster Avenue in West Philadelphia, observed

Holloway and Kelly, who were unknown to Ravenell, along with two or three other men,

walk past Dwight’s. As they passed, Ravenell saw Holloway hand Kelly a black

handgun that Kelly then placed in his back pocket or waistband. Ravenell immediately

called 911 on his cell phone to report what he had seen. During the call Ravenell

2
described the two men’s clothes and told the 911 dispatcher that they were walking

eastbound on Lancaster Avenue.

After calling 911, Ravenell watched and waited for the police to respond.

Moments later, Ravenell saw uniformed Philadelphia Police Department officers arrive in

the area and begin questioning pedestrians. When Ravenell saw that the officers had

stopped the wrong men, he got into his car and drove towards the officers.

Subsequently, Ravenell saw Holloway and Kelly enter and exit a store on

Lancaster Avenue, following which they walked past Ravenell’s parked car. Ravenell

then saw appellants enter a green Ford Taurus that Ebone Walker, a childhood friend of

Kelly, was driving. Kelly and Holloway respectively sat on the front and rear passenger

seats of the Taurus.

Ravenell waived down a passing police car and told the officers in that car that he

had called 911 and, in the call, had described the two men with a gun walking eastbound

on Lancaster Avenue. Ravenell told the officers that these two men were now in a green

Ford Taurus traveling eastbound on Lancaster Avenue. The officers relayed this

information over police radio so that other police officers became aware of it.

Officers Mark Eib and Daniel Shall were driving westbound on Lancaster Avenue

in a marked police car when they received a radio broadcast informing the patrol police

that the two men with the gun were now in a green Taurus. Almost immediately after

hearing the radio broadcast, Eib spotted the green Taurus and saw that its occupants were

wearing clothing that appeared to match the description of the clothing that Ravenell had

given the dispatcher. Eib, who was driving, made a U-turn and followed the Taurus,

3
activating the police car’s lights and siren and signaling for the Taurus to pull over. As

the Taurus pulled over, Officer Eib saw Kelly, the front seat passenger, take something

from his back pocket and lean forward and place it under the front passenger seat.

Though originally ordering the occupants to stay in the vehicle, after backup

officers arrived the officers reversed their directions and ordered them to come out of the

vehicle. The officers then secured Holloway and Kelly at the rear of the vehicle. Eib

then recovered a black Beretta semi-automatic handgun from under the front passenger

seat. At about the same time other officers drove Ravenell to the arrest scene. Ravenell

then positively identified Holloway and Kelly as the men that he had seen with the gun

outside Dwight’s restaurant, and he identified Holloway as the man who passed the gun

to Kelly. The officers then arrested appellants.

Prior to appellants’ joint trial, Kelly moved to bifurcate the trial so as to divide the

elements of the offense with which he was charged, i.e., his possession of the Beretta and

his prior felony record. Kelly believed that a joinder of the two elements would prejudice

him. The District Court denied the motion, following which Kelly and the government

stipulated that he had a prior felony conviction meeting the prior felony element of 18

U.S.C. § 922(g).

At the trial, Ravenell testified about his observations of Holloway and Kelly and

his identification of them after their arrest. Several police officers testified about the

Taurus’s stop, appellants’ arrest, and the recovery of the Beretta. In addition, the

detective assigned to the case testified about the processing of the evidence. Ebone

Walker, the driver of the car, testified about her interaction with Kelly and Holloway on

4
the night of the arrests and explained that she did not know that Kelly had a gun, nor did

she see him place the Beretta in the car. Walker said that she was very upset when the

officers found the Beretta. She further testified that she did not own the Beretta, that

neither she nor anyone else in her family owned a gun, or, while in her car, possessed a

gun, and that she never had let anyone use her car in the three months that she had owned

it. She also said that no one who rode in her car with her possessed a gun.

During Ravenell’s testimony, Holloway’s attorney sought to introduce into

evidence a video made from inside Dwight’s restaurant showing the view out through the

window where Ravenell was located when he saw Holloway and Kelly with the gun.

Holloway’s attorney explained that he was not offering the video to depict a reenactment

of the events the night of the arrest or to show the extent of Ravenell’s ability to see

outside that night. Rather, the attorney wanted to use the video to demonstrate how long

it would take a person to walk past the window at the pace that Ravenell said appellants

had been walking. The government objected to the admission of the video, raising

concerns about its accuracy and authenticity, the fact that it did not depict the conditions

on the night of appellants’ arrest,1 and the video’s potential to mislead and confuse the

jury by causing it to speculate about other issues.

