United States v. Harry Duncan

• Court: Court of Appeals for the Third Circuit
• Decided: June 10, 2026
• Docket: 24-2729
• Status: Unpublished

Opinion

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT No. 24-2729

UNITED STATES OF AMERICA

v.

HARRY E. DUNCAN,

Appellant _____________________________ Appeal from the U.S. District Court, W.D. Pa. Judge Christy Criswell Wiegand, No. 2:22-cr-00317-001

Before: PORTER, MONTGOMERY-REEVES, and BOVE, Circuit Judges Submitted: April 8, 2026; Filed: June 10, 2026 _____________________________

NONPRECEDENTIAL OPINION

MONTGOMERY-REEVES, Circuit Judge.

Harry Duncan appeals his convictions of possession with intent to distribute

cocaine, cocaine base, and fentanyl under 21 U.S.C. § 841(a)(1), (b)(1)(C); unlawful

possession of firearms and ammunition by a convicted felon under 18 U.S.C. § 922(g)(1);

and aiding and abetting the falsification of a firearms purchase form under 18 U.S.C. §

924(a)(1)(A), (2). For the reasons that follow, we will affirm Duncan’s convictions.

* This is not an opinion of the full Court and, under 3d Cir. IOP 5.7, is not binding precedent. I. BACKGROUND1

In September 2022, the Allegheny County Police Department began investigating

Duncan for suspected drug trafficking, using an unidentified confidential informant (the

“CI”) to orchestrate controlled purchases. Several of these controlled purchases, which

detectives witnessed, occurred at Duncan’s home, located at 1622 Loretta Drive, and one

involved Duncan’s car. One such purchase occurred on November 7, 2022. On that date,

three detectives, including Detective Matthew Bloom, witnessed the CI buy a brick of

fentanyl from Duncan (the “Controlled Purchase”). Relying substantially on the controlled

purchases, Detective Bloom filed an affidavit of probable cause and obtained a warrant to

search Duncan’s home.

During the search of 1622 Loretta Drive, Detective Bloom asked Duncan numerous

questions, which he ignored. About 15 minutes later, but before Duncan received a

Miranda2 warning, Duncan told Detective Carter Cecotti that only he lived at 1622 Loretta

Drive and that everything inside belonged to him. Law enforcement found multiple cell

phones, a check made out to Duncan, his driver’s license inside a wallet, and keys to a car

parked in the garage. That car was registered to Duncan, its screen displayed “a welcome

for . . . Harry Duncan,” and its license plate matched the car used during the Controlled

1 Duncan was convicted after a jury trial so “we must defer to the jury’s verdict and view the evidence in the light most favorable to the government.” United States v. Kolodesh, 787 F.3d 224, 229 n.1 (3d Cir. 2015) (quoting United States v. Serafini, 233 F.3d 758, 763 n.4 (3d Cir. 2000)). 2 Miranda v. Arizona, 384 U.S. 436 (1966).

2 Purchase. Appendix (hereinafter “App. ___”) 1259. Law enforcement also recovered

fentanyl, cocaine, firearms, ammunition, stamp bags, and digital scales. So they arrested

Duncan and charged him with possession with intent to distribute quantities of fentanyl,

cocaine, and cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession

of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1).3

Duncan proceeded to trial.

The District Court made five rulings relevant to this appeal: four rejected Duncan’s

efforts to exclude certain evidence, and one rejected Duncan’s efforts to dismiss the felon-

in-possession charge under 18 U.S.C. § 922(g)(1). Thereafter, the jury convicted Duncan

on all counts, and the District Court sentenced him to 100 months’ imprisonment. This

appeal followed.

II. DISCUSSION4 Duncan challenges his convictions in five ways. He argues that the District Court erred

in (1) denying his motion to suppress; (2) denying his request for a hearing under Franks

v. Delaware, 438 U.S. 154 (1978); (3) denying his motions to disclose the CI’s identity and

exclude testimony about the CI; (4) admitting text messages of third parties as non-hearsay;

3 A superseding indictment additionally charged Duncan with aiding and abetting the falsification of firearms purchase forms in violation of 18 U.S.C. § 924(a)(1)(A), (2). 4 The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

3 and (5) denying his constitutional challenge to 18 U.S.C. § 922(g)(1). None of Duncan’s

arguments have merit.

A. Denial of Motion to Suppress

Duncan challenges the District Court’s admission of his statements that only he lived

at 1622 Loretta Drive and that everything inside belonged to him, but on different grounds

than he raised before the District Court. Our precedent requires “litigants to preserve

specific arguments for appeal, not merely issues”; “whether an argument raised on appeal

is the same as one raised in the trial court requires at least that ‘they depend on the same

legal rule or standard’ and ‘on the same facts.’” United States v. Sok, 115 F.4th 251, 258

(3d Cir. 2024) (emphasis added) (quoting United States v. Joseph, 730 F.3d 336, 341–42

(3d Cir. 2013)).

