NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1725
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UNITED STATES OF AMERICA
v.
JOSHUA PETERS,
Appellant
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On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. No. 2-22-cr-00220-001)
District Judge: Honorable Arthur J. Schwab
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 4, 2024
Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges
(Filed: March 14, 2024)
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OPINION
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JORDAN, Circuit Judge.
A jury convicted Joshua Peters of one count each of drug trafficking, possession of
a firearm in furtherance of drug trafficking, and being a felon in possession of a firearm
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
and ammunition. Peters challenges his convictions and the District Court’s application of
a sentencing enhancement for obstruction of justice. Because his arguments lack merit,
we will affirm.
I. BACKGROUND
Peters was a drug dealer who trafficked large quantities of cocaine and fentanyl in
Mercer County, Pennsylvania. Following a series of controlled purchases by a
confidential informant, police executed a search warrant at Peters’s home and found
drugs and drug paraphernalia, money, and six firearms, plus ammunition. [The
Commonwealth of Pennsylvania charged Peters with essentially the same crimes for
which he was later federally prosecuted.
The United States adopted the case, and a federal grand jury indicted Peters for
possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C), possession of a firearm in furtherance of drug trafficking in violation of 18
U.S.C. § 924(c)(1)(A)(i), and being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1). He had a prior felony conviction in Pennsylvania for
possession with intent to distribute cocaine and had been sentenced to not less than 182
days’ and not more than 12 months and two days’ imprisonment.
On September 2, 2022, federal law enforcement attempted to arrest Peters at his
parents’ residence, but he was not there. At that time, however, officers spoke with
Peters on the phone and arranged for him to turn himself in. He never did. Peters was
scheduled to appear at a corresponding proceeding in state court on September 7, so
2
officers tried to arrest him then, but he failed to appear. Eventually, at around 3:00 am on
September 9, police arrested Peters in a convenience store parking lot.
The District Court set trial for December of 2022. Before trial, Peters filed a
motion in limine to bar the government from introducing evidence that he had not
obtained fingerprint and DNA tests on the recovered firearms. He argued that such
evidence would constitute improper burden shifting, allowing a jury to infer that he could
have proved his innocence by having the guns tested. The Court granted the motion in
part. It stated, “if [Peters] here puts on … evidence to show that the Prosecution did not
test the weapons at issue for fingerprints or DNA, the Government may use its closing
argument to issue a comment that points to a lack of testing conducted by either party.”
(App. at 12.)
During trial, the government asked its final witness, City of Hermitage police
officer Marc Frampton, whether the evidence found inside Peters’s home “was … made
available for testing by the defense?” to which Frampton answered, “Yes.” (App. at
211.) Peters’s counsel objected, citing the Court’s pre-trial ruling, and moved for a
mistrial. The Court overruled the objection, finding that the question did not violate its
prior order.
The government also put on evidence regarding Peters’s knowledge of his prior
state felony conviction and sentence, which precluded him from owning a gun. The
parties stipulated that he had been convicted of a crime punishable by imprisonment for a
term exceeding one year. The government introduced testimony from someone who
spoke with Peters about Peters’s inability to lawfully own a firearm (App. at 158 (“Mr.
3
Peters told me he was a felon and he was not allowed to own guns.”)), as well as
testimony from Officer Frampton that in the Mercer County Court of Common Pleas,
where Peters was sentenced, the “[s]tandard practice” is that a defendant learns of his or
her sentence when the judge reads it in open court (App. at 177-78). The government
also entered into evidence Peters’s sentencing order, which states that “[t]he defendant is
required to undergo incarceration for a period of not less than 182 days, nor more than 12
months and 2 days.” (App. at 177, 352.)
The government rested and Peters moved for judgment of acquittal on the firearm
offenses, which the Court denied. The following day, both sides gave closing arguments.
In closing, Peters’s counsel asked why the government did not test the recovered bullets
for fingerprints. As a result, on rebuttal, the government noted that “all [of] the evidence
… was made available for defense testing as well. If the defense thought that there was
something meaningful … the defense could have tested it[.]” (App. at 298.) Peters
renewed his motion for a mistrial, but the Court denied it.
