United States of America v. Mark Brantley

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 07-3575
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UNITED STATES OF AMERICA
v.
MARK BRANTLEY,
Appellant
____________________________________
On Appeal from a Conviction and Sentence
in United States District Court for the District of New Jersey
D.N.J. Criminal No. 05-cr-00669
District Judge: Honorable Dennis M. Cavanaugh
____________________________________
Submitted Under Third Circuit L.A.R. 34.1
September 11, 2008
Before: McKee, Smith and Weis, Circuit Judges
(Filed: August 27, 2009)
George S. Leone, Esq.
John F. Ramono, Esq.
Office of the U.S. Attorney
970 Broad Street
Room 700
Newark, New Jersey 07102-0000
Counsel for the Appellee

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Peter M. Carter, Esq.
Office of the Federal Public Defender
972 Broad Street
4 Floor th
Newark, New Jersey 07102-0000
Counsel for the Appellant
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OPINION
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McKee, Circuit Judge,
Mark Brantley appeals his conviction and the sentence that was imposed after a
jury found him guilty of unlawful possession of a firearm by a felon. As we shall explain,
although we have concerns about the trial proceedings, the record does not support any
relief, and we must therefore affirm the judgment of conviction and sentence.
I. Background
Brantley was arrested on June 3, 2005 in New Brunswick, New Jersey for being in
a location that was off-limits to him under a “Drug Offender Restraining Order”
(“DORO”) that a New Jersey court had entered against him the previous month pursuant
to New Jersey’s Drug Offender Restraining Order Act (“DORO Act”), N.J. Stat. Ann. §§
2C:35-5.4 et seq.
The arrest occurred after Police Lieutenant Paul Schuster observed Brantley
“walking into the area of Lee Ave. and Handy St.” Since Schuster knew that Brantley
was well within the area prohibited by the DORO, he directed Detectives Christopher
Plowucha and Ronoldy Martinez to arrest Brantley for violating the DORO. While
arresting him, Detective Martinez handcuffed Brantley and then conducted a limited “pat
down” search of his outer clothing for “any type of contraband.”

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Detective Martinez decided not to search Brantley more thoroughly at the time of
the arrest because a crowd had gathered across the street. Rather, the Detective thought it
best to quickly remove Brantley from the scene and do a more complete search at the
police station. After Brantley was taken to the police station, police discovered that he
was carrying a handgun, and he was charged with being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and (2).
Before the ensuing trial, Brantley filed a pretrial motion requesting an “innocent
possession” jury instruction. The judge reserved decision on the motion.
For reasons that are not at all apparent on this record, Brantley was brought into
the courtroom for his trial with shackles on his ankles. The record does not reveal who
made the initial decision to shackle Brantley, how that decision was made, or why it was
made. However, the Assistant United States Attorney raised the issue of shackling during
the trial, apparently in an effort to create a record that would support the restraint. In
response, the district court noted that Brantley posed no apparent security threat.
However, the judge explained, he never “second-guessed” the judgment of the United
States Marshals Service, who ensure the safety of the courthouse, and Brantley remained
shackled.
Before Brantley took the stand to testify in his own defense, defense counsel
objected to Brantley being shackled during his testimony. The district court stated: “I’m
going to make this very simple: I leave that up to the Marshals. They are the first line . . .
and if they want those shackles to stay on, they will stay on.” However, the Deputy
Marshal in the courtroom did not affirm the necessity for the restraints. Instead, he stated
that he would have to “defer to [sic] a supervisor before [they] could make that decision.”
The district court did not allow the Deputy to consult a supervisor, and instead ruled that
Brantley suffered “no unfair prejudice” by being shackled. Brantley was, thus, shackled

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In an effort to prevent the jury from seeing Brantley in shackles, the district court arranged1
for him to be taken to and from the witness box in the jury’s absence. The court also ordered
two Marshals to stand near Brantley so that the jury could not see Brantley’s legs or ankles as
they entered the jury box. Brantley objected to both the shackles and the arrangement with the
Marshals, arguing that the shackles and the Marshals’ proximity suggested that he was
incarcerated. The judge responded, “Mr. Brantley, you got yourself into that trouble, not
me. . . . You have exactly what you should have on under these circumstances. They’re
not coming off.”
The court’s response is as perplexing as it is confusing as the judge had himself earlier
confirmed that Brantley’s behavior and demeanor in the courtroom had been perfectly
appropriate.
4
for the duration of the trial.1
Brantley admitted to possessing the gun, but testified that he was headed to the
police department to surrender the gun when he was arrested. He explained that he did
not immediately turn over the gun because he was concerned that the police might
overreact “in the chaos of the arrest.” At the station, Brantley allegedly told Detective
Plowucha that he wanted to “lawfully surrender a handgun to the New Brunswick police
department.” According to Brantley, Plowucha “was shocked” and asked Brantley where
the gun was located. Brantley then lifted the back of his coat and exposed the handle of
the gun that was tucked into his waistband.
As noted at the outset, the jury convicted Brantley of being a felon in illegal
possession of a firearm, and the district court refused to give the requested “innocent
possession” instruction. It did so because: 1) the court believed that application of the
innocent possession defense to the charge of felon in possession of a firearm undermined
the congressional intent of keeping guns out of the hands of felons that is reflected in 18
U.S.C. § 922(g)(1); 2) the doctrine has not been accepted in this jurisdiction; and 3)
Brantley’s own testimony negated the factual predicate for the defense because Brantley
conceded that he made no effort to surrender the gun when he was first approached by the
police.

