NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 21-3171 __________
UNITED STATES OF AMERICA
v.
LANCE GREEN, Appellant __________
On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 3:20-cr-00165-001) Honorable Robert D. Mariani, U.S. District Judge __________
Submitted Under Third Circuit L.A.R. 34.1(a) on September 12, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: September 15, 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. KRAUSE, Circuit Judge.
Appellant Lance Green appeals his judgment of conviction for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and for possessing a firearm
with an obliterated serial number in violation of 18 U.S.C. § 922(k). Those convictions
resulted from an indictment originally returned on January 23, 2018 and a jury trial that
commenced over three years later on March 15, 2021. In between, the indictment was
dismissed twice without prejudice for violations of the Speedy Trial Act, and the District
Court was called upon to resolve a bevy of pretrial motions, almost all of which were
filed by Green. Green now challenges the District Court’s denials of his motion to
dismiss the indictment with prejudice, his motion for a mistrial, and his motion for a
judgment of acquittal or a new trial on speedy trial and numerous other grounds. For the
reasons explained below, we will affirm the judgment of the District Court on each.
I. DISCUSSION1
Green takes issue with seven findings of the District Court, each of which, he
contends, requires us to vacate his conviction. None of his arguments is persuasive.
a. Denial of Green’s Motion to Dismiss the Indictment
On appeal, Green renews his claims of error in the grand jury proceedings that
underlay his motion to dismiss the indictment before the District Court. We conduct a
plenary review of a district court’s legal conclusions and review its factual findings for
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
2 clear error. United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013) (citation omitted).
Here, we perceive no error, legal or factual.
First, Green contends that a question posed by the Assistant United States
Attorney (AUSA) to a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
agent before the grand jury contained an inaccurate premise that prejudiced him. For
Green’s appeal to succeed, we must find “‘that the violation substantially influenced the
grand jury’s decision to indict,’ or that there was ‘grave doubt’ to that effect.” United
States v. Alexander, 985 F.3d 291, 297 (3d Cir. 2021) (quoting Bank of Nova Scotia v.
United States, 487 U.S. 250, 256 (1988)). But “misstatements of fact” in an AUSA’s
question in grand jury proceedings are made harmless by a subsequent guilty verdict, as
we have here, regardless of their materiality, United States v. Bansal, 663 F.3d 634, 660
(3d Cir. 2011); see United States v. Mechanik, 475 U.S. 66, 70 (1986), so the District
Court properly rejected this argument.
Second, Green asserts that the indictment improperly relied on hearsay evidence.
But a prosecutor can introduce hearsay evidence before a grand jury without rendering an
indictment invalid “unless (1) non-hearsay is readily available; and unless (2) the grand
jury was also misled into believing it was hearing direct testimony rather than hearsay;
and unless (3) there is also a high probability that had the jury heard the eye-witness it
would not have indicted the defendant.” United States v. Ismaili, 828 F.2d 153, 164 (3d
Cir. 1987) (citing United States v. Wander, 601 F.2d 1251, 1260 (3d Cir. 1979)). And
here, Green concedes there is “no evidence that the jury was misled into believing it was
hearing direct testimony.” Opening Br. at 13. Thus, we lack “grave doubt” that hearsay
3 influenced the grand jury’s indictment. Alexander, 985 F.3d at 297 (quoting Bank of
Nova Scotia, 487 U.S. at 256).
Finally, Green argues that the District Court violated the Confrontation Clause
when it reviewed the AUSA’s affidavit explaining the manner in which she conducted
the grand jury proceedings ex parte and in camera. Because this was not raised before
the District Court,2 we review only for plain error. United States v. Moreno, 809 F.3d
766, 773 n.3 (3d Cir. 2016).
In this context, the Confrontation Clause would preclude only the “admission of
testimonial statements” of a witness who did not appear before the grand jury. Crawford
v. Washington, 541 U.S. 36, 53–54 (2004). To establish that a statement in an affidavit
was “testimonial,” a defendant must show it was made by a “‘witness[] against him’ . . .
proving one fact necessary for his conviction,” Melendez-Diaz v. Massachusetts, 557
U.S. 305, 310, 313 (2009) (emphasis in original) (quoting U.S. Const. amend. VI)—in
other words, with the “‘primary purpose’ of ‘establish[ing] or prov[ing] past events
potentially relevant to later criminal prosecution.’” Bullcoming v. New Mexico, 564 U.S.
647, 659 n.6 (2011) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). The
affidavit that Green is challenging, however, was merely a description by the AUSA for
the District Court of how the testimony of witnesses was delivered to the grand jury, and
2 Green did not preserve this challenge. The Confrontation Clause is not cited in his motion for judgment of acquittal or motion for a new trial. When the District Court requested the government prepare the affidavit, Green did not object on Confrontation Clause grounds. Finally, when the District Court ruled on Green’s motion to dismiss the indictment, it does not appear that Green objected at all.
