Case: 19-1636 Document: 003113282020 Page: 1 Date Filed: 07/03/2019

No. 19-1636

In the United States Court of Appeals

for the Third Circuit

UNITED STATES OF AMERICA

Appellee,

v.

RAPHAEL HUNT-IRVING,

Appellant.

Appeal from the United States District Court

for the Eastern District of Pennsylvania (McHugh, J.)
(District Court Criminal Action No. 14-520-5)

APPELLANT’S OPENING BRIEF

AND APPENDIX VOLUME I, pp. App.1-40

Peter J. Scuderi (Pa. Bar No. 32802) Alan Gura (Va. Bar No. 68842)
121 South Broad Street GURA PLLC
Suite 1400 916 Prince Street, Suite 107
Philadelphia, PA 19107 Alexandria, VA 22314
215.546.5650 703.835.9085/703.997.7665

July 3, 2019 Counsel for Appellant

 Case: 19-1636 Document: 003113282020 Page: 2 Date Filed: 07/03/2019

TABLE OF CONTENTS

Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Raphael Hunt-Irving’s Home. . . . . . . . . . . . . . . . . . . . . . . . . 3

2. The Plan to Arrest Hunt-Irving—

and to “Sweep” His Home. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

3. The Agents Arrest Hunt-Irving At His Door. . . . . . . . . . . . . . 5

4. The Agents Keep Searching. . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5. Raphael Hunt-Irving’s Individual Circumstances. . . . . . . . . 9

6. Procedural History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Summary of Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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I. THE PREMEDITATED “PROTECTIVE SWEEP” OF HUNT-IRVING’S

HOME VIOLATED HIS FOURTH AMENDMENT RIGHTS. . . . . . . . . . . . . . 19

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. The “Sweep’s” Lawfulness, or Lack Thereof, Is a

Necessary Predicate to Hunt-Irving’s Evidentiary
Challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. The “Sweep” of Hunt-Irving’s Home Was Not “Protective.”

Based on the Agents’ Policy of Always “Sweeping,” It
Extended Well-Beyond the Area of Arrest, Lasted Too
Long, and Lacked Any Basis in Safety Concerns. . . . . . . . . 21

II. THE FIRST UNLAWFUL SEARCH OF HUNT-IRVING’S HOME

TAINTED HIS CONSENT TO HIS HOME’S SECOND SEARCH,
REQUIRING REVERSAL OF THE JUDGMENT BASED ON
INADMISSIBLE EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

B. The Agents Exploited Their Unlawful “Sweep” of

Hunt-Irving’s Home In Seeking and Obtaining His
Consent to the Subsequent Search, Rendering That
Consent Tainted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1. Temporal Proximity Favors Suppression, as the

Agents Obtained Hunt-Irving’s Consent
Immediately After Their Unlawful Search.. . . . . . . . . 34

2. No Intervening Circumstances Occurred

Attenuating the Unlawful Search’s Impact. . . . . . . . . 35

3. The Agents’ Purposeful Violation of Hunt-Irving’s

Rights and Their Flagrant Exploitation of That
Violation Favors Suppression.. . . . . . . . . . . . . . . . . . . 35

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C. It Is Reasonably Possible That the Cash and Digital

Scale Swayed the Jury to Convict Hunt-Irving. . . . . . . . . . . 38

III. HUNT-IRVING RECEIVED INEFFECTIVE ASSISTANCE

FROM HIS FORMER COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

B. Former Counsel’s Pointless Concessions Regarding

the Rifle’s Seizure Risk His Client’s Conviction for
Possessing the Rifle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

IV. HUNT-IRVING’S PRIOR CONVICTIONS WERE NOT “SERIOUS”

IN THE SENSE JUSTIFYING HIS DISARMAMENT. . . . . . . . . . . . . . . . . 41

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

B. Individuals May Challenge Section 922(g)(1)’s

Application When Their Predicate Convictions Do
Not Reflect Traditional Justifications for Disarmament.. . . 41

C. Hunt-Irving Cannot Be Disarmed Because Dangerousness

Is the Traditional Justification for Disarmament. . . . . . . . . 47

D. Hunt-Irving Would Also Be Entitled to Relief Under

Binderup’s Virtuousness Rationale. . . . . . . . . . . . . . . . . . . . 55

1. The District Court Over-Emphasized the Importance

of the Predicate Violations’ Classification. . . . . . . . . . 56

2. Hunt-Irving’s Predicate Convictions Were

Not Violent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

3. Hunt-Irving Received No Jail Time. . . . . . . . . . . . . . . 58

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4. There Is No Cross-Jurisdictional Consensus

Regarding the Seriousness of the Previous
Convictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Required Certifications

Appendix, Volume I (Pages App.1-40)

Certificate of Service

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TABLE OF AUTHORITIES

Cases

Beers v. Atty. Gen’l, No. 17-3010,

2019 U.S. App. LEXIS 18519, 2019 WL 2529248
(3d Cir. June 20, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-47

Binderup v. Atty. Gen’l,

836 F.3d 336 (3d Cir. 2016) (en banc). . 10, 11, 13-15, 19, 41-46, 50-52,
55-61

Brown v. Illinois,
422 U.S. 590 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 29, 30, 32-35

Dickerson v. New Banner Inst.,

460 U.S. 103 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

District of Columbia v. Heller,

554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48, 50, 53

Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) .. . . . . . . . . . . . . . . . . . . . . . . . . 50-52, 54

Malik v. Hannah,
799 F. Supp. 2d 355 (D.N.J. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Marks v. United States,

430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Maryland v. Buie,
494 U.S. 325 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-25, 27, 35

Medina v. Whitaker,
913 F.3d 152 (D.C. Cir. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

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Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 700 F.3d 185 (5th Cir. 2012) . . . . . . 48, 49, 51

Segura v. United States,

468 U.S. 796 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Suarez v. Holder,
255 F. Supp. 3d 573 (M.D. Pa. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . 46

Tennessee v. Garner,
471 U.S. 1 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 58

Theoharis v. Rongen, No. C13-1345RAJ,

2015 U.S. Dist. LEXIS 14699, 2015 WL 509698
(W.D. Wash. Feb. 6, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Alatorre,

863 F.3d 810 (8th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Alvarez-Manzo,

570 F.3d 1070 (8th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Archibald,

589 F.3d 289 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Bagley,

877 F.3d 1151 (10th Cir. 2017) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Barton,

633 F.3d 168 (3d Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

United States v. Beauchamp,

659 F.3d 560 (6th Cir. 2011) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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United States v. Carson,

793 F.2d 1141 (10th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

United States v. Coles,

437 F.3d 361 (3d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Colon,

523 Fed. Appx. 241 (3d Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . 39

United States v. Goldstein,

914 F.3d 200 (3d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 28

United States v. Hill,

649 F.3d 258 (4th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Howard,

729 Fed. Appx. 181 (3d Cir. 2018).. . . . . . . . . . . . . . . . . . . . . . . . 26, 27

United States v. Jaquez,

421 F.3d 338 (5th Cir. 2005) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Kelly,

539 F.3d 172 (3d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 28

United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . 15, 19, 42-46

United States v. Melendez-Garcia,

28 F.3d 1046 (10th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Mendoza-Salgado,

964 F.2d 993 (10th Cir. 1992) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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United States v. Narcisse,

501 Fed. Appx. 142 (3d Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Phillips,

827 F.3d 1171 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57

United States v. Pixley,

7 F. Supp. 2d 52 (D.D.C. 1998) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Robeles-Ortega,

348 F.3d 679 (7th Cir. 2003) .. . . . . . . . . . . . . . . . . . . . . . 31, 32, 34, 35

United States v. Rodriguez, No. 18-662,

2019 U.S. Dist. LEXIS 71628, 2019 WL 1895062
(D.N.J. Apr. 29, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26

United States v. Rudaj,

390 F. Supp. 2d 395 (S.D.N.Y. 2005).. . . . . . . . . . . . . . . . . . . . . . 25, 26

United States v. Santa,

236 F.3d 662 (11th Cir. 2000) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

United States v. Shrum,

908 F.3d 1219 (10th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 34

United States v. Small,

793 F.3d 350 (3d Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

United States v. Taylor,

666 F.3d 406 (6th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Valentine,

539 F.3d 88 (2d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Washington,

490 F.3d 765 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

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United States v. White,

748 F.3d 507 (3d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Williams,

577 F.3d 878 (8th Cir. 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

United States v. Wrensford,

866 F.3d 76 (3d Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-32

United States v. Yarbrough,

281 F. Supp.3d 1225 (N.D. Ala. 2018).. . . . . . . . . . . . . . . . . . . . . 36, 37

Utah v. Strieff,
136 S. Ct. 2056 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 34

Wong Sun v. United States,

371 U.S. 471 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 29, 30, 33

Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48

Statutes and Rules

18 Pa. Const. Stat. § 1103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 Pa. Const. Stat. § 4911. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. § 1321.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3742 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . 2, 13-16, 19, 41-43, 46, 49, 55-57, 61

18 U.S.C. § 922(g)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

28 U.S.C. § 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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Ala. Code § 13A-10-12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Colo. Rev. Stat. § 18-8-114(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Fla. Stat. § 839.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Haw. Rev. Stat. § 710-1017(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Me. Rev. Stat. Ann. tit. 17-A, § 456(2). . . . . . . . . . . . . . . . . . . . . . . . . . 60

Mich. Comp. Laws § 750.491(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Miss. Code Ann. § 97-9-3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Mo. Rev. Stat. § 575.110(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

N.C. Gen. Stat. § 14-24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

N.D. Cent. Code § 12.1-11-05(2)(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

N.H. Rev. Stat. Ann. § 641:7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Neb. Rev. Stat. § 29-910(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Or. Rev. Stat. § 162.305(2)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

S.D. Codified Laws § 22-11-23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Tenn. Code Ann. § 39-16-504(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Utah Code Ann. § 76-6-504(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Va. Code Ann. § 18.2-472.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

W. Va. Code § 61-5-22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

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Other Authorities

Adam Winkler, Heller’s Catch-22,

56 UCLA L. Rev. 1551 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Bernard Schwartz, The Bill of Rights:

A Documentary History (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51

C. Kevin Marshall, Why Can't Martha Stewart

Have A Gun?, 32 Harv. J.L. & Pub. Pol’y
695 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50

Debates and Proceedings in the Convention of the

Commonwealth of Massachusetts Held in
the Year 1788 (Boston, William White 1856). . . . . . . . . . . . . . . . . . . 51

John F. Decker, The Varying Parameters of Obstruction

of Justice in American Criminal Law,
65 La. L. Rev. 49 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60

Petition for Certiorari, Lynch v. Binderup,

No. 16-847 (Jan. 5, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

St. George Tucker, Blackstone’s Commentaries (1803). . . . . . . . . . 53, 54

Wayne R. LaFave, Search and Seizure. . . . . . . . . . . . . . . . . . . . . . . . . . 33

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APPELLANT’S OPENING BRIEF

JURISDICTIONAL STATEMENT

The District Court exercised jurisdiction pursuant to 18 U.S.C. §

1321. Defendant-Appellant Raphael Hunt-Irving was sentenced on

March 14, 2019. App.375-408. Judgment was entered on March 18, 2019.

App.3-10.

Hunt-Irving timely noticed his appeal on March 21, 2019. App.1. This

Court has jurisdiction per 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

STATEMENT OF ISSUES

1. Did the premeditated “protective sweep” of Raphael Hunt-Irving’s

home, conducted on the basis of the agents’ custom and practice, violate

Raphael Hunt-Irving’s Fourth Amendment rights? [Preserved: App.20-

22; App.96; Dist. Ct. Dkt. 217 at 4-13.]

2. Did the “protective sweep” of Raphael Hunt-Irving’s home taint

Hunt-Irving’s purported consent to further search his home? [Preserved:

App.22-24; App.96; Dist. Ct. Dkt. 217 at 4-13.]

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3. Raphael Hunt-Irving’s former trial attorney conceded the

lawfulness of the agents’ seizure of a rifle, and consequently its

admissibility. Did this concession deprive Hunt-Irving of the Sixth

Amendment right to effective assistance of counsel? [Preserved: App.20-

21; Dist. Ct. Dkt. 217 at 4.]

4. Does application of 18 U.S.C. § 922(g)(1) against Raphael Hunt-

Irving, on the basis of his previous nonviolent felony convictions, violate

Hunt-Irving’s Second Amendment rights? [Preserved: App.24-34;

App.85-87; App.96; App.359-75; Dist. Ct. Dkt. 217 at 3.]

STATEMENT OF RELATED CASES

This case has not previously been before this Court. Two related

appeals arising from the same trial are pending before this Court: United

States v. Mills, No. 18-3736; and United States v. Church, No. 19-2103.

Three other appeals pending before this Court raise similar issues

regarding the framework for evaluating as-applied Second Amendment

challenges to 18 U.S.C. § 922(g)(1): King v. Atty. Gen’l, No. 18-2571;

Holloway v. Atty. Gen’l, No. 18-3595; and Folajtar v. Barr, No. 19-1687.

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STATEMENT OF THE CASE

1. Raphael Hunt-Irving’s Home

Raphael Hunt-Irving resided on the second floor above his ground-

floor funeral home business in Chester, Pennsylvania. App.16;

App.116:9-22; App.179:3-6. One must open a first-floor door to access the

spiral staircases leading to the second floor residence. App.182:19-183:1.

That second floor residence consists of one room, perhaps 1000 square

feet in size. Aside from a walk-in closet and bathroom, the upstairs home

is organized as an open floor plan with a kitchenette, dining area, bed

and couch. App.135:23-137:2.

2. The Plan to Arrest Hunt-Irving—and to “Sweep” His Home

“Following a wiretap and indictment, federal agents obtained arrest

warrants for Defendant Raphael Hunt Irving and several co-defendants

who allegedly conspired to purchase cocaine for distribution.” App.16.

“Before dawn” on September 26, 2014, “a group of eight to ten agents

arrived” at Hunt-Irving’s home to execute the arrest warrant, id., led by

DEA Special Agent Ken Glenn, App.114:18-20; App.253:11-20.

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As team leader, Agent Glenn received a packet of information about

Hunt-Irving and his residence, including whether the residence was to

be searched; if so, what was to be seized; and whether Hunt-Irving or his

residence “posed any specific threats to the agents.” App.114:10-17.

Agent Glenn has also conducted “pre-search reconnaissance” of Hunt-

Irving’s home the previous day. App.150:7-12. No agent testified as to

whether Hunt-Irving’s home posed any specific threats to officer safety.

The government’s investigation and surveillance of Hunt-Irving

produced no warrant to search his home. App.150:17-22. As Agent Glenn

admitted, “I knocked on the door to get the defendant to open the door

to effectuate an arrest warrant, not a search warrant.” App.152:7-9.

Yet the agents nonetheless planned to search Hunt-Irving’s home.

Agent Glenn admitted to having a “policy” of conducting so-called

“protective sweeps” when serving arrest warrants. App.154:2-6. He

testified that the agents would have drawn their guns outside the

building, and then, upon entry, “from there, we would have conducted a

security sweep of the—a protective sweep of the entire building, the first

floor and the second floor.” App.125:1-11.

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DEA Special Agent Louis Schmidt elaborated on the team’s habitual

execution of “protective sweeps.” Such searches are “almost second

nature when you’re doing either an arrest warrant or some type of

entering a home.” App.269:2-3. Agent Schmidt and his colleagues ask

whether anyone else is in the home, but the answers are unimportant.

“[N]o offense to the defendant but we’re not going to believe just

because they say there’s nobody in the house.” App.269:14-16.

“We’re not going to believe that. We’re going to actually do a complete

sweep of the property to clear each room—bathroom, closets to make

sure that there’s nobody—no threats inside the residence.” App.269:17-

20.

3. The Agents Arrest Hunt-Irving At His Door

“According to the agents’ testimony, they knocked loudly and

announced their presence [at Hunt-Irving’s door]. A few minutes later,

Hunt Irving came to a second floor window and asked what was going

on. The agents identified themselves as police and told him to open up.”

App.16. Unsatisfied with the quickness of Hunt-Irving’s approach to the

door, the agents forcibly entered. Id.

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“There is no dispute that when the agents broke the door in, Hunt

Irving was standing right inside, unarmed, about ten feet from the door.

The agents ordered Hunt Irving to the ground and handcuffed him.” Id.

As Agent Schmidt testified, “he was told to put his hands in the air and

get down on the ground and he was immediately taken into custody and

handcuffed.” App.268:1-3. “The testifying agents agreed that he was

cooperative and did not resist arrest.” App.16.

4. The Agents Keep Searching

Upon arresting Hunt-Irving just inside his door, “the team of agents

immediately began a ‘protective sweep of the entire building.’” App.17

(quoting App.125:9-126:4). The “protective sweep” lasted approximately

fifteen minutes. App.157:1-3; App.17.

Agent Glenn testified that while the “sweep” was ongoing, he asked

Hunt-Irving about the presence of other people, large dogs, or weapons.

App.125:25-126:7; App.268:18-269:6. Agent Schmidt admitted that

Hunt-Irving “quickly answered the question are there any people in the

house, no,” App.270:24-25; see also App.269:8-9; but “hesitated” before

answering as to any weapons, App.274:25-275:1. Notwithstanding this

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“hesitation . . . at the same time we started clearing . . . making the

property safe . . . .” App.269:12-13.

According to the agents’ testimony credited by the District Court,

Hunt-Irving eventually added that he “had a hunting rifle upstairs in his

bedroom closet.” App.17. The record is unclear as to how long Hunt-

Irving hesitated before allegedly making that statement. Agent Glenn

testified that Hunt-Irving “had finally said that there was a .22 caliber

hunting—an old hunting rifle that was in his closet or bedroom” at some

point during the sweep. App.127:10-12.1

In any event, Agent Schmidt found an AK-47-style rifle in plain view,

in the bedroom’s walk-in closet. App.271:6-9; App.295:17; App.127:18-

19. Whether at Hunt-Irving’s direction or not, Agent Schmidt found the

rifle during the “sweep.” App.154:15-17; App.154:21-155:2.

