United States v. Kelly Shaulis

• Court: Court of Appeals for the Third Circuit
• Decided: January 26, 2022
• Docket: 20-2253
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-2253 ______

UNITED STATES OF AMERICA

v.

KELLY B. SHAULIS, Appellant ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 3-18-cr-00033-001) District Judge: Honorable Kim R. Gibson ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 29, 2021

Before: PHIPPS, NYGAARD, and ROTH, Circuit Judges.

(Filed: January 26, 2022)

___________

OPINION* ___________

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

A federal jury found Kelly Shaulis guilty of two counts of illegally possessing a

firearm as a felon, see 18 U.S.C. § 922(g)(1), and the District Court sentenced Shaulis to

two concurrent fifteen-month prison terms. In appealing that judgment and sentence,

Shaulis now raises four challenges: three to the evidence used against him at trial and one

to the calculation of his sentence.

The District Court had jurisdiction over this case because it involves offenses

against the laws of the United States. See 18 U.S.C. § 3231. And with his timely appeal

of that final judgment and sentence, Shaulis properly invoked this Court’s appellate

jurisdiction. See 28 U.S.C. § 1291; 18 U.S.C. § 3742(a). For the reasons below, we will

affirm Shaulis’s conviction and sentence.

I. CHALLENGES TO THE SEARCHES OF SHAULIS’S HOME

Shaulis argues that law enforcement officers violated the Fourth Amendment

when they searched his house on two separate occasions. The first search discovered the

firearms that were the basis for the first felon-in-possession conviction. The second

search produced additional firearms that were the basis for the second felon-in-possession

conviction. Through a motion to suppress, Shaulis argued that both searches were illegal

and that the evidence gained from them – which included, in total, twelve firearms and

1,207 rounds of ammunition – could not be admitted against him. The District Court

denied that motion, and Shaulis disputes that ruling. Examining the District Court’s legal

conclusions de novo and its factual findings for clear error, see United States v. Perez,

280 F.3d 318, 336 (3d Cir. 2002), we see no flaw.

2 A. The June 2017 Search of Shaulis’s Home

Shaulis claims that after arresting him at home in his kitchen in June 2017, law

enforcement officers conducted an overly broad sweep of his house. The arrest warrant,

executed by officers from the Pennsylvania Office of the Attorney General, related to

Shaulis’s role as a possible supplier of methamphetamine. After arresting Shaulis, the

officers conducted a protective sweep of his house, and in searching a furnished room

within the basement, they noticed two rifles propped against the wall. With knowledge

of these rifles, the officers requested a warrant to search the house to investigate whether

Shaulis, who had a previous felony conviction, was violating 18 U.S.C. § 922(g)(1), the

federal statute that prohibits felons from possessing firearms and ammunition.

A state court granted that warrant request, and in executing the resulting search

warrant, the officers found additional firearms and ammunition. The officers seized the

two rifles that they observed propped up against a wall in the furnished room during their

protective sweep, and while searching the rest of the basement, they found five rifles and

three shotguns in a large, unlocked gun safe. Altogether, they recovered 621 rounds of

ammunition.

The Fourth Amendment permits law enforcement officers, as an incident to arrest,

to conduct limited protective sweeps of the premises. Rooms and closets immediately

adjacent to the place of arrest may be searched without probable cause or reasonable

suspicion. See Maryland v. Buie, 494 U.S. 325, 334 (1990) (holding that “as an incident

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

3 arrest from which an attack could be immediately launched”); see also Sharrar v.

Felsing, 128 F.3d 810, 823 (3d Cir. 1997), abrogated on other grounds by Curley v.

Klem, 499 F.3d 199 (3d Cir. 2007). A protective sweep may also be conducted in

nonadjacent areas upon a reasonable suspicion that other individuals are in those areas

and may launch an attack on the officers. See Buie, 494 U.S. at 334; see also United

States v. White, 748 F.3d 507, 511 (3d Cir. 2014). Such a sweep is not necessarily “a full

search of the premises, but may extend only to a cursory inspection of those spaces where

a person may be found.” Buie, 494 U.S. at 335.

