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


7-7-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3163




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                                                    NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                         ___________

                         No. 03-3163
                         ___________


               UNITED STATES OF AMERICA

                               v.

                      RICHARD POTTS,
                       a/k/a Nasir Haqq,
                       a/k/a Nasir Jones,
                          a/k/a Nasir,
                           a/k/a Naz


                               Richard Potts,
                                     Appellant
.

                         ___________


         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                (D.C. Criminal No. 01-cr-00457-3)
          District Judge: The Honorable James T. Giles

                         ___________

           Submitted Under Third Circuit LAR 34.1(a)
                        June 27, 2005

    BEFORE: NYGAARD, SMITH, and FISHER, Circuit Judges.
                                    (Filed July 7, 2005)

                                       __________

                               OPINION OF THE COURT
                                    ___________

NYGAARD, Circuit Judge.

       Appellant Richard Potts was convicted by a jury of conspiracy to distribute more

than 50 grams of cocaine base “crack,” in violation of 21 U.S.C. § 846, and murder in

furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A).

Potts was sentenced to two terms of life imprisonment. We will affirm his conviction, but

vacate his sentence and remand for resentencing.

       Because we write only for the parties, we discuss only those facts that are relevant

to the issues on appeal. This case centers around a large scale drug organization in

Philadelphia known as “Do or Die” or “D.O.D.,” which was operated by a man named

Daniel Coach. Potts was involved in various ways throughout the conspiracy including

partnering with Coach in drug distribution and killing Rodney Trusty.

                                             I.

      Potts went to trial with three other co-defendants: Keith Waters, Andre Coach,

andTravis Coffey. After the jury was selected and the panel was sworn in, Andre Coach

pleaded guilty1 by entering into a cooperation agreement with the Government.



1       Andre Coach pleaded guilty to conspiracy, possession with intent to distribute
                                                                         (continued...)

                                             2
       After Andre Coach entered into his agreement with the Government, Potts moved

for dismissal of the jury. The District Court denied that motion. Later, Andre Coach

testified as a Government witness. The District Court did not give a specific instruction

to the jury with respect to Andre Coach’s testimony and the fact that he had been a co-

defendant during jury selection. On appeal, Potts argues that the District Court’s failure

to dismiss the jury, or at least give a curative instruction, was in error.

       In United States v. Gambino, 926 F.2d 1355, 1364 (3d Cir. 1991), a former co-

defendant pleaded guilty on the twelfth of twenty-six days of trial and became a witness

for the government. We reviewed the district court’s decision to admit the testimony for

abuse of discretion. Id. We also held that the district court’s curative instruction, given

the first day after the former co-defendant no longer appeared at the defense table, was

enough to quell any implication of guilt from his disappearance. Id. at 1364 n.7.

       Here, we are faced with a slightly different situation. The District Court did not

offer any special instruction relating to the fact that Andre Coach had once been a co-

defendant. Nor did the Court address his disappearance from the defense table. There are

also other significant factual differences. His disappearance did not occur in the midst of

trial, but rather during the twenty day period after the jury was sworn and before the start




1        (...continued)
more than 50 grams of cocaine base, possession with intent to distribute more than
500 grams of cocaine, and managing an establishment for the manufacture or
distribution of a controlled substance.

                                               3
of the trial. This was not a situation where the jurors went home one night with four co-

defendants and returned the next morning to only three.

       We conclude that the District Court did not err by keeping the jury empaneled nor

by declining to give a specific jury instruction. Although we have upheld a district

court’s use of curative instructions, Gambino, 926 F.2d at 1364, they are not always

necessary. The instruction given in cases such as Gambino is intended to prevent

prejudice to the defendant remaining at trial. Id. We upheld the District Court’s

determination that the instruction was necessary and sufficient to prevent prejudice.

Here, that is not the case. With a twenty day gap in time between jury selection and the

beginning of trial, an instruction may very well have brought unneeded attention to Andre

Coach’s guilty plea. Although our earlier cases have supported instructions, they do not

require them. See Gambino, 926 F.2d at 1364. Thus, we continue to hold that decisions

on whether to release a jury or give a curative instruction when a co-defendant enters a

plea and then testifies as a government witness are vested in the sound discretion of the

District Court. In this case, we find no abuse of discretion.

                                             II.

       Potts also challenges the sufficiency of the evidence. He claims that he was

engaged in a separate drug conspiracy, not the one charged, and that the evidence was

insufficient to prove he possessed the required intent to kill Rodney Trusty.




                                             4
       The Government presented extensive evidence regarding Potts’ involvement with

the D.O.D./Coach conspiracy. There is sufficient evidence to conclude that after agreeing

to “share” a particular corner with Coach, Potts and Coach worked together in one

conspiracy. Given the testimony of former co-conspirators, there was also sufficient

evidence to conclude that Potts possessed the necessary intent to kill Rodney Trusty.

Viewing the evidence in the light most favorable to the Government, there is sufficient

evidence to sustain the verdict against Potts.

       Potts also claims that the testimony of Daniel Coach, the former leader of the

conspiracy, was so corrupt that it could not form the basis of a guilty verdict. Testimony

by co-conspirators, however, even if uncorroborated, is sufficient to form the basis of a

guilty verdict. United States v. Perez, 280 F.3d 318, 344 (3d Cir. 2002). Thus, even if we

accept Potts’ assertion that Coach’s testimony is suspect, it does not undermine the basis

of Potts’ conviction.

                                            III.

       Finally, Potts challenges the calculation of his sentence. Since the filing of this

appeal, the United States Supreme Court has decided the case of United States v. Booker,

543 U.S. __, 125 S. Ct. 738 (2005). Having determined that the sentencing issues Potts

raises are best determined by the District Court in the first instance, we vacate the

sentence and remand for resentencing in accordance with Booker.
