NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

Nos. 19-2283, 19-2399, 19-2667 _____________

UNITED STATES OF AMERICA

v.

DAJWAN WARE, Appellant in No. 19-2283

ROBERT A. ELLIOTT, SR., Appellant in No. 19-2399

JUSTIN LOVE, Appellant in No. 19-2667 _____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Nos. 3:17-cr-0051-004 (Ware), 3:17-cr-0051-002 (Elliott), 3:17-cr-0051-003 (Love)) District Judge: Honorable Peter G. Sheridan ____________

Submitted Under Third Circuit L.A.R. 34.1(a) (October 23, 2020)

Before: CHAGARES, GREENAWAY, JR., and NYGAARD, Circuit Judges. (Filed: June 3, 2021) _____________

OPINION * _____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENAWAY, JR., Circuit Judge.

Appellants Robert A. Elliott, Sr., Justin Love, and Dajwan Ware were convicted of

various federal crimes in connection with a dogfighting conspiracy. The conspiracy was

uncovered by federal agents monitoring wiretaps authorized as part of an investigation

into Anthony “Monte” Gaines. Over the course of six weeks beginning in October 2015,

agents intercepted several days’ worth of conversations between Mr. Gaines and others,

including Mr. Ware and Mr. Love, regarding various aspects of the dogfighting venture.

These revelations led to a multi-district investigation into the dogfighting activity, which

resulted in several convictions, including Appellants’. 1 The trial evidence showed that all

three Appellants maintained dogs that were bred, trained, and kept for fighting; that Mr.

Ware intended to enter at least one dog in a fight; and that Mr. Love actually entered dogs

in fights, one of which was recorded in videos found on his cell phone. Further,

possession of certain dogs passed between Appellants and their co-conspirators at various

times.

Each Appellant now challenges his conviction. Mr. Ware and Mr. Elliott also

challenge their sentences. For the reasons set forth herein, we will affirm the judgment of

conviction of each Appellant. 2

1 Robert Arellano was a co-conspirator tried with Appellants. He was also convicted at trial; he does not appeal his conviction or sentence. Several defendants, including Mr. Gaines, pleaded guilty to crimes related to the conspiracy. 2 The District Court had jurisdiction pursuant to

. This Court has jurisdiction pursuant to

and

(a). 2 I. Appellant Ware

A. Background

Mr. Ware resided in Fort Wayne, Indiana. In June 2016, Agent Christopher

Golightly signed an affidavit in support of a search warrant of Mr. Ware’s house, which

was subsequently executed. Agent Anthony Ruffini wrote the affidavit, though this fact

was not discernible from the face of the affidavit. When the search warrant was

executed, agents found two dogs housed in a manner consistent with their use in

dogfighting, as well as dogfighting paraphernalia and other evidence related to

dogfighting.

Mr. Ware was subsequently charged and tried for conspiracy. The evidence at

trial showed that Mr. Ware had received a fighting dog from Mr. Gaines and co-

conspirator Frank Nichols; that Mr. Ware had received a dog from co-conspirator

Arellano; and that Mr. Ware and Mr. Gaines had exchanged information related to

dogfighting.

Another development at trial was Agent Golightly’s admission that the search

warrant had been ghostwritten by another agent. Mr. Ware moved for a mistrial,

asserting that the omission of this information rendered the search warrant defective

under Franks v. Delaware,

(1978). The District Court denied his motion.

Mr. Ware was convicted of (i) conspiracy to sponsor and exhibit dogs in animal

fighting ventures, contrary to

(a)(1) and

and in violation

of

; and (ii) conspiracy to sell, buy, possess, train, transport, deliver, and

receive dogs for purposes of having the dogs participate in animal fighting ventures,

3 contrary to

(b) and

and in violation of

.

At sentencing, the District Court varied upward from the top of the guidelines range—

fourteen months—to impose a sentence of twenty-four months.

On appeal, Mr. Ware claims (1) that the search warrant was invalid, so the District

Court should have granted his motion for a mistrial, and (2) that the District Court erred

in varying upward at his sentencing because the variance was based solely on the nature

and circumstances of the offense, was unsupported by evidence, and was excessive.

B. Validity of Search Warrant

Where a district court has denied a defendant’s motion for mistrial, we review that

decision for abuse of discretion. United States v. Diaz,

(3d Cir. 2010).

Here, the alleged trial error is a failure to suppress evidence. We exercise plenary review

over the legal determinations pertaining to the suppression of evidence, and we review

the predicate factual findings for clear error. United States v. Ritter,

(3d Cir. 2005).