4 the affidavit’s “primary purpose” was not “creat[ing] a record for trial” of facts that go to
any element that the government had to prove. Michigan v. Bryant, 562 U.S. 344, 358
(2011). The Confrontation Clause thus simply is not implicated here.
In sum, there was no error in the grand jury proceedings, and the District Court
properly declined to dismiss the indictment.
b. Alleged Improper Comments by the AUSA in Closing Argument
Next, Green contends that the District Court should have granted his motion for a
mistrial or new trial based on the AUSA’s mischaracterization of an officer’s trial
testimony. Specifically, he asserts that the AUSA misrepresented that testimony by
implying Nasheena Curry was on the phone with Green when she said, “bring the strap”
(i.e., gun).
We review the denial of a motion for a mistrial in this context for abuse of
discretion. See United States v. Bailey, 840 F.3d 99, 132 (3d Cir. 2016). If the AUSA’s
statement was improper, a new trial would be warranted unless it is “highly probable that
the error did not contribute to the judgment.” United States v. Mastrangelo, 172 F.3d
288, 297 (3d Cir. 1999) (emphasis in original) (citation omitted).
The error here does not clear that threshold. Not only did the timely objection of
Green’s counsel prevent the AUSA from finishing her statement and connecting Green to
the gun, but there is also evidence in the record that Curry did say “bring the strap” on the
phone: Neither Green nor Nakirah Williams had arrived at that point, and only Green was
later seen with a gun. The District Court also instructed the jury that closing arguments
are not evidence both before trial and before deliberations began. In short, the AUSA’s
5 statements did not infect the trial with unfairness such that Green was denied due process,
and the District Court did not abuse its discretion in denying Green’s motion for a
mistrial or a new trial on this basis. See Bailey, 840 F.3d at 132; Mastrangelo, 172 F.3d
at 297.
c. Sufficiency Challenge to Knowledge Element
Green’s third argument is that he should have been granted an acquittal because
there was insufficient evidence for a reasonable jury to conclude he knew that the gun’s
serial number had been obliterated. The question on review of the sufficiency of the
evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 424–
25 (3d Cir. 2013) (emphasis in original) (citation omitted).
That is a low threshold, and it is easily met here. An ATF agent testified that the
serial number of the gun in question, which was conspicuously located on a silver plate
on a black gun, was “directly underneath the barrel,” and that ATF agent and a state
police officer both testified that the scratches and gouges on the plate were easily visible.
On this record, given the links between Green and the gun, a rational jury easily could
have found the essential element of knowledge was satisfied beyond a reasonable doubt.
See id. at 424–25.
d. Reasonable Suspicion for the Car Stop
Green next disputes the District Court’s denial of his motion to suppress the
handgun and his DNA, which he contends were the fruits of a stop for which the officers
6 lacked reasonable suspicion. We review the denial of a motion to suppress “for clear
error as to the underlying factual findings and exercise plenary review over its application
of the law to those facts.” United States v. Burnett, 773 F.3d 122, 130 (3d Cir. 2014)
(citation omitted). When assessing the legality of a traffic stop, “[w]e review objectively
the officer’s rationale, by looking to the facts and circumstances confronting him or her,
to determine whether his or her actions during the stop were reasonable.” United States
v. Clark, 902 F.3d 404, 409 (3d Cir. 2018) (citation omitted).
The District Court’s factual findings make clear that the officers here acted
reasonably, because they had the requisite “particularized and objective basis for
suspecting the particular person stopped of criminal activity.” Kansas v. Glover, 140 S.
Ct. 1183, 1187 (2020) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)).
They knew the car’s driver had arrived during the short time between the two
altercations; they had reason to believe that a gun had been involved in the second
altercation; and they saw Curry, whom they recognized from their investigation of the
first altercation, get into that car with a man who matched the description of the person
who brandished that gun. These facts and circumstances made the stop a reasonable one,
especially because officers can rely, as relevant here, on their specialized training, their
experience, and tips from sources whose information is proven reliable. See United
States v. Nelson, 284 F.3d 472, 478 (3d Cir. 2002).
Green’s counterarguments are not persuasive. Whether Pennsylvania law bars
officers from making misdemeanor arrests if they did not witness the offense, see Pa. R.