The jury convicted Peters on all three counts of the indictment. [The District
Court scheduled sentencing and Peters filed objections to his Presentence Investigation
Report, particularly a two-level enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1. At sentencing, the Court overruled the objection and applied the enhancement,
finding as fact that Peters evaded arrest on September 2 and that he failed to appear at his
state court proceedings despite knowing of the federal arrest warrant. The Court
sentenced Peters to two 120-month terms of imprisonment, to run concurrently, and one
4
60-month term of imprisonment, to run consecutively, and a three-year term of
supervised release. This appeal timely followed.
II. DISCUSSION1
Peters challenges his convictions and sentence, arguing that the District Court
should have granted his motion for a mistrial, that there was insufficient evidence for his
felon-in-possession conviction, and that the Court incorrectly applied an obstruction-of-
justice sentencing enhancement.
1. The District Court correctly denied Peters’s motions for mistrial.2
Peters challenges his convictions, arguing that the District Court should have
granted a mistrial because the government improperly shifted the burden of proof by
introducing evidence that he did not conduct forensic testing on the recovered firearms.
It is well settled that prosecutors “may not improperly suggest that the defendant
has the burden to produce evidence.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.
1996). But, when the defense advances an argument, the prosecution may make, in
closing, a “comment that points to a lack of evidence in the record which supports …
[that] argument,” United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998), or one that
“attempt[s] to focus the jury’s attention on holes in the defense’s theory.” Balter, 91 F.3d
at 441.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
We review a denial of a motion for mistrial for abuse of discretion. United
States v. Noble, 42 F.4th 346, 354 n.9 (3d Cir. 2022).
5
The government, during direct examination, asked one question of Officer
Frampton regarding fingerprint testing: “Was the evidence that was found inside
[Peters’s house], was that made available for testing by the defense?” (App. at 211.)
Frampton replied, “Yes.” (App. 211.) Peters objected and moved for mistrial on the
basis that he had been careful not to previously introduce evidence related to the lack of
testing or fingerprints.3 The government argued in opposition that the order directed
what it was allowed to argue in closing and “[w]ithout that question, there would be no
foundation for the comment that th[e] [C]ourt authorized [it] to make in closing[,]”
should Peters open the door. (App. at 212.) The Court sided with the government and
overruled the objection. Even if the question violated the Court’s pretrial order, which
we need not decide, the Court did not abuse its discretion by denying the motion for a
mistrial. Viewing the record as a whole, that single question did not shift the
government’s burden; it preserved for the government the possibility of noting the lack of
testing in closing.
Later, during closing argument, Peters’s counsel asked the jury: “You know how
you prove beyond a reasonable doubt pretty conclusively who possessed things? Test it.”
(App. at 283.) While noting that Detective Eric Harpster testified regarding the futility of
3
This is not exactly so. Peters, not the government, actually first elicited
testimony about fingerprint testing during his cross-examination of Detective Eric
Harpster. Counsel asked that if Harpster was to find a gun, he “wouldn’t just pick it up
with your bare hands, [he] would pick it up with like a pen or glove. Right?” to which
Harpster replied, “No,” because he wouldn’t worry about trying to get a fingerprint off a
gun. (App. at 93-94.) But, he continued, “[s]ometimes if you’re going to get … a print,
you’ll get the print off the bullet.” (App. at 94.)
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attempting to fingerprint firearms, Peters argued that the government could have pulled
prints “[o]ff of bullets[,]” as Harpster suggested, and asked again, “Why didn’t they test
that? Why did they leave that to your imagination? What are they concerned about?”
(App. at 284.)
Only on rebuttal did the government then note that the “physical evidence … was
made available for defense testing as well. If the defense thought that there was
something meaningful – you actually could get something meaningful from that
evidence, the defense could have tested it as well.” (App. at 298.) It made those
comments shortly after reminding the jury that “the defense has no obligation to present
evidence.” (App. at 296.)
