United States v. Telfair
| Decision Date | 12 December 2012 |
| Docket Number | No. 11-3456,11-3456 |
| Parties | UNITED STATES OF AMERICA v. TOMMIE TELFAIR a/k/a "Hassan Gatling", Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court
for the District of New Jersey
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 11, 2012
Before: GREENAWAY, JR., and NYGAARD and VAN ANTWERPEN, Circuit Judges
Tommie Telfair a/k/a "Hassan Gatling" ("Telfair") appeals from a judgment of conviction for violations of 21 U.S.C. § 846, 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. His court-appointed counsel has filed a motion to withdraw and a brief insupport of his motion ("Anders brief") pursuant to Anders v. California, 386 U.S. 738 (1967) and Local Appellate Rule ("L.A.R.") 109.2(a). Though counsel's Anders brief should have been more thorough, our independent review of the record reveals no nonfrivolous issues on appeal. Accordingly, we will grant counsel's motion to withdraw and affirm the judgment of the District Court.
On September 5, 2006, the Newark Police Department received a call that shots had been fired at 185 Parker Street, Newark, New Jersey. Jennifer Filpo ("Filpo") and Catherine Sanchez ("Sanchez"), two of the occupants of 185 Parker Street, were at the residence when police arrived, and informed the police that they had called 911 because someone shot at the rear of the residence. Filpo and Sanchez allowed the police into the residence. The police proceeded to the kitchen area in the rear of the premises, where they found bullet holes in the door between the kitchen and the backyard, and damage from gunfire in the kitchen. Detectives from the robbery unit arrived and found shell casings in the backyard near the kitchen door. Detective Pablo Gonzalez noticed bullet holes on the refrigerator, and opened it in search of evidence of the shooting. Inside the refrigerator, he saw a projectile and, in a separate drawer, two clear containers holding what appeared to be heroin. The detective seized the containers and performed a field test on the substance. The substance tested positive for heroin.
Detective Luigi Corino noticed a bullet hole in the kitchen floor, and traced the trajectory to locate the projectile. He concluded the bullet traveled into the basement. After asking Filpo and Sanchez how to get into the basement, the detective followed the bullet's trajectory and discovered that it had traveled into a room that was behind a locked door. After Filpo and Sanchez indicated they did not have a key to that door, Corino forced it open. Behind the door, Corino discovered a heroin mill.2 Filpo and Sanchez were arrested and taken into custody. In total, 130 grams of heroin were found at 185 Parker Street.
The Drug Enforcement Administration ("DEA") was notified that a heroin mill had been found at 185 Parker Street. DEA agents interviewed Filpo and Sanchez, who both identified Telfair as the owner or controller of the heroin mill. The DEA obtained a warrant to search 185 Parker Street for drug evidence and for evidence linking Telfair to the premises. When DEA agents executed the warrant, they collected the drug evidence from the basement and seized documentary evidence connecting Telfair to the location.3
Shortly after the shooting, the DEA attempted to find Telfair at the residence of his girlfriend, Catrina Gatling ("Gatling"), but she denied knowing Telfair. The DEA then obtained an arrest warrant for Telfair. On January 23, 2007, Telfair was arrested outside Gatling's residence. After he was Mirandized, Telfair admitted he was a heroin dealer, and told the DEA agents that he had been leaving to meet his heroin supplier, Carlos Alberto Antigua ("Carlito"), when he was arrested. Carlito repeatedly called Telfair during the interview.
Carlito testified at trial that he began supplying heroin to Telfair in late August 2006. At the height of the relationship, Telfair was purchasing 100 bricks of heroin every three days. This continued for roughly four months. During this period, Carlito sold between four and five kilograms of heroin to Telfair.
An indictment was returned against Telfair on March 29, 2007, charging him with one count of conspiracy to distribute and to possess with intent to distribute 100 grams or more of heroin.4 A superseding indictment was filed on May 7, 2007, charging Telfair with conspiracy to distribute one kilogram or more of heroin.5 On April 7, 2008, the District Court held a hearing regarding several motions filed by Telfair's then-counsel, James Kimball, including a motion to suppress the evidence seized from 185 Parker Street. The District Court denied the motions and issued a written order, without anaccompanying opinion, on May 20, 2008. On October 7, 2008, this indictment was dismissed without prejudice due to violations of the Speedy Trial Act, 18 U.S.C. § 3161.