1
Contradicting his earlier testimony, App.269:12-13, Agent Schmidt
recalled that Hunt-Irving “did indicate initially in the beginning before
the sweep was undergoing that he did have a hunting rifle in his
bedroom—master bedroom closet” App.293:22-24, meaning that the
“protective sweep” had not begun until Hunt-Irving “finally” answered
the weapons question after some “hesitation.” As noted supra, the
District Court found that the sweep began immediately, consistent with
the agents’ other testimony, and was contemporaneous with Agent
Glenn’s questioning of Hunt-Irving. App.16-17.
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The agents then had “some communication” with Hunt-Irving “about

what was found so far on the property,” App.273:13-15, specifically, the

rifle, App.276:1-18. In this context, the agents sought Hunt-Irving’s

consent to (re)search his home. App.276:20-277:2. “[I]t was put to the

defendant—listen, you know, we’re seizing the AK-47, you know.”

App.277:5-7.

The agents told Hunt-Irving that they could obtain a warrant, but

that doing so could take time, during which access to his property would

be limited. If he consented to the search, he would be allowed to be

present while it was being conducted. App.277:8-13. The agents made

clear that the day’s funeral services would be impacted by their seeking a

search warrant. App.278:9-17. “[P]eople just couldn’t be coming and

going but we were going to be sympathetic to the fact that there could be

loved ones coming to see the decedents and prepare for functions.”

App.278:14-279:2.

Hunt-Irving yielded to the agents’ request for consent to search his

home. That subsequent search netted a digital scale, approximately

$15,000 in cash, and a handgun. App.17.

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5. Raphael Hunt-Irving’s Individual Circumstances

Four years before his arrest, Hunt-Irving pleaded guilty to two counts

of tampering with public records with intent to defraud, 18 Pa. Const.

Stat. § 4911, a third-degree felony punishable by up to seven years

imprisonment under 18 Pa. Const. Stat. § 1103. App.17-18. “[An]

investigation uncovered four instances over the course of seven years in

which Hunt Irving had overbilled” the state’s Victim Compensation

Assistance Program (VCAP) for murder victims’ funeral costs “or did not

pass on to the family the full refund he received from the state.” App.18.

Hunt-Irving received two years probation but no jail time. He was

ordered to pay $7,125 in restitution, donate $500 to Dauphin County, and

perform 250 hours of community service. App.18.

Hunt-Irving’s “prior conviction, though not ‘decades-old,’ was

unquestionably non-violent, and there is no other evidence of violent

propensity. He runs a successful business, has a daughter whom he helps

support, and until he was indicted for the drug conspiracy here, had a

clean record before and after his records tampering conviction.” App.30.

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6. Procedural History

The third (and final) superseding indictment charged Hunt-Irving

with participating in three drug-distribution conspiracies (Counts 1, 7,

and 8), attempt (Count 2), and being a felon-in-possession of firearms

(Count 6). App.64-84.

Hunt-Irving moved to dismiss the felon-in-possession charge as a

violation of his Second Amendment rights. App.85-87. The District Court

severed the firearms count and deferred ruling on that motion, as the

government’s petition for certiorari from this Court’s decision in

Binderup v. Atty. Gen’l, 836 F.3d 336 (3d Cir. 2016) (en banc), was still

pending. App.15, App.17 n.1., App.18.

Hunt-Irving’s former attorney also moved to suppress the evidence

gathered by the agents at his home, arguing that his consent was

involuntary. App.88-94. The motion papers specifically referenced a

desire to suppress the firearms’ admission. See, e.g., App.92. Yet former

counsel appeared to concede the point at the suppression hearing, at least

with respect to the rifle. “I think they can secure the weapon.”

App.313:11. This had implications for the felon-in-possession charge:

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THE COURT: There’s no factual dispute that there was a weapon,

correct?

[FORMER COUNSEL]: That’s correct, Your Honor.

App.314:5-7.

The District Court apparently appreciated the gravity of this

concession, and engaged Hunt-Irving and his former attorney in an

extended discussion along the lines of there being no dispute as to the

rifle’s existence. Hunt-Irving’s former attorney prodded his client to

ratify his concession. App.314:8-316:9. The District Court would later

understand that Hunt-Irving “does not seek to suppress” the rifle.

App.22-23. “[T]here is no challenge to the seizure of the rifle.” App.24.

The District Court denied the motion to suppress. App.11-14.

Following a two-week jury trial, at which the scale and currency seized

from Hunt-Irving’s home were admitted into evidence, the jury acquitted

Hunt-Irving on one of the conspiracy counts (7), but convicted him on the

other conspiracy and attempt counts (1, 2 and 8). App.17-18.

Through counsel uninvolved in the suppression motion, Hunt-Irving

reasserted his Binderup challenge, and moved for a new trial and/or

arrest of judgment. Hunt-Irving argued, among other points not here at

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issue, that the District Court erred in denying the motion to suppress

because the “protective sweep” was unconstitutional and thus tainted his

subsequent consent. App.19. He reserved the right to raise an ineffective

assistance of counsel claim with respect to former counsel’s concessions as

to the legitimacy of the “sweep.” App.20.

The District Court denied Hunt-Irving’s motions. App.15-40. It first

found that the former lawyer had not waived the “sweep” arguments.

“[T]rial counsel certainly conceded the validity of the officers securing the

rifle for safety purposes. I see no indication, however, that defense

counsel conceded his more general point—that a broader security sweep

of the second floor was impermissible.” App.21 (citation omitted).

Turning to the “sweep” arguments, the District Court found it

unnecessary to reach the merits of Hunt-Irving’s argument or develop the

record further. App.22. It stood by its earlier finding that Hunt-Irving

voluntarily consented to the second search, and held that the “protective

sweep of the second floor does not alter that analysis.” App.22-23.

With respect to the firearms count, the District Court offered that

Hunt-Irving’s challenge

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highlights the serious implications of what the Third Circuit left

unresolved in the splintered Binderup decision: what constitutes a
“serious crime” for Second Amendment purposes when a felon
challenges the applicability of § 922(g)(1). When he was charged, Hunt
Irving had a single, non-violent felony conviction—a conviction that,
when subjected to the various tests advanced in Binderup would lead
to different outcomes in his case.

App.15.

The District Court confronted “a serious analytical challenge” because

Binderup “yielded no new test for challenges like this one.” App.25

(citation and footnoted omitted). “[T]here was no majority in Binderup as

to what constitutes a ‘serious crime’—and under prior surviving

precedent, Defendant’s challenge must fail.” Id.

The District Court nonetheless offered views as to how Hunt-Irving’s

challenge would fare under the various tests proposed in Binderup.

Under Judge Ambro’s formulation, the District Court offered that “the

‘state classification’ factor would likely doom [Hunt-Irving’s] challenge,

even though his crime was non-violent and he received no jail time.”

App.28. The challenge was plausible under Judge Ambro’s test, but the

District Court believed it would be unlikely to succeed given the weight

placed on the classification of the offense as a felony. Id. The District

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Court also accepted at face value the government’s representation that

cross-jurisdictional consensus supported viewing the offenses as serious.

App.28 n.12. Hunt-Irving would also lose, of course, under the Binderup

dissent’s approach, which categorizes all Section 922(g)(1) predicates as

serious crimes. App.28-29.

But “if the concurrence in Binderup represented the rule in this

circuit, Defendant would almost certainly be entitled to dismissal of the

Indictment.” App.30.

Proceeding to the task of deciding the matter, the District Court

rejected the government’s request to consider the convictions in this case,

as “[t]his would require some form of judicial time travel, having the

Court rule on the constitutionality of an April 2017 Indictment, based on

a jury’s verdict some two months later.” App.30. Doing so would also

raise ex post facto concerns. Id. The District Court also declined to attach

legal significance to the fact that Hunt-Irving’s rifle was an AK-47. The

weapon was not fully automatic, “and in that respect is not different from

other non-assault-style rifles. Thus, with the exception of Hunt Irving’s

prior felony, his possession of the rifle was lawful.” App.31.

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“Returning to Binderup,” the District Court found that “it is clear”

that the two-step framework of United States v. Marzzarella, 614 F.3d 85

(3d Cir. 2010) “remains controlling, albeit with some uncertainty in its

application.” App.32. Ten judges of Binderup’s fifteen-judge panel found

that Marzzarella governs as-applied challenges to Section 922(g)(1), but

only three of these “would entertain the possibility that even a felon

might retain Second Amendment rights under certain, unspecified

circumstances. As a result, Hunt Irving’s argument could be said to fall

within the plurality’s approach as well as that of the concurrence.” Id.

The District Court then applied Judge Ambro’s three-judge “plurality”

as to what constitutes a “serious crime” for Binderup purposes, and

rejected Hunt-Irving’s challenge. App.32-34. It noted that the

legislature’s felony classification of Hunt-Irving’s conduct indicated that

his crime was serious. App.33-34. The District Court next assigned little

value to Hunt-Irving’s previous lenient sentence, as he was no longer a

first-time offender. App.34. And the District Court added that it found

Hunt-Irving’s predicate offense “both calculated and callous.” Id. It then

rejected Hunt-Irving’s other claims not here at issue. App.35-39.

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His motion to dismiss the 922(g)(1) count denied, Hunt-Irving agreed

to plead guilty to the charge, reserving his appellate rights. App.359-75.

The District Court sentenced Hunt-Irving to 64 months’ imprisonment

on Counts 1, 2, and 8; and eight months’ imprisonment on the felon-in-

possession charge of Count 6, for a total of 72 months. App.5, App.396. It

also ordered concurrent terms of supervised release of 4 years on Count 1,

2, and 8, and 3 years on Count 6; 100 hours of community service; and a

$400 assessment. App.6, App.9, App.398-99. Judgment was entered on

March 18, 2019. App.3-10. Hunt-Irving timely noticed his appeal March

21, 2019. App.1.

SUMMARY OF ARGUMENT

The Fourth Amendment’s rule for police intrusions into the home is

not “search now, consent later.” If extensive investigation produces no

warrant to search a home, the police may not arrest the suspect at the

front door of his business, leverage that arrest into a lengthy, baseless

“protective sweep” of his separate upstairs residence, and then exploit

that unlawful search to obtain “consent.”

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The agents’ business at Hunt-Irving’s building ended upon his

immediate, cooperative arrest, just inside his front door. The agents

should have been pleased that they lacked an articulable fear of other

people on the premises as well as a reason to remain there—and left.

Their premeditated “protective sweep” was legally baseless, and extended

far too long in both time and space. The agents’ belief that they can

“sweep” any home they might enter to effect an arrest is misguided. That

is not the law.

Immediately upon concluding their first unconstitutional search of

Hunt-Irving’s home, the agents exploited it to gain tainted “consent” for

a second unconstitutional search. Subjecting Hunt-Irving to the violation

of his home, and confronting him with the fact that they had already

seized at least one potentially incriminating item (the rifle), underscored

the agents’ point that Hunt-Irving was powerless to resist further

searching.

The District Court erred as a matter of law in evaluating Hunt-Irving’s

taint claim. The Supreme Court stresses that the voluntariness of consent

obtained after a Fourth Amendment violation presents a separate,

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threshold question, asked before evaluating the violation’s impact on the

defendant’s consent pursuant to Brown v. Illinois, 422 U.S. 590 (1975).

The District Court conflated the two inquiries and answered only the

threshold voluntariness question, without performing a Brown analysis.

Its failure to follow Brown led to other errors. The Supreme Court rejects

a “but for” causation test. The District Court chided Hunt-Irving for not

making a “but for” argument, and found that he could not meet that

burden. The Supreme Court assigns the burden in such cases to the

government. The District Court assigned it to Hunt-Irving.

Accepting the voluntariness of Hunt-Irving’s consent, the District

Court’s fundamentally flawed taint analysis should still be reversed. All

three Brown factors—temporal proximity, intervening factors, and the

flagrancy and purposefulness of the violation—signal taint.

Hunt-Irving’s first counsel was unhelpful. He properly objected to the

admissibility of the guns. Yet for no discernible tactical reason, he agreed

that the agents were within their authority to seize the rifle;

consequently, counsel agreed to the rifle’s legal “existence” in this felon-

in-possession case. The District Court found that counsel did not waive

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Hunt-Irving’s claim with respect to the “sweep’s” unlawfulness. But in

an abundance of caution, Hunt-Irving is constrained to point out that his

counsel’s assistance at the suppression hearing was plainly ineffective, if

it leads to the rifle’s admission and consequent conviction.

With respect to the Second Amendment issue, the District Court

correctly read Binderup as holding that as-applied challenges to Section

922(g)(1) are governed by Marzzarella’s two-step framework. The District

Court correctly noted that Binderup did not resolve how that framework

operates. And it correctly acknowledged that Hunt-Irving would prevail

under Binderup’s five-judge concurrence; however unpleasant his

previous misconduct was, it was not dangerous. But even under

Binderup’s three-judge two-step method, Hunt-Irving’s prior conviction

was not “serious” in a sense warranting disarmament.

ARGUMENT

I. THE PREMEDITATED “PROTECTIVE SWEEP” OF HUNT-IRVING’S HOME

VIOLATED HIS FOURTH AMENDMENT RIGHTS.

A. Standard of Review

“In reviewing a motion to suppress, we review a district court’s factual

findings for clear error, and we exercise de novo review over its

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application of the law to those factual findings.” United States v.

Goldstein, 914 F.3d 200, 203 n.15 (3d Cir. 2019) (internal quotation

marks omitted).

Decisions on motions for a new trial are reviewed for abuse of

discretion. “By definition, a district court abuses its discretion when it

makes an error of law. Thus, the abuse of discretion standard includes

review to determine that the discretion was not guided by erroneous legal

conclusions.” United States v. Kelly, 539 F.3d 172, 181 (3d Cir. 2008).

B. The “Sweep’s” Lawfulness, or Lack Thereof, Is a Necessary

Predicate to Hunt-Irving’s Evidentiary Challenges.

To determine whether a search’s products are “fruit of the poisonous

tree,” Wong Sun v. United States, 371 U.S. 471, 488 (1963), courts must

first establish whether the tree is legally poisonous. The “tree” here is

the premeditated, baseless “protective sweep” of Hunt-Irving’s home.

The District Court acknowledged the questions surrounding the

“sweep’s” legality, but offered two reasons for declining to reach the

matter. App.22-23. First, the District Court did not understand that

Hunt-Irving was, in fact, seeking suppression of the rifle obtained during

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the “sweep.”2 Second, the District Court did not appreciate that the

“sweep” legally tainted Hunt-Irving’s consent to the subsequent search.

Because the suppression questions are before this Court, examination of

the “sweep’s” legality is necessary.

C. The “Sweep” of Hunt-Irving’s Home Was Not “Protective.”

Based on the Agents’ Policy of Always “Sweeping,” It
Extended Well-Beyond the Area of Arrest, Lasted Too Long,
and Lacked Any Basis in Safety Concerns.

“A search of a house without a warrant issued on probable cause is

generally unreasonable.” United States v. White, 748 F.3d 507, 511 (3d

Cir. 2014) (citing Maryland v. Buie, 494 U.S. 325, 331 (1990)). The word

“generally” employs many attorneys. One exception, in two varieties both

defined by Buie, allows police to conduct “protective sweeps” for

dangerous individuals who might endanger them during an arrest.

Buie’s first prong holds that “as an incident to [an] arrest[,] the

officers could, as a precautionary matter and without probable cause or

reasonable suspicion, look in closets and other spaces immediately

To this extent this confusion was caused by former counsel’s

2

concessions, subsequent counsel preserved an ineffective assistance

claim. The factual predicates for that claim are, in any event, readily
apparent in the transcript. See infra, Argument III, at 39-41.
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adjoining the place of arrest from which an attack could be immediately

launched.” Buie, 494 U.S. at 334 (emphasis added). “Beyond that” lies

Buie’s second prong, holding that

there must be articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors an individual
posing a danger to those on the arrest scene.

Id. (emphasis added).

“Buie does not allow a protective sweep for weapons or contraband.”

United States v. Williams, 577 F.3d 878, 881 n.3 (8th Cir. 2009) (internal

quotation marks omitted). People who exercise their right to keep arms

do not thereby authorize a warrantless search of their home. Moreover,

innumerable common household objects might be used as weapons

against unsuspecting officers. If “protective sweeps” could target

weapons, real or improvised, the exception would swallow the warrant

requirement. But without dangerous individuals to wield them, inert

objects pose no threat.

Where either of Buie’s prongs authorizes a “protective sweep” for

potentially dangerous individuals, some restrictions nonetheless apply:

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We should emphasize that such a protective sweep, aimed at protecting

the arresting officers, if justified by the circumstances . . . may extend
only to a cursory inspection of those spaces where a person may be
found. The sweep lasts no longer than is necessary to dispel the
reasonable suspicion of danger and in any event no longer than it
takes to complete the arrest and depart the premises.

Id. at 335-36 (footnote omitted).

“The Supreme Court has emphasized . . . that the police bear a heavy

burden when attempting to demonstrate an urgent need that might

justify warrantless searches.” United States v. Coles, 437 F.3d 361, 366

(3d Cir. 2006) (citations omitted). That rule extends to “protective

sweeps.” United States v. Alatorre, 863 F.3d 810, 813 (8th Cir. 2017).

Accordingly, “[t]he police cannot justify a sweep simply by citing their

standard procedure.” United States v. Taylor, 666 F.3d 406, 409 (6th Cir.

2012); Williams, 577 F.3d at 881 n.3; United States v. Rodriguez, No. 18-

662, 2019 U.S. Dist. LEXIS 71628 at *18, 2019 WL 1895062 (D.N.J. Apr.

29, 2019) (court declines “to stretch the ‘protective sweep’ exception . . .

to allow for a ‘protective sweep’ of an entire residence nearly every time

an arrest warrant is executed, in direct contravention to the standard

articulated in Buie.”).

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Yet Agents Schmidt and Glenn both freely admitted that they “swept”

Hunt-Irving’s home because they always “sweep” homes. For these

agents, sweeping is a matter of policy. App.154:2-6. It’s “almost second

nature” to sweep when entering a home pursuant to an arrest warrant.

App.269:2-3. “We’re going to actually do a complete sweep of the property

to clear each room . . . .” App.269:17-19.

Reversal here should update the agents’ Fourth Amendment training.

