                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2005

USA v. Davis
Precedential or Non-Precedential: Precedential

Docket No. 02-4521




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                          PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


          No. 02-4521


  UNITED STATES OF AMERICA

              v.

         KEVIN DAVIS
           Appellant




          No. 03-1130


  UNITED STATES OF AMERICA

              v.

        KEVIN A. MINNIS
          Kevin Minnis
           Appellant




          No. 03-1160


  UNITED STATES OF AMERICA

              v.

        REGINAL SCOTT
           Appellant
       On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
   (D.C. Nos. 02-cr-00106-1, 02-cr-00106-3, 02-cr-00106-2)
               District Judge: Hon. Marvin Katz




          Submitted Under Third Circuit LAR 34.1(a)
                      October 7, 2004

   Before: SLOVITER, VAN ANTWERPEN, and COW EN,
                     Circuit Judges

                   (Filed: February 11, 2005)


Joseph C. Santaguida
Philadelphia, PA 19107

      Attorney for Appellant Kevin Davis

Stephen H. Serota
Philadelphia, PA 19102

      Attorney for Appellant Kevin Minnis

Robert E. Welsh, Jr.
Welsh & Recker, P.C.
Philadelphia, PA 19103

      Attorney for Appellant Reginal Scott

Patrick L. Meehan
       United States Attorney
Laurie Magid
       Deputy United States Attorney
       for Policy and Appeals
Robert A. Zauzmer
       Assistant United States Attorney
       Senior Appellate Counsel

                               2
Paul Mansfield
       Assistant United States Attorney
Curtis R. Douglas
       Assistant United States Attorney
Philadelphia, PA 19106

       Attorneys for Appellee


                   OPINION OF THE COURT


SLOVITER , Circuit Judge.

        We have before us the appeal of defendants Kevin Davis,
Kevin A. Minnis, and Reginal Scott, who were tried together and
who were each found guilty by the jury of both possession of
cocaine base or crack with intent to distribute in violation of 21
U.S.C. § 841(a)(1) and possession of a firearm during and in
relation to an underlying drug felony in violation of 18 U.S.C. §
924(c)(1)(A).1 We have before us both merits issues and
sentencing issues. Although defendants raise a number of issues
on the merits, we focus primarily on the defendants’ contention
that the District Court abused its discretion in admitting the
testimony of the government’s expert witness, Philadelphia
Police Officer Derrick Garner, and the defendants’ contention
that the District Court abused its discretion in refusing to sever
Reginal Scott’s trial from the trial of the other two defendants.

                                 I.

       Two police officers traveling in South Philadelphia in an
unmarked car saw six or seven shots fired from the passenger
side of a black Honda automobile one block in front of them on
17th and Annin streets. The officers immediately activated their



       1
        In a separate trial before the same jury, Minnis was also
found guilty of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1).

                                 3
lights and siren, and pursued the Honda when the Honda did not
stop. Within a few minutes, a marked police car also joined the
chase led by the fleeing vehicle as it traveled at a high rate of
speed, passed a number of red lights and stop signs, and on
several occasions drove the wrong way on one-way streets. The
police cars never lost sight of the Honda, and they eventually
forced it to stop. All four doors immediately opened and the
passengers attempted to exit.

        Officer Brook, one of the officers in the marked car,
testified that he observed Reginal Scott exit from the back
passenger seat and Kevin Davis emerge from the front passenger
seat. According to Officer Brook, Scott initially put up his
hands and surrendered, but then began inching away from the
car. At the same time, Davis attempted to flee on foot and
Officer Brook pursued him. According to Officer Brook, Davis
pointed his firearm at him and he then fired one shot and hit
Davis. A pistol was recovered from the area where Davis fell.
Davis was then taken to the hospital by Officers Haines and
Thomas who recovered from Davis $169.00 in cash and one
plastic baggie containing nineteen zip-lock packets of cocaine
base.