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The statute, however, sets a maximum term of imprisonment of 120 months.2
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The Presentence Report (“PSR”) calculated a guidelines range of 120 to 150
months imprisonment, and recommended that Brantley not receive a two-level2
downward adjustment for acceptance of responsibility. Brantley argued that his sentence
should be reduced because of his troubled upbringing, his drug addiction, his positive and
consistent relationship with his wife and children, and because he was already serving a
sentence of imprisonment. The district court denied the two-level adjustment for
acceptance of responsibility because Brantley had not “truthfully admitted to his
conduct.” The court also rejected Brantley’s arguments for leniency and imposed the
maximum sentence. This appeal followed.
II. Brantley Was Not Entitled to an “Innocent Possession” Charge
Brantley first argues that the district court erred in not giving an “innocent
possession” charge to the jury because he took possession of the firearm only so that he
could deliver it to police. See United States v. Mason, 233 F.3d 619, 623 (D.C. Cir. 2000)
(recognizing an innocent possession defense to a section 922(g)(1) charge and noting that
Congress could not have intended the “absurd” result of permitting a conviction based on
mere knowing possession). Brantley argues that the transitory and innocent possession of
a firearm is a defense to 18 U.S.C. § 922(g)(1), and that the instruction was justified by
the evidence. Appellant’s Br. at 18-31.
We review the trial court’s refusal to give a specific jury charge for abuse of
discretion. United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006). As the district court
recognized, this court has not ruled on the viability of the innocent possession defense in
the context of a section 922(g)(1) charge. The district court concluded that the charge
was not warranted by the evidence because Brantley had several opportunities to inform
police that he was carrying a gun before they discovered it. We agree.

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Even if we accept Brantley’s testimony that he voluntarily disclosed the gun and
surrendered it at the police station, it is not disputed that he was stopped on the street by
police, searched, and then driven to the police station before he said anything about
having a gun. He admits that he did not inform police that he had a gun at any point
before reaching the station. Brantley therefore conceded that he possessed the gun longer
than necessary to surrender it. See United States v. White, 552 F.3d 240, 249 (2d Cir.
2009) (declining to decide “whether to recognize an innocent possession in the section
922(g)(1) context,” but ruling that the trial court did not abuse its discretion in declining
to charge the jury on the defense where defendant “failed to adduce sufficient evidence
that he possessed the shotgun only for as long as necessary to vitiate a potential threat” to
a third party). Thus, even assuming arguendo that innocent possession is a viable defense
to a section 922(g)(1) charge and accepting Brantley’s testimony, we cannot conclude
that the district court abused its discretion in refusing to give the requested charge on this
record.
III. The Arresting Officers Properly Relied on the DORO
Brantley next claims that the statute authorizing the DORO that was imposed on
him and that was the basis of his arrest denied him substantive due process of law by
unduly restricting his movement. The DORO Act authorizes a court, upon application of
a law enforcement officer or prosecuting attorney under specified circumstances, to
prohibit certain persons from entering an area where the offense “occurred or is alleged to
have occurred or is affected by the criminal offense with which the person is charged.”
N.J. Stat. Ann. § 2C:35-5.7(a) referencing N.J. Stat. Ann. § 2C:35-5.6.
Brantley does not dispute that the DORO was issued by a judge, based on probable
cause, and pursuant to the statute. As the government correctly notes, police officers may
in good faith rely on the validity and constitutionality of laws passed by the legislature,
with the “possible exception” of laws “so grossly and flagrantly unconstitutional that any

