United States of America v. James Perrin

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 22-2196, 22-2368
____________
UNITED STATES OF AMERICA
v.
JAMES PERRIN,
Appellant 22-2196
UNITED STATES OF AMERICA
v.
PRICE MONTGOMERY,
Appellant 22-2368
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Nos. 2:14-cr-00205-002, 2:14-cr-00205-001)
Chief District Judge: Honorable Mark R. Hornak
____________
Argued September 19, 2024
____________
BEFORE: RESTREPO, McKEE and SMITH, Circuit Judges
(Filed: August 25, 2025)
____________
Keith M. Donoghue [ARGUED]
Brett G. Sweitzer
Lisa Evans Lewis

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Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
(Attorney for Appellant Perrin)
Evan J. Austin [ARGUED]
Alison Brill
K. Anthony Thomas
Office of the Federal Public Defender
For the District of New Jersey
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609
(Attorneys for Appellant Montgomery)
Matthew S. McHale [ARGUED]
Laura S. Irwin
Eric G. Olshan
Officer of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
(Attorneys for Appellee)
____________
OPINION OF THE COURT
____________
RESTREPO, Circuit Judge
Price Montgomery and James Perrin ran a profitable
drug distribution business, trafficking hundreds of thousands
of dollars’ worth of heroin into Pennsylvania. A jury convicted
both men of numerous drug and gun possession offenses.
Additionally, Montgomery was convicted of witness tampering
offenses arising from the killing and attempted killing of two
women, respectively. On appeal both men raise multiple
claims of trial and sentencing errors. We will affirm Perrin’s
convictions and judgments of sentence. As for Montgomery,
we will affirm his convictions and judgments of sentence
except the term of imprisonment ordered for using a firearm to

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kill a witness, which we will vacate and remand for
resentencing consistent with this opinion.
I.
a. The wiretap application.
In the summer of 2013, an informant provided
information about Montgomery’s drug dealing to the
Organized Crime Unit of the Pennsylvania Attorney General’s
Office. Working with the federal Drug Enforcement Agency
(DEA) and the Pittsburgh police, the Unit began an
investigation into Montgomery’s heroin-trafficking business.
The investigation progressed until it became a topic of
discussion at the Office’s senior leadership meetings, attended
by both then-Attorney General Kathleen Kane (AG Kane) and
First Deputy Attorney General Adrian King.
Beginning in early 2014, AG Kane expressed her
support for pursuing a wiretap to further the investigation,
which had become a top priority for the Office’s criminal
division. Agents from the Organized Crime Unit and DEA
began preparing the application to wiretap Montgomery’s
cellphone with the intention of having AG Kane authorize and
submit it on April 14, 2014. On that day, however, AG Kane
was scheduled to travel outside the country. Before she left,
AG Kane had her assistant Kathryn Smith prepare a letter
designating First Deputy King as the acting Attorney General
in her absence. AG Kane reviewed the letter but did not sign
it, instructing Smith to call and get her permission before
signing her name. The evening before her departure, AG Kane
spoke with King about the wiretap and verbally authorized him
to sign the application in her absence.
On the morning of April 14th, First Deputy King
informed Smith that the designation letter needed to be signed
before the wiretap application could be submitted. After
making numerous attempts to reach AG Kane, Smith signed
Kane’s name at King’s direction. Upon hearing the letter had
been signed, AG Kane expressed displeasure but made no
attempt to rescind the designation letter or withdraw the
wiretap application. The wiretap application, signed by King,
was approved by Pennsylvania Superior Court Judge Mary
Jane Bowes on April 16, 2014.
Over the course of that summer, AG Kane approved a
continuation of the original wiretap as well as submitted

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additional applications to wiretap Perrin’s phone and a second
phone belonging to Montgomery. These applications were also
approved by a Pennsylvania state court judge. All told, these
wiretaps provided a significant amount of evidence,
establishing both the participants and innerworkings of the
drug trafficking conspiracy.
b. Evidence of drug trafficking and witness tampering.
The investigation revealed that Montgomery ran a drug-
trafficking operation that sourced heroin from Newark, New
Jersey to be sold in Pittsburgh, Pennsylvania. Tina Crawford
acted as a courier, driving the heroin into Pittsburgh in the trunk
of a rental car. Co-defendant Perrin, who agents saw with
Montgomery “countless times,” supported the business in
numerous ways, including traveling with Montgomery to
Newark and buying the heroin. A1272.
On June 8, 2014, agents observed Perrin and
Montgomery return to Montgomery’s house from a trip to
Newark. Both men carried bags from the car into the house;
Perrin had a suitcase and Montgomery had a brown backpack
that agents had seen him carry when meeting with his source.
After several hours, the two men left the house and returned to
the car. This time the agents stopped the car, arrested both men,
and conducted a search. The brown backpack had been at
Perrin’s feet and contained approximately 125 bricks of heroin,
$1,600 in cash, and seven cell phones. After securing a
warrant, the agents searched Montgomery’s house. There they
found a suitcase containing 1,500 bricks of heroin, over
$21,000 in cash, 16 firearms, and multiple rounds of
ammunition.
Seven of the firearms recovered had been acquired
illegally in January 2014. Acting on Montgomery’s behalf,
Perrin exchanged cash and heroin for 10 guns and ammunition
from Jeremiah Pashuta, a heroin addict who had stolen the guns
from his brother.1 One of the guns was a rare .22 Magnum Kel-
Tec PMR-30. Pashuta provided ammunition for the Kel-Tec,
which required a particular brand of .22 Magnum bullets.
1 Pashuta’s brother later testified at trial and identified seven of
the guns recovered from Montgomery’s home as among those
stolen from him.

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While the Kel-Tec gun was not recovered during the search of
Montgomery’s house, agents found .22 Magnum bullets.
The next day, on June 9, 2014, agents searched the home
of Tina Crawford, Montgomery’s courier who had transported
heroin from Newark to Pittsburgh approximately eight times.
Tina spoke with the agents conducting the search and admitted
her role in the drug-trafficking operation. Montgomery, who
had posted bond and been released from custody, visited Tina
after the search. Tina told Montgomery that she shared no
information with the agents. Later, however, she confided to
their mutual friend Khrysta Brown that she told the agents she
transported bags for Montgomery but did not know what they
contained. She also told Brown that she had to meet with an
attorney. Brown, acting as an intermediary, relayed her
conversations with Tina to Montgomery.
After the search of her home, Tina moved in with her
mother, Patsy Crawford. On August 22, 2014, Tina and Brown
exchanged text messages. Approximately thirty-five minutes
later, Tina left the house with Patsy, who had agreed to drive
Tina to a meeting with federal prosecutors after her ride failed
to show. Upon reaching Patsy’s car, the two women were
ambushed in their driveway. Two or three assailants opened
fire and continued to shoot until a neighbor came out of her
house and screamed. The assailants, who masked their faces
with the hoods of their sweatshirts, fled the scene in a car. Tina
Crawford was shot eight times and died on the floor of the
garage; her body lay next to the passenger side of the car.
Patsy, found on the driver’s side, had been shot multiple times
but remained conscious and was yelling for her daughter. A
police sergeant at the scene described Patsy as being in critical
condition.
Law enforcement recovered twenty-four casings from
the scene, including casings from the .22 Magnum bullets used
in the rare Kel-Tec handgun Perrin bought from Pashuta. Also
recovered was an abandoned cellphone on the sidewalk near
the Crawfords’ home. Investigators tied the phone to
Montgomery by comparing its contact lists, call logs, and
frequently used cell towers to another one of his cell phones.
Montgomery was also tied to the phone through DNA
analytics, which identified him as a possible match for the
DNA found on the phone.