        Officer Bucceroni, who was with Officer Brook,
observed Kevin Minnis exiting the vehicle with a semi-
automatic firearm in his right hand. Officer Bucceroni
instructed Minnis to drop the firearm. After he complied the
officer retrieved the weapon, placed Minnis under arrest, and, in
the search incident to the arrest, recovered twelve packets
containing cocaine base. At approximately the same time,
Officer Dawsonia, who arrived on the scene after responding to
the radio call for assistance, was instructed to stop Scott who had
been slowly attempting to inch away. Upon hearing this
instruction, Scott threw a handgun onto the ground and was
arrested by Officer Dawsonia, who searched Scott and
recovered forty-four packets of cocaine base from his pocket.
Ballistics tests later confirmed that the firearm recovered from




                                 4
Scott was the weapon fired at 17th and Annin Streets.2

       Defendants were convicted following a jury trial on the
drug and weapons charges referred to above. Defendant Minnis,
who sought and was granted a bifurcated trial on the charge
under 18 U.S.C. § 922(g)(1), was also found guilty of that
charge. See note 1 supra. The District Court denied
defendants’ motions for acquittal under Federal Rule of Criminal
Procedure 29 and for a new trial pursuant to Rule 33. United
States v. Davis, 233 F. Supp. 2d 695 (E.D. Pa. 2002).
Defendants filed a timely appeal.

                               II.

        Defendants argue first that the District Court erred in
admitting as expert testimony the responses of Officer Garner to
the following hypothetical question: whether, assuming that
“five persons were in a car, four of whom possessed handguns,”
and that “one person possessed a handgun with 12 packets,
another person possessed a handgun with 19 packets, [and] one
person . . . possessed a handgun with 44 packets,” “would you
say that would be consistent with drug trafficking or consistent
with possession, simple possession.” Jt. App. at 314a. Officer
Garner responded, “It would be my opinion that would be
possession with intent to deliver the narcotics.” Id. He further
explained that the bases for his opinion were “[t]he gun would
be one factor, the narcotics would be the other,” and “[t]he
number of people in the vehicle and the circumstances of the
arrest” would all play a factor.” Id. at 314a-15a.

        Defendants contend that the government did not provide
adequate discovery with regard to this testimony and they argue
that there was no scientific basis for Officer Garner’s opinion.
We review the District Court’s decisions regarding the
admission of expert testimony for abuse of discretion. See
United States v Watson, 260 F.3d 301, 306 (3d Cir. 2001).



      2
         The vehicle was driven by someone other than the
defendants.

                                5
        With regard to expert witnesses, under Rule 16(G) of the
Federal Rules of Criminal Procedure, the government must
disclose, upon a defendant’s request, “a written summary of any
testimony that the government intends to use.” In addition, if the
government makes a reciprocal discovery request then the
written statement must include the “witness’s opinions, the bases
and reasons for those opinions, and the witness’s qualifications.”
Fed. R. Crim. P. 16(G). Because both parties requested
discovery, the government was obligated to provide the more
extensive written summary. Although we agree with defendants
that the government failed to adequately satisfy this requirement,
we have held that a new trial is only warranted if the “District
Court’s actions resulted in prejudice to the defendant.” United
States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001).

        Defendants do not argue that they were prejudiced by the
inadequate discovery. They simply argue that because the
government did not fully comply with its discovery obligations
they are entitled to a new trial. However, this argument was
addressed and dismissed in Lopez, where we stated that “‘the
prejudice that must be shown to justify reversal for a discovery
violation is a likelihood that the verdict would have been
different had the government complied with the discovery
rules.’” Id. at 483-84 (quoting United States v. Mendoza, 244
F.3d 1037, 1047 (9th Cir. 2001)). The defendants in this case
have failed to establish any prejudice stemming from the
government’s inadequate discovery, and therefore the District
Court did not abuse its discretion in denying defendants’ request
for a new trial.