Crim. P. § 502(2), does not determine whether the stop was reasonable under the Fourth
7 Amendment. See Virginia v. Moore, 553 U.S. 164, 172 (2008) (citations omitted) (noting
that “[w]hile ‘[i]ndividual States may surely construe their own constitutions as imposing
more stringent constraints on police conduct . . . ,’ state law did not alter the content of
the Fourth Amendment”). Nor does it matter that the officers only had evidence that
Green previously had been engaged in criminal activity, Cortez, 449 U.S. at 417 n.2 (“Of
course, an officer may stop and question a person if there are reasonable grounds to
believe that person is wanted for past criminal conduct.”), or that they had left their
jurisdiction by the time they stopped the car, United States v. Sed, 601 F.3d 224, 228–29
(3d Cir. 2010) (holding that a seizure by Pennsylvania state police was reasonable under
the Fourth Amendment even though it took place in Ohio).
e. Dismissal of the Previous Indictments Without Prejudice
Green also argues that both dismissals of his indictments for violations of the
Speedy Trial Act should have been with prejudice. Whether a district court should
dismiss with or without prejudice depends on at least three factors: “the seriousness of the
offense; the facts and circumstances of the case which led to the dismissal; and the
impact of a reprosecution on the administration of this chapter and on the administration
of justice.” 18 U.S.C. § 3162(a)(2). We review a district court’s decision to dismiss a
case without prejudice for abuse of discretion, and we review its factual findings for clear
error. See United States v. Stevenson, 832 F.3d 412, 419 n.3 (3d Cir. 2016) (citation
omitted).
Here, as to the first indictment, the District Court’s decision to treat Green’s
charges as serious accords with our precedent. See id. at 419–20 (collecting cases
8 holding that drug and firearms offenses are “serious crimes for purposes of the Speedy
Trial Act”). While the second factor may weigh slightly in Green’s favor because the
Government should have requested a trial date, this is not enough to reverse. We see no
abuse of discretion, as “there was no evidence that the Government had acted in bad faith
or to gain some tactical advantage.” Id. at 420 (citations omitted). Nor was it an abuse of
discretion to weigh the third factor against Green where the charges against him were
serious and the delay was relatively short.
The same is true of the second dismissal. The District Court made similar findings
concerning the seriousness of Green’s offense, which, combined with the lengthy
sentence he faced as an armed career criminal, weighed in favor of dismissal without
prejudice. Id. at 419–20; see also United States v. Jones, 601 F.3d 1247, 1257 (11th Cir.
2010). On the second factor, the Court pointed out that there was still no evidence of bad
faith by the Government. To the contrary, the Government had moved to set a trial date
two days after the resolution of Green’s pretrial motions. While the fact of a second
Speedy Trial Act violation gives us pause, that alone does not amount to a “pattern of
neglect” or “intentional dilatory conduct.” Stevenson, 832 F.3d at 420 (citation omitted).
And on the third factor, the Court found that although Green’s lengthy pretrial
incarceration seriously interfered with his liberty, much of that delay was attributable to
his pretrial motions, and because there was no evidence of prosecutorial misconduct,
dismissal with prejudice would serve no deterrent effect. So this was not an abuse of
discretion either. See id. at 422.
9 f. Potential Violation of Green’s Sixth Amendment Rights
Green also argues that the District Court should have dismissed his indictment
because his Sixth Amendment speedy trial rights were violated. We review that claim de
novo and accept the District Court’s factual findings absent clear error. See United States
v. Velazquez, 749 F.3d 161, 174 (3d Cir. 2014) (citing United States v. Battis, 589 F.3d
673, 677 (3d Cir. 2009)). Our determination is guided by Barker v. Wingo, which
identifies four factors to determine if the Government violated Green’s speedy trial
rights: (1) the “[l]ength of delay,” (2) “the reason for the delay,” (3) “the defendant’s
assertion of his right,” and (4) “prejudice to the defendant.” 407 U.S. 514, 530 (1972).
In this case, the first factor, the length of the delay, weighs in Green’s favor. We
look at both whether the delay was long enough to trigger the Barker analysis and
whether the delay intensified any prejudice Green suffered. Battis, 589 F.3d at 678
(citing Doggett v. United States, 505 U.S. 647, 652 (1992)). Given its similarity to the
forty-five-month delay that we found triggered the Barker analysis and “intensif[ied] any
prejudice caused by the delay” in Battis, Green’s case satisfies both aspects of the first
factor. 589 F.3d at 679.
The reason for the delay, however, weighs strongly against Green. There are three
types of delays, each of which we weigh differently: (1) deliberate efforts to delay trial,
(2) delays due to neutral reasons like “negligence or overcrowded courts,” and
(3) excusable delays. Id. (quoting Barker, 407 U.S. at 531). Green does not identify any
delays in the first category, and even viewing events in the light most favorable to Green,
we can only identify at most forty-four days of delay that could be blamed on the
10 Government.3 On the other hand, over two years of the delay can be attributed to Green,
App. I 11–12, so this factor favors the Government. Cf. Battis, 589 F.3d at 679–80.