To paraphrase Agent Schmidt’s memorable testimony—no offense to the

government, but courts don’t just believe that protective sweeps are

constitutional because agents say they’re needed. The Supreme Court is

not going to believe that. It’s going to actually insist on complete

compliance with each Buie requirement.

And by any measure, the “protective sweep” of Hunt-Irving’s home

violated his Fourth Amendment rights. Fifteen minutes, too long a time

for many arguments in this Court, was an excessively long time for a

squad of government agents to “sweep” the areas “immediately adjacent”

to Hunt-Irving’s front door. After all, Hunt-Irving was arrested

immediately upon the agents’ entry. But a “sweep lasts no longer than is

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necessary to dispel the reasonable suspicion of danger and in any event

no longer than it takes to complete the arrest and depart the premises.”

Buie, 494 U.S. at 335-36 (emphasis added). Having arrested Hunt-Irving,

the agents should have left. Period, full stop.

Even if some “sweeping” was appropriate in the arrest’s immediate

moment, the agents agreed that Hunt-Irving’s alleged statement

regarding the rifle was offered after some hesitation, some time into the

fifteen minute “sweep.” Had the “sweep” ended when it should have,

there would have been no rifle statement; if a rifle statement is what led

to the rifle, then the rifle is a product of an excessively long “sweep.”

Of course the agent would have discovered the rifle, in plain view, in

any event. They formed the intent to “sweep” Hunt-Irving’s entire

residence whenever it was during their careers that they came to believe

(wrongly) that full-house “sweeps” are always permissible. Setting aside

their “policy,” the “sweep” was not valid under either of Buie’s prongs.

With respect to Buie’s first prong, an upstairs bedroom is not an area

“immediately adjoining” a home’s front door. United States v. Archibald,

589 F.3d 289, 298 (6th Cir. 2009). “The first [prong of Buie] is clearly not

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applicable: the upstairs bedroom is by no means ‘immediately adjoining

the place of arrest’ when the arrest occurred on the doorstep of the home

and the sweep encompassed a second floor bedroom.” United States v.

Rudaj, 390 F. Supp. 2d 395, 400 (S.D.N.Y. 2005). And in United States v.

Pixley, 7 F. Supp. 2d 52, 55 (D.D.C. 1998), “a second floor bedroom was

searched while Mr. Pixley was fully restrained on the first floor;

obviously the search was not of ‘spaces immediately adjoining the place of

arrest.’” See also Rodriguez, 2019 U.S. Dist. LEXIS 71628 at *10

(“undisputed that Buie’s first prong is not at issue” where second floor is

searched after first floor arrest); Malik v. Hannah, 799 F. Supp. 2d 355,

361 (D.N.J. 2011) (upstairs is “far beyond the immediate area” of first

floor kitchen); cf. Theoharis v. Rongen, No. C13-1345RAJ, 2015 U.S.

Dist. LEXIS 14699, at *30-*31, 2015 WL 509698 (W.D. Wash. Feb. 6,

2015) (second floor does not immediately adjoin lower-level bedroom).

That a second floor is not immediately adjacent to a home’s front door

appeared too obvious a proposition for this Court to merit mention in

United States v. Howard, 729 Fed. Appx. 181 (3d Cir. 2018). Analyzing a

protective sweep in that context, this Court relegated Buie’s first prong to

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the status of “inter alia” in considering whether the search was lawful,

id. at 186-87, upholding the search only because the police had articulable

facts under Buie’s second prong to believe others were on the premises.

But Buie’s second prong is inapplicable here.

Agent Schmidt correctly stated that his team was not required to

believe whatever Hunt-Irving told them about the absence of others on

the property. Police ask this question because they are entitled to rely on

a positive answer, not because they must believe a negative one. In the

absence of Hunt-Irving’s indication that others were in the home, the

agents still required some “articulable facts” to reasonably support the

belief that someone on the second floor—through the door, and up spiral

staircases—might pose a danger to the officers. Buie, 494 U.S. at 334.

“[I]f officers lack any information about whether someone remains inside

a house, they do not have the specific, articulable facts required for a

protective sweep beyond the adjacent areas.” United States v. Bagley, 877

F.3d 1151, 1156 (10th Cir. 2017) (citation omitted).

Here, the agents had no specific, articulable facts suggesting the

presence of other individuals in the home. They had only, at most, a

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statement about an object, and . . . their policy of sweeping no matter

what. This case is remarkably similar to that recently described in

Rodriguez, supra, where agents seized the home’s occupants near the

front door, but proceeded to search an upstairs bedroom owing to their

habits and baseless supposition. That “sweep” was declared

unconstitutional. The same result obtains here—meaning the rifle must

be excluded, and with consequences for Hunt-Irving’s subsequent consent

to the search of his home.

II. THE FIRST UNLAWFUL SEARCH OF HUNT-IRVING’S HOME TAINTED HIS

CONSENT TO HIS HOME’S SECOND SEARCH, REQUIRING REVERSAL OF
THE JUDGMENT BASED ON INADMISSIBLE EVIDENCE.

A. Standard of Review

As noted supra, in reviewing the denial of a motion to suppress

evidence, the District Court’s factual findings are reviewed for clear error,

while its application of the law is reviewed de novo. Goldstein, 914 F.3d

at 203 n.15. New trial motions are reviewed for abuse of discretion, which

occurs when a decision is tainted by legal error. Kelly, 539 F.3d at 181.

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B. The Agents Exploited Their Unlawful “Sweep” of Hunt-

Irving’s Home In Seeking and Obtaining His Consent to the
Subsequent Search, Rendering That Consent Tainted.

The exclusionary rule “is directed at all unlawful searches and

seizures, and not merely those that happen to produce incriminating

material or testimony as fruits.” Brown, 422 U.S. at 601. “[W]hen it is

claimed that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of a

prior illegality,” courts must resolve “whether the challenged evidence

was ‘come at by exploitation of [the initial] illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.’” Segura v.

United States, 468 U.S. 796, 804-05 (1984) (quoting Wong Sun, 371 U.S.

at 488).

“The three factors articulated in Brown guide our analysis” of whether

a Fourth Amendment violation taints subsequently-developed evidence.

Utah v. Strieff, 136 S. Ct. 2056, 2061-62 (2016) (citation omitted).

First, we look to the “temporal proximity” between the

unconstitutional conduct and the discovery of evidence to determine
how closely the discovery of evidence followed the unconstitutional
search. Second, we consider “the presence of intervening
circumstances.” Third, and “particularly” significant, we examine “the
purpose and flagrancy of the official misconduct.”

Id. at 2062 (citations omitted).

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Brown rejected the use of a “but for” test, or any test relying upon a

single factor. Brown, 422 U.S. at 603. And it stressed, at some length,

that the voluntariness of a subsequent statement presents a separate

matter. “[E]ven if . . . statements . . . were found to be voluntary under

the Fifth Amendment, the Fourth Amendment issue remains.” Id. at

601-02.

In order for the causal chain, between [an] illegal arrest and the
statements made subsequent thereto, to be broken, Wong Sun
requires not merely that the statement meet the Fifth Amendment
standard of voluntariness but that it be “sufficiently an act of free will
to purge the primary taint.” Wong Sun thus mandates consideration of
a statement’s admissibility in light of the distinct policies and interests
of the Fourth Amendment.

Id. at 602 (citation omitted). “The voluntariness of the statement is a

threshold requirement,” considered before and separately apart from the

three Brown factors. Id. at 604 (citation omitted). “And the burden of

showing admissibility rests, of course, on the prosecution.” Id. (footnote

omitted).

Consent to a search is a statement that might be tainted by a prior

Fourth Amendment violation. “Absent some exception, evidence obtained

as a result of an illegal seizure, including evidence obtained by consent

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tainted by the illegal seizure, is inadmissible.” United States v.

Wrensford, 866 F.3d 76, 85 (3d Cir. 2017).

“Even if given voluntarily . . . consent does not validate a [tainted]

search . . . .” United States v. Jaquez, 421 F.3d 338, 342 (5th Cir. 2005)

(citation omitted). “[N]ot only must the consent be valid, i.e., voluntary . .

. but the causal chain between the illegal seizure and the consent must be

broken to avoid the consequences of the exclusionary rule.” United States

v. Beauchamp, 659 F.3d 560, 573 (6th Cir. 2011) (internal quotation

marks omitted).

When a consensual search is preceded by a Fourth Amendment

violation, as in this case, the government must prove not only the
voluntariness of the consent under the totality of the circumstances,
but the government must also “establish a break in the causal
connection between the illegality and the evidence thereby obtained.”

United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994)

(citations and footnotes omitted).3 “The question is whether the causal

3
Two earlier Tenth Circuit opinions offered that voluntariness of
consent suffices to purge the taint of a Fourth Amendment violation. See
United States v. Mendoza-Salgado, 964 F.2d 993, 1013 (10th Cir. 1992)
(citing United States v. Carson, 793 F.2d 1141, 1150 (10th Cir. 1986)).
But Melendez-Garcia noted that stare decisis had already barred this
approach. 28 F.3d at 1054. The Tenth Circuit follows Melendez-Garcia.
See, e.g., United States v. Shrum, 908 F.3d 1219, 1234 (10th Cir. 2018).
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connection between the illegality and the consent was broken, and the

government has the burden of persuasion on that issue.” United States v.

Robeles-Ortega, 348 F.3d 679, 683 (7th Cir. 2003) (citation omitted); see

also United States v. Hill, 649 F.3d 258, 267-68 (4th Cir. 2011); United

States v. Alvarez-Manzo, 570 F.3d 1070, 1077 (8th Cir. 2009); United

States v. Valentine, 539 F.3d 88, 96 (2d Cir. 2008); United States v.

Washington, 490 F.3d 765, 776-77 (9th Cir. 2007).4

The District Court simply failed to follow Brown. It correctly observed

that “[t]he protective sweep of the second floor does not alter [the

voluntariness] analysis,” App.24, but failed to appreciate that this is so

because, per Brown, voluntariness and taint are different tests. “[T]he

voluntariness of consent is only a threshold requirement; a voluntary

consent to search does not remove the taint of an illegal seizure.” United

4
Hunt-Irving notes that an unpublished opinion of this Court
offered a contrary view, observing that “the taint on the consent that
resulted from [an unlawful seizure] would be removed if such consent
was obtained voluntarily under the circumstances.” United States v.
Narcisse, 501 Fed. Appx. 142, 145-46 (3d Cir. 2012). However, this non-
precedential opinion contradicts the Supreme Court’s decision in Brown
and its extensive progeny, including this Court’s later published opinion
in Wrensford. Moreover, this contrarian view is dictum, as the Narcisse
court found that the defendants were not unlawfully seized.
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States v. Santa, 236 F.3d 662, 676 (11th Cir. 2000) (citation omitted).

Although there is overlap between the voluntariness test and the fruits
test for attenuation, the two tests are not congruent, and evidence
derived from a consensual search is only admissible if “the consent was
both voluntary and not an exploitation of the prior illegality.”

Washington, 490 F.3d at 775 (quoting Wayne R. LaFave, 4 Search and

Seizure § 8.2(d)). Hunt-Irving’s post-trial motion did not argue

voluntariness. It argued taint under Wong Sun. The District Court found

that initial counsel did not waive the argument, and it even cited Brown.

See App.23. But it failed to appreciate that voluntariness and taint are

different matters, and it failed to apply any of the Brown taint factors.

Indeed, the District Court directly contradicted Brown, chiding Hunt-

Irving for “not argu[ing] that the second floor sweep was a ‘but-for’ cause

of his consent to search, let alone that it was the critical element in his

decision to consent.” App.24. Hunt-Irving made no such argument

because Brown rejected that approach: “we . . . decline to adopt any . . .

per se or ‘but for’ rule.” Brown, 422 U.S. at 603. “No single fact is

dispositive. The workings of the human mind are too complex, and the

possibilities of misconduct too diverse, to permit protection of the Fourth

Amendment to turn on such a talismanic test.” Id.

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“Where the district court fails to employ the Brown factors and ask

whether the taint of a prior illegality has been purged, but the record is

adequately developed, we may undertake our own de novo review of these

factors.” Shrum, 908 F.3d at 1236 (citations omitted). Agents Schmidt

and Glenn have testified long enough. Their testimony leaves no doubt as

to the outcome of the required Brown analysis.

1. Temporal Proximity Favors Suppression, as the

Agents Obtained Hunt-Irving’s Consent Immediately
After Their Unlawful Search.

“Our precedents have declined to find that [temporal proximity] favors

attenuation unless substantial time elapses between an unlawful act and

when the evidence is obtained.” Strieff, 136 S. Ct. at 2062 (internal

quotation marks omitted). In Brown, an interval between the illegality

and the defendant’s statement of “less than two hours” favored

suppression. Brown, 422 U.S. at 604. “[A] consent obtained immediately

after an illegal entry is less likely to be unconnected to that entry,” and

one “obtained within a few minutes of” the violation weighs against

attenuation. Robeles-Ortega, 384 F.3d at 683.

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2. No Intervening Circumstances Occurred Attenuating

the Unlawful Search’s Impact.

Given the immediacy of the agents’ request for consent, nothing

happened in the interval between their unlawful search of Hunt-Irving’s

home and Hunt-Irving’s consent. Agreement to sign a consent form is not

an attenuating “intervening circumstance.” Robeles-Ortega, 348 F.3d at

683-84.

3. The Agents’ Purposeful Violation of Hunt-Irving’s

Rights and Their Flagrant Exploitation of That
Violation Favors Suppression.

The third Brown factor weighs decisively in favor of suppression. The

violation here was flagrant—a warrantless and wholly unnecessary search

of a private home. Buie was decided in 1990. Almost a quarter-century

later, the agents believed they could “sweep” any home as a matter of

course. Moreover, the agents had always had an interest in searching the

second-floor residence, as opposed to “[t]he [first floor] funeral parlor

[which] was, to our knowledge, of no evidentiary value." App.132:5-10.

The “sweep” was not cursory. It lasted fifteen minutes—long past the

moment of Hunt-Irving’s arrest, and extended well-beyond those areas

immediately adjacent to the arrest’s vicinity. One can reasonably wonder

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about the extent to which this “sweep” was investigatory in nature,

considering it lacked any protective purpose.

That much, the agents finally confirmed when they exploited the

“sweep’s” fruit—the rifle—in seeking Hunt-Irving’s consent. As Agent

Schmidt admitted, “it was put to the defendant—listen, you know, we’re

seizing the AK-47, you know.” App.277:5-7.

The misconduct here is strikingly similar to the basis for suppression

in United States v. Yarbrough, 281 F. Supp.3d 1225 (N.D. Ala. 2018). In

Yarbrough, officers visited a home where tipsters had reported drug

activity, ostensibly to arrest the couple living there on outstanding arrest

warrants. Mr. Yarbrough was peacefully arrested in his front yard. An

officer entered the home, and brought out an arrested Mrs. Yarbrough.

The police then immediately re-entered and “swept” the house, without

any basis to believe that a dangerous individual remained. The “sweep”

yielded two unlawfully-possessed shotguns, which the police placed in the

Yarbroughs’ view while obtaining their consent to search again. The

second search yielded drugs and paraphernalia.

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The Yarbrough court excluded everything. The sweep was plainly

unlawful, and consent to the second search was tainted by the first. The

officer had “removed the shotguns from the home in front of the

Yarbroughs and placed them . . . in plain view of the Yarbroughs, while

he sought their consent to search the home. Mr. Yarbrough was ‘face to

face with the incriminating evidence’ that he, a convicted felon, possessed

two firearms.” Yarbrough, 281 F. Supp. 3d at 1240 (citation omitted).

The Court gave the officer the benefit of the doubt as to bad faith, but

could not abide the fact that “the illegal search and seizure resulted in

the flagrant display of the irrefutable incriminating evidence against Mr.

Yarbrough. The court cannot say that such irrefutable incriminating

evidence on full display did not taint the voluntariness of the Yarbroughs’

consent.” Id.

At least in Yarbrough, the officers might have argued about how

flagrantly they paraded the guns before the Yarbroughs, and questioned

whether the couple truly understood that the police had seized those

incriminating items. Here, there is no need to speculate: Agent Schmidt

made explicit what the Yarbrough police only perhaps implied.

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Consent to the second search was obtained in the immediate aftermath

of an unconstitutional search of Hunt-Irving’s home, in part by

purposefully and flagrantly exploiting the fruits of that search. Under

these circumstances, the consent, even if voluntary, was tainted.

C. It Is Reasonably Possible That the Cash and Digital Scale

Swayed the Jury to Convict Hunt-Irving.

Reversal is required if “there is a reasonable possibility that the

improperly admitted evidence contributed to the conviction.” Schneble v.

Florida, 405 U.S. 427, 432 (1972); Virgin Islands v. Bedford, 671 F.2d

758, 762 (3d Cir. 1982). When inadmissible evidence is used to gain a

conviction, it must be shown “beyond a reasonable doubt [that] the error

complained of did not contribute to the verdict obtained.” United States

v. Stevenson, 832 F.3d 412, 427 (3d Cir. 2016) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). “An error in admitting plainly

relevant evidence that possibly influenced the jury adversely to a litigant

cannot be conceived of as harmless.” United States v. Roberts, 419 Fed.

Appx. 155, 160-61 (3d Cir. 2011) (citation omitted).

The jury’s acquittal of Hunt-Irving on one of the major conspiracy

charges (Count 7) reflects the case’s less-than-overwhelming nature. It is

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axiomatic that physical evidence is useful in proving conspiracies, and the

presence of a digital scale along with a large sum of cash naturally

suggests that drug dealing is afoot. See, e.g., United States v. Colon, 523

Fed. Appx. 241 (3d Cir. 2013); App.140:15-20.

The jury had expressed reasonable doubt as to some of Hunt-Irving’s

participation in the conspiracies. It is reasonably possible that it might

have had yet-more doubt in the absence of corroborating physical

evidence seized from his home.

III. HUNT-IRVING RECEIVED INEFFECTIVE ASSISTANCE

FROM HIS FORMER COUNSEL.

A. Standard of Review

“[W]e exercise plenary review over the legal components of

ineffectiveness, assess any underlying findings of fact for clear error, and

exercise independent judgment on whether those facts, as found by the

District Court, show that counsel rendered ineffective assistance.”