       Defendants also argue that there is no objective basis for
Officer Garner’s testimony and that it fails the analysis required
by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), because “there was absolutely no pretense of scientific
method, scientific testing, peer review in publication, a known or
potential rate of error, and the extent to which [Officer Garner’s]
theory is generally accepted.” Jt. App. at 41a. However, the
factors enumerated in Daubert were intended to apply to the
evaluation of scientific testimony, and they have little bearing in
this case.

                                 6
       In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),
the Supreme Court recognized that “there are many different
kinds of experts, and many different kinds of expertise,” id. at
150, and “Daubert’s list of specific factors neither necessarily
nor exclusively applies to all experts or in every case.” Id. at
141. The Court held that Daubert’s list of specific factors would
often be of little use in evaluating non-scientific expert
testimony and, as a result, the Court expanded Daubert’s general
holding to apply to expert testimony based on “technical or other
specialized knowledge.” Id. at 141.

         Federal Rule of Evidence 702 states that a court may
permit expert testimony if it “will assist the trier of fact to
understand the evidence or to determine a fact in issue.” Under
Daubert, a trial court must evaluate such testimony and make
sure it “rests on a reliable foundation and is relevant to the task
at hand.” 509 U.S. at 597. Officer Garner’s testimony fully
satisfied both these requirements. He was a fourteen-year
veteran of the Philadelphia police force with twelve years of
experience in narcotics. His testimony concerned the methods of
operation for drug traffickers in the South Philadelphia area, a
topic which we have held is a suitable topic for expert testimony
because it is not within the common knowledge of the average
juror. United States v. Theodoropoulos, 866 F.2d 587, 590-92
(3d Cir. 1989), overruled on other grounds as recognized in
United States v. Price, 786 F.3d 526 (3d Cir. 1996). We are
satisfied that Officer Garner’s testimony concerned a proper
subject matter for expert testimony, and he provided a reliable
opinion based on years of experience. His testimony was thus
admissible under both the Federal Rules of Evidence and
Daubert.

        Finally, defendants argue that Officer Garner’s testimony
was inadmissible under Federal Rule of Evidence 704(b)
because it concerned an opinion regarding the appellants’ state
of mind. In interpreting this rule, and evaluating the fine line
between permissible and impermissible testimony, we have
stated that

       [e]xpert testimony is admissible if it merely

                                7
       supports an inference or conclusion that the
       defendant did or did not have the requisite mens
       rea, so long as the expert does not draw the
       ultimate inference or conclusion for the jury and
       the ultimate inference or conclusion does not
       necessarily follow from the testimony.

United States v. Watson, 260 F.3d 301, 308 (3d Cir. 2001)
(internal citations and quotations omitted).

        Defendants argue that by allowing Officer Garner to
testify that their possession under the circumstances was
“consistent” with “intent to distribute,” the District Court
permitted a violation of Fed. R. Evid. 704(b). They rely on our
opinion in Watson where we held that the expert’s testimony
regarding the defendant’s intent violated Rule 704(b). In this
case, unlike in Watson where the government’s questions were
“plainly designed to elicit the expert’s testimony about the
mental state of the defendant,” 260 F.3d at 309, Officer Garner’s
testimony was given in response to hypothetical, rather than
specific, questions regarding the intent of individual defendants
on trial. Although the District Court noted that the hypothetical
presented to Officer Garner closely resembled the circumstances
of this particular case, unlike in Watson “the government did not
repeatedly refer to the individual defendant’s state of mind when
questioning the government expert.” Davis, 233 F. Supp. 2d at
703. In addition, no evidence was presented that Officer Garner
had any direct relationship with the investigation or the
defendants and, therefore, there was no potential for the jury to
conclude that Officer Garner had any special insight into the
thoughts or intent of the defendants. Consequently, the District
Court did not abuse its discretion in finding that Officer Garner’s
testimony did not violate Fed. R. Evid. 704(b).

                               III.

