United States of America v. Tony R. Jake, a/k/a Smiley Appeal from the United States District Court for the…

Filed February 14, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1501
UNITED STATES OF AMERICA,
Appellant
v.
TONY R. JAKE,
a/k/a Smiley
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Criminal No. 99-cr-00024)
District Judge: Honorable Malcolm Muir
Argued: March 7, 2001
Before: ALITO, McKEE, AND KRAVITCH,*
Circuit Judges,
(Filed: February 14, 2002)
William S. Houser, Esq.
Theodore B. Smith, III, Esq. (Argued)
Office of the United States Attorney
235 North Washington Avenue
William J. Nealon Federal Building
Scranton, PA 18591
Counsel for Appellant
_________________________________________________________________
* The Honorable Phyllis A. Kravitch, Circuit Judge, U.S. Court of Appeals
for the Eleventh Circuit, sitting by designation.
G. Scott Gardner, Esq. (Argued)
2117 West Fourth Street
Williamsport, PA 17701
Counsel for Appellee
OPINION OF THE COURT
McKEE, Circuit Judge.
The government asks us to review the district court’s
order granting Tony Jake a new trial after a jury convicted
him of conspiracy to obstruct justice by bribery. The
district court awarded a new trial because of a perceived
error in jury instructions regarding the statute of
limitations. For the reasons that follow, we will reverse and
remand for sentencing.1

-- 1 of 11 --

I.
On January 28, 1999, Tony Jake was indicted on one
count of murder (Count I), and one count of conspiracy to
obstruct a criminal investigation by bribery in violation of
18 U.S.C. SS 2, and 1111(a) (Count II). The indictment
resulted from the stabbing death of Santos Rosario, Jake’s
fellow inmate at the United States Penitentiary at
Lewisburg, Pennsylvania. The indictment alleged that Jake
had been involved in the murder of Rosario and that Jake
thereafter paid another inmate to admit to the crime in
order to conceal Jake’s involvement.
Jake and Rosario had been involved in smuggling drugs
into the Lewisburg penitentiary since at least the summer
of 1991. However, sometime after they began bringing
drugs into the institution, Jake began suspecting that
Rosario was "skimming" some of the drugs for himself.
Consequently, Jake blamed Rosario when several drug
shipments were smaller than Jake expected them to be.
Things apparently reached a climax a few days before
_________________________________________________________________
1. The district court had jurisdiction pursuant to 18 U.S.C. S 3231. We
have jurisdiction pursuant to 18 U.S.C. S 3731.
2
Rosario was killed. Jake was expecting a shipment of drugs
that he never received, and he blamed Rosario for its
disappearance. However, unbeknownst to Jake, that
shipment had actually been intercepted and turned over to
law enforcement authorities.
Tape recordings of Jake’s conversations on a prison
telephone on October 8, 1991 (the day of Rosario’s murder),
revealed Jake’s displeasure over the missing shipment. His
comments clearly showed that he blamed Rosario and
suggested that he (Jake) was going to do something about
it shortly after the telephone call. App. at 1578 ("[M]y next
. . . move is like funky, baby"); App. at 1607 ("[I]n 30
minutes, it’s handled.").
Rosario was stabbed to death by a homemade knife (a
"shank") a few minutes after that conversation. A
corrections officer saw Jake hastily leave the area of the
stabbing shortly after Rosario was stabbed. Approximately
45 seconds later, another inmate reported that Rosario was
dying inside the block. Jake was strip searched because of
his proximity to the area, and prison officials noticed a
fresh wound on his right leg.
Two days later, a prison official found clothing and a
shank under a window in the gymnasium bathroom where
Jake had gone immediately after the stabbing. The pants
and shirt were splattered with small amounts of blood, and
subsequent DNA testing disclosed that the blood was
Rosario’s. In addition, the pants that were recovered had a

