NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 17-1928 _______________

UNITED STATES OF AMERICA

v.

CALIPH BARR, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 2-14-cr-00592-001) District Judge: Honorable Kevin McNulty ____________

Argued: January 13, 2020

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

(Filed: July 12, 2021) ____________

Carol Gillen [Argued] K. Anthony Thomas Office of the Federal Public Defender 1002 Broad Street Newark, NJ 07102

Counsel for Appellant Caliph Barr Mark E. Coyne Steven G. Sanders [Argued] Office of the United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102

Counsel for Appellee United States of America

____________

OPINION ∗ ____________

PORTER, Circuit Judge.

In 2015, a jury convicted Caliph Barr for possessing a firearm as a felon in

violation of

(g)(1) and 924(a)(2). Under our precedent at that time, to

obtain a felon-in-possession conviction the government had to prove that Barr knowingly

possessed a firearm, but it did not have to prove that Barr knew he was a felon when he

had the firearm.

In Rehaif v. United States,

(2019), the Supreme Court held that in

prosecutions under §§ 922(g) and 924(a)(2), “the Government must prove both that the

defendant knew he possessed a firearm and that he knew he belonged to the relevant

category of persons barred from possessing a firearm.” Id. at 2200. Citing Rehaif, Barr

now argues that his 2015 conviction was undermined by two errors: (1) the government

did not adduce sufficient evidence to prove that he knew he was a felon on the night that

he was caught with a gun, and (2) the District Court did not instruct the jury that the

∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.

2 government had to prove that Barr knew he belonged to the relevant category of persons

(i.e., felons) prohibited from possessing a gun.

Aside from the Rehaif issues, Barr argues that the government’s evidence could

not sustain the jury’s guilty verdict. Finally, he asserts that the District Court abused its

discretion by denying his motion for a mistrial based on alleged prosecutorial

misconduct.

Barr’s arguments are unavailing, so we will affirm his conviction and the District

Court’s orders.

I

A

Around midnight on June 2, 2014, Detective Trevor Forde and other police

officers approached a group of men standing at a street corner. Barr began to run away,

holding his pants by the waistband. Forde pursued Barr on foot. Barr pulled a gun from

his waist, and Forde ordered him to drop it. Barr dropped the gun in the yard where he

was standing, then ran down an adjacent alley. Forde stayed with the discarded gun while

other officers pursued and caught Barr. When questioned, Barr gave the police a fake

name because he possessed marijuana and had an outstanding warrant for violating

parole.

B

Barr was charged with a single count of possessing a firearm as a felon. He

pleaded not guilty and proceeded to trial. At trial, Barr stipulated that he had a prior

felony conviction. During Forde’s testimony, the government introduced printed photos

3 of the yard on the night of Barr’s arrest. Barr objected to the photos because he believed

they were brighter than the digital images he received on a disk during discovery and

printed for trial. The parties agreed to introduce both sets of printed photos. 1 The next

day, the government conceded that its printed photos were autocorrected to make the

details more visible. Barr moved for a mistrial. After reviewing the photos, the District

Court denied Barr’s motion, required the parties to rely only on the discovery disk

versions of the photos (displayed on monitors), and instructed the jury that the photos did

not represent the lighting conditions on the night of the arrest.

Testifying in his own defense, Barr claimed the gun was not his and suggested that

it was likely in the yard before he and Forde arrived. The jury convicted Barr. He timely

appealed.

In Barr’s opening brief, he raised two points: (1) the evidence adduced at trial

could not sustain the jury’s verdict; and (2) the District Court erred when it denied Barr’s

motion for a mistrial based on the autocorrected photographs.

After the Supreme Court decided Rehaif, Barr filed a supplemental brief. First,

Barr argued that even if the government proved that he possessed a gun, its evidence was

insufficient to prove beyond a reasonable doubt that Barr knew he was a felon when he

was apprehended with the gun. Second, Barr argued that the District Court’s jury charge

was erroneous under Rehaif because it failed to instruct the jury about the knowing-status

1 Barr did not include the photographs in the appellate record. Cf. 3d Cir. L.A.R. 30.3(a) (requiring a party to include “[r]elevant portions of [the] . . . exhibit[s] . . . referred to in the briefs . . . as may be necessary to preserve context”).