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At the time of the murder, Montgomery was free on
bond awaiting state charges. Immediately after the murder he
violated the terms of his bond and fled Pittsburgh. He was
found living in Columbus, Ohio under a false name in February
2015. Perrin also went on the run but was later taken into
custody.
c. Charges
On April 4, 2016, Montgomery and Perrin were charged
by a grand jury of multiple crimes: Count 1 charged both men
with conspiring to possess with the intent to distribute heroin
from on or about April 2013 to June 2014; Count 2 charged
both men with possession with intent to distribute heroin “on
or about June 8, 2014,” the day of their initial arrest; Counts 3
and 4 charged each man, respectively, with unlawful
possession of a firearm as a convicted felon also “on or about
June 8, 2014”; and Count 5 charged both men with possessing
firearms in furtherance of a drug trafficking crime, which the
indictment specified as the possession with intent to deliver
heroin charge in Count 2. A178-85.
Montgomery was charged with additional counts:
Count 6 charged him with conspiring to launder money;
Counts 7 and 9 charged him with killing Tina Crawford and
attempting to kill her mother, Patsy, to prevent them from
communicating with law enforcement; Count 8 charged him
with using a gun to kill Tina, a crime committed “with malice
aforethought” and “by shooting her with a firearm willfully,
deliberately, maliciously and with premeditation”; and Count
10 charged him with using a gun to commit the attempted
murder of Patsy Crawford. Montgomery was also charged as
an accomplice for each of these counts. A186-91. 2
2 The specific charges associated with each count are as
follows: Count 1 charged violations of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A)(i); Count 2 charged violations of 21
U.S.C. §§ 841 (a)(1), (b)(1)(A)(i); Count 3 charged violations
of 18 U.S.C. §§ 2, 922(g)(1), 924(e); Count 4 charged
violations of 18 U.S.C. §§ 2, 922(g)(1); Count 5 charged a
violation of 18 U.S.C. § 924(c)(1)(A)(i); Count 6 charged a
violation of 18 U.S.C. § 1956(h); Counts 7 and 9 charged
violations of 18 U.S.C. §§ 2, 1512(a)(1)(C); Count 8 charged a
violation of 18 U.S.C. §§ 2, 924(c)(1)(A), (c)(1)(C)(i), (j)(1);

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d. Motion to suppress.
Prior to trial, both Montgomery and Perrin sought to
suppress the evidence derived from the wiretap of
Montgomery’s phone under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2516-18.
They argued suppression was warranted under Title III because
the wiretap order was issued in violation of applicable state
law, namely the Pennsylvania Wiretapping and Electronic
Surveillance Control Act, 18 Pa. C.S. § 5701 et seq. (the
Wiretap Act). Montgomery and Perrin argued the Act required
that the wiretap application be signed by an official AG Kane
had designated in writing. Because AG Kane had not signed
the written designation letter herself, they claimed the
application signed by First Deputy King was unauthorized
under both federal and state law and that all wiretapped
evidence should therefore be suppressed.
The District Court denied the motion, ruling that
Pennsylvania law allows for non-written designations in
circumstances where, as here, the Attorney General is absent
“in circumstances fraught with uncertainty as to her
whereabouts and accessibility.” A47. Specifically, the Court
found that First Deputy King was authorized to sign the
application under both Pennsylvania’s Administrative Code,
71 P.S. § 73, and the Commonwealth Attorneys Act, 71 P.S. §§
732-201, 762. It further ruled that, because the wiretap
application was authorized under Pennsylvania law, the
requirement in Title III subsection 2516(2) that a “high-ranking
executive law enforcement official approve such an
application” was satisfied. A52.3
e. Verdict and sentences
In November 2018, a jury convicted Montgomery and
Perrin of all counts. Montgomery was sentenced to life
and Count 10 charged violations of 18 U.S.C. §§ 2,
924(c)(1)(A), (c)(1)(C)(i).
3 Also prior to trial, the District Court ordered the parties to
submit an agreed-upon set of proposed jury instructions. The
government complied, submitting instructions with a statement
that the instructions had been approved by the parties. Neither
Perrin nor Montgomery raised objections to the instructions
before or during the trial.

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imprisonment for the killing of Tina Crawford, with an
additional consecutive term of eighty years imprisonment for
the remaining counts. Perrin was sentenced to 380 months
imprisonment, followed by ten years supervised release. This
appeal followed. 4
II.5
In an argument joined by co-defendant Montgomery on
appeal, Perrin challenges the District Court’s denial of their
joint motion to suppress. He argues suppression of the wiretap
evidence was warranted because the Pennsylvania Attorney
General’s wiretap application was unauthorized under both
federal and state law. His challenge is two-fold. First, he
argues that Title III prohibits a state’s principal prosecuting
attorney from delegating their authority to apply for wiretaps,
rendering the application signed by First Deputy King directly
violative of 18 U.S.C. § 2156(2).6 Second, he appeals the
4 Specifically, the District Court sentenced Perrin to an
aggregate term of imprisonment of 320 months for Counts 1, 2
and 3 to run concurrently with one another, with the sentence
of 60 months for Count 5 to run consecutively. For
Montgomery, the Court imposed a life sentence for Count 7
with the sentences for Counts 1, 2, 4, 6, and 9 to run
concurrently. Consecutive to the life sentence, the Court
imposed an aggregate term of imprisonment of 960 months for
Counts 5, 8, and 10.
5 The District Court had subject matter jurisdiction under 18
U.S.C. § 3231. We have appellate jurisdiction under 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291.
6 The relevant text of 18 U.S.C. § 2516(2) is as follows:
(2) The principal prosecuting attorney of any
State, or the principal prosecuting attorney of
any political subdivision thereof, if such attorney
is authorized by a statute of that State to make
application to a State court judge of competent
jurisdiction for an order authorizing or approving
the interception of wire, oral, or electronic
communications, may apply to such judge for,
and such judge may grant in conformity with

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denial of his suppression motion, again raising the claim that
the application was unauthorized under state law because King
was not designated in writing as required by Pennsylvania’s
Wiretap Act. This alleged failure to abide by Pennsylvania law,
the argument goes, indirectly violated Title III because it
transgressed the Act’s core concern of establishing
accountability for the wiretap’s execution. Perrin argues these
alleged violations rendered the wiretap application
unauthorized and the resultant evidence unlawfully
intercepted. Because we conclude Title III’s authorization
requirements have been substantially complied with and the
Act’s statutory purpose has been satisfied, we agree with the
District Court that suppression is not warranted.
To prove suppression of the wiretapped evidence is
justified, Perrin and Montgomery must first establish the
government unlawfully intercepted their wiretapped
communications. 18 U.S.C. § 2518(10)(a)(i).7 They must then
section 2518 of this chapter and with the
applicable State statute an order authorizing, or
approving the interception of wire, oral, or
electronic communications by investigative or
law enforcement officers having responsibility
for the investigation of the offense as to which
the application is made, when such interception
may provide or has provided evidence of the
commission of the offense of . . . dealing in
narcotic drugs, marijuana or other dangerous
drugs . . . or any conspiracy to commit any of the
foregoing offenses.
7 The text of 18 U.S.C. § 2518(10)(a)(i) is as follows:
(10)(a) Any aggrieved person in any trial,
hearing, or proceeding in or before any court,
department, officer, agency, regulatory body, or
other authority of the United States, a State, or a
political subdivision thereof, may move to
suppress the contents of any wire or oral
communication intercepted pursuant to this
chapter, or evidence derived therefrom, on the
grounds that—

