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)).
The Supreme Court's GVR order
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.
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.
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
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.
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.
The government's case against Steiner proceeded to a jury trial.
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.
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.
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,
The government requested that the jury be instructed that although the defendant was charged with possessing ammunition in different varieties or from different locations, it need not unanimously agree on which ammunition he possessed to convict him of felony possession under § 922(g). Steiner objected and requested that the jury be instructed that it must agree as to which ammunition Steiner possessed, adding that the indictment was confusing. The District Court adopted the government's position and instructed the jury that unanimity was not required with respect to the firearm or ammunition. Specifically, the court stated:
The jury found Steiner not guilty on Count One (charging possession of the gun and ammunition in the camper), but guilty on Count Two (charging possession of the ammunition found in the Meadow Avenue home).
First, Steiner argues that the District Court erred by admitting evidence of the arrest warrant that had issued for his failure to appear at a preliminary hearing on an unrelated charge. The District Court stated during the in limine hearing on the admissibility of the arrest warrant, and memorialized in its minute entry, that its decision rested on Rule 404(b) grounds.
Steiner argues that, while courts in this Circuit have occasionally admitted prior-act evidence under Rule 404(b) for the purpose of "completing the story" or providing "background," they have also generally limited the use of those purposes to conspiracy cases. In response, the government asserts that the arrest warrant was properly admitted under Rule 404(b) because it identified a proper purpose for the evidence: it was necessary to provide background and complete the story of Steiner's arrest, interrogation, and the police investigation of the crimes charged.
For the reasons that follow, we conclude that the District Court erred by admitting the arrest warrant.
We review the District Court's evidentiary rulings principally on an abuse of discretion standard, which occurs only when the district court's decision is "arbitrary, fanciful, or clearly unreasonable" — in short, where "no reasonable person would adopt the district court's view."
Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove character or demonstrate action in conformity with those acts.
In United States v. Green, we concluded that "allowing the jury to understand the circumstances surrounding the charged crime — completing the story — is a proper, non-propensity purpose under Rule 404(b)."
In fact, Steiner is correct that the majority of criminal cases in which we have deemed "background" a proper purpose involve conspiracies.
There are unique characteristics that render "background" a proper purpose for admitting prior-act evidence in conspiracy cases. For instance, in proving the existence of a conspiracy, a court might allow a party to present background evidence revealing an ongoing relationship between co-conspirators.
Here, Steiner is the only defendant. There was no need for the government to explain a complicated backstory. We are not suggesting that conspiracy cases are the only ones in which background facts may be admissible as 404(b) evidence. We are saying that, when the information needed to understand what happened in a case is straightforward and easily understood without reference to facts that do not bear on the charged offense, forcing extraneous and potentially prejudicial information into the record in the name of "background" is not defensible under Rule 404(b). That, unfortunately, is what happened here. Stants' tip entirely explained why the government was focusing on Steiner. In fact, the arrest warrant evidence was completely irrelevant to the government's case.
In Green, by contrast, we concluded that the background information — evidence that the defendant threatened to kill a police officer — was properly admitted under Rule 404(b) because it fit "into a chain of logical inferences" and explained why the defendant was under investigation for the crime charged, attempted possession with intent to distribute cocaine.
Again, to be clear, we do not conclude that any evidence offered for the purpose of providing background is only admissible in conspiracy cases. There may — and likely will — be other situations in which such evidence is admissible outside of the conspiracy
To be sure, the District Court was not entirely, or even primarily, to blame for its error. The government played a central role. Here, the prosecutor wrongly asserted that the government needed the unrelated arrest warrant to prove that Steiner was guilty of felony possession. Yet it is clear to us that the government did not need the arrest warrant to try a case against Steiner at all. The government had Stants' tip, Stants' and Williams' testimony that Steiner owned the home in 2007 and possessed a shotgun, and a stipulation that Steiner was a felon. Taken together, this evidence strongly supported the government's theory that Steiner unlawfully possessed the firearm and ammunition. The only purpose the arrest warrant served was to improperly suggest that Steiner was predisposed to commit criminal acts.