4 element of the offense. Because of these errors, Barr asserts that he was convicted

without due process of law.

We will address the Rehaif issues raised in Barr’s supplemental brief and then

consider his original arguments.

II 2

The District Court did not instruct the jury about the knowing-status element of

the felon-in-possession offense, and Barr’s trial counsel did not object to the instruction.

That is understandable because before Rehaif this Court did not require such an

instruction. See United States v. Huet,

(3d Cir. 2012) (requiring a

knowing mens rea for only the possession element). Because Barr did not preserve the

error, we review for plain error. See Johnson v. United States,

, 466–67

(1997).

Under Rule 52(b) of the Federal Rules of Criminal Procedure, “before an appellate

court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’

and (3) that ‘affect[s] substantial rights.’”

(quoting United States v. Olano,

(1993)). If all three conditions are met, we may exercise our discretion to

correct a “particularly egregious” error, United States v. Frady,

(1982),

that (4) “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings,” Olano,

(alteration in original) (internal quotation marks

omitted) (quoting United States v. Young,

(1985)).

2 The District Court had subject-matter jurisdiction under

. We have jurisdiction under

.

5 After Rehaif, the first two plain-error conditions are easily met. See Johnson,

(“[W]here the law at the time of trial was settled and clearly contrary to the

law at the time of appeal—it is enough that an error be ‘plain’ at the time of appellate

consideration.”). But to obtain reversal of his conviction, Barr must also show that the

error affected his substantial rights. That he has not done.

The Supreme Court recently explained how courts should assess whether a Rehaif

instructional error affected a defendant’s substantial rights. “[A defendant] has the burden

of showing that, if the District Court had correctly instructed the jury on the mens rea

element of a felon-in-possession offense, there is a ‘reasonable probability’ that he would

have been acquitted.” Greer v. United States,

(2021) (quoting

United States v. Dominguez Benitez,

(2004)). 3 Because felons typically

know they are felons, a defendant “faces an uphill climb in trying to satisfy the

substantial-rights prong of the plain-error test based on an argument that he did not know

he was a felon.”

The Supreme Court acknowledged that “there may be cases in which

a defendant who is a felon can make an adequate showing on appeal that he would have

3 Greer abrogates our decision in United States v. Nasir,

(3d Cir. 2020) (en banc), petition for cert. filed, No. 20-1522 (Apr. 30, 2021), to the extent it granted plain- error relief. As relevant here, we may no longer follow Nasir’s holding that, where a jury was not presented with evidence that a defendant knew he was a felon at the time of possession, “it is at least reasonably probable, if not certain, that the jury would not have found there was proof beyond a reasonable doubt of the knowledge-of-status element, if it had known it was required to consider that element.”

. Rather, a defendant’s stipulation to a felony conviction will ordinarily prevent him from showing a reasonable probability that he would have been acquitted if the jury had been properly instructed. See Greer,

(“[A]bsent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.”).

6 presented evidence in the district court that he did not in fact know he was a felon when

he possessed firearms.”

But where “a defendant does not make such an argument or

representation on appeal,” we “have no reason to believe that the defendant would have

presented such evidence to a jury, and thus no basis to conclude that there is a

‘reasonable probability’ that the outcome would have been different absent the Rehaif

error.”

So it is here. Barr stipulated before trial that he was a felon as of June 2, 2014. And

as the government correctly points out in a letter submitted under Federal Rule of Appellate

Procedure 28(j), Barr has “never argued that he would have plausibly contested the

knowledge-of-status element.” ECF No. 116. Barr thus “cannot show that, but for the

Rehaif error in the jury instructions, there is a reasonable probability that [the] jury would

have acquitted him.” Greer,

. Because the error that occurred in this case

did not affect Barr’s substantial rights, we may not correct it under Rule 52(b).