Peters moved for a mistrial again after closing, arguing that he did not put on a
case and only made an argument about the lack of evidence. The government responded
that Peters presented evidence about fingerprinting in cross-examination and, during
closing, implied that additional testing should have been done, which made the rebuttal
proper. The Court sided with the government and denied the motion because it
“believe[d] the argument made by prosecution in closing was proper and did not in any
way imply or shift the burden of proof to the defendant.” (App. at 304.) There was no
abuse of discretion in that ruling. Walker, 155 F.3d at 187.
In denying Peters’s motion, the District Court correctly noted that the “preliminary
and final instructions [made] it very clear, as did [its] questioning of the jurors when [the
parties] selected the jury, that the burden all remains with … the government and never
shifts.” (App. at 304); cf. United States v. Franz, 772 F.3d 134, 152 (3d Cir. 2014)
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(“Absent … extraordinary situations, … we adhere to the crucial assumption underlying
our constitutional system of trial by jury that jurors carefully follow instructions.” (first
alteration in original) (quoting Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985))). The
Court informed the jury at least four times that “[t]he presumption of innocence means
that Mr. Peters has no burden or obligation to present any evidence at all or to prove that
he’s not guilty. The burden … is on the government[.]” (App. at 316.) Additionally,
during closing argument, the government reminded jurors that it maintained the burden of
proof through the trial, and the defense gave the same reminder in its opening and
closing. Therefore, as the District Court stated, “the record [was] really clear … that the
burden [was] not on the defendant, that [it was] on the government and remain[ed] there.”
(App. at 304.) The Court did not abuse its discretion in denying the motion for a mistrial.
2. There was sufficient evidence to support Peters’s conviction under
18 U.S.C. § 922(g)(1).4
Peters also argues that his felon-in-possession count must be vacated because the
government presented insufficient evidence to demonstrate that he knew he was
previously convicted of a crime with a sentencing exposure of more than one year. His
entire argument turns on the claim that, while he knew he was a felon, he did not know
4
“We review 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.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (internal
quotation marks and citation omitted). “Under this particularly deferential standard, we
must … not … usurp the role of the jury by weighing credibility and assigning weight to
the evidence, or by substituting [our] judgment for that of the jury” and must “review the
evidence as a whole, not in isolation[.]” Id. (internal quotation marks and citations
omitted).
8
that he was sentenced to a term of imprisonment of more than one year. That argument
fails.
“[T]he Government must prove both that the defendant knew he possessed a
firearm and that he knew he belonged to the relevant category of persons barred from
possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Section
922(g)(1) of title 18 of the United States Code makes it “unlawful for any person who has
been convicted … of a crime punishable by imprisonment for a term exceeding one year”
to “possess … any firearm or ammunition[.]” (cleaned up). “[I]f the maximum term of
imprisonment authorized is … more than one year,” the offense “is classified … as a …
felony[.]” Id. § 3559(a)(5). In Greer v. United States, the Supreme Court expanded on
the knowledge-of-status requirement, holding that “[i]f a person is a felon, he ordinarily
knows he is a felon. … Thus, absent a reason to conclude otherwise, a jury will usually
find that a defendant knew he was a felon based on the fact that he was a felon.” 593
U.S. 503, 508-09 (2021). “Greer, in effect, created a presumption that the ‘knowledge-
of-status’ element is satisfied whenever a § 922(g)(1) defendant is, in fact, a felon.”
United States v. Adams, 36 F.4th 137, 152 (3d Cir. 2022). Here, evidence introduced at
trial showed that Peters knew he was a felon. (App. at 158 (“Peters told [the witness] he
was a felon and he was not allowed to own guns[,]” due to his possession with intent to
deliver crack cocaine conviction).) There is nothing in the record to suggest that Greer’s
presumption does not apply.