When Agent Golightly took the stand, he disclosed for the first time that the

affidavit in support of the search warrant application had been written by Agent Ruffini

and that he had signed the document without verifying most of the information contained

therein. The affidavit stated that the affiant was “familiar with the facts set forth herein

based on [his] personal observations, or information provided to him by other law

enforcement officers participating in this investigation,” and based on his “review of

documents, reports, and photographs.” Ware App. 39–40. When cross-examined,

however, Agent Golightly admitted that he had not independently reviewed documents,

4 reports, or photographs, other than Mr. Ware’s driver’s license. Indeed, he did no

independent investigation prior to signing the search warrant other than surveilling Mr.

Ware’s house to confirm that Mr. Ware lived there.

We will affirm the denial of a mistrial. The fruits of a search must be suppressed

if a defendant shows that “a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the [search] warrant affidavit,

and . . . the allegedly false statement is necessary to the finding of probable cause.”

United States v. Brown,

(3d Cir. 1993) (quoting Franks, 438 U.S. at 155–

56). When an officer “recklessly omits facts that any reasonable person would know that

a judge would want to know,” this rises to “reckless disregard for the truth.” Wilson v.

Russo,

(3d Cir. 2000).

Mr. Ware characterizes the omission here thus: “none of the substantive

information in the affidavit was based on Golightly’s personal knowledge, but rather

what Agent Anthony Ruffini told Golightly.” Ware Br. 12. We need not determine

whether Agent Golightly’s omission (or misrepresentation regarding the affiant’s review

of reports and documentary evidence) constitutes a knowingly false statement or a

reckless disregard for the truth because it was not a predicate to the probable cause

finding. The Supreme Court has held that “[o]bservations of fellow officers of the

Government engaged in a common investigation are plainly a reliable basis for a warrant

applied for by one of their number.” United States v. Ventresca,

(1965). Thus, we find that if the affidavit had fully and completely disclosed Agent

Ruffini’s role and the nature and extent of Agent Golightly’s investigation, this

5 information would not have affected the probable cause finding. See United States v.

Yusuf,

(3d Cir. 2006) (“In the end, the defendant must prove by a

preponderance of the evidence that probable cause does not exist under the corrected

affidavit, i.e., that the deficiency in the affidavit was material to the original probable

cause finding.”).

Because the omission here did not impact the probable cause determination, the

search warrant was valid; the District Court did not abuse its discretion by denying Mr.

Ware’s motion for a mistrial.

C. Upward Variance

We review sentences for abuse of discretion. United States v. Tomko,

(3d Cir. 2009) (en banc). “[A]bsent any significant procedural error, we must

‘give due deference to the district court’s determination that the § 3553(a) factors, on a

whole,’ justify the sentence.” Id. at 568 (quoting Gall v. United States,

(2007)).

Mr. Ware argues that the District Court’s upward variance violates the precept that

sentencing must be individualized. Mr. Ware underscores that if the nature of the crime

were relied upon to justify an upward variance (as he claims transpired here), such a

variance would be proper in every dogfighting case. He urges that in this particular case,

“there was nothing remotely suggesting that [he] participated or was engaged in the sort

of extreme dogfighting violence justifying an upward departure as required by”

6 Application Note 2 of the Guidelines Manual. 3 Ware Br. 20. He also submits that he

“was not involved in the conspiracy to the extent of the other co-defendants, and had a

minimal criminal record confined to one drug conviction years ago.” Ware Br.18.

The District Court, however, explained its basis for the variance in some detail,

explicitly tying it to the circumstances of Mr. Ware’s individual case. In addition to

stating that it had considered the factors set forth at

(a), the District

Court demonstrated this consideration. It read into the record excerpts of letters showing

the positive and commendable “history and characteristics of the defendant,” which it

apparently credited, 4 and it pinpointed evidence supporting its belief that “the nature and

circumstances of the offense” warranted a variance.

§ 3553(a)(1).

The District Court emphasized that there was evidence of Mr. Ware’s “significant”

and “substantive[]” involvement in the dogfighting venture, as well as “evidence that this

dogfighting venture was an ongoing activity in Mr. Ware’s life.” Ware App. 15, 16.