III

Barr argues that insufficient evidence supported the jury’s verdict that he

knowingly possessed a firearm. When a defendant moves for judgment of acquittal based

on insufficiency of the evidence, we review de novo the District Court’s denial of the

motion and apply the same legal standard used by the District Court. United States v.

Caraballo-Rodriguez,

(3d Cir. 2013) (en banc). So we ask “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

at 424–25 (internal quotation marks omitted) (quoting Jackson v. Virginia,

7 307, 318–19 (1979)). Under this standard, the evidence at trial was sufficient for a

rational juror to find beyond a reasonable doubt that Barr knew he possessed a firearm.

First, Forde testified that he saw Barr pull the gun from his waistband and drop it.

A single eyewitness’s testimony alone can be sufficient evidence. See United States v.

Trant,

(3d Cir. 2019) (“[W]e have never required that a firearm

conviction be supported by the testimony of at least two witnesses.”). A rational trier of

fact could “readily conclude” from Forde’s direct eyewitness testimony that Barr actually

possessed a firearm. See United States v. Walker,

(3d Cir. 2011).

Second, Detectives Forde and DeLauri testified that Barr held his pants by the

waistband as he ran. Based on his training and experience, Detective DeLauri testified

that this likely meant that Barr possessed a gun. Detectives Forde and DeLauri also

testified that police recovered the gun in the yard where Barr dropped it, right next to one

of Barr’s shoes and his cell phone. Then, once arrested, Barr gave the police a fake name,

which may be evidence of his “consciousness of guilt.” United States v. Kemp,

, 296–97 (3d Cir. 2007) (noting that false exculpatory statements are admissible

evidence of consciousness of guilt). Viewing all this evidence in the light most favorable

to the government, a rational trier of fact could find beyond a reasonable doubt that Barr

possessed a firearm.

IV

Finally, Barr asserts that the District Court abused its discretion by denying his

motion for a mistrial based on the government’s introduction of autocorrected

photographs. We disagree.

8 A district court abuses its discretion if its decision is “arbitrary, fanciful, or clearly

unreasonable—in short, where no reasonable person would adopt the district court’s

view.” United States v. Foster,

, 107 n.11 (3d Cir. 2018) (internal quotation

marks omitted) (quoting United States v. Green,

(3d Cir. 2010)). Here,

to find that the District Court abused its discretion “we must first be convinced that the

prosecution” committed misconduct. United States v. Rivas,

(3d Cir.

2007).

Both parties agree that the government introduced autocorrected photographs

during Barr’s trial. The District Court compared the government’s photos, the defense’s

photos, and the original discovery disk photos. The District Court found that the

government’s photos “diverge[d] in minor ways” from the disk photos but did not “differ

in terms of content” or “in terms of visible detail in any important way.” App. 273. 4 The

District Court did not find “any vast or prejudicial discrepancy between” the

government’s photos and the disk photos. App. 279. Nevertheless, the District Court

appropriately cautioned the jury about what the printed photos showed (physical layout)

and did not show (lighting conditions).

Based on the minor differences between the photographs and the District Court’s

careful attention to the matter, we are not persuaded by Barr’s argument that the

4 The District Court, however, found that Barr’s printouts “diverge[d] a lot more from what [the Court] saw on the screen” because Barr’s printed photos were “very, very dark.” App. 273.

9 prosecution committed misconduct. The District Court did not abuse its discretion by

denying Barr’s motion for a mistrial.

* * *

We may not cure the Rehaif error that occurred during Barr’s trial because Barr

has not shown that the error affected his substantial rights. In addition, the District Court

neither erred by denying Barr’s motion for acquittal based on the sufficiency of the

evidence nor abused its discretion by denying Barr’s motion for a mistrial based on the

government’s admitted photographs. We will affirm Barr’s conviction and the District

Court’s orders. 5

5 The government’s motion for judicial notice is denied as moot.

10