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U.S. v. RICH

July 22, 2004.

U.S.
v.
COBIE RICH Defendant.



The opinion of the court was delivered by: ANITA BRODY, District Judge

MEMORANDUM AND ORDER

On February 5, 2004, following a jury trial, Cobie Rich was found guilty of the following three counts: possession with the intent to distribute cocaine and cocaine base ("crack") on October 8, 2002 (Count 1); possession with the intent to distribute cocaine and crack on December 17, 2001 (Count 2); and possession with the intent to distribute crack on October 11, 2001 (Count 3). Rich was acquitted of the following charges: possession of a firearm in furtherance of a drug trafficking crime and felon in possession of a firearm. Rich has filed a motion for a judgment of acquittal or new trial pursuant to Federal Rules of Criminal Procedure 29 and 33.*fn1 I. Standard of Review

Federal Rule of Criminal Procedure 29(c)(1) provides, in pertinent part, that after a jury verdict, "a defendant may move for a judgment of acquittal." Fed.R.Crim.P. 29(c)(1). In ruling on a motion for judgment of acquittal based on insufficiency of the evidence pursuant to Rule 29, 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. 1984). The trial court is obliged to uphold the jury's verdict unless, viewing the evidence in this fashion, no rational jury could have found the defendant guilty beyond a reasonable doubt. Id. Furthermore, the district court must "presume that the jury has properly carried out its functions of evaluating credibility of witnesses, finding the facts, and drawing justifiable inferences" such that "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). This court, therefore, "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." Ashfield, 735 F.2d at 106. In that regard, the court will not substitute its own judgment regarding what the court would conclude had it been the finder of fact. Rather, the court is limited to determining whether the factfinders made a permissible conclusion. Id.

  Federal Rule of Criminal Procedure 33 provides that "on the defendant's motion the court may grant a new trial . . . if the interests of justice so require." Within its discretion, the court may grant a defendant a new trial only if it finds that "there is a serious danger that a miscarriage of justice has occurred — that is, that an innocent person has been convicted." United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). Additionally, the court must grant a new trial if errors occurred during the trial, and it is reasonably possible that such error, or combination of errors, substantially influenced the jury's decision. United States v. Copple, 24 F.3d 535, 547 n. 17 (3d Cir. 1994).

  II. Claims

  Defendant asserts that the following grounds entitle him to either an acquittal or a new trial: (1) trial court error regarding suppression; (2) trial court error regarding expert testimony; (3) insufficient evidence; and (4) trial court error regarding severance. I will go through each in turn.

  (1) Trial court error regarding suppression

  With respect to this claim, Rich contends that the court erred in denying his motion to suppress the search conducted on December 17, 2001 and the stop and search conducted on October 11, 2001. In my findings of fact and conclusions of law regarding Rich's motion to suppress, which was made part of the record in this case and was marked C-1, I denied the motion to suppress. As my reasoning was fully explained in that document, I will not repeat the analysis here.

  (2) Trial court error regarding expert testimony

  Rich contends that the court made two errors regarding expert testimony: (a) the court erred in allowing the government to present expert testimony without having provided an adequate expert report; and (b) the court erred in qualifying Agent Jon Cohen as an expert. (a) The court erred in allowing the government to present expert testimony without having provided an adequate expert report

