On Appeal from the United States District Court for the District of Eastern Pennsylvania (D.C. Criminal No. 2-08-cr-00038-001) District Judge: Honorable Mary A. McLaughlin
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 19, 2012
Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges
Carlos Figueroa was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (e). He appeals, arguing procedural errors regarding the bifurcated nature of the trial and temporary discharge of the jury violated his rights under the Double Jeopardy and Due Process Clauses. We will affirm.
On December 14, 2006, Figueroa sold four small packets of heroin to Brian Myers, an undercover Philadelphia Police Department ("PPD") officer. Myers returned later the same day and made a second purchase of four packets; two contained cocaine and two contained heroin. Figueroa admitted at trial that he had sold the drugs to Myers.
During the second purchase, Myers saw "what appeared to be" a gun tucked into Figueroa's waistband. Myers admitted that it was dark when he made this observation, and that he only saw a few inches of the object. He was not sure, therefore, that it was actually a gun. Soon after this second sale, PPD officers stopped the car driven, and owned, by Figueroa's girlfriend, Jennifer Sawyer. Figueroa was seated in the front passenger's seat. Officers removed both occupants from the car; one officer opened the glove compartment and recovered a handgun. Both Sawyer and Figueroa denied owning, or even knowing of, the firearm. No forensic evidence connected either individual to the firearm.
A grand jury indicted Figueroa on January 22, 2008. The grand jury charged him with one count of distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count One), one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Two), one count of carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count Three), and one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Four).
Figueroa's trial started on December 14, 2009. Count Four was
bifurcated from the other counts. Figueroa admitted that he sold the
drugs and was guilty of Counts One and Two. He denied, however,
possessing either the firearm Myers observed on his person or the
firearm discovered in the glove compartment. On December 16, the jury
began deliberations on Counts One, Two, and Three. Deliberations began
at 3:10 p.m., and at 4:50 p.m. the jury sent a note*fn1
that said: "We are split regarding his actual possession of
weapon during the exchange."*fn2 At 6:00 p.m. another
note was received that said: "Do not believe we're going to be able to
reach a unanimous decision on the third charge."
The jury was reconvened the following day. At 1:48 p.m. the jury again sent a note, stating "Your Honor, we will not be able to reach a verdict on the gun charge." Defense counsel felt the jury should continue to deliberate, but Judge McLaughlin stated that it would be coercive given the notes received and time already spent deliberating. The prosecutor believed the jury's verdict should be received at that time.
Judge McLaughlin then asked the prosecutor "what should we do with Count [Four], if indeed I do declare a mistrial on Count [Three], Mr. Miller?" The prosecutor responded that the court should proceed with the bifurcated portion of the trial. Defense counsel opposed this position, and argued that giving the jury Count Four would put the jury "back in the same situation they are right now." Judge McLaughlin agreed, and stated that it "would be coercive" to give them another charge after they could not decide the possession element of Count Three.
Next, Judge McLaughlin brought the jury into the courtroom. The foreperson stated that the jury had reached verdicts as to Counts One and Two. Judge McLaughlin asked the foreperson whether it had reached a unanimous verdict as to Count Three. The foreperson replied that it had not. Judge McLaughlin inquired whether it would be able to reach such a verdict with more time, and the members of the jury indicated they would not reach a unanimous verdict. Judge McLaughlin then published the verdicts. The jury found Figueroa guilty on Counts One and Two. Judge McLaughlin thanked the jury members for their service and released them. Immediately upon their exit, the chief of the firearms section of the U.S. Attorney's Office, ...