United States v. Irving

          MEMORANDUM

          Gerald Austin McHugh United States District Judge.

         Defendant Raphael Hunt Irving was found guilty by a jury of drug-related conspiracy and attempt charges in the culmination of an extensive, multi-defendant investigation. He now challenges the sufficiency and constitutionality of the underlying indictment on several grounds, the admission of certain evidence under the Fourth Amendment and Maryland v. Buie, 494 U.S. 325 (1990), and his pending felon-in-possession charge, 18 U.S.C. § 922(g)(1), under the Second Amendment.

         Hunt Irving's felon-in-possession charge was severed from the rest pending the Third Circuit's decision in Binderup v. Attorney General, 836 F.3d 336');">836 F.3d 336 (3d Cir. 2016) (en banc), a Second Amendment challenge to the law, and is now ripe for decision. He argues that § 922(g)(1) is unconstitutional as applied to him because it bars him from gun ownership based only on a “non-serious” crime. His challenge highlights the serious implications of what the Third Circuit left unresolved in the splintered Binderup decision: what constitutes a “serious crime” for Second Amendment purposes when a felon challenges the applicability of § 922(g)(1). When he was charged, Hunt Irving had a single, non-violent felony conviction-a conviction that, when subjected to the various tests advanced in Binderup would lead to different outcomes in his case. Indeed, as set forth below, the Defendant essentially relies upon the concurring opinion in Binderup as the principal basis for his argument. But the legal test Hunt Irving asks me to apply in support of his Second Amendment challenge did not command a majority of the Court, and his Motion to Dismiss the Indictment, together with his other motions, will be denied.

         I. Background

         Following a wiretap and indictment, federal agents obtained arrest warrants for Defendant Raphael Hunt Irving and several co-defendants who allegedly conspired to purchase cocaine for distribution. The agents executed the warrants at the same time on September 26, 2014. Before dawn, a group of eight to ten agents arrived to Hunt Irving's residence, a two-story building that housed his funeral home business on the first floor and his residence on the second. According to the agents' testimony, they knocked loudly and announced their presence. A few minutes later, Hunt Irving came to a second floor window and asked what was going on. The agents identified themselves as police and told him to open up. What happened next is disputed. DEA Agent Glenn testified that the agents waited another “five to seven minutes, ” then breached the door using a crow bar and battering ram. Hr'g Tr. 24:5-7, 25:3-9, May 24, 2017 [hereinafter “Hr'g Tr. A”]. Hunt Irving disputes this amount of time and says he came downstairs without delay, but before he got to the door the officers had forcibly entered. Hr'g Tr. 5:24-6:7, May 30, 2017 [hereinafter “Hr'g Tr. B”]. There is no dispute that when the agents broke the door in, Hunt Irving was standing right inside, unarmed, about ten feet from the door. The agents ordered Hunt Irving to the ground and handcuffed him. The testifying agents agreed that he was cooperative and did not resist arrest.

         Agent Glenn, the team leader, asked Hunt Irving if there were any other people, or any weapons, in the home. Hr'g Tr. A 27:9-28:4. Meanwhile, the team of agents immediately began a “protective sweep of the entire building.” Id. Defendant replied that there was no one else there, and said he had a hunting rifle upstairs in his bedroom closet. Agents testified that Hunt Irving “hesitated” before answering the weapons question. Hr'g Tr. B 95:11-16. The agents found an AK47-style semi-automatic rifle in the bedroom closet where Hunt Irving had indicated. When agents suggested to Hunt Irving that the gun was not a hunting rifle, he responded that he used it to hunt wild boars or hogs. Hr'g Tr. B 98:17-25. After the sweep was completed-about fifteen minutes later-Agent Glenn read Hunt Irving his Miranda rights and the agents asked for his consent to a search of the property. He agreed. In that subsequent, more intensive search, agents found a digital scale, a large amount of cash (about $15, 000), and a second gun (a handgun). Only the cash and scale would later be entered as evidence in Hunt Irving's drug conspiracy trial.^[1]