Considering the totality of the circumstances, see United States v. Williams,

417 F.3d 373, 376 (3d Cir. 2005); United States v. Price, 558 F.3d 270, 278 n.6 (3d Cir.

2009), it was reasonable to suspect that a dangerous person was hiding in Shaulis’s

basement. At the time of arrest, Shaulis had previously been convicted of a felony for

unlawfully possessing a firearm, and he was under investigation for drug trafficking. The

remote location of Shaulis’s house, in a rural area at the end of a long driveway, provided

an opportunity to notice, and potentially prepare for, the officers’ approach. Upon

arriving at the house, the officers noticed that the back door was open, suggesting that

someone recently came in or left in a hurry. The officers knew that Shaulis’s wife and

son lived in the house, and although they saw his son in the house, they did not see his

wife. Also, as they knocked on the back door to announce their presence, the officers

heard yelling in the basement and noticed bullets on the floor of the house. After five or

six minutes, Shaulis emerged from the basement, and he immediately shut the door

behind him. Under these circumstances, the protective sweep of the basement and the

4 furnished room within it, both of which contained guns and ammunition, did not offend

the Fourth Amendment.1

B. The December 2018 Search of Shaulis’s Home

Presented with the firearms evidence from the first search, a federal grand jury

indicted Shaulis on one felon-in-possession count in December 2018. See 18 U.S.C.

§ 922(g)(1). Shortly afterwards, federal agents from the Bureau of Alcohol, Tobacco,

Firearms and Explosives obtained and executed a warrant to arrest Shaulis at his home.

During that arrest, the ATF agents observed ammunition and firearms. Based on that

discovery, they obtained a search warrant for the whole house. Upon searching the

house, they found more firearms and ammunition. Those discoveries led to a superseding

indictment that charged Shaulis with a second felon-in-possession count. See 18 U.S.C.

§ 922(g)(1). Through a motion to suppress, Shaulis disputed the legality of the second

search under the Fourth Amendment, and the District Court denied that motion. Shaulis

now challenges that ruling.

In executing the arrest warrant, ATF agents entered Shaulis’s home in two groups.

One group entered the first floor. They found Shaulis in the kitchen and arrested him.

The second group simultaneously entered the basement, and while they searched for

1 It was also permissible for the officers to rely on their plain-view observations to support an application for a warrant to search the entire house for firearms. See United States v. Stabile, 633 F.3d 219, 241 n.17 (3d Cir. 2011) (“[A]n officer’s mere observation of an item left in plain view . . . generally involves no Fourth Amendment search . . . . The information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity.” (quoting Texas v. Brown, 460 U.S. 730, 738 n.4 (1983) (plurality opinion))).

5 Shaulis, they observed ammunition and rifle scopes on top of a dresser. One agent

looked into Shaulis’s large gun safe – which was ajar – and observed a firearm. After

opening the door wider, the agent discovered a second firearm. While they searched the

basement, the ATF agents in the second group did not know that Shaulis had been found

and arrested in the kitchen.

Having observed ammunition and firearms in plain view while executing the arrest

warrant, the ATF agents applied for a warrant to search Shaulis’s house. They obtained

the requested warrant and, after searching Shaulis’s basement, they seized a rifle and a

shotgun (the guns seen in the gun safe during Shaulis’s arrest) as well as 586 rounds of

ammunition. None of that evidence was obtained illegally.

In executing an arrest warrant, officers may constitutionally enter a home when

two conditions are present. The officers must have a “reasonable belief” that (i) “the

arrestee resides at the dwelling” and (ii) “the arrestee is present at the time of the entry.”