In sum, we are deeply troubled by the government's inaccurate claim that the arrest warrant was "what led officers to [Steiner's] trailer in the first place," and we are persuaded that that inaccuracy led the District Court to err by admitting evidence of the warrant.
While we find that the District Court improperly admitted the arrest warrant, we conclude that the error was harmless.
First, the arrest warrant evidence had no prejudicial impact on the jury's determination as to Count One, because Steiner was found not guilty of that charge. It is therefore reasonable to infer that the evidence had no effect as to Count Two. Second, the District Court did not disclose the conduct underlying the arrest warrant, that is, the alleged sexual assault of a minor. Third, at trial, Steiner stipulated to having a prior felony conviction. Also, when he took the stand, Steiner admitted that he was previously convicted of crimes of falsehood: burglary, theft, and felony forgery. And finally, the ample evidence presented surrounding Steiner's ownership and occupation of the home, Stants' and Williams' testimony regarding
We therefore conclude that any error in admitting the prior act evidence under Rule 404(b) was harmless.
Next, Steiner argues in his briefs that the District Court erred by refusing to instruct jurors that they must unanimously agree as to which ammunition he possessed to find him guilty under Count Two. In support of his claim, Steiner argues that the government improperly bundled into Count Two multiple, distinct violations of § 922(g), each of which should have been prosecuted as a separate violation of the statute.
We reject Steiner's argument. In our view, the evidence at trial overwhelmingly demonstrated that Steiner possessed the ammunition in one part of the Meadow Avenue home, which he owned in 2007. For the additional reasons that follow, we therefore conclude the indictment properly charged Steiner with a single violation of § 922(g) under Count Two and that a special unanimity instruction was not required.
Whether an indictment is duplicitous is a question of law subject to de novo review.
Duplicity is the improper combining of separate offenses into a single count.
Under Federal Rule of Criminal Procedure 12(b)(3)(B), a motion alleging a defect in the indictment must be made before trial. Yet while a defendant waives technical errors to an indictment by his failure to object to the duplicity before trial, courts have held that the alleged harm to the defendant's substantive rights resulting from a duplicitous indictment can be raised at trial or on appeal, notwithstanding the defendant's failure to make a pretrial motion.
Count Two of the indictment charged Steiner with a violation of 18 U.S.C. § 922(g), which, in relevant part, provides: "It shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
To determine whether Count Two was duplicitous, we first focus on the "allowable unit of prosecution" to decide whether the indictment properly charges a violation of the relevant statute.
We have also stated that simultaneous possession of multiple firearms or pieces of ammunition does not give rise to a separate offense for each firearm or piece of ammunition possessed.
These observations lead us to the question of how we determine whether an indictment
In United States v. Marino and United States v. Frankenberry, we held that the simultaneous possession or receipt of several firearms by a convicted felon constituted a single offense under the predecessor statutes to § 922(g), absent a showing that the weapons were separately stored or acquired.
However, in United States v. Kennedy, we held that mere physical proximity does not demonstrate simultaneous possession.
These cases demonstrate that determining whether individual firearms or ammunition were simultaneously possessed is a highly fact-driven inquiry that depends on the circumstances surrounding a defendant's alleged conduct.
Here, other than Steiner's testimony, there is little, if any, evidence supporting Steiner's contention that the ammunition found in the home was acquired at different times and for different purposes, or that it was separately stored in the home. By contrast, the evidence at trial strongly demonstrated that Steiner owned the home in 2007 and that all of the ammunition was stored in various parts of the basement.
In sum, we conclude that the indictment was not duplicitous. Accordingly, the District Court's failure to give a special unanimity instruction as to Count Two did not constitute a violation of Steiner's Sixth Amendment right to a unanimous jury verdict.
We now turn to Steiner's challenge to his sentence, which he invoked in his petition for certiorari (but not in his initial appeal to us).