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prove the unlawful interception violated “those statutory
requirements that directly and substantially implement the
congressional intention to limit the use of intercept procedures
to those situations clearly calling for the employment of this
extraordinary investigative device.” United States v.
Giordano, 416 U.S. 505, 527 (1974). We must therefore
identify which requirements “occupy a central, or even
functional, role in guarding against unwarranted use” of
wiretaps. United States v. Chavez, 416 U.S. 562, 578 (1974).
Relevant to this appeal are the requirements for the
authorization of state wiretap applications set forth in Title III’s
subsection 2516(2), intended to “establish uniform standards .
. . governing the authorization of interceptions, and to ensure
adherence to these standards through centralizing
responsibility in top level state and county prosecutors who can
be held accountable for departures from preestablished policy.”
United States v. Smith, 726 F.2d 852, 856 (1st Cir. 1984).
Because we are primarily concerned with implementing
Congress’s intent, not every failure to comply with state or
federal authorization requirements warrants suppression.
Suppression motions premised on authorization errors can be
denied “on the ground of substantial compliance with Title III
requirements.” Chavez, 416 U.S. at 568 n.2. Put another way,
when assessing such alleged errors, this Court will not suppress
evidence over a mere technical defect in authorization
procedures if the statute’s underlying purpose has been met.
United States v. Acon, 513 F.2d 513, 517 (3d Cir. 1975).
Perrin argues, for the first time on appeal, that the
Pennsylvania Attorney General’s application directly violated
Title III because subsection 2516(2) does not allow a state’s
principal prosecuting attorney to delegate their authority to
apply for a wiretap. His argument is premised on the plain
language of Title III’s section 2516, which identifies those
officials who are authorized to submit wiretap applications.
While the subsection addressing federal wiretaps names the
delegate of the United States Attorney General as such an
official, see 18 U.S.C. § 2516(1), the subsection addressing
state wiretaps does not name the delegate of a state’s principal
prosecuting attorney as having such authority, see 18 U.S.C. §
(i) the communication was unlawfully
intercepted.

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2516(2). Perrin contends this omission means that such a
delegation violates Title III. He argues in the alternative that,
if such a delegation of authority is permitted on the state level,
the principal prosecuting attorney of a state must personally
review the wiretap application to substantially comply with the
purpose behind Title III’s authorization requirements. Perrin
contends AG Kane’s alleged failure to personally review the
Montgomery wiretap application signed by First Deputy King
rendered it unauthorized.
Because this argument regarding the direct violation of
subsection 2516(2) was not raised before the suppression court,
we will review for plain error. “Under that test, before an
appellate court can correct an error not raised at trial, there
must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]
substantial rights.’” Johnson v. United States, 520 U.S. 461,
466-67 (1997) (alteration in original) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). To be “plain,” an error must
be “clear under current law.” Id. at 467 (internal quotation
marks omitted). Even if these three conditions are met,
however, we may exercise our discretion to correct the error
only if it (4) “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (alternation in original)
(quoting Olano, 507 U.S. at 732) (internal quotation marks
omitted).
We disagree that subsection 2516(2) prohibits a state’s
principal prosecuting attorney from delegating their authority
to approve and submit wiretap applications. Instead, the statute
recognizes that whether such a delegation is permitted is
dictated by state law, not by Title III. The plain language of
subsection 2516(2) defers to state statutes three times to
illustrate Congress’s intention to keep procedures for
authorizing wiretaps under a state’s purview when
implementing Title III’s statutory mandates. 18 U.S.C. §
2516(2); United States v. Johnson, 696 F.2d 115, 121 (D.C. Cir.
1982). Interpreting subsection 2516(2) to render null and void
those Pennsylvania statutes allowing the state Attorney
General to delegate his or her authority would be diametrically
opposed to Congress’s clear direction.8
8 The Senate Report introducing subsection 2516(2) expressly
stated that “[t]he issue of delegation by that [state’s principal
prosecuting attorney] would be a question of State Law.” S.

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In addition to consistency with Congressional intent,
allowing state principal prosecutors to delegate their authority
makes good sense. We agree with the Second and Ninth
Circuits that “Congress simply could not have intended that
local wiretap activity would be completely suspended during
the absence or disability of the official specifically named in
[Section 2516(2)].” United States v. Perez-Valencia, 727 F.3d
852, 855 (9th Cir. 2013) (quoting United States v. Fury, 554
F.2d 522, 527 n.4 (2nd Cir. 1977)). Where the principal
prosecutor of the state is unavailable or indisposed, as was the
case here, it would be unreasonable to expect all state wiretap
applications to remain on hold.
Rep. No. 1097, 2187, 90th Cong. 2d Sess. (1968). The report
explained that the state officer authorized to apply for a wiretap
would depend on “not name but function” and who serves that
function would be dictated by state law. Id. Those laws would,
in turn, serve to create a “centralization of policy” regarding
electronic surveillance. Id. Senator McClellan, when
presenting Title III on the senate floor, recognized that state
laws would permit such a delegation of authority:
Initially, approval of all applications will have to
be secured from the appropriate chief
prosecuting officer. On the federal level, that
will be the Attorney General or his special
designee, while on the state level, that will be the
State Attorney General or the District Attorney
of a county or their special designees. This
provision will centralize authority and
responsibility for the formulation of policy in
this area in a visible, usually political
accountable, individual. This should be a strong
safeguard against abuse.
114 Cong. Rec. 11,208 (1968) (emphasis added). Indeed, more
than merely approving wiretap applications, Congress
acknowledged that state designees could further Title III’s
statutory purpose of bringing uniformity and accountability to
the use of electronic surveillance. Id.

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Perrin argues in the alternative that, if the authority to
apply for a wiretap can be delegated under subsection 2516(2),
the principal prosecuting attorney must remain actively
involved and be personally familiar with the application to
satisfy Congress’s objectives in enacting Title III.9 He claims
that such a requirement was not met in this case, where there
was “no sign Kane personally reviewed the wiretap
application” or was even aware of the circumstances justifying
electronic surveillance. Perrin Br. 32. The government
counters that there is no such “personal review” requirement in
this Circuit or any other and, to the extent familiarity with the
application was required under Title III, AG Kane in this
instance was actively involved in the process of applying for
the wiretap.
Given the absence of precedent in this Circuit clarifying
the role a state’s principal prosecuting attorney must play after
delegating their authority to apply for a wiretap, we first hold
that any error in the Attorney General’s review of the
application post-delegation was not plain. We will find plain
error only if it is “absolutely clear legal norms compel that
conclusion.” United States v. Cammarata, 129 F.4th 193, 224
(3d Cir. 2025) (internal citations omitted). Second, we note
that the plain text of subsection 2516(2) does not prescribe
what role a principal prosecuting attorney should play after
delegating their authority. Instead, as discussed above, we
interpret the subsection to leave the issue of delegation by the
principal prosecutor to state law, which means state
legislatures—not federal courts—determine the scope and
nature of the designees’ duties. Even if Title III preempts a
9 Perrin supports this argument by citing cases from the First
and Ninth Circuits. See e.g., United States v. Smith, 726 F.2d
852, 859 (1st Cir. 1984) (holding “[t]he detailed review by a
district attorney of every application for a proposed use of
electronic surveillance on a case by case basis . . . would seem
to satisfy fully the congressional objectives”); Villa v.
Maricopa County, 865 F.3d 1224, 1234 (9th Cir. 2017)
(holding that substantial compliance with Title III requires that
principal prosecuting attorney be “personally familiar” with
the facts underlying an application). See also United States v.
Lyons, 740 F.3d 702, 721 (1st Cir. 2014) (noting that
Massachusetts law requires principal prosecuting attorney to
“personally review” the wiretap application).

