                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2004

USA v. Katzin
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2407




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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 02-2407
                       ____________

             UNITED STATES OF AMERICA,

                               v.

               MARK LOUIS KATZIN, SR.,

                            Appellant
                  ____________________

ON PETITION FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA

               (Dist. Court No. 00-cr-00456-4)
         District Court Judge: Hon. Harvey Bartle, III


         Submitted Under Third Circuit LAR 34.1(a)
                     March 30, 2004

   Before: ALITO, ALDISERT, and BECKER Circuit Judges

               (Opinion Filed: April 19, 2004)

                 ______________________

                 OPINION OF THE COURT
                 ______________________
PER CURIAM:

       As we write only for the parties involved, we will not restate all of the facts. Mark

Louis Katzin, Sr. appeals the District Court’s judgment of conviction and sentence on

four grounds. Katzin argues that the District Court erred by: (i) holding that there was

sufficient evidence to support the jury’s verdict of guilty; (ii) qualifying the case agent,

Kenneth Bellis (“Agent Bellis”), as an expert and allowing him to present expert

testimony regarding how drug dealers operate, without providing the defense with an

expert report; (iii) allowing the government to present evidence of Katzin’s flight after his

arrest and pretrial release; and (iv) admitting into evidence items seized pursuant to

warrants obtained by the Pennsylvania Office of Attorney General. Katzin argues that the

District Court’s errors entitle him to a judgment of acquittal or a new trial. We find

Katzin’s claims to be without merit and therefore affirm.

                                               I.

       Katzin was convicted of conspiracy to distribute in excess of 500 grams of

methamphetamine, in violation of 21 U.S.C. § 846, and of using a communication facility

in furtherance of a drug offense, in violation of 21 U.S.C. § 843(b).

       We apply a particularly deferential standard of review when deciding whether
       a jury verdict rests on legally sufficient evidence. It is not for us to weigh the
       evidence or to determine the credibility of the witnesses. Rather, we must
       view the evidence in the light most favorable to the government, and will
       sustain the verdict if any rational trier of fact could have found the essential
       elements of the crime beyond a reasonable doubt. Thus, a claim of
       insufficiency of the evidence places a very heavy burden on an appellant.


                                              -2-
United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002) (internal quotations and

citations omitted).

       For essentially the reasons stated in the District Court’s Memorandum Opinion of

April 30, 2002, at 5 - 8, we hold that the defendant’s convictions are supported by ample

evidence. On the conspiracy conviction, the defendant’s primary argument is that the

evidence showed no more than his participation in simple buyer-seller relationships, but

we do not agree and do not think that this case is analogous to United States v. Pressler,

256 F.3d 144 (3d Cir. 2001). Here, the defendant does not contest the existence of a

conspiracy but merely argues that the evidence was insufficient to establish that he joined

the conspiracy. Moreover, there was telling evidence that he did join. This proof

included evidence that the defendant’s relationship with co-conspirators continued for a

significant period of time, that the defendant was familiar with the coded language used

by the conspiracy, and that the defendant sold drugs on credit, thus giving him a stake in

the buyer’s operation.

       There was also sufficient evidence to prove that the defendant used a telephone to

facilitate the conspiracy.   The jury heard hours of conversations between the co-

conspirators, including Katzin. In these communications, the co-conspirators referred to

specific individuals, locations, and events concerning drug transactions, and used a

common code to do so. Many of these communications were by telephone, and they were

intercepted and recorded.


                                             -3-
       In attacking his conviction on the telephone count, the defendant notes that a key

transaction to which an agent testified was not captured on videotape. However, the

agent testified about the transaction, and it was for the jury to assess the agent’s

credibility and the weight that his testimony should be given. Under our standard of

review, there was more than enough evidence to prove the defendant’s guilt.

                                            II.

       Citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), Katzin

contends that the government should not have been permitted to offer expert testimony by

Agent Bellis because the government did not provide the defense with any “report”

prepared by Agent Bellis in advance of trial. We reject this argument.

