United States v. Steiner

• Decision Date: 01 February 2017
• Docket Number: No. 14-4628,14-4628
• Citation: 847 F.3d 103
• Parties: UNITED STATES of America, v. Thomas David STEINER, Appellant
• Court: U.S. Court of Appeals — Third Circuit

847 F.3d 103

UNITED STATES of America,

v.Thomas David STEINER, Appellant

No. 14-4628

United States Court of Appeals, Third Circuit.

Originally Argued: November 6, 2015

On Remand from the Supreme Court of the United States November 28, 2016

Submitted on Appellant's Motion to Summarily Remand and Parties' Supplemental Submissions December 30, 2016

Opinion on Remand Filed: February 1, 2017

W. Penn Hackney, Renee Pietropaolo [Argued November 6, 2015], Office of Federal Public Defender, 1001 Liberty Avenue, 1500 Liberty Center, Pittsburgh, PA 15222, Counsel for Appellant Thomas David Steiner

Rebecca R. Haywood, Jane M. Dattilo [Argued November 6, 2015], Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee United States of America

Before: FUENTES,^* JORDAN, and VANASKIE, Circuit Judges

OPINION OF THE COURT

FUENTES, Circuit Judge.

This case returns to us on a "grant, vacate, and remand" ("GVR") order of the Supreme Court of the United States. Our earlier precedential opinion and judgment of March 3, 2016 had affirmed defendant-appellant Steiner's conviction for possession of ammunition by a convicted felon (18 U.S.C. § 922(g)(1) ).¹ We did not reach challenges to Steiner's sentence, as he had not raised any.

The Supreme Court's GVR order² instructs us to reconsider our decision in light of Mathis v. United States ,³ the Court's latest case about predicate offenses and the "categorical approach." We asked the parties to file short supplemental statements addressing both the impact of Mathis on our previous opinion and the merits of Steiner's Mathis challenge more generally; Steiner also separately moved to remand for expedited resentencing. Both Steiner and the government agree that Mathis did not affect the validity of our earlier decision affirming Steiner's conviction. They also agree that it does affect Steiner's sentence; the District Court used a 1993 Pennsylvania burglary conviction as a predicate "crime of violence" under the United States Sentencing Guidelines, which the government now concedes was plain error.

Because we agree with the parties that, under Mathis , Steiner's 1993 burglary conviction was not a predicate "crime of violence" under the Guidelines—and, thus, that his Guidelines range should not have been enhanced—we will grant Steiner's motion for summary action, vacate the District Court's judgment of sentence, and remand for expedited resentencing. Steiner is to be released from federal custody pending resentencing, subject to the supervised release terms contained in the District Court's judgment of sentence. And because our previous precedential opinion was not at all affected by Mathis , we will once again affirm Steiner's conviction. We therefore revise and reissue below our previous precedential opinion as altered by our Mathis discussion and the alternative disposition it requires.

I. BACKGROUND ⁴

A. INTRODUCTION

During the execution of two separate search warrants at properties that police believed were owned or occupied by defendant Thomas Steiner, police seized, among other things, a sawed-off shotgun, .32 and .38 caliber ammunition, and 12 gauge shotgun ammunition. As a result, Steiner was indicted on two counts for being a felon-in-possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). Following a 4-day trial, he was convicted on one count of felony-possession of ammunition and sentenced to an 87-month prison term.

During the trial, the government introduced into evidence the fact that a warrant had issued for Steiner's arrest on an unrelated charge. Steiner contends that the District Court improperly admitted evidence of the arrest warrant that was unrelated to the offenses he faced at trial. He also argues that the District Court erred by failing to instruct the jury that it was required to reach a unanimous verdict as to each type of ammunition seized. While we conclude that the admission of the unrelated arrest warrant was error, the error was harmless. We also conclude that the District Court did not err when it declined to provide a unanimity instruction. For the reasons that follow, we will affirm the conviction. As intervening Supreme Court precedent has affected the validity of Steiner's 87-month sentence—an error that the government concedes is worthy of remand—we will vacate the judgment of sentence and remand for expedited resentencing.

B. STING OPERATION, SEARCH, AND INDICTMENT

This case arises from a sting operation. In August 2007, police informant Timothy Stants told Pennsylvania State Trooper Thomas Baumgard that Thomas Steiner, a convicted felon, was staying on his (Stants') property and was "on the run" from law enforcement. Stants also claimed that Steiner had a sawed-off shotgun, which Steiner had described to him as a "cop killer," and that Steiner said he would use the gun to avoid being arrested. Stants claimed that the shotgun would be found in a camper on Stants' property.