-- 2 of 11 --

cut on the right leg which corresponded to the wound on
Jake’s leg.
Based on this and other evidence, officials began an
investigation into Jake’s involvement with Rosario’s death.
During the investigation, Jake was detained in the
administrative detention unit of the penitentiary. While
there, he had conversations with George Allred, an inmate
who was assigned to the unit as an orderly. According to
Allred’s trial testimony, he and Jake agreed that Allred
would write an affidavit admitting to the Rosario murder in
order to insulate Jake from the investigation. In exchange
for this false confession, Jake was to pay Allred $10,000.2
_________________________________________________________________
2. Allred was serving a 75 year prison sentence and had no hope of ever
leaving prison anyway.
3
Pursuant to that agreement, Jake arranged to have his
sister and a friend named Deldon Echols wire money to
Naomi Yarboski, a friend of Allred’s. Jake made several
payments pursuant to this arrangement during the early
1990s.
The government alleged this conspiracy to obstruct a
criminal investigation in Count II of the indictment. Both
sides agree that the applicable statute of limitations for that
offense is five years.3 However, most of the overt acts
alleged indicate that the conspiracy occurred between 1991
and 1995. Only one of the alleged overt acts occurred
within five years of January 28, 1999, the date of the
indictment. That was a telephone conversation between
Jake and Echols. The conversation occurred after Echols
received a subpoena to appear before the grand jury
investigating Rosario’s murder. During that conversation,
Jake told Echols to tell the grand jury that the money that
he had caused to be sent to her for Allred was really to pay
for pornographic magazines. The money had actually
constituted Allred’s payments for taking responsibility for
stabbing Rosario.
Jake testified at trial and admitted to having those
conversations. He also testified that he knew that the
money was not actually for pornographic magazines when
he told Echols to testify to that effect before the grand jury.
He did not, however, admit that the money was a bribe.
Rather, he testified that the payments were his way of
rewarding Allred for coming forward and truthfully
accepting responsibility for admitting that he (Allred) had
actually been the one who murdered Rosario. App. at 1005-
14 to 1005-21. At no time during the trial did Jake or
anyone else dispute the date of the conversation with
Echols.
At the conclusion of the trial, the prosecutor and defense
attorney consented to the district court instructing the jury
_________________________________________________________________

-- 3 of 11 --

3. "In order to prove a conspiracy to obstruct justice, the government
must establish that there was an agreement whose object was to
obstruct justice, that the defendant knowingly joined it, and that at least
one overt act was committed in furtherance of the object of the
agreement." United States v. Davis, 183 F.3d 231, 243 (3d Cir. 1999).
4
before closing arguments. Neither counsel objected to the
charge the court subsequently gave. The district court’s
charge included an instruction on the statute of limitations
and the overt acts. However, the court did not inform the
jury that it must agree that the defendant committed at
least one act within five years of the date of the indictment
in order to convict under Count II.4 The court instructed
the jury, in part, as follows:
The government must prove beyond a reasonable doubt
that at least one overt act was committed by a member
of the conspiracy. You must unanimously agree that
the same overt act was committed. I will emphasize
this point, before you can conclude that Mr. Jake is
guilty of conspiracy you must unanimously agree that
the same overt act was committed. It is not sufficient
for five jurors to believe overt act #1 was committed
and 7 jurors to believe overt act # 2 was committed. All
of you must agree and be convinced beyond a
reasonable doubt that the same overt act was
committed.
App. at 20-21.
Even though defense counsel did not object to that
charge during the charge conference, he asked to see the
court at sidebar after the court finished its instructions and
the prosecution finished its principal closing argument.
There, the following exchange occurred:
THE COURT: Now, what did you want to put on the
record, Mr. Gardner?
MR. GARDNER [defense counsel]: Your honor, with
regard to count two, the conspiracy to obstruct a
criminal investigation by means of bribery.
THE COURT: Yes.
MR. GARDNER: With regard to the first six alleged
overt acts, those acts occurred on or before
September 23, 1992. And, Your Honor, the
indictment is dated January 28, 1999. So it’s clear
_________________________________________________________________
4. There is no statute of limitations for murder as charged in Count I. 18
U.S.C. S 3281.
5