The third Barker factor, whether and how Green asserted his speedy trial rights,
weighs slightly against him. Green clearly asserted his rights each time he filed a motion
to dismiss. But each one was filed later than it could have been. He filed the first over
eight months after the Speedy Trial Act clock had run. The second came after some
delay as well, with Green changing his mind multiple times about whether and when he
would file. While the resultant delay was short, this conduct raises questions about how
vigorously Green asserted his rights.
Prejudice, which is the fourth Barker factor, does not help Green either. The Sixth
Amendment protects against three sorts of prejudice: (1) oppressive pretrial incarceration,
(2) increased anxiety, and (3) most importantly, damage to one’s defense. Barker, 407
U.S. at 532; Doggett, 505 U.S. at 654. On the first, much of the time Green spent
incarcerated can be attributed to his pretrial motions, and pretrial delay and incarceration
can be protracted without being oppressive. See Barker, 407 U.S. at 532–36 (finding the
defendant was only minimally prejudiced even though there had been a five-year delay);
3 In reality, and in view of our precedent, the number of days of delay attributable to the Government is likely far less, as the days that we have attributed to the Government include, for example, what appear to be brief postponements of Green’s arraignment, the two days between the District Court’s denial of Green’s motion to suppress and the Government filing a motion to set a trial date, and the time it took to dispose of that motion around when the case was assigned to a new judge. In contrast, delays attributable to Green include multiple pretrial motions, multiple extensions of time to file those motions, and changes in counsel.
11 Hakeem v. Beyer, 990 F.2d 750, 760–62 (3d Cir. 1993) (finding fourteen months of
pretrial incarceration did not per se count as oppressive pretrial incarceration). On the
second, while Green has alleged cognizable harms, including health problems, losing his
job, and strain on his relationships, see Betterman v. Montana, 578 U.S. 437, 444 (2016);
Hakeem, 990 F.2d at 760–62, the District Court found that these were not supported with
specific evidence, and its finding was not clearly erroneous. Nor does the third type of
prejudice tip the scales in his favor. The delay here was not long enough to be
presumptively prejudicial. See Battis, 589 F.3d at 682–83; cf. Doggett, 505 U.S. at 657–
58. And Green’s inability to locate two potential witnesses cannot help him, because he
has not established their potential exculpatory value. See United States v. Shulick, 18
F.4th 91, 103 (3d Cir. 2021); United States v. Harris, 566 F.3d 422, 433 (5th. Cir. 2009).
g. Testimony by the Government’s Expert
Finally, Green argues that the District Court should not have allowed forensic
DNA analyst Ut Dinh to testify about the likelihood of a link between the DNA found on
the gun and Green’s DNA. We review evidentiary decisions only for an abuse of
discretion, Bailey, 840 F.3d at 117, and in the case of expert testimony consider whether
a “broad range of knowledge, skills, and training qualif[ied] [the] expert,” Pineda v. Ford
Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (citation omitted).
For an expert to be properly qualified to testify on an issue, she must “possess
specialized expertise.” Id. (citation omitted); see also Fed. R. Evid. 702. Here, Dinh was
plainly qualified to testify regarding the likelihood that the DNA found on the gun was
Green’s. She was trained on how to use the program that generated these statistics and
12 had used it over 100 times; her lab had been appropriately accredited and audited; and it
was core to her job as a DNA analyst to quantify the potential link between a person and
a DNA profile. Thus, the analysis that linked Green to the DNA found on the gun easily
fell within Dinh’s “broad range of knowledge, skills, and training.” Pineda, 520 F.3d at
244 (citation omitted).
Nor did the District Court abuse its discretion when it upheld the reliability and
relevance of Dinh’s testimony concerning statistical likelihood analysis. At this stage, a
court asks if “the testimony is the product of reliable principles and methods” and
whether the expert reliably applied those principles. Fed. R. Evid. 702(c)–(d). We look
at several factors, including “whether a method consists of a testable hypothesis,”
“whether the method is generally accepted,” and “the existence and maintenance of
standards controlling the technique’s operation.” Pineda, 520 F.3d at 247–48 (citations
There was more than a sufficient basis here for the District Court to conclude that
Dinh’s methodology was “the product of reliable principles and methods” and that she
correctly applied those principles as required by Rule 702. Fed. R. Evid. 702(c). Dinh
testified that statistical likelihood analysis “is a validated method,” that “current
laboratories still use it,” and that likelihood ratios were a standard “used, generally, in the
scientific community.” While it is true that Dinh did not testify regarding whether
likelihood ratios had been subjected to peer review or their potential error rate, she need
not have addressed every factor for her testimony to be admissible. Pineda, 520 F.3d at
248. And when we consider such relevant factors as whether statistical likelihood
13 analysis is generally accepted and if there are standards controlling its operation, we
cannot say that the District Court abused its discretion in admitting her testimony here
about that analysis. See id. at 247–48.
II. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s judgment.