United States District Court, E.D. Pennsylvania
Austin McHugh United States District Judge.
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.
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.
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
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.
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.
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),
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.
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:
â¢ 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;
â¢ the conspiracy counts (One and Eight) in
the Indictment were multiplicitous, ¶ 4; and
â¢ 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.
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.
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.
Fourth Amendment Challenge: Sweep of Second Floor and Consent
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.
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.
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.
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.
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
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
[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.
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.
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
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 ...