       Defendant Scott, whose defense was that he was not in
the black Honda, argues that the District Court abused its
discretion in denying a mistrial based on the testimony of Officer
Brook. Counsel for Scott, in cross-examining Officer Brook,

                                8
attempted to establish that Scott was known to frequent the area
of 1300 Capital Street, near where the black Honda was stopped.
The relevant testimony was as follows:

      Question: You told us that you know Mr. Scott,
      you’re familiar with him? Is it correct, that you
      know Mr. Scott because he lives in the area or
      hangs around in the area of 1300 Capital Street?

      Officer Brook: Point Breeze and Morton, yes, I
      had dealings with him, by Officers Tacco and
      Tolliver, he fired a gun – I chased, I was the
      responding officer.

      Defense Counsel: I object as nonresponsive.

      Court: You asked a question and you got an
      answer. I think the officer is entitled to answer
      your question.

      ...

      Question: Now, are you also familiar with him,
      from seeing him hang around 13th and Capital?

      Officer Brook: Certainly.

      Question: You have from time to time with the
      other officers asked him to disperse?

      Officer Brook: Yes.

      Question: Repeatedly he is told not to hang
      around there, officers tell him and his friends to go
      home?

      Officer Brook: Dispersal off the corner. When
      there are disorderly crowds, it is a known drug
      location, we get numerous complaints in the area
      for several different locations in the area.

                                9
       Defense Counsel: I object as nonresponsive.

Jt. App. at 189a-190a.

        Scott argues that Officer Brook testified with the “express
and manifest purpose of prejudicing [the] jury,” Appellants’ Br.
at 38, that the prejudice from this testimony is overwhelming,
and that because the evidence of Scott’s guilt is scant he is
entitled to a mistrial.

        When evaluating whether a prosecution witness made
prejudicial remarks, a court must examine “(1) whether [the
witness’s] remarks were pronounced and persistent, creating a
likelihood they would mislead and prejudice the jury, (2) the
strength of the other evidence, and (3) curative action taken by
the district court.” United States v. Xavier, 2 F.3d 1281, 1285
(3d Cir. 1993). Using these criteria, the District Court found that
the witness’s remarks were “neither pronounced nor persistent in
that Officer Brook merely responded to two questions posed by
defense counsel.” Davis, 233 F. Supp. 2d at 704. In addition,
the District Court found that Officer Brook’s testimony was
“conscientious, conservative, and by no means malicious” and
that the “evidence against defendant Reginal Scott was strong
and the court’s contemporaneous cautioning instruct[ion] cured
any prejudice.” Id.

        The District Court was in the best position to observe the
witness’s demeanor and to determine whether Officer Brook’s
testimony was in fact “malicious.” Its finding, therefore,
deserves great deference. Officer Brook’s answers were the
logical result of the form and manner of defense counsel’s
questions. Officer Brook’s statement that Scott frequently hung
out at a “known drug location” was in response to defense
counsel’s third question about his familiarity with Scott. We
cannot agree with Scott that this information was
“enthusiastically volunteered.” Appellants’ Br. at 38. There
were only two arguably objectionable responses and no evidence
that either was made maliciously. We do not believe they can be
considered “pronounced and persistent, creating a likelihood
they would mislead and prejudice the jury.” Xavier, 2 F.3d at

                                10
1285.

        Moreover, contrary to Scott’s assertion, the other
evidence against him was significant. Officer Bucceroni
testified that he saw Scott get out of the vehicle involved in the
high speed chase; Officer Capara testified that she observed
Scott toss a handgun from his waist band; and Officer Dawsonia
testified that she recovered forty-four packets of cocaine base or
crack from Scott in a search incident to arrest. Accordingly,
there was substantial evidence that Scott possessed cocaine base
or crack with intent to distribute and possessed a firearm in
connection with that offense.

