U.S.A v. Lee

• Citation: 612 F.3d 170
• Decision Date: 14 July 2010
• Docket Number: No. 08-4427.,08-4427.
• Parties: UNITED STATES of Americav.Joseph R. LEE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

612 F.3d 170

UNITED STATES of Americav.Joseph R. LEE, Appellant.

No. 08-4427.

United States Court of Appeals, Third Circuit.

Argued Jan. 29, 2010.

Filed: July 14, 2010.

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Renee Pietropaolo, [Argued], Federal Public Defender's Office, Pittsburgh, PA, for Appellant.

Robert L. Eberhardt, Rebecca Ross Haywood, [Argued], United States Attorney's Office, Pittsburgh, PA, for Appellee.

Before: RENDELL and JORDAN, Circuit Judges, and PRATTER, District Judge.^*

OPINION OF THE COURT

JORDAN, Circuit Judge.

Joseph R. Lee was convicted in the United States District Court for the Western District of Pennsylvania of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced as a career offender to 120 months' imprisonment. He appeals both the conviction and his sentence. For the following reasons, we will affirm Lee's conviction but vacate his sentence and remand for re-sentencing.

I. BackgroundA. The Stop

On June 27, 2005, Lieutenant Kevin Kraus of the City of Pittsburgh Police Department traveled to the 2400 block of Webster Avenue in the Hill District of Pittsburgh, Pennsylvania to investigate a homicide that had occurred there the day before. Kraus was in an unmarked police car when he observed Lee, driving a blue Jeep Grand Cherokee, run a stop sign.¹

Kraus activated his siren and followed Lee to stop him for the traffic violation. Lee abruptly pulled over, and, according to Kraus, began making “rapid, suspicious movements,” and reaching “down towards his torso area” as Kraus approached the car on foot. ( Id. at 349.) All of the windows of the Jeep were down and the sunroof was open. Kraus scanned the car, and noticed a “rather large black heavy coat ... [with] a distinctive flap on the top” in the backseat of the Jeep. ( Id. at 351.) He also noticed that the coat “appeared to be partially wrapped around ... a long, narrow object.” ( Id. at 351-52.) He took particular note of the coat because the temperature was over 90 degrees that day. Kraus further observed that Lee was wearing a tan bullet-proof vest and was not wearing a shirt. Lee volunteered that he had been trying to take off the bulletproof vest. Kraus ordered him to raise his hands above his head and place them where Kraus could see them. According to Kraus, at that moment, he saw what he believed to be a black semi-automatic pistol lying on Lee's right thigh. After seeing the object, Kraus drew his own gun and told Lee: “Get your hands in the air. Don't move.” ( Id. at 353-54.) In response, Lee grabbed the steering wheel, said that he had to go, and sped away from the scene.

Kraus called the police dispatcher, reported that he had an emergency, and provided a description of Lee and the Jeep. Shortly thereafter, Kraus learned that another officer had found a Jeep Grand Cherokee matching the description of Lee's car. It was in a parking lot at the rear of the Christopher A. Smith Terrace Apartments (the “Apartments”), about a tenth of a mile from where Kraus had stopped Lee. Lee later stipulated that he abandoned the Jeep where the police found it. B. The Search

Kraus went to the parking lot at the Apartments and identified the Jeep as the one that he had earlier stopped and in which Lee had fled. All the windows were still down and the sunroof remained open. The bullet-proof vest was lying on the passenger side of the vehicle. However, the coat and long slender object that Kraus remembered seeing in the backseat were no longer there. Four other officers were at the scene to aid Kraus in the investigation. During a search of the area, one of them, Kevin Faulds, found an AK-47 assault rifle beside a fence separating the Apartments from the next door Francis Court Housing Complex (the “Housing Project”). Kraus joined Faulds by the fence and observed the AK-47 partially covered in a black coat with a distinctive flap, lying against the fence. Kraus identified the black coat as the one he had seen in Lee's Jeep.

A police bloodhound named Digger and his handler, Officer Rudolph Harkins, soon arrived at the scene. Kraus informed Harkins that the other officers had already located the Jeep, rifle, and coat. Harkins gave Digger the scent of the Jeep's driver by wiping the driver's seat with a swab, offering the swab for Digger to smell, and giving the dog a command to track the scent. Digger then went down a flight of steps, through a parking lot, and came to within ten to fifteen inches of the rifle and the coat. According to Harkins, Digger then “veered to the right along the fence, [and] went down the fence line approximately 20, 25 feet.” (App. at 458.) Digger found an area of the fence that had been ripped open, went through the opening, and continued towards the Housing Project on the other side of the fence. He stopped in front of the door of a vacant building in the Housing Project, and, at that point, circled and sat down, indicating that he had lost the scent. The building was searched, but Lee was not found.

