NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1042 _____________

UNITED STATES OF AMERICA

v.

JAMAR BATTLE, Appellant ________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 2-18-cr-00524) District Judge: Honorable William J. Martini ______________

Argued: June 24, 2021 ______________

Before: CHAGARES, PORTER, and ROTH, Circuit Judges

(Opinion filed: August 5, 2021) ___________

Michael P. Koribanics [ARGUED] Koribanics & Koribanics 685 Van Houten Avenue Clifton, NJ 07013

Counsel for Appellant

Mark E. Coyne Steven G. Sanders [ARGUED] Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102

Counsel for Appellee ____________

OPINION* ____________

CHAGARES, Circuit Judge.

A jury convicted Jamar Battle of knowingly possessing a firearm after having

previously been convicted of a felony, in violation of

(g)(1). Battle now

argues that he is entitled to a new trial because the Government engaged in prosecutorial

misconduct and failed to prove that he knew he was a convicted felon. For the following

reasons, we will affirm the District Court’s judgment of conviction.

I.

We write solely for the parties and so recite only the facts necessary to our

disposition. Battle was incarcerated from March 2013 through May 2018 because he

committed a felony. On July 4, 2018, he had an argument with his then-girlfriend

Takiyah Todd, who was at a party with a friend. Battle threatened to shoot that friend

during a phone call with Todd that night. After the call, Todd sent Battle a text message

saying “u not bout shoot at my friend car.” App. 272; Supp. App. 14. When Todd’s

friend drove her back to her apartment, Battle approached the car and a gun was fired.

Todd’s neighbor George Molina believed he saw Battle fire the gun at the friend’s car

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

2 and then leave in another car owned by a man named Jahid Vauters. The bullets fired

that night struck L.W., a girl who was passing by with her family. Battle texted Todd

shortly after the shooting; in response to her message “You scared me 4real,” he

answered “U tried to play me wit ur friend so thts wat it is. Bet!” App. 272; Supp. App.

14.

Battle was later indicted on one count of knowingly possessing a firearm as a

convicted felon, to which he pleaded not guilty. In pretrial custody, Battle spoke on a

recorded prison line with Vauters. He told Vauters to meet him in person, saying “I don’t

even want to talk . . . over this phone.” App. 411–14; Supp. App. 16–17. Also before

trial, Battle filed a motion in limine to preclude the admission of L.W.’s medical records

and testimony from her father. The District Court entered an order precluding the

Government from introducing L.W.’s medical records, allowing her father to testify

“except that he is prohibited from testifying about the shooting victim’s age,” and

providing that “no party or witness shall make any reference or argument to the shooting

victim’s medical records or age.” App. 19. Prior to jury selection, the court orally

confirmed with the parties “that at the trial there [would] be no mention of the age of the

victim.” App. 42–43.

The Government and its witnesses referred to L.W. as a “child” or “little girl”

multiple times at trial, but Battle did not object to these references. The Government also

entered the recorded phone call between Battle and Vauters into evidence without

objection. The parties stipulated that Battle had been convicted of a crime punishable by

imprisonment for a term exceeding one year. Battle argued at trial that he did not possess

3 the gun that injured L.W. He elicited testimony reflecting that he was imprisoned from

2013 through 2018, a time in which others used the same gun to commit various crimes.

In summation, the Government argued that Battle told Vauters that he did not want

to speak on the phone because he knew it was being recorded. Battle objected that this

reference violated his right to remain silent, but the District Court disagreed. During

rebuttal, the Government also asked the jury to consider “what was proven” to support

Battle’s theory of the case, prompting Battle to object that the Government sought to shift

the burden of proof. In response, the District Court instructed the jury that the

Government bore the burden of proof at all times and Battle did not have to prove

anything. The District Court later instructed the jury that it did not need to find that

Battle knew of his status as a felon in order to find him guilty. The jury convicted Battle.

Battle filed a motion for acquittal or a new trial, arguing that the evidence was

insufficient to prove that he possessed a firearm and that the Government’s comments

during rebuttal deprived him of his right to a fair trial. The District Court denied the

motion, holding that the evidence sufficed in light of Battle’s text messages, witness

testimony that Battle was the shooter, and video evidence corroborating that testimony.

The court also held that its curative instructions mitigated any prejudice that would have

resulted from the Government’s comments in rebuttal. Battle filed a second motion for a

new trial following the United States Supreme Court’s decision in Rehaif v. United

States,

(2019), arguing that the Government failed to prove that Battle

knew of his status as a convicted felon. The District Court denied that motion too,

reasoning that no rational jury would conclude that Battle did not know his status since

4 he elicited testimony that he had been incarcerated for five years. The court entered a

judgment of conviction, and Battle timely appealed.