On October 8, 2008, a second indictment was returned against Telfair, charging him with one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin,6 and one count of distribution and possession with intent to distribute 100 grams or more of heroin.7 Though represented by counsel, Telfair filed a number of pro se motions, including a motion to suppress the evidence seized from 185 Parker Street, which were nearly identical to the motions filed under the prior indictment. The District Court denied these motions in a December 10, 2008 opinion, noting it had denied "substantially similar" motions in its May 20, 2008 Order. The court found the officers' warrantless entry of 185 Parker Street justified by the consent of Filpo and Sanchez. The court also concluded the search was justified by the plain view exception to the warrant requirement.
In March 2009, roughly one year before trial, Mr. Kimball was replaced by Michael Pedicini as counsel for Telfair. Telfair demanded that Mr. Pedicini file new motions on many of the same subjects and based on the same arguments as the earlier motions. Mr. Pedicini declined, saying "my position with regard to motions is, if they've been filed and argued and denied, you can't refile them until you get the answer you want." (Pretrial Transcript ("P.Tr.") at 14).
After a jury trial, during which he was represented by Mr. Pedicini, Telfair was convicted on both counts of the indictment. At the sentencing hearing, the District Court calculated Telfair's Guidelines range at 360 months' to life imprisonment, but determined that this range was overly harsh, and so imposed a sentence of 240 months' imprisonment. Telfair filed a timely notice of appeal, and John Azzarello, who represented Telfair at sentencing and is representing him on appeal, filed a motion to withdraw as defense counsel and an accompanying Anders brief.
In Anders v. California, the Supreme Court of the United States described the procedure by which court-appointed appellate counsel may withdraw from representing a criminal defendant without offending the defendant's Sixth or Fourteenth Amendment right to counsel.8 386 U.S. 738, 744 (1967). This Court has adopted Local Appellate Rule ("L.A.R.") 109.2(a), which requires the same process as the one described in Anders. United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). When we receive a motion to withdraw and an accompanying Anders brief, our inquiry is twofold. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). We first determine "whether counsel adequately fulfilled the rule's requirements." Id. We then conduct "an independent review of the record" to determine whether any nonfrivolous issues exist. Id.
To fulfill the first prong, counsel's brief must "satisfy the court that counsel has thoroughly examined the record in search of appealable issues" and "explain why the issues are frivolous." Id. Counsel "need not raise and reject every possible claim," so long as she demonstrates she has made a "conscientious examination" of the record. Id. An issue is frivolous "where none of the legal points are arguable on their merits." Simon v. Gov't of Virgin Islands., 679 F.3d 109, 114 (3d Cir. 2012).
A finding that an Anders brief is inadequate does not preclude us from affirming the conviction without appointing new counsel; if we determine, after our independent review of the record, that there are no nonfrivolous issues, we may affirm the judgment. United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009). When conducting an independent review of the record, the court need not comb the record in search of appealable issues. Youla, 241 F.3d at 301 (citing United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996)). If the Anders brief is adequate, our review will be guided by that brief. Id. If the Anders brief is inadequate, we may rely on the appellant's pro se brief to guide our review. Id. The determination of whether an issue is frivolous is informed by the standard of review to which that issue is normally subject. See United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir. 2002).
In our view, Telfair's appellate counsel, Mr. Azzarello, has not fully demonstrated that he has "thoroughly examined the record in search of appealable issues." Youla, 241 F.3d at 300. In his Anders brief, Mr. Azzarello discussed five issues, and concluded that appeal on each of those issues would be frivolous. Three of those issues were raised byTelfair in his pro se filings: alleged ineffective assistance of counsel, challenges to the sufficiency of the indictment, and allegations of discovery violations. Mr. Azzarello also raised two issues which Telfair did not discuss in his pro se filings: the District Court's denial of motions for a mistrial, and the propriety of the sentencing proceedings.
Though Mr. Azzarello raised issues not discussed in any of...
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