Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. DAVIS

November 26, 2002

UNITED STATES OF AMERICA,
V.
KEVIN DAVIS, ET AL., DEFENDANT.



The opinion of the court was delivered by: Marvin Katz, United States District Judge

MEMORANDUM AND ORDER

On September 13, 2002, a jury found defendants Kevin Davis, Reginal Scott, and Kevin Minnis each guilty of drug and gun violations. Now before the court is defendants' motion for judgment of acquittal pursuant to Rule 29(c), or in the alternative for a new trial pursuant to Rule 33. For the reasons set forth below, the defendants' motion is denied.

• Background

On the night of September 21, 2001, Philadelphia police officers arrested defendants Kevin Davis, Reginal Scott, and Kevin Minnis following a high speed car chase.*fn1 On July 17, 2002, a federal grand jury returned a superseding indictment charging the defendants each with one count of possession with intent to distribute cocaine base or "crack" in violation of 21 U.S.C. § 841, and one count of carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). The grand jury also charged defendant Kevin Minnis with possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). At trial, the government argued that the defendants were traveling in a black Honda with two other individuals when shots were fired from their automobile. Philadelphia Police Officer Caprara testified that she observed shots fired from the passenger side of the black Honda on the corner of 17th and Annin Streets and pursued the Honda in an unmarked police vehicle. After marked police cars joined the pursuit, the Honda stopped in the 2200 block of Moore Street. Officer Brook testified that he observed Reginal Scott and Kevin Davis exit the Honda. Kevin Davis attempted to flee on foot and Officer Brook pursued the defendant, fired his gun, and struck the defendant in the leg. The police recovered a Hi-Point .380 caliber pistol from the area where Davis fell, along with nineteen packets of cocaine base or crack and $116.00 from the Davis' clothes. Officer Caprara testified that she observed defendant Reginal Scott near the Honda toss a firearm from his waistband. The police recovered this weapon, a Browning Arms .380 caliber pistol loaded with eight live rounds, and ballistics reports indicated that the weapon was fired at 17th and Annin Streets. The police also recovered from defendant Scott forty-two pink tinted packets filled with cocaine base or crack, and two green tinted packets containing cocaine base or crack. Officer Bucceroni testified that he arrested defendant Kevin Minnis attempting to exit the Honda with a firearm. The police recovered from defendant Minnis a Heckler & Koch USP 9mm semi-automatic pistol with laser sights, one magazine loaded with eleven live rounds of ammunition, as well as twelve packets containing cocaine base or crack.

In order to show that the defendants' behavior was consistent with that of drug traffickers in the Philadelphia area, the government offered the testimony of Philadelphia Police Officer Derrick Garner. Officer Garner, a fourteen year veteran of the Philadelphia Police Department, testified that he had worked for twelve years in the narcotics division and was involved in over 2,500 arrests, two-thirds of which were for drug trafficking crimes. After the court qualified Garner as an expert, Garner testified that in his opinion the defendants' behavior was consistent with the modus operandi of South Philadelphia drug traffickers. According to Garner, he based this opinion on the lack of drug paraphernalia, the presence of guns, and the number of people in the car. Noting that South Philadelphia drug dealers provide delivery services, Garner also testified that in his opinion drug users do not carry weapons and do not travel in groups for protection. In contrast, the defense expert David Leff testified that in his opinion the number of packets and lack of equipment used by dealers indicated that the defendants merely possessed the drugs for personal use. After three days of testimony, the jury returned guilty verdicts on all counts.

• Discussion

A. Judgment of Acquittal

Federal Rule of Criminal Procedure 29(c) provides that a defendant may, within 7 days after the verdict, or longer if the court prescribes, file a motion for judgment of acquittal. When deciding a motion for judgment of acquittal under Fed.R.Crim.P. 29(c), a trial court must view the evidence "in the light most favorable to the prosecution and . . . draw all reasonable inferences therefrom in the government's favor." United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.), cert. denied, 469 U.S. 858 (1984). Because the defendants challenge the sufficiency of the evidence, this court "must independently re-examine the record and determine as a matter of law whether the evidence could support an inference of guilt beyond a reasonable doubt." Id. However, this court's duty is "limited to determining whether the conclusion chosen by the factfinders was permissible." Id. "A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (citations omitted). As the Third Circuit has noted, "[a] defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992).

Defendants argue that they are entitled to judgment of acquittal pursuant to Criminal Rule of Procedure 29(c) because there was no evidence at trial that Mr. Davis, Mr. Scott, or Mr. Minnis intended to distribute or sell the drugs. Even though the defendants concede that the evidence at trial "permits the inference" that each defendant possessed a firearm as well as "differently packaged packets of crack cocaine," the defendants contend that this evidence falls short of proving intent.*fn2 See Defs.' Mot. for J. of Acquittal, at 5. Specifically, defendants point to the lack of drug paraphernalia commonly used by dealers, the lack of sales records, and the small quantity of drugs. Id. Furthermore, the defendants assert that the government failed to prove that the defendants carried the firearms "in relation to" the drug offenses. The government responds that the number of guns recovered from the defendants, the number of people in the vehicle, the packaging of the drugs, and the circumstances of the arrest support the convictions.

This court finds that the evidence supports an inference of guilt beyond a reasonable doubt. Viewing the evidence in the light most favorable to the government, the Philadelphia police arrested the defendants following a shooting and a high speed car chase. All three defendant's carried guns and small packets of drugs, and the police found over $100 in defendant Kevin Davis' clothes. According to the government expert, South Philadelphia drug traffickers frequently travel in groups for protection and carry weapons. A jury may reasonably conclude that "an armed possessor of drugs has something more in mind than mere personal use." United States v. Cannon, 472 F.2d 144, 145 (9th Cir. 1972). See also United States v. Martinez, 54 F.3d 1040, 1043-44 (2d Cir. 1995) (finding that, in the context of the case, possession of a loaded firearm "by itself provided strong evidence of [the defendant's] intent to distribute."); United States v. Garrett, 903 F.2d 1105, 1113 (7th Cir. 1990) ("Intent to distribute has been inferred in cases where small amounts of drugs have been packaged in a manner consistent with distribution or have been possessed in conjunction with other indicia of drug distribution, such as a weapon."). Therefore, this court finds sufficient evidence for the jury's verdict.

• New Trial

Federal Rule of Criminal Procedure 33 provides that "[o]n a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." The decision whether to grant a motion for a new trial is within the sound discretion of the trial court. See United States v. Console, 13 F.3d 641, 665 (3d Cir. 1993). A new trial is warranted if trial errors had a substantial influence on the jury's verdict. See Government of the Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982). When evaluating a Rule 33 motion, the trial court need not view the evidence in the light most favorable to the government but instead must exercise its own judgment in evaluating the case. United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002).

In support of their motion for a new trial, defendants argue that the court erred in admitting the testimony of Officer Garner. Specifically, defendants assert that the government failed to provide adequate discovery of Officer Garner's testimony, and that this testimony violated the tenets of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1992). In addition, defendants contend that the court erred in denying defendant Reginal Scott's motion for a mistrial following Officer Brook's testimony. The court will address these arguments seriatim.

• Inadequate discovery

Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure provides:

At the defendant's request, the government shall disclose to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief. If the government requests reciprocal discovery under subdivision (b)(1)(C)(ii) of this rule and the defendant complies, the government shall, at the defendant's request, disclose to the defendant a written summary of testimony the government intends to use under Rules 702, 703, or 705 as evidence at trial on the issue of the defendant's mental condition. The summary ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.