These determinations were based on, inter alia, (1) the fact that Mr. Ware had taken

possession of a dog named “Bubbles” from Mr. Gaines and Mr. Nichols, with the

3 This Application Note states that “an upward departure may be warranted” if “the offense level determined under this guideline substantially understates the seriousness of the offense,” as where the offense involves extraordinary cruelty or animal fighting on an exceptional scale. U.S. SENT’G GUIDELINES MANUAL § 2E3.1 n.2 (U.S. SENT’G COMM’N 2018). The increased sentence here constituted a variance based on the factors set forth in

(a), not a departure, and therefore this Application Note is inapplicable. 4 The District Court acknowledged that “there are so many good things about . . . Mr. Ware[] that you can’t ignore them.” Ware App. at 17. Yet in spite of these laudable qualities, it reiterated that “in relationship to the depraved conduct that has occurred, it seems to me that the guidelines level [is] insufficient.”

. 7 apparent intent to enter her in a specific fight; (2) the fact that Mr. Ware had received a

dog named “Bull” from Mr. Arellano; (3) various recorded phone calls between Mr.

Ware and Mr. Gaines, in which they appeared to discuss fighting Bubbles, as well as

other matters related to fighting, transporting, and selling dogs; and (4) Mr. Ware’s

possession of nearly 100 photos of dogs, with notes on the back pertaining to the

dogfighting venture.

The District Court further stated its belief that the variance was necessary “to

reflect the seriousness of the offense,” “to afford adequate deterrence to criminal

conduct,” and “to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.”

(a)(2)(A)–(B),

(a)(6). In the interest of uniformity, the District Court recited the sentences it had

imposed on other defendants involved in the conspiracy. Against this backdrop, it

reiterated that a twenty-four-month sentence “seems to be reasonable when considering

all the factors.” Ware App. 20.

The District Court also expressed a policy disagreement with the Guidelines,

which undergirded its decision to vary upward:

I believe this activity of dogfighting ventures is depraved. It’s inhumane, it’s cruel; there’s hardly words to describe it, it’s so horrible in my mind. So, it doesn’t seem to me that the guideline provisions on a guideline level 10, is an appropriate measure of the crime in this instance.

at 16–17; see also

(stating that the conduct at issue “needs to have a serious

penalty with it, and that’s why I’m varying upwards.”). A district court is permitted to

“vary from the . . . Guidelines based on [a] policy disagreement with them.” Spears v.

8 United States,

(2009) (per curiam) (emphasis omitted); see also

Tomko,

; United States v. Arrelucea-Zamudio,

(3d Cir.

2009).

Notably, “closer review may be in order when the sentencing judge varies from

the Guidelines based solely on the judge’s view that the Guidelines range ‘fails properly

to reflect § 3553(a) considerations’ even in a mine-run case.” Kimbrough v. United

States,

(2007) (quoting Rita v. United States,

(2007)).

Here, it appears likely that the District Court believed that the Guidelines were too lenient

even in a typical case under the statute, given that Mr. Ware (who had a minimal criminal

history) had not been convicted on any substantive count. Still, our close review reveals

no basis for reversal. The District Court provided “a reasoned, coherent, and sufficiently

compelling explanation of the basis for [its] disagreement,” which was thoroughly

“grounded in the § 3553(a) factors.” United States v. Grober,

(3d Cir.

2010) (quoting United States v. Merced,

(3d Cir. 2010)) (alteration in

original). Accounting for all the sentencing factors, it explained that “its policy judgment

would serve the § 3553(a) sentencing goals” (including because a “serious penalty” is

necessary for “deterrence,” Ware App. 20). 5 Grober,

(quoting Merced,

).

5 The reasonableness of the District Court’s determination is further demonstrated by the fact that in 2016, the United States Sentencing Commission amended the Guidelines to raise the base offense level for animal fighting from ten to sixteen. Pursuant to this amendment, Mr. Ware’s guideline sentence would have been twenty-four to thirty months. U.S.S.G. § 2E3.1. Thus, the District Court’s variance comports with the Sentencing Commission’s assessment of the penalties commensurate with offenses 9 In summary, the District Court found that Mr. Ware had engaged in “substantial

activity in furtherance of the animal fighting venture,” including “very substantive

conduct that deserves 24 months of imprisonment.” Ware App. 20. It also deliberately

calibrated the sentence to be consonant with the sentences imposed on defendants in

related cases. The District Court concluded, “this conduct is just extraordinarily

outrageous and criminal and needs to be punished based on [Mr. Ware’s] activities.” Id.

at 21. On this record, which we review for abuse of discretion, we conclude that the

variance was based on legitimate, appropriate, and sufficiently individual considerations.