Here, Duncan relies on the same legal rules or standards as his argument below—that

the statements occurred during an unlawful detention before receiving a Miranda warning.

But he does not rely on the same facts. Below, Duncan did not identify a single question

that anyone asked him during the search, despite possessing video-camera footage of the

search. Now, he argues that the same video-camera footage shows that Detective Bloom

interrogated him. Because Duncan failed to raise before the District Court the suppression-

related argument he presses on appeal, “we cannot consider [the argument] under Federal

Rule of Criminal Procedure 12 unless he shows good cause for us to do so.” Sok, 115 F.4th

at 259. Duncan has not raised any colorable argument for good cause, so we cannot

consider the merits of the new argument. See United States v. Rose, 538 F.3d 175, 184–85

(3d Cir. 2008).

4 Even if Duncan had raised this argument, we could not conclude that his statements—

made voluntarily and spontaneously in the presence of a different officer about 15 minutes

after Detective Bloom posed the questions, which Duncan initially ignored—were

erroneously admitted. See Oregon v. Elstad, 470 U.S. 298, 309 (1985) (“It is an

unwarranted extension of Miranda to hold that a simple failure to administer the warnings

. . . so taints the investigatory process that a subsequent voluntary and informed waiver is

ineffective for some indeterminate period . . .. [T]he admissibility of any subsequent

statement should turn in these circumstances solely on whether it is knowingly and

voluntarily made.”).

B. Denial of Franks Hearing5

Duncan argues the District Court erred in denying his request for a hearing relating to

the warrant affidavit’s omission of information bearing on the CI’s credibility. To obtain

a Franks hearing, a defendant must show “(1) that a warrant application contained false

statements made with reckless disregard for the truth and (2) that the remaining truthful

statements, standing alone, do not establish probable cause.” Desu, 23 F.4th at 234 (citing

Franks, 438 U.S. at 171–72). But Duncan has not carried his burden because the warrant

affidavit relayed information about the controlled purchases that “depend[ed] upon police

observation,” and those observations “would not be affected by a judge’s questioning of

5 “We review for clear error a district court’s determination regarding whether false statements in a warrant application were made with reckless disregard for the truth.” United States v. Desu, 23 F.4th 224, 235 (3d Cir. 2022). After we disregard any “false statements made with reckless disregard for the truth, we review de novo a district court’s substantial-basis review of a . . . judge’s probable cause determination.” Id.

5 [the CI’s] credibility.” United States v. Aviles, 938 F.3d 503, 509 (3d Cir. 2019). So

Duncan fails to show reversible error.

C. Admission of Testimony About the CI6

Duncan challenges the admission of testimony about the CI under the Fifth and Sixth

Amendments. Both arguments fail.

First, Duncan contends the Fifth Amendment’s Due Process Clause required disclosure

of the CI’s identity because Detective Bloom testified about the CI’s involvement in the

Controlled Purchase. We disagree. In Roviaro v. United States, the Supreme Court

recognized the Government’s “privilege to withhold from disclosure the identity of persons

who furnish information of violations of law to officers charged with enforcement of that

law.” 353 U.S. 53, 59 (1957) (collecting cases). But it explained that “the privilege must

give way” when the defendant shows that “the disclosure of an informer’s identity, or of

the contents of his communication, is relevant and helpful to the defense of an accused, or

is essential to a fair determination of a cause.” Id. at 60–61.7

Duncan did not meet his burden to show that the CI’s identity was relevant and helpful

6 We review the denial of a motion to disclose a confidential informant’s identity for abuse of discretion. United States v. Johnson, 677 F.3d 138, 143 (3d Cir. 2012). We review de novo the question whether the admission of evidence violates the Sixth Amendment’s Confrontation Clause. United States v. Hendricks, 395 F.3d 173, 176 (3d Cir. 2005). 7 We note that the CI was arguably a hearsay declarant at trial, and the government has discovery obligations with respect to non-testifying witnesses, including under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). See, e.g., Kyles v. Whitley, 514 U.S. 419, 444-45 (1995); see also Fed. R. Evid. 806. But Duncan has not provided a non-speculative reason to suggest that the CI’s identity was subject to those obligations or that the government violated them in any other respect.