By way of background, the offense Guideline applicable to Steiner's § 922(g) conviction is § 2K2.1,
Steiner filed a petition for certiorari on the basis of the Supreme Court's intervening decision in Mathis v. United States.
Mathis is the latest in the Supreme Court's series of opinions on how prior convictions can be used as predicate "violent felonies" under the Armed Career Criminal Act ("ACCA," 18 U.S.C. § 924(e)), precedent that generally applies also to "crimes of violence" enhancements under the Guidelines.
In Mathis, the Supreme Court analyzed an Iowa burglary statute that prohibited unlawful entry into not just "buildings or other structures" — which is the "generic" federal definition of burglary
The relevant 1992 Pennsylvania statute has many of the same features as the Iowa statute discussed in Mathis. The Pennsylvania statute defined burglary as "enter[ing] a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter."
The question Mathis tells us to ask — are these alternate means or alternate elements? — can be resolved by reference to "authoritative sources of state law" or, if necessary, "the record of a prior conviction itself ... for the sole and limited purpose of determining whether" we confront means or elements.
We therefore hold that these are alternative means of committing the core burglary element.
We pause to recognize that other Courts of Appeals have, after Mathis, held that various state burglary statutes set out different elements, and not different means, based on the wording of particular statutes. The Iowa burglary statute analyzed in Mathis defines burglary as the entering of "an occupied structure," a term it then
Based on our discussion above of Pennsylvania law and practice, as well as the substantial overlap between "building" and "occupied structure" under the statutory definition, we believe that we are on solid footing. Nevertheless, the divergence of outcomes after Mathis suggests that the "elements or means" inquiry is not quite as easy as the Supreme Court thought, not the least because state legislatures and state courts do not draft their laws and craft their decisions with this particular distinction in mind.
Returning to our analysis, we next compare the Pennsylvania statute to the generic offense of "burglary of a dwelling." We have previously defined "dwelling" by reference to the then-current Sixth Edition of Black's Law Dictionary: a "building or portion thereof, a tent, a mobile home, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence."
Under the categorical approach, then, a conviction under the Pennsylvania burglary statute in question is not a predicate § 4B1.2 "crime of violence."
We must reach one final matter before closing: Steiner contends that he has already served a term of imprisonment longer than would be authorized by a Guidelines range without the "crime of violence" enhancement. As we noted above, at offense level 14 and with a criminal history of VI, Steiner's range would be 37-46 months instead of the 70-87 months he faced before. Although Steiner does not provide us with the Bureau of Prisons information he used to compute the months he has already served — he was serving a state sentence when the underlying federal criminal proceedings began, and there is no obvious indication on the docket of when he was formally committed to the Bureau of Prisons — it appears likely that he has already been in the custody of the Bureau of Prisons for over 46 months, and the government does not dispute his characterization of his time served. We therefore will order that Steiner be released from custody, subject to the conditions of supervised release imposed in the District Court's original judgment, pending expedited resentencing.
For the reasons set forth above, we will affirm the District Court's judgment of conviction, vacate its judgment of sentence, grant Steiner's motion for remand, and remand for expedited resentencing. Steiner is ordered released pending his resentencing.
Steiner also asks us to reconsider our current legal standard for assessing claims of pre-indictment delay. See United States v. Beckett, 208 F.3d 140, 150-51 (3d Cir. 2000) (defendant must show both actual prejudice and deliberate delay) (citing United States v. Ismaili, 828 F.2d 153, 168 (3d Cir. 1987)). However, "[u]nder a longstanding practice of our Court, a panel may not overrule another panel decision." Pa. Pharmacists Ass'n v. Houstoun, 283 F.3d 531, 534 (3d Cir. 2002); see also 3d Cir. I.O.P. 9.1. We therefore will not undertake to reconsider our standard for reviewing claims of pre-indictment delay. Moreover, we conclude that contrary to Steiner's assertion, the District Court applied the correct legal standard when it denied Steiner's motion to dismiss the indictment for pre-indictment delay.