II.

The District Court had jurisdiction under

, and we have

jurisdiction under

. As explained below, Battle’s claims are subject to

plain error review. See Fed. R. Crim. P. 52(b). That standard of review requires Battle to

show “(1) an error; (2) that is ‘clear or obvious;’ and (3) that ‘affected [his] substantial

rights.’” United States v. Gonzalez,

(3d Cir. 2018) (quoting United

States v. Stinson,

(3d Cir. 2013)). When those requirements are met,

“the court of appeals should exercise its discretion to correct the forfeited error if the

error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Rosales-Mireles v. United States,

(2018) (quoting Molina-Martinez v. United States,

(2016)). The

third prong of plain error review typically requires the defendant to show a reasonable

probability that, but for the error, the outcome of the proceeding would have been

different. United States v. Welshans,

(3d Cir. 2018).

III.

We address Battle’s two claims of error in turn, starting with the claim that the

Government did not prove Battle knew he was a felon and ending with the claim of

prosecutorial misconduct. We disagree with both contentions.

A.

The jury convicted Battle of violating

(g)(1), which provides that

5 it “shall be unlawful for any person . . . who has been convicted in any court of[] a crime

punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting

commerce, any firearm.” Section 924(a)(2) of Title 18 sets forth penalties for any person

who “knowingly violates” § 922(g). Contrary to earlier precedents from the Courts of

Appeals, the Supreme Court held in Rehaif that the Government “must show that the

defendant knew he possessed a firearm and also that he knew he had the relevant status

when he possessed it” in order to prove guilt under these statutes.

.

Battle’s trial took place before the Supreme Court decided Rehaif, so the District

Court instructed the jury that it did not need to find that Battle knew of his status to

convict him. Because Battle did not object to that instruction at trial, we review his claim

only for plain error. Greer v. United States,

(2021). As the

Government concedes, the first two prongs of plain error review are satisfied. The

instruction that the jury could convict Battle without finding that he knew his status was

an actual error, and that error is obvious after Rehaif.

Battle’s claim fails at the third prong of plain error review, though, as he has not

shown that the error affected the outcome of his trial. Battle argues that the Government

did not prove his guilt, as it only offered a stipulation that he was convicted of a felony

without further evidence showing that he knew that fact on July 4, 2018. Battle might

have a point under the logic of our prior decision in United States v. Nasir. We held there

that while such a stipulation establishes the fact of conviction, it does not establish a

defendant’s knowledge of that fact on its own. See

, 172–73 (3d Cir. 2020)

(en banc). However, the Supreme Court recently clarified that “[i]f a person is a felon, he

6 ordinarily knows he is a felon. . . . Thus, absent 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.” Greer,

(emphasis in original). As a result, “unless the

defendant first makes a sufficient argument or representation on appeal that he would

have presented evidence at trial that he did not in fact know he was a felon,” a Rehaif

error is not a basis for relief on plain error review.

. Battle makes no such

representation on appeal. On the contrary, he elicited testimony establishing that he was

continuously incarcerated over a five-year period ending just before the shooting on July

4.

The Supreme Court’s decision in Greer furnishes another basis for us to affirm on

this claim of error. While we previously restricted ourselves to the trial record on plain

error review, see Nasir,

, the Supreme Court has since explained that “an

appellate court conducting plain-error review may consider the entire record.” Greer,

(emphasis in original). So “when an appellate court conducts plain-

error review of a Rehaif instructional error, the court can examine relevant and reliable

information from the entire record — including information contained in a pre-sentence

report.”

Battle did not object to his pre-sentence report’s description of his criminal

history, which reflects that his sentence from 2013 to 2018 corresponded to a felony

count for unlawful possession of a handgun. Again, Battle has not provided us with any

reason to doubt that he recognized this fact on July 4, 2018. Accordingly, we cannot

conclude that the Rehaif error here warrants vacating Battle’s conviction.

7 B.

Battle next claims that he was prejudiced by the cumulative effect of various

instances of prosecutorial misconduct at trial. We first consider whether there actually

was misconduct, and if so, “whether that misconduct so infected the trial with unfairness

as to make the resulting conviction a denial of due process.” Welshans,

(quotation marks omitted). We view “the prosecutor’s offensive actions in context and in

light of the entire trial, assessing the severity of the conduct, the effect of the curative

instructions, and the quantum of evidence against the defendant.”

(quotation marks

omitted).

