Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-27-2005
USA v. Stewart
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2212
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2212
____________
UNITED STATES OF AMERICA
v.
MARQUI STEWART,
Appellant
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
District Court No. 02-cr-00808-1
District Judge: The Honorable Petrese B. Tucker
___________________
Submitted pursuant to LAR 34.1(a)
March 31, 2005
Before: ALITO, SMITH, and FISHER, Circuit Judges
(Filed: April 27, 2005)
________________________
OPINION OF THE COURT
________________________
PER CURIAM:
Marqui Stewart challenges his convictions for various drug trafficking and
conspiracy charges.1 For the reasons set forth below, we affirm the judgment of the
District Court.
As we write for the parties only, we do not set out the facts.
I.
We review the District Court’s denial of a motion to suppress for clear error as to
the facts, and exercise plenary review of the District Court’s application of the law to
those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). The denial of a
suppression motion may be affirmed on any ground supported by the record. See United
States v. Belle, 593 F.2d 487, 499 (3d Cir. 1979).
The law enforcement officers had a warrant for Stewart’s arrest and had every
reason to believe that he resided at 6718 Media Street. He was seen there the day before,
his car was parked in the vicinity, and the officers saw him coming down the stairs when
they knocked on the door at 6:00 a.m. The warrant and the reasonable belief that Stewart
was in the house gave the officers the authority to enter and seize him. Payton v. New
1
In response to an inquiry from the Clerk of Court regarding the applicability of
United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), Stewart’s counsel
advised us by letter dated April 4, 2005, that “Blakely v. Washington, 124 S.Ct.
2531 (2004) has no applicability to the above captioned appeal since the sentence
that was given was statutorily mandated by the applicable statutes.” Thus we do
not address the applicability of Booker to Stewart’s sentence.
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York, 445 U.S. 573, 603 (1980) (“[F]or Fourth Amendment purposes, an arrest warrant
founded on probable cause implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe the suspect is
within.”).
Stewart argues that the arrest warrant provided insufficient authority for the entry
because 6718 Media Street was not his residence and because the Supreme Court held in
Steagald v. United States, 451 U.S. 204 (1981), that officers seeking to execute an arrest
warrant in the residence of a third-party need a search warrant in order to enter. (See
Appellant’s Br. at 11-13.) Thus, asserts Stewart, the officers’ entry was illegal.
Stewart is wrong for several reasons. First, there is evidence that Stewart resided
at 6718 Media Street; among other things, he listed the address as his residence on the
biographical information report submitted to the Philadelphia Police Department.
Second, even if 6718 Media Street were not Stewart’s residence, Stewart would still be
unable to challenge the officers’ entry. Steagald protects the rights of a resident third-
party, not a non-resident arrestee, and a non-resident arrestee has no standing to assert the
rights of a resident third-party. See United States v. Buckner, 717 F.2d 297, 299-300 (6th
Cir. 1983). Third, even if Stewart had some assertable right or privacy interest against
unlawful entry to a building in which he did not reside, the entry in question was obtained
with a warrant and thus was not unlawful and did not violate any rights Stewart might
have. As we have written:
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A person has no greater right of privacy in another’s home than in his own. If an
arrest warrant and reason to believe the person named in the warrant is present are
sufficient to protect that person’s [F]ourth [A]mendment privacy rights in his own
home, they necessarily suffice to protect his privacy rights in the home of another.
United States v. Agnew, 385 F.3d 288, 291 (3d Cir. 2004) (quoting United States v.
Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (en banc) (parallel citations omitted)),
judgment vacated on other grounds by --- S.Ct. ----, 2005 WL 405647 (February 22,
2005)).2 Finally, by fleeing the building, Stewart abandoned any privacy interest he may
have had in it. See, e.g., United States v. Winchester, 916 F.2d 601, 603-04 (11th Cir.
1990) (fugitive who left rental property and drove past 25 officers preparing to stake out
cottage abandoned the property). The officers’ entry into 6718 Media Street was
therefore valid.
After entering, the officers conducted an appropriate protective sweep of the
premises to determine if anyone was present in the building. In the course of the sweep,
they came upon multiple firearms on the second floor of the house and discovered that the
three men had escaped through a skylight to the roof. After finding the three men on the
roof, the officers obtained a search warrant for 6718 Media Street based on what they had
seen during their protective sweep.
In sum, there was no illegality or constitutional infirmity in the procedure. The
2
On February 22, 2005, the Supreme Court granted certiorari in Agnew and ordered
that the judgment be vacated and the case remanded to the Third Circuit “for
further consideration in light of United States v. Booker, 543 U.S. ___ (2005).”
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officers followed to arrest Stewart, and the District Court was right to deny Stewart’s
motion to suppress the evidence seized during the search.
II.
