223 F.3d 208 (3rd Cir. 2000), 99-5195, United States v Scott

Docket Nº:99-5195
Citation:223 F.3d 208
Case Date:August 02, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 208

223 F.3d 208 (3rd Cir. 2000)




No. 99-5195

United States Court of Appeals, Third Circuit

August 2, 2000

Submitted Under Third Circuit LAR 34.1(a) July 18, 2000

On Appeal from the United States District Court for the District of New Jersey District Judge: Hon. Stephen M. Orlofsky (D.C. Crim. No. 98-cr-00011)

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Attorney for Appellant: Richard M. Roberts West Orange, New Jersey 07052

Attorneys for Appellee: Robert J. Cleary United States Attorney Newark, New Jersey 07102-2535, Norman Gross Assistant United States Attorney On the Brief Camden, New Jersey 08101-2098

Before: BECKER, Chief Judge, SLOVITER and NYGAARD, Circuit Judges


SLOVITER, Circuit Judge.


Timothy Scott, who was found guilty by a jury of being a former felon in possession of a firearm in violation of 18 U.S.C. S 922(g), appeals, complaining of the District Court's denial of his motion to dismiss the indictment, of certain evidentiary rulings, and of the court's allowance of a government witness's redirect examination.


Scott was arrested on April 13, 1997 by New Jersey police officers Eugene Kennedy and Eric Ingold who found him near the scene of a disturbance in possession of a loaded .45 caliber semi-automatic handgun.1 Scott was then taken to the police station for processing, during which he was directed to remove certain articles of clothing. At that time, Scott made several statements to the effect of: "why are you trying to put this on me, I didn't have no gun." App. at 593-94. Indeed, whether Scott had a firearm or ammunition within S 922(g) was the principal contested issue in the case. While Scott was removing his right boot at the police station, a .45 caliber bullet fell to the floor, and in response Scott blurted out "Oh, shit." Thereafter, Scott ceased denying having possessed the weapon. App. at 591-95.

Scott was indicted by a federal grand jury for violation of 18 U.S.C. S 922(g).2

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Scott stipulated at trial that he was a convicted felon and that the weapon and ammunition in question was moved in interstate commerce.

On January 21, 1998, the District Court entered an order requiring the government to make available any relevant written or recorded statements or confessions made by Scott. The government represented in a pre-trial brief filed in June 1998 that it did not possess any such statements made in response to interrogation by law enforcement officers. Shortly before the trial was scheduled to begin, the Assistant U.S. Attorney discovered and disclosed notes of his predecessor regarding the "Oh, shit" remark. Scott filed a motion to suppress the statements he made during processing denying he had been carrying a gun and the "Oh, shit" remark that he made when the bullet fell out of his boot. Scott contended that the delayed disclosure of the post-arrest statements constituted a violation of the discovery order and Fed. R. Crim. P. 16(a)(1)(A). The District Court held a suppression hearing and thereafter denied the motion to suppress but ordered a one week continuance to allow Scott's counsel time to prepare to address the statement.

In the course of trial preparation, Scott secured the transfer from a New York prison of Raymond Smith to testify on his behalf by use of the ex parte procedure provided by Fed. R. Crim. P. 17(b). The Assistant U.S. Attorney, unfamiliar with Rule 17(b) and its process, learned of the presence of Smith, a possible defense witness then...

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