Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit

12-20-2007

USA v. Washington Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4188

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 06-4188

UNITED STATES OF AMERICA

v.

LEROY WASHINGTON,

Appellant

Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 05-cr-00275) District Judge: Honorable Stanley R. Chesler

Submitted Under Third Circuit LAR 34.1(a) December 13, 2007

Before: SLOVITER and AMBRO, Circuit Judges POLLAK,* District Judge

(Opinion filed: December 20, 2007)

OPINION

* Honorable Louis H. Pollak, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation. AMBRO, Circuit Judge

Appellant Leroy Washington challenges his conviction and sentence for being a

felon in possession of a firearm in violation of

(g)(1), arguing that the

District Court deprived him of his right under the Fifth and Sixth Amendments to present

a defense. We disagree, and thus affirm.

This prosecution began with a traffic stop by two detectives in Trenton, New

Jersey in March 2005. The detective who approached Washington testified at trial that a

phone call received by Washington during the stop made him believe that Washington

had a gun in the car. He testified that he asked Washington to get out of the car. When

Washington did so, he began to reach into his waistband area. The detective testified that,

while attempting to place Washington in a pat and frisk position, he broke free and ran

down the street, pulling a gun out of his waistband and running with it in his right hand.

The detective testified that he attempted to follow Washington in his police car while the

other detective chased Washington on foot. The chase resulted in the arrest of

Washington and the recovery of an Armscor .45 caliber handgun loaded with eight rounds

of ammunition.

Washington disputed the testimony of the detectives. He testified that he was

pulled out of the car by one of the detectives. Washington also testified that he had

obeyed all traffic laws and was alarmed by the officer’s behavior. He stated that he had

observed Trenton officers assault persons in the past and that the detectives’ conduct

2 during the stop and its remote location led him to believe that he would be beaten by

them. Washington stated that the detectives’ testimony regarding his possession of a gun

was untrue and presented evidence attempting to call into doubt their description of the

chase. He did not dispute that he was a previously convicted felon.

The jury convicted Washington on the single count in the indictment and the

District Court sentenced Washington to an 80-month term of imprisonment. Washington

timely appealed. We have jurisdiction under

.

Washington argues that the District Court deprived him of his right to put on a

defense by prohibiting him from presenting evidence explaining why he fled from the

detectives. The Government had presented evidence of Washington’s flight and had

indicated that it would argue that this flight created an inference of guilt. Counsel for

Washington asked questions intended to elicit Washington’s explanation that his fear of

the officers caused him to flee. The Government objected as to relevance when

Washington began to discuss his past experiences with law enforcement officers.

The District Court instructed counsel for Washington that it would be appropriate

for Washington to offer testimony “narrowly tailored to what might rationally prompt a

reason for flight as opposed to generalized instances of unfairness.” Stating that it was

unclear where Washington’s testimony was leading, the Court then instructed counsel for

Washington to “very gently lead him in the direction of the relevant testimony.” After his

counsel posed a few more questions to Washington, the Government objected again. At

3 side bar, the District Court asked counsel for Washington about the expected nature of his

testimony. Counsel explained that Washington was likely to testify that he had seen

Trenton officers act aggressively toward other people. The Court instructed counsel for

Washington that “[g]eneralized aggressiveness is not going to cut it,” but said that it

would consider allowing testimony if a specific proffer were made that tied Washington’s

testimony to his state of mind. Counsel for Washington accepted that direction and

continued to examine him. No proffer was made and Washington’s ability to testify to his

reasons for flight were not addressed again by the parties or the Court.

We explained in United States v. Colletti,

(3d Cir. 1992),

that an issue is waived when counsel is instructed to make a specific offer of proof if he

or she wishes to pursue a line of questioning and then does not attempt to make that offer.

Because no attempt was made to proffer evidence tying Washington’s past experiences to

his state of mind at the time of the traffic stop, Colletti controls. He thus has waived any

argument that the District Court erred by prohibiting testimony about his state of mind.

Accordingly, we affirm its judgment.

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