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state’s wiretapping laws, that does not give this Court license
to dictate what roles state officers play. Our role is to determine
whether the officers have substantially complied with Title
III’s statutory requirements. If this Court were to dictate the
conduct of a state’s principal prosecuting attorney after they
had exercised their statutory right to delegate their authority,
we run the risk of intruding into an area which Congress has
deemed best left for state law. Not only would we be
overreaching if we were to define the role of Pennsylvania’s
Attorney Generals but not their federal counterparts, we would
be implying that state officials require special scrutiny and
oversight.10
We therefore decline Perrin’s invitation to hold that AG
Kane violated Title III by not “personally reviewing” the
wiretap application after she delegated her authority to submit
the application. Not only does Title III’s plain language not
support such a holding, but requiring such a level of personal
involvement invites non-compliance. If the principal
prosecuting attorney designated her authority in anticipation of
an extended absence, expecting her personal review of each
wiretap application would be unreasonable and possibly
unattainable. We therefore conclude that the designee of the
state’s principal prosecuting attorney, if properly authorized
under state law, may submit a wiretap application under
10 The Ninth Circuit recognized that, in reviewing wiretap
applications out of the federal Attorney General’s office, there
is “no requirement in 18 U.S.C. § 2516 or anywhere else that
the authorizing official explain the reasons for [giving his
authorization].” United States v. Martinez, 588 F.2d 1227,
1233 (9th Cir. 1978). Instead, “[o]nce a proper authorizing
officer is properly identified, . . . thereby fixing on him the
responsibility for a particular authorization,” compliance with
subsection 2516(1) is met. United States v. Turner, 528 F.2d
143, 151 (9th Cir. 1975). The reasons or methods used in
giving such authorization are not subject to review by courts;
“[r]ather it is []presumed that the officer has properly exercised
the judgment called for by the statute” when they sign their
name to authorize a wiretap application. Id. (rejecting
argument that the Attorney General or specially designated
Assistant Attorney General must personally review facts in
application). We can think of no reason why the same
deference should not be awarded a state’s counterpart.

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subsection 2516(2). Our purview, therefore, is to determine
whether the application meets the authorization requirements
of Title III and whether Title III’s protections against
unwarranted wiretaps are upheld. Chavez, 416 U.S. at 578.
This brings us to the claim Perrin and Montgomery
raised before the suppression court: that First Deputy King was
not authorized under Pennsylvania law to submit the wiretap
application because AG Kane failed to sign the letter granting
him such authority. They argued that the alleged violation of
Pennsylvania law meant King was not authorized to submit the
application under subsection 2516(2) and suppression was
warranted because the wiretap evidence was unlawfully
intercepted under subsection 2518(10)(a). The District Court
disagreed.
“Where a motion to suppress has been denied, we
review the order for clear error as to the underlying facts, but
exercise plenary review as to its legality in the light of the
court’s properly found facts.” United States v. Davis, 726 F.3d
434, 439 (3d Cir. 2013) (quoting United States v. Brownlee,
454 F.3d 131, 137 (3d Cir. 2006)). The District Court found
that AG Kane failed to designate First Deputy King in writing
but ruled this failure did not justify suppressing the wiretap
evidence under Title III.11 We will affirm this ruling.
Again, violations of even Title III’s “central
requirements” do not warrant suppression “if the Government
demonstrates to the court’s satisfaction that [Title III’s]
statutory purpose has been achieved despite the violation.”
Johnson, 696 F.2d at 121. First Deputy King’s signing of the
application, assuming he was not authorized to do so under
Pennsylvania law, warrants suppression only if Title III’s
purpose of centralizing authorization “in a publicly responsible
official” so that “the lines of responsibility [will] lead to an
11 The District Court denied the suppression motion because
First Deputy King, while arguably not authorized to sign the
wiretap application under the Pennsylvania Wiretap Act, was
authorized to sign under other applicable Pennsylvania
statutes. We agree with this reasoning but also recognize that
we generally “decide evidence questions in federal criminal
cases on the basis of federal, rather than state, law.” United
States v. Williams, 124 F.3d 411, 428 (3d Cir. 1997) (citing
United States v. Rickus, 737 F.2d 360, 363 (3d Cir. 1984)).

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identifiable person” was not achieved. Giordano, 416 U.S. at
520 (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., at 96–97
(1968)).
To determine whether there was substantial compliance
with the substantive requirements of the statute, we look
“beyond the face of the [wiretap] order to the facts as they
actually existed[.]” United States v. Traitz, 871 F.2d 368, 379
(3d Cir. 1989) (citing Acon, 513 F.2d at 518). Here, the District
Court decided that King was authorized by AG Kane despite
the lack of written designation. It found credible First Deputy
King’s suppression hearing testimony that he had a
conversation with AG Kane the evening before her departure,
where she “orally and actually directed” him to submit the
application the following day. A51. The Court also found
relevant that AG Kane, who did not testify at the hearing, knew
that First Deputy King had signed the wiretap application
before it was presented to a Pennsylvania judge and “did
nothing to stop that presentation.” A52. All told, the District
Court found the weight of the evidence established that
“authorization in fact occurred” under Pennsylvania law,
rendering the requirements of Title III’s subsection 2516(2)
substantially fulfilled. A52. Because these facts were properly
found, the denial of the suppression motion was proper.
III.
Perrin, again with Montgomery joining, argues the
government and the District Court constructively amended
Count 5 of the indictment. Count 5 charged that Montgomery
and Perrin each violated 18 U.S.C. § 924(c) by possessing
firearms in furtherance of the charge in Count 2, possession of
heroin with the intent to deliver “on or about June 8, 2014.”
A179. Perrin claims the government instead argued at trial that
their firearms possession furthered the drug trafficking
conspiracy charged in Count 1, which alleged the conspiracy
existed from April 2013 until June 2014. He contends the
District Court compounded the government’s error by
instructing the jury that they could convict under Count 5 if the
defendants possessed the guns to further either the June 8th
possession offense (Count 2) or the drug trafficking conspiracy
(Count 1). According to Perrin, both subsection 924(c)
convictions must be vacated because these errors lowered the
government’s burden of proof by lengthening the period of
time—from one day to over a year—during which the jury

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17
could find their possession of firearms furthered a drug
trafficking offense.
Neither defendant raised this argument before the
District Court so we will again review for plain error. Johnson,
520 U.S. at 465–66. We conclude that this constructive
amendment claim fails under the final condition: whether the
error alleged “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 467 (alteration
in original) (quoting United States v. Young, 470 U.S. 1, 15
(1985)). Accordingly, we decline to exercise our discretion to
grant relief.
In the constructive amendment context, the fourth
condition of plain error is difficult to overcome if there is
strong evidence proving guilt of the crime as charged. Even if
the government and the District Court plainly erred by
constructively amending Count 5, such an error did not
seriously affect the proceedings’ fairness, integrity, or
reputation if the record was largely uncontroverted and
overwhelmingly proved the crime described in the indictment.
See United States v. Greenspan, 923 F.3d 138, 152 (3d Cir.
2019). Neither defendant contests their conviction for
possessing firearms on June 8, 2014 (Counts 3 and 4,
respectively) or their conviction for possessing heroin with the
intent to deliver on June 8, 2014 (Count 2). The only dispute,
therefore, is whether the record established that they possessed
the firearms to further their intent to deliver the heroin found
in their possession on June 8, 2014. If we conclude that
evidence sustaining Count 5 was overwhelming and
uncontroverted, there was no reversible error. See Id.
To further a drug trafficking offense, the “mere presence
of a gun” at the same location as the drugs is not enough.
United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004)
(internal quotation marks omitted). Instead, the evidence must
establish a connection between the two crimes, whereby the
guns “advanced or helped forward” the drug dealing offense.
Id. To determine whether such a connection exists, this Court
has applied these nonexclusive factors:
the type of drug activity that is being
conducted, accessibility of the firearm,
the type of the weapon, whether the
weapon is stolen, the status of the
possession (legitimate or illegal), whether