-- 4 of 11 --

that those six alleged overt acts occurred outside the
five year statute.
* * *
MR. GARDNER: Your Honor, those six alleged overt
acts occurred outside of the five year statute of
limitations so it occurred to me that they would not
be proper for consideration by the jury. I would ask
that the jury be so instructed.
THE COURT: [to the prosecutor] What’s your view?
MR. HOUSER [the prosecutor]: My view is that’s simply
not the law. As long as there’s one overt act
committed within the statute of limitations it’s
entirely appropriate for the others to be considered
as well.
THE COURT: Yeah. Well, that’s my understanding, so
we’ll deny the motion. If you’re right we’ll probably
have to retry it.
App. at 1476-2 to 1477-3 (emphasis added). Following the
completion of argument, the jury retired to deliberate and
thereafter returned a verdict of not guilty as to the murder
charged in Count I, but guilty of the conspiracy to obstruct
a criminal investigation under Count II.
Thereafter, Jake filed a motion for a new trial based upon
the district court’s failure to inform the jury that it could
not convict on Count II unless all jurors were convinced
beyond a reasonable doubt that Jake committed at least
one overt act within five years of the date of the indictment.
The district court agreed, and granted Jake’s motion for a
new trial. The court held that defense counsel had put the
court on notice of the defect in the jury instructions during
the sidebar colloquy we have set forth above. Accordingly,
the court held that the objection was preserved, and that
the failure to give the requested charge constituted
reversible error.
This appeal followed.5
_________________________________________________________________
5. We review a district court’s grant of a new trial for abuse of discretion.
United States v. Lloyd, 269 F.3d 228, 237 (3d Cir. 2001). "By definition,
6
II.
The government argues that (1) Jake failed to object to
the charge, and thereby waived any problem under the
statute of limitations; (2) even if the statute of limitations
was not waived, Jake nonetheless failed to preserve an
objection to the court’s charge and; (3) any error the court
may have committed in initially refusing to give the

-- 5 of 11 --

requested charge was harmless.
It is well settled that a criminal defendant is entitled to
an instruction on the applicable statute of limitations. See
Grunewald v. United States, 353 U.S. 391, 396-397 (1957).
See also United States v. Schurr, 794 F.2d 903 (3d Cir.
1986). Accordingly, the trial court should have informed the
jury of the need to prove at least one overt act within five
years of the date of the indictment, just as defense counsel
argued in his motion for a new trial. See Grunewald, 353
U.S. at 396-97; Fiswick v. United States, 329 U.S. 211, 216
(1946) ("The statute of limitations, unless suspended, runs
from the last overt act during the existence of the
conspiracy."). However, the statute of limitations is an
affirmative defense that is waived unless properly
preserved. United States v. Karlin, 785 F.2d 90, 92-93 (3d
Cir. 1986), cert. denied, 480 U.S. 907 (1987). See also
United States v. Oliva, 46 F.3d 320, 325 (3d Cir. 1995)
(citing Karlin, 785 F.2d at 90-93) (where the defendant
neither raised the statute of limitations as a defense before
or at trial nor asked for any jury instructions on the
defense, the defense is waived and this court is prevented
from reaching the issue on direct review).
Here, the district court concluded that defense counsel’s
comments at sidebar were sufficient to preserve the issue of
the statute of limitations and the need to inform the jury
that the government must establish beyond a reasonable
_________________________________________________________________
a district court ‘abuses its discretion when it makes an error of law.’ "
United States v. Askari, 140 F.3d 536, 539 (3d Cir. 1998) (en banc)
(quoting Koon v. United States, 518 U.S. 81, 100 (1996)), vacated on
other grounds, 159 F.3d 774 (3d Cir. 1998). Consequently, " ‘[t]he abuse
of discretion standard includes review to determine that the discretion
was not guided by erroneous legal conclusions.’ " Id.
7
doubt that Jake committed at least one overt act within five
years of the date of the indictment. We disagree.
We believe that the only practical interpretation of the
aforementioned sidebar exchange between defense counsel
and the court is the one given it at the time by both the
court and the prosecutor. When the conversation occurred,
the district court and the prosecutor clearly thought that
defense counsel was only asking the court to limit the
evidence the jury could consider to those overt acts
occurring within five years of the indictment. That is what
defense counsel said, and that is what the court and
prosecutor heard. This is evident not only from a common
sense interpretation of counsel’s statement, but also from
the responses of the court and prosecutor. When asked to
respond, the prosecutor replied that the jury could consider
all of the alleged overt acts "[a]s long as there’s one overt
act committed within the statute of limitations . . . ." The
court agreed, and rejected defense counsel’s request.6
Defense counsel did not attempt to clarify the interpretation

