Discretion to Hear Untimely Criminal Appeals When the Government Does Not Object (and Reaffirmation of “Intent + Substantial Step” for Attempt)

I. Introduction

The appeals arise from a multi-defendant prosecution centered on a Reading, Pennsylvania “boarding house” that functioned as a hub for drug dealing, prostitution, and violence. Shaquile Newson and Alexander Malave founded “The Sevens,” a gang that controlled activity inside the house, taxed residents, and enforced its rules through intimidation and assaults. Karvarise Person served as a high-ranking “general,” and James Goode—though not a Sevens member—supplied drugs and participated in prostitution-related conduct.

After a jury trial in the Eastern District of Pennsylvania (Judge Edward G. Smith), the defendants were convicted of overlapping offenses including RICO conspiracy, sex trafficking and sex-trafficking conspiracy, assaults, and firearm-related crimes. They received lengthy sentences (including life-plus terms for Malave and Person).

On appeal, the defendants challenged (1) denial of severance; (2) admission of physical evidence (drugs and firearms) and expert testimony; (3) guideline calculations and relevant conduct findings; (4) a vagueness challenge to 18 U.S.C. § 1591(c); (5) suppression issues relating to Malave’s cellphone searches and authentication of jail messages; and (6) the sufficiency of the evidence. A threshold procedural issue also arose: Newson’s notice of appeal was untimely.

II. Summary of the Opinion

The Third Circuit affirmed across the board. Key holdings and rulings include:

• Untimely appeal (Newson): Despite an untimely notice of appeal under Fed. R. App. P. 4(b), the court exercised discretion to hear the appeal because the Government did not object, citing Manrique v. United States, and noting fairness concerns where counsel erred.
• Severance (Goode): No abuse of discretion in trying defendants jointly, especially in a conspiracy case, with limiting instructions deemed sufficient.
• Evidence from Goode’s home: Admission of firearms/drugs upheld as probative of participation in the charged conspiracies.
• Guidelines (Goode): Drug quantity estimate and enhancements upheld; any potential error deemed harmless because the advisory range would be unchanged.
• Expert testimony: “Teaching experts” on gang dynamics and sex trafficking satisfied Rule 702 “fit” and were properly admitted.
• Vagueness (Person, § 1591(c)): The court bypassed the constitutional issue because the jury found actual knowledge or reckless disregard of the minor’s age.
• Suppression (Malave): 2018 cellphone warrant upheld as sufficiently justified for broad digital search; “plain view” discovery supported the later federal warrant; good-faith doctrine would apply in any event.
• Authentication: Jail “emails” were sufficiently authenticated; Rule 901’s burden is “slight.”
• Attempt liability: The court rejected an out-of-circuit “probability of completion” gloss, reaffirming the Third Circuit standard of intent plus a substantial step.
• Sufficiency: Challenges failed under the highly deferential standard of review; Newson’s unpreserved sufficiency theory received only plain-error review.

III. Analysis

A. Precedents Cited

1. Untimely notices of appeal and jurisdictional discretion

• Manrique v. United States, 581 U.S. 116 (2017): The panel relied on Manrique for the proposition that Rule 4(b)’s deadline in criminal cases is not treated as a hard jurisdictional bar in the same way as certain civil deadlines; the court may choose to proceed when the Government does not press timeliness. The opinion uses Manrique to justify hearing Newson’s appeal despite counsel’s failure to file a timely notice, explicitly to avoid “unduly penalizing” Newson for counsel’s oversight.

2. Severance and joint trials in conspiracy cases

• United States v. Heatherly, 985 F.3d 254 (3d Cir. 2021): Provided the abuse-of-discretion standard for reviewing denial of severance.
• Zafiro v. United States, 506 U.S. 534 (1993): Supplied the baseline framework: risk of prejudice can increase with many defendants and unequal culpability, but mutually antagonistic defenses are “not prejudicial per se.”
• United States v. Urban, 404 F.3d 754 (3d Cir. 2005): Reinforced the federal preference for joint trials to promote efficiency and avoid inconsistent verdicts, quoting Zafiro.
• United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996): Supported heightened preference for joint trials in conspiracy cases, where a single trial helps the factfinder see the “full extent of the conspiracy.”
• United States v. Savage, 85 F.4th 102 (3d Cir. 2023): Used to characterize the appellant’s “heavy burden” in challenging denial of severance.
• United States v. Sandini, 888 F.2d 300 (3d Cir. 1989): Recognized the logic of severance where defenses are “irreconcilable and mutually exclusive,” a circumstance the panel found absent.

