Case: 19-1636 Document: 003113418263 Page: 1 Date Filed: 11/26/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA :

v. : No. 19-1636 and 18-3736

RAPHAEL HUNT-IRVING and :

SHAWN MILLS

GOVERNMENT’S REPLY TO APPELLANT

RAPHAEL HUNT-IRVING’S RESPONSE TO GOVERNMENT’S
SECOND MOTION FOR EXTENSION OF TIME

Defendant/appellant Raphael Hunt-Irving opposes the government’s

motion for a 21-day extension of time on the grounds that the delay will prejudice

him and inconvenience his counsel, and that, in the appellant’s view, the

government has had enough time. His arguments lack merit. 1

The appellant’s prejudice argument omits significant facts. He is presently

serving a 72-month sentence of imprisonment. Sixty-four months of that term of

imprisonment result from his conviction by a jury of one count of conspiracy to

distribute 500 grams or more of cocaine, a separate count of conspiracy to

possess 500 grams or more of cocaine with intent to distribute, and a count of

attempt to possess cocaine with intent to distribute. Jury Verdict Form, DDE

1In its motion, the government inadvertently stated, wrongly, that the
appellant’s counsel had not yet responded to the government’s inquiry about
whether the appellant opposed the motion. Government counsel overlooked an e-
mail response from the appellant’s counsel stating the appellant’s opposition. The
government regrets the error.
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#200; Judgment, DDE #285. Eight months of that term result from his guilty

plea to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

Judgment, DDE #285.

As of this writing, Hunt-Irving has served only eight months of a six-year

sentence. Except for five days immediately following his arrest, Hunt-Irving was

on bail until after sentencing. He began serving his six-year term of

imprisonment on March 28, 2019. DDE #284. His projected release date is

March 28, 2024.

Despite having only begun to serve his sentence, Hunt-Irving argues that

he will be irreparably prejudiced by the granting of a three-week extension of

time. He asserts that “[i]f his appeal succeeds, he would not get back the time

spent waiting for the government’s brief.” Response 1. This is true of any

incarcerated defendant. Hunt-Irving has not shown any extraordinary

circumstances that differentiate his situation from the norm, nor has he

demonstrated such a high probability of success on the merits as to justify an

assumption that any delay unjustly prolongs the imprisonment of an innocent

man.

Hunt-Irving’s primary argument on appeal is his claim that his prior felony

conviction 2 is so insignificant that conviction under Section 922(g)(1) violates his

2It may be more accurate to speak of Hunt-Irving’s felony convictions. He

pled guilty in a consolidated proceeding to two separate instances of tampering
with public records with intent to defraud, in violation of 18 Pa. C.S. §§ 4911(a),
(b).
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Second Amendment rights. No settled case law supports Hunt-Irving’s claim.

This Court has not yet ruled on whether prohibiting the possession of firearms by

a convicted felon is constitutional. Every other circuit to have ruled on the issue

has found that prohibiting felons from possessing firearms does not violate the

Second Amendment. See, e.g., Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019)

(collecting cases). Although some courts have admitted a possibility that a felon

might be able to bring an as-applied challenge to the Second Amendment, no

court has actually approved such a challenge. Id.

More notably, even if Hunt-Irving were to succeed on his Second

Amendment challenge, his sentence would be reduced by only eight months.

Hunt-Irving would have to remain in custody for more than four more years

before he would be at risk of losing the benefit of that hypothetical victory. The

wheels of justice may be reputed to turn slowly, but in the present case, they

assuredly will not turn that slowly.

Hunt-Irving’s challenge to his drug convictions is of little substance or

strength. He argues that the district court erred in failing to suppress evidence

found in his living quarters on the date of his arrest. Because he did not raise the

arguments on which he presently relies before trial, as required by Rule

12(b)(3)(C) of the Federal Rules of Criminal Procedure, those arguments have

been waived. United States v. Rose, 538 F.3d 175, 182 (3d Cir. 2008). Waiver

results not only where the defendant failed to file a suppression motion at all in

the district court, but also where he filed one but did not include the issues raised

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on appeal. Id. See also United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005)

(stating that “in the context of a motion to suppress, a defendant must have

advanced substantially the same theories of suppression in the district court as he

or she seeks to rely upon in this Court”).

