NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 21-3078 ________________

UNITED STATES OF AMERICA

v.

TRAVIS PARKER,

Appellant

Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 1-19-cr-00227-001) District Judge: Honorable Christopher C. Conner

Submitted under Third Circuit LAR 34.1(a) on July 8, 2022

Before: SHWARTZ, KRAUSE and ROTH, Circuit Judges

(Opinion filed: June 22, 2023)

________________

OPINION *

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

The government prosecuted Travis Parker for possessing with intent to distribute

and distributing cocaine. At trial, the jury inadvertently received evidence that Parker

was previously convicted of a serious drug felony. As a result, the District Court

declared a mistrial. The government retried Parker, and a new jury convicted him on all

counts.

Parker challenges his conviction on four grounds: (1) the District Court erred in

denying his motion to suppress evidence of the cocaine found on him; (2) the prosecutor

purposefully provoked the mistrial; thus, the Fifth Amendment’s Double Jeopardy Clause

precluded the government from retrying him; (3) the prosecutor improperly vouched for

the credibility of government witnesses; and (4) the prosecutor commented on facts not in

evidence. Because we hold that each of Parker’s claims is unavailing, we will affirm the

District Court’s judgment of conviction.

I.

A confidential informant told police that he could buy crack cocaine from a drug

dealer. The informant gave police the dealer’s phone number. A detective recognized

the number from one of his previous investigations as Parker’s. At the direction of the

police, the informant called the number to order cocaine. After police searched the

information to confirm he had no contraband, they watched from a distance while the

informant bought drugs.

One of the detectives could see the informant engaging in a hand-to-hand

transaction with someone in a breezeway but could not see the person in the breezeway.

2 Another police officer, however, saw Parker walk in and out of the breezeway around the

time of the transaction. The officer testified that he saw no one else go in or out of the

breezeway. After the transaction, the informant returned to the police and turned over

crack cocaine that he had bought.

Several months later, police worked with the same informant to set up another

drug purchase from Parker. The informant called the same phone number that he had

called before and agreed to meet Parker at a particular city block. When Parker arrived,

police arrested him.

A police officer working on the investigation knew from experience that drug

dealers sometimes hide drugs in their anal cavity. The officer’s general knowledge was

consistent with what the police knew about Parker specifically: the informant had told

police that Parker hid cocaine in his anal cavity; another informant had told police the

same thing. After the police arrested Parker, they strip-searched him. They found a bag

of cocaine in his anal cavity. The bag contained about 33 grams of crack cocaine and

about 33 grams of powder cocaine.

A grand jury charged Parker with one count of distributing cocaine and two counts

of possessing cocaine with the intent to distribute it. Parker also had a prior conviction

for a serious drug felony. Such a prior conviction would increase the penalty he faced. 1

At the District Court, as on this appeal, Parker represented himself. Parker moved

to suppress evidence of the cocaine that police had found on him. After holding an

1

(b)(1)(B). 3 evidentiary hearing, the District Court denied the motion. The case then proceeded to

trial. At the conclusion of trial, the District Court declared a mistrial. In a scheduling

order issued after the mistrial, the District Court explained that it “declared a mistrial

after learning that the jury had inadvertently received evidence of Parker’s prior

convictions during phase one of their deliberations, which evidence was prejudicial to

Parker and intended for use only during phase two of their deliberations.” 2 The

government retried Parker, and a new jury found him guilty on all counts. Parker

appealed.

II.

The District Court had jurisdiction under

. We have jurisdiction

under

.

“We review the District Court's denial of a motion to suppress for clear error as to

the underlying factual determinations but exercise plenary review over the District

Court’s application of law to those facts.” 3 We review Parker’s “double jeopardy claim

for plain error since he did not raise the issue before the District Court.” 4 For the same

reason, we review Parker’s claims of prosecutorial misconduct for plain error. 5 For

appellants, plain error is an unforgiving standard of review:

there must be (1) error, (2) that is plain, and (3) that affects substantial rights. In the ordinary case, an error affects substantial rights when it affected the outcome of the lower court proceedings. If these conditions are met, we may

2 Dist. Ct. Dkt. 171. at 1. 3 United States v. Murray,

, 390–91 (3d Cir. 2016) (quoting United States v. Stabile,

(3d Cir. 2011)). 4 United States v. Miller,

(3d Cir. 2008). 5 Gov't of the Virgin Islands v. Mills,

(3d Cir. 2016). 4 exercise our discretion to remedy the error, but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. 6

III.