       Finally, immediately after defense counsel concluded his
cross-examination of Officer Brook, the District Court instructed
the jury that it should disregard “‘other things collateral matters,
marginal things, that have nothing to do with this case.’” Davis,
233 F. Supp. 2d at 704 (quoting trial transcript). In particular,
the Court informed the jury that “[m]isconduct on other days, in
other situations and other connections [is] not part of this case”
and that the jury should not consider it. Jt. App. at 207a.

       Both this court and the Supreme Court have held that
courts must “‘normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently
presented it to.’” United States v. Fisher, 10 F.3d 115, 119 (3d
Cir. 1993) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8
(1987)). Therefore, we have held that the proper remedy for
incorrect admission of evidence is an instruction to disregard.
United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993). It
follows that the District Court did not err in refusing to declare a
mistrial following Officer Brook’s testimony.

                                IV.

        Appellants raise a number of other issues, none of which
is sufficient to warrant a new trial. We held in United States v.
Johnson, 302 F.3d 139 (3d Cir. 2002), that 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

                                 11
serious danger that a miscarriage of justice has occurred – that is,
that an innocent person has been convicted.” 302 F.3d at 150
(internal citations and quotations omitted). We continue to apply
the standard articulated in Johnson, notwithstanding the
possibility that other courts may apply a more lenient standard.
Although there were no observations of defendants actually
engaging in the sale of drugs, the government’s expert witness
testified that the presence of a group of men in a car together, the
number of firearms, and the lack of drug paraphernalia was
consistent with intent to distribute as opposed to personal
possession.

        We have held that the presence of a gun in connection
with the commission of another felony permits the inference that
the gun was intended to facilitate or potentially facilitate the
crime. In such cases, the presence of a firearm is not considered
a mere coincidence or accident. See United States v. Williams,
344 F.3d 365, 371-72 (3d Cir. 2003) (finding that jury could
infer that presence of gun in car had “potential of facilitating”
robbery and occurred “in relation to” robbery).

       A factfinder is permitted to give significance to the
presence of a gun, particularly when the gun is combined with
the presence of drugs. It follows that the presence of drugs in
this case together with the guns and the number of people in the
car provided a reasonable basis for the jury to conclude that the
defendants were engaged in drug trafficking. Because the power
to grant a motion for a new trial is broader than the court’s
power to grant a motion for a judgment of acquittal, our
determination that defendants are not entitled to a new trial
means that they are similarly not entitled to a judgment of
acquittal. United States v. Brennan, 326 F.3d 176, 189 (3d Cir.
2003).

        Scott argues that the District Court erred in denying his
motion to sever his trial from that of Davis and Minnis under
Federal Rule of Criminal Procedure 8(b), which permits the
joinder of two or more defendants in the same indictment if the
charges involve the “same act or transaction, or the same series
of acts or transactions, constituting an offense.” The Supreme

                                12
Court has stated that “[t]here is a preference in the federal
system for joint trials of defendants who are indicted together.”
Zafiro v. United States, 506 U.S. 534, 537 (1993).

       Scott argues that “[e]ach defendant was allegedly found
in possession of drugs, seemingly unrelated to each other
defendants’ [sic] possession of drugs, and each defendant
allegedly possessed a gun . . . without regard for the other
defendants’ possession.” Appellants’ Br. at 55. Nonetheless,
these “seemingly unrelated” guns and drugs were all recovered
from men riding together in the same car and, therefore, there
was a strong basis to conclude that these guns and drugs were
connected. Consequently, joinder was permissible because the
charges did involve the same act or transaction.

        Scott also argues that he was prejudiced by this joinder.
In determining whether severance is appropriate, we have stated
that “[a] claim of improper joinder under Fed. R. Crim. P. 14
must ‘demonstrate clear and substantial prejudice.’” United
States v. Gorecki, 813 F.2d 40, 43 (3d Cir. 1987) (quoting
United States v. Sebetich, 776 F.2d 412 427 (3d Cir. 1985)). In
addition, the Supreme Court has held that severance should be
granted “only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993).
In determining whether severance should have been granted, we
review the District Court’s decision for abuse of discretion; in
the absence of an affirmative showing of an abuse of discretion,
this court will not interfere with the Rule 14 determinations
made by the District Court. United States v. Somers, 496 F.2d
723, 730 (3d Cir. 1974).