The District Court did not abuse its discretion in varying upward.

II. Appellant Elliott

A. Background

In June 2016, federal agents searched Mr. Elliott’s residence, where co-conspirator

Frank Nichols also resided. There, they discovered thirteen pit bull-type dogs, housed in

a manner consistent with dogfighting; medical supplies, equipment, and medication;

documents including registration for dogs and pedigree information; and items such as

“break sticks” and dog restraining devices. A pedigree book found in the search

contained an entry for “Elliott’s Shottsie,” owned by Robert Elliott, and “Arrelano’s

involving an animal fighting venture. See Sentencing Guidelines for United States Courts,

(May 5, 2016) (“The Commission also determined that the increased base offense level better accounts for the cruelty and violence that is characteristic of these crimes, as reflected in the extensive public comment and testimony . . . .”). 10 Sugar.” 6 A registry specific to fighting dogs listed Mr. Elliott as the breeder and owner

for “Elliott’s 2 Face,” which was the offspring of “Elliott’s Cindy” and “Elliott’s Black.”

Other pedigree records showed that Mr. Elliott had owned and bred numerous dogs. It

was stipulated, however, that Mr. Elliott did not own Fancy, one of the dogs found at his

home. Rather, the evidence indicated that Mr. Gaines owned Fancy, and she was

temporarily in the care of Mr. Nichols and Mr. Elliott while they whelped a litter of

Fancy’s puppies.

The evidence at trial further showed that Mr. Elliott was mentioned in a call

between Mr. Nichols and Mr. Gaines. Mr. Nichols told Mr. Gaines that he and Elliott

“were trying to find some rolls for these bitches,” referring to a particular type of

dogfight. Elliott App. 2656. Mr. Nichols then said, referring to Mr. Elliott, “he was

telling me to call you and ask you, . . . could you hook something up for us?”

On a

call with Lydell Harris, another co-conspirator, Mr. Gaines mentioned Mr. Elliott, saying,

“Bob, he so good with them dogs, man, Fancy been off of her puppies after the first week

and a half, man.” Elliott App. 2658.

Mr. Elliott was convicted of (i) one count of conspiracy to sell, buy, possess, train,

transport, deliver, and receive dogs for purposes of having the dogs participate in animal

fighting ventures, contrary to

(b) and

and in violation of

; and (ii) twelve counts of knowingly possessing a dog for purposes of

having the dog participate in an animal fighting venture in violation of 7 U.S.C.

6 Despite the misspelling, it appears that this may be a reference to co-conspirator Robert Arellano. See n.1. 11 § 2156(b),

, and

. He was acquitted of conspiracy to sponsor

and exhibit dogs in an animal fighting venture.

At sentencing, the District Court found that the twelve convictions for possession

of dogs should not be “grouped” under the United States Sentencing Guidelines. As a

result, the District Court imposed a sentence of 24 months. Had the counts been grouped,

the maximum sentence under the Guidelines would have been twelve months of

imprisonment. See U.S. SENT’G GUIDELINES MANUAL § 5A (U.S. SENT’G COMM’N

2015).

On appeal, Mr. Elliott claims for the first time that (1) the evidence at trial in fact

proved multiple conspiracies, thus varying from the indictment, and that he was

prejudiced as a result, and (2) that the District Court’s grouping analysis was erroneous.

B. Claimed Variance from Indictment

We “review the sufficiency of the evidence in the light most favorable to the

Government, and credit all reasonable inferences that support the verdict[].” United

States v. Perez,

(3d Cir. 2002). Because this claimed error was not

brought to the District Court’s attention, we will reverse only if it constitutes plain error

affecting Mr. Elliott’s substantial rights. United States v. Olano,

, 734–35

(1993).

Mr. Elliott asserts that at trial, the Government proved at least two conspiracies:

one involving Messrs. Gaines, Nichols, Arellano, Ware, and Love, and the other

involving only Messrs. Gaines, Nichols, and Elliott. See Kotteakos v. United States,

(1946). He emphasizes that of the alleged co-conspirators, he had direct contact

12 with only one—Frank Nichols, who in turn interacted with Mr. Gaines on Mr. Elliott’s

behalf. Mr. Elliott asserts that there was no evidence at trial showing that he had contact

with or knowledge of Mr. Arellano, Mr. Love, and Mr. Ware, or more generally that he

had reason to know the nature or extent of Mr. Gaines’s dogfighting activity. In contrast,

he submits, Mr. Arellano, Mr. Love, and Mr. Ware all had direct contact with one another

and “played related roles in specific dog fighting and dog training activities with Mr.

