U.S. v. Gregg

• Decision Date: 12 September 2006
• Docket Number: Docket No. 03-1229 CR.
• Citation: 463 F.3d 160
• Parties: UNITED STATES of America, Appellee, v. Anthony GREGG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

463 F.3d 160

UNITED STATES of America, Appellee, v. Anthony GREGG, Defendant-Appellant.

Docket No. 03-1229 CR.

United States Court of Appeals, Second Circuit.

Argued: May 9, 2006.

Decided: September 12, 2006.

Joseph W. Martini, Southport, Connecticut (Pepe & Hazard LLP, New York, NY), for Defendant-Appellant.

Harry Sandick, Assistant United States Attorney, (Michael J. Garcia, United States Attorney for the Southern District of New York; Celeste L. Koeleveld, Assistant United States Attorney, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

FEINBERG, SOTOMAYOR, and HALL Circuit Judges.

PER CURIAM.

Anthony Gregg appeals from a judgment of conviction entered on April 11, 2003, in the United States District Court for the Southern District of New York (Preska, J.). Gregg was convicted of one count of unlawfully possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (the "felon-in-possession" charge). Gregg raises three arguments on appeal: (1) the district court improperly precluded the "innocent possession" defense to the felon-in-possession charge; (2) the district court improperly admitted into evidence certain post-arrest statements taken in violation of Miranda; and (3) the district court erred when it ruled that he had waived any Fourth Amendment challenges in his federal firearms case by pleading guilty to a prior state charge of criminal impersonation that arose from the same set of events that led to the federal gun charges. We have resolved Gregg's first two arguments by summary order, filed simultaneously with this opinion, and here address only the waiver issue.

Background

On March 20, 2001, at approximately 10:40 p.m., Gregg walked through a turnstile at the 167th Street subway station in the Bronx using a reduced fare Metrocard normally issued only to the elderly or disabled. As Gregg passed through the turnstile, New York City Police Officer Scott Miller, standing in a utility room near the turnstile, saw a red light on the turnstile illuminate. The red light indicated that Gregg had used a reduced fare or "disability Metrocard." Miller and his partner approached Gregg on the platform and asked to see his Metrocard. After Gregg presented the officers with a disability fare Metrocard that contained the name and photograph of his mother, Roberta Gregg, he was arrested for illegal use of the Metrocard ("theft of service," according to the arresting officers' terminology).

During the arrest process, Officer Miller patted down Gregg. As his hand passed over Gregg's waistband area, Officer Miller felt a "bulge" on the left-hand side. The officers recovered a. 380 Tanfoglio semiautomatic pistol. After recovering the gun, but before reading Gregg his Miranda rights, the police asked him how to remove the firearm's magazine. Gregg instructed them on where to find the release button.

Gregg was charged in state proceedings with criminal possession of a weapon in the third degree, but the grand jury refused to indict him on that charge. Having avoided that indictment, Gregg disposed of his state criminal charges by pleading guilty to a state charge of criminal impersonation in the second degree and serving a fifteen-day sentence. A federal grand jury subsequently returned an indictment against Gregg on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Prior to trial Gregg moved to suppress both the gun and certain statements he made to the police at the time of his arrest. Relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Gregg argued the police should never have stopped and questioned him that night on the subway platform because they did not have reasonable suspicion to believe that he had engaged in criminal behavior. Gregg contended his mere use of the Metrocard to pass through the turnstile gave the police no basis to suspect him of any criminality. Gregg asserted that the firearm and the statements should be suppressed because the investigative stop, the questioning, and the arrest violated the Fourth Amendment.

The district court, however, did not reach the substance of Gregg's Fourth Amendment claims. The district court denied Gregg's suppression motion, holding that "because he pleaded guilty on April 2, 2001 to the criminal impersonation offense for which the March 20 arrest was initially made, Gregg has waived any such Fourth Amendment challenges." The case went to trial and Gregg was convicted. He was sentenced to 77 months' imprisonment and three years of supervised release.

Discussion

This case requires us to determine if Gregg's plea of guilty to the state charge of criminal impersonation effectively waived any Fourth Amendment challenges to the subsequent federal felon-in-possession charge stemming from the same stop and arrest. The district court relied primarily on Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), to answer this question in the affirmative. We hold that Gregg did not waive his Fourth Amendment challenges to the federal charge on which he was indicted. Nevertheless, as explained below, we do not disturb the district court's denial of Gregg's motion to suppress the firearm. We write here, however, to clarify that Tollett does not support the broad "waiver" proposition adopted by the district court.

The district court held that "a defendant who enters a guilty plea in a criminal proceeding may not subsequently challenge the events that led up to that proceeding on Fourth Amendment grounds." The district court then cited several of this Court's precedents dealing with appealable waiver of constitutional challenges to preplea investigative misconduct by law enforcement, e.g., propriety of a search and seizure under the Fourth Amendment and existence of probable cause for an arrest. Gregg objected that "by failing to contest the constitutionality of his arrest in state court, [he did not] unequivocally waive[] all objections to that arrest in any context, including those that would be made in federal court on charges not extant at the time of the state proceeding." The district court responded that "[t]he reasoning of Tollett and its progeny applies with equal force here, even though Gregg pleaded guilty in state court and also was charged in federal court." Specifically, the court noted that "Gregg's plea in state court cannot be disregarded merely on the basis of the venue in which it was entered." In the district court's view, Gregg's situation was the result of litigation strategy, which always carries with it both risks and benefits. While Gregg benefitted by receiving a days-long sentence to a significantly lesser state charge of criminal impersonation, he also knowingly accepted the risk that subsequent more serious federal charges could result from the events that night. Thus, the district court reasoned that his failure to raise Fourth Amendment objections to the gun seizure during state proceedings on the criminal impersonation charge barred him from raising such objections on the gun possession charge in the federal forum.

The Supreme Court has instructed, however, that Tollett does "not rest on any principle of waiver." Haring v. Prosise, 462 U.S. 306, 321, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983). Rather, it rests on notions of relevance:

Our decisions in Tollett and the cases that followed simply recognized that when a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized. . . . Therefore, the conclusion that a Fourth Amendment claim ordinarily may not be raised in a habeas proceeding following a plea of guilty does not rest on any notion of waiver, but rests on the simple fact that the claim is irrelevant to the constitutional validity of the conviction.

Id.

As the Court has explained, a guilty plea does not "waive" constitutional challenges so much as it conclusively resolves the question of factual guilt supporting the conviction, thereby rendering any antecedent constitutional violation bearing on factual guilt a non-issue:

Neither Tollett . . . nor our earlier cases on which it relied . . . stand for the proposition that counseled guilty pleas inevitably "waive" all antecedent constitutional violations. . . . [I]n Tollett we emphasized that waiver was not the basic ingredient of this line of cases. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.

Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). Menna explains that a guilty plea conclusively establishes the factual predicate for the offense to which the defendant is pleading guilty. Therefore, at least on collateral attack of a judgment of conviction, under Tollett a petitioner may not assert pre-plea constitutional violations bearing on the valid establishment of his factual guilt. See Tollett, 411 U.S. at 266, 93 S.Ct. 1602. Whether that same guilty plea forecloses a future cause of action or legal proceeding, however, "`is to be determined on the basis of other principles, specifically, of collateral estoppel and the full faith and credit statute.'" Prosise, 462 U.S. at 310, 103 S.Ct. 2368 (quoting Prosise v. Haring, 667 F.2d 1133, 1136-37 (4th Cir.1981)). Prosise...