         Defendant was eventually charged in a Third Superseding Indictment [hereinafter “the Indictment”] with multiple drug distribution conspiracies (Counts One, Seven, and Eight), attempted drug possession (Count Two), and a § 922(g)(1) violation for being a felon in possession of a firearm (Count Six) [hereinafter “felon-in-possession”]. As to the felon-in-possession charge, Hunt Irving does not dispute that he owned the rifle and handgun the agents found in his residence. He likewise concedes that he had prior felony convictions; four years before his arrest in this case he had pled guilty to two counts of Tampering with State Records. Those charges arose from an investigation into the financial practices of his funeral business in its interactions with the state's Victim Compensation Assistance Program (VCAP), which reimburses victims and their families for crime-related losses, including murder victims' funeral expenses. The investigation uncovered four instances over the course of seven years in which Hunt Irving had overbilled the state for funeral costs or did not pass on to the family the full refund he received from the state. Because of these claims, he was charged with Tampering with Public Documents with intent to defraud, 18 Pa. Const. Stat. § 4911. In Pennsylvania, this crime is designated a third-degree felony, id., punishable by up to seven years in prison, 18 Pa. Const. Stat. § 1103. Pursuant to a plea agreement, Hunt Irving received two years' probation with no jail time and had to pay restitution of $7, 125 ($3, 325 to one family, $2, 638 to another, and $1, 162 to the VCAP), donate $500 to Dauphin County, and complete 250 hours of community service in Chester County.

         Before trial, Hunt Irving moved to dismiss the felon-in-possession charge, arguing that it did not sufficiently allege that the guns had affected interstate commerce, and alternatively, that the charge was unconstitutional based on United States v. Barton, 633 F.3d 168 (3d Cir. 2011), ^[2]and the district court's holding in Binderup v. Holder, 2014 WL 4764424, at *31 (E.D. Pa. 2014). See Mot. Dismiss Indictment, ECF No. 114. Because the parties agreed to sever that charge for trial, a ruling on that motion was deferred.

         At trial in June 2017, the jury found Hunt Irving guilty of two conspiracies (Counts One and Eight) and attempt (Count Two), and not guilty on Count Seven, relating to a 2012 conspiracy. Jury Verdict Form, ECF No. 200; Order, ECF No. 204. In September 2016, the Third Circuit affirmed the District Court's Binderup decision in a plurality opinion, Binderup v. Att'y Gen. U.S., 836 F.3d 336 [“Binderup”], and last year the Supreme Court denied certiorari, Sessions v. Binderup, 137 S.Ct. 2323 (2017). Following those decisions, Hunt Irving, through new counsel, has filed a Motion for a New Trial and/or Arrest of Judgment, ECF No. 209 [hereinafter Def.'s Mot. New Trial], reasserting his Binderup challenge to the felon-in- possession charge, id ¶ 1, and asserting several other arguments, including that:

• the Court erred in its pre-trial denial of his motion to suppress evidence seized from his residence, see Order, ECF No. 181, and Mem., ECF No. 211, both because the “protective sweep” of the second floor was unsupported by articulable facts, Def.'s Mot. New Trial ¶ 2, and because his subsequent consent to search was not voluntary, id ¶ 3;

• the conspiracy counts (One and Eight) in the Indictment were multiplicitous, ¶ 4; and

• the jury's verdict was contrary to the weight of the evidence and a new trial is appropriate in the interest of justice, ¶¶ 5-8, 10, 11.

Id; Def.'s Suppl. Memo, ECF No. 217 [hereinafter “Def.'s Mot.”]; Def.'s Sur-Reply, ECF No. 231.^[3] Defendant does not reassert the interstate commerce argument articulated in his pre-trial Motion to Dismiss the Indictment, but I nevertheless address it as it is technically still pending.

