765 F.3d 278 (3rd Cir. 2014), 13-2214, United States v. Brown

Docket Nº:13-2214
Citation:765 F.3d 278
Opinion Judge:SMITH, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. EBON P.D. BROWN, a/k/a E-MURDER Ebon P.D. Brown, Appellant
Attorney:Rebecca R. Haywood, Esq. [Argued], Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee. Kimberly R. Brunson, Esq. [Argued], Lisa B. Freeland, Office of Federal Public Defender, Pittsburgh, PA, Counsel for Appellant.
Judge Panel:Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges. SHWARTZ, Circuit Judge, concurring in part and dissenting in part. SHWARTZ, Circuit Judge, concurring in part and dissenting in part.
Case Date:August 27, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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765 F.3d 278 (3rd Cir. 2014)

UNITED STATES OF AMERICA

v.

EBON P.D. BROWN, a/k/a E-MURDER Ebon P.D. Brown, Appellant

No. 13-2214

United States Court of Appeals, Third Circuit

August 27, 2014

Argued: May 13, 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-00193-001. District Judge: The Honorable Joy Flowers Conti.

Rebecca R. Haywood, Esq. [Argued], Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Kimberly R. Brunson, Esq. [Argued], Lisa B. Freeland, Office of Federal Public Defender, Pittsburgh, PA, Counsel for Appellant.

Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges. SHWARTZ, Circuit Judge, concurring in part and dissenting in part.

OPINION

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SMITH, Circuit Judge.

Ebon Brown brings this appeal following his conviction in the United States District Court for the Western District of Pennsylvania of unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). He raises three arguments on appeal. First, he argues the District Court erroneously denied his motion to suppress the

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firearm recovered by law enforcement. Second, he argues that the District Court erroneously admitted, under Federal Rule of Evidence 404(b), evidence that he had previously obtained guns through a straw purchaser. And third, he argues that a new trial is warranted because the District Court permitted the prosecutor to make improper statements during closing arguments. 1 We are not persuaded by Brown's argument that evidence of the firearm should have been suppressed. We agree, however, that the District Court erred in admitting evidence of Brown's past firearm purchases and by overruling Brown's objection to the prosecutor's closing arguments. Because the Rule 404(b) error was not harmless, we will vacate the judgment of the District Court and remand for a new trial.

I.

In the early morning hours of March 23, 2011, four Pittsburgh Police Detectives--Judd Emery, Mark Adametz, Calvin Kennedy, and Thomas Gault--were patrolling Pittsburgh's Hill District in an unmarked police cruiser. As the detectives approached the intersection of Wylie Avenue and Duff Street, they observed a 2002 maroon Chevy Impala driven by Ebon Brown park near the intersection across the street from the Flamingo Bar, a nuisance bar where drug dealing and shootings regularly occur. All four detectives believed the Impala had been parked too close to the intersection in violation of 75 Pa. Cons. Stat. § 3353. See App. 115, 178, 191, 210.

The detectives stopped their cruiser in the middle of the street and watched as Brown and three other passengers exited the Impala. As Brown was stepping out, he looked in the detectives' direction and appeared to recognize their unmarked cruiser. Brown then sat back down in the Impala and made a motion which appeared consistent with removing an object from his waistband and placing it beneath the driver's seat. Brown then stepped out of the vehicle, closed the door, and walked in the direction of the Flamingo Bar. All four detectives testified that, based on their experience, they believed Brown had removed a gun from his person and attempted to conceal it under the driver's seat. See App. 117-22, 169, 205, 221-22.

The detectives exited the police cruiser and approached Brown and the other passengers. The detectives' badges were visible and they identified themselves as Pittsburgh police officers. Detective Gault began speaking with Brown and informed him that the Impala was parked in an illegal location. As this exchange was taking place, Detective Emery walked around to the passenger side of the Impala and shined his flashlight through the windshield. With the inside of the vehicle illuminated, Detective Emery observed " the grip and rear slide portion of a semi-automatic firearm sticking out from underneath the driver's seat." App. 172. Detective Emery immediately gestured to Detective Gault (by extending his thumb and index finger) that there was a gun in the vehicle. After seeing Detective Emery's gesture, Detective Gault grabbed Brown to prevent him from fleeing. The detectives then asked Brown whether he had a permit to carry the firearm. When Brown answered that he did not, they placed him under arrest.