-- 6 of 11 --

that was evident from the prosecutor’s reply, nor did he
object to the charge that the court gave. Defense counsel
now attempts to parlay the sidebar colloquy into an
objection that he could have raised at sidebar, but didn’t.
The district court nevertheless relied upon counsel’s
remarks at sidebar in granting a new trial based upon the
failure to charge on the application of the statute of
limitations to the overt acts of a conspiracy. However, our
review of the record causes us to conclude that defense
_________________________________________________________________
6. The prosecutor and court were correct. A conspiracy is a continuing
offense and a jury may consider each and all of a defendant’s actions in
furtherance of the conspiracy so long as the indictment is brought within
five years of the last overt act. See United States v. Johnson, 165 F.2d
42, 45 (3d Cir. 1947) (overt acts committed outside the statute of
limitations period for a conspiracy to obstruct justice may be proved to
show the existence and continuance of the conspiracy so long as at least
one overt act is within the statute of limitations period). See also
Gruenwald, 353 U.S. at 396-97; Schurr, 794 F.2d at 907. Thus, the
district court correctly rejected defense counsel’s attempt to limit the
jury’s consideration to only those overt acts occurring within five years
of the indictment.
8
counsel simply did not request the statute of limitations
instruction that the new trial was predicated upon.
Rule 30 of the Federal Rules of Criminal Procedure
provides, in relevant part, that
No party may assign as error any portion of the charge
or omission therefrom unless that party objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter to which that party objects and
the grounds of the objection.
Fed. R. Crim. P. 30. "The purpose of this provision is to
provide the district court an opportunity to correct potential
problems in jury instructions before the jury begins its
deliberations." United States v. Russell, 134 F.3d 171, 178
(3d Cir. 1998). See also United States v. Logan , 717 F.2d
84, 91 n.13 (3d Cir. 1983) ("Rule 30 has the manifest
purpose of avoiding whenever possible the necessity of a
time-consuming new trial by providing the trial judge with
an opportunity to correct any mistakes in the charge before
the jury begins to deliberate.")
We have recognized that "the crux of Rule 30 is that the
district court be given notice of potential errors in the jury
instructions, not that a party be ‘required to adhere to any
formalities of language and style to preserve his objection
on the record.’ " Russell, 134 F.3d at 178 (quoting United
States v. O’Neill, 116 F.3d 245, 247 (7th Cir. 1997)).
However, an objection must nevertheless be sufficiently
precise to allow the trial court to address the concerns
raised in the objection. See Fed. R. Crim. P. 30. Thus,

