United States of America v. David Stalling

The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals*
for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-4042
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UNITED STATES OF AMERICA
v.
DAVID STALLING,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Crim. Action No. 05-cr-00539
(Honorable Stewart Dalzell)
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Submitted Under Third Circuit LAR 34.1(a)
April 17, 2008
Before: SLOVITER, JORDAN, and ALARCÓN, Circuit Judges.*
Filed: April 23, 2008
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OPINION OF THE COURT
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ALARCÓN, Circuit Judge.

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David Stalling has appealed from the judgment entered following his conviction by
a jury of two counts of distribution of five grams or more of cocaine base, and one count
of possession with intent to distribute fifty grams or more of cocaine base. He was found
not guilty of possession of a firearm in furtherance of a drug trafficking crime.
Stalling filed a notice of appeal on September 7, 2006. On January 4, 2007, his
appointed counsel filed a motion to withdraw his representation. On the same date,
appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 739 (1967) in
which he asserts that “Appellant’s appeal presents no issue of even arguable merit.”
Based on our independent review of the record we conclude that the appeal is without
merit. Accordingly, we will grant counsel’s motion to withdraw his representation and
affirm the District Court’s judgment.
I
Stalling’s appointed counsel discusses two ground in his Anders brief: (1) whether
the evidence was insufficient to support a finding that he was guilty beyond a reasonable
doubt of selling cocaine to an undercover officer, and (2) whether the District Court erred
in denying his motion to suppress the evidence seized from his residence pursuant to a
search warrant because the officers violated the Fourth Amendment by entering Stalling’s
residence without a prior announcement.
A

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In his Anders brief, counsel has set forth the relevant facts regarding the
identification of Stalling as the person who sold cocaine on two occasions to Issac
Caraway, an agent of the Pennsylvania Bureau of Narcotics Investigation and Drug
Control. Agent Caraway’s testimony implicating Stalling was corroborated by other
officers who observed Stalling leave his residence at 5632 Gainor Road, Philadelphia on
August 18, 2005, and walk to Agent Caraway’s vehicle, and later return to his home.
Stalling was also observed entering Agent Caraway’s vehicle on August 30, 2005 where
Stalling distributed a quarter ounce of crack cocaine to the undercover officer.
Stalling’s counsel cited Jackson v. Virginia, 443 U.S. 307 (1979), and this Court’s
decision in United States v. Hart, 273 F.3d 363 (3d Cir. 2001) in support of counsel’s
conclusion that this evidence was sufficient to persuade a rational trier of fact that this
evidence was sufficient to demonstrate that Stalling was guilty of the distribution of crack
cocaine on the two occasions alleged in the indictment. We agree.
B
Counsel has properly summarized the evidence presented by the Government
regarding Stalling’s claim that the officers who executed the search warrant on his
residence violated the “knock-and-announce” rule in violation of the Fourth Amendment.
ATF Agent Eric Frye testified that before entering Stalling’s residence, he knocked
and announced that police officers sought entry to execute a search warrant. After seven
to ten seconds, Agent Frye again knocked and identified his purpose of seeking entry.

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After waiting ten seconds, Agent Frye and other officers entered the residence. Stalling
testified that the officers did not knock or identify themselves before forcibly entering his
residence.
The District Court found that Agent Frye’s testimony was credible and concluded
that the “knock-and-announce” rule had not been violated. Stalling’s counsel asserts in
his Anders brief that the record shows that the District Court’s finding that Agent Frye
knocked and announced his presence was not clearly erroneous.
II
“In Anders, the Supreme Court established guidelines for a lawyer seeking to
withdraw from a case where the indigent defendant he represents wishes to pursue
frivolous arguments on appeal.” United States v. Youla, 241 F.3d 296, 299 (3d Cir.
2000). In Third Circuit Local Appellate Rule 109.2(a) this court has adopted a rule that
“reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent
clients receive adequate and fair representation.” Id. at 300. “The Court’s inquiry when
counsel submits an Anders brief . . . is twofold: (1) whether counsel adequately fulfilled
[Rule 109.2(a)’s] requirements; and (2) whether an independent review of the record
presents any nonfrivolous issues.” Id.
In this matter, counsel has fulfilled the requirements for an Anders brief set forth in
Rule 109.2(a). Counsel has set forth the issues his client wishes to present to this Court

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and examined the record to determine whether they are nonfrivolous under controlling
authority.
We have looked at the record independently to determine whether we agree with
counsel’s conclusions. The evidence presented at trial, when viewed in the light most
favorable to the Government as the prevailing party, is sufficient to persuade a rational
trier of fact that Stalling was guilty of selling crack cocaine to Agent Caraway.
After the District Court denied Stalling’s motion to suppress in this matter the
Supreme Court held in Hudson v. Michigan, 547 U.S. 586 (2006) that a violation of the
knock-and-announce rule does not require that evidence seized in executing a search
warrant must be suppressed. Id. at 594. Accordingly, this issue is also meritless.
III
Stalling was notified by the Clerk of this Court, in a letter dated January 24, 2007,
that his attorney had filed a motion to withdraw as counsel because he believed that this
appeal is frivolous. He was notified that he could file a formal or informal brief within
thirty days to raise any points he wished to raise to challenge his conviction on his
residence.
Stalling did not file a brief in response to this notice.
CONCLUSION
We conclude that counsel complied with the requirements of an appropriate
Anders brief pursuant to Rule 109.2(a). Our independent review of the record has not

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revealed any nonfrivolous issue that could be raised on appeal. Accordingly, counsel’s
motion to withdraw his representation is granted. The judgment is AFFIRMED.

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