A.

The District Court properly denied Parker’s motion to suppress evidence of the

cocaine found on him. The police lacked a warrant to search Parker. However, police do

not need a warrant to search a suspect incident to his arrest. 7 Instead, “the constitutional

validity of the search” depends on “the constitutional validity of the arrest.” 8 Thus, to

decide whether the search was lawful, we must examine whether the arrest was lawful.

The police also lacked a warrant to arrest Parker. A warrantless arrest is

constitutional if police have probable cause to believe the suspect committed a crime. 9

There is no question that the police knew enough to cause a prudent man to believe that

Parker had committed an offense: they saw the informant call Parker’s number to order

cocaine on two separate occasions, and saw Parker arrive at the agreed-upon place both

times. On the first occasion, the informant returned with drugs that he had bought after

police saw Parker, and no one else, in the area. On the second occasion, right before the

arrest, Parker presumably had drugs to sell to the informant. Under these circumstances,

the police had probable cause to arrest Parker. Thus, the arrest was lawful, and the police

were allowed to search Parker incident to his arrest.

6

at 456–57 (cleaned up). 7 United States v. Kithcart,

(3d Cir. 1998). 8

(quoting Beck v. Ohio,

(1964)). 9 See

(quoting Beck,

). 5 Parker does not contest whether the police were allowed to strip-search him rather

than perform a less intrusive search. Even if he did, however, that argument would fail.

“Not every search is acceptable solely because a person is in custody.” 10 The Supreme

Court has not decided when the police may conduct an investigatory strip-search of a

suspect incident to arrest, nor have we. Yet whatever the precise limits on this practice

may be, the strip-search here was reasonable.

The police arrested Parker for a felony drug-trafficking offense. Two informants

told the police that Parker kept cocaine in his anal cavity, and an officer working on the

investigation knew from experience that drug dealers sometime hide drugs there.

Furthermore, police searched him after he arrived at the spot where he had agreed to sell

cocaine. Finally, the police protected Parker’s privacy to the extent possible.

Accordingly, the strip-search was reasonable.

B.

The Fifth Amendment’s Double Jeopardy Clause did not preclude the government

from retrying Parker. The Double Jeopardy Clause “protects a criminal defendant from

repeated prosecutions for the same offense.” 11 It does not, however, “offer a guarantee to

the defendant that the State will vindicate its societal interest in the enforcement of the

criminal laws in one proceeding.” 12 Generally, the government may retry a defendant

10 Riley v. California,

, 392 (2014) (cleaned up) (quoting Maryland v. King,

(2013)). 11 Oregon v. Kennedy,

(1982). 12

. 6 when, as here, 13 the defendant requests a mistrial. 14 Nonetheless, “the Double Jeopardy

Clause forbids retrial when ‘the conduct giving rise to the successful motion for a mistrial

was intended to provoke the defendant into moving for a mistrial.’” 15

The record here does not show that the prosecutor purposefully provoked a

mistrial. The District Court declared a mistrial only “after learning that the jury had

inadvertently received evidence of Parker’s prior convictions.” 16 Parker contends that the

government purposefully gave this evidence to the jury because the government was

concerned the verdict could go either way and the government would have a better

chance at a second trial. However, Parker’s contention is a bare assertion unsupported by

anything in the record. Parker has therefore failed to show any error, much less plain

error. Retrial did not violate the Double Jeopardy Clause.

C.