United States v. Washington, 869 F.3d 193, 204 (3d Cir. 2017) (footnote

and internal quotation marks omitted).

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B. Former Counsel’s Pointless Concessions Regarding the Rifle’s

Seizure Risk His Client’s Conviction for Possessing the Rifle.

Even were this Court to reverse and hold for Hunt-Irving on his

Fourth Amendment claim, it is unclear whether former counsel’s

concession as to the rifle would help sustain the Section 922(g)(1)

conviction. The District Court agreed that former counsel preserved

arguments as to the “sweep’s” unconstitutionality, but also seized upon

counsel’s stipulation, and that to which he led his client, respecting the

rifle’s existence for Section 922(g)(1) purposes.

In an abundance of caution, then, Hunt-Irving is constrained to claim

that this conduct fell short of Sixth Amendment standards. Subsequent

counsel preserved the claim, but it would be reviewable in any event as it

plainly appears in the record. United States v. Headley, 923 F.2d 1079,

1083 (3d Cir. 1991).

The rifle concession was “not supported by a reasonable strategy.”

Washington, 869 F.3d at 204. Counsel was already moving to suppress

the rifle. As demonstrated supra, the search that yielded the rifle was

unconstitutional. Why, then, suddenly concede the matter? The only

correct answer to the District Court’s question was, “No, the agents had

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no authority to go upstairs, because they had completed their arrest, and

they lacked any reason to believe that anyone could attack them from the

second floor or anywhere else.” Counsel gained nothing for his client by

conceding the rifle’s seizure and existence, aside from perhaps eight

months in prison.

IV. HUNT-IRVING’S PRIOR CONVICTIONS WERE NOT “SERIOUS”

IN THE SENSE JUSTIFYING HIS DISARMAMENT.

A. Standard of Review

“We apply a mixed standard of review to a district court’s decision on a

motion to dismiss an indictment, exercising plenary review over legal

conclusions and clear error review over factual findings.” United States v.

Small, 793 F.3d 350, 352 (3d Cir. 2015) (internal quotation marks

omitted).

B. Individuals May Challenge Section 922(g)(1)’s Application

When Their Predicate Convictions Do Not Reflect Traditional
Justifications for Disarmament.

In Binderup, an 8-7 en banc majority upheld two as-applied Second

Amendment challenges to Section 922(g)(1). The majority as well as the

dissent, however, were both fractured. A survey of where Binderup leaves

the Court today is merited.

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Judge Ambro’s lead opinion garnered seven out of fifteen votes for the

proposition that as-applied challenges to Section 922(g)(1) are governed

by Marzzarella’s two-step framework. At Marzzarella’s first step, a

challenger “must (1) identify the traditional justifications for excluding

from Second Amendment protections the class of which he appears to be

a member, and then (2) present facts about himself and his background

that distinguish his circumstances from those of persons in the

historically barred class.” Binderup, 836 F.3d at 347 (citing United States

v. Barton, 633 F.3d 168 (3d Cir. 2011)). “[I]f the challenger succeeds at

step one, the burden shifts to the Government to demonstrate that the

regulation satisfies some form of heightened scrutiny.” Id.

This seven-judge contingent also offered that the traditionally-

acceptable justification for disarming people convicted of crimes was

“virtuousness,” or the lack-thereof. Crimes suggesting lack of virtue were

sufficiently serious to warrant disarmament. Id. at 348-49. “To the extent

Barton suggests that people who commit serious crimes retain or regain

their Second Amendment rights if they are not likely to commit a violent

crime, it is overruled.” Id. at 349 (citation omitted).

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Another three judges, Chief Judge McKee and Judges Shwartz and

Restrepo, agreed that Marzzarella governed the case—for a total of ten of

fifteen judges retaining Marzzarella—but did not join the portion of

Judge Ambro’s opinion stating as much. This contingent rejected the idea

that as-applied challenges to Section 922(g)(1) were available at all, and

would have overruled Barton on that point entirely. See Binderup, 836

F.3d at 339 n.1; id. at 387 n.72 (Fuentes, J., dissenting).

The seven judges who had joined in Judge Ambro’s opinion allowing

for “virtuousness”-based challenges to felon disarmament, on grounds

that the underlying crime was not “serious,” then split. In an opinion by

Judge Fuentes, four of these judges, along with the three “no-challenge”

judges, offered that no as-applied challenge to Section 922(g)(1) could

pass two-step review.

Meanwhile, Judge Ambro, along with Judges Greenaway, Jr. and

Smith, found that as-applied challenges to Section 922(g)(1) were indeed

viable—and that the case’s two challengers prevailed. This contingent

offered that “there are no fixed criteria for determining whether crimes

are serious enough to destroy Second Amendment rights.” Id. at 351.

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They nonetheless focused on four factors to be considered at Marzzarella

step-one: the crimes’ classification as either misdemeanors or felonies,

whether the crimes were violent, any cross-jurisdictional consensus as to

the crimes’ severity, and the sentence actually imposed. Id. at 351-53.

The challengers prevailed under this approach, as they sustained their

step-one burden while the government had failed to establish its case at

step-two. Id. at 356-57.

Judge Hardiman, leading a five-judge contingent, joined Judge

Ambro’s three-judge “plurality” to form a majority sustaining the

challenges. But this contingent did so on an entirely different basis: “the

time-honored principle that the right to keep and bear arms does not

extend to those likely to commit violent offenses.” Id. at 367 (Hardiman,

J., concurring). The Second Amendment’s framers understood that “the

Constitution permitted the dispossession of persons who demonstrated

that they would present a danger to the public if armed.” Id. at 369

(Hardiman, J., concurring) (footnote omitted). The focus must be on an

individual’s “propensity for violence.” Id. at 374 (Hardiman, J.,

concurring).

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To be sure, Judge Ambro’s contingent offered that its “virtuousness”-

based test was the law of this circuit. Id. at 356. But as both Judge

Hardiman and the District Court here noted, only three of fifteen judges

supported this view. Id. at 357 n.2 (Hardiman, J., concurring); App.25

n.7. Judge Ambro sought to follow the rule of Marks v. United States, 430

U.S. 188 (1977), which holds that “when no single rationale explaining

the result enjoys the support of a majority of the Court, its holding ‘may

be viewed as that position taken by those Members who concurred in the

judgments on the narrowest grounds.’” Id. at 356 (quoting Marks, 430

U.S. at 193). But neither opinion forming the majority bases its holding

on grounds narrower than the other. The opinions have different grounds

upon which they award relief.

Considering as-applied challenges to Section 922(g)(4)’s prohibition on

the possession of firearms by people involuntarily committed to mental

hospitals, this Court followed Judge Ambro’s Binderup opinion in

retaining Marzzarella’s two-step approach. Beers v. Atty. Gen’l, No. 17-

3010, 2019 U.S. App. LEXIS 18519, at *4, 2019 WL 2529248 (3d Cir. June

20, 2019). Beers also referred the virtuousness standard for felon

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disarmament as though it were circuit law, id. at *9-*10, but that much is

dictum, as Beers is not a Section 922(g)(1) case; indeed, Beers held that

the mentally ill may be disarmed not because they lack virtue, but

because they are dangerous. Id. at *13-*15.

In sum, this Court recognized as-applied challenges to Section

922(g)(1), and these challenges are apparently subject to Marzzarella’s

two-step framework. However, no panel majority governs the basis for

such challenges, or the manner in which they are applied.

Hunt-Irving respectfully submits that Judge Hardiman’s Binderup

concurrence offers the most persuasive basis for as-applied Section

922(g)(1) challenges. As the District Court found, Hunt-Irving would

assuredly prevail under that standard.5 The question would be closer

under Judge Ambro’s approach, but Hunt-Irving would prevail under

that test as well.

As demonstrated the District Court in one of the opinions

5

Binderup affirmed, Suarez v. Holder, 255 F. Supp. 3d 573 (M.D. Pa.

2015), a dangerousness inquiry is compatible with the two-step
framework, though resolution of the first step determines the outcome of
the second.
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C. Hunt-Irving Cannot Be Disarmed Because Dangerousness Is

the Traditional Justification for Disarmament.

The Supreme Court began its analysis of the Second Amendment

“with the strong presumption that the Second Amendment right is

exercised individually and belongs to all Americans.” District of Columbia

v. Heller, 554 U.S. 570, 581 (2008). At least outside the felon context,

precedent demonstrates that people cannot be disarmed unless their

exercise of Second Amendment rights poses a threat.

Beers made this point with respect to the mentally ill. The D.C. Circuit

has done so with respect to the public at large, striking down an

ordinance that reserved the right to bear arms to a tiny fraction of “the

People.” “[T]he right to carry is a right held by responsible, law-abiding

citizens for self-defense . . . ‘responsible’ must include those who are no

more dangerous with a gun than law-abiding citizens generally are.”

Wrenn v. District of Columbia, 864 F.3d 650, 664 (D.C. Cir. 2017)

(citation omitted). “At a minimum, then, the Second Amendment must

enable armed self-defense by commonly situated citizens: those who

possess common levels of need and pose only common levels of risk.” Id.

“[T]he point of the Amendment [is] that guns would be available to each

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responsible citizen as a rule (i.e., at least to those no more prone to

misuse that access than anyone else).” Id. at 665-66.

In guiding dictum, the Supreme Court afforded presumptive validity to

“longstanding prohibitions on the possession of firearms by felons,”

among other restrictions, because such laws might reflect the right’s

“scope” as would be revealed by “historical analysis.” Heller, 554 U.S. at

626-27 & n.26. “[F]uture legislatures” could not override “the scope

[rights] were understood to have when the people adopted them.” Id. at

634.

“The Founding generation had no laws . . . denying the right [to keep

and bear arms] to people convicted of crimes.” Adam Winkler, Heller’s

Catch-22, 56 UCLA L. Rev. 1551, 1563 (2009)). “Bans on ex-felons

possessing firearms were first adopted in the 1920s and 1930s, almost a

century and a half after the Founding.” Id. Yet Heller’s description of

felon disarmament laws as “longstanding,” in the sense that they

comport with the Framers’ understanding of the right’s scope, may

readily be harmonized with the historical absence of such laws before the

twentieth century. As the Fifth Circuit put it, “we look to whether the

48
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law harmonizes with the historical traditions associated with the Second

Amendment guarantee.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir.

2012).

Thus, laws newly enacted in 1968 do not require a specific Framing

Era analogue, just as ancient regulatory outliers do not override

constitutional text owing to the fortuity that they evaded judicial review.

But the analysis must be grounded in Framing Era thinking. “1791, the

year the Second Amendment was ratified—[is] the critical year for

determining the amendment’s historical meaning.” Moore v. Madigan,

702 F.3d 933, 935 (7th Cir. 2012) (citation omitted).

The analysis comes full circle when considering that Section 922(g)(1)

was enacted to “keep firearms out of the hands of presumptively risky

people.” Dickerson v. New Banner Inst., 460 U.S. 103, 112 n.6 (1983).

The Framers may not have had felon disarmament laws, but they were

well-acquainted with the concept of disarming “risky people.”

[A]ctual “longstanding” precedent in America and pre-Founding

England suggests that a firearms disability can be consistent with the
Second Amendment to the extent that . . . its basis credibly indicates a

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present danger that one will misuse arms against others and the
disability redresses that danger.

C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv.

J.L. & Pub. Pol’y 695, 698 (2009).

“The most germane evidence available directly supports the conclusion

that the founding generation did not understand the right to keep and

bear arms to extend to certain categories of people deemed too dangerous

to possess firearms.” Binderup, 836 F.3d at 367 (Hardiman, J.,

concurring). “[F]ounding-era legislatures categorically disarmed groups

whom they judged to be a threat to the public safety.” Kanter v. Barr, 919

F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting).

The Pennsylvania, Massachusetts, and New Hampshire ratifying

conventions that the Supreme Court described as “highly influential,”

Heller, 554 U.S. at 604, offer further insight. Pennsylvania’s convention

saw a proposal that “no law shall be passed for disarming the people or

any of them unless for crimes committed, or real danger of public injury

from individuals.” The Address and Reasons of Dissent of the Minority of

the Convention of Pennsylvania to their Constituents, reprinted in

Bernard Schwartz, 2 The Bill of Rights: A Documentary History 662, 665

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(1971). At the Massachusetts ratifying convention, Samuel Adams

proposed that the “Constitution be never construed to authorize

Congress . . . to prevent the people of the United States, who are

peaceable citizens, from keeping their own arms.” Journal of Convention:

Wednesday February 6, 1788, reprinted in Debates and Proceedings in

the Convention of the Commonwealth of Massachusetts Held in the Year

1788, at 86 (Boston, William White 1856).

And New Hampshire’s convention proposed that “Congress shall never

disarm any Citizen unless such as are or have been in Actual Rebellion.”

Schwartz, supra at 761; see also NRA, 700 F.3d at 200 (recounting

Revolutionary Era disarmament of Loyalists as a safety measure).

In sum, the historical record leads [to the conclusion] that the public
understanding of the scope of the Second Amendment was tethered to
the principle that the Constitution permitted the dispossession of
persons who demonstrated that they would present a danger to the
public if armed.

Binderup, 836 F.3d at 369 (Hardiman, J., concurring) (footnote omitted).

“In 1791—and for well more than a century afterward—legislatures

disqualified categories of people from the right to bear arms only when

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they judged that doing so was necessary to protect the public safety.”

Kanter, 919 F.3d at 451 (Barrett, J., dissenting).

The theory that virtuousness rather than dangerousness supplies the

historical standard for disarmament finds some support among modern

historians, but none in history:

We have found no historical evidence on the public meaning of the

right to keep and bear arms indicating that “virtuousness” was a
limitation on one’s qualification for the right—contemporary
insistence to the contrary falls somewhere between guesswork and ipse
dixit.

Binderup, 836 F.3d at 372 (Hardiman, J., concurring). And “[t]his

‘virtue’ standard—especially in the pliable version articulated by the

Government—is implausible because the ‘civic republican’ view of the

scope of the Second Amendment is wrong.” Id. at 371 (Hardiman, J.,

concurring). The view is “closely related” to the discredited collective

rights notion of the Second Amendment, and “stems from a misreading of

an academic debate” concerning “the rationale for having the right to

keep and bear arms in the first place” rather than who enjoys the right.

Id. at 371-72 (Hardiman, J., concurring).

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The “virtue” theory is tied to another ahistorical claim that,

unfortunately, has found some support among the courts—the notion

that the Framers would have assuredly disarmed felons for lack of virtue,

but failed to do so only because felons were categorically dispossessed of

all property and executed. See, e.g., Medina v. Whitaker, 913 F.3d 152,

158 (D.C. Cir. 2019) (“[I]t is difficult to conclude that the public, in 1791,

would have understood someone facing death and estate forfeiture to be

within the scope of those entitled to possess arms.”).

“[T]he most important early American edition of Blackstone’s

Commentaries (by the law professor and former Antifederalist St. George

Tucker),” Heller, 554 U.S. at 594, tells a different story. Blackstone

recalled that in the medieval period, criminally-accused clergy were often

afforded the benefit of being tried in lenient ecclesiastical courts, thereby

avoiding the King’s punishment. 5 St. George Tucker, Blackstone’s

Commentaries [Book Four] *365-68 (1803). Over time, the “benefit of

clergy” of avoiding capital punishment was extended more broadly

throughout society, often on the condition of sustaining alternative

punishment. By Blackstone’s day, commoners committing their first

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offense were “discharged of the capital punishment of felonies within the

benefit of clergy, upon being burnt in the hand, whipped, or fined, or

suffering a discretionary imprisonment . . . or, in case of larciny, upon

being transported for seven years, if the court shall think proper.” Id. at

*373.

And having received alternative punishment, a first-time felon was

“restored to all capacities and credits, and the possession of his lands, as

if he had never been convicted.” Id. at *374.

As Judge Barrett recounted at some length, the American experience

mirrored that described by Blackstone. By the time of the founding,

capital punishment became relatively rare, and the concept of “civil

death” attached instead to life sentences. Kanter, 919 F.3d at 458-61

(Barrett, J., dissenting). “Those who ratified the Second Amendment

would not have assumed that a free man, previously convicted, lived in a

society without any rights and without the protection of law.” Id. at 461

(Barrett, J., dissenting).

In sum, the Framers only disarmed those deemed dangerous. And

Framing-era felons were not all generally dispossessed. As the District

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Court aptly found, Hunt-Irving “would almost certainly be entitled to

dismissal” of the Section 922(g)(1) claim under the dangerousness

rationale. App. 30. Indeed, he would be entitled to dismissal of that

charge, as he is “unquestionably non-violent, and there is no other

evidence of violent propensity.” App.30.6

D. Hunt-Irving Would Also Be Entitled to Relief Under

Binderup’s Virtuousness Rationale.

Crime is, by definition, not a hallmark of good citizenship. But Judge

Ambro’s Binderup opinion reflects the truth that even good people may

make poor choices that earn criminal sanction, yet retain their status as

virtuous citizens. Applying the factors set out in that opinion, Hunt-

Irving submits that the he would still be entitled to relief, were that

approach followed here.

Because the District Court rejected the government’s argument

6

that the convictions in this case supply a basis for the firearms
possession charge, App.30, and the government based its claim solely on
the prior state court conviction, App.361, Hunt-Irving does not seek an
advisory opinion as to whether he could overcome Section 922(g)(1)’s
presumptive application against him on the basis of any conviction in
this case.
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1. The District Court Over-Emphasized the Relative

Importance of the Predicate Violations’ Classification.

In Binderup, both authors in the majority used the phrase “puts the

rabbit in the hat” to dismiss the notion that sentencing classifications,

without more, remove individuals from the right’s scope. Binderup, 836

F.3d at 350 (Ambro, J.); id. at 365 n.11 (Hardiman, J., concurring).

“Why not” exclude people from the Second Amendment’s scope for “all

misdemeanors?” United States v. Chovan, 735 F.3d 1127, 1148 (9th Cir.

2013) (Bea, J., concurring).

Why not minor infractions? Could Congress find someone once cited
for disorderly conduct to be “not law-abiding” and therefore to have
forfeited his core Second Amendment right? . . . . Why should we not
accept every congressional determination for who is or is not
“law-abiding” and “responsible” for Second Amendment purposes?