6 to his defense or was essential to a fair determination of his case. Consider the non-CI

facts of Duncan’s case. The government did not charge Duncan with any crime arising

from the Controlled Purchase. And although the warrant affidavit for the 1622 Loretta

Drive search warrant mentioned the CI’s involvement in the Controlled Purchase,

detectives also witnessed it. Cf. United States v. Bazzano, 712 F.2d 826, 839 (3d Cir. 1983)

(en banc) (“So far as appears, the informant’s role in this case was nothing more than that

of allegedly providing the police with probable cause for conducting their search[.] . . . The

evidence of Mollica’s guilt consisted primarily of the physical evidence seized during the

search. Where an informant’s role was in validating a search, disclosure of his identity is

not required.”).

The resulting search of 1622 Loretta Drive—conducted with no involvement by the

CI—revealed fentanyl, cocaine, firearms, ammunition, stamp bags, and digital scales.

Witnesses testified to communication between Duncan and other non-CIs about drug

transactions. And one non-CI witness admitted giving guns to Duncan in exchange for

drugs. So we see no abuse of discretion in the District Court’s denial of Duncan’s motion.

Second, Duncan argues that Detective Bloom’s testimony about the Controlled

Purchase violated the Sixth Amendment’s Confrontation Clause because he could not

cross-examine the CI. Again, we disagree. The Sixth Amendment’s Confrontation Clause

prohibits the “admission of testimonial [hearsay] of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior opportunity for

cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). But “[t]he

erroneous admission of testimonial hearsay in violation of the Confrontation Clause is

7 ‘simply an error in the trial process itself’ that we may affirm if the error was harmless.”

United States v. Jimenez, 513 F.3d 62, 78 (3d Cir. 2008) (citation modified) (quoting

United States v. Hinton, 423 F.3d 355, 361–62 (3d Cir. 2005)). An evidentiary error is

harmless, and therefore a conviction must stand, “only if it is highly probable that the

improperly admitted evidence did not contribute to the jury’s judgment of conviction.” Id.

(quoting United States v. Lopez, 340 F.3d 169, 177 (3d Cir. 2003)). That is the case here.8

The government presented, among other evidence, witnesses who testified that drugs and

guns were found at Duncan’s home during the search, that Duncan was communicating

with several people about drug transactions, and that a witness had exchanged guns to

Duncan for drugs. It is thus “highly probable” that the CI’s statements to officers did not

contribute to the verdict. Jimenez, 513 F.3d at 78.

D. Admission of Certain Text Messages9

Next, Duncan objects on hearsay grounds to the admission of text messages sent to

Duncan from unidentified third parties. But text messages not offered for the truth of the

matter but to “put [a defendant’s] statements ‘into perspective and make them intelligible

to the jury and recognizable as admissions’” are not hearsay. United States v. Browne, 834

F.3d 403, 416 n.10 (3d Cir. 2016) (quoting Hendricks, 395 F.3d at 184). So the District

Court did not err in admitting the evidence for this expressly limited purpose.

8 We assume without deciding that Detective Bloom’s testimony contained the CI’s testimonial hearsay. 9 “Whether evidence is hearsay is a question of law subject to plenary review.” United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).

8 E. Constitutional Challenges to 18 U.S.C. § 922(g)(1)

Duncan challenges the constitutionality of his § 922(g)(1) conviction both as applied

and facially. First, Duncan’s as-applied challenge is subject to plain-error review because

he raised it for the first time here. See United States v. Dorsey, 105 F.4th 526, 528, 530

(3d Cir. 2024). Duncan has not demonstrated any error, much less a “clear or obvious”

one, because he points to no precedent showing that the Second Amendment protects a

felon possessing a firearm while released on bond for state felony charges that included

terroristic threats. Id. at 530. Second, our binding precedent recognizing constitutionally

valid applications of § 922(g)(1) forecloses Duncan’s facial challenge. See, e.g., United

States v. Moore, 111 F.4th 266, 272 (3d Cir. 2024), cert. denied, 145 S. Ct. 2849 (2025)

(in the context of federal supervised release); United States v. Quailes, 126 F.4th 215, 224

(3d Cir. 2025) (in the context of state parole or probation), cert. denied, 146 S. Ct. 127

(2025). And Duncan’s argument that § 922(g)(1) is void for vagueness under the Due

Process Clause likewise fails because he does not argue “that it is vague as applied to his

own conduct.” United States v. Harris, 144 F.4th 154, 166 (3d Cir. 2025). So Duncan’s §

922(g)(1) challenge fails.10

*****

For the reasons discussed above, we will AFFIRM.

10 Duncan also argues that § 922(g)(1) violates the Commerce Clause but concedes that this argument is foreclosed by precedent. See United States v. Singletary, 268 F.3d 196, 205 (3d Cir. 2001).