Gaines and to a lesser extent with Mr. Nichols.” Elliott Br. 24–25.

“A conviction must be vacated when (1) there is a variance between the

indictment and the proof presented at trial and (2) the variance prejudices a substantial

right of the defendant.” United States v. Kelly,

(3d Cir. 1989). Where

an indictment alleges a single conspiracy but the evidence at trial “proves only the

existence of multiple conspiracies,” there is a variance.

When an appellant claims a variance, “we evaluate whether the record, when

viewed in the light most favorable to the government, contains substantial evidence” that

defendant was part of a single conspiracy that also included his co-conspirators. United

States v. Kemp,

(3d Cir. 2007). “[T]o determine whether a series of

events constitutes a single conspiracy or separate and unrelated conspiracies,” we:

(1) “examine whether there was a common goal among the conspirators,” (2) “look at the

nature of the scheme to determine whether ‘the agreement contemplated bringing to pass

a continuous result that will not continue without the continuous cooperation of the

conspirators,’” and (3) “examine the extent to which the participants overlap in the

13 various dealings.” Kelly,

(quoting United States v. DeVarona,

(5th Cir. 1989)).

Here, viewing the evidence in the light most favorable to the Government, the

record contains substantial evidence that Mr. Elliott and his alleged co-conspirators,

including his co-defendants, joined a single conspiracy to sell, buy, possess, train,

transport, deliver, and receive dogs for the purpose of having the dogs participate in an

animal fighting venture.

First, the evidence supports a finding that the co-conspirators shared a common

goal, to wit: advancing dogfighting activities, specifically by possessing, receiving,

selling, conveying, or training dogs for fighting. Mr. Elliott does not appear to contest

this.

Second, the agreement contemplated bringing to pass a continuous result that

required the cooperation of all the conspirators, including Mr. Elliott. The trial evidence

showed that at one point Mr. Elliott possessed twelve dogs, not including Fancy, that

were being raised to fight, and that he weaned Fancy’s puppies for Mr. Gaines. At trial,

an expert witness testified that individuals involved in dogfighting “typically want to

have more animals than not, so that they can refresh their yard or they can breed, and so

that they have a selection or variety.” Elliott App. 1633. The same witness testified to

the importance of pedigree for those seeking to acquire new fighting dogs.

Weaning the offspring of Fancy, an experienced fighting dog, enabled the

purchases, further breeding, and actual fighting that were essential to this common

venture. Maintaining other dogs—whether to present as opponents in fights or to sell or

14 use for breeding—is similarly integral to the continuous result contemplated: moving,

training, and keeping dogs for animal fighting ventures. In other words, Elliott’s

activities were “necessary or advantageous to . . . . the overall success of the venture” in

which all his co-defendants were engaged. Kelly, 892 F.3d at 259 (quoting DeVarona,

). The evidence showed that Mr. Elliott also relied on other parties to the

conspiracy, as when he (through Mr. Nichols) asked Mr. Gaines to help them find

dogfights for the dogs in their possession.

Finally, this is not a classic “rimless wheel” conspiracy where the co-conspirators

are connected to one another only via the central actor—the “hub.” See Kotteakos, 328

U.S. at 754–55. Rather, the activities of the co-conspirators overlapped significantly.

For instance, Mr. Nichols and Mr. Gaines transported a dog to Mr. Ware, and Mr.

Arellano sold and conveyed dogs to Mr. Gaines, Mr. Love, and Mr. Ware.

For the foregoing reasons, we will affirm Mr. Elliott’s conspiracy conviction.

C. Application of Grouping Rules

Because Mr. Elliott did not object to the application of the grouping rules at trial,

we review the sentence for plain error. Olano, 507 U.S. at 734–35.

When sentencing Mr. Elliott, the District Court noted that the Third Circuit has yet

to decide whether dogs qualify as “victims” for sentencing purposes, such that crimes

involving different dogs are not grouped under § 3D1.2 of the Guidelines. In light of

this, it provided an alternative basis for its sentence:

[I]f the event occurs that the presentence report as I have adopted [it] is not accepted by the Third Circuit because they think that the possession of the dogs should be grouped, my rationale on the 24 months would stay the same.