Chovan, 735 F.3d at 1148 (Bea, J., concurring).

“Why not? Because Heller was a constitutional decision. It recognized

the scope of a passage of the Constitution. The boundaries of this right

are defined by the Constitution. They are not defined by Congress.” Id.

The Ninth Circuit has reserved “the question of whether there are limits

on Congress’s and the States’ ability to define any old crime as a felony

and thereby use it as the basis for a § 922(g)(1) conviction, consistent

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with the Second Amendment.” United States v. Phillips, 827 F.3d 1171,

1176 n.5 (9th Cir. 2016). “Can a conviction for stealing a lollipop . . .

serve as a basis under § 922(g)(1) to ban a person for the rest of his life

from ever possessing a firearm, consistent with the Second Amendment?

That remains to be seen.” Id.

The government’s position with respect to the arbitrary nature of

legislative classifications shifts from case to case, to best suit its needs.

Where felons are concerned, the government stresses the “felon” label.

But Binderup saw misdemeanants successfully challenge Section

922(g)(1)’s application. Accordingly, in petitioning for certiorari, the

government declared the felon-misdemeanor distinction irrelevant: the

“penalty, not the crime’s label, is the appropriate gauge of the

legislature’s judgment about the offense’s severity.” Petition for

Certiorari, Lynch v. Binderup, No. 16-847, at 16 (Jan. 5, 2017) (internal

quotation marks and footnote omitted). “[A]s this Court has emphasized,

the distinction between felonies and misdemeanors ‘is minor and often

arbitrary,’ and ‘numerous misdemeanors involve conduct more dangerous

than many felonies.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 14

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(1985)). The Court should note the government’s emphasis on

dangerousness in challenging Binderup before the Supreme Court.

Of course the government was correct in its (rare) admission (to the

Supreme Court) that the felon-misdemeanor distinction is irrelevant for

Second Amendment purposes. But that classification is just as much a

creature of legislative prerogative as a sentencing range. The bottom line

remains that “[w]hen the Second Amendment applies, its core guarantee

cannot be withdrawn by the legislature or balanced away by the courts.”

Binderup, 836 F.3d at 365 (Hardiman, J., concurring) (footnote omitted).

Felony classification may be important as a statement of the crime’s

seriousness. But it does not overwhelm the other factors.

2. Hunt-Irving’s Predicate Convictions Were Not Violent.

On this much, there is no debate.

3. Hunt-Irving Received No Jail Time.

The District Court gave “little weight” to “the leniency of the prior

sentencing court.” App.34. This was error. “With not a single day of jail

time, the punishments here reflect the sentencing judges’ assessment of

how minor the violations were.” Binderup, 836 F.3d at 352. If

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rehabilitation cannot undo the fact of a serious crime, a subsequent

crime, even if serious, does not reach back in time and ex post facto

transform an unserious crime into a serious one. The prior judge might

have imposed a stiffer sentence had he known Hunt-Irving would commit

another offense. Or maybe that judge had few expectations or prophecies,

and simply gave Hunt-Irving a no-jail sentence because in the relative

scheme of things, that is what justice required.

4. There Is No Cross-Jurisdictional Consensus Regarding

the Seriousness of the Previous Convictions.

The District Court accepted the government’s claim that “[t]hirty-five

states have criminalized such conduct, and thus the cross-jurisdictional

consideration weighs in favor of seriousness.” App.28 n.12 (citing John F.

Decker, The Varying Parameters of Obstruction of Justice in American

Criminal Law, 65 La. L. Rev. 49 (2004)) (citation corrected).

The District Court erred. The question is whether the crimes are

serious, not whether they are crimes. For example, in examining Suarez’s

conviction, Judge Ambro offered that “more than half [the states]

prescribe a maximum sentence that does not meet the threshold of a

traditional felony.” Binderup, 836 F.3d at 352 (citation omitted).

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Turning to the study here, as with the government’s studies in

Binderup, there is less than meets the eye. The list of 35 states whose

laws allegedly supply a cross-jurisdictional consensus for treating Hunt-

Irving’s prior offense as a “serious crime” is found at Decker, 65 La. L. R.

at 85 n.301. Reviewing the listed provisions, the true number is less than

half that: 17. Of the listed states, twelve criminalize tampering with

records in an apparently relevant manner, but punish the offense as a

misdemeanor.7 Nebraska makes it a misdemeanor to file false reports

with utilities. Neb. Rev. Stat. § 29-910(2). North Carolina, Virginia, and

West Virginia afford misdemeanor treatment to public officials. N.C. Gen.

Stat. § 14-24; Va. Code Ann. § 18.2-472; W. Va. Code § 61-5-22.

Mississippi’s law, prohibiting the theft, destruction or concealment of

public records, appears punishable as either a misdemeanor or felony.

Miss. Code Ann. § 97-9-3. Michigan maintains a two-year misdemeanor

for destroying public records. Mich. Comp. Laws § 750.491(2).

7
See Ala. Code § 13A-10-12(b); Colo. Rev. Stat. § 18-8-114(1); Fla.
Stat. § 839.13; Haw. Rev. Stat. § 710-1017(3); Me. Rev. Stat. Ann. tit. 17-
A, § 456(2); Mo. Rev. Stat. § 575.110(2); N.H. Rev. Stat. Ann. § 641:7;
N.D. Cent. Code § 12.1-11-05(2)(b); Or. Rev. Stat. § 162.305(2)(a); S.D.
Codified Laws § 22-11-23; Tenn. Code Ann. § 39-16-504(b); Utah Code
Ann. § 76-6-504(2).
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Given the balance of the preceding four factors, three of which favor

Hunt-Irving, “the burden shifts to the Government to demonstrate that

the regulation satisfies some form of heightened scrutiny.” Binderup, 836

F.3d at 347. The District Court did not conduct a step-two analysis, and

nothing in the record explains why Section 922(g)(1)’s public safety

interest is advanced by barring Hunt-Irving’s possession of firearms on

account of his previous convictions for tampering with public records.

CONCLUSION

This Court should reverse the judgment below. This Court should also

remand the case with instructions to grant Raphael Hunt-Irving’s

motions to suppress all physical evidence seized from his home, and to

dismiss count six of the third superseding indictment.

Dated: July 3, 2019 Respectfully submitted,

Peter J. Scuderi Alan Gura

Peter J. Scuderi (Pa. Bar No. 32802) Alan Gura (Va. Bar No. 68842)
121 South Broad Street GURA PLLC
Suite 1400 916 Prince Street, Suite 107
Philadelphia, PA 19107 Alexandria, VA 22314
215.546.5650 703.835.9085/703.997.7665

Counsel for Appellant

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CERTIFICATION OF BAR MEMBERSHIP

I certify that I am an attorney in good standing of the bar of the Third

Circuit.
/s/ Alan Gura
Alan Gura

I certify that I am an attorney in good standing of the bar of the Third

Circuit.
/s/ Peter J. Scuderi
Peter J. Scuderi

DATED: July 3, 2019

Case: 19-1636 Document: 003113282020 Page: 75 Date Filed: 07/03/2019

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App.

P. 30(a)(7)(B)(i) because it contains 11,535 words.

2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in proportionately
spaced typeface using Corel WordPerfect in 14 point Century
Schoolbook font.

3. The text of the electronic brief is identical to the text in the paper
copies.

4. This file was scanned for viruses using a currently-subscribed

Norton 360 Anti-Virus installation and was found to be virus-free.

/s/ Alan Gura

Alan Gura
Attorney for Appellants
Dated: July 3, 2019
Case: 19-1636 Document: 003113282020 Page: 76 Date Filed: 07/03/2019

No. 19-1636

In the United States Court of Appeals

for the Third Circuit

UNITED STATES OF AMERICA

v.

RAPHAEL HUNT-IRVING,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Pennsylvania (McHugh, J.)
(District Court Criminal Action No. 14-520-5)

APPENDIX
VOLUME I, pp. App.1-40

Peter J. Scuderi (Pa. Bar No. 32802) Alan Gura (Va. Bar No. 68842)
121 South Broad Street GURA PLLC
Suite 1400 916 Prince Street, Suite 107
Philadelphia, PA 19107 Alexandria, VA 22314
215.546.5650 703.835.9085/703.997.7665

July 3, 2019 Counsel for Appellant

 Case: 19-1636 Document: 003113282020 Page: 77 Date Filed: 07/03/2019

APPENDIX
TABLE OF CONTENTS

Volume I

Notice of Appeal [Dkt. 287]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Judgment [Dkt. 285]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Order Denying Motion to Suppress [Dkt. 181]. . . . . . . . . . . . . . . . . . . . 11

Opinion re: Order Denying Motion to Suppress [Dkt. 211]. . . . . . . . . . 12

Opinion Denying Motion to Dismiss Indictment and Motion for

New Trial and/or to Arrest Judgment [Dkt. 236]. . . . . . . . . . . . . . . . 15

Order Denying Motion to Dismiss Indictment and Motion for

New Trial and/or to Arrest Judgment [Dkt. 237]. . . . . . . . . . . . . . . . 40

Volume II

Docket Entries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Third Superseding Indictment [Dkt. 154, 154-1]. . . . . . . . . . . . . . . . . . 64

Motion to Dismiss Indictment [Dkt. 114]. . . . . . . . . . . . . . . . . . . . . . . . 85

Motion to Suppress Physical Evidence [Dkt. 118].. . . . . . . . . . . . . . . . . 88

Memorandum of Law in Support of Motion

to Suppress Evidence [Dkt. 118-1]. . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Motion of Defendant Raphael Hunt-Irving for a New Trial

and/or Arrest of Judgment [Dkt. 209].. . . . . . . . . . . . . . . . . . . . . . . . 95

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Transcript of Motion to Suppress Hearing, May 24, 2017.. . . . . . . . . . . 99

Transcript of Motion to Suppress Hearing, May 30, 2017.. . . . . . . . . . 175

Government Exh. A, Certified records of conviction at

CP-22-CR-0004570-2010 [Dkt. 216-1]. . . . . . . . . . . . . . . . . . . . . . . . 327

Government Exh. B, Certified records of conviction at

CP -22-CR-0001 49 4-2011 [Dkt. 216-2]. . . . . . . . . . . . . . . . . . . . . . 342

Government’s Change of Plea Memorandum [Dkt. 256]. . . . . . . . . . . 359

Guilty Plea Agreement [Dkt. 257]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

Transcript of Sentencing, March 14, 2019.. . . . . . . . . . . . . . . . . . . . . . 376

ii
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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:
V. : Criminal Number 14-520-5
:
RAPHAEL HUNT-IRVING :

NOTICE OF APPEAL

TO THE CLERK:

Please take notice that defendant RAPHAEL HUNT-IRVING hereby appeals the

judgment of sentence imposed in the above-captioned matter by the Honorable Gerald A.

McHugh on March 14, 2019.

/s/ PeterJ.Scuderi
PETER J. SCUDERI, ESQUIRE
121 South Broad Street suite1400
Philadelphia, PA 19107
(215) 546-5650

App.1
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CERTIFICATE OF SERVICE

I certify that the foregoing pleading has been filed and served electronically on this date.

s/Peter J. Scuderi
Peter J. Scuderi, Esq.

Dated: March 21, 2019

App.2
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AO 245B (Rev 02/18) Judgment ma Cnrnmal Case
Sheet I

UNITED STATES DISTRICT COURT

Eastern District of Pennsylvania
)
UNITED STATES OF AMERICA )
JUDGMENT IN A CRIMINAL CASE
v. )
)
RAPHAEL HUNT-IRVINf'ILED Case Number: DPAE2: 14CR00520-005
)
) USM Number: USM 71670-066
18 MAR' ) 2019
Peter Scuderi, Esq.
KATE BN,KMAN, Clerk ) Defendant's Attorney
By _ _ _ Dep. Clerk )
THE DE.FENDA..""JT:
pleaded guilty to count(s) 6sss

D pleaded nolo contendere to count(s)

which was accepted by the court.
liZI was found guilty on count(s) 1sss,2sss,8sss
after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

21 :846 and 18:2 Attempt to possess with intent to distribute cocaine and 9/26/2014 2sss

The defendant is sentenced as provided in pages 2 through 8 _ of this judgment. The sentence is imposed pursuant to
the Sentencing Reform Act of I 984.
The defendant has been found not guilty on count(s) 7sss
D Count(s) D is Dare dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district withm 30 days ofany change ofname, residence,
or malling address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defenclant must notify the court and United States attorney of material clianges in economic circumstances.

/{)icJ-e.-f~~lrps AJ-«;t1 _3/14/2019 _ _ _ _ _ _ _ _ _ _

1 Date of Irnpos1tton of Judgment

f~w SC¼~·., 61,f_ ~l,\.~~/ _;2J;J _

Tr', C.. o)ov1 n.e,·L l{ U SPO [J.-)
fA l Signature ofJudge

(A_ S- /Vl //½I'5 ivv( CJ.,)

~."" ( 5-'l-v-v; ~s Name and Title of Judge

'f=Lvt Date

App.3
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AO 245B (Rev 02/18) Judgment ma Crunmal Case
Sheet IA
Judgment- Page . . 2_ of _a -
DEFENDANT: RAPHAEL HUNT-IRVING
CASE NUMBER: DPAE2: 14CR00520-005

ADDITIONAL COUNTS OF CONVICTION

21:846 Conspiracy to possess with intent to distribute 500 9/26/2014 8sss

App.4
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AO 245B (Rev 02/18) Judgment rn Cnminal Case
Sheet 2 - Impnsonment
Judgment - Page _ 3 of 8
DEFENDANT: RAPHAEL HUNT-IRVING
CASE NUMBER: DPAE2: 14CR00520-005

IMPRISONMENT

The defendant is hereby conumtted to the custody of the Federal Bureau of Prisons to be imprisoned for a total
term of:

64 months on Count 1sss, 2sss, 8sss, and 8 months on Count 6sss, to be served consecutively to the 64 months on the other
counts, for a total sentence of 72 months.

!i1 The court makes the following recommendations to the Bureau of Prisons:

The defendant shall be designated to a facility close to Philadelphia, PA.

D The defendant is remanded to the custody of the United States Marshal.

The defendant shall surrender to the United States Marshal for this district:

at 10:00 li1' a.m. D p.m. on 3/28/2019

D as notified by the United States Marshal.

D The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

D before 2 p.m. on

D as notified by the United States Marshal.

D as notified by the Probation or Pretrial Services Office.

RETURN
I have executed this judgment as follows:

Defendant delivered on to

at _ , with a certified copy of this judgment.

UNITED STATES MARSHAL

By - - - - -
DEPUTY UNITED STATES MARSHAL

App.5
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AO 245B (Rev 02/18) Judgment ma Cnmmal Case
Sheet 3 Supervised Release
Judgment-Page _ 4 of 8
DEFENDANT: RAPHAEL HUNT-IRVING
CASE NUMBER: DPAE2: 14CR00520-005
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of:
4 years on Count 1sss, 4 years on Count 2sss, 3 years on Count 6sss, and 4 years on Count 8sss, such terms to be served
concurrently.

MANDATORY CONDITIONS

I. You must not commit another federal, state or local cnme.

2. You must not unlawfully possess a controlled substance.
3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from
impnsonment and at least two periodic drug tests thereafter, as determmed by the court.
D The above drug testing condition is suspended, based on the court's determmation that you
pose a low risk of future substance abuse. /check ifapphcable)
4. D You must make restitution in accordance with 18 U.S.C §§ 3663 and 3663A or any other statute authorizing a sentence of
restitution. (check if applicable)
5. You must cooperate in the collection of DNA as directed by the probation officer. (check if appltcable)

6. D You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
reside, work, are a student, or were convicted of a quahfymg offense. (check 1/ applicable)
7. D You must participate man approved program for domestic violence. (check ifappltcable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached
page.

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DEFENDANT: RAPHAEL HUNT-IRVING
CASE NUMBER: DPAE2: 14CR00520-005

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply wtth the following standard conditions of supervision. These conditions are imposed
because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed, report to the court about, and bring about tmprovements in your conduct and condition.

I. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time
frame.
2. After initially reporting to the probation office, you will receive mstructions from the court or the probation officer about how and
when you must report to the probat10n officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the
court or the probation officer.
4. You must answer truthfully the questions asked by your probat10n officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probat10n officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probat10n officer within 72
hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to
take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from
domg so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses
you from domg so. If you plan to change where you work or anythmg about your work (such as your position or your job
responsibilities), you must notify the probation officer at least IO days before the change. If notifying the probation officer at least IO
days m advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becommg aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in crtminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the
probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
I 0. You must not own, possess, or have access to a firearm, ammurntion, destructive device, or dangerous weapon (i.e., anything that was
designed, or was modified for, the specific purpose of causmg bodily injury or death to another person such as nunchakus or tasers).
I I. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first gettmg the permission of the court.
12. If the probation officer determmes that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the
person and confirm that you have notified the person about the nsk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a wntten copy of this
judgment containing these conditions. For further mformation regarding these conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.

Defendant's Signature Date

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Sheet 3D - Supervised Release
Judgment Page 6 of 8
DEFENDANT: RAPHAEL HUNT-IRVING
CASE NUMBER: DPAE2: 14CR00520-005

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall provide the U.S. Probation Office with full disclosure of his financial records to include yearly income
tax returns upon the request of the U.S. Probation Office. The defendant shall cooperate with the probation officer in the
investigation of his financial dealings and shall provide truthful monthly statements of his income.

The defendant is prohibited from incurring any new credit charges or opening additional lines of credit without the approval
of the probation officer. The defendant shall not encumber or liquidate interest in any assets unless he has the express
approval of the Court.

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AO 245B (Rev 02/18) Judgment ma Crunmal Case
Sheet 5 Cnmmal Monetary Penalties
Judgment 7_
Page _ _ of 8
DEFENDANT: RAPHAEL HUNT-IRVING
CASE NUMBER: DPAE2: 14CR00520-005
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment JVTA Assessment* Fine Restitution

TOTALS $ 400 00 $ 0.00 $ 0.00 $ 0.00

D The determination of restitution is deferred until • An Amended Judgment in a Crzminal Case (AO 245C) will be enterec
after such determination.