Furthermore, Peters’s professed ignorance does not stand up to scrutiny. The
order imposing his sentence, which was entered into evidence, states explicitly that “this
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6th day of November 2020, IT IS THE SENTENCE OF THIS COURT on Possession
With Intent to Deliver a Controlled Substance, … that …the defendant undergo
incarceration for a period of not less than one hundred eighty-two (182) days nor more
than twelve (12) months and two (2) days.”5 (App. at 352.) Officer Frampton also
testified that in Mercer County defendants learn of their sentences in open court and that
Peters had pled guilty to the possession charge in Mercer County. Therefore, the jury had
ample evidence from which to find that Peters had knowledge not only of his felon status
but also that his crime was punishable by imprisonment exceeding a year.
“Review[ing] the evidence as a whole, … a rational trier of fact” could have found
“guilt beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418,
430 (3d Cir. 2013) (internal quotation marks and citation omitted). Accordingly, we will
affirm the felon-in-possession conviction because “there is substantial evidence … to
uphold the jury’s decision.” Id. (citation omitted).
3. The District Court correctly applied a sentencing enhancement for
obstruction of justice.6
Peters also challenges the District Court’s application of a sentencing
enhancement for obstruction of justice based on his evasion of arrest.
5
The parties also stipulated that “as of March 15, 2022, the defendant had been
convicted of a crime punishable by imprisonment for a term exceeding one year.” (App.
at 178.) See Greer v. United States, 593 U.S. 503, 509 (2021) (finding that a defendant
“stipulat[ed] to the fact that he was a felon” and his “prior convictions [were] substantial
evidence that [he] knew [he] w[as a] felon[]”).
6
In reviewing an application of a sentencing enhancement, we “exercise[] plenary
review over the District Court’s legal conclusions and review[] the District Court’s
10
Section 3C1.1 of the sentencing guidelines increases a defendant’s offense level
“[i]f (1) the defendant willfully obstructed or impeded … the administration of justice
with respect to the investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of
conviction and any relevant conduct; or (B) a closely related offense[.]”7 In United
States v. Imenec, we affirmed the district court’s application of § 3C1.1 to a defendant
who failed to appear at a state court judicial proceeding when the effect was to avoid or
delay his federal arrest. 193 F.3d 206, 208, 210 (3d Cir. 1999). We held that “the
Sentencing Commission’s intent was to impose an enhancement for any conduct that
obstructs an investigation, prosecution or sentencing proceeding that is based on the
criminal conduct underlying the specific statutory offense for which the defendant is
being sentenced.” Id. at 208.
At sentencing, the Court heard testimony from narcotics agent Scott Patterson
from the Pennsylvania Attorney General’s office who testified regarding the state and
federal proceedings against Peters and law enforcement’s attempts to arrest him for the
factual findings for clear error.” United States v. Gray, 942 F.3d 627, 630-31 (3d Cir.
2019).
7
Peters argues that we should instead be guided by § 3C1.1’s commentary. He,
however, fails to demonstrate the provision’s ambiguity before turning to the
commentary, as required by United States v. Nasir, 17 F.4th 459, 469-70 (3d Cir. 2021)
(en banc). We decline to make such arguments for him. Barna v. Bd. of Sch. Dirs. of
Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) (“[W]e have consistently
refused to consider ill-developed arguments or those not properly raised and discussed in
the appellate briefing.”).
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federal crimes. After finding Patterson credible, the Court found as a fact that, on
September 2, Peters spoke with a law enforcement officer who informed him that a
federal warrant had been issued for his arrest and further that Peters told the officer he
would turn himself in. Peters never did. On the contrary, despite attending his prior state
court proceedings, Peters did not attend a proceeding five days later on September 7,
when it was likely federal law enforcement officers would arrest him. The District Court
thus justifiably found that Peters was evading arrest and that his actions “required that
law enforcement separately apprehend [him].” (App. at 480.)
Based on the record before us, we cannot conclude that the Court clearly erred in
so finding. Peters’s objection was properly overruled, and the sentencing enhancement
properly applied.
III. CONCLUSION
For the foregoing reasons, we will affirm Peters’s conviction and sentence.
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