A prosecutor improperly vouches for a witness when the prosecutor assures the

jury of a witness’s credibility, the assurance is based on facts not in the record, and the

assurance prejudices the defendant. 17 Nonetheless, we held in United States v. Bailey-

Snyder that a prosecutor may argue a “common sense conclusion” about a witness’s

trustworthiness “even without explicit evidence in the record to support it.” 18 Thus, the

13 Dist. Ct. Dkt. 171 (“upon pro se defendant Travis Parker’s oral motion, the court declared a mistrial . . . ”). 14 United States v. Brown,

(3d Cir. 2021). 15

(quoting Kennedy,

). 16 Dist. Ct. Dkt. 171 at 1. 17 United States v. Bailey-Snyder,

, 294–95 (3d Cir. 2019). 18

. 7 prosecutor in Bailey-Snyder did not vouch for witnesses when he said, “It’s conjecture to

say that these correctional officers would put their jobs, their careers, their livelihoods on

the line to possibly plant a shank on this defendant to maybe, maybe, have a little notch

to get a promotion.” 19 We reasoned that, “[a]lthough neither officer testified that they

risked their jobs if they planted a shank on [the defendant], it should be obvious that

falsifying evidence, filing dishonest sworn reports, and lying in open court should (and

would) jeopardize one's career as a correctional officer.” 20

In Bailey-Snyder, the prosecutor was responding to the defense’s credibility

attacks. 21 Indeed, we held “that, even if the Government’s comment were improper

vouching, it still would be excusable here as a reasonable response to allegations of

perjury by the defense.” 22

During Parker’s closing argument, he had attacked the credibility of the police

officers involved in his case. For instance, he said:

I stood up to these corrupt cops. I don’t despise law enforcement. This is a faction of York City police department called the Drug Task Force. I mean, they have their own building. And we all heard about the blue wall of silence. Police officers do commit crimes and they’re found guilty of these, just like innocent citizens go to prison. 23

19

20

21

22

(cleaned up) (quoting United States v. Weatherly,

(3d Cir. 2008)). 23 App. at 480:2–7. 8 Parker also argued, for example, that if the police had truly found a bag with drugs in his

anal cavity, there would be fecal matter or blood on it. In rebuttal, the prosecutor

addressed the officers’ credibility at length. Among other things, he said:

You would have to conclude that these men and women would not only put their livelihoods, their family, their home life, but their actual liberty at stake for him? For who? For what? I mean, no offense, man, but he’s not worth it. I mean that just is not a plausible theory, and if you’re someone that is going to believe that there would be this type of corruption so breathtakingly pervasive, I’m probably already talking past you . . . . 24

The prosecutor’s argument that the police would not risk their career (and more) to

frame Parker is precisely the “common sense conclusion” that Bailey-Snyder held to be

permissible. 25 The prosecutor’s argument that the police had no incentive to frame

Parker is a close cousin of that same common sense conclusion. As in Bailey-Snyder, the

prosecutor was responding to a defendant’s attacks on credibility. We see no plain error

in the prosecutor’s statements. For that reason, Parker’s vouching claim fails.

D.

Parker is correct that the prosecutor commented on facts not in evidence.

However, the prosecutor’s misstatement was not plain error that warrants reversal.

In closing argument, the prosecutor said:

[E]ach and every time they attempted to buy drugs from Travis Parker, he showed up. They called, and he showed up. And quite frankly, that is a massive problem for Mr. Parker, because I don’t know how you work your way around that fact. It wasn’t someone else. It was Travis Parker. And he’s the one that when he was taken into custody on January 30th, 2019 possessed a substantial amount of crack cocaine and powder cocaine. He had the phone with the informant’s phone number in it. He came when

24 Id. at 502:16–23. 25 Bailey-Snyder,

. 9 they called, and when you think about the significance of that, hopefully you’ll get on the same page with me and attach the same significant to that piece of evidence. 26

There is no direct evidence that Parker “had the phone with the informant’s phone

number in it.” 27 Even if the government made a misstatement, it would have been

harmless. Every time the informant called Parker’s number to order cocaine, Parker

showed up to sell cocaine. That evidence against Parker was crucial to his conviction and

the prosecutor’s misstatement does not detract from it.

Once again, we emphasize the high bar that Parker must clear to obtain relief

under the plain error standard. It is not enough for Parker to show error in the

prosecutor’s purported misstatement. That error must be plain, affect substantial rights,

and seriously affect “the fairness, integrity, or public reputation of judicial

proceedings.” 28 No such error exists here.

IV.

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

26 App. at 470:14–471:2 (emphasis added). 27 Id. at 470:22–23.

F.3d at 456–57. 10