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18
the gun is loaded, proximity to drugs or
drug profits, and the time and
circumstances under which the gun is
found.
Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409,
414–15 (5th Cir. 2000)).
On June 8, 2014, law enforcement watched the
defendants return to Montgomery’s home from a trip to New
Jersey, where they had met with their heroin supplier. Hours
later, the men returned to the car with a backpack. The agents
conducted a traffic stop and searched the car, finding $1,600 in
cash, seven cell phones, and 125 bricks of heroin in the
backpack. After obtaining a warrant, the agents searched
Montgomery’s house and found 1,500 bricks of heroin, 16 guns
stored with ammunition in the basement and master bedroom,
$21,000 in cash in the master bedroom and bathroom, a money
counter, and a cutting agent for the heroin.
Applied to this evidence, the Ceballos-Torres factors
overwhelmingly support a conviction under Count 5 as it
appears in the indictment. The car and house contained a
significant amount of heroin and drug paraphernalia on June 8,
2014, establishing that Perrin and Montgomery intended to
traffic the heroin. The guns were accessible to the occupants,
including a rifle found behind the headboard in the master
bedroom. The guns, consisting of shotguns, handguns, a TEC-
9 and a knock-off AK-47, were lethal firearms. Seven of the
recovered firearms were traced back to the transaction between
Perrin and Jeremiah Pashuta, where Perrin gave cash and
heroin to Pashuta for stolen guns and ammunition. Due to prior
convictions, neither Perrin nor Montgomery could lawfully
purchase or possess firearms. While the record did not specify
whether the guns were loaded, testimony established that they
were stored with ammunition. They were found in various
places within the same house as $21,000 in drug proceeds and
$300,000 worth of heroin. The search of the house was the
culmination of a year-long investigation, during which law
enforcement learned that the defendants ran an expansive and
profitable drug operation that employed couriers to transport
heroin across state lines.
More than merely sufficient, the evidence that the guns
furthered the heroin distribution business was overwhelming
and uncontroverted, which means any error at trial did not

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19
seriously affect the proceeding’s fairness. See, e.g., United
States v. Thomas, 970 F.3d 809, 817 (7th Cir. 2020) (holding
evidence that guns possessed in furtherance of drug offense
was overwhelming where drugs and loaded guns were within
reach of one another in same location); United States v.
Robinson, 435 F.3d 1244, 1251 (10th Cir. 2006) (deeming
evidence of subsection 924(c) violation overwhelming where
rifle found in close proximity of drug manufacturing and
paraphernalia). Relevant to our analysis is that neither Perrin
nor Montgomery point to any portion of the record that refutes
the inference that the guns were integral to their business, nor
do they present a “plausible argument” that the guns did not
advance their plans to distribute the heroin uncovered on June
8, 2014. Johnson, 520 U.S. at 470. Moreover, in analyzing the
fourth prong of plain error review, this Court may view the
alleged error “against the entire record” when deciding
whether it “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” Young, 470 U.S. at 15–16
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
Viewed in this context, any claim of plain error is further
undermined by the fact that heroin was used to acquire seven
of the recovered guns, and the same type of ammunition found
in the house was used to shoot Tina Crawford to prevent her
cooperation with law enforcement. Because guns indisputably
advanced the plans to distribute the 1,625 bricks of heroin
found in the same house, any error causing Count 5 to be
constructively amended did not “undermine the fundamental
fairness of the trial and contribute to a miscarriage of justice.”
Id. at 16.
Finally, we note that Perrin and Montgomery, together
with the government, jointly submitted the jury instruction that
gave rise to this claim of court error. The proposed charge for
Count 5, which the District Court adopted, instructed the jury
to determine whether the firearms, if knowingly possessed,
were held in furtherance of the drug trafficking crimes alleged
in both Counts 1 and 2. Although we do not deem this claim
waived and foreclosed from review, see Virgin Islands v. Rosa,
399 F.3d 283, 290–91 (3d Cir. 2005), we recognize it is difficult
for Appellants to overcome the fourth prong of plain error
review if their own conduct invited the error. 7 Wayne R.
LaFave, et al., Criminal Procedure § 27.5(d) (4th ed. 2015) (“A
court is unlikely to find the fourth prong met if conduct by the
defense ‘invited’ the error” even if “the reviewing court

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20
concluded those actions fell short of ‘waiver.’”); see, e.g.,
United States v. Lespier, 725 F.3d 437, 450–51 (4th Cir. 2013)
(holding defendant’s conviction of greater offense after he
opposed instruction on a lesser-included offense did not
threaten integrity of the justice system or represent a
miscarriage of justice under plain error review). Given the
overwhelming evidence proving the crime as charged and the
fact that Perrin and Montgomery proposed the instruction
underlying their convictions, any error here did not rise to the
level of plain error. We will therefore affirm their convictions
under Count 5.
IV.
Montgomery next challenges the legality of his life
sentence. Count 7 of the indictment charged him with killing
Tina Crawford to prevent her from communicating with law
enforcement in violation of 18 U.S.C. § 1512(a)(1)(C).12
Montgomery argues that, because the type of “killing” was not
specified in the charge or the District Court’s jury instruction,
he was charged and convicted of manslaughter, not murder. As
a result, his sentence of life imprisonment under Count 7
violates his Fifth and Sixth Amendment rights under Apprendi
and Alleyne.
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) held
that any fact that increases the penalty of the crime beyond the
statutory maximum must be submitted to the jury. Alleyne v.
United States, 570 U.S. 99, 103 (2013) held that any fact that
increases a sentence beyond the minimum mandatory sentence
must be submitted to a jury. Montgomery alleges both
12 The relevant portion of 18 U.S.C. § 1512 is as follows:
(a)(1) Whoever kills or attempts to kill another
person, with intent to—
* * *
(C) prevent the communication by any person to
a law enforcement officer or judge of the United
States of information relating to the commission
or possible commission of a Federal offense or a
violation of conditions of probation, parole, or
release pending judicial proceedings; shall be
punished as provided in paragraph (3).

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21
holdings were violated because his life sentence exceeds both
the statutory maximum and mandatory minimum sentences for
manslaughter.
This Apprendi and Alleyne claim was preserved so we
will apply a harmless error standard of review. United States
v. Vasquez, 271 F.3d 93, 103 (3d Cir. 2001). Montgomery
contends that he alleges a sentencing error because he was
charged and convicted of manslaughter but sentenced for
murder. Under a sentencing error analysis, an error is harmless
if it did not contribute to the sentence imposed. United States
v. Lewis, 802 F.3d 449, 456 (3d Cir. 2015). Montgomery
argues the error of being sentenced for a crime more serious
than the one for which he was convicted cannot be deemed
harmless.
Montgomery’s characterization of his claim—that he
was charged and convicted only of manslaughter—is
unavailing. Count 7 charged Montgomery with killing Tina
Crawford with the intention of preventing the communication
of information relating to a federal offense to a federal law
enforcement officer. The intention behind the killing is
therefore an element of the crime defined in subsection
1512(a)(1)(C).13 Killing a witness to prevent her from talking
to law enforcement in violation of subsection 15(a)(1)(C)
encompasses an unlawful killing with malice aforethought, in
other words, murder. Montgomery was not therefore
sentenced for a different crime than he was charged and
convicted. Accordingly, a harmless trial error analysis is
appropriate. See United States v. Johnson, 899 F.3d 191, 198
(3d Cir. 2018) (concluding Alleyne error was trial error where
defendant was charged with the same crime for which he was
sentenced, but an element was not submitted to the jury). Thus,
in assessing Montgomery’s Apprendi/Alleyne claim, we must
13 Murder is defined in 18 U.S.C. § 1111(a) as “the unlawful
killing of a human being with malice aforethought.” If the
killing is “willful, deliberate, malicious, and premeditated,” it
is murder in the first degree and is punishable by life
imprisonment or death. 18 U.S.C. § 1111(a) and (b). Any other
murder is second degree murder, punishable by imprisonment
for any term of years or for life. Id. Life imprisonment is
therefore a legal sentence for either first- or second-degree
murder. See id.