United States v. Vasquez-Algarin, 821 F.3d 467, 472 (3d Cir. 2016) (citations omitted);

see generally Payton v. New York, 445 U.S. 573, 603 (1980) (“[A]n arrest warrant

founded on probable cause implicitly carries with it the limited authority to enter a

dwelling in which the suspect lives when there is reason to believe the suspect is

within.”). Both conditions are present here. For the first, the ATF agents knew that the

house was Shaulis’s residence. And for the second, when the agents approached

Shaulis’s house early in the morning, they saw his truck in the driveway, and they noticed

lights on in a part of the house, leading them to believe that he was present. Those facts,

6 coupled with the arrest warrant, permitted the agents to enter Shaulis’s house to find and

arrest him. See Vasquez-Algarin, 821 F.3d at 472; Payton, 445 U.S. at 603.

Once inside, the officers could search all areas of the house in which Shaulis

might have been found. See Buie, 494 U.S. at 332–33. Under that standard, the agents

could lawfully enter the basement, as Shaulis could have been hiding there. In the

basement, they noticed bullets on top of a dresser, and because the gun safe was partially

open, one firearm inside was also in plain view. Given the size of the gun safe –

“approximately six feet tall, four feet wide, and three feet deep” – it appeared “large

enough to potentially conceal a person.” United States v. Shaulis, 2019 WL 7856722, at

*3 (W.D. Pa. Sept. 24, 2019); see Buie, 494 U.S. at 332–33. Thus, the officers could

permissibly look inside it.

Thus, the officers were permitted to look for Shaulis in the basement as they

executed the arrest warrant. And their observations of items in plain view could be used

to support an application for a search warrant. See Stabile, 633 F.3d at 241 n.17.

Accordingly, the District Court did not err in denying Shaulis’s motion to suppress the

evidence discovered during the second search.

II. THE EVIDENCE OF SHAULIS’S PRIOR ILLEGAL POSSESSION OF FIREARMS AS A FELON

Shaulis next challenges the District Court’s denial of his motion in limine.

Through that motion, Shaulis sought to prevent two law enforcement officers from

testifying about his possession of firearms as a felon approximately a decade earlier.

Shaulis argues that the officers’ testimony constitutes impermissible propensity evidence

7 under Rule 404(b), and he has a good point – even under the lenient abuse-of-discretion

standard of appellate review. See United States v. Repak, 852 F.3d 230, 240 (3d Cir.

2017). But ultimately the evidence against him was overwhelming, and any Rule 404(b)

error was harmless.

The first witness, a wildlife conservation officer, testified at trial that he previously

observed Shaulis in illegal possession of a firearm. The officer explained that, while on

patrol in 2008, he discovered Shaulis dressed in hunting clothes inside his vehicle,

pointing a rifle at a deer through the driver’s window, while parked in the middle of a

road. In addition to providing those details regarding his investigation into the state-law

crime of road hunting, the officer testified that he knew that Shaulis was not allowed to

possess firearms at that time. The District Court admitted this testimony to prove

Shaulis’s alleged motive for illegally possessing firearms – to hunt with them.

The second witness, a detective from the Allegheny County District Attorney’s

Office, testified at trial that in 2008, he saw a box of bullets and a magazine for a firearm

on Shaulis’s porch. The officer explained that at that time he knew that Shaulis was

prohibited from possessing those items due to his status as a felon. Based on his

observation of the bullets and magazine, the detective testified that he obtained a warrant

to search Shaulis’s house and discovered a handgun, four rifles, five shotguns, and 1,547

rounds of ammunition during an ensuing search. The officer indicated that at some point

he learned that “Shaulis admitted under oath that he possessed all of those firearms.”

Trial Tr. at 248:6–7 (Nov. 19, 2019) (JA 867). The District Court admitted that

testimony and instructed the jury to consider it “for the purpose of deciding whether there

8 was a lack of accident or absence of mistake regarding [Shaulis’s] possession of firearms

or ammunition” during the 2017 and 2018 incidents at issue in this case. Id. at 262:15–18

(JA 881).

