UNITED STATES of America v. Kenneth TOWNSEND, Appellant.
No. 14-3652.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit LAR 34.1(a) April 28, 2015. Filed: Dec. 23, 2015.
638 Fed. Appx. 172
“The ultimate issue under [the Strickland prejudice] test reduces to determining what effect, if any, the erroneous instruction had on the jury‘s verdict.” Whitney v. Horn, 280 F.3d 240, 258 (3d Cir.2002). The Court‘s original jury instruction concerning Pagan was 191 words. The much shorter retraction essentially deleted the last two sentences of the original charge that related to Pagan, thus leaving the bulk of the original instruction intact. In what remained, the Court explained Pagan‘s arrangement with the Government, warned the jury to use “great care and caution” when considering Pagan‘s testimony, and expressly noted that Pagan‘s testimony “may have been influenced by his arrangement with the Government.” Regardless of whether Pagan was convicted or merely pleaded guilty and was awaiting sentencing, the jury was well aware that Pagan had an incentive to testify in a way that was favorable to the prosecution. Cegledi‘s insistence that the word “conviction” was essential and that the Court‘s terse retraction vitiated the lengthy and detailed original instruction is unreasonable. “[J]urors are presumed to follow the instructions given [to] them by the court.” Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir.2014). Accordingly, we decline Cegledi‘s invitation to assume that the jury considered only the two-line retraction and disregarded everything else they were told by the Court about Pagan‘s testimony.
In light of the multiple references to Pagan‘s guilty plea during trial and the District Court‘s jury charge explaining his deal with the Government, there is no reasonable probability that the result would have been different had Bosch objected to the retraction. Nor is it likely that we would have reversed and remanded if Bosch had raised the argument on appeal. Accordingly, Cegledi suffered no prejudice under Strickland, so we will affirm the order of the District Court.2
Mark A. Sindler, Esq., Pittsburgh, PA, for Defendant-Appellant.
Before: FISHER, HARDIMAN and ROTH, Circuit Judges.
FISHER, Circuit Judge.
Kenneth Townsend appeals his conviction for possession with intent to distribute less than 500 grams of cocaine and possession with intent to distribute 28 grams or more of crack cocaine. We will affirm his conviction. Townsend also appeals his sentence of 200 months’ imprisonment based on his conviction. We will vacate his sentence and remand to the District Court for resentencing.
I.
We write principally for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts that are necessary to our analysis.
In late 2011 through early 2012, the Federal Bureau of Investigation (“FBI“), in coordination with local law enforcement, began investigating heroin trafficking in the East Hills neighborhood of Pittsburgh, Pennsylvania. The FBI obtained court authorization to intercept Damon Boyd‘s communications. Although Boyd spoke in coded language and terms, Allegheny County Sheriff Deputy Shane Countryman was able to decipher Boyd‘s conversations and determine that Boyd was trafficking cocaine and heroin. Further surveillance revealed that Boyd and Carter Gaston were planning to pool their funds in order to purchase cocaine. Authorities observed Boyd and Gaston sitting in Boyd‘s Ford Expedition, which was parked in front of 303 Wyckoff Street—Townsend‘s residence. After entering and exiting the residence several times, the two men spent two hours inside before leaving. Soon after, Boyd communicated with others that he was selling cocaine.
In late January 2012, authorities learned that Boyd and Townsend intended to conduct another cocaine transaction on February 1, 2012. Deputy Countryman, FBI Special Agent David Hedges, and a local police officer followed Boyd and Gaston to Townsend‘s residence, where Boyd and Gaston remained inside for two hours before driving away in Boyd‘s Ford Expedition. Countryman decided that authorities would stop Boyd, while others continued to surveil Townsend‘s residence. Based on an outstanding arrest warrant, Boyd was arrested and removed from the vehicle. The passenger Gaston did not have a valid driver‘s license, and thus the car became the responsibility of the Allegheny County Sheriff‘s Office. Pursuant to the office‘s standard policies and procedures, Countryman conducted an inventory search of the car. After seeing the radio was loose, Countryman touched the radio, which caused it to fall off. Under the radio were two patties of crack cocaine that were still wet, indicating they were recently processed.
