762 F.3d 297 (3rd Cir. 2014), 13-1863, United States v. Napolitan

Docket Nº:13-1863, 13-1936
Citation:762 F.3d 297
Opinion Judge:SMITH, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Appellant in No. 13-1936 v. RAYMOND A. NAPOLITAN, Appellant in No. 13-1863
Attorney:Rebecca R. Haywood, Donovan Cocas [ARGUED], Office of United States Attorney, Pittsburgh, PA, Counsel for United States of America. Lisa B. Freeland, Renee Pietropaolo [ARGUED], Pittsburgh, PA, Counsel for Raymond Napolitan.
Judge Panel:Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges.
Case Date:August 06, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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762 F.3d 297 (3rd Cir. 2014)

UNITED STATES OF AMERICA, Appellant in No. 13-1936

v.

RAYMOND A. NAPOLITAN, Appellant in No. 13-1863

Nos. 13-1863, 13-1936

United States Court of Appeals, Third Circuit

August 6, 2014

Submitted under Third Circuit LAR 34.1 (a); May 14, 2014

Argued May 14, 2014

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On Appeal from the United States District Court for the Western District of Pennsylvania. District Court No. 2-11-cr-00146-001. District Judge: The Honorable Arthur J. Schwab.

Rebecca R. Haywood, Donovan Cocas [ARGUED], Office of United States Attorney, Pittsburgh, PA, Counsel for United States of America.

Lisa B. Freeland, Renee Pietropaolo [ARGUED], Pittsburgh, PA, Counsel for Raymond Napolitan.

Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges.

OPINION

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SMITH, Circuit Judge

Raymond Napolitan was convicted in the United States District Court for the Western District of Pennsylvania of possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(B)(ii). He was subsequently sentenced to a term of imprisonment of 78 months, which the District Court ordered to run consecutively with a sentence Napolitan was already serving on a separate state offense. Napolitan appeals his conviction, arguing that a new trial is warranted because two of the Government's witnesses testified falsely at trial. The Government cross-appeals from the judgment of sentence, arguing that the District Court erred in refusing to impose sentencing enhancements under U.S.S.G. § § 2D1.1(b)(1) and 3C1.1. For the reasons expressed below, we will affirm Napolitan's conviction, but will vacate his sentence and remand for resentencing.

I.

On June 29, 2007, four police officers with the Southwest Mercer County Regional Police Department were dispatched to Napolitan's home in response to a 911 call. Although no one was at the home when the officers arrived, Lisa Rodemoyer--Napolitan's live-in girlfriend of seven years--arrived within a few minutes and invited the officers inside. Once inside, the officers discovered a loaded Browning .32 caliber handgun on the fireplace mantel. One of the officers cleared the weapon, then stepped into Napolitan's office to use the light from a desk lamp to read the serial number. There on the desk, the

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officer observed a box of sandwich baggies, a coffee grinder, a digital scale, and white powder residue. Suspecting drug activity, the officers departed Napolitan's home and obtained a search warrant.

In the search of the home that followed, the officers found a .22 caliber handgun sitting on top of a locked gun safe in a closet connected to the office. They also found a bag of Inositol, a cutting agent used by cocaine traffickers to dilute the drug. Unable to open the safe, investigators asked Corporal John Rococi, who had a prior relationship with Napolitan, to call Napolitan and ask for the combination. Rococi reported back that, in response to his request, Napolitan stated: " If they get into that safe, I'm hit." App. 127. Napolitan declined to provide the combination to the safe so that investigators had to engage a locksmith to open it.

The safe contained a variety of firearms, including a .25 caliber Dickson Detective semi-automatic handgun, a .32 caliber Colt semi-automatic handgun, six shotguns, ten long rifles, and one black powder rifle. It also contained $9,235 in cash, Napolitan's checkbook, and a variety of painkillers prescribed for Napolitan. Most importantly, it contained nearly one kilogram of cocaine powder.

Napolitan was arrested a few days later and subsequently charged in a two-count indictment with possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(B)(ii), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Napolitan chose to go to trial, and maintained that the drugs belonged to Rodemoyer. He took the stand in his own defense and admitted ownership of the safe and most of its other contents, but claimed that he did not know about the drugs. Although acknowledging that Rodemoyer did not know the combination to the safe, Napolitan claimed that she accessed it using a large skeleton key (between eight and twelve inches in length) which she had ordered directly from the manufacturer. Napolitan explained that Rodemoyer would insert this key into a slot that was revealed by unscrewing and removing the combination pad affixed to the front of the safe. Napolitan's defense also included the testimony of a longtime friend, Scott Trepanosky, who testified to having heard rumors that Rodemoyer sold cocaine in the past and that he had seen Rodemoyer open the safe with a skeleton key.