The admission of these witnesses’ testimony was dubious. Under Rule 404(b)(1),

evidence of “any other crime, wrong, or act” is not admissible to demonstrate “a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character.” Fed. R. Evid. 404(b)(1); see also United States v. Smith, 725 F.3d

340, 345 (3d Cir. 2013) (explaining that “the basic idea embodied by Rule 404(b)” is that

“simply because one act was committed in the past does not mean that a like act was

again committed”). Despite that propensity bar, prior-acts evidence is “admissible for

another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

But even those purposes do not permit the admission of evidence premised on “the

propensity-based inferential logic that Rule 404(b) forbids.” United States v. Caldwell,

760 F.3d 267, 282 (3d Cir. 2014). To evaluate the admissibility of evidence proffered for

one of those legitimate purposes under Rule 404(b), this Circuit employs a four-part test.

See United States v. Davis, 726 F.3d 434, 441 (3d Cir. 2013) (explaining that prior-acts

evidence must be offered for a proper purpose under Rule 404(b)(2); relevant to that

purpose; sufficiently probative under the Rule 403 balancing test; and accompanied by a

limiting instruction, if requested); see generally Huddleston v. United States, 485 U.S.

681, 691–92 (1988). Before applying that test, two observations can be made about the

motive and absence-of-mistake-or-accident purposes that the government invokes here.

9 First, evidence of motive often overlaps with evidence of propensity so completely

that “‘motive’ . . . is just another word for propensity.” 1 Robert P. Mosteller,

McCormick on Evidence § 190.5 (8th ed. 2020); see also United States v. Cunningham,

103 F.3d 553, 556–57 (7th Cir. 1996) (describing the potential “overlap between

propensity and motive”). And here, it is hard to see how the prior-acts evidence of

motive is independent from the forbidden propensity purpose.

Second, the absence-of-mistake and lack-of-accident purposes relate only to a

crime’s mens rea elements, not its actus reus elements. See United States v. Cordero,

973 F.3d 603, 620 (6th Cir. 2020) (“Absence of mistake is in issue where a defendant

admits involvement in a specific event but asserts that he acted unwittingly or with honest

intent.” (citation and alterations omitted)); Robert E. Larsen, Navigating the Federal

Trial § 10:53 (2021 ed.) (stating that a mistake or accident reveals “the absence of

knowledge or intent”). Thus, evidence that proves the absence of a mistake or accident

has minimal probative value when a defendant’s culpable mental state is not disputed.

See United States v. Murray, 103 F.3d 310, 318 n.5 (3d Cir. 1997) (“[W]ithout any

suggestion by the defense that the killing was accidental or occurred in self-defense, it is

questionable whether [a prior] killing [admitted under Rule 404(b)] was relevant, and in

any event its probative value to show absence of accident or self-defense was

undoubtedly negligible.”); see also United States v. Bell, 516 F.3d 432, 442 (6th Cir.

2008) (“[F]or other acts evidence to be admissible for the purpose of showing absence of

mistake or accident, the defendant must assert a defense based on some type of mistake

or accident.” (citations omitted)); United States v. Hicks, 635 F.3d 1063, 1070 (7th Cir.

10 2011) (holding that prior-acts evidence was not admissible “to show that [the

defendant’s] actions were the result of a mistake” because the defendant “never

contended that he did not know that the substance for sale was crack cocaine or any other

controlled substance” (citations omitted)). And here it is far from clear that Shaulis

raised a mental-state defense such that the prior-acts evidence would be needed to show

an absence of mistake or accident. See 22B Kenneth W. Graham, Jr., Federal Practice

and Procedure (Wright & Miller): Evidence § 5255 (2d ed. 2021) (“Judges should take

care that they confine this use to cases in which mistake or accident seems a plausible

defense.”).

Those observations forecast that the prior-act evidence of Shaulis’s illegal

possession of firearms a decade earlier should have been excluded under Rule 404(b).