D The defendant must make restitution (includmg community restitution) to the followmg payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approxtmately proportioned paynient, unless specified otherwise in
the priority order or percentage payment column below. However, pursuant to 18 "C.S.C. § 3664(1), all nonfederal victims must be paid
before the United States is paid.

TOTALS $ 0.00 $ 0.00

D Restitution amount ordered pursuant to plea agreement $

D The defendant must pay interest on restitution and a fme of more than $2,500, unless the restitution or fine is paid in full before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject
to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

D The court determmed that the defendant does not have the ability to pay interest and it is ordered that:

D the mterest requirement 1s waived for the D fine D restitution.

D the interest requirement for the D fine lJ restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

** Fmdings for the total amount oflosses are required under Chapters 109A, 110, 1 lOA, and 113A of Title 18 for offenses committed on or
after September 13, 1994, but before Apnl 23, 1996.
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Sheet 6 Schedule of Payments

Judgment - Page JL_ . of J1

DEFENDANT: RAPHAEL HUNT-IRVING
CASE NUMBER: DPAE2: 14CR00520-005

SCHEDl.JLE OF PAYMENTS

Havmg assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

A Lump sum payment of$ 400.00 due immediately, balance due

• not later than - , or

• in accordance with
• C,
• D,
• E, or D Fbelow; or

B • Payment to begin immediately (may be combmed with • c. DD.or D F below); or

C D Payment in equal _ __ (e.g.. weekly. monthly. quarterly) installments of$ __ ___ _ over a period of
(e.g., months or years), to commence (e.g. 30 or 60 days) after the date of this judgment; or

D D Payment in equal (e.g, weekly. monthly, quarterly) installments of $ over a period of

_ __ (e.g.. months or years), to commence (e g. 30 or 60 days) after release from imprisonment to a
term of supervision; or

E D Payment durmg the term of supervised release will commence within _ _ (e.g. 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

F D Special instructions regardmg the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment ofcrimmal monetary penalties is due during
the period of imprisonment. All crimmal monetary penalties, except those payments made through the Federal Bureau of Pnsons' Inmate
Fmancial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

D J omt and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,
and correspondmg payee, if appropnate.

D The defendant shall pay the cost of prosecution.

D The defendant shall pay the following court cost(s)·

0 The defendant shall forfeit the defendant's interest in the followmg property to the Cnited States:
To be determined.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine
interest, (6) community restitution, (7) NT A assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:
v. :
: CRIMINAL ACTION
PARIS CHURCH, : No. 14-520-1, 3, 5
RAPHAEL HUNT-IRVING, and :
SHAWN MILLS :
:

ORDER
st
This 1 day of June, 2017, upon consideration of Defendant Hunt-Irving’s Motion to

Suppress Physical Evidence (Dkt. 118) and the Government’s Response thereto, and following a

Suppression Hearing, it is hereby ORDERED that Defendant’s Motion is DENIED.

/s/ Gerald Austin McHugh

Gerald Austin McHugh
United States District Court Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL ACTION
v. :
: No. 14-520-5
RAPHAEL HUNT-IRVING :

MCHUGH, J. July 12, 2017

MEMORANDUM

Defendant Raphael Hunt-Irving was indicted on drug and weapons offenses. Before trial,

he moved to suppress evidence that was gathered by the government on the day of his arrest. A

two-day hearing was held, and on June 2, 2017, having carefully considered the testimony and

other evidence presented, I denied Defendant’s motion. Dkt. 181. This memorandum sets forth

my reasoning.

Defendant’s motion represents that when he was arrested, he was “dragged out of his

home at gunpoint . . . [b]ullied, [and] intimidated.” Mot. to Supp. at 3. According to the motion,

Defendant consented to a search of his home under coercion, “fearful of what the Agents would

do if he refused.” Id. This version of events is belied by video footage of the day of the arrest,

taken by security cameras at Defendant’s residence, which was also an operating funeral home.

After the law enforcement agents initially entered the property and secured it, there is no footage

of any weapons being brandished. Moreover, those portions of the video that show Defendant in

the presence of the agents do not show him being manhandled in any way.

I credit the testimony of DEA Agent Kenneth Glenn that Defendant was properly advised

of his Miranda rights, did not request the advice of a lawyer, and did not have any weapons

pointed at him after the arresting agents completed their protective sweep of the property. Glenn

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testified convincingly that Defendant was concerned because there was a funeral scheduled later

that morning, and wanted the agents to complete their activities on-site as quickly as possible to

spare him an embarrassing interruption in the operation of his business. I also credit the

testimony of DEA Agent Louis Schmidt, who largely corroborated Glenn’s version of events.

Schmidt testified that he explained to Defendant that agents would need to secure his property

while waiting for a search warrant to issue—a practical reality of law enforcement that would

have motivated Defendant to consent to a search. Furthermore, consistent with Defendant’s

seeking to minimize any impact on his business, Schmidt testified that Defendant requested to be

taken out the back of the property to avoid being seen by patrons of the funeral home when being

transported into custody. The video confirms the agents’ compliance with that request. Finally,

like Glenn, Schmidt credibly testified that Defendant did not request the advice of a lawyer.

I note as well that there was no incentive for the agents to jeopardize an investigation of

this duration and magnitude by engaging in questionable practices on a day that multiple arrest

warrants were being executed. Based upon the wiretaps obtained during the investigation, there

was an ample basis upon which the government could have secured a search warrant for

Defendant’s property. The issue was simply one of timing, and the premises could easily have

been secured while the necessary showing was made before a judicial officer. It would make no

sense for the highly experienced agents involved in arresting Defendant to engage in the type of

behavior alleged, where there was nothing to gain and everything to lose by unlawful conduct.

Defendant’s credibility was undermined by the bold assertions set forth in the motion to

suppress, which were refuted by the video the defense itself submitted into evidence. I found

Defendant’s testimony exaggerated, and found no credibility to his assertions that he felt

physically threatened or that he signed a blank consent to search form.

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In resolving issues of credibility in favor of the agents and against Defendant, I have

given consideration to the fact that Glenn’s memory of the specific sequence of certain events on

the morning of Defendant’s arrest was clearly incorrect in view of the video. However, such

lapses of memory were in no way material, and the video undermines rather than supports

Defendant’s contention of threatening conduct on the part of the agents. I have also considered

Defendant’s testimony that he was told that because his indictment was sealed, there was no right

to speak with counsel. The specific nature of that testimony lends credence to the proposition

that there might have been some discussion about counsel with one or more of the agents. Yet

viewed against the totality of the evidence, and my observations of the demeanor of the

competing witnesses, I credit the agents who testified that Defendant did not seek to confer with

counsel.

In summary, the motion to suppress was denied because I was persuaded by the evidence

that Defendant was properly advised of his Miranda rights, that he was not threatened or

coerced, that he did not seek the advice of counsel before consenting to the search, and that he

voluntarily consented because of his incentive to expedite the agents’ departure from his funeral

home so as to minimize any potential negative impact on his business.

/s/ Gerald Austin McHugh

Gerald Austin McHugh, J.
United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:
v. : CRIMINAL ACTION
: No. 14-520-5
RAPHAEL HUNT IRVING :
:

McHUGH, J. July 27, 2018

MEMORANDUM

Defendant Raphael Hunt Irving was found guilty by a jury of drug-related conspiracy and

attempt charges in the culmination of an extensive, multi-defendant investigation. He now

challenges the sufficiency and constitutionality of the underlying indictment on several grounds,

the admission of certain evidence under the Fourth Amendment and Maryland v. Buie, 494 U.S.

325 (1990), and his pending felon-in-possession charge, 18 U.S.C. § 922(g)(1), under the Second

Amendment.

Hunt Irving’s felon-in-possession charge was severed from the rest pending the Third

Circuit’s decision in Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), a

Second Amendment challenge to the law, and is now ripe for decision. He argues that

§ 922(g)(1) is unconstitutional as applied to him because it bars him from gun ownership based

only on a “non-serious” crime. His challenge highlights the serious implications of what the

Third Circuit left unresolved in the splintered Binderup decision: what constitutes a “serious

crime” for Second Amendment purposes when a felon challenges the applicability of §

922(g)(1). When he was charged, Hunt Irving had a single, non-violent felony conviction—a

conviction that, when subjected to the various tests advanced in Binderup would lead to different

1
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outcomes in his case. Indeed, as set forth below, the Defendant essentially relies upon the

concurring opinion in Binderup as the principal basis for his argument. But the legal test Hunt

Irving asks me to apply in support of his Second Amendment challenge did not command a

majority of the Court, and his Motion to Dismiss the Indictment, together with his other motions,

will be denied.

I. Background

Following a wiretap and indictment, federal agents obtained arrest warrants for

Defendant Raphael Hunt Irving and several co-defendants who allegedly conspired to purchase

cocaine for distribution. The agents executed the warrants at the same time on September 26,

2014. Before dawn, a group of eight to ten agents arrived to Hunt Irving’s residence, a two-story

building that housed his funeral home business on the first floor and his residence on the second.

According to the agents’ testimony, they knocked loudly and announced their presence. A few

minutes later, Hunt Irving came to a second floor window and asked what was going on. The

agents identified themselves as police and told him to open up. What happened next is disputed.

DEA Agent Glenn testified that the agents waited another “five to seven minutes,” then breached

the door using a crow bar and battering ram. Hr’g Tr. 24:5–7, 25:3–9, May 24, 2017 [hereinafter

“Hr’g Tr. A”]. Hunt Irving disputes this amount of time and says he came downstairs without

delay, but before he got to the door the officers had forcibly entered. Hr’g Tr. 5:24–6:7, May 30,

2017 [hereinafter “Hr’g Tr. B”]. There is no dispute that when the agents broke the door in,

Hunt Irving was standing right inside, unarmed, about ten feet from the door. The agents

ordered Hunt Irving to the ground and handcuffed him. The testifying agents agreed that he was

cooperative and did not resist arrest.

Agent Glenn, the team leader, asked Hunt Irving if there were any other people, or any

2
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weapons, in the home. Hr’g Tr. A 27:9–28:4. Meanwhile, the team of agents immediately began

a “protective sweep of the entire building.” Id. Defendant replied that there was no one else

there, and said he had a hunting rifle upstairs in his bedroom closet. Agents testified that Hunt

Irving “hesitated” before answering the weapons question. Hr’g Tr. B 95:11–16. The agents

found an AK47-style semi-automatic rifle in the bedroom closet where Hunt Irving had

indicated. When agents suggested to Hunt Irving that the gun was not a hunting rifle, he

responded that he used it to hunt wild boars or hogs. Hr’g Tr. B 98:17–25. After the sweep was

completed—about fifteen minutes later—Agent Glenn read Hunt Irving his Miranda rights and

the agents asked for his consent to a search of the property. He agreed. In that subsequent, more

intensive search, agents found a digital scale, a large amount of cash (about $15,000), and a

second gun (a handgun). Only the cash and scale would later be entered as evidence in Hunt

Irving’s drug conspiracy trial.1

Defendant was eventually charged in a Third Superseding Indictment [hereinafter “the

Indictment”] with multiple drug distribution conspiracies (Counts One, Seven, and Eight),

attempted drug possession (Count Two), and a § 922(g)(1) violation for being a felon in

possession of a firearm (Count Six) [hereinafter “felon-in-possession”]. As to the felon-in-

possession charge, Hunt Irving does not dispute that he owned the rifle and handgun the agents

found in his residence. He likewise concedes that he had prior felony convictions; four years

before his arrest in this case he had pled guilty to two counts of Tampering with State Records.

Those charges arose from an investigation into the financial practices of his funeral business in

                                                            
1
The guns—the rifle that Hunt Irving had directed agents to and the handgun they later found in the
search—were not admitted as evidence because Hunt Irving’s gun-related charge under § 922(g)(1) was
severed from the other charges. See Gov.’s Mot. Sever 4, ECF No. 167 (seeking to sever Count Six—the
felon-in-possession charge—from the first phase of trial until after the Supreme Court’s ruling on the “as-
applied” challenge to § 922(g)(1) in Binderup). Thus, Defendant had the benefit of trying his case
without the jury learning that he possessed these weapons.

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its interactions with the state’s Victim Compensation Assistance Program (VCAP), which

reimburses victims and their families for crime-related losses, including murder victims’ funeral

expenses. The investigation uncovered four instances over the course of seven years in which

Hunt Irving had overbilled the state for funeral costs or did not pass on to the family the full

refund he received from the state. Because of these claims, he was charged with Tampering with

Public Documents with intent to defraud, 18 Pa. Const. Stat. § 4911. In Pennsylvania, this crime

is designated a third-degree felony, id., punishable by up to seven years in prison, 18 Pa. Const.

Stat. § 1103. Pursuant to a plea agreement, Hunt Irving received two years’ probation with no

jail time and had to pay restitution of $7,125 ($3,325 to one family, $2,638 to another, and

$1,162 to the VCAP), donate $500 to Dauphin County, and complete 250 hours of community

service in Chester County.

Before trial, Hunt Irving moved to dismiss the felon-in-possession charge, arguing that it

did not sufficiently allege that the guns had affected interstate commerce, and alternatively, that

the charge was unconstitutional based on United States v. Barton, 633 F.3d 168 (3d Cir. 2011),2

and the district court’s holding in Binderup v. Holder, 2014 WL 4764424, at *31 (E.D. Pa.

2014). See Mot. Dismiss Indictment, ECF No. 114. Because the parties agreed to sever that

charge for trial, a ruling on that motion was deferred.

At trial in June 2017, the jury found Hunt Irving guilty of two conspiracies (Counts One

and Eight) and attempt (Count Two), and not guilty on Count Seven, relating to a 2012

conspiracy. Jury Verdict Form, ECF No. 200; Order, ECF No. 204. In September 2016, the

Third Circuit affirmed the District Court’s Binderup decision in a plurality opinion, Binderup v.

Att’y Gen. U.S., 836 F.3d 336 [“Binderup”], and last year the Supreme Court denied certiorari,
                                                            
2
As explained below, Barton was overruled in part by the Third Circuit’s decision in Binderup, 836 F.3d
at 339 n.1, 350, where ten of the fifteen judges explicitly stated that they would overrule some or all of
Barton.

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Sessions v. Binderup, 137 S. Ct. 2323 (2017). Following those decisions, Hunt Irving, through

new counsel, has filed a Motion for a New Trial and/or Arrest of Judgment, ECF No. 209

[hereinafter Def.’s Mot. New Trial], reasserting his Binderup challenge to the felon-in-

possession charge, id. ¶ 1, and asserting several other arguments, including that:

 the Court erred in its pre-trial denial of his motion to suppress evidence seized from his
residence, see Order, ECF No. 181, and Mem., ECF No. 211, both because the
“protective sweep” of the second floor was unsupported by articulable facts, Def.’s Mot.
New Trial ¶ 2, and because his subsequent consent to search was not voluntary, id. ¶ 3;

 the conspiracy counts (One and Eight) in the Indictment were multiplicitous, ¶ 4; and

 the jury’s verdict was contrary to the weight of the evidence and a new trial is appropriate
in the interest of justice, ¶¶ 5–8, 10, 11.

Id.; Def.’s Suppl. Memo, ECF No. 217 [hereinafter “Def.’s Mot.”]; Def.’s Sur-Reply, ECF No.

231.3 Defendant does not reassert the interstate commerce argument articulated in his pre-trial

Motion to Dismiss the Indictment, but I nevertheless address it as it is technically still pending.

For the reasons set forth below, I conclude that even if one assumes that the sweep of the

second floor violated the Fourth Amendment, it did not taint Hunt Irving’s subsequent consent to

search, and his pre-trial motion to suppress the evidence seized from his building was therefore

properly denied. His Second Amendment challenge also fails, as the Third Circuit’s decision in

Binderup yielded no new test for as-applied challenges to § 922(g)(1), and the felon-in-

possession charge is clearly lawful under pre-Binderup law. Hunt Irving’s remaining arguments

fail because the indictment adequately alleged that his guns affected interstate commerce, his

multiplicity challenge is both waived and meritless, and the jury’s verdict was far from a

miscarriage of justice.

                                                            
3
Hunt Irving’s original Motion listed other grounds for a new trial related to the propriety of the
government’s expert witness, see Def.’s Mot. New Trial ¶¶ 9, 10, but he made no mention of those
arguments in any briefing, so I consider those challenges dropped.

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II. Fourth Amendment Challenge: Sweep of Second Floor and Consent Search

Defendant Hunt Irving asserts that the agents’ initial protective sweep of the second floor

was unreasonable under the Fourth Amendment, and thus tainted his subsequent consent to a

search of the building, during which agents found the digital scale and cash, both admitted at

trial, and the handgun. Def.’s Mot. 4–5 (citing Wong Sun v. United States, 371 U.S. 471 (1963)).

I previously ruled that Hunt Irving voluntarily consented to the search, and rejected his testimony

to the contrary as lacking credibility. Suppress. Mem., ECF No. 211. The current motion

advances a different basis for suppression.

Preliminarily, the government contends that the issue is waived. Gov.’s Resp. 4–5, ECF

No. 230 (citing Suppress. Mem., ECF No. 211). Hunt Irving disagrees, and reserves the right to

assert ineffective assistance of counsel in the event that the issue is deemed waived. I therefore

first address this threshold issue of waiver.

At the suppression hearing, counsel’s argument touched, but did not focus on, the

permissibility of the security sweep. Hunt Irving’s trial counsel—different from his current

counsel—made an argument similar to the one Hunt Irving now makes, asserting that the sweep

would have occurred regardless of the circumstances: “. . . if you look at the situation, the search

in its totality . . . it’s clear that these agents were going to search, Your Honor. They searched

the second floor, they searched the funeral parlor. They searched the entire building initially.”

Hr’g Tr. B 131:21–132:2 (repeated words omitted). Responding to the Court’s question about

whether it was reasonable for the agents, once Hunt Irving told them he had a rifle in the house,

“for purposes of safety, to take that step of securing the weapon,” trial counsel replied: “I think

they can secure the weapon, but I don’t think that that gives them probable cause to do anything

else. I mean I think the fact they’re saying, hey, we discovered a weapon in the house and

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because we discovered the weapon, we now have some reason to search for what?” Hr’g Tr. B

138:5–139:16.