3. Admission of evidence and sentencing review

• Affiliated Mfrs., Inc. v. Aluminum Co., 56 F.3d 521 (3d Cir. 1995): Cited for abuse-of-discretion review of evidentiary rulings (outside Rule 702 context).
• United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc): Established de novo review for Guidelines interpretation and clear-error review for sentencing factfinding.
• United States v. Rodriguez, 40 F.4th 117 (3d Cir. 2022): Guided application of the drug-premises enhancement, noting “supervising” or “protecting” a site can qualify even without ownership.
• United States v. Isaac, 655 F.3d 148 (3d Cir. 2011): Supported harmless-error analysis where alleged Guidelines error would not change the advisory range (invoked for both Goode and Malave).

4. Expert testimony under Rule 702

• United States v. Schiff, 602 F.3d 152 (3d Cir. 2010): Set out the three-part Rule 702 framework (qualification, reliability, and “fit”).
• Pineda v. Ford Motor Co., 520 F.3d 237 (3d Cir. 2008): Quoted (through Schiff) for the Rule 702 elements.
• Heller v. Shaw Indus., Inc., 167 F.3d 146 (3d Cir. 1999): Provided abuse-of-discretion review for Rule 702 decisions.
• United States v. Perez, 280 F.3d 318 (3d Cir. 2002): Supported admitting “teaching experts” to explain criminal methods unfamiliar to jurors (gang-related drug trafficking communications).

5. Digital searches, warrants, plain view, and good faith

• United States v. Ritter, 416 F.3d 256 (3d Cir. 2005): Cited for warrant requirements of particularity and probable cause, and for deferential review of probable cause determinations.
• United States v. Stabile, 633 F.3d 219 (3d Cir. 2011): Central to the court’s acceptance of broad digital searches where it is difficult to know where evidence is located and separating data is practically challenging.
• United States v. Loy, 191 F.3d 360 (3d Cir. 1999): Applied to frame the good-faith inquiry (whether a well-trained officer would know the search was illegal despite authorization).
• United States v. Leon, 468 U.S. 897 (1984): Source of the good-faith exception rule invoked via Loy.
• United States v. Yamba, 506 F.3d 251 (3d Cir. 2007): Provided the Third Circuit’s articulation of the “plain view” doctrine.
• Minnesota v. Dickerson, 508 U.S. 366 (1993): Quoted (through Yamba) for the “plain view” elements.

6. Authentication and the jury’s role

• States v. Womack, 55 F.4th 219 (3d Cir. 2022): Supplied plain-error review because Malave did not object at trial.
• United States v. Turner, 718 F.3d 226 (3d Cir. 2013): Stated Rule 901(a)’s authentication burden is “slight,” requiring only a prima facie showing.
• United States v. Goichman, 547 F.2d 778 (3d Cir. 1976): Emphasized authenticity is ultimately for the jury once a prima facie case is made.

7. Relevant conduct in jointly undertaken activity

• United States v. Collado, 975 F.2d 985 (3d Cir. 1992): Anchored the limitation that relevant conduct must be within the scope of the defendant’s agreement, in furtherance of jointly undertaken activity, and reasonably foreseeable (not merely “the conspiracy as described in the count of conviction”).
• United States v. West, 643 F.3d 102 (3d Cir. 2011): Confirmed clear-error review for relevant-conduct findings.

8. Sufficiency of the evidence and attempt doctrine

• United States v. Lore, 430 F.3d 190 (3d Cir. 2005): Characterized the sufficiency burden as “extremely high.”
• United States v. Cothran, 286 F.3d 173 (3d Cir. 2002): Supplied the governing test: view evidence in the light most favorable to the Government; affirm if any rational juror could find guilt beyond a reasonable doubt.
• United States v. Pawlowski, 682 F.3d 205 (3d Cir. 2012): Used both for attempt doctrine (“substantial step”) and to reject a probability-of-completion overlay.
• Gov't of V.I. v. Isaac, 50 F.3d 1175 (3d Cir. 1995): Clarified that conflicting testimony typically raises credibility issues for the jury, not sufficiency problems.
• United States v. Engle, 676 F.3d 405 (4th Cir. 2012): Cited only to reject Person’s proposed “probability” assessment for attempt; the panel declined to adopt that approach.
• United States v. Lee, 612 F.3d 170 (3d Cir. 2010): Applied to limit Newson to plain-error review where his appellate sufficiency arguments differed from those preserved below.

