                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5500




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                                                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                                        No. 05-5500

                       UNITED STATES OF AMERICA, Appellee

                                              v.

                               TYSAAN DAVID, Appellant

                     On Appeal from the United States District Court
                               for the District of New Jersey
                              (D.C. Criminal No. 04-CR-138)
                    District Judge: The Honorable Jerome B. Simandle
                                     ______________

                        Submitted Under Third Circuit LAR 34.1(a)
                                   November 28, 2006

     Before: FUENTES and GARTH, Circuit Judges, and POLLAK,* District Judge.

                                   (Filed April 17, 2007)

                                     ______________

                                        OPINION
                                     _______________


POLLAK, District Judge:

       In a jury trial in the United States District Court for New Jersey, appellant Tysaan

David was found guilty of possessing a firearm while being a convicted felon, in violation



       *
        Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

                                              1
of 18 U.S.C. § 922(g)(1). David now appeals from the denial of his post-trial motions for

a judgment of acquittal and for a new trial. The District Court had jurisdiction pursuant

to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal under 28 U.S.C.

§ 1291. Because the evidence at trial was sufficient to permit a rational finding of guilt

beyond a reasonable doubt, and because the District Court did not abuse its discretion in

refusing to grant a new trial, we will affirm appellant’s conviction.

                                        I. Background

       Although we write primarily for the parties, who are familiar with the facts and

procedural history of the case, we address these matters in some detail due to the fact-

intensive nature of David’s claims.

                                     A. Procedural history

       On March 2, 2004, a federal grand jury sitting in Camden, New Jersey indicted

Tysaan David on a single count of being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1).1 On May 5, 2005, after an evidentiary hearing, the District Court

denied appellant’s motion to suppress certain statements.2 Jury selection took place on

July 11, 2005; the taking of testimony began on the 12th and was completed on the 13th,




       1
         The single-count indictment also referenced 18 U.S.C. § 2, which concerns, inter
alia, “aiding and abetting” an offense against the United States. At trial, at the close of
the government’s case, the District Court found that no evidence of “aiding or abetting”
had been presented and struck the reference to § 2. The charge was submitted to the jury
on the basis of § 922(g)(1) only.
       2
           David does not challenge the denial of his motion to suppress on this appeal.

                                                2
together with closing arguments and the jury charge; the jury’s deliberations began in the

late afternoon of the 13th, and on the morning of the 15th the jury returned a verdict of

guilty. On July 20, David moved to set aside the verdict under Rules 29 and 33 of the

Federal Rules of Criminal Procedure, requesting that the District Court enter a judgment

of acquittal as a matter of law, or, in the alternative, grant a new trial. On December 16,

2005, the District Court heard argument and issued an oral decision denying relief under

both Rule 29 and Rule 33. On the same day, David was sentenced to ninety-two months

imprisonment. Five days later, David filed his timely notice of appeal.

                                  B. The evidence at trial

       Evidence of the following was presented at trial:

       While on patrol in a marked police car on the evening of October 22, 2003,

Officers Gabriel Mateo and Lawrence Norman3 of the Camden Police Department

observed appellant David standing on a Camden street corner dressed in a black coat and

gray sweat pants. According to the officers, David was alone, and, as they approached

the corner, he threw down his coat and fled into an alley. Finding this suspicious, the

officers parked their patrol car, and Officer Norman gave chase on foot, while Officer

Mateo stopped to retrieve the coat. As Officer Mateo lifted the coat, a loaded gun—later

determined to be a Lorcin model L380 semiautomatic pistol with an obliterated serial

number—fell out of the coat’s right sleeve. Meanwhile, Officer Norman pursued David


       3
         By the time of trial, Officer Norman had been promoted to Detective. However,
for the sake of clarity, we will refer to him throughout as “Officer Norman.”

                                              3
and took him into custody.

        At trial, both officers identified David based on their observation of him as they

approached the street corner and when David was apprehended. Officer Norman testified

that while he was putting appellant into the patrol car—and before any mention of the gun

had been made in appellant’s presence—David made an unprompted statement to the

effect of “that’s not my gun, that’s my brother’s gun.” According to both officers, David

also incorrectly identified himself as “Hassan David.” 4 The officers further testified that

the entire incident lasted less than five minutes. The prosecution also introduced physical

evidence, including what were alleged to be the Lorcin pistol and the discarded black

coat.