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22
determine whether a rational jury would have still found
Montgomery guilty beyond a reasonable doubt of killing Tina
Crawford under Count 7 if the elements of murder had been
submitted to the jury. Id. at 200 (quoting Lewis, 802 F.3d at
456).
We conclude a rational jury would have found
Montgomery guilty of Tina Crawford’s murder because the
elements of first-degree murder were submitted to the jury
under a different count. Count 8 charged Montgomery with
using a firearm to kill Tina in violation of subsection
1512(a)(1)(c), as charged in Count 7. Count 8 described the
killing as “a murder as defined in 18 U.S.C. § 1111,” where
Tina Crawford was killed “with malice aforethought” and
“willingly, deliberately, maliciously and with premeditation.”
A189. The jury instruction for Count 7 and Count 8 was as
follows:
Count 7 of the indictment charges Price
Montgomery with tampering with a witness by
killing a person on or about August 22, 2014.
In order to find the defendant Price Montgomery
guilty of this offense, you must find that the
government proved each of the following four
elements beyond a reasonable doubt: First, that
Mr. Montgomery killed Tina Crawford. Second,
that he was motivated by a desire to prevent the
communication between Tina Crawford and law
enforcement authorities concerning the
commission or possible commission of the
offense described in Count 2 [trafficking heroin].
Third, that the offense described in Count 2 was
actually a federal offense. Fourth, that he
believed that there was a reasonable likelihood
that Tina Crawford would, in fact, make a
relevant communication to law enforcement
authorities.
* * * *
Mr. Montgomery is charged at Count 8 with
using and discharging a firearm in relation to a
crime of violence resulting in death on or about
August the 22, 2014.

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23
Count 8 of the indictment charges Price
Montgomery with carrying, using, and
discharging a firearm during a crime of violence,
specifically the crime charged at Count 7. I
instruct you that the offense alleged in Count 7 is
a crime of violence.
In order to find Price Montgomery guilty of the
offense charged at Count 8 of the indictment, you
must find the prosecution proved each of the
following four elements beyond a reasonable
doubt: First, that Price Montgomery committed
the crime of tampering with a witness by killing
a person as charged at Count 7. Second, that the
killing was a murder, that is, a willful, deliberate,
malicious, premeditated killing. Third, that
during and in relation to the commission of that
crime, Price Montgomery knowingly carried or
used a firearm.
* * * *
Fourth, that Price Montgomery carried or used
the firearm during and in relation to the crime of
tampering with a witness by killing a person.
A2328–31 (emphasis added). The jury found Montgomery
guilty of Count 8, thereby establishing that it found the killing
of Tina Crawford constituted first-degree murder. The District
Court did not err in relying on these findings in imposing a life
sentence for Count 7. Because the elements of first-degree
murder were submitted to the jury, the sentence of life
imprisonment for killing Tina Crawford did not violate
Apprendi or Alleyne, nor, by extension, the Sixth Amendment.
This conclusion is supported by the prior conviction
exception to the Apprendi and Alleyne rules. A defendant’s
prior conviction, arising from a previous judicial proceeding,
can impact the minimum or maximum statutory sentence
without running afoul of Apprendi and Alleyne. It would make
little sense for us to conclude that the District Court can base a
sentence on a jury’s findings from a prior proceeding but not
the jury’s findings from the same trial. Because this jury found
the necessary elements of first-degree murder beyond a
reasonable doubt, we agree with the government that granting

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24
Montgomery a new trial would result in another fact-finder
making the same factual determinations that the jury made
here.
Montgomery does not refute that the elements of first-
degree murder were before and found by the jury. Nor does he
claim the facts of record were insufficient to sustain either
conviction tied to the killing of Tina Crawford. He instead
argues that the elements of first-degree murder found under
Count 8 could not be applied to his sentence for Count 7
because the text of Count 7 did not incorporate the allegations
in Count 8 by reference. Citing our decision in United States
v. Stevenson, 832 F.3d 412, 425 (3d Cir. 2016), Montgomery
argues applying the elements found under Count 8 to the
sentence imposed for Count 7 would violate his Fifth and Sixth
Amendment rights because he did not receive notice of his
potential life sentence for witness tampering by murder.
Initially, we note that this argument conflates the issue
of whether the indictment provided Montgomery with notice
with the issue of whether his sentence was in accordance with
Apprendi and Alleyne. Montgomery’s invoking our holding in
Stevenson does not challenge our decision that the District
Court imposed a life sentence based on facts the jury found
beyond a reasonable doubt. When determining whether a
count provides a defendant with notice of charges, Stevenson
requires that we regard each count in isolation, independently
of the other counts in the indictment. There is no equivalent
requirement that courts consider each jury finding in isolation
when constructing a sentence. The findings supporting the life
sentence were made by the jury and for that reason his
punishment under Count 7 did not run afoul of Apprendi or
Alleyne.14
14 In any event, Count 7 provided Montgomery with notice that
he faced a potential life sentence. The count conveyed that
Montgomery was being charged with killing a witness to
prevent her from speaking with law enforcement. He was
charged with an intentional killing and therefore given notice
of the “species of offence” facing him prior to trial. Apprendi,
530 U.S. at 478. Here, the “species” included murder in either
the first- or second-degree, both of which carry potential life
sentences. Under the notice argument as well, therefore,
Montgomery is not entitled to relief.

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25
We will therefore affirm Montgomery’s life sentence for
the killing of Tina Crawford in violation of 18 U.S.C. §
1512(a)(1)(C).
V.
Montgomery next claims his trial counsel’s assistance
was ineffective for not objecting to the District Court’s
instruction defining aiding and abetting liability for Counts 8
and 10, charging violations of 18 U.S.C. § 924(c). Specifically,
he asserts the Court failed to instruct the jury that accomplice
liability requires a finding that he possessed advance
knowledge that a gun would be used to kill Tina Crawford and
attempt to kill her mother Patsy, as mandated by Rosemond v.
United States, 572 U.S. 65 (2014). Montgomery contends both
convictions must be vacated because the jury could have
convicted him without finding all the elements of either crime.
Montgomery recognizes that, because his counsel
jointly submitted the proposed jury instructions, the invited
error doctrine prohibits him from challenging any error on
direct appeal. He instead challenges the instruction through an
ineffective assistance of counsel claim, contending that his
counsel’s decision to agree to the instruction rendered his
representation constitutionally deficient. While Montgomery
acknowledges that ineffective assistance of counsel claims are
generally not addressed on direct appeal, he argues that review
in this instance would be appropriate because the trial record is
sufficient to decide his claim. We disagree.
Our reasons for declining review of ineffectiveness
claims on direct appeal are well established. To warrant relief,
Montgomery must show that his counsel’s actions were
unreasonable and resulted in prejudice. The Supreme Court in
Massaro v. United States, 538 U.S. 500, 505 (2003) reasoned
that a trial record is “not developed precisely for the object” of
addressing counsel’s performance and is “thus often
incomplete or inadequate” to assess an ineffectiveness claim.
Additional fact-finding is required to ascertain whether a
“seemingly unusual or misguided action” by counsel was
strategic or otherwise justified. Id. Under collateral review,
ineffectiveness claims are litigated before the trial court, which
is the “forum best suited” for “determining the adequacy of
representation during an entire trial.” Id.