9. Interstate commerce and internet facilitation

• Hotel & Restaurant Emps. & Bartenders Int'l Union Loc. 54 v. Danziger, 709 F.2d 815 (3d Cir. 1983): Used to support the proposition that activity involving hotels/places of public accommodation affects interstate commerce.
• United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006): Quoted for the principle that “the Internet is an instrumentality and channel of interstate commerce.”

B. Legal Reasoning

1. The opinion’s most concrete “new rule” move: discretionary hearing of an untimely criminal appeal when the Government does not object

Although the panel did not purport to announce a novel doctrine, it operationalized an important procedural principle: when a criminal appellant misses the Rule 4(b) deadline and the Government does not invoke untimeliness, the court may proceed to the merits. The panel emphasized two constraints and one equitable consideration:

• Constraint 1 (district court): The district court correctly denied a nunc pro tunc extension because Fed. R. App. P. 26(b)(1) forbids extending time beyond Rule 4’s limits.
• Constraint 2 (appellate court): The court’s ability to hear the case hinges on the opposing party not raising the timeliness defect, consistent with Manrique v. United States.
• Equity: The panel explicitly sought to avoid punishing Newson for counsel’s “oversights,” a recurring concern in criminal appellate administration.

2. Severance: limiting instructions and conspiracy context carry the day

Goode’s severance argument—premised on spillover prejudice from co-defendants’ violence—failed largely because the panel treated (a) joint trials as strongly preferred, especially in conspiracy cases (United States v. Urban; United States v. Voigt), and (b) proper limiting instructions as a meaningful safeguard. The absence of mutually antagonistic defenses (United States v. Sandini, tempered by Zafiro v. United States) further weakened Goode’s claim.

3. Evidence linkage and trial court discretion

The admission of guns, ammunition, and drugs from Goode’s home turned on relevance to proving participation in a violent drug/sex-trafficking conspiracy: testimony placed him with firearms at the boarding house while dealing drugs. Under abuse-of-discretion review (Affiliated Mfrs., Inc. v. Aluminum Co.), the panel found no error.

4. Guidelines: clear-error deference, plus robust harmless-error backstops

Goode’s guidelines challenges (drug quantity; violence enhancement under U.S.S.G. § 2D1.1(b)(2); drug-premises enhancement under U.S.S.G. § 2D1.1(b)(12)) were rejected under United States v. Grier’s review framework. Notably, the panel also relied on harmlessness (United States v. Isaac): even if Goode were right, his offense level shift would not change the advisory range. A similar harmlessness point ended Malave’s relevant-conduct objections because his offense level would still exceed the Guidelines’ de facto maximum.

5. Rule 702 “teaching experts”: fit without case-specific narration

The defense framed the gang and sex-trafficking experts as improper “bolstering.” The panel instead treated the testimony as permissible background education under Rule 702’s “fit” prong (United States v. Schiff; Heller v. Shaw Indus., Inc.), citing United States v. Perez for allowing experts to explain unfamiliar criminal practices. The key reasoning move: even general testimony can “assist the trier of fact” when it helps jurors evaluate elements like RICO “enterprise” and § 1591 “force, fraud, or coercion.”

6. Avoidance of constitutional vagueness via jury finding

Person’s attack on § 1591(c) (“reasonable opportunity to observe”) was not resolved on the merits. The panel invoked a practical form of constitutional avoidance: because the jury found Person actually “knew of or recklessly disregarded” the victim’s age, the relaxed mens rea feature of § 1591(c) was not necessary to sustain the conviction. Thus any vagueness in § 1591(c) would not affect the outcome.

7. Digital search warrants: broad collection justified; plain-view plus good faith reinforces admissibility

Malave’s suppression challenges were defeated through layered reasoning:

• Nexus: Malave himself identified his phone contacts as potentially verifying an alibi, supplying a link between device and offense (United States v. Ritter).
• Scope/particularity in digital settings: The opinion approved broad download/search because evidence can be dispersed across files and formats; United States v. Stabile supported whole-device style searching given practical constraints.
• Good faith: Even if defective, the warrant was not so facially flawed that reliance would be unreasonable (United States v. Loy quoting United States v. Leon).
• Plain view and the later warrant: Evidence seen “in plain view” during the lawful 2018 search could support the later federal warrant, consistent with United States v. Yamba quoting Minnesota v. Dickerson.