       Scott argues that he was extremely prejudiced by being
joined with Kevin Davis, who fled the scene and allegedly
attempted to fire at a police officer. However, we held in
Somers that “a defendant is not entitled to a severance merely
because evidence against a co-defendant is more damaging than
the evidence against the moving party.” Id. The issue is not
whether the evidence against a co-defendant is more damaging

                                13
but rather whether the jury will be able to “compartmentalize the
evidence as it relates to separate defendants in view of its
volume and limited admissibility.” Id. (internal citations and
quotations omitted). In this case, the facts are relatively simple;
all the events occurred in a single evening; there are only three
defendants; and there are no overly technical or scientific issues.
Therefore, we conclude that the jury could reasonably have been
expected to compartmentalize the evidence as it related to each
individual defendant.

        Scott also contends that he was prejudiced because he
wished to present exculpatory evidence from Davis and Minnis,
who could confirm that he was not in the black Honda on the
night of his arrest. We have held that “[b]are assertions that co-
defendants will testify are insufficient” to warrant separate trials.
United States v. Boscia, 573 F.2d 827, 832 (3d Cir. 1978). Four
factors need be considered: “(1) the likelihood of co-defendant’s
testifying; (2) the degree to which such testimony would be
exculpatory; (3) the degree to which the testifying co-defendants
could be impeached; [and] (4) judicial economy.” Id. In
addition, we have held that a defendant’s claim that his co-
defendants would testify on his behalf must be supported by the
record, and the record must show more than simply the
defendant’s “request for declaration of [his co-defendants’]
intent to testify.” United States v. Gonzalez, 918 F.2d 1129,
1137 (3d Cir. 1990).

        Applying the Boscia factors, the District Court found that
Scott presented no evidence that the other defendants would
testify and that even if they did testify, “their testimony could be
seriously impeached.” Supp. App. at 62. In addition, the Court
believed that such testimony would have little exculpatory value
and was outweighed by concerns for judicial economy.

        At the time of Scott’s severance motion, counsel for Scott
stated that “I hope and expect . . . to call as witnesses, Mr.
Minnis and Mr. Davis,” but quickly added that “nobody can
promise that they would testify.” Supp. App. at 51-52.
Although defense counsel for Minnis and Davis did not object to
Scott’s motion, neither one gave any indication that, if granted a

                                 14
severance, their clients would testify on Scott’s behalf. In fact,
despite the fairly insistent urging from Scott’s counsel for the
other defense counsel to “support . . . or give some insight [] to
the Court what they would say,” counsel for Minnis and Davis
remained silent. Supp. App. at 57-58. Scott’s counsel suggested
that the court allow Davis and Minnis to make an in camera
statement to the court, yet when the court asked if they would
like to make any statement, both declined. Supp. App. at 57-61.
Accordingly, there is no evidence that either Minnis or Davis
would have testified on Scott’s behalf if the District Court had
granted a severance. The District Court’s decision to deny
Scott’s motion for severance was not an abuse of discretion.

      For the reasons set forth, we will affirm the judgments of
convictions on all three defendants.

                                V.

        Appellants challenge their sentences under United States
v. Booker, 543 U.S.       , 125 S. Ct. 738 (2005). In light of the
determination of the judges of this court that the sentencing
issues appellants raise are best determined by the District Court
in the first instance, we vacate the sentences and remand for re-
sentencing in accordance with Booker.

                                VI.

      For the reasons set forth above, we will affirm the
judgments of conviction as to Kevin Minnis, Reginal Scott, and
Kevin Davis. We will vacate and remand the judgments of
sentence as to all three defendants.




                                15