Prosecutors did not have knowledge of Napolitan's allegations against Rodemoyer at the time she testified for the Government. As a witness in the Government's case-in-chief, she conceded that she had never seen Napolitan deal drugs. She did state, however, that she heard him talk on the phone in coded language and that she was sometimes asked to leave the house she shared with him or stay in a bedroom when people came to the house. On direct examination, Rodemoyer testified that she neither knew the combination to the safe nor had access to its contents. She affirmed this position on cross-examination, providing the following response which is relevant to this appeal:

Q: Okay. And it is your testimony that you never had access to that safe?

A: Correct.

App. 77. And Rodemoyer repeated this position on re-cross:

Q: And again, you're telling us that you never went in that safe, and you couldn't have gotten in?

A: No. Q: That's what your testimony was? A: Yes.

App. 82. Significantly, neither the prosecution nor the defense asked Rodemoyer

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whether she had ever possessed a skeleton key that could have been used to access the safe.

Among the various other witnesses for the Government was Sergeant Charles Rubano, who testified concerning the contents of the safe and other items recovered during the search of the home. Relevant for purposes of this appeal, Sergeant Rubano provided the following testimony about finding a skeleton key inside the safe:

Q: And at some point did you find a key to that safe?

A: Yeah. The key was inside the safe. Q: You found no other keys? A: Correct.

App. 93.

Throughout the trial, the Government belittled Napolitan's claim that Rodemoyer obtained her own key to the safe. During its cross-examination of Napolitan, the Government pointedly asked how it was that Rodemoyer accessed the safe with a skeleton key when no such key had been recovered outside the safe. App. 211-12. The Government also rebuffed Napolitan's " key theory" during its closing argument to the jury:

Now, Mr. Napolitan said in his testimony that there were multiple keys. Did you see multiple keys here today? Did you see other keys to the safe that were possessed by Lisa or anyone else? This was a long skeleton type key. Clearly the police would have found and seized that.

App. 229.

The jury ultimately convicted Napolitan on count one, possession with intent to distribute more than 500 grams of cocaine. The jury did not consider the firearm charge in count two because the District Court granted Napolitan's Rule 29 motion for judgment of acquittal at the close of the Government's case-in-chief.1

The day before Napolitan was set to be sentenced, Rodemoyer contacted the prosecutor and informed him that, six to eight months before the drugs were discovered, she had in fact purchased a key to the safe from the manufacturer. The prosecutor immediately relayed this information to defense counsel. At the sentencing hearing, Rodemoyer testified that she had ordered the key because she had wanted to leave Napolitan--who was physically abusing her--but first needed to recover her driver's license, birth certificate, and Social Security card, all of which Napolitan kept locked in the safe. Rodemoyer claimed, however, that Napolitan found the key a few days later, punched her in the face, and took it away from her before she could use it. In response to defense counsel's questions, Rodemoyer explained that she did not inform the prosecutor about the key sooner because no one asked her at trial whether she herself had a key. Further, she explained that she was not alerted to the issue because she had not attended any aspect of the trial other than her own testimony and was thus not aware of Napolitan's allegation that she had accessed the safe with a key. App. 417-18.

Sergeant Rubano also testified at the sentencing hearing, revisiting his earlier

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trial testimony about the items discovered in the safe. Rubano reported that investigators had recovered two keys inside the safe:

Q: Other than the key found inside the safe, the key or keys found inside the safe, did you find any other keys?

A: No. Just the two keys. Q: So there are two keys in the safe? A: Special keys for opening safes, yes.

App. 430. Defense counsel asked Rubano whether he had testified at trial that only one key was recovered, but Rubano asserted that he did not remember making such a statement. He also stated that the two keys had not been noted on his inventory sheet because they were found after the initial search when investigators discovered a false bottom in the safe.

In light of the testimony offered at the hearing, the District Judge decided to have the parties brief any new issues, and he rescheduled the sentencing hearing for a later date. In the interim, Napolitan moved...

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