15 With Mr. Elliott, he was a 10, which was—I think the max was 14 months; and I added 10 months to get to the 24.

I would do the same if I had Mr. Elliott and his guidelines was a 10 rather than a 15, I would impose a sentence of 14 months and I would add 10 as an upward variance, because the guidelines do not reflect the seriousness of the offense. So under either circumstance[] I would maintain that the sentence that I imposed here is appropriate.

Elliott App. 2547.

In fact, if Mr. Elliott’s base offense level were a ten, the Guidelines range would

have been six to twelve months given his criminal history category of I. U.S. SENT’G

GUIDELINES MANUAL § 5A (U.S. SENT’G COMM’N 2015). Still, the District Court’s

statement that it would vary upward “to get to” the twenty-four-month sentence indicates

that it viewed this as the appropriate sentence after application of the § 3553(a) factors.

Indeed, the District Court explained its decision not to vary from that sentence

because, inter alia, it believed the twenty-four-month sentence avoided “unwarranted

sentencing disparities between Mr. Elliott and other folks that were involved in this

conspiracy.” Elliott App. 2544. It stated that Mr. Elliott’s conduct was, in its view,

“similar to [that of] Mr. Ware,” Elliott App. 2545, who also received a twenty-four-

month sentence.

Because the District Court expressly stated that it would have imposed the same

sentence even if the counts were grouped, Mr. Elliott was not prejudiced by the grouping

analysis. Thus, we will not disturb the sentence on plain error review. See Olano, 507

U.S. at 734–35.

16 III. Appellant Love

A. Background

Mr. Love was convicted of (i) conspiracy to sponsor and exhibit dogs in animal

fighting ventures, contrary to

(a)(1) and

and in violation

of

; (ii) conspiracy to sell, buy, possess, train, transport, deliver, and

receive dogs for purposes of having the dogs participate in animal fighting ventures,

contrary to

(b) and

and in violation of

;

(iii) two counts of knowingly purchasing and receiving a dog for purposes of having the

dog participate in an animal fighting venture, contrary to

(b),

, and

; and (iv) six counts of knowingly possessing a dog for purposes

of having the dog participate in an animal fighting venture, contrary to

(b),

, and

.

At trial, Mr. Love attempted to establish that his participation in the conspiracy

was in his capacity as an informant in a dogfighting investigation. Specifically, Mr.

Love sought to develop the theory that he had cooperated with Larry Donato, then a New

Jersey SPCA officer, when he “engaged in activities designed to cultivate information

about dog fighting ventures and persons involved in illegal dog fighting activities.” Love

App. 116a. The Government argued that Mr. Love was asserting a public authority

defense and that he had failed to comply with the notice requirements set forth in Federal

Rule of Criminal Procedure 12.3.

This rule prescribes the procedures to be followed “[i]f a defendant intends to

assert a defense of actual or believed exercise of public authority on behalf of a law

17 enforcement agency or federal intelligence agency at the time of the alleged defense.”

Fed. R. Crim. P. 12.3(a)(1). The rule requires the defendant to inform the prosecution of

her intent to assert the defense “within the time provided for filing a pretrial motion.”

It also permits the government to make a written request, before trial, for the defendant to

disclose the identity of witnesses upon whom the defendant intends to rely to establish

the defense. Fed. R. Crim. P. 12.3(a)(4).

On the fourth day of trial, the Government petitioned the District Court to preclude

the testimony of any witnesses who would have testified in support of a public authority

defense, including “Government witnesses who have been subject to cross-examination

under this theory.” Love App. 31a. When the issue was first raised, Mr. Love’s counsel,

Mr. Powell, argued that Rule 12.3 was inapplicable. In a written submission and

subsequent oral presentations, Mr. Powell explained that Mr. Love sought to assert an

“innocent intent” defense, as opposed to a public authority defense. 7

The District Court initially denied the Government’s motion, which the

Government subsequently renewed multiple times. The first renewal was based on new

discovery the Government had obtained from Mr. Powell, including text messages in

which Mr. Love appeared to tell Mr. Donato that he was working for a federal

government employee. The District Court deemed the issue unripe and declined to rule

on the renewed motion. The Government next raised the issue at a sidebar while Mr.

7 In this letter motion, Mr. Powell further maintained that the lack of prior notice had not caused prejudice to the Government and that Mr. Love should be permitted to develop the public authority defense. However, Mr. Powell maintained consistently that Mr. Love was not asserting a public authority defense and would not do so. 18 Love was on the stand, after Mr. Powell had asked him various permutations of the

question: “Everything that we’ve seen in the case that relates to you, to your

understanding were those all activities undertaken by you at the behest of Mr. Donato?”