Based on this transcript, Hunt Irving’s trial counsel certainly conceded the validity of the

officers securing the rifle for safety purposes. I see no indication, however, that defense counsel

conceded his more general point—that a broader security sweep of the second floor was

impermissible. Hr’g Tr. B 131:21–132:2, 139:8. I therefore find that the issue of the

constitutionality of the sweep of the second floor in general is not waived. Nonetheless, the

motion to suppress lacks merit.

Moving to the merits of the Fourth Amendment challenge, the parties agree that

Maryland v. Buie, 494 U.S. 325 (1990), provides the relevant standard for the agents’ sweep of

Hunt Irving’s funeral home and residence. Buie analyzed an exception to the general rule that a

residence cannot be searched without probable cause and identified the permissible bounds of a

warrantless search of a residence incident to arrest:

[I]ncident to the arrest the officers could, as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be
immediately launched. Beyond that, however, we hold that there must be
articulable facts which . . . would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to those
on the arrest scene.

494 U.S. at 331, 334. The Buie Court called this a “protective sweep,” emphasizing that it must

be “aimed at protecting the arresting officers, if justified by the circumstances.” Id. Even where

articulable facts exist suggesting that officers are in danger of attack, the Court cautioned that the

sweep must be “quick and limited,” id. at 331. Stated differently:

[A protective sweep] is nevertheless not a full search of the premises, but may
extend only to a cursory inspection of those spaces where a person may be found.
The sweep lasts no longer than is necessary to dispel the reasonable suspicion of
danger and in any event no longer than it takes to complete the arrest and depart

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the premises.

Id. at 335–36.

The Supreme Court made clear that “[t]he type of search we authorize today . . . is

decidedly not automatic, but may be conducted only when justified by a reasonable, articulable

suspicion that the house is harboring a person posing a danger to those on the arrest scene.” 494

U.S. at 336.

Based on these principles, Hunt Irving argues that the agents proceeded with their sweep

simply as a matter of routine, without the articulable, reasonable suspicion required by law.4 The

Government in turn seeks to portray Hunt Irving’s delay in answering the door and his admission

that there was a weapon present as justifying the sweep. The record is not well-developed, in

part because the argument Defendant advances now is significantly different in emphasis from

the theory advanced at the suppression hearing. But there is no need to reach the merits of the

Buie argument, or further develop the record,5 because any violation of its precepts would still

not entitle Hunt Irving to relief, for two reasons.

First, the scale, the cash, and the handgun were not recovered as part of the agents’

sweep. Agents recovered only the AK47-style assault rifle, which Hunt Irving does not seek to

                                                            
4
For example, Agent Schmidt testified that, when the agents breached the door and took Hunt Irving into
custody, “at the same time[,] we started clearing . . . making the property safe to make sure that . . . no
offense to the defendant but we’re not going to believe just because they say there’s nobody in the house.
We’re not going to believe that. We’re going to actually do a complete sweep of the property to clear
each room—bathrooms, closets to make sure that there’s nobody—no threats inside the residence.” Hr’g
Tr. B 94:18–95:20.
5
When the agents came to Hunt Irving’s funeral home, they certainly knew he was wanted as part of a
multi-defendant drug trafficking ring. The scope of the investigation, the sheer number of arrest warrants
issued, and the precision with which law enforcement executed those warrants—across five states and
within seconds of each other—suggest that the Government perceived these suspects as a threat. But the
specific knowledge of the team arresting Hunt Irving was not elicited at the suppression hearing.

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suppress, in the bedroom closet to which he had directed the agents. 6 Second, and of greater

importance, the defense fails to make a convincing argument that Hunt Irving’s consent was

tainted by the protective sweep even if it was unwarranted.

In contrast to his well-reasoned Buie analysis, Hunt Irving’s taint argument is wholly

conclusory, set forth in a single sentence: “The impropriety of the scope of the search tainted the

subsequent consent to search the property.” See Def.’s Mot. 5 (citing Wong Sun, 371 U.S. 471

(1963)). In Wong Sun, the Supreme Court analyzed the reach of the exclusionary rule—what

evidence discovered as a result of a Fourth Amendment violation should be excluded as “fruit of

the poisonous tree.” 371 U.S. at 484–85. The Court concluded that the operative inquiry is

whether the evidence “has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” Id. at 488 (citing Nardone v.

United States, 308 U.S. 338, 341 (1939)). A decade later, when analyzing the admissibility of

inculpatory statements made in the wake of a Fourth Amendment violation, the Supreme Court

clarified that “Wong Sun requires not merely that the statement meet the Fifth Amendment

standard of voluntariness but that it be sufficiently an act of free will to purge the primary taint.”

Brown v. Illinois, 422 U.S. 590, 602 (1975). Whether an inculpatory statement—or in the case

of Hunt Irving, a consent to search—“is the product of free will” must be answered on the facts

of each case, and no single fact is dispositive. See id. at 603. A Miranda warning may be an

important factor but does not alone purge the taint. Id.

Hunt Irving’s rote citation of Wong Sun, with no argument as to why it would mandate
                                                            
6
The fact that this other evidence was not initially recovered weighs in favor of the Government’s
position that the protective sweep was limited and not more intrusive than necessary to ensure the agents’
safety. It bears mention that Buie is rooted in a recognition of the need to allow some intrusion inside a
defendant’s home for purposes of protection: “[U]nlike an encounter on the street or along a highway, an
in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a
confined setting of unknown configuration is more to be feared than it is in open, more familiar
surroundings.” 494 U.S. at 333.

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exclusion of the evidence found in the consent search, leaves the Court to speculate as to his

theory. As a threshold matter, because there is no challenge to the seizure of the rifle, the only

evidence gathered before Defendant consented to the search, it is difficult to discern why the

sweep would have had any bearing on Defendant’s decision to consent to a full search. Hunt

Irving does not argue that the second floor sweep was a “but-for” cause of his consent to search,

let alone that it was the critical element in his decision to consent. He agreed to a search

knowing that the agents had thus far seized only his rifle, something he freely admitted owning,

with the further knowledge that a handgun, digital scale, and cash remained undiscovered after

the protective sweep. Even if one were to posit that seizure of the rifle was unlawful, and might

have undermined Hunt Irving’s resolve to resist discovery of the handgun, the fact that he was

already facing a firearms offense would not have changed his incentive to avoid discovery of

drug-related evidence such as the scale and cash. I have already held that his consent was

voluntary, motivated by his desire to limit the impact of his arrest and the search on his funeral

business, especially the funerals scheduled for that day. Suppress. Mem. 2, ECF No. 211

(crediting the testimony of Agent Schmidt, who “explained to Defendant that agents would need

to secure his property while waiting for a search warrant to issue—a practical reality of law

enforcement that would have motivated Defendant to consent to a search”). The protective

sweep of the second floor does not alter that analysis.

I conclude that that the sweep is both legally and factually irrelevant to Defendant’s

consent to the search, rendering the scale, cash and handgun admissible in evidence.

III. Second Amendment Challenge: Binderup

Having concluded that the basis for Hunt Irving’s felon-in-possession charge is sound—

that evidence of his possession of both guns is admissible—I next consider his argument that the

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felon-in-possession law, § 922(g)(1), is unconstitutional as applied to him. The parties’

arguments on this point, emanating from the Third Circuit’s fragmented Binderup decision,

present a serious analytical challenge. That is so because although Binderup opened the door to

felons challenging the enforcement of § 922(g)(1), a precedent-shattering result, it yielded no

new test for challenges like this one. See 836 F.3d at 357 n.2.7 I will review the tests endorsed

by the various factions of the en banc panel in Binderup, including the test proposed by the

concurrence, on which Hunt Irving relies. Ultimately, however, there was no majority in

Binderup as to what constitutes a “serious crime”—and under prior surviving precedent,

Defendant’s challenge must fail.

Section 922(g)(1) makes it a crime for people who have been convicted of a crime

“punishable by imprisonment for a term exceeding one year” to possess a firearm. Although it is

commonly referred to as the “felon-in-possession” rule, the law applies to felonies and

misdemeanors alike, except that it excludes misdemeanors punishable by two years’ or less

imprisonment. § 921(a)(20)(B). Here, the parties agree that Hunt Irving’s guilty plea to

Tampering with Public Records with an intent to defraud, which Pennsylvania’s legislature

classifies as a third-degree felony punishable by up to seven years’ imprisonment, falls within

§ 922(g)(1), making it a federal crime for him to possess a firearm.

In Binderup, the Third Circuit considered civil challenges to the constitutionality of the

felon-in-possession law as applied to two Pennsylvania men who wanted to own guns but could

not legally do so under § 922(g)(1). 836 F.3d at 340. The first individual, Binderup, had pled

guilty some twenty years earlier to corrupting a minor, a misdemeanor in Pennsylvania, after he

had sex with his employee, whom he knew was 17, when he was 41. Id. The crime was

                                                            
7
Judge Hardiman’s concurrence accurately noted that “the outcome-determinative sections [of Judge
Ambro’s “plurality” opinion] are supported by only three judges.” Id.

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punishable by up to five years’ imprisonment, but he received a sentence of three years’

probation and restitution. He had no subsequent convictions. The second plaintiff was Suarez,

who pled guilty in 1990 to carrying a handgun without a license after he was caught during a

DUI stop with an unlicensed gun and two “speed loaders,” devices designed to reduce the time

and effort it takes to reload a firearm. Id. The crime, a misdemeanor in Maryland, carried a

maximum sentence of three years, but Suarez received a six-month suspended sentence with a

small fine. His only other conviction was eight years later, for driving under the influence, a

misdemeanor that did not fall within the scope of § 922(g)(1). Id.

The Third Circuit’s en banc panel reached a narrow majority holding, eight votes to

seven, that the felon-in-possession law violated the Second Amendment rights of both plaintiffs.

Id. at 339. There was loose agreement by a “separate majority,” counting votes from the

plurality and dissent,8 on certain aspects of an as-applied analysis. See id. That group, ten judges

from two decisional camps, reached a majority holding that United States v. Marzzarella, 614

F.3d 85 (3d Cir. 2010),9 continues to provide the governing framework for Second Amendment

claims, including as-applied challenges to § 922(g)(1). Binderup, 836 F.3d at 356.10 But no

guiding rationale or test surfaced in Binderup, principally because none of the three decisional
                                                            
8
The various opinions and subsections in Binderup do not lend themselves to easy classification, but here
I refer to the opinion Judge Ambro authored as the plurality, to Judge Hardiman’s as the concurrence, and
to Judge Fuentes’s as the dissent. I recognize that these labels are imperfect, because sections of Judge
Ambro’s opinion do not, in fact, represent a plurality, and certain reasoning in the dissent overlaps with
the true plurality, but nevertheless use these terms for simplicity’s sake.
9
Marzzarella rejected an as-applied challenge to § 922(k), which criminalizes the possession of firearms
with obliterated serial numbers. 614 F.3d at 89.
10
The “vote tally” demonstrating a majority consensus on this point is actually set forth in a footnote at
the very beginning of the Binderup opinion, 836 F.3d at 339 n.1. The same group of judges agreed that
United States v. Barton, 633 F.3d 168 (3d Cir. 2011) was at least partly overruled: “To the
extent Barton holds that people convicted of serious crimes may regain their lost Second Amendment
rights after not posing a threat to society for a period of time, it is overruled.” 836 F.3d at 349. The
concurrence, in contrast, rooted its analysis in Barton: “Most relevant to these appeals is our analysis of
Barton’s as-applied challenge to § 922(g)(1).” Id. at 360.

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camps could agree on a key component of the Marzzarella test: what constitutes a “serious

crime”?

Marzzarella’s first step requires a § 922(g)(1) challenger to prove that the law burdens

conduct protected by the Second Amendment, which, under Binderup, he may only do by

showing that “he was not previously convicted of a serious crime.” Binderup, 836 F.3d at 353,

356 (citing Marzzarella, 614 F.3d at 89). If the challenger can make this showing, the burden

shifts to the government in the second step to show that the law survives intermediate scrutiny.

Id. Clearly, Binderup’s three divergent methods for identifying a “serious crime” complicate the

first step. I review and consider each in turn.

In a section of Judge Ambro’s plurality opinion joined only by two other judges, he

writes that some crimes facially within § 922(g)(1)’s scope may be “so tame and technical” that

they are insufficient to justify the firearm ban. Id. at 350. As proof that such a showing is

possible, Judge Ambro points to a footnote in District of Columbia v. Heller, 554 U.S. 570

(2008), that describes the felon-in-possession law as “presumptively lawful” and attaches

significance to the Supreme Court’s use of the word presumption, asserting that presumptions are

rebuttable unless explicitly “flagged as irrebuttable.” Id. at 349–50 (quoting Heller, 554 U.S. at

627 n.26, and citing Barton, 633 F.3d at 174, for the notion that “a person who did not commit a

serious crime retains his Second Amendment Rights”). The plurality posits that, although “there

are no fixed criteria for determining whether crimes are serious enough to destroy Second

Amendment rights,” the relevant considerations are: (1) the state legislature’s classification of

the offense as a misdemeanor or felony; (2) whether the elements of the crime include actual or

attempted violence11; (3) the actual sentence imposed; and (4) any “cross-jurisdictional

                                                            
11
In the plurality’s formulation of the rule, this is a categorical analysis that focuses on the elements of
the criminal statute rather than on “the way it actually was committed.” Id. at 352 & n.4.

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consensus” as to the seriousness of the crime. Id. at 351–53.

Applying these factors to Hunt Irving’s underlying state felony, the “state classification”

factor would likely doom his challenge, even though his crime was non-violent and he received

no jail time. That is so because Judge Ambro’s formulation considers the state legislature’s

classification and maximum sentence a “powerful expression” of its belief in the seriousness (or

lack thereof) of a crime. Id. at 351. Thus, although Judge Ambro acknowledged that some state

misdemeanors can rise to the level of being “serious,” conversely, his opinion all but foreclosed

the possibility that a state felony could be non-serious. Id. at 353 n.6. On its face, this approach

adopted by the plurality in Binderup came close to limiting the ability to bring an as-applied

challenge exclusively to state-law misdemeanants. But the plurality went on to raise a “remote”

possibility that a state-law felon could succeed in a challenge, even as it emphasized that the

challenger’s burden would be “extraordinarily high—and perhaps even insurmountable.” Judge

Ambro’s approach thus invites Hunt Irving to argue that his prior conviction was not “serious”

because his crime was non-violent, he received no jail time, and there is no strong cross-

jurisdictional consensus.12 And although the plurality garnered only three votes, as set forth

below, it remains relevant because of the lack of a majority consensus as to what constitutes a

serious crime.

The other votes for preservation of the Marzzarella test came from the dissent, which

concluded that any challenge to the application of § 922(g)(1) is easily resolved by a bright line

test: all crimes currently within the law’s scope are “serious.” The dissenting judges—the largest

single bloc on this question—posited that “Heller itself tells us that felons are disqualified from

exercising their Second Amendment rights,” and that as-applied challenges to the current law are
                                                            
12
Thirty-five states have criminalized such conduct, and thus the cross-jurisdictional consideration
weighs in favor of seriousness. See Gov.’s Resp. 15 n.10, ECF No. 216 (citing John F. Decker, The
Varying Parameters of Obstruction of Justice in American Criminal Law, 65 La. L. Rev. 85–97 (2004)).

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therefore impermissible. Id. at 388.13 Under this approach, there is no need to analyze the prior

conviction (as the plurality would require), because such an analysis is legally irrelevant.

Necessarily, by the Binderup dissent’s formulation of the test, Hunt Irving’s challenge would

also fail, because he cannot contest that his prior crime is covered by § 922(g)(1).

In contrast, the concurrence in Binderup, supported by five judges, approached the

definition of “serious crime” by reference to Barton. Id. at 366. Barton sought to carve out an

exception to the absolute bar against felon gun possession where the challenger could “present

facts about himself and his background that distinguish his circumstances from those of persons

in the historically barred class.” Binderup, 836 F.3d at 362 (citing Barton, 633 F.3d at 174 (3d

Cir. 2011)). The concurrence would permit such a challenger to meet this burden in at least two

ways. First, a “felon convicted of a minor, non-violent crime might show that he is no more

dangerous than a typical law-abiding citizen.” Second, “a court might find that a felon whose

crime of conviction [no matter what it is] is decades-old poses no continuing threat to society.”

Id. (citing Barton, 633 F.3d at 174). Significantly, the concurrence argues that any justification

for limiting the right to bear arms must have a “historical pedigree,” id. at 366, and it later

defines the sole historical justification for limiting access to firearms as “people who have

demonstrated that they are likely to commit violent crimes.,” id. at 370. The Binderup

concurrence found that both plaintiffs in that case qualified for relief because their convictions

were nonviolent, and each had “a job, a family, and a clean record” dating back nearly twenty

years. Id. at 376–78.

Not surprisingly, it is principally the analysis of the concurring judges in Binderup that
                                                            
13
The dissent addressed the Supreme Court’s use of the phrase “presumptively lawful,” to which the
plurality and concurrence attached controlling significance, emphasizing that it appears only as a
footnote—specifically a footnote to the Court’s broad, seemingly unconditional statement in the body of
the opinion that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons.” Id. at 394 (citing Heller, 554 U.S at 626–27 & n.26).

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underpins Hunt Irving’s argument, in which he asserts that he is “no more dangerous than a

typical law-abiding citizen and poses no continuing threat to society.” Def.’s Mot. Dismiss

Indictment 10. Defendant’s prior conviction, though not “decades-old,” was unquestionably

non-violent, and there is no other evidence of violent propensity. He runs a successful business,

has a daughter whom he helps support, and until he was indicted for the drug conspiracy here,

had a clean record before and after his records tampering conviction—all evidence he would

argue shows that he is no more dangerous than a typical, law-abiding citizen. See Binderup, 836

F.3d at 376–78. Moreover, to the extent that Heller is read as recognizing an unconditional right

of self-defense, see Binderup, 836 F.3d at 344, Hunt Irving could also argue, as he did at his bail

hearing, that he possessed the weapons for defense of his home and business in a high crime

area.14 In short, if the concurrence in Binderup represented the rule in this circuit, Defendant

would almost certainly be entitled to dismissal of the Indictment.