Based on Stants' tip, Baumgard obtained a search warrant for the camper. Before executing the warrant on August 27, 2007, Baumgard paid Stants $100 for his help in securing Steiner's arrest and told Stants to drive Steiner to a nearby gas station. There, officers would be waiting to arrest Steiner on a warrant that had issued for Steiner's arrest for failure to appear at a preliminary hearing scheduled that same day, on an unrelated sexual assault charge. Baumgard conducted his search of the camper in the afternoon, just after Stants drove Steiner away to the gas station. He found, among other things, a sawed-off shotgun loaded with six rounds of 12-gauge shotgun ammunition; a wallet containing various documents, all bearing Steiner's name; and a discharged shotgun shell. Soon after the search, Baumgard ordered Steiner arrested on the warrant issued for his failure to appear at the preliminary hearing earlier that day. At the time of his arrest, Steiner was in Stants' car at a nearby gas station.

Apparently, there was more to the story than the gun and ammunition found in the camper. Stants also told police that he had seen the missing pieces of the sawed-off shotgun (part of the barrel and stock) at a home that Steiner supposedly owned, located at Meadow Avenue (the "home" or the "Meadow Avenue home"). Based on Stants' tip, police obtained another search warrant, this time for the home.

Police executed the search warrant for the home on August 29, 2007. When they arrived, they entered the basement of the home, which was in disarray.⁵ There, they found a shotgun stock on the bar and a shotgun barrel in the ceiling where a tile was missing.⁶ Also, they discovered a hacksaw and pipe wrenches on the basement floor and a single 12-gauge shotgun shell in a pocket of the pool table. Four other 12-gauge shotgun shells were found in a bowl, on top of which was Steiner's notice of impending warrant of arrest. In addition to the shotgun ammunition, the police also discovered a variety of other types of ammunition, including 20 rounds of .32 caliber ammunition and 17 rounds of .38 Special ammunition.

Based on the shotgun and ammunition found in the camper, a grand jury charged Steiner with one count of being a felon-in-possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). A superseding indictment was filed several months later, adding a second count charging Steiner with a violation of § 922(g) based on the ammunition found in the home.

C. THE TRIAL

1. Testimony

The government's case against Steiner proceeded to a jury trial.⁷ At trial, Steiner stipulated to having a prior felony conviction. He testified in his own defense and denied that he ever owned or possessed the shotgun or ammunition seized from either the camper or the basement of the home. Steiner also acknowledged that he owned the wallet found in the camper and admitted that he owned the Meadow Avenue home at some point in 2007.

Steiner's ex-wife, Greta Steiner, was called as a witness. She testified that although she had been living at a different address in 2007, she occasionally stopped at the Meadow Avenue home to retrieve her belongings. She also testified that during these visits she saw neither firearms nor ammunition in the home but she recalled having stored boxes of antique ammunition that belonged to her deceased ex-husband in the home's garage. She denied that anyone ever brought the ammunition into the home and claimed that Steiner was unaware of the ammunition. Neither Steiner nor the government presented evidence about whether the ammunition stored in the garage may have been moved to the basement.

Mark Williams, Stants' close friend, testified for the government. Williams claimed that he had been inside Steiner's home in August 2007 because he was interested in purchasing the property.⁸ At that time, Williams said that he noticed the shotgun barrel and the hacksaw laying on a homemade bar and pointed them out to Stants. Williams also claimed that Steiner told him that he "wouldn't go easy" if the police tried to arrest him.

Stants also testified. He denied receiving any benefit for his help in securing Steiner's arrest, despite Baumgard's testimony that he had paid Stants $100 for his assistance. He also corroborated Williams' testimony regarding the basement of the home and admitted that he had visited Steiner's home twice in Steiner's absence.

2. The Government's Arrest Warrant Evidence

During Steiner's trial, the government introduced the arrest warrant that had issued based upon Steiner's failure to appear on the sexual assault charge. The government argued that the arrest warrant,⁹ though not the underlying conduct, was admissible to show that Steiner "was on the run from law enforcement at the time, hiding out in this trailer," and was intending to "evade the warrant and not appear" at the preliminary hearing because "[t]hat's what led officers to his trailer in the first place."¹⁰ The government claimed that the arrest warrant "complete[d] the...