Elliott App. 2234–35. Prior to this sidebar, Mr. Love had also testified about unproduced

emails with Donato and had discussed his interactions with “an alleged public official

named John for whom [the defense] ha[d] a recording that [the Government] never

received.” 8 Love App. 92a. The District Court did not rule on the motion at this time.

After Mr. Love’s testimony had concluded, the District Court found he had

certainly “asserted an actual exercise of public authority.” Love App. 103a. The District

Court granted the Government’s renewed motion.

The immediate result of this ruling was the preclusion of certain testimony of

Special Agent Nicholas Tranchitella. Mr. Powell had proffered that Agent Tranchitella’s

testimony would be relevant “as to whether or not he had an opportunity to interview Mr.

Donato and as to whether or not Mr. Donato is actually a real person and a real former

employee of the SPCA.” Love App. 101a. The District Court also charged the jury

regarding the public authority defense, over Mr. Powell’s objection, and did not instruct

the jury regarding an innocent intent defense. In its jury charge, the District Court stated

that Mr. Love should not be found guilty if the jury were to find that (1) a government

official directed Mr. Love to engage in the conduct charged against him, (2) the official

8 More broadly, Mr. Love had also testified throughout his direct examination about the informant relationship he had purportedly developed with Mr. Donato and other police officers, as well as the actions he took to further these relationships. 19 had actual or apparent authority to grant such authorization, and (3) in engaging in the

conduct, Mr. Love reasonably relied on the official’s actual or apparent authorization.

Mr. Love claims that the District Court erred in treating his theory as a public

authority defense and therefore erred in excluding a defense witness and charging the

jury on a public authority defense but not an innocent intent defense. In the alternative,

he argues that he did have a viable public authority defense, and his counsel was

ineffective in failing to pursue that defense (including by failing to follow the prescribed

procedures).

B. Rulings Pursuant to Rule 12.3

We review the district court’s exclusion of evidence for abuse of discretion, and

we apply the same standard to jury instructions. United States v. Duka,

(3d Cir. 2011); United States v. Jimenez,

(3d Cir. 2008); Glass v.

Phila. Elec. Co.,

(3d Cir. 1994). “Evidentiary errors objected to at trial

are reviewed for harmless error”; error is harmless if “it is highly probable that the error

did not affect the result.” United States v. DeMuro,

(3d Cir. 2012)

(quoting United States v. Friedman,

(3d Cir. 2011)). An erroneous

jury instruction issued over the defendant’s contemporaneous objection will be upheld

only if “harmless beyond a reasonable doubt.” Cordaro v. United States,

(3d Cir. 2019) (quoting United States v. Fattah,

(3d Cir. 2019)).

1. Exclusion of Evidence

It is highly probable that the exclusion of Agent Tranchitella’s testimony did not

affect the result in this case, so any error was harmless. The innocent intent defense

20 implicates the defendant’s mental state; it asserts that the requisite mens rea was lacking.

See United States v. Baptista-Rodriguez,

, 1368 n.18 (11th Cir. 1994). Mr.

Powell explicitly disclaimed any intention to elicit testimony about the “nature of the

conversation between Special Agent Tranchitella and Larry Donato,” but he maintained

that Agent Tranchitella’s testimony would have been relevant to establish Mr. Donato’s

actual existence and erstwhile employment by the SPCA. Love App. 101a. These

facts—that Mr. Donato is not fiction or figment, and that he was indeed an SPCA

employee 9—are not particularly probative of Mr. Love’s mental state. See United States

v. Anderson,

, 1517–19 (11th Cir. 1989) (“Appellants’ claim of innocent

intent was adequately raised without the [excluded] material,” which “added little, if

anything, to the plausibility of their claim”; further, excluded material was likely to

confuse or mislead the jury and therefore was properly excluded under Federal Rule of

Evidence 403).

Indeed, the substantial relevance of the testimony would have been to support a

public authority defense. Of course, Mr. Love maintains that he did not seek to mount

such a defense. More to the point, if he did intend to do so, the exclusion of the

testimony would have been proper pursuant to Rule 12.3 because Mr. Love did not

provide the requisite notice under the rule.

