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United States v. Kaplan

September 13, 2010


The opinion of the court was delivered by: Schiller, J.


On April 16, 2010, following an eight-day trial, Defendants Edward "Pooh" Kaplan and Leonard Mason were convicted of various drug-related charges. Specifically, the jury found Kaplan guilty of conspiracy to distribute a controlled substance, distribution of a controlled substance, possession with intent to distribute a controlled substance, and possession with intent to distribute a controlled substance near a school. The jury found Mason guilty of conspiracy to distribute a controlled substance and possession with intent to distribute a controlled substance. Presently before the Court are Kaplan's motion for a new trial and Mason's motion for acquittal or, in the alternative, for a new trial. For the reasons that follow, the motions are denied.


Rule 29 provides that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." FED R. CRIM. P. 29(c)(2). The court must view the evidence in the light most favorable to the prosecution and must uphold the verdict provided that any rational trier of fact could have found guilt beyond a reasonable doubt given the available evidence. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). Defendants face an uphill battle under this "highly deferential standard." United States v. Carbo, 572 F.3d 112, 119 (3d Cir. 2009). A challenge to the sufficiency of the evidence supporting a jury verdict "should be confined to cases where the prosecution's failure is clear." United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1994)).

"Courts must be ever vigilant in the context of Federal Rule of Criminal Procedure 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." Brodie, 403 F.3d at 133 (citing United States v. Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc)).

Rule 33 of the Federal Rules of Criminal Procedure permits a court to vacate any judgment and grant a new trial "if the interest of justice so requires." "[M]otions for new trials are disfavored and are only granted with great caution and at the discretion of the trial court." United States v. Martinez, 69 F. App'x 513, 516 (3d Cir. 2003) (citing United States v. Allen, 554 F.2d 398, 403 (10th Cir. 1977)).

Unlike a Rule 29 motion, a court does not view the evidence in the light most favorable to the government when considering a Rule 33 motion but rather exercises its own judgment in evaluating the government's case. United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). Nonetheless, "a district court 'can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it believes 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. Davis, 397 F.3d 173, 181 (3d Cir. 2005) (quoting Johnson, 302 F.3d at 150). A court must grant a new trial if it concludes that the trial was beset by cumulative errors that so infected the jury's deliberations that they substantially influenced the trial's outcome. United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994).


A. Kaplan's Motion

1. Improper Opinion Testimony

Both Defendants argue that they were irreparably prejudiced by certain testimony offered by Troopers Joseph Thompson, Michael Skahill, and Sean Regan. Specifically, Defendants argue that the testimony of these Troopers "repeatedly -- both explicitly and implicitly -- signaled to the jury their beliefs that [Defendants were] guilty, and otherwise expressed opinions regarding the credibility of witnesses . . . ." (Mem. of Law in Supp. of Def. Kaplan's Mot. for a New Trial [Kaplan Mem.] at 2; Post-Trial Mot. of Def. Mason for a New Trial, Acquittal [Mason Mot.] ¶ 9.)

a. Trooper Thompson

Trooper Thompson was responsible for executing a warrant at 122 West Wyneva Street, a property which the warrant avers was owned, occupied, or possessed by Kaplan. Kaplan takes issue with the following testimony from Trooper Thompson:

Thompson: I encountered Mr. Kaplan on the corner of Wayne and Wyneva. I was told over the radio that he was on that corner.

Myself and Trooper Todd Harris approached Mr. Kaplan and arrested him without incident at that location.

Government Were there other people in the area?

Thompson: Yeah, a lot of people were out on the street, people started coming [out] of their houses, and at that point, Mr. Kaplan started to tell people, you know, to call his peeps, to call his peeps is the words that he used.

With that being said, I know that he lives down at the end of the block, and at one(Apr. 8, 2010 Tr. at 111.) At that point, the Court sustained Kaplan's counsel's objection "to what he knows [about] where he lives." (Id.) Kaplan argues that it was improper for Trooper Thompson to testify as to his belief that Kaplan lives on Wyneva Street. A search of that location revealed evidence of drug dealing, including scales, baggies, cash, and other indicia of drug activity. The Government tried to connect Kaplan to that drug activity by arguing that he owned and often stayed at the home. Kaplan throughout trial attempted to distance himself from the home and thereby raise doubts that the evidence found there belonged to him.

The Government contends that based on Counsel's objection, the jury did not hear improper testimony from Trooper Thompson regarding whether Kaplan lived at 122 West Wyneva Street. (Gov't's Resp. to Defs.' Mots. for a New Trial [Gov't's Resp.] at 27.) Furthermore, the Government argues that the testimony was nothing more than a method to "explain a logical sequence of events. . . . After all, the only conceivable reason for the police to have sought and obtained a court order to search 122 Wyneva was because it was associated with Kaplan and his illegal activities there." Id.

Although Trooper Thompson said that he knew Kaplan lived on Wyneva Street, the Court agrees that taken in context, his statement did not prejudice Kaplan. Despite repeated efforts on the part of Counsel to keep from the jury any testimony or evidence that tied Kaplan to the Wyneva Street residence, much of that evidence was properly admitted. Trooper Thompson went to that location because he believed that Kaplan lived there or at least had ready access to it and that evidence of drug dealing would be found there. Of course, the jury was free to disbelieve Kaplan's connection to the residence. But it would have been obvious to a jury that Trooper Thompson went to execute a search warrant at 122 West Wyneva Street because he believed Kaplan lived there and had evidence of his drug trade there. Trooper Thompson's explicit statement to that effect did not prejudice the jury. As the Government contends, Kaplan's objection was sustained, thus signaling to the jury that it should disregard Trooper Thompson's testimony regarding his belief that Kaplan lived at 122 West Wyneva Street.

Kaplan attempted to advance the argument that the drug related evidence belonged to Deward Ray, the man who paid rent to Kaplan and who was present when Trooper Thompson began his search of the property. (Kaplan Mem. at 4.) He contends that Trooper Thompson continued to improperly offer his opinion that the drugs and contraband found at 122 West Wyneva Street belonged to Kaplan and not Deward Ray. Trooper Thompson's report regarding his execution of the search warrant states that Ray originally told Thompson that money in the house belonged to Kaplan but later stated that although Kaplan could come and go as he pleased, any items in the home belonged to Ray. (Thompson's Report.) According to Kaplan, Trooper Thompson's misconduct continued on cross-examination as Thompson "responded to various questions by making certain the jury knew that he believed that the items belong to Kaplan." (Id. at 5.) For example:

Defense counsel: You come to learn that this individual lives in this property; am I right about that, sir?

Thompson: I -- I come to learn that he tells me that he lives -- there.

Defense counsel: He, in fact, tells you that he rents that property; am I right about that, sir?

Thompson: That is correct.

Defense counsel: He tells you he rents that property from Mr. Kaplan; am I right about that, sir?

Thompson: Yes, he did.

Defense counsel: And you have no reason to believe, sir, this person lives anywhere else other than ...

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