The Court agreed with the government that, even though Holloway was offering

the video for the limited purpose that he described, the evidence’s potential to confuse

and mislead the jury outweighed its probative value. Thus, the Court excluded the video

1
Among the reasons why conditions might be different, the government pointed to “the
phase of the moon,” app. at 104, which, of course, is always changing.
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under Federal Rule of Evidence 403. The Court believed that the jury likely would

consider the video as evidence of the ability and opportunity of a person in Dwight’s to

see outside on the night of appellants’ arrest, and not simply as evidence of the possible

duration of Ravenell’s view of appellants on Lancaster Avenue. Moreover, the Court

was concerned with the possibility that use of the video would invite speculation on

numerous other issues. The Court stressed that Holloway’s attorney could demonstrate

without use of the video the point that he intended the video to demonstrate, i.e., how

long it would take a person walking at a normal pace to pass by Dwight’s window.

At the close of the government’s case, appellants moved for judgments of acquittal

under Federal Rule of Criminal Procedure 29. Holloway argued that the evidence

established that he had only fleeting, momentary possession of the Beretta, a period

legally insufficient to establish possession. Significantly, however, Holloway’s attorney

conceded that there was no case authority holding that a fleeting possession was of

insufficient duration to establish possession under 18 U.S.C. § 922(g)(1). The attorney

also acknowledged that, although the cases he cited involved claims of temporary

innocent possession, he was “not asserting innocent possession here.” App. at 294. The

District Court pointed out that this Court’s model jury instructions expressly stated that

possession of a weapon could be fleeting or momentary, and the determination of

whether a defendant was in its possession was a factual question for the jury and not a

legal one for a court to resolve. Ultimately, the Court denied the motions for acquittal.

Holloway’s attorney apparently was undeterred by the District Court’s disposition

of his Rule 29 motion, for he subsequently requested the Court to instruct the jury that

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fleeting or momentary possession of the Beretta was insufficient to establish possession.

Though the attorney conceded that the model jury instruction to which we already have

made reference stated just the opposite, and recited that fleeting possession could, indeed,

be sufficient for a conviction, he argued that there is a point at which a defendant’s

contact with a gun could be of too short a duration to establish that he had possession of

it. The Court declined to give the instruction, noting that Holloway essentially was

asking the Court “to state as a matter of law that certain conditions must be met,” app. at

324, when neither the statute nor courts applying the statute had imposed that condition.

Moreover, the Court pointed out that it previously had denied the Rule 29 motion

premised on this same argument. After his conviction, Holloway filed an unsuccessful

post-trial motion for a judgment of acquittal, again raising the argument that his fleeting

possession of the Beretta was insufficient to establish that he had had its possession.

The Probation Office determined that Holloway had three prior convictions for

felony drug offenses and had a guidelines base offense level of 24. Nevertheless, in light

of the convictions, Holloway was an armed career criminal for purposes of 18 U.S.C. §

924(e) and U.S.S.G. § 4B1.1, and his offense level thus was raised to 33. Holloway’s

criminal history category was V, and so that his guideline sentencing imprisonment range

was 210 to 262 months. Moreover, Holloway faced a mandatory minimum sentence of a

15-year term of imprisonment.

At Holloway’s sentencing hearing, the District Court adopted the guideline

calculation in the presentence report. The Court thoroughly considered the 18 U.S.C. §

3553(a) sentencing factors and all the facts and circumstances of the case, and determined

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that a sentence within the advisory guideline range was warranted. The Court recognized

that Holloway had a disadvantaged background, but concluded that his recidivism, the

nature and seriousness of his criminal conduct, and his complete lack of rehabilitation

made him a danger to the community and thus required the Court to impose a substantial

term of imprisonment on him. The Court imposed a 210-month custodial term of

imprisonment, a sentence at the bottom of the advisory custodial sentencing range.

The Probation Office determined that Kelly also had three prior state convictions

for felony drug offenses and thus was an armed career criminal under 18 U.S.C. § 924(e)

and U.S.S.G. § 4B1.1 and his offense level thus was raised to 33. Kelly also had a

criminal history category of V, and therefore his guideline custodial sentencing range was

210 to 262 months. Like Holloway, Kelly faced a mandatory minimum sentence of a 15-

year term of imprisonment.