8. Authentication: minimal threshold, then jury decides

Under plain-error review (States v. Womack), Malave’s authentication challenge failed because Rule 901 requires only a prima facie showing (United States v. Turner), after which authenticity is for the jury (United States v. Goichman). Testimony about unique IDs/PINs, routine recordkeeping, and content consistent with other trial evidence met that low threshold.

9. Attempt: Third Circuit rejects “probability” gloss and sticks to “intent + substantial step”

Person’s reliance on United States v. Engle (4th Cir.) sought to add an inquiry into how likely completion would have been absent “intervening circumstances.” The panel expressly declined that approach, stating the Third Circuit standard requires only intent and a “substantial step” (United States v. Pawlowski). Applying that standard, photographing a victim for prostitution posting and threatening confinement constituted more than enough for attempt liability, even if the victim resisted or refused.

C. Impact

1. Procedural impact: a practical reminder about Rule 4(b) forfeiture

The opinion underscores a strategic reality in criminal appeals: timeliness defects under Rule 4(b) may be effectively waived/forfeited by the Government’s non-objection, enabling merits review. The panel’s explicit fairness rationale may encourage litigants to frame similar requests around counsel error and the Government’s litigation position, while reminding prosecutors that silence can open the door to appellate review.

2. Substantive impact: reinforcing permissive admission of contextual expert testimony

By reaffirming “teaching expert” admissibility for gang structure and sex-trafficking dynamics, the decision supports the Government’s frequent practice of using experiential experts to contextualize coercion, recruitment, and organizational control. Defendants, conversely, are reminded that a generalized nature of testimony does not defeat “fit” if it helps the jury understand statutory elements.

3. Digital evidence impact: breadth of device searches and downstream warrants

The opinion fits within a line of Third Circuit decisions (notably United States v. Stabile) that tolerate broad acquisition and searching of digital data when evidence location is uncertain and investigative objectives are not artificially narrow. It also illustrates how “plain view” discoveries can legitimately seed later warrants, insulating later searches from suppression.

4. Attempt doctrine impact: no “likelihood” requirement

For sex-trafficking attempts in particular, the panel’s explicit rejection of a probability-of-completion inquiry lowers defendants’ ability to argue “it wouldn’t have worked anyway.” The focus remains on the defendant’s intent and objective steps taken toward the crime.

IV. Complex Concepts Simplified

• Rule 4(b) deadline (criminal appeals): Missing the deadline is serious, and district courts cannot extend it beyond Rule 4’s limits. But on appeal, the court may still hear the case if the Government does not object to lateness (as the panel did here, relying on Manrique v. United States).
• Severance: A request to split co-defendants into separate trials. Courts prefer joint trials—especially for conspiracies—and will often rely on jury instructions to prevent “spillover” prejudice.
• Rule 702 “fit”: Expert testimony must help the jury decide something relevant. “Teaching experts” can explain general patterns (gang hierarchy, coercion in trafficking) that jurors may not know, even without discussing the specific facts of the case.
• Plain view doctrine: If police are lawfully searching and immediately recognize evidence of a crime, they may seize it without a separate warrant; that discovery can support later warrants.
• Good-faith exception: Even if a warrant is later found defective, evidence may still be used if officers reasonably relied on the judge’s approval (United States v. Leon, applied via United States v. Loy).
• Relevant conduct (sentencing): A defendant can be sentenced based on some acts of co-conspirators, but only when those acts fall within the scope of the defendant’s agreement, further the jointly undertaken activity, and were reasonably foreseeable (United States v. Collado).
• Attempt: In the Third Circuit, the Government must prove (1) intent to commit the crime and (2) a “substantial step” toward it—actions that strongly corroborate criminal intent. The court does not require proof that completion was likely.

V. Conclusion

This nonprecedential Third Circuit decision is best read as a consolidation of familiar doctrines applied to a complex RICO/sex-trafficking prosecution. Its most practically salient move is procedural: the court exercised discretion to reach the merits of an untimely criminal appeal where the Government did not object, explicitly to avoid penalizing a defendant for counsel’s mistake, consistent with Manrique v. United States. Substantively, the panel reaffirmed (1) the durability of joint trials in conspiracy cases, (2) the admissibility of contextual “teaching” expert testimony under Rule 702, (3) permissive approaches to broad digital searches and “plain view” discoveries supported by good faith, (4) low-threshold authentication under Rule 901, and (5) the Third Circuit’s attempt standard of intent plus substantial step, rejecting an added “probability of completion” requirement.