After the stop, Countryman applied for a search warrant to search Townsend‘s residence. Countryman described the source of the information as a “confidential source” and informed the presiding judge that the confidential source was the wire intercept. The affidavit of probable cause also described the stop and inventory search of Boyd‘s car and the authorities’ observations of Boyd and Gaston visiting Townsend‘s residence. Three hours later, the application was approved. Upon searching Townsend‘s residence, authorities found powder cocaine, baking powder,
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
A federal grand jury returned an indictment charging Townsend with possession with intent to distribute less than 500 grams of cocaine in violation of
At sentencing, Townsend‘s Presentence Investigation Report recommended that Townsend be sentenced as a career offender pursuant to the United States Sentencing Guidelines (“U.S.S.G.“)
II.
The District Court had jurisdiction under
III.
A.
Townsend first argues that the search warrant executed on his home was issued without a finding by a neutral, detached magistrate that probable cause existed. He claims that investigators did not adequately corroborate what was overheard through the wiretap surveillance.
In determining whether probable cause exists to support a search warrant, the duty of the reviewing court is “simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.”2 Probable cause exists when, “viewing the totality of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.‘”3
As the District Court correctly found, the issuing judge had a substantial basis for concluding that probable cause existed to support the search warrant. The affidavit described that a “confidential source,” which Countryman explained to the issuing judge was the wiretap surveil-
Townsend‘s arguments to the contrary are not persuasive. Townsend argues that there was no independent police corroboration. But this argument completely overlooks the authorities’ surveillance of Townsend‘s residence, their traffic stop and arrest of Boyd, and their discovery of the still-wet crack cocaine. He also argues that there is no support for the inference that still-wet crack cocaine indicates that it was recently processed. However, the issuing judge is entitled to “give considerable weight to the conclusions of experienced law enforcement officers.”4 Townsend further claims that the affidavit‘s statements that Boyd and Townsend are known drug dealers are bald-faced assertions. But even without those statements, the affidavit contained sufficient information to support probable cause for issuing the search warrant.
Even if there did not exist sufficient facts to support probable cause, the search would nonetheless be valid under the good faith exception: suppression of the evidence is not required, even in the absence of a valid search warrant, if the officer relied in good faith on the issuance of the search warrant.5 In this case, there are no facts to indicate that Countryman‘s reliance on the warrant was not reasonable or in good faith. Thus, the District Court did not err in denying Townsend‘s motion to suppress.
B.
Townsend next argues that Countryman acted outside of his legal authority in obtaining the search warrant because he is not authorized to investigate violations of the Pennsylvania Controlled Substance, Drug, Device & Cosmetic Act.6
Even if Townsend‘s interpretation of the Pennsylvania Controlled Substance, Drug, Device & Cosmetic Act were correct and a violation of state law occurred, the question here is whether the warrant is valid under the
C.
Lastly, Townsend makes several additional arguments pro se. First, he argues that the District Court erred in failing to conduct a Franks hearing to determine whether the information in the affidavit was stale and in violation of the
Finally, Townsend claims that his constitutional right to confront the witnesses against him was violated because FBI Special Agent Hedges—the affiant to the probable cause affidavit to conduct the initial wiretap surveillance—was not subject to cross examination. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”10 Townsend fails to identify any testimonial statements made by Hedges. Rather, Townsend appears to argue that Agent Hedges’ testimony was necessary to determine whether Countryman was reckless in his affidavit for probable cause to search Townsend‘s residence. But as already noted, Townsend was not entitled to a Franks hearing. Further, even assuming Hedges made testimonial statements and thus should have testified, any error was harmless, as there was more than enough probable cause to support the wiretap and search warrants.11 Therefore, we will affirm his conviction.
IV.
Townsend‘s final argument is that he should not have been sentenced as a career offender under the Guidelines in light of recent Supreme Court precedent.
Following Townsend‘s sentencing, on June 26, 2015, the Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), which held that the residual clause of the Armed Career Criminal Act (“ACCA“) is unconstitutionally vague. We requested supplemental briefing to address the relevance of the Supreme Court‘s decision to Townsend, who was sentenced under the career offender provision of the Guidelines,12 not the ACCA.
Although Johnson addressed the constitutionality of the ACCA and not the career offender provision of the Guidelines, the language of the residual clause in the ACCA is identical to the language in the Guidelines’ career offender enhancement, under which Townsend was sentenced.
Townsend‘s prior conviction for attempting to elude a police officer is not one of the enumerated crimes of violence in
V.
For the reasons set forth above, we will affirm Townsend‘s conviction and vacate Townsend‘s sentence and remand to the District Court for resentencing.