United States v. Gallman
| Decision Date | 09 January 2023 |
| Docket Number | 21-2294 |
| Parties | UNITED STATES of America v. Stacy GALLMAN, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Keith M. Donoghue [Argued], Brett G. Sweitzer, Leigh M. Skipper, Andrew Moon, Federal Community Defender Office, for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for the Appellant
Jennifer Arbittier Williams, Robert A. Zauzmer, Ashley N. Martin [Argued], Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for the Appellee
Before: HARDIMAN, PORTER, and FISHER, Circuit Judges.
Stacy Gallman appeals his judgment of conviction following a jury trial. He claims the District Court erred when it: (1) closed part of his trial to the public in violation of the Sixth Amendment; and (2) admitted evidence of his prior felony conviction. Neither argument is persuasive, so we will affirm the judgment of the District Court.
This case arises from a traffic stop in Philadelphia, Pennsylvania. Two police officers, Joshua Kling and Thomas Nestel, stopped Gallman after they saw him run a stop sign. When Nestel approached Gallman's passenger, Nafese Kelly-Sizer, he saw a firearm magazine sticking out of Kelly-Sizer's pants pocket. Nestel handcuffed Kelly-Sizer and recovered a firearm from his waistband. After the firearm was recovered, Kling removed Gallman from the driver's seat and frisked him, uncovering nothing. Before returning to search the vehicle, Kling handed a handcuffed Gallman to Jesse Rosinski, an officer who had joined the stop with his partner, Zachary Stout. Rosinski brought Gallman to the patrol car and placed him in the back seat. Meanwhile, Kling discovered a firearm at the base of the driver's seat, so he asked Rosinski to remove Gallman from the patrol car to search him again. Upon doing so, Rosinski noticed a firearm magazine in the backseat of the patrol car that had not been there before. The officers later recovered more ammunition from Gallman's car.
Gallman, who had a prior conviction for first-degree robbery, was charged with one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Prior to trial, Gallman unsuccessfully moved to suppress the evidence recovered from the traffic stop. During the suppression hearing, the Government informed the District Court that there was an open Philadelphia Police Internal Affairs Division (IAD) investigation about Rosinski's failure to call a supervisor to a traffic stop. Following the hearing, the Court asked the Government to subpoena the IAD investigator so the Court could question him outside the presence of the jury. The Government agreed to do so. Separately, the Government emailed the Court ex parte , attaching an IAD memorandum regarding a racial profiling complaint against Rosinski and Stout for the Court to review in camera . The Government advised that the matter was closed prior to Gallman's arrest and that the allegation of racial profiling was unfounded. The Government also argued that the information was not discoverable under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) or Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
Gallman was tried in June 2021 according to a COVID-19 protocol adopted by the United States District Court for the Eastern District of Pennsylvania. The trial was conducted in one courtroom and video streamed to another (courtroom 7B), where members of the public and Gallman's family were seated. The Sixth Amendment issues on appeal arise from the alleged lack of a public video stream during two proceedings on the second day of trial.
The first challenged proceeding occurred after the jury had been selected and sworn. Before the jury was brought in for preliminary instructions and opening statements, the Court asked Gallman whether he wanted to stipulate to the fact of his prior felony conviction for first-degree robbery. The Court explained that if Gallman stipulated that his prior conviction was for a crime punishable by more than a year in prison, "that's the only thing the jury is going to hear." App. 723. The Court cautioned Gallman to think "very carefully" and consult his attorney about whether he wanted the jury to know the details of his prior conviction. App. 723. In response, Gallman stated App. 724.
The Court then advised Gallman that the Government had disclosed ex parte potential Brady or Giglio material: a formal complaint against Rosinski and Stout for racial profiling. The Court explained that the complaint had not been sustained; the IAD found only that the officers failed to maintain their patrol log, and the investigation was closed two months prior to Gallman's arrest. The Court then ruled that, based on its in camera review, the Government did not have to turn over the IAD investigative file to Gallman.
Gallman asked the Court whether he could cross-examine Rosinski and Stout about the racial profiling allegations. The Government opposed that request because the complaint was unfounded. Gallman responded that it was up to the jury to weigh the officers' credibility. The Government then pointed out that Rosinski and Stout were "backup officers" for Gallman's search and arrest. Though Gallman disputed that characterization, the Court agreed with the Government, noting that it "might be a different scenario if we were dealing with the two officers that actually conducted the stop." App. 733–34. The Court also found it "important" that the IAD complaint "was not founded at all." App. 734. So the Court did not allow Gallman to cross-examine Rosinski and Stout about the racial profiling allegations.
The record does not expressly indicate whether the video stream to courtroom 7B was on during the proceeding just described. And although the transcript of the proceeding was sealed, it is unclear whether that occurred at the behest of one or both parties, or the Court.
The second closed proceeding occurred later that same day, after the Court excused the jury for lunch. It too involved an IAD investigation, but this one remained pending and involved Rosinski alone. The Court called a lieutenant from the IAD, Dennis Keenan, into the courtroom for questioning about the investigation. After an inadvertent interruption by a juror at the start of the questioning, the Court stated App. 182. Gallman's counsel responded: "I didn't know if there was anything that the Government wanted to seal." App. 182. In response, the Government moved to seal Keenan's testimony because it concerned "an open investigation." Id. The Court then stated Id. Gallman's counsel did not object.
Upon questioning by both parties and the Court, Keenan testified that he investigated a complaint that Rosinski failed to call a supervisor to a traffic stop. Keenan added that the complaint was unfounded because Rosinski's partner had called a supervisor to the scene. But Keenan's superiors had not yet approved his report, so the matter remained open. After the questioning, the Government withdrew its motion to seal the transcript.
Gallman's trial lasted four days. Before admitting evidence regarding Gallman's prior conviction, the Court gave him another chance to stipulate. Gallman declined. The Government then introduced certified copies of Gallman's fingerprint card from his prior conviction and of the conviction itself. The Government also read into the record that Gallman "was convicted of first degree felony robbery and was sentenced to a term of not less than five years and not more than ten years of incarceration." App. 501. Before the prior-conviction evidence was introduced, the Court instructed the jury that it could not consider the evidence for any purpose except to prove that Gallman had been convicted of a crime punishable by imprisonment for a term exceeding one year. The jury found Gallman guilty on one count of violating § 922(g)(1) and the Court sentenced him to 42 months' imprisonment. Gallman timely appealed.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. Because Gallman did not object to the closure of the two proceedings by the District Court, plain-error review applies to his argument that those closures violated his Sixth Amendment right to a public trial. United States v. Williams , 974 F.3d 320, 340 (3d Cir. 2020). We review the District Court's decision to admit the evidence of Gallman's prior conviction for abuse of discretion. United States v. Starnes , 583 F.3d 196, 213–14 (3d Cir. 2009).
We first consider whether the District Court committed plain error in violation of Gallman's Sixth Amendment public-trial right by closing two proceedings to the public. To succeed on plain-error review, Gallman must show: (1) an "error" that (2) is "plain" and (3) "affects substantial rights." United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (alteration omitted) (quoting Fed. R. Crim. P. 52(b) ). If all three conditions are satisfied, it is "within [our] sound discretion" to correct the error—but only if it (4) "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (alteration omitted) (quoting United States v. Young , 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) ).
Did the District Court err when it closed the two proceedings?1 This is a close question on the facts of this case, which involve a jury trial conducted during a pandemic.
The Sixth Amendment requires that "[i]n...
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