At Kelly’s sentencing hearing, the government presented certified copies of the

records of conviction for each of Kelly’s felony drug trafficking convictions. These

records, which included the criminal complaint and the bill of information from the three

cases, established that each of his convictions had been for possession of crack cocaine

with intent to distribute, an offense which carried a maximum penalty under state law of a

15-year term of imprisonment, and thus qualified as a serious drug offense for armed

career criminal purposes. While Kelly did not contest the record evidence that he had

three previous convictions for drug trafficking offenses, he argued that the records did not

establish that two of the convictions were punishable by a term of imprisonment of at

least 10 years that 18 U.S.G. § 924(e) required for armed career criminal calculations.

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 Kelly argued that the bills of information for two of the convictions did not

identify the type of drug involved in the offense involved, and, although the complaints

stated that the offenses involved crack cocaine, the District Court could not rely on the

complaints in making its armed career criminal determination. Rather, he contended that

the documents before the Court were similar to the extra-judicial police reports that

Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 1257 (2005), said should not

be considered in that determination. The government answered that the complaints were

charging documents the use of which Shepard expressly sanctioned for sentencing

consideration, and that the complaints and informations together conclusively established

that Kelly’s offenses all involved cocaine and thus were punishable by up to 15 years in

prison. The Court agreed with the government that it could consider the complaints, and

that the documents established that Kelly had three convictions for serious drug offenses

and was subject to the 18 U.S.C. § 924(e) enhancement. The Court imposed a 180-month

term of imprisonment, the mandatory minimum sentence.

On this appeal Holloway contends that the government’s evidence failed to

establish that he criminally possessed the Beretta and that we should recognize that there

is a defense of “fleeting innocent contact” under 18 U.S.C. § 922(g).2 Appellant

Holloway’s br. at 26 (emphasis added). Accordingly, he also contends that the District

Court erred in refusing to inform the jury that fleeting contact with a firearm is

insufficient to support a conviction under 18 U.S.C. § 922(g). Finally, he contends that

2
It should be noted that notwithstanding Holloway’s contention on this appeal, on
Holloway’s Rule 29 motion he said, as we quote above, that he was “not asserting
innocent possession here.” App. at 294.
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the Court abused its discretion in rejecting the video and that his sentence was

unreasonable.

Kelly raises two issues on this appeal. First, he contends that the Court erred in

refusing to bifurcate the possessory and prior conviction elements of 18 U.S.C. § 922(g)

for the trial. He acknowledges, however, that in United States v. Jacobs, 44 F.3d 1219

(3d Cir. 1995), we rejected a nondistinguishable bifurcation motion, but he urges that we

should no longer follow Jacobs. Second, he contends that the government’s evidence to

support the career criminal sentencing enhancement was insufficient.3

We treat appellants’ issues in the order that we set them forth above. In

considering Holloway’s related contentions that the government failed to establish that he

criminally possessed the Beretta and in refusing to inform the jury that fleeting contact

with a firearm does not support a 18 U.S.C § 922(g) conviction, we will assume without

deciding that under section 922(g) there can be a fleeting possession defense.4 But our

assumption does not help Holloway, for even if there is a fleeting possession defense, we

are not aware of any authority that suggests that the availability of the defense does not

depend on the defendant’s contact, no matter how fleeting, with the firearm being

innocent. See, e.g., United States v. Washington, 596 F.3d 777, 782 (10th Cir. 2010);

3
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
4
The assumption, favorable to Holloway, that there can be a fleeting possession defense
is against the great weight of precedent.

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United States v. Williams, 389 F.3d 402, 405 (2d Cir. 2004). Moreover, Holloway

contends that we should recognize a defense of fleeting innocent contact.

We can conceive that there might be an innocent possession defense in certain

unusual situations. For example, it is possible that a felon would find a weapon and

immediately deliver it to a police station. Here, however, Holloway does not point to any

evidence that his possession of the weapon was innocent and, indeed, he hardly could do

so, as he does not acknowledge ever having possession of the Beretta. In this regard, we

point out that the evidence showed that Holloway passed the Beretta to Kelly who was a

convicted felon. Laying to the side the fact that Kelly secreted the Beretta when the

police were approaching, we see no basis to support a conclusion that Holloway’s

possession of the weapon before he passed it had been an innocent act. See United States

v. Davis, 183 F.3d 231, 250 (3d Cir. 1999).

