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


2-27-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1693




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Recommended Citation
"USA v. Garvin" (2004). 2004 Decisions. Paper 971.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/971


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                                                         NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 03-1693
                                   ________________

                            UNITED STATES OF AMERICA

                                            v.

                                   KYLE GARVIN,
                                            Appellant

                       ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                                (D.C. No. 02-cr-00682-1)
                     District Judge: Honorable Michael M. Baylson
                    _______________________________________

                           Submitted February 26, 2004
              Before: RENDELL, BARRY, and BECKER, Circuit Judges.

                                (Filed: February 27, 2004)

                               _______________________

                                      OPINION
                               _______________________

BECKER, Circuit Judge.

       Kyle Garvin appeals from the judgment in a criminal case entered on a jury verdict

finding him guilty on four counts of an indictment charging possession of a firearm in

furtherance of a drug trafficking crime, 18 U.S.C. § 924(c); possession with intent to

distribute cocaine base, 21 U.S.C. §§ 841(a)(1)and (b)(1)(C); possession with intent to
distribute marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The District Court

imposed a sentence of 106 months imprisonment, a term of supervised release of five

years, a $500.00 fine, and a special assessment of $400.00. This timely appeal followed.

The facts and procedural history are well known to the parties and we will not rescribe

them here. Suffice it to say for present purposes that Garvin was arrested by Philadelphia

police officers at night following a chase on foot during which government witnesses

testified that he threw away certain evidence; Garvin denied having done so. When he

was apprehended, he possessed a large amount of cash in certain described

denominations.

       Garvin presents two issues on appeal. First, he contends that the District Court

abused its discretion in allowing the prosecutor to use $623.00 in United States currency

as demonstrative evidence during closing argument when the currency was not the actual

currency taken from Garvin, no physical currency was introduced into evidence during

trial, and, in his submission, the prejudicial value substantially outweighed its probative

value in that it was misleading. Second, Garvin submits that the District Court abused its

discretion in admitting certain photographs into evidence where the prejudicial value

substantially outweighed the probative value in that the photographs were misleading as

they were taken during broad daylight and the incident occurred at night. We find no

merit in either argument.



                                              2
       During the trial, evidence was presented that $623.00 in United States currency, in

specifically identified denominations, was recovered from Garvin upon his arrest. During

closing arguments, the government used United States currency, in the exact

denominations recovered from Garvin, to demonstrate what that amount of United States

currency in those denominations looks like. Since the money was in the same

denominations recovered from Garvin, it gave the jury a fair approximation of the size of

the bundle of money that Garvin was carrying upon his arrest. 1 In using the

demonstrative aid, the government made it clear to the jury that although the money was

in the same denominations, it was not the exact money seized from Garvin.

       It was within the District Court’s discretion to permit the use of demonstrative

exhibits during a summation to give the jury a better understanding. See, e.g., United

States v. De Peri, 778 F.2d 963, 979 (3d Cir. 1985), where we held that the District Court

did not abuse its discretion in permitting the prosecutor to use a chart during the opening

statement. There was no abuse of discretion here, and no prejudice to Garvin.

       Neither did the District Court abuse its discretion in admitting as evidence

government photographs of the crime scene, foot chase area, and scene of Garvin’s arrest.

  1
  Garvin argues that
      The same denominations and total dollar amount may look like a
      significantly larger pile of money depending on how crumpled the money
      was and how much use and/or abuse the cash had. As the government
      never proved the volume of this cash, it was extremely prejudicial for the
      government to be permitted to use this case for demonstration during
      closing argument.
We are unpersuaded.

                                             3
The photographs, although taken during the day when the crimes were committed at

night, fairly and accurately depicted the relevant scene. Moreover, counsel for the

defendant extensively cross-examined government witnesses regarding the differences

between the photos and way the crime scene actually appeared on the night of the crime

(e.g., that it was nighttime, not daytime). Additionally, on both direct and cross-

examination, detailed testimony was provided regarding the general conditions during the

surveillance, including the level of visibility, whether cars were moving back and forth on

the street, how far the surveillance officer was from Garvin at the time he observed him,

and the type and strength of binoculars used by the surveillance officer.

       We have carefully considered Garvin’s argument that the photos were misleading

to the jury in that they suggested that the officers conducting surveillance on the night

Garvin was arrested had a clearer view than they actually had. A similar argument was

rejected in United States v. Crockett, 49 F.3d 1357, 1359-60 (8th Cir. 1995) (no abuse of

discretion in admitting photograph of crime scene taken during daylight when crime

occurred at night).

       Under these circumstances we do not believe that the jury was misled. The

photographs were accurate and helped the jury to perceive what was where and to get a

sense of the distances involved. To that extent they were helpful. Fed.R. Evid. 401, 402.

Moreover, inasmuch as the jury knew their limitations, there was no prejudice.

       The judgment of the District Court will be affirmed.



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