        On cross examination and in closing argument, the defense attempted to

undermine the credibility of the officers’ testimony and the quality of the government’s

overall case. The defense pointed out that the prosecution did not introduce forensic

evidence such as fingerprint or other trace evidence tying David to the gun. Defense

counsel also aggressively challenged the officers’ methods of investigation and the

accuracy and credibility of their testimony. In particular, the defense succeeded in

demonstrating that Officer Norman’s trial testimony regarding his pursuit and

apprehension of appellant was in several respects at variance with Officer Mateo’s trial

testimony and with Officer Norman’s own earlier testimony at the suppression hearing.


        4
         Testimony at trial showed that David has a brother named Hassan David, but no
evidence introduced at trial suggested that the Lorcin pistol belonged to Hassan.

                                               4
For example, at the suppression hearing, Officer Norman testified that David dropped his

coat, ran to the mouth of a nearby alley, took three or four steps into the alley, and then

turned around and walked back toward Officer Norman. At trial, however, Officer

Norman stated that David ran into and all the way through the alley, but that he—Officer

Norman—only entered the mouth of the alley, before stopping and circling around on the

street, meeting appellant as he walked out of the opposite end of the alley.5 Also,

although Officer Norman claimed that appellant made a statement (“that’s not my gun”)

while being arrested and that he (Norman) told Officer Mateo about this statement,

Officer Mateo testified that he did not recall Officer Norman mentioning any statements

by appellant, and the statement did not appear in the “major incident report” prepared by

Officer Mateo.

       The defense called several witnesses. One of the defense witnesses—Victor

Hayes, a security guard and friend of appellant—testified that, rather than being alone that

night, David had been standing on the corner smoking a cigar with Hayes, and, further,

that, rather than dropping his coat and being chased, appellant had been summarily

arrested by two uniformed officers as soon as they pulled up in their patrol car. In

addition, the defense presented evidence—both testimonial and documentary—tending to


       5
          Officer Norman agreed that his trial testimony was “radically different” from his
account at the suppression hearing. However, he adopted the trial testimony as the
correct version, claiming that his trial testimony served to clarify and correct inaccuracies
in his prior account. Officer Norman attributed the increased accuracy of his trial
testimony to the fact that he had prepared more thoroughly and to the use of a map as an
illustrative aid during his trial testimony.

                                               5
counter the government’s contentions with respect to the black coat David was allegedly

wearing on the night in question. The government had introduced a size XXXL (“3XL”)

black coat allegedly thrown off by David before he fled. The defense sought to show that

the 3XL coat was not the coat David was wearing on the evening he was arrested. The

defense produced evidence showing that when the appellant was taken to the Camden

County jail later that night—well after the time when the police claimed they had

impounded the black 3XL coat—the jail’s intake inventory recorded a black coat among

the garments David was wearing when he was brought to the jail. Further, the defense

presented evidence that the jail sent the inventoried belongings by mail directly to

David’s mother’s address, and David’s mother testified that when she received the

package, she left it sealed until the defense’s investigator could come to the house. The

investigator then testified that, when the package from the jail was opened, it contained

David’s personal property, including a black coat, size XXL (“2XL”). The second coat,

and also the box and packaging, were put in evidence by the defense.

       In closing argument, in arguing that it had proved its case as to the disputed

element of knowing possession, government counsel concentrated on issues of credibility.

(“[T]he most important part of your job in this case . . . is to determine credibility.”) The

government presented reasons to believe the officers’ testimony—emphasizing that the

officers lacked a motive to lie and were consistent on the important details—while

characterizing any inconsistencies as minor and expected.

       In sharp contrast, defense counsel’s closing argument asserted that the government

                                               6
had presented a “crazy story,” unworthy of credence. Agreeing with the government on

one point—“It’s all about credibility”—defense counsel argued that the officers,

particularly Officer Norman, were untrustworthy, arrogant, slipshod in their work, and

possibly biased. Further, defense counsel argued that the “grave” inconsistencies in

police testimony should lead the jury to discredit the testimony in its entirety. Finally,

defense counsel argued that the defense witnesses were highly credible, and that the

second black coat (the 2XL coat) was (a) genuine and (b) inconsistent with the

government’s account of the first coat.