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Brantley also contends that the DORO was issued in violation of his procedural due3
process rights because he was never given a meaningful opportunity to present evidence
to challenge any perceived necessity of issuing the restraining order, and that he was not
represented by counsel when the DORO was issued. However, Brantley has failed to
develop this argument. He offers nothing more than two unsupported and conclusory
sentences in his brief. See Appellant’s Br. at 38.
United States v. Van Sach, 458 F.3d 694, 699 (7th Cir. 2006) (“Shackling a defendant4
is an extreme measure and we understand the prejudice that such an order can have on the
jury.”); United States v. Baker, 432 F.3d 1189, 1244 (11th Cir. 2005) (“[T]he decision to
use shackles to restrain a defendant at trial should rarely be employed as a security
device.”) (internal citation omitted); Tyars v. Finner, 709 F.2d 1274, 1284 (9th Cir. 1983)
(“Shackling . . . must be limited to cases urgently demanding that action.”); Kennedy v.
Cardwell, 487 F.2d 101, 110 (6th Cir. 1973) (“[T]he general rule [is] that a fair trial
demands that a defendant be tried free of bonds except in extraordinary circumstances.”).
7
person of reasonable prudence would be bound to see [their] flaws.” Michigan v.
DeFillippo, 443 U.S. 31, 38 (1979); see Illinois v. Krull, 480 U.S. 340, 350-55 (1987).
Here, Brantley has not demonstrated that the DORO Act suffers from these infirmities.
Thus, the arrest was valid, and we need not dwell on Brantley’s contention that the
restraining order or the underlying ordinance was unconstitutional. 3
IV. The Use of Shackles
Brantley’s next claim is much more troubling. He argues that his Fifth
Amendment right to a fair trial was violated because he was shackled during his
testimony. We review the district court’s decision to require a defendant to wear shackles
for an abuse of discretion. Deck v. Missouri, 544 U.S. 622, 629 (2005).
It is well-settled that shackling a defendant during trial is an extraordinary
measure; “no person should be tried while shackled . . . except as a last resort.” Illinois v.
Allen, 397 U.S. 337, 344 (1970). As the Supreme Court more recently explained in Deck4
v. Missouri, shackling a defendant is inherently prejudicial because it implicates three
fundamental legal principles: 1) the presumption of innocence; 2) the right to counsel,

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Given the ignominious history and physical burden of shackles, it is no wonder that5
courts have long expressed concern that shackles may affect the mental state of the
defendant. See People v. Harrington, 42 Cal. 165, 168-169 (1871) (stating that shackling
“inevitably tends to confuse and embarrass [the defendant’s] mental faculties, and thereby
materially to abridge and prejudicially affect his constitutional rights of defense,”
especially regarding his ability to be a “competent witness and testify[] on his own
behalf”); Hauser v. People, 71 N.E. 416, 421 (Ill. 1904) (holding that physical bonds
“might tend to confuse or embarrass [the defendant’s] mental faculties”).
Many courts have laid out factors a trial court may consider in determining whether6
physical restraints are appropriate, some of them obvious. See, e.g., People v. Boose, 362
N.E.2d 303, 305-06 (Ill. 1977). Courts have also recommended holding a formal hearing,
during which the parties may present relevant evidence and suggest alternative security
measures. See, e.g., Kennedy, 487 F.2d at 107 (“Several courts, including this one, have
recognized that the physical indicia of innocence are so essential to a fair trial that the
better practice is to hold a hearing so that factual disputes may be resolved and evidence
of the facts surrounding the decision are made a part of the record.”).
8
including the right to participate in one’s defense and the right to testify ; and 3) judicial5
responsibility for the dignity and decorum that preserves the judicial process. Deck, 544
U.S. at 630-31. Thus, the Court concluded, “the Fifth and Fourteenth Amendments
prohibit the use of physical restraints visible to the jury absent a trial court determination .
. . that they are justified by a state interest specific to a particular trial.” Id. at 629.
Accordingly, the trial judge “must make a case specific and individualized
assessment” of the defendant on trial, taking into account special security needs or the
escape risk of the defendant. Baker, 432 F.3d at 1244 (citing Deck, 544 U.S. at 633).6
The judge must also consider alternatives to shackling. See Allen, 397 U.S. at 344; see
also Szuchon v. Lehman, 273 F.3d 299, 314 (3d Cir. 2001) (holding that the trial court
properly ordered that defendant be shackled after defendant violently assaulted a witness
in front of the jury and after carefully considering alternatives, such as “barring [the
defendant] from the courtroom or issuing a contempt citation”). “[T]he defendant need
not demonstrate actual prejudice to make out a due process violation. The State must
prove ‘beyond a reasonable doubt that the [shackling] error complained of did not