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26
Montgomery argues no additional facts are needed to
develop his ineffective assistance of counsel claim because this
Court has already decided that a nearly identical instruction
violated Rosemond. Johnson, 899 F.3d at 205. Reviewing for
plain error, the Johnson Court held the violation did not justify
relief because there was no reasonable probability that the
instruction affected the trial’s outcome. Id. Montgomery
claims Johnson’s finding of error proves he was prejudiced by
his counsel’s failure to object to the accomplice liability
instruction. But Massaro instructs that such a prejudice
determination requires exploring whether trial counsel’s
performance as a whole was adequate and whether the
contested action or inaction was reasonable. The record here
is not sufficient to make such a determination. See United
States v. Olfano, 503 F.3d 240, 246–47 (3d Cir. 2007)
(concluding that, without a record addressing why counsel
failed to ask for a continuance, this Court could not determine
whether his representation was prejudicial). See also United
States v. McLaughlin, 386 F.3d 547, 556 (3d Cir. 2004) (noting
the “lack of a fully developed record often precludes a
comprehensive inquiry” into counsel’s alleged error). 15
We abstain from reviewing Montgomery’s claim at this
stage to protect him from “having res judicata attach to the
ineffective assistance claim” on an undeveloped record. Virgin
Islands v. Vanterpool, 767 F.3d 157, 164 (3d Cir. 2014). We
will deny the claim without prejudice to his right to raise the
claim in a collateral proceeding.
VI.
Montgomery challenges his convictions arising from
the shooting of Patsy Crawford, who was shot at the same time
her daughter Tina was murdered. He argues the evidence is
15 We further note that the District Court never assessed the
efficacy of counsel’s performance at trial. Such an assessment
could have made review of Montgomery’s ineffectiveness
claim on direct appeal “both feasible and efficient.” United
States v. Washington, 869 F.3d 193, 203 (3d Cir. 2017); accord
United States v. Jones, 336 F.3d 245, 252–55 (3d Cir. 2003)
(addressing ineffectiveness claim where District Court held a
hearing to assess counsel’s representation of defendant in
entering guilty plea).

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27
insufficient to prove that Patsy’s shooting qualifies as witness
tampering by attempted murder under 18 U.S.C. §
1512(a)(1)(C). Because the government introduced sufficient
evidence to support the jury’s finding that Montgomery
attempted to kill Patsy Crawford to prevent her from
communicating to law enforcement about her daughter’s
murder, we will affirm.16
The applicable standard for overturning a jury verdict
for insufficient evidence presents a high hurdle for any
appellant. “[T]he relevant question 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.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). Our precedent accordingly counsels us
to sustain a jury verdict “as long as it does not fall below the
threshold of bare rationality.” United States v. Caraballo-
Rodriguez, 726 F.3d 418, 431 (3d Cir. 2013) (internal quotes
and citing authority omitted). It is the rare jury verdict that will
fail to meet that “bare rationality” standard.
Section 1512(a)(1)(C) prohibits the killing or attempted
killing of “another person” with the intention of preventing a
“communication” to law enforcement of “information relating
to the commission . . . of a Federal offense.” Our precedent
has delineated four elements the government must prove to
sustain a conviction.
First, the defendant killed or attempted to kill another
person. Second, the defendant was motivated by a desire to
prevent the communication between any person and law
enforcement authorities concerning the commission or
possible commission of an offense. Third, that offense must be
a federal offense. And fourth, a reasonable likelihood existed
that the person whom the defendant believed may
16 The government charged Montgomery with two counts of
violating 18 U.S.C. § 1512(a)(1)(C). Count 7 charged that
Montgomery killed Tina Crawford to prevent her from
communicating with law enforcement about his drug dealing
business. Count 9, meanwhile, charged that Montgomery
attempted to kill Patsy Crawford (Tina’s mother) to prevent her
from communicating with law enforcement about Tina’s
murder. The jury convicted on both counts. Montgomery now
challenges his conviction on Count 9.

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28
communicate with law enforcement would in fact make a
relevant communication to a federal law enforcement officer.
United States v. Tyler, 956 F.3d 116, 123 (3d Cir. 2020).
As to the first element, we agree with the government
that the record supports the jury’s finding that Montgomery
either attempted to kill Patsy Crawford or aided and abetted an
attempt to kill her. The evidence established that Patsy was
shot and lay in “critical condition” in the garage on the other
side of the car from Tina. App. 1450, 1453. Considering the
evidence establishing Montgomery’s role in shooting Tina, the
only reasonable inference from the record is that he or one of
his accomplices shot Patsy as well. It was never established at
trial where or how many times Patsy was shot, or whether she
was directly targeted by the shooters. But the government
introduced evidence that 24 shell casings were found at the
scene of the shooting. Given the sheer number of bullets fired
into the garage, a reasonable juror could have inferred the
shooters intended to kill Patsy as well as Tina. Jackson, 443
U.S. at 324 (stating that sufficiency review of a challenged
conviction requires reviewing the record in the light most
favorable to the prosecution).
As to element two, the jury was required to conclude
that Montgomery was motivated to attempt to kill Patsy by a
desire to prevent her from communicating with law
enforcement about the commission of a federal offense, i.e.,
Tina’s murder. Resolving this question requires a brief foray
into statutory interpretation. We begin, as we must, with the
statutory text.
Section 1512(a)(1)(C) criminalizes “attempts to kill
another person, with intent to prevent the communication by
any person to a law enforcement officer or judge of the United
States of information relating to the commission or possible
commission of a Federal offense.” The statute plainly
encompasses a broad range of those who may make such a
communication: “[A]ny person.” Likewise, the
communication embraces a capacious subject matter:
Information relating to the commission of a federal offense.
Information is a broad term meaning “knowledge of a
particular event or situation.” Information, MERRIAM-
WEBSTER DICTIONARY (11th ed. 2020). And “relating to” is a
broad phrase, as well, that we interpret similarly to having “a
connection with.” Pugin v. Garland, 599 U.S. 600, 607 (2023).

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So to violate the statute, a defendant must have an intent to
prevent a communication by any person of information that
relates to or has a connection with the commission of a federal
offense.
The government offered sufficient circumstantial
evidence for the jury to determine that Montgomery possessed
the requisite intent. The government introduced evidence
suggesting that Montgomery appeared at Patsy’s home because
he was on a venture to eliminate at least one federal witness.
He knew that agents had raided Tina’s home. He knew that
Tina had lied to him when she denied telling agents anything
that incriminated Montgomery. And he knew that Tina was
heading to a meeting with her lawyer, and then with federal
prosecutors, the day he killed her.17 The government
introduced evidence that Patsy was shot at least once and found
in critical condition. The jury heard testimony from a witness
that the gunmen quickly fled after the shooting. And the jury
also had before it evidence that police officers arrived at the
scene to investigate and that federal investigators became fully
involved in the investigation after the murder.
Drawing all inferences in the government’s favor, the
jury reasonably found that Montgomery possessed the requisite
intent to return a guilty verdict on Count 9. The jury was aware
that Montgomery knew that Patsy was an eyewitness to his
crime. She not only witnessed the shooting from beginning to
end but was also one of its intended targets. Montgomery
would have known that, as an eyewitness, Patsy could speak to
such things as: The number of shooters; the physical features
of the gunmen; and other details surrounding the ambush of her
and her daughter. All such information would have related to
the commission of a federal offense—Tina’s murder. The
17 Brown had a history of passing on to Montgomery
information concerning Tina. Tina texted Brown that she was
meeting with a lawyer, and Brown texted Montgomery 35
minutes before the shooting began. The jury could logically
have inferred from Tina’s text to Brown, coupled with Brown’s
history of passing on Tina’s communications to Montgomery,
that Brown informed Montgomery about Tina’s upcoming
meeting with a lawyer.