  Federal Rule of Criminal Procedure 16(a)(1)(G) states:
At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. . . . The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
Fed.R.Crim.P. 16(a)(1)(G).
  In advance of trial, defense counsel requested an expert report from the government. (Record at 6-13 (February 3, 2004).) At the final pre-trial conference held on January 28, 2004, defense counsel stated that she had not yet received an expert report and renewed her request for one. (R., Transcript of Final Pre-trial Conference, at 17 (January 28, 2004).) At that time, I agreed that defense counsel was entitled to a report. Id. The government first provided defense counsel with an expert report on February 2, 2004. (R. at 6-13 (February 3, 2004).) On February 3, 2004, the first day of trial, defense counsel made a formal objection to both the timeliness and the content of the expert report. (Id.) At that time, I questioned defense counsel as to what counsel might have done had she received the report earlier. (Id.) Defense counsel responded that due to the timing of the disclosure of the report, she hadn't had time to consult with her client or a potential defense expert witness. (Id.) After pointing out to defense counsel that, as of the final pre-trial conference on January 28, 2004, she was on notice that an expert report was forthcoming, I asked defense counsel how she would like to proceed. (Id.) In response, defense counsel requested that I preclude the expert testimony. (Id.) After denying that request, I asked defense counsel whether she needed time to consult with her client and a potential expert. Defense counsel indicated that she would proceed with trial. (Id.) I did, however, order the government to prepare a revised report, which was submitted to defense counsel on the morning of February 4, 2004 and was marked D-1. (R. at 6-13 (February 3, 2004); R. at 4-13 (February 4, 2004).) Defense counsel also objected to my allowance of this amendment. In response, I stated:
I will allow the amendment, because you were not — it's not unfair prejudice to you, you knew very well what the — what it was going to say. Because you were told in my chambers the other day what it was going to be about . . . you are not blind-sided.
(R. at 12 (February 4, 2004).) The amended report submitted by the government, and prepared by the expert, included a single sentence stating the expert's conclusion that the drugs possessed by Rich on both October 11, 2001 and December 17, 2001 were possessed for the purpose of distribution. (Exhibit D-1.) In addition to the one-sentence conclusion, the report contained a succinct, numbered list of several factors which led the expert to this conclusion, including, inter alia, "the firearm seized," "the quantity of cellular telephones seized," and "the weight of drugs seized." Id. The expert report did not include any information regarding how the expert reached his conclusion, such as any analysis, process of evaluation, or methodology. Quite simply, the report stated factors and a conclusion but failed to link the facts to the conclusion. Defense counsel also objected to the new report, again on grounds of both content and lack of timeliness, and I overruled the objection. (R. at 4-13 (February 4, 2004).) The government's expert, Jon Cohen, testified on February 4, 2004.

  In addition to objecting to the expert report prior to the expert's trial testimony, defense counsel also continuously objected during the expert's testimony. In sum, defense counsel argued that the following testimony was outside the scope of the expert report and should be precluded: (1) the amount of drugs that an average user would consume on a daily basis; (2) the violence surrounding the drug business in Philadelphia and the utilization of firearms; (3) the communication habits of drug dealers carrying multiple cell phones; (4) the attempts by drug dealers carrying multiple cell phones to evade law enforcement; (5) the different colored packaging indicating that the drug dealer is being supplied by various individuals; and (6) the amount of money carried by drug users as opposed to dealers. (R. at 42, 45, 47, 50, 54-55 (February 4, 2004).)

  In United States v. Lopez, 271 F.3d 472 (3d Cir. 2001), the Third Circuit held that even if the government failed to provide an expert report which included the bases and reasons for the expert's opinion and also failed to disclose the expert's resume until trial, a new trial was not warranted unless the appellant could show prejudice. In holding that these circumstances did not warrant a new trial, the Third Circuit began its analysis by assuming, arguendo, that the government had violated Federal Rule of Criminal Procedure 16(a). Lopez, 271 F.3d at 483. The Third Circuit then turned to Rule 16(d)(2), which addresses the situation in which a party fails to comply with a discovery request. Id. According to Rule 16(d)(2), if a party fails to comply with a discovery request, the court has several options. Fed.R.Crim.P. 16(d)(2). Specifically, the court may order that party to permit the discovery or inspection, grant a continuance, prohibit that party from introducing the undisclosed evidence, or enter "any other order that is just under the circumstances."*fn2 Id. Recognizing that "on its face, the Rule does not require a district court to do anything," and further refusing to "second guess the District Court's view of what was `just,'" the Third Circuit held that a new trial was warranted only where "the District Court's actions resulted in prejudice to the defendant." Lopez, 271 F.3d at 483-84; see also United States v. Davis, 233 F. Supp.2d 695, 699-700 (E.D. Pa. 2002). Further elucidating this standard, the Lopez court cited the decision in United States v. Mendoza, in which the Ninth Circuit held that failure to comply with Rule 16 only required reversal where the appellant "demonstrate[d] prejudice to substantial rights [where] [t]he prejudice . . . is a likelihood that the verdict would have been different had the government complied with the discovery rules, not had the evidence [been] suppressed." 244 F.3d 1037, 1047 (9th Cir. 2001), quoted in Lopez, 271 F.3d at 483-84. Additionally, by citing with approval the Seventh Circuit's decision in United States v. Miller, in which the court held that where the government failed to properly disclose expert witness ...


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