       The jury deliberated for approximately six hours, spread over three days. At one

point, the jury asked to have the testimony of the two officers read back. In response, the

court, without objection from the parties, instructed the members of the jury to rely on

their collective memory, and added that, if they had a question about a particular part of

the testimony, they could request a read-back of that part. Thereafter, without further

requests, the jury returned its guilty verdict.

                                      II. Issues on appeal

       To prove the crime of possession of a firearm by a convicted felon in violation of

18 U.S.C. § 922(g)(1)–(2), the government was required to prove beyond a reasonable

doubt: “(1) that [the defendant] had previously been convicted of a crime punishable by

imprisonment for a term exceeding one year; (2) that [the defendant] knowingly

possessed a firearm; and (3) that the firearm had passed in interstate commerce.” United

States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000). In addition, to meet the statutory

                                                  7
definition, the “firearm” must be operable or readily converted to an operable state. See

18 U.S.C. § 921(3). At trial, David stipulated to the required prior criminal record and to

the fact that the gun in question was a firearm under the statutory definition. Moreover,

his attorney conceded in closing argument that the government’s uncontroverted expert

testimony established that the firearm had traveled in interstate commerce—David

disputed only the element of knowing possession.

       Invoking Rule 29, David now argues that the District Court erred in finding that

the verdict was supported by evidence sufficient to permit a rational trier of fact to find

beyond a reasonable doubt that he knowingly possessed a firearm. In the alternative, he

urges, pursuant to Rule 33, that, even if the evidence was technically sufficient, the

District Court abused its discretion by refusing to grant a new trial on the ground that the

verdict was contrary to the weight of the evidence.

                               III. Sufficiency of the evidence

       When a district court denies a Rule 29 motion after conviction, our review of the

sufficiency of the evidence is plenary. See United States v. Coleman, 811 F.2d 804, 807

(3d Cir. 1987) (“Our standard of review . . . is the same as that applied by the trial

court.”). However, the “burden on a defendant who raises a challenge to the sufficiency

of the evidence is extremely high.” United States v. Serafini, 233 F.3d 758, 770 (3d Cir.

2000). We “consider the evidence in the light most favorable to the government and

affirm the judgment if there is substantial evidence from which a rational trier of fact

could find guilt beyond a reasonable doubt.” United States v. Haywood, 363 F.3d 200,

                                               8
204 n.3 (3d Cir. 2004) (internal quotation marks omitted).

       Applying this standard to the record before us, we reject appellant’s contention

that the District Court erred in denying his Rule 29 motion. In support of his challenge to

the sufficiency of the evidence, appellant recites that the government’s case lacked “any

evidence as to David’s actual possession of the firearm.” (Appellant’s Br. at 14.) His

argument in support of this point, however, does not concern a lack of evidence; rather,

he raises a challenge to the credibility of the evidence by pointing to a “litany of

inconsistencies” in the officers’ testimony and to his own presentation of evidence further

undermining the government’s witnesses. These are classic issues of witness credibility

which are strictly within the province of the jury. The jury, or judge sitting as finder of

fact, has authority to credit all, none, or any part of the evidence properly before it. See,

e.g., United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002). The members of the jury

were entitled to credit the central facts of the officers’ testimony concerning knowing

possession, even if they discredited the other, inconsistent testimony. And they were

entitled to completely discredit the defense’s evidence.

       Resolving these credibility issues in favor of the government, as we must, we are

satisfied that there was substantial evidence from which the jury could have found that

David knowingly possessed the Lorcin pistol. Both officers identified appellant as the

man they saw standing on a street corner on October 22, 2003; they both stated that they

had a clear look at his face before he ran, as well as after he was apprehended. Officer

Norman testified that, while chasing appellant, he lost sight of him for less than half a

                                                9
minute, and that, when he again caught sight of appellant and detained him, he recognized

him as the man who had run from the street corner. Officer Mateo stated that when he

lifted the jacket which he had just seen David discard, the Lorcin pistol fell out of the

right sleeve. And the gun and the 3XL jacket were placed in evidence.

       Based on this evidence, the jury reasonably could have concluded beyond a

reasonable doubt that David possessed the gun in the sleeve of his jacket and that he

knew the gun was there. The other required findings were stipulated to or conceded by

the defense. Therefore, because the evidence, viewed in the light most favorable to the

government, was sufficient to support the verdict, the District Court did not err in denying

David’s motion for a judgment of acquittal.