But it is not necessary to formally conduct a four-part analysis here because, even if the

District Court erred, the error was harmless due to the volume of admissible evidence of

Shaulis’s guilt. See generally Caldwell, 760 F.3d at 285 (“The test for harmless error is

whether it is highly probable that the error did not contribute to the judgment,” and this

high probability “requires that the court possess a sure conviction that the error did not

prejudice the defendant.” (citations and internal quotation marks omitted)). A total of

twelve firearms and hundreds of rounds of ammunition were discovered inside and

immediately next to a room in Shaulis’s basement, which he calls his “man cave,” Trial

Tr. at 85:8 (Nov. 21, 2019) (JA 1198), which he “practically lived in,” id. at 45:25 (JA

1162), and which he agreed was his “domain” and described as his “room,” id. at 86:14,

21 (JA 1199). The firearms and ammunition were found propped against the wall, on top

11 of furniture, and in an unlocked, open gun safe – all readily accessible to Shaulis.

Recognizing that the government can prove constructive possession under § 922(g)(1)

“by showing that [the defendant] exercised dominion or control over the area in which

the weapon was found,” Caldwell, 760 F.3d at 278 (citation omitted), and with this

overwhelming evidence of firearms in areas controlled by Shaulis, any error in admitting

prohibited propensity evidence was harmless. See id. at 285; United States v. Helbling,

209 F.3d 226, 241 (3d Cir. 2000).

III. THE DISTRICT COURT DID NOT ERR WHEN IT DECLINED TO REDUCE THE BASE OFFENSE LEVEL FOR SHAULIS’S OFFENSES

As a final challenge, Shaulis contends that the District Court miscalculated his

sentence. After the jury returned guilty verdicts on both felon-in-possession counts, see

18 U.S.C. § 922(g)(1), Shaulis argued that under Sentencing Guideline § 2K2.1(b)(2), the

base offense level for his crime should not be fourteen but instead six. Compare

U.S.S.G. § 2K2.1(a)(6)(A) (base offense level fourteen), with id. § 2K2.1(b)(2) (base

offense level six). But to qualify for that lower base offense level, Shaulis had to

establish by a preponderance of the evidence that he “possessed all ammunition and

firearms solely for lawful sporting purposes or collection, and did not unlawfully

discharge or otherwise unlawfully use such firearms or ammunition.” Id. § 2K2.1(b)(2);

see also United States v. Miller, 224 F.3d 247, 250–51 (3d Cir. 2000). The District Court

determined that Shaulis did not meet that burden, and Shaulis now disputes that ruling.

12 In reviewing that decision under the “deferential abuse-of-discretion standard,” Gall v.

United States, 552 U.S. 38, 52 (2007), we will affirm.

Shaulis failed to establish that he possessed all of the ammunition and firearms

solely for lawful sporting or collection purposes. He did not submit that he possessed any

of his guns or ammunition for collection purposes. Instead, he argued that the firearms

and ammunition were used for solely sporting purposes – either hunting or target

shooting. See United States v. Massey, 462 F.3d 843, 846–47 (8th Cir. 2006) (indicating

that hunting may be a ‘lawful sporting purpose’); United States v. Mason, 692 F.3d 178

(2d Cir. 2012) (same); United States v. Bossinger, 12 F.3d 28 (3d Cir. 1993) (holding that

a form of target shooting called ‘plinking’ is a sport). But because Shaulis must make

that showing for all of his firearms and ammunition, his proof breaks down – quickly.

One of his shotguns was held together by duct tape and was not safe to fire. With the

inability to safely fire that weapon, it is unlikely that Shaulis possessed it solely to hunt or

shoot targets. Similarly, the ammunition in Shaulis’s possession cannot be easily

reconciled with hunting or target-shooting purposes. Some of that ammunition was for

semiautomatic handguns, which are not approved for hunting in Pennsylvania. See

34 Pa. Cons. Stat. § 2308(a)(2). And although that ammunition could have been used for

target practice, Shaulis presented no evidence that he possessed it for solely that purpose.

These examples demonstrate Shaulis’s failure to prove that he possessed all of the

firearms and ammunition solely for lawful sporting purposes, and thus the District Court

did not abuse its discretion in calculating Shaulis’s base offense level.

13 ***

For the foregoing reasons, we will affirm the judgment of conviction and the

judgment of sentence.