We also hold that the District Court did not abuse its discretion in refusing to

allow Holloway to use the video at the trial. We review the Court’s ruling on this issue

on a deferential standard as involving the exercise of discretion rather than as involving

the consideration of whether the Court correctly interpreted the Federal Rules of

Evidence, a review that would have been plenary. See United States v. Furst, 886 F.2d

558, 577 (3d Cir. 1989). As we pointed out above, Holloway wanted to use the video to

demonstrate how long it would take a person to walk past the window at Dwight’s

through which Ravenell saw Holloway hand Kelly the Beretta. But no matter how short

that period, it would have no bearing on a fleeting possession defense, as that defense

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depended on Holloway’s possession being innocent and there is no basis in the record to

support a finding that the possession was innocent.

In reaching our result with respect to the video, we recognize that Holloway

claims that he did not hand the Beretta to Kelly, and thus the identification of the person

who did so was an issue at the trial. Indeed, even the question of whether anyone handed

the Beretta to anyone else was an issue, as Holloway did not acknowledge that it had

happened. But surely it had to have been obvious to the jury, with or without the video,

that Ravenell’s view of Holloway and Kelly as they passed Dwight’s could not have been

protracted. In fact, Ravenell testified that their passing “took less than 15 seconds.”

App. at 117.

Finally, we reject Holloway’s contention that the Court abused its discretion in the

imposition of his sentence. We review his sentence for procedural and substantive

reasonableness. His guidelines custodial range as an armed career criminal was 210 to

262 months and the Court sentenced him at the bottom of that range. Though the range

was advisory, we see nothing in the sentencing factors in 18 U.S.C. § 3553(a) that

demonstrates that the Court abused its discretion in sentencing Holloway.

Kelly’s two issues do not require extended discussion. First, he essentially

acknowledges that the District Court was compelled to deny his bifurcation motion. In

his brief, after setting forth that in Jacobs we rejected a bifurcation motion “similar to that

which was presented in the present case,” appellant’s brief at 12, he “respectfully

requests that this Court reject its prior holding in Jacobs and its progeny.” Id. at 13. Of

course, Jacobs binds us and we therefore are constrained to reject his request. See Third

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Circuit Internal Operating Procedure 9.1; Bimbo Bakeries USA, Inc. v. Botticella, 613

F.3d 102, 116 (3d Cir. 2010).

Kelly’s second contention is that “[t]he evidence presented by the government at

sentencing was insufficient to establish the application of the Armed Career Criminal

enhancement.” Appellant’s br. at 3. This argument centers on his contention that the

District Court misapplied Shepard in concluding that the enhancement was appropriate.

To be an armed career criminal a defendant must commit an offense delineated by

18 U.S.C. § 922(g) and have three prior convictions for a violent felony or a “serious

drug offense.” 18 U.S.C. § 924(e)(1). The consequences of that designation are serious

as the section requires that a sentencing court impose a minimum custodial term of 15

years on a defendant and it may impose a sentence up to a maximum term of life

imprisonment. A serious drug offense is a federal or state drug offense carrying a

“maximum term of imprisonment of ten years or more” but the statute does not make the

sentence that the court actually imposed an element of the offense. 18 U.S.C. §

924(e)(2)(A)(ii).

In view of the reality that court records in some cases are not clear and that

judgments of conviction and sentence may not spell out precisely all the elements of the

offense of conviction, it can be difficult to determine if a prior offense is a predicate

offense for an armed career criminal designation. Shepard addresses that problem by

permitting a sentencing court to look at court documents such as complaints and bills of

information beyond the judgment in making an armed career criminal career

determination. Shepard, 544 U.S. at 23 n.4, 125 S.Ct. at 1261 n.4 (“any inquiry beyond

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statute and charging documents must be narrowly restricted”). Here the District Court

looked at such documents and, exercising de novo review, see United Stats v. Laboy-

Torres, 553 F.3d 715, 718 (3d Cir. 2009), we agree with its conclusion that the

documents make clear that the armed career criminal enhancement applied to Kelly.5

For the foregoing reasons the judgments and conviction and sentence entered in

Holloway’s case, No. 09-2918 on appeal, on July 7, 2009, and in Kelly’s case, No. 09-

3922 on appeal, on October 15, 2009, will be affirmed.

5
It is significant that while Kelly contends that the complaints and bills of information
were ambiguous as to the severity of the offenses charged, he does not challenge the
authenticity of the documents.
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