         For the reasons set forth below, I conclude that even if one assumes that the sweep of the second floor violated the Fourth Amendment, it did not taint Hunt Irving's subsequent consent to search, and his pre-trial motion to suppress the evidence seized from his building was therefore properly denied. His Second Amendment challenge also fails, as the Third Circuit's decision in Binderup yielded no new test for as-applied challenges to § 922(g)(1), and the felon-in- possession charge is clearly lawful under pre-Binderup law. Hunt Irving's remaining arguments fail because the indictment adequately alleged that his guns affected interstate commerce, his multiplicity challenge is both waived and meritless, and the jury's verdict was far from a miscarriage of justice.

         II. Fourth Amendment Challenge: Sweep of Second Floor and Consent Search

         Defendant Hunt Irving asserts that the agents' initial protective sweep of the second floor was unreasonable under the Fourth Amendment, and thus tainted his subsequent consent to a search of the building, during which agents found the digital scale and cash, both admitted at trial, and the handgun. Def.'s Mot. 4-5 (citing Wong Sun v. United States, 371 U.S. 471 (1963)). I previously ruled that Hunt Irving voluntarily consented to the search, and rejected his testimony to the contrary as lacking credibility. Suppress. Mem., ECF No. 211. The current motion advances a different basis for suppression.

         Preliminarily, the government contends that the issue is waived. Gov.'s Resp. 4-5, ECF No. 230 (citing Suppress. Mem., ECF No. 211). Hunt Irving disagrees, and reserves the right to assert ineffective assistance of counsel in the event that the issue is deemed waived. I therefore first address this threshold issue of waiver.

         At the suppression hearing, counsel's argument touched, but did not focus on, the permissibility of the security sweep. Hunt Irving's trial counsel-different from his current counsel-made an argument similar to the one Hunt Irving now makes, asserting that the sweep would have occurred regardless of the circumstances: “. . . if you look at the situation, the search in its totality . . . it's clear that these agents were going to search, Your Honor. They searched the second floor, they searched the funeral parlor. They searched the entire building initially.” Hr'g Tr. B 131:21-132:2 (repeated words omitted). Responding to the Court's question about whether it was reasonable for the agents, once Hunt Irving told them he had a rifle in the house, “for purposes of safety, to take that step of securing the weapon, ” trial counsel replied: “I think they can secure the weapon, but I don't think that that gives them probable cause to do anything else. I mean I think the fact they're saying, hey, we discovered a weapon in the house and because we discovered the weapon, we now have some reason to search for what?” Hr'g Tr. B 138:5-139:16.

         Based on this transcript, Hunt Irving's trial counsel certainly conceded the validity of the officers securing the rifle for safety purposes. I see no indication, however, that defense counsel conceded his more general point-that a broader security sweep of the second floor was impermissible. Hr'g Tr. B 131:21-132:2, 139:8. I therefore find that the issue of the constitutionality of the sweep of the second floor in general is not waived. Nonetheless, the motion to suppress lacks merit.

         Moving to the merits of the Fourth Amendment challenge, the parties agree that Maryland v. Buie, 494 U.S. 325 (1990), provides the relevant standard for the agents' sweep of Hunt Irving's funeral home and residence. Buie analyzed an exception to the general rule that a residence cannot be searched without probable cause and identified the permissible bounds of a warrantless search of a residence incident to arrest:

[I]ncident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which . . . would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

494 U.S. at 331, 334. The Buie Court called this a “protective sweep, ” emphasizing that it must be “aimed at protecting the arresting officers, if justified by the circumstances.” Id. Even where articulable facts exist suggesting that officers are in danger of attack, the Court cautioned that the sweep must be “quick and limited, ” id. at 331. Stated differently:

[A protective sweep] is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.

Id. at 335-36.

         The Supreme Court made clear that “[t]he type of search we authorize today . . . is decidedly not automatic, but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” 494 U.S. at 336.

         Based on these principles, Hunt Irving argues that the agents proceeded with their sweep simply as a matter of routine, without the articulable, reasonable suspicion required by law.^[4] The Government in turn seeks to portray Hunt Irving's delay in answering the door and his admission that there was a weapon present as justifying the sweep. The record is not well-developed, in part because the argument Defendant advances now is significantly different in emphasis from the theory advanced at the suppression hearing. But there is no need to reach the merits of the ...