Against this background of uncertainty, the government sets out its disagreement with

Binderup’s holding and divergent rationales. In rebutting Hunt Irving’s argument, the

Government suggests that I consider his drug convictions in this case, and the underlying

conduct leading up to these convictions, in evaluating whether he is the kind of person who is

dangerous or a threat to society.15 This would require some form of judicial time travel, having

the Court rule on the constitutionality of an April 2017 Indictment, based on a jury’s verdict

some two months later. Moreover, “limitations on ex post facto judicial decisionmaking are

inherent in the notion of due process,” Rogers v. Tennessee, 532 U.S. 451, 456 (2001), making
                                                            
14
For that matter, a similar right to defend one’s home could be asserted by his co-defendants, who rented
residential properties used as a “stash house” and “lab” for cooking cocaine into crack as part of the
overall conspiracy.
15
See, e.g., Gov.’s Resp. 9, 12, 14 n.8, 17, ECF No. 216 (“[Nothing] in [Binderup] suggests that the court
would extend Second Amendment protection to convicted felons who soon after their felony convictions
commit other serious felonies such as drug trafficking crimes.”).

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the Government’s proposal even more problematic. The Government’s need to resort to such an

argument graphically underscores the difficulties that follow if indictments brought under

§ 922(g)(1) must be evaluated according to the accused’s general worthiness to bear arms.

In this same worthiness analysis, the Government also asks that I attach significance to

the fact that “firearms, of which AK-47 type assault rifles are especially nasty examples,” are

recognized tools of the drug trafficking trade. See Gov.’s Resp. 3 n.1, ECF No. 216. I am again

concerned that the validity of the initial Indictment cannot and should not be evaluated by

Defendant’s subsequent drug trafficking conviction. As to the nature of the firearm, the weapon

seized was not set to fully automatic, and in that respect is not different from other non-assault-

style rifles. Thus, with the exception of Hunt Irving’s prior felony, his possession of the rifle

was lawful. I would note, however, that although not legally relevant to the validity of the

Indictment, Defendant’s possession of both weapons has relevance to the policy considerations

served by § 922(g)(1). In Binderup, the Government presented various studies attempting to

show that a person with a prior conviction is more likely to commit a subsequent offense than a

member of the population at large. Neither the plurality nor the concurrence found them

persuasive. What cannot be disputed, however, is that when recidivism does occur, it falls to law

enforcement to respond, and given the legality and general availability of powerful weapons like

assault-style rifles, whether a previously convicted felon has access to firearms has profound

significance for agents executing an arrest warrant.16

                                                            
16
Although assault-style weapons such as AK47s must be set to semi-automatic to comply with federal
law, the standard magazine allows the user to file thirty rounds in quick succession without stopping to
reload. In addition to their large capacity, each bullet fired from an assault rifle has a high “wounding
potential.” Peter M. Rhee, MD, et al., Gunshot Wounds: A Review of Ballistics, Bullets, Weapons, and
Myths, 80 J. Trauma Acute Care Surg. 6 (2016). Wounding potential is measured as “muzzle energy,”
which is based on the bullet’s weight and velocity. Id. A 144 grain bullet fired from an AK47 travels at a
velocity of 2,749 feet per second, resulting in a muzzle energy of 2,437 feet per pound. Id. For
comparison, a 9 mm handgun—a typical police weapon in this country—fires a 115 grain bullet at 1,200

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Returning to Binderup, it is clear that Marzzarella’s two-step analysis remains controlling

in the Third Circuit, albeit with some uncertainty in its application. Under step one, a court must

first determine if the statute in question burdens conduct within the scope of the Second

Amendment’s guarantee. 614 F.3d at 89. If it does not, the court need go no further. Id.

Marzzarella clearly reads Heller as having held that felons fall outside the protection of the

Second Amendment. Id. at 91–92.

But my inquiry does not end there. That is so because, even though no definitive test

emerged from Binderup, the majority that endorsed Marzzarella as the controlling case was

comprised of seven judges from the dissent and three from the plurality. And although these ten

judges endorsed Marzzarella’s two-step test, they would apply it differently. The three judges

from the plurality would entertain the possibility that even a felon might retain Second

Amendment rights under certain, unspecified circumstances. As a result, Hunt Irving’s argument

could be said to fall within the plurality’s approach as well as that of the concurrence. This

difference, embodied in the plurality’s conclusion as step “5”, id. at 356, appears to require

separate consideration of whether a felony conviction like Hunt Irving’s was “serious” for

Second Amendment purposes. I therefore return to the plurality’s approach, to determine if

Defendant’s felony conviction for records tampering presents the “remote” scenario the three-

judge plurality contemplated as an exception to the general rule that felons may not possess guns.

Preliminarily, I find some ambiguity in the plurality’s model. Presumably, if the

                                                                                                                                                                                                
feet per second, yielding a muzzle energy of 400 feet per pound. Thus, the wounding potential from a
single bullet fired from an AK47 is more than six times that of a bullet fired from a handgun. In addition,
the higher velocity of military style weapons results in a greater incidence of bullet fragmentation, which
is associated with greater tissue damage. Jowan G. Penn-Barwell et al., High Velocity Gunshot Injuries to
the Extremities: Management on and off the Battlefield, 8(3) Current Revs. in Musculoskeletal Med. 312,
313 (2015) (U.K.); Vichan Peonim, MD, et al., Entrance and Exit Wounds of High Velocity Bullet: An
Autopsy Analysis in the Event of Dispersing the Mass Rally in Bangkok Thailand, May 2010, 23 J. Legal
Med. 10, 14–15.

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underlying offense had a violent element, it would represent a “serious” crime without further

analysis. The plurality appears to suggest that this requires a categorical analysis, borrowing

concepts from the Supreme Court’s jurisprudence under the Armed Career Criminal Act, which

focuses on the elements of an offense rather than the way it was committed. Id. at 352 & n.4

(citing United States v. Skoien, 614 F.3d 638, 642 (7th Cir. 2010), which, in rejecting a challenge

to § 922(g)(9)’s prohibition on gun ownership for people convicted of “misdemeanor crime[s] of

domestic violence,” applied the categorical approach as expressed in ACCA cases).

Simultaneously, however, it observes: “[t]hough, as explained, it is possible for non-violent

crimes to be serious, the lack of a violent element is a relevant consideration,” noting on the

same page that the length of sentence is relevant. Id. at 352. To what then, should the court look

in determining the seriousness of non-violent crimes? If the approach is categorical, does it look

to the other elements of the underlying offense in determining seriousness? And if so, to what

characteristics should the court look in analyzing those elements? Suffice it to say that analyzing

the elements of a statute to determine whether they encompass violent conduct focuses on a far

more specific question then a consideration of “seriousness.”

Under the Pennsylvania statute that criminalizes tampering with public records, different

potential sentences apply depending upon the nature of the defendant’s conduct. The statute

specifically provides that the crime is generally a second degree misdemeanor punishable by no

more than two years’ imprisonment. 18 Pa. Cons. Stat. §§ 4911(b), 1104(2). But if “the intent

of the actor is to defraud or injure anyone,” the offense converts to a third degree felony and the

maximum sentence jumps to seven years. §§ 4911(b), 1103(3). Here, Hunt Irving pleaded guilty

under the felony portion of the statute, because his violation was not simply technical in nature,

but rather was done with the intent to defraud. Proceeding categorically (to the extent it is

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possible to do so), it seems clear that the additional element required to elevate the charge to a

felony—an intent to harm third parties—represents a determination by the Pennsylvania

legislature that such conduct is objectively more serious.

As to the sentence imposed for his prior offense, a consideration which the plurality

deems relevant, Hunt Irving argues that the lack of jail time counts against the seriousness of his

offense. Given his subsequent criminal conduct, little weight should be placed on the leniency of

the prior sentencing court. Putting to one side the realities of plea bargaining, a judge imposing a

lenient sentence for a first offender acts in part on an assumption that the defendant’s law-

breaking was an aberration. Binderup and Suarez vindicated the confidence shown by their

sentencing courts; Hunt Irving has not. Although I have rejected the Government’s argument

that Defendant’s later conviction on the drug conspiracy necessarily validates the gun charge in

the Indictment, I need not ignore it in deciding how much significance to attach to his prior

sentence. 17

Furthermore, to the extent that it is proper for me to make an independent determination

of the nature of Defendant’s conduct, as the district courts did for both Binderup and Suarez, see

836 F.3d at 352 n.4, I find it significant that Hunt Irving’s unlawful acts came at the expense of

victims of violence who were entitled to payments from Pennsylvania’s Victims Compensation

program. It was a crime that was both calculated and callous—calculated because it required the

deliberate manipulation of claims to the Commonwealth, and callous because it victimized

families who had lost loved ones to violence.

In conclusion, as a felon convicted of a serious crime, Hunt Irving fell outside the

protection of the Second Amendment, and his indictment under § 922(g)(1) was lawful.
                                                            
17
This case is unique in that Hunt Irving’s gun charge was severed from the drug charges for trial, so I
now know definitively that Hunt Irving’s prior criminal conduct was not an aberration. In a typical case,
charges that have not resulted in a conviction would not be considered.

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IV. Interstate Commerce

When Hunt Irving originally filed his Motion to Dismiss the Indictment in 2015, he

argued that the Indictment did not adequately allege that the firearms in question had travelled in

interstate commerce, one of the requirements of § 922(g)(1). Although he has not returned to

that argument in subsequent briefing, in the event that he has not dropped that challenge, it is

now denied. The Indictment alleges that the firearms in question were knowingly possessed “in

and affecting interstate and foreign commerce.” Indictment 9, ECF No. 154. The Third Circuit

has already upheld the sufficiency of nearly identical language, without more. In United States

v. Huet, 665 F.3d 588, 596 (3d Cir. 2012), the court reviewed a § 922(g)(1) charge, holding that

the indictment’s use of the phrase “in and affecting interstate commerce” was adequate under

Fed. R. Crim. P. 7(c)(1).

V. Multiplicity

In December 2017, months after his trial had concluded, Hunt Irving raised a multiplicity

challenge to the Indictment for the first time. See Def.’s Mot. 13–14, ECF No. 217. Under

Federal Rule of Criminal Procedure 12, motions based on “a defect in the indictment,” including

multiplicity, “must be raised by pretrial motion if the basis for the motion is then reasonably

available.” Fed. R. Crim. P. 12(b)(3). Hunt Irving’s multiplicity challenge therefore appears

untimely, and, although Rule 12(d) authorizes a court to consider an untimely motion if the

defendant shows good cause, Hunt Irving has not even attempted to make a showing of good

cause here. I nevertheless review it on the merits.18

Multiplicity is “the charging of a single offense in separate counts of an indictment.”

United States v. Kennedy, 682 F.3d 244, 254 (3d Cir. 2012). The risk of multiplicitous
                                                            
18
It is not clear whether Defendant is arguing that Counts One and Two are multiplicitous and/or that
Counts One and Eight are. See Mot. New Trial 13. For this analysis, I assume that he seeks to challenge
both.

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indictments is that defendants will be subject to multiple sentences for the same offense, an

“obvious violation” of the Double Jeopardy Clause. Id. at 255. The Supreme Court has held that,

“because the substantive power to prescribe crimes and determine punishments is vested with the

legislature, whether punishments are ‘multiple’ is essentially one of legislative intent.” Ohio v.

Johnson, 467 U.S. 493, 499 (1984).

To evaluate legislative intent, the Third Circuit usually applies the test from Blockburger

v. U.S., 284 U.S. 299, 304 (1932), a double jeopardy case.19 United States v. Hodge, 870 F.3d

184, 194 (3d Cir. 2017); accord United States v. Bencievengo, 749 F.3d 205, 215 (3d Cir. 2014).

The test asks “whether the individual acts are prohibited, or the course of action which they

constitute. If the former, then each act is punishable separately. If the latter, there can be but

one penalty.” Blockburger, 284 U.S. at 302. This test determines whether each offense contains

an element of required proof that the other offense does not, and is also called the “same-

elements test.” United States v. Dixon, 509 U.S. 688, 696 (1993); see also Wright et al., Federal

Practice and Procedure § 142 n.15 (4th ed. 2018).

Applying Blockburger to Hunt Irving’s conspiracy and attempt charges (Counts One and

Two), I conclude that they are not multiplicitous. The elements of conspiracy require proof of “a

unity of purpose between the alleged conspirators, an intent to achieve a common goal, and an

agreement to work together toward that goal.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.

1999) (emphasis added) (citing 21 U.S.C. § 846). Attempt, on the other hand, “requires the

specific intent to commit a crime . . . and a substantial step towards the commission of that
                                                            
19
Although Blockburger is the prevailing test, the Third Circuit occasionally analyzes double jeopardy
claims without explicitly applying Blockburger’s elements test and instead focuses on evidence. See, e.g.,
United States v. Stanfa, 685 F.2d 85, 88 (3d Cir. 1982) (explaining that “two counts are multiplicitous if
the evidence shows that exactly the same facts that would make out one violation also would make out the
other”). Hunt Irving’s challenge would likewise fail under this evidence-based test, as the jury could have
convicted him on separate accounts of attempt and conspiracy without relying on the same evidence
twice, and, in any case, he failed to request a jury instruction requiring them to do so. See id. at 88.

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crime.” United States v. Pavulak, 700 F.3d 651, 669 (3d Cir. 2012) (emphasis added). Each

requires proof of an element that the other does not, and each is therefore separately punishable.

Turning to Hunt Irving’s two conspiracy charges (Counts One and Eight), a slightly

different test for multiplicity is appropriate. The Third Circuit has held that, to protect the

interest of defendants, courts reviewing conspiracy counts for multiplicity should apply the four-

part, totality of the circumstances test from United States v. Liotard, 817 F.2d 1074, 1078 (3d

Cir. 1987). United States v. Fumo, 2008 WL 1731911, at *3 (E.D. Pa. 2008); see also United

States v. Smith, 82 F.3d 1261, 1267 (3d Cir. 1996) (applying Liotard to evaluate a double

jeopardy challenge to conspiracy charges). A defendant makes out a Liotard challenge if he can

show (a) that the place of the alleged conspiracies is the same; (b) that their degree of temporal

overlap is significant; (c) overlap of the people involved, including unindicted co-conspirators;

and (d) similarity in the overt acts charged and role allegedly played by the defendant in each.

817 F.2d at 1078.

Here, Hunt Irving cannot meet this burden, despite the similarity in the charged

conspiracies, because there is little or no temporal overlap. The Indictment alleged that both

conspiracies occurred in Chester, with Count One reaching Philadelphia, as well. Indictment at 1,

17. Although the dates in the indictment are only approximate, there is no temporal overlap: the

first conspiracy (Count One) concluded on February 23, 2014, when Hunt Irving allegedly called

Defendant Church to check on the Federal Express package, and the second conspiracy (Count

Eight) began the following month, when Hunt Irving discussed with Defendant Pinkney a

scheme to secure a new source of cocaine from California. See id. at 4, 18. Defendants Church

and Pinkney are named in both conspiracies along with Hunt Irving, but Defendants Beauford

and Mills were allegedly involved only in the first. Lastly, the role Hunt Irving allegedly played

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in each is similar: discussing the plan with his co-defendants and agreeing to send money toward

the purchase of drugs. But the lack of temporal overlap is controlling here, because even similar

acts taken as part of a conspiracy “cannot be the same since they occurred at different times.” See

United States v. Yahsi, 2013 WL 588178 (D.N.J. 2013), aff’d 490 F. App’x 476, 478 (3d Cir.

2012); accord United States v. Becker, 892 F.2d 265, 269 (3d Cir. 1989) (“[T]he guarantee

against double jeopardy does not insulate a criminal for subsequent offenses merely because he

chooses to continue committing the same type of crime.”). Accordingly, I hold that Counts One

and Eight are not multiplicitous.

VI. Rule 33

Finally, Hunt Irving asks the Court to arrest judgment on Counts One, Two, and Eight

and grant a new trial under Federal Rule of Criminal Procedure 33. Mot. New Trial 14–15. Rule

33(a) allows courts to “vacate any judgment and grant a new trial if the interest of justice so

requires.” As the Third Circuit explained:

A district court can order a new trial on the ground that the jury’s verdict is
contrary to the weight of the evidence only if it believes that there is a serious
danger that a miscarriage of justice has occurred—that is, that an innocent person
has been convicted. Unlike an insufficiency of the evidence claim, when a district
court evaluates a Rule 33 motion it does not view the evidence favorably to the
Government, but instead exercises its own judgment in assessing the
Government’s case.
United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (citations omitted).

As a preliminary matter, it appears that this argument, too, is time-barred. Rule 33

requires all motions, other than those based on newly discovered evidence, to be filed within

fourteen days of the verdict. However, timeliness aside, Hunt Irving’s claim would fail on the

merits. Exercising my own judgment, having presided over Hunt Irving’s ten-day trial, which

included extensive wiretap evidence, I conclude that justice does not require a new trial. His all-

consuming interest in the Federal Express package intercepted by federal agents was compelling

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evidence of his participation in the conspiracy to import the drugs it contained, and his explicit

discussion of the need to find a new source, captured on a wiretap, was equally compelling.

There is no danger that a miscarriage of justice has occurred.

VII. Conclusion

Defendant Hunt Irving’s Motion to Dismiss the Indictment and Motion for a New Trial

are denied, and the felon-in-possession charge, Count Six, stands.

/s/ Gerald Austin McHugh

United States District Judge

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CERTIFICATE OF SERVICE

I hereby certify that on July 3, 2019, I electronically filed the

foregoing brief and volume I of the appendix with the Clerk of this Court
by using the appellate CM/ECF system. The participants in the case are
registered CM/ECF users and service will be accomplished by the
appellate CM/ECF system. I also served a paper copy of the brief and
appendix via Federal Express on Appellee’s counsel:

Robert E. Eckert
One Independence Mall – Suite 1250
615 Chestnut Street
Philadelphia, PA 19106-4476

I declare under penalty of perjury that the foregoing is true and

correct.

Executed this the 3rd day of July, 2019

/s/ Alan Gura

Alan Gura