This Court reviews the District Court’s denial of a motion for a new trial for abuse
of discretion. Hook v. Ernst & Young, 28 F.3d 366, 370 (3d Cir. 1994).
Stewart contends the government suggested in its opening statement and through
the testimony of the officers that he had committed prior bad acts. Specifically, he
contends the government did so by alluding to the existence of a warrant for his arrest.
For this reason, Stewart demanded a new trial.
As the District Court observed, however, the potential danger in mentioning the
arrest warrant related not so much to the existence of an arrest warrant per se, but to the
content of the specific arrest warrant at issue: it was an arrest warrant for a homicide.
(App. 567.) The government’s opening statement and the non-specific testimony about
an arrest warrant did not suggest Stewart was being arrested for anything other than the
crimes with which he was actually charged. Furthermore, it is unreasonable of Stewart to
insist that the government not be allowed to mention the existence of a valid arrest
warrant. For if the government had not offered a lawful reason for entering the building,
the jury might have wondered whether the entry was legal.
III.
We review the District Court’s evidentiary rulings for abuse of discretion. United
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States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003).
Stewart argues that Clouden, a government cooperator, should not have been
allowed to testify on direct examination concerning threats to him and his family made by
defendants in another case — threats that led Clouden to attempt to withdraw his guilty
plea and end his agreement to cooperate and testify in this and the other case. Stewart
contends that by eliciting Clouden’s responses on this topic, the government improperly
bolstered Clouden’s credibility.
In fact, this line of questioning was a proper attempt to blunt an expected line of
cross-examination and to directly address a matter that arguably impeached Clouden’s
credibility. Because a cooperation agreement can be a very desirable thing — co-
defendants sometimes compete to cooperate — an attempt to end a cooperation
agreement naturally appears significant, and a skillful defense lawyer can make it appear
suspicious. After all, why would someone give up a good thing? Without information
indicating that Clouden’s wavering was caused by threats to his person and his family, the
jury could, for example, be led to believe that Clouden was wavering because he knew his
testimony was untruthful and did not want to perjure himself. It was therefore proper to
elicit testimony regarding the attempted withdrawal from the plea agreement. See United
States v. Saada, 212 F.3d 210, 225 n. 16 (3d Cir. 2000) (approving admission of a plea
agreement’s provision requiring truthful testimony by a cooperating witness in response
to, or in reasonable anticipation of, defense counsel’s impeachment of witness).
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IV.
In reviewing Stewart’s claim that the evidence is not sufficient to establish
possession of a firearm in furtherance of a drug trafficking crime, we examine the
“totality of the evidence, both direct and circumstantial,” and must credit “all available
inferences in favor of the government.” United States v. Gambone, 314 F.3d 163, 170
(3d Cir.), cert. denied, 540 U.S. 815 (2003). We will sustain the verdict if “‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citations omitted).
In this case, the government presented overwhelming evidence on which a jury
could rely to find Stewart guilty of violating 18 U.S.C. § 924(c). Clouden and Griffin
testified that Stewart resided with them at 6718 Media Street and engaged in the full-time
distribution of illegal drugs. Clouden testified that he and Stewart sold and distributed
drugs together. Detectives found drugs and large amounts of cash in the building. They
also found seven guns, six of which were loaded, scattered on the second floor of the
building. Clouden testified that Stewart knew of the guns, that they were accessible to
him, and that he shared control of at least some of them (the “big guns”) with Clouden
and Griffin. And Clouden and Griffin both testified that Stewart had actual physical
possession of the Glock .45 caliber pistol when Clouden and Stewart attended a “linen
party” a couple of days before the search of 6718 Media Street.
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V.
Stewart contends that the District Court erred in failing to charge the jury that the
dominion and control sufficient to establish constructive possession is not established by
mere proximity, mere presence, or mere association.
Where a jury charge is attacked for legal error, we must determine whether “the
charge as a whole fairly and adequately submits the issues in the case to the jury.” Bennis
v. Gable, 823 F.2d 723, 727 (3d Cir. 1987). If the District Court has properly articulated
the relevant legal criteria, we review the particular language it used for abuse of
discretion. United States v. Pelullo, 964 F.2d 193, 215 n.21 (3d Cir. 1992).
The instructions concerning actual and constructive possession were legally
correct and complete. The District Court made clear that, in order to have actual
possession of an object, a person must have direct physical control or authority over the
object, such as the control one has when one holds an object in one’s hands. And in order
to have “constructive” possession over an object, the District Court explained, a person
must have the ability to take actual possession of the object when the person wants to do
so. Because mere proximity, mere presence, or mere association is not enough for even
constructive possession, these instructions adequately conveyed to the jury that
constructive possession is not established by mere proximity, mere presence, or mere
association.
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VI.
For the foregoing reasons, we affirm the Judgment of the District Court.