9 The Government did not attempt to contest these facts. For instance, it made no objection to Mr. Powell’s discussing, during redirect examination of Mr. Love, the U.S. Attorney’s Office having interviewed Mr. Donato. 21 2. Jury Instructions

Mr. Love was not prejudiced by the District Court’s delivery of a jury instruction

on the public authority defense. Though he argues that the instruction imposed on him “a

burden of proof on a defense that was not his,” Love Br. 49, he was required to shoulder

this burden only if he intended to make out a public authority defense. See United States

v. Sanders,

, 675–76 (7th Cir. 1992) (court did not err in delivering

instruction on coercion defense where defendants did not assert this defense and facts did

not support coercion as a matter of law, but nonetheless the evidence “may have raised a

question about coercion in the jury’s mind,” and the instruction “address[ed] possible

doubt on this issue”); see also Martin v. Ohio,

, 233–34 (1987) (due process

clause not violated where defendant was required to prove self-defense, even though

elements of crime and of self-defense overlap). If he did not seek to raise the defense to

begin with, the instruction did not alter his onus. Indeed, the District Court properly

instructed the jury that “each defendant is presumed innocent and he is not required to

present any evidence or produce any witnesses.” Elliott App. 2449.

We do not here insinuate that a superfluous jury instruction on an affirmative

defense will always be harmless beyond a reasonable doubt. It may well be that, on the

facts of a particular case, the administration of a superfluous instruction could confuse the

jury or unfairly color the jury’s perception of the evidence. Here, however, Mr. Love has

22 not identified any source of prejudice other than burden-allocation, and we find none. 10

In this case, therefore, the instruction given was harmless beyond a reasonable doubt.

Nor did the District Court abuse its discretion in declining to charge the jury on an

innocent intent defense. Innocent intent is not an affirmative defense, but rather an

assertion that the prosecution has not borne its burden in proving the requisite mens rea.

Thus, specific jury instructions were not required.

In United States v. Gross, this Court, aligning itself with the majority of circuits to

have addressed the issue, held that “the good faith defense instruction is merely

surplusage”; it is “simply a reiteration that the government must carry its burden in

demonstrating that the accused acted knowingly and willfully.”

(3d

Cir. 1992). 11 In Gross, we determined that “[b]y giving a detailed instruction on the

elements of the crime with which Gross was charged, the court ensured that a jury finding

of good faith would lead to an acquittal.”

. So too here: no additional

instruction was necessary to facilitate a finding that Mr. Love had an “innocent intent”

and therefore lacked the requisite mens rea.

10 If anything, the instruction delivered (which did not refer to a federal government official and which encompassed apparent as well as actual authority) may have been more favorable to Mr. Love than the instruction requested (which would have required the imprimatur of a federal official, as discussed below). Compare Elliott App. 2479–80 with Love App. 108a and Fed. Crim. Jury Instr. 7th Cir. 6.07 (2020 ed.) 11 Like the innocent intent defense, the good faith defense is essentially an assertion that the defendant lacked the specific intent that is an element of the charged crime; they are different terms for the same theory. Compare United States v. Xiong,

, 1159–60 (8th Cir. 2019), with Gross,

. 23 Further, the particular instruction Mr. Powell sought was inapposite. Counsel

specifically sought an instruction based on the Seventh Circuit’s model jury charge for

“Entrapment by Estoppel.” The Seventh Circuit has held that the “Entrapment by

Estoppel” defense is very narrow and “does not apply when a defendant charged with a

federal crime claims to have been misled by a state official.” United States v. Baker,

(7th Cir. 2006). Indeed, the model jury instruction lists the first element of

this defense thus: “An official of the United States government, with actual or apparent

authority over the matter, told the defendant that his conduct would be lawful.” Fed.

Crim. Jury Instr. 7th Cir. 6.07 (2020 ed.) (emphasis added). The District Court did not

err in declining to deliver this instruction.

C. Ineffective Assistance of Counsel

This Court has expressed a “strong preference for reviewing allegations of

ineffective assistance of counsel in collateral proceedings under

rather

than on direct appeal.” United States v. Sandini,

(3d Cir. 1989)

(collecting cases). We have recognized a narrow exception to this general rule where the

trial record is sufficiently developed to permit resolution of the issues on appeal. See

United States v. Headley,

(3d Cir. 1991).

Here, as the District Court noted, a hearing would be necessary to fully develop

the record regarding Mr. Powell’s performance and strategy. Accordingly, the challenge

is more properly taken up in a collateral proceeding, and we will not reach the issue on

this direct appeal.

24 CONCLUSION

For the foregoing reasons, we will affirm the District Court’s judgments of

conviction.

25