United States v. Lashley, 050113 FED3, 12-1578

Docket Nº:12-1578
Opinion Judge:FUENTES, Circuit Judge:
Party Name:UNITED STATES OF AMERICA v. STEPHEN LASHLEY, a/k/a Doe Stephen Lashley, Appellant
Judge Panel:Before: FUENTES, CHAGARES, and BARRY, Circuit Judges.
Case Date:May 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

STEPHEN LASHLEY, a/k/a Doe Stephen Lashley, Appellant

No. 12-1578

United States Court of Appeals, Third Circuit

May 1, 2013

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) March 22, 2013.

On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 09-cr-00307-001) District Judge: Honorable Michael M. Baylson.

Before: FUENTES, CHAGARES, and BARRY, Circuit Judges.

OPINION

FUENTES, Circuit Judge:

In this appeal, we are asked to consider whether the District Court erred in denying Stephen Lashley's motion to dismiss the indictment on the grounds of prosecutorial misconduct, denying his motion to suppress the testimony of a warrant officer, and in sentencing Lashley. For the reasons that follow, we will affirm.

I.

Between November 2006 and June 2007, Lashley trafficked guns from South Carolina to Philadelphia with the help of Jason Mack. Two of those guns were recovered at Philadelphia crime scenes—inside of a car that had been used in a carjacking and on an individual who had used it to kill a Philadelphia police officer. Mack pleaded guilty to certain charges and agreed to cooperate. His plea agreement stated that the Government would move for a downward departure at Mack's sentencing for his cooperation, and that the Government would move for a sentence reduction through a Federal Rule of Criminal Procedure 35(b) motion if Mack continued cooperating after sentencing. After testifying before a grand jury, resulting in Lashley's indictment, Mack was sentenced to three years' imprisonment.

In December 2009, Lashley proceeded to trial on charges of illegal transportation of a firearm and possession of a firearm by a convicted felon. Prior to trial, the Government failed to produce Mack's plea agreement or reveal the possibility of a Government motion for a sentence reduction. The Government produced Mack's grand jury testimony, which acknowledged a cooperation agreement, and Mack testified at Lashley's trial to receiving a three-year sentence but did not mention any potential reduction for further cooperation.

During closing arguments, the Assistant U.S. Attorney bolstered the reliability of Mack's testimony, emphasizing that Mack had admitted to his unlawful acts, received a significant sentence due to it, and had nothing to gain from testifying. She argued:

You have heard Jason Mack was charged with the illegal purchases by lying on forms of these guns, and he didn't get a slap on the wrist for it. And it's not like he's looking to benefit by virtue of his continued testimony to you. He's been sentenced to these offenses. He was sentenced to three years . . . . He could at this point come in and say, look, you know, I did it, I got caught, and the heck with all of you, I'm not talking about this anymore, but he did not do that. He came in and said I did it, I got caught...

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