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Although the argument is not well-developed by Brantley, the same analysis applies7
to his argument that the Marshals’ proximity to him during his testimony may have
caused the jury to infer that he was dangerous or a risk of flight. Yet, we are similarly
troubled by the court’s failure to recognize the risk of prejudice that could have resulted
from stationing Marshals near Brantley while he was on the witness stand.
The government presented testimony that the gun was manufactured in Maryland.8
Brantley was in New Jersey at the time of his arrest.
Although the AUSA attempted to justify shackling Brantley by referencing his extensive9
record, it is a regrettable fact that Brantley’s record is no more imposing or threatening than that
of many others who pass through the nation’s courtrooms. Yet, countless scores of other
defendants with similar or worse criminal records are tried every day without shackles and
without incident. This is especially true given the high volume of cases involving drug
traffickers that have become the daily fare of all too many federal trial courts. See United
States v. Navarro, 476 F.3d 188, 191-92 (3d Cir. 2007) (“Possession of a gun is often a
practical prerequisite for the sale of controlled substances or commission of other violent
acts.”).
Therefore, if shackling is justified based only upon Brantley’s criminal record, very few
defendants would be able to stand trial in, much less enter, the nation’s courtrooms free of
shackles and restraints. See United States v. Miller, 531 F.3d 340, 346 (6th Cir. 2008)
9
contribute to the verdict obtained.’” Deck, 544 U.S. at 635 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)).
Nevertheless, even though nothing on this record establishes that the district court
undertook the inquiry it should have before allowing Brantley to be shackled during his
trial, we can conclude beyond a reasonable doubt that Brantley’s shackles did not
contribute to the verdict or undermine his testimony. When he testified, Brantley
admitted two of the three elements of the crime he was charged with, and he did not
contest the third. Brantley testified that he was a felon and admitted that he possessed7
the gun in question, and the government’s testimony regarding interstate commerce was
not disputed.8
To be clear, however, we are extremely troubled by the district court’s decision to
allow Brantley to remain shackled in the courtroom with absolutely no inquiry into the
necessity for that drastic action and certainly no finding that would support it. As noted9

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(holding “neither [defendant’s] lack of honesty nor his potential prison sentence–without
evidence indicating that he posed a threat to courtroom security–suffices as such an
essential interest. Were we to accept the government’s position . . ., the implementation
of physical restraints would become essentially routine in federal drug and firearm
prosecutions. This is clearly beyond what the Constitution permits.”).
Lopez v. Thurmer, 573 F.3d 484, 2009 WL 2169205, *6 (7th Cir. 2009) (noting that10
the “constitutional infirmity” of allowing law enforcement officials to make decisions
implicating due process “is, to put it mildly, firmly established”); Miller, 531 F.3d at 346
(holding that “[b]y deferring to the Marshals’ judgment [regarding the use of a stun belt],
the district court abdicated its responsibility and thus abused its discretion.”); United
States v. Mayes, 158 F.3d 1215, 1226 (11th Cir. 1998) (holding that “trial judges should
not blindly defer to the recommendation of law enforcement officials as to the
appropriateness of shackling without independently reviewing the facts and
circumstances thought to warrant such a security measure and carefully considering the
legal ramifications of that decision”); Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995)
(holding that “[i]n determining what restraints are necessary, the court cannot properly
delegate that decision to guards or other prison officials but must decide that question for
itself”).
10
above, the court stated that it would completely defer to the Marshals in the courtroom.
In doing so, the court abdicated its discretion, and thereby abused that discretion. Ray v.
Robinson, 640 F.2d 474, 478 (3d Cir. 1981) (“If a district court fails to exercise its
discretion, that is itself an abuse of discretion.”). It is the judge’s responsibility to10
ensure that defendants receive due process and fundamental fairness; it is not the job of
the U.S. Marshals.
The shackling here is rendered even more troubling when we consider that the
Marshals were not prepared to justify a decision to keep Brantley in shackles. When
asked for their view, they requested leave to discuss the issue with their supervisor, but
the court denied that request. Rather than indulge the Marshals and tolerate a brief delay
to determine why shackling might be necessary, the court pressed forward requiring
Brantley to suffer the inherent indignity of being shackled during his trial. The court did
this based upon its conclusory finding that there was “no unfair prejudice.” In the