                                 IV. Weight of the evidence

       “Unlike an insufficiency of the evidence claim, when a district court evaluates a

Rule 33 motion [for a new trial on the ground that the verdict was contrary to the weight

of the evidence] it does not view the evidence favorably to the Government, but instead

exercises its own judgment in assessing the Government’s case.” United States v.

Johnson, 302 F.3d 139, 150 (3d Cir. 2002). In the Third Circuit, “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). Also unlike our

review of denial of Rule 29 motions for acquittal, which is plenary, we “review a district

                                               10
court’s denial of a motion for a new trial pursuant to Rule 33 for abuse of discretion.”

United States v. Jasin, 280 F.3d 355, 360 (3d Cir. 2002).

       Thus our review in the Rule 33 context is in some ways less constrained than under

Rule 29. However, although we may examine the credibility of the evidence in

considering this claim, we do so not in plenary fashion, but with a view to deciding

whether the district court abused its discretion in declining to find—upon its own

independent examination—that the evidence weighed so heavily against the verdict as to

create “‘a serious danger that a miscarriage of justice has occurred.’” Davis, 397 F.3d at

181 (quoting Johnson, 302 F.3d at 150). “An abuse of discretion involves a clearly

erroneous finding of fact, an errant conclusion of law, or an improper application of law

to fact.” Valenti v. Mitchell, 962 F.2d 288, 299 (3d Cir. 1992) (internal quotation marks

omitted).

       Applying the Rule 33 standard to this record, we find David’s challenge to the

District Court’s denial of his new-trial motion unavailing. After hearing argument on the

Rule 33 motion, the court issued an oral decision in which it first identified and discussed

the proper legal standard and then carefully reviewed the evidence. The court found that

the evidence showed the following: that David was convincingly identified; that both

officers saw his face and saw him discard his jacket; that he was out of the sight of the

officers for just a few seconds before being taken into custody; that “regardless of the

inconsistency of exactly which way the defendant ran . . . the fact is that within seconds

he was apprehended, he was arrested, and then within minutes placed within a police

                                              11
car”; and that the officers’ memories were firm as to the core details of the encounter.

The court also noted (in its discussion of the Rule 29 motion) that the recovered coat was

“significantly larger” than the alleged second coat, and that they thus could have been

worn together.

       Moreover, the District Court concluded that the jury had an opportunity to measure

any inconsistencies or conflicting evidence against the “other areas of the evidence

[pointing] squarely at the defendant’s guilt,” and that such inconsistencies were not so

overwhelming as to indicate a risk that the conviction was unjust and merit the court’s

intrusion on the jury’s function of determining credibility.6 Going beyond the necessary

findings, the District Court concluded not only that the jury verdict did not disregard the

clear weight of the evidence, but “that [the jury] struck the correct balance in finding the

defendant guilty beyond a reasonable doubt.” In sum, the District Court concluded that

this was not one of the “‘exceptional cases,’” United States v. Brennan, 326 F.3d 176,

189 (3d Cir. 2003) (quoting Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987)),

where a new trial was required in the interests of justice. The District Court, like the jury,



       6
           See, e.g., United States v. Robinson, 430 F.3d 537, 543 (2d Cir. 2005) (finding
that, even in the context of a new trial motion, “the court may not wholly usurp the jury’s
role. It is only where exceptional circumstances can be demonstrated that the trial judge
may intrude upon the jury function of credibility assessment” (internal quotation marks
omitted)); United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989) (stating that, “[i]n
general, conflicting testimony or a question as to the credibility of a witness are not
sufficient grounds for granting a new trial” and that only “[w]here a witness’ testimony is
such that reasonable men could not have believed [it]” may the District Court “take the
testimony away from the jury”).

                                              12
had the opportunity to observe the witnesses and evidence first hand. The District Court

noted its duty to independently weigh the evidence, and it then reviewed the evidence

carefully and provided cogent reasons for its belief in the “fairness and correctness” of

the conviction. Its description of the evidence is well supported by our independent

review of the record. Therefore, because our review of the record and the evidence shows

that the District Court identified the correct legal standard, that it did not clearly err in any

determination of fact, and that it properly applied the law to the facts, we cannot say that

the District Court abused its discretion in denying David’s motion for a new trial.

                                         V. Conclusion

       Because the evidence presented at David’s trial was sufficient to support his

conviction, and because the District Court did not abuse its discretion in denying David a

new trial, we will affirm.




                                                13