Even if Hunt-Irving’s challenges to the evidence recovered during the

search of his living quarters were not waived, they would not result in the

invalidation of his drug convictions. The only evidence from the search that was

introduced at trial was a digital scale and $15,000 in cash found in a box at the

appellant’s bedside. 3 As the district court observed, Hunt-Irving’s drug

convictions were based on wiretap evidence recording his conversations with his

co-conspirators regarding packages of cocaine that they sought to obtain. See

United States v. Irving, 316 F. Supp. 3d 879 (E.D. Pa. 2018) (finding that Hunt-

Irving’s “all-consuming interest in the Federal Express package intercepted by

federal agents was compelling 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.”). It is beyond

unlikely that without the evidence of the digital scale and the cash the jury would

have acquitted Hunt-Irving.

3 Because the Section 922(g)(1) charge had been severed from the trial of
the drug charges, the two firearms found in Hunt-Irving’s home (an AK-47
assault rifle and a 9mm handgun) were not admitted or mentioned at trial.
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Hunt-Irving has thus failed to show that granting the government the

requested three-week extension (a period that includes a national holiday) would

prejudice him.

Hunt-Irving’s counsel further asserts that, if the government’s requested

extension is granted, the reply brief would be due during the holiday period,

when counsel has other plans. Response 3-4. Counsel states, that “[i]f granted,

the extension’s impact this time of year would likely necessitate another

extension.” Response 6. If appellant’s counsel does find himself in that situation,

the government would not oppose a request for a reasonable extension of time.

Hunt-Irving also takes the position that the government has already had

enough time to prepare its brief. He argues that government counsel should have

been working on the brief during the time that this appeal was still consolidated

with the appeal of co-conspirator Paris Church, and before Church had filed his

brief. By an order dated May 23, 2019, the Clerk of this Court had ordered that

the time for the government’s response would begin to run on the filing of the last

appellant’s brief. On October 15, 2019, the Clerk vacated the order in light of an

order the same day directing that Church’s three appeals would proceed on their

own.

Hunt-Irving argues that the government should have been preparing its

brief during this period before a due date had been set, and before it had even

received the brief of the third appellant. During this time, the government had no

way of knowing what appellant Church would argue, and to what extent, if any, it

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would affect the government’s position on the arguments raised by appellants

Hunt-Irving and Mills. Moreover, appellant’s counsel is not the only one who has

other obligations and due dates in other cases. It was perfectly reasonable, and

perhaps even absolutely necessary, for government counsel to devote their time

to matters that had present due dates, rather than a brief that would become due

at an uncertain date in the future.

The government’s request for an extension of time is legitimate, and

consistent with our practice in our cases, which this Court has regularly

approved. It was appropriate for the government to wait to address the appeal

until all consolidated briefs were filed, or the cases were unconsolidated. Then, at

that time, it became apparent that the time of trial counsel was consumed by

other matters, so the case was reassigned to another prosecutor. That prosecutor

is diligently preparing a brief, while also addressing her other caseload. The brief

in this case will, consistent with the standard expected by the Court,

comprehensively address the issues, particularly the relatively novel Second

Amendment claim. And with respect to that claim, we will consult as required

with Justice Department attorneys in Washington who are monitoring litigation

regarding that issue in the nation’s courts.

Hunt-Irving has not shown that he would suffer prejudice from the

government’s requested extension, nor has he demonstrated sufficient reason

that the extension should not be granted. Accordingly, the government

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respectfully requests that this Court extend the final due date of the brief for

appellee until December 17, 2019.

Respectfully yours,

WILLIAM M. McSWAIN
United States Attorney

/s Robert A. Zauzmer
ROBERT A. ZAUZMER
Assistant United States Attorney
Chief of Appeals

/s Emily McKillip
EMILY McKILLIP
Assistant United States Attorney

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CERTIFICATE OF SERVICE

I hereby certify that this pleading has been served on the Filing Users

identified below through the Electronic Case Filing (ECF) system:

R. Kerry Kalmbach, Esq.

kkalmbach@kalmbachlaw.com

Alan Gura, Esq.

Alan@gurapllc.com

/s Emily McKillip
EMILY McKILLIP
Assistant United States Attorney

DATED: November 26, 2019.