-- 7 of 11 --

counsel must "stat[e] distinctly the matter to which that
party objects and the grounds of the objection." Russell,
134 F.3d at 179 (citing United States v. Sandini , 803 F.2d
123 (3d Cir. 1986)). "[C]ounsel is required to draw the
court’s attention to a specific instruction, or to a problem
with an instruction, in order to put the court on notice so
that a possible error may be corrected before the jury
begins to deliberate." Davis, 183 F.3d at 252 (discussing
requests for jury instructions generally). "Without a clearly
articulate objection, a trial court is not sufficiently apprized
of the contested issue and the need to cure a potential error
to avoid a new trial." Government of the Virgin Islands v.
Knight, 989 F.2d 619, 631 (3d Cir. 1993).
9
In Knight, a case we find instructive, defense counsel
requested an involuntary manslaughter charge be included
in the court’s instructions on homicide. The court agreed.
However, defense counsel withdrew that request when the
court agreed to also inform the jury that assault with a
deadly weapon was a felony as the prosecutor requested.
Confronted with that additional instruction as to
possession of a deadly weapon, defense counsel withdrew
his request for an involuntary manslaughter charge. The
court afforded both attorneys an opportunity to object to
the proposed charge before giving it, but defense counsel
did not object when the court instructed the jury without
including an instruction on manslaughter. The defendant
was convicted, and appealed.
On appeal, defense counsel argued that he requested
that the court not give a manslaughter charge "in
conjunction with the proposed explanation of a felony." Id.
at 631. Counsel insisted that his original objection to the
complete omission of the charge informed the court that he
wanted a manslaughter charge without the explanatory
instruction regarding possession of a deadly weapon. Id. We
disagreed. We concluded that defense counsel had not
objected with the specificity required under Rule 30 to
preserve an objection.
Defense counsel . . . did not make known that he
maintained an objection to the failure to give the
charge in the form advocated. Moreover, when the
court asked if either party had any objections to the
jury instructions in their final form, defense counsel
was silent.
Id.
Moreover, in Jones v. United States, 527 U.S. 373, 387
(1999), the Supreme Court said:
a request for an instruction before the jury retires[does
not] preserve an objection to the instruction actually
given by the court. Otherwise district judges would
have to speculate on what sorts of objections might be
implied through a request for an instruction and issue

-- 8 of 11 --

rulings on "implied" objections that a defendant never
intends to raise.
10
Jake’s attempt to wedge his sidebar comments into the
parameters of Rule 30 requires just such speculation. The
fact that the district court ultimately concluded that Jake’s
remarks were sufficient to put it on notice of the
requirement for an instruction on the overt act occurring
within the statute of limitations does not change that.
Defense counsel’s request for an additional charge does not
constitute an objection to the charge that was given. See
also United States v. Sandini, 803 F.2d 123 (3d Cir. 1986).
In Sandini, defense counsel failed to preserve an
objection under Fed. R. Evid. 404(b) merely by objecting on
grounds of "relevance" at three different times during the
trial. 803 F.2d at 126. We found that counsel’s failure to
object under Rule 404(b) was not preserved because
counsel did not rest his objection upon that rule. Id.
Here, the district court cited our opinion in Russell in
concluding that the objection was preserved, and granting
a new trial. There, we found that the colloquy between the
judge and trial court put the court on notice of a possible
error in the jury instructions. The trial court did not
instruct the jury as to the need for unanimity on predicate
offenses in a continuing criminal enterprise pursuant to 21
U.S.C. S 848 as required by United States v. Edmunds, 80
F.3d 810, 814 (3d Cir. 1996). Following the charge, the
judge met with counsel to allow them an opportunity to
voice any objections to the court’s instructions. During the
ensuing conference, the prosecutor and defense counsel
engaged in an extended debate over the applicability of
Edmunds. Although defense counsel did not explicitly
object to the instructions, he nonetheless informed the
court that he did not think that Edmunds was applicable,
and proposed an alternate jury instruction. Russell, 134
F.3d at 178-180. On those facts, we held that the colloquy
was "tantamount to an objection and therefore sufficient to
preserve this issue" for review. Id. at 180.
Although counsel’s statements in Russell did not focus
on a specific objection to the trial judge’s charge, they did
illuminate the debate over the unanimity rule we had
interpreted in Edmunds. Moreover, counsel’s alternative
instruction afforded a clear opportunity for the trial court to
respond to the problem that counsel had identified. Unlike
11
Russell, the colloquy here did not focus on the legal issue
in question. Rather, it not only focused upon an entirely
distinct issue, it also rested upon an erroneous view of the
law.
For these reasons, we find that Jake failed to preserve an

