United States v. Livingston , 88 F. App'x 545 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-27-2004
USA v. Livingston
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1606
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"USA v. Livingston" (2004). 2004 Decisions. Paper 972.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1606
________________
UNITED STATES OF AMERICA
v.
FABIAN LIVINGSTON #04524-015,
Appellant
____________________________________
On Appeal From the United States District Court
For the District of Delaware
(D.C. No. 02-cr-00041)
District Judge: Honorable Joseph J. Farnan, Jr.
_______________________________________
Submitted February 26, 2004
Before: RENDELL, BARRY, and BECKER, Circuit Judges.
(Filed February 27, 2004 )
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
Defendant Fabian Livingston appeals from the judgment of the District Court,
following a jury trial, in which he was convicted of being a felon in possession of a
firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The facts are well known to the parties
and need not be repeated here.
Although this is a direct appeal, Livingston’s principal claim is ineffective
assistance of counsel. It will be useful to set forth the summary of Livingston’s position
on the issue:
Mr. Livingston was denied his Sixth Amendment right to effective
assistance of counsel in the district court. The evidence of both
incompetence and conflict of interest leading to ineffective assistance is
clear on the record. First, the record contains two very clear and numerous
other confirmations and indications that Mr. Livingston’s counsel gave him
erroneous advise on a number of occasions. Most significantly trial counsel
incorrectly advised his client that he was not prohibited from possessing a
firearm in his home. Trial counsel also refrained from responding to the
government’s motion in limine and filing a defense motion in limine that
was clearly prescribed by the professional standard in the community.
Second, the record clearly contains indications that the poor advice
rendered by trial counsel created a conflict of interest, in that counsel had an
interest in keeping the erroneous advice a secret, whereas Mr. Livingston
had an interest in arguing that this flawed advice was the reason for his
conduct. Given the record’s support of these contentions and the fact that
new counsel is representing Mr. Livingston in this appeal, it is appropriate
to decide the issue of trial counsel’s ineffectiveness at this point.
This issue comes down to one fact that this Court must be able to
find evidence of in the record. If this Court believes that Mr. Stern did
advise his client that he was allowed to have a firearm in is home, prior to
the incident spurring the criminal charges, then there is a sufficient record
to find that Mr. Stern was ineffective in representing Mr. Livingston.
Either, Mr. Stern did not realize the advise was erroneous prior to and
through at least part of the trial, and he was therefore rendering incompetent
legal representation, or Mr. Stern became aware that his prior advice was
incorrect early on, and then he was burdened by a conflict of interest
throughout the representation, due to his personal interest in keeping secret
the mistaken advice. Under either scenario or a combination of the two, it
is clear that Mr. Livingston was denied his right to effective assistance of
counsel.
Aided by this summary, we can dispose of this aspect of the matter summarily.
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Our jurisprudence is clear that we do not review claims of ineffective assistance of
counsel on direct appeal except under very narrow circumstances where there is clear
evidence in the record of both deficient performance and prejudice requiring no further
factual development. See United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.
2003); see also Massaro v. United States, 123 S. Ct. 1690, 1694 (2003) (holding that
“ineffective-assistance claims ordinarily will be litigated in the first instance in the district
court, the forum best suited to determining the adequacy of representation during an
entire trial.”). The Supreme Court explained that district courts, unlike appellate courts,
may take testimony from witnesses from both parties as well as from the counsel alleged
to have rendered deficient performance, see id., and that without such factual
development, a court is ill-equipped to make the highly fact-specific determination of
whether counsel was ineffective and what, if any, prejudice resulted therefrom. See id. at
1694-95; Thornton, 327 F.3d at 271-72 (quoting Massaro).
We have carefully considered Livingston’s argument but are unpersuaded. In our
view there is no adequate record at this juncture upon which trial counsel’s alleged
ineffectiveness can be determined. The quoted statement from Livingston’s brief itself
reveals the inappropriateness of disposing of the ineffective assistance claim on direct
appeal. To the extent that Livingston relies upon remarks made by counsel during
sentencing that he contends show a misapprehension of the law prohibiting possession of
a firearm by a felon, he is not aided. These unsworn remarks were made in the context of
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a plea for leniency, not in response to Livingston’s claim, and at all events, did not
explain what, if any, advice Livingston was provided regarding his felon status and
restrictions on possessing firearms. Also underdeveloped are the conflict of interest claim
as well as the claim of poor advice concerning sentencing range. In short then, the
ineffective assistance of counsel claim will have to be developed in a proceeding under
28 U.S.C. § 2225. While we will affirm the judgment, we do so without prejudice to
Livingston’s right to proceed under § 2255.
Livingston does make one claim cognizable on direct appeal, but it is without
merit. The claim concerns a discovery violation regarding Detective Donlon’s notes
recording the “post-Lou’s statements,” i.e. those concerning purchases at Lou’s Pawn
Shop, which turned out to be in Chester, Pennsylvania. In Livingston’s submission,
information regarding these statements was not given to the defense in accord with the
government’s discovery obligations, and the District Court recognized the violation. In
order to remedy the violation, the District Court ruled that all references to the
undiscovered statements were inadmissible, including prior references that had already
been heard by the jury. However, the District Court did not deliver a curative instruction
telling the jurors to disregard the earlier references to these statements, as it said it would.
Livingston argues that a new trial is therefore necessary.
Assuming the validity of Livingston’s contentions, we are satisfied that he District
Court’s omission constituted harmless error under our (applicable) highly probable
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standard. As the government points out:
The contested statements mostly reiterated appellant’s previous
admissions concerning the missing gun, testimony about which was
adduced at trial. Long before any mention of the follow-up conversation,
Detective Donlon’s testimony established that : (1) appellant admitted to
keeping two guns in his bedroom safe, both of which were, to his
knowledge, at his house on the day of the shooting; (2) only one gun, a
9mm Walther pistol, was recovered; (3) appellant admitted that he bought
the missing gun from Lou’s Pawn Shop in Chester, Pennsylvania; (4)
appellant initially thought the missing gun was a .32 caliber but thereafter
conceded that it might be a .380 caliber; (5) Lou’s Pawn Shop had a record
of sale of a .380 Lorcin pistol to “Fabian B. Brown” whose birth date was
the same as appellant’s; and (6) appellant admitted to using variously both
the surnames “Brown” and “Livingston”. This testimony was corroborated
by both the Firearms Transaction Record and the box of .380 caliber
ammunition found in appellant’s master bedroom. Detective Donlon’s
follow-up conversation with appellant did little more than reiterate what
appellant had already admitted – that the missing gun, which was then
identified as a Lorcin pistol, was one of the two guns appellant kept in his
safe, and that it was in fact .380 caliber.
The summarized testimony was largely repetitive of earlier testimony concerning
Livingston’s statements about the missing handgun. Additionally, the jury found that
Livingston possessed both handguns charged in the indictment, either one of which
supported his conviction; any error in admitting statements relating solely to one of the
guns was therefore harmless.
The judgment of the District Court will therefore be affirmed without prejudice to
Livingston’s right to pursue a petition under 28 U.S.C. § 2255, alleging ineffective
assistance of counsel.
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