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absence of a documented need for the restraint, declaring “no unfair prejudice” is hardly
consistent with the court’s solemn obligation of ensuring that those who come before it
are treated with appropriate dignity and afforded due process. A declaration of “no unfair
prejudice” is no substitute for a meaningful inquiry into the need to restrain a defendant
during trial, and it cannot cure the injury that results to the decorum of the courtroom or
the dignity of the individual if restraints are not actually necessary.
Furthermore, the district court’s focus on obscuring the shackles from the jury’s
view was misguided. Visible shackles, without justification specific to the defendant,
clearly violate due process. Deck, 544 U.S. at 629. Although courts can take measures to
obscure shackles – and should do so even in the rare circumstances that justify shackling
– obscured shackles are no less an indignity than visible ones. Moreover, relief may still
be appropriate even despite efforts to hide restraints from the jury. See, e.g., Rhoden v.
Rowland, 172 F.3d 633, 637 (9th Cir. 1999) (granting habeas petition based on evidence
that the jury saw defendant’s shackles during a trial in which the trial judge instructed
defendant to keep his legs under counsel table and escorted defendant to and from the
courtroom outside the jury’s presence in order to hide the shackles).
Here, though the district court made many efforts to conceal them, Brantley’s
shackles may have been visible to jurors during at least part of his testimony. The record
reflects that the witness box had spindles through which jurors may have been able to see
his legs. In the middle of Brantley’s testimony, after realizing the possibility that the
shackles might be visible to the jury, the court decided to put a chair in front of the
witness stand. As noted above, the court also placed two Marshals near Brantley in an
effort to hide the shackles from the jury while they entered and exited the jury box.
Though such contortions may successfully obscure shackles from the jury’s view, see
United States v. Tagliamonte, No. 07-4275, 2009 WL 2430937, *6-*7 (3d Cir. Aug. 10,

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In Tagliamonte, a defendant was tried in shackles before the same trial judge after11
the judge took precautions to ensure that the shackles could not be seen by the jury. We
would not expect a judge to allow defendants to be routinely shackled. Tagliamonte, like
Brantley, was not able to demonstrate prejudice. Tagliamonte could not do so because it
was clear that the jury did not see the shackles. As we have explained, Brantley cannot
do so because his testimony virtually conceded the elements of the crime he was charged
with.
Moreover, courts must consider the implications of shackles on the other12
fundamental legal principles laid out in Deck, including the impact on the defendant’s
ability to participate in his defense and the dignity of the defendant. See Deck, 544 U.S.
at 630-31.
12
2009), courts unnecessarily risk the defendant’s fundamental right to a fair trial by11
relying on them. It is also highly risky to assume that the same jurors whom we expect12
to be alert and attentive during trial will not notice the sudden and unexplained
appearance of a chair in front of the jury box or Marshals standing near the defendant as
he testifies.
Although Brantley is not entitled to relief, no court should take imposing restraints
lightly or cavalierly. Unjustified shackling is a remnant of an earlier era when the
accused was brought from prison to the courtroom in chains, unkempt and wearing (at
best) prison attire, following which he was exposed to a jury in the worst possible light.
The practice evokes the dehumanizing specter of slavery, and is far from the law’s
promise of respect owed to each individual, including the accused. See Allen, 397 U.S. at
350-51 (Brennan, J., concurring) (concluding that shackling and gagging offend “not only
judicial dignity and decorum, but also that respect for the individual which is the
lifeblood of the law”). It is an extreme measure, that the Supreme Court considers “a last
resort.” Any court considering such an extreme measure must first establish that it is
actually necessary, not simply a matter of practice or convenience. And in making such a
determination, a district judge must scrupulously “make a case specific and individualized
assessment” that supports his decision to shackle a defendant and provides a reviewing

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court with an adequate record. There is certainly nothing convenient about requiring
anyone to suffer the indignity of shackling unless his or her own conduct justifies it. We
will therefore not hesitate to order a new trial for this kind of abuse of discretion in an
appropriate case.
V. The District Court Properly Denied a Downward Adjustment for Acceptance of
Responsibility
Finally, Brantley claims that the district court erred in refusing to grant a two-level
guideline reduction for acceptance of responsibility. “We review factual findings
underlying the denial of a Sentencing Guidelines reduction for acceptance of
responsibility for clear error . . . .” United States v. Lessner, 498 F.3d 185, 199 (3d Cir.
2007). This argument is puzzling because, as the government notes, Brantley did not
accept criminal responsibility. Rather, he vigorously argued that he did not have the
mens rea required to commit the offense he was charged with, and adheres to that
position even now. Brantley does not simply challenge the constitutionality of his arrest;
instead, he has consistently maintained that he was on his way to the police station to
surrender the gun when he was apprehended even though, as the district court determined
and as we have explained, his own testimony fatally undermines that claim. In denying
the acceptance of responsibility reduction, the district court found that Brantley had not
“truthfully admitted to his conduct,” and the “facts [ad]duced at trial do not support” his
claim that he was attempting to return the firearm. We agree.
VI. Conclusion
For the foregoing reasons, we will affirm the judgment of conviction and sentence.

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