Battle’s claim focuses on instances where the Government and its witnesses

referred to the shooting victim, L.W., as a “child” or “little girl.” He argues that these

references prejudiced him and violated the pretrial order forbidding references to L.W.’s

age.1 As the Government concedes, calling L.W. a little girl or child was inadvisable in

hindsight, as it might increase the risk that the jury would render a verdict based on

sympathy rather than evidence. See

. But that is not clear here, and we doubt

that the references amounted to misconduct. First, it is ambiguous whether the District

Court’s order forbade only direct references to L.W.’s numerical age, or also indirect

allusions to her age range. The Government may reasonably have believed the former, as

1 Battle argues that he raised this objection at trial by challenging a witness’s reference to a child in a stroller, as he objected that “this is the fourth or fifth time, one of the Court’s rulings was stating the age of the child who was shot.” App. 92. But the child in the stroller was not L.W., and Battle concedes that he did not actually object to any allegedly improper references that occurred beforehand. We consequently review Battle’s unpreserved claim of cumulative prosecutorial misconduct for plain error.

8 Battle did not object to the court’s later clarification “that at the trial there [would] be no

mention of the age of the victim.” App. 42–43. The Government’s use of the phrases

“little girl” and “child” may not have contravened the District Court’s order as a result.

See United States v. Taylor,

(1st Cir. 2002) (declining to find

misconduct where “[t]he scope of the court’s order was ambiguous” and defense counsel

“made no effort to clarify the scope . . . or object contemporaneously”). Second, the

Government’s witnesses usually used these phrases without prompting from the

Government, and the prosecutors typically used them to quote or follow up with the

witnesses, again without objection from Battle. Cf. United States v. Haar,

(10th Cir. 1991) (declining to find misconduct where “it appears the witness gave

an unresponsive and inappropriate response to a valid, narrowly tailored question by the

prosecutor”). Even assuming that these references amounted to misconduct, we could not

consider the misconduct severe under the circumstances.

Battle also argues that the Government sought to shift a burden of proof to him

during its rebuttal summation, as it asked the jury to consider “what was proven” to

support Battle’s defense. We agree that this remark was improper. The Government

specifically asked what was “proven” to support Battle, which may have suggested Battle

had to prove something in his defense. See United States v. Balter,

(3d

Cir. 1996). However, the District Court immediately instructed the jury that the

Government bears the burden of proof at all times and Battle did not need to prove

anything. We presume that juries follow these instructions, and that the instructions are

most effective when given immediately after potential misconduct. See Welshans, 892

9 F.3d at 577. Consequently, we have little reason to believe that this comment infected

Battle’s trial with unfairness.

Battle finally argues that the Government improperly referenced his exercise of

the Fifth Amendment right to remain silent when it mentioned that he did not want to talk

with Vauters over the recorded prison line. The Government undoubtedly cannot draw

negative inferences from a defendant’s exercise of the right to remain silent. See Doyle

v. Ohio,

(1976); Hassine v. Zimmerman,

(3d Cir. 1998).

More specifically, the Supreme Court held in Doyle that the Government may not “seek

to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-

examining the defendant about his failure to have told the story after receiving Miranda

warnings at the time of his arrest.”

. The Government’s comment here

does not fall within the scope of Doyle because Battle did not testify, and the

Government pointed not to Battle’s silence, but to his statement to Vauters. See

Anderson v. Charles,

(1980); see also, e.g., United States v. Lopez-

Lopez,

(1st Cir. 2002) (noting that when an accused waives his Miranda

rights “by voluntarily making statements, he may not rely on Doyle to object to the

admission of those statements simply because the statements refer to the act of keeping

silent.”). Rather than invoking a right to remain silent, Battle expressed a desire to speak

with Vauters. He simply asked to do so in person rather than on a recorded line. And

because this was a conversation between friends, it is unclear why the jury would have

drawn a connection between Battle’s statement and the rights he may exercise during

custodial interrogation. Indeed, if Battle was exercising his Miranda rights on the call, it

10 is unclear why he did not object to entering his statement into evidence. Under the

circumstances, we agree with the District Court’s conclusion that the Government did not

impermissibly reference Battle’s exercise of the right to remain silent.

Even if we assume that the foregoing actions were improper, the misconduct was

not severe and the trial evidence against Battle was strong. Battle’s girlfriend and her

neighbor both identified him as the shooter, and their accounts were largely consistent

with the other testimony and video evidence presented at trial. Battle’s text messages to

his girlfriend also corroborated his guilt, as he did not deny her suggestions that he shot at

her friend’s car; on the contrary, he acknowledged “thts wat it is.” App. 272; Supp. App.

14. On the whole, Battle’s trial was not “so infected . . . with unfairness as to make the

resulting conviction a denial of due process.” Welshans,

(quotation

marks omitted). As a result, Battle is not entitled to a new trial.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.

11