C. The Arrest

Approximately two weeks later, on July 12, 2005, Kraus learned that fellow police officers had caught sight of and were pursuing Lee. They finally found him hiding in an apartment. No weapons or contraband were found on Lee at the time of his arrest, nor in the apartment where he was found. The police arrested him, took him to an interview room at the police station, and gave him Miranda warnings. He signed a form waiving his Miranda rights, and Kraus proceeded to interview him. Lee denied having any guns in his car when Kraus stopped him. However, he acknowledged that he had been wearing a bulletproof vest. He said that he had started to take off the vest as Kraus approached the car because he wanted to create a diversion so that Kraus would not see a bag of marijuana that was in the car. Lee further explained that he drove away when Kraus drew his gun because he thought Kraus had drawn the gun in reaction to seeing the bag of marijuana. Kraus told Lee that he had not seen any marijuana but rather had seen a black semi-automatic pistol on Lee's lap. Lee responded that what Kraus had seen was actually a “black and silver cell phone flip-style open and extended on his lap.” (App. at 414.)

According to Kraus, Lee “insisted that he does not typically own or carry guns. However, he did state that he had access to a lot of guns and would use them against anyone who threatens him or his family.” ( Id. at 417.) Lee also said that he had previously shot at a man named Ernest “Pickles” Harris and that there was a “long time, ongoing violent feud” between their two families. ( Id.) Finally, while Lee insisted that he did not have any weapons with him during the traffic stop two weeks earlier, he admitted fleeing when Kraus had tried to stop him on an earlier occasion in 2000 or 2001 when Lee did have guns in a vehicle.

D. Procedural History

On May 3, 2006, a grand jury in the Western District of Pennsylvania returned a one-count indictment charging Lee with being a felon in possession of two firearms, a rifle and a pistol, in violation of 18 U.S.C. § 922(g)(1). ² The rifle referred to in the indictment is the AK-47 that was found lying by the fence under a black coat, near the location of Lee's abandoned car. The pistol is what Kraus had allegedly seen on Lee's lap, although no such pistol was ever recovered.

Prior to trial, Lee filed several motions, including a motion to suppress audio tapes of his interviews, a motion to exclude the bloodhound evidence and for a Daubert hearing to test the admissibility of that evidence, a motion under Rule 404(b) to exclude the evidence of the bullet-proof vest and Lee's interview statements to Kraus, and a motion for judgment of acquittal with regard to the pistol on the jurisdictional ground that the pistol was not a firearm in or affecting interstate commerce. With the exception of a limited portion of the 404(b) motion that is not relevant to this appeal, the District Court denied all of Lee's motions.

At trial, over Lee's objection, the government introduced the statements that Lee made during his interview with Kraus and evidence that Lee was wearing a bullet-proof vest when he was stopped. Additionally, over objection, the dispatch tapes were played, and a transcript was provided to the jury. Finally, over objection, the District Court admitted evidence of Digger's efforts to track Lee. However, in light of a dispute over whether Digger had alerted at the coat and rifle, the Court noted that the government “agreed to eliminate any reference in the testimony that Digger paused” when he reached them. (App. at 2.)

At the close of the government's case, Lee moved for judgment of acquittal with respect to his alleged possession of the pistol. Even assuming that what Kraus had seen was a pistol, Lee argued, there was no evidence that the pistol had ever traveled in interstate commerce, as is required under 18 U.S.C. § 922(g). The Court denied the motion, and denied it again when defense counsel renewed it at the close of all evidence.

Throughout trial, Lee's defense with regard to the rifle was that it had never been in his Jeep and that he was not the person who disposed of it. Specifically, “[t]he defense (1) attacked the reliability of [Kraus's] observations, (2) offered evidence that others had an opportunity to have hidden the rifle in that crime-ridden area, ... and (3) stressed the complete absence of physical evidence tying Lee to the weapon and coat.” (Appellant's Op. Br. at 63.)

The District Court instructed the jury that a conviction could be based on a finding that Lee possessed either a pistol, or a rifle, or both. The Court and the prosecutor told the jury that unanimity was required on any finding of possession as to either weapon, and jury interrogatories treated each weapon as a separate basis of criminal liability. On June 19, 2008, the jury found Lee guilty of possessing the...