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Detective Emery retrieved the gun from the Impala, cleared a round from the chamber, and placed it in the trunk of the detectives' cruiser. The detectives then performed pat-down searches of the other passengers, but found no weapons and did not place anyone else under arrest. At Brown's request, the detectives gave the keys to the Impala to another passenger, James Cole. Cole moved the Impala to a legal parking space, and then he and the others proceeded to the Flamingo Bar.

The Government charged Brown in a single-count indictment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Prior to trial, Brown filed a motion to suppress the evidence of the gun retrieved from underneath the Impala's seat. He argued that the police conducted an unlawful Terry 2 stop and that they did not have a lawful basis to search the vehicle. The District Court denied the motion to suppress, app. 1-20, and Brown proceeded to trial.

Brown's theory at trial was that the firearm belonged to his girlfriend, Brittney McCoy, and that she had left it beneath the seat of the Impala without his knowledge. McCoy testified for the defense and corroborated Brown's story. McCoy explained that she had borrowed the Impala from its owner, Cassandra Whitaker, on the evening of March 22, 2011, because she needed it for an appointment the following morning.3 App. 628-29. McCoy stated that immediately after borrowing the car, she removed the gun--which she had purchased for personal protection in August 20094--from her purse and placed it under the driver's seat. She then drove the Impala to Brown's house and parked it in the driveway directly behind Brown's car. According to McCoy, later that evening while she and Brown were trying to sleep, her nephew called and asked Brown to give his girlfriend a ride somewhere. Brown agreed and left in the Impala (because it was blocking his car in), not knowing the gun was under the seat. App. 632.

The Government maintained that Brown physically possessed the gun and placed it under the seat of the Impala after he spotted the police cruiser. The Government also argued that even though McCoy purchased the gun, she had really purchased it for Brown. To establish this claim, the Government sought to introduce under Federal Rule of Evidence 404(b) statements that Brown made nearly seven years earlier in 2005 admitting that he had used a straw purchaser to acquire firearms. In January 2005, Brown was arrested by Pittsburgh police for public urination. Pursuant to a lawful search of Brown's vehicle in connection with his arrest, police officers recovered a handgun and more than 250 stamp bags of heroin. After his arrest, Brown agreed to speak with agents of Pittsburgh's Bureau of Alcohol, Tobacco, Firearms, and Explosives

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(ATFE). Brown informed ATFE agents that he had repeatedly sold heroin to a " white male" who had agreed to buy firearms for Brown in exchange for the drugs. Brown claimed that the white male had purchased twelve guns on six different occasions, which Brown then sold to friends and relatives. Brown was later convicted of possession with the intent to distribute heroin and possession of a gun in furtherance of a drug trafficking crime. He was not charged with any crime related to the straw purchase transactions.

In a pretrial motion, Brown sought to exclude the statement he had made to the ATFE agents about using a straw purchaser to obtain firearms. In response, the Government argued the statement was " relevant to show that [Brown] did have the knowledge that there was a firearm in his car and that he knows what firearms are." App. 388. Further, the Government argued that these statements supported its theory that McCoy " straw purchased this firearm for [Brown]." App. 389. Brown countered that the statement would be relevant only for propensity purposes, merely showing that if he had used straw purchasers before, then he must have used McCoy as a straw purchaser for this gun. He also argued that the Government did not have any evidence that McCoy was involved in the earlier straw purchases or that she purchased this firearm in concert with Brown. App. 388.

After hearing from the parties, the District Court agreed with the Government and concluded that the evidence was relevant " to show motive or knowledge and that type of thing along those lines." App. 390. However, the Court concluded the statements would be admissible only if McCoy took the stand and testified that she had purchased the firearm for personal purposes. App. 388, 431-33, 650-52. The Court also limited the manner in which the evidence could be introduced, allowing the Government to introduce only a stipulation that Brown used straw purchasers to acquire guns. The parties agreed to the language of a stipulation, which was read to the jury at the close of evidence. The stipulation provided: " The defendant acknowledges using straw purchasers/third parties to purchase firearms for him in the past." App. 683. Despite Brown's agreement to the language of the stipulation, the Court noted his continuing objection to its admissibility under Rule 404(b).

During summation, defense counsel argued that there was a gap in the prosecution's case because there was no fingerprint evidence connecting Brown to the gun. Defense counsel stated that " none of us would have to be here today if there had been a fingerprint analysis because it would show what you already know,...

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