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communication of that information falls within the statute’s
ambit.
And the jury could rightly infer that Montgomery would
have known to a reasonable certainty that Patsy would speak
to law enforcement unless he eliminated her as a witness. Any
citizen should reasonably expect that police will soon arrive to
investigate a shooting at which three to four assailants have
opened fire at a home. And an investigation entails interviews
of eyewitnesses. Moreover, the government introduced
evidence that Montgomery and the other assailants quickly fled
the scene, suggesting they knew police would soon arrive.
Hence, the jury could infer Montgomery knew not only that
Patsy had knowledge of details related to Tina’s murder, but
also that it was likely she would communicate those details to
law enforcement.
Lastly, the jury would have known that Montgomery
was on a mission to eliminate witnesses who were then likely
to communicate information about his crimes. The jury could
rely on common sense to draw the inference that Montgomery,
in eliminating a witness to one federal crime—drug
trafficking—would not at the same time choose to leave behind
a new witness to an entirely new crime: The murder of a
federal witness. A jury is always entitled to use common sense
in drawing reasonable inferences. United States v. Holmes, 406
F.3d 337, 351 (5th Cir. 2005). Furthermore, our circuit’s
model jury instructions—which the District Court used in
relevant part—task jurors with “decid[ing] what reasonable
inferences, if any, [they]’ll draw based on all the evidence and
[their] reason, experience, and common sense.” Third Circuit
Model Criminal Jury Instructions, Ch. 3 Final Instructions:
General, Pt. 3.03 Direct and Circumstantial Evidence
(emphasis added).
Taken together, these inferences support the jury’s
finding that Montgomery possessed the requisite intent to
prevent Patsy from communicating with law enforcement.
The third element is whether the offense Montgomery
sought to prevent Patsy from communicating about—here
murdering a federal witness—“was actually a federal offense.”
Tyler, 956 F.3d at 123. No one has disputed that Tina’s murder
in violation of 18 U.S.C. § 1512(a)(1)(C) constituted a federal
offense.

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Finally, the government offered sufficient evidence to
make out the fourth element: A “reasonable likelihood that the
person whom the defendant believes will communicate with
law enforcement,” here Patsy, “would in fact make a relevant
communication with a federal law enforcement officer.” Tyler,
956 F.3d at 123. The government introduced evidence showing
that Patsy’s daughter Tina Crawford was a target of the
investigation into Montgomery.18 The government also
introduced evidence showing that Tina was scheduled to meet
with federal prosecutors to discuss a cooperation agreement the
day of her murder. And the government offered evidence from
which the jury could have inferred that Patsy witnessed Tina
being shot. Together, this evidence sufficed to establish
element four; federal law enforcement officers would of course
speak to an eyewitness to the murder of a target of a federal
investigation who was scheduled to meet with federal
prosecutors.
Indeed, a government witness testified that, after Tina’s
murder, the Bureau of Alcohol, Tobacco, Firearms and
Explosives “and all of its resources became involved in [the]
investigation.” Appx 1605–06. As final proof, an investigation
into Tina’s murder and Patsy’s attempted murder did take
place. “[T]he fact that a federal investigation ultimately
occurred . . . is probative evidence of the likelihood that
[witnesses] would have eventually communicated.” Bruce v.
Warden Lewisburg USP, 868 F.3d 170, 186 (3d Cir. 2017)
(vacated on other grounds).
Because the government offered sufficient evidence for
the jury to find all four elements of Taylor, we will affirm
Montgomery’s conviction under 18 U.S.C. § 1512(a)(1)(C) for
the attempted murder of Patsy Crawford to prevent her from
communicating to law enforcement about the murder of her
daughter.
VII.
Finally, we agree with Montgomery that the District
Court committed plain error by imposing a mandatory
consecutive 25-year sentence for Count 8, charging the use of
a firearm to kill Tina Crawford in violation of 18 U.S.C. §
18 Investigators intercepted several calls between Tina and
Montgomery. They tracked the movement of Tina’s car, and
they searched her apartment.

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924(j). The imposition of the consecutive sentence for a
subsection 924(j) conviction was consistent with our then-
controlling precedent in United States v. Berrios, 676 F.3d 118,
143 (3d Cir. 2012), but this decision was later overruled by the
Supreme Court in Lora v. United States, 599 U.S. 453, 458
(2023) (holding that “[s]ubsection [924](j) contains no
consecutive-sentence mandate”).
Montgomery did not object to this sentence at the time
that it was imposed, which means this claim is subject to plain
error review. “Error is plain when it is clear or obvious and
affects a defendant’s substantial rights.” United States v. Diaz,
90 F.4th 335, 348 (5th Cir. 2024) (citing Olano, 507 U.S. at
732–33 (1993)). The parties agree that imposing a mandatory
consecutive term constituted a clear error, but the government
contends Montgomery cannot establish the sentence impacted
his substantial rights. We disagree.
Here, the 25-year term of imprisonment for his
subsection 924(j) conviction was imposed to run consecutively
to Montgomery’s life sentence for the murder of Tina
Crawford. An error affects a defendant’s substantial rights if it
affects “the outcome of the district court proceedings.” Olano,
507 U.S. at 734. “Because we cannot say with complete
confidence that the court would have imposed the same
sentence” had the consecutive term not been deemed
mandatory, “we must conclude that the error affected
[Montgomery’s] substantial rights.” United States v. Payano,
930 F.3d 186, 198 (3d Cir. 2019) (internal quotations and
citations omitted). That Montgomery was sentenced to a
longer term of imprisonment than he would have been absent
the error is enough to establish prejudice, despite his life
sentence remaining intact. Olano, 507 U.S. at 734; Diaz, 90
F.4th at 348 (vacating sentence where district court did not
exercise discretion under Lora and imposed three consecutive
life sentences for subsection 924(j) convictions); see also
United States v. Ortiz-Orellana, 90 F.4th 689, 705 (4th Cir.
2024) (vacating sentence where term of imprisonment for
subsection 924(j) conviction was imposed consecutive to life
sentence).
Before exercising our discretion to correct the error to
Montgomery’s sentence, we determine whether the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Olano, 507 U.S. at 736. Even though

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the corrected sentence would not decrease the time
Montgomery spends in prison, he is sentenced to a term of
imprisonment longer than permitted by law. We recognize that
“the public legitimacy of our justice system relies on
procedures that are neutral, accurate, consistent, trustworthy,
and fair, and that provide opportunities for error correction.”
United States v. Henderson, 64 F.4th 111, 121 (3d Cir. 2023)
(quoting Rosales-Mireles v. United States, 585 U.S. 129, 141
(2018)) (internal quotation marks omitted). We will therefore
provide the opportunity for error correction by vacating the
sentence so that a sentence in accordance with the Lora
decision may be imposed.
VIII.
For the above reasons, we will affirm the convictions
and judgments of sentence for James Perrin. For Price
Montgomery, we will affirm the convictions and judgments of
sentence except for the term of imprisonment imposed for
violating 18 U.S.C. § 924(j) (Count 8), which we will vacate
and remand for resentencing consistent with this opinion.

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