       The government’s principal discovery obligations regarding Agent Bellis’s expert

testimony are set out in FED. R. C RIM . P. 16(a)(1)(G), which requires that, at the

defendant’s request, the government shall disclose to the defendant “a written summary”

of expert testimony, providing “the witness’s opinions, the bases and reasons for those

opinions, and the witness’s qualifications.” Prior to trial, the defense was provided with,

among other pertinent documents, a 469 page affidavit in which Agent Bellis explained

how, based on his experience and training, he identified the calls with cryptic language,

codes, and drug jargon used by the co-conspirators, and provided his opinion regarding

the meaning of the calls. Supp. App. 856-1325.

       The defendant next argues that Agent Bellis was not qualified as an expert.


                                              -4-
However, Bellis’s qualifications were thoroughly explored during voir dire, and the

defense did not object to his certification as an expert. We have reviewed the record, and

we conclude that the District Court did not abuse its discretion in qualifying Agent Bellis

as an expert and permitting him to testify based on his expertise. We find no merit in

Katzin’s argument concerning coded drug jargon, because the subject matter of the

testimony only defined words outside their ordinary usage.

                                            III.

       Katzin argues that the District Court erred in allowing the government to present

evidence of other crimes without complying with the defense request for discovery.

Specifically, the government introduced evidence that, following Katzin’s pretrial release

and before the scheduled trial date, Katzin violated the conditions of pretrial release by

becoming a fugitive. He remained in a fugitive status until he was arrested by Deputy

United States Marshals while he was hiding in a closet in his residence. Because this

objection was not presented before the District Court, our review of the admission of

evidence of evidence of flight is for plain error. United States v. Boone, 279 F.3d 163,

174 n.6 (3d Cir. 2002).

       We have consistently held that “evidence of a defendant’s flight after a crime has

been committed is admissible to prove the defendant’s consciousness of guilt.” United

States v. Punigitore, 910 F.2d 1084, 1151 (3d Cir. 1990); see also United States v. Green,

25 F.3d 206, 210 (3d Cir. 1994) (same). We hold such evidence admissible as


                                             -5-
circumstantial evidence of guilt to be considered with the other facts of the case. United

States v. Miles, 468 F.2d 482, 489-90 (3d Cir. 1972). In fact, the District Court charged

the jury to consider the evidence only for proper purposes. Supp. App. 583 (“Whether or

not evidence of flight or concealment shows a consciousness of guilt, and the

significance, if any, to be attached to such a circumstance are matters for determination by

you, the jury.”). Evidence of flight is not considered inadmissible under F ED. R. E VID .

404(b). W e find no error here.

                                            IV.

       Katzin contends that agents of the Pennsylvania Office of Attorney General,

Bureau of Narcotics Investigation and Drug Control, had no authority under state law to

obtain the warrants which were issued by state officials. Katzin claims that absent a valid

request by a local district attorney, the Pennsylvania Office of Attorney General lacked

authority to apply for search warrants, and therefore, the evidence seized pursuant to

warrants should have been suppressed. Because this objection was not presented before

the District Court, our review of the admission of evidence obtained during the Attorney

General’s investigation and prosecution of Katzin is for plain error. Boone, 279 F.3d at

174 n. 6.

       This Court does not exclude evidence seized pursuant to a state warrant provided

that the warrant was sufficient under federal law, regardless of the state law. See United

States v. Williams, 124 F.3d 411, 428 (3d Cir. 1997); United States v. Stiver, 9 F.3d 298,


                                             -6-
300 (3d Cir. 1993). The requirements for a warrant to be properly issued under federal

law are that it must have been issued by a neutral and detached magistrate, and it must

have been based on probable cause. U.S. C ONST. amend. IV. Katzin does not dispute that

those requirements were met in this case. Therefore, we will affirm the District Court’s

admission of the evidence seized pursuant to the Attorney General’s search warrants.

                                            V.

       We find no merit in the defendant’s arguments, and we therefore affirm.