-- 9 of 11 --

objection to the absence of a statute of limitations
instruction.7 Accordingly, we review Jake’s objection only
for plain error. See Jones, 527 U.S. at 388; Russell, 134
F.3d at 178. "For there to be plain error, there must be an
‘error’ that is ‘plain’ and that ‘affects substantial rights’. A
deviation from a ‘legal rule is ‘error’.
A ‘plain’ error is one which is ‘clear’ or‘obvious.’ " Russell,
135 F.3d at 180 (internal citations omitted). In plain error
cases, the defendant bears the burden of persuasion that a
plain error has occurred. United States v. Olano , 507 U.S.
725, 734 (1993).
III.
An appellate court may correct a plain error only if that
error "affects substantial rights." Fed. R. Crim. P. 52(b).
"[I]n most cases it means that the error must have been
prejudicial: It must have affected the outcome of the district
_________________________________________________________________
7. Jake’s counsel also contends that if the statute of limitations defense
was actually waived, he was ineffective in preserving the issue for review.
He therefore urges us to remand for a hearing on that issue. However,
we have stated repeatedly that Sixth Amendment claims of ineffective
assistance of counsel should ordinarily be raised in a collateral
proceeding pursuant to 28 U.S.C. S 2255 rather than on direct appeal.
Oliva, 46 F.3d at 325; Sandini, 888 F.2d at 312; Government of the Virgin
Islands v. Forte, 806 F.2d 73, 77-78 (3d Cir. 1986); United States v.
Gambino, 788 F.2d 938, 950 (3d Cir.), cert. denied, 479 U.S. 825 (1986).
We have noted an exception to this practice where the Sixth Amendment
claim of ineffective assistance of counsel is predicated on an actual
showing of conflict of interest between the attorney and the accused as
apparent from the face of the record. See Government of the Virgin
Islands v. Zepp, 748 F.2d 125, 133-134 (3d Cir. 1989). However, nothing
in the record or argument of Jake’s counsel indicates a readily apparent
conflict of interest between Jake and his counsel or any other
extraordinary circumstances which would mandate a hearing on the
issue of ineffective assistance of counsel. Accordingly, we reject Jake’s
request for an evidentiary hearing during the course of his direct appeal.
12
court proceedings." Olano, 507 U.S. at 734. However, Jake
clearly cannot satisfy that burden because he concedes that
an overt act did occur within five years of the date of the
indictment. That evidence was not only uncontradicted, it
was furnished by Jake himself.
The district court believed that Jake was prejudiced by
the omission of the charge because the jury "may have
utilized an overt act outside the statute of limitations to
find Jake guilty of Count II [the conspiracy count] of the
indictment." App. at 26.8 However, Jake testified about his
conversation with Echols, and admitted that he attempted
to get her to lie to the grand jury. The jury heard a
recording of that conversation, and there is nothing to
suggest that the conversation did not occur on October 2,
1997 as charged in overt act #6 in the indictment. 9

-- 10 of 11 --

Accordingly, Jake admitted to instructing Echols to
perjure herself in front of the grand jury within five years of
the indictment. Therefore, notwithstanding any alleged
error, the absence of a specific instruction on an overt act
occurring within five years of the indictment could not have
prejudiced Jake. It was never an issue, and Jake’s own
testimony removed all doubt. Therefore, Jake’s contention
of error must fail. See Neder v. United States , 527 U.S. 1
(1999) (failure to charge on an element of a crime was not
prejudicial where uncontroverted evidence established an
element of the offense and no reasonable jury could have
concluded that the element had not been established
beyond a reasonable doubt).
IV.
For the foregoing reasons, we will vacate the order
granting a new trial, reinstate the conviction under Count
II, and remand to the district court for sentencing.
_________________________________________________________________
8. The district court briefly discussed "prejudice" as part of its harmless
error analysis.
9. There is no challenge to the chain of custody of the tape recordings or
any of the logs or records that may have been relied upon to furnish the
date of the conversation.
13
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
14

-- 11 of 11 --