                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1287




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                                             NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 _________

                     No. 07-1287
                     _________

          UNITED STATES OF AMERICA

                           v.

            CHRISTOPHER P. DESIVO,

                                     Appellant




    On Appeal from the United States District Court
       for the Middle District of Pennsylvania
               (D. C. No. 04-cr-00010)
       District Judge: Hon. James F. McClure




      Submitted under Third Circuit LAR 34.1(a)
                  on April 11, 2008


Before: SMITH, HARDIMAN and ROTH, Circuit Judges

            Opinion filed: August 7, 2008




                    OPINION
ROTH, Circuit Judge:

       Christopher DeSivo appeals the order of the U.S. District Court for the Middle District

of Pennsylvania denying his motion for a new trial, the sentence imposed by the District

Court, and various evidentiary rulings made during trial. For the reasons discussed below,

we will affirm.

I. Background and Procedural History

       As the facts are well known to the parties, we will discuss them only briefly here.

       Following a jury trial in the U.S. District Court for the Middle District of

Pennsylvania, Christopher DeSivo was convicted of four counts in a six-count indictment:

(1) Count One, conspiracy to manufacture, possession with intent to distribute, and

distribution of methamphetamine, in violation of 21 U.S.C. § 846; (2) Count Three,

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 2;

(3) Count Four, witness tampering, in violation of 18 U.S.C. §§ 1512(b)(1) and 2; and (4)

Count Six, obstruction of justice, in violation of 18 U.S.C. §§ 1512(c)(2) and 2. DeSivo filed

a pro se motion for a new trial (although he was represented by counsel). The District Court

denied the motion on January 24, 2007.

       A presentence report was submitted on February 28, 2006, to which DeSivo filed

objections. After receiving sentencing memoranda and hearing argument from both DeSivo

and the government, the District Court determined that the advisory sentencing guideline

range was 360 months to life imprisonment, based on a total offense level of 40 and a



                                              2
criminal history category of VI. On January 24, 2007, the District Court sentenced DeSivo

to 360 months imprisonment on Count One and 120 months on each of Counts Three, Four,

and Six, all sentences to be served concurrently, five years supervised release, and imposed

a $400 assessment.

       DeSivo appealed. He argues that (1) the District Court’s furnishing of a dictionary

to the jury without prior notice to counsel constitutes reversible error, (2) the District Court

erred in admitting into evidence photographs of items (a glass jar, coffee filters, starter fluid,

and a propane tank) purportedly used to manufacture methamphetamine and seized from a

camper, given that the evidence itself had been destroyed, (3) the District Court erred in

precluding DeSivo from cross-examining a law enforcement witness about a report regarding

misconduct in the New York State police department, (4) the District Court erred in denying

DeSivo’s motion for a new trial and in failing to hold an evidentiary hearing because new

evidence suggested that one of the government’s witnesses gave untruthful testimony, (5) the

District Court erred in applying a four-level sentencing adjustment for DeSivo’s leadership

role in the conspiracy, and (6) the sentence imposed was unreasonable.

II. Analysis

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       Because DeSivo did not object to the provision of a dictionary to the jury, or to the

District Court’s supplementary instruction regarding the definition of certain terms, we



                                                3
review this claim for plain error. United States v. Haywood, 363 F.3d 200, 206 (3d Cir.

2004). For us to correct an error not raised at trial, the error must be plain and affect

substantial rights. Id. “[I]n most cases, [the limitation that the error must have affected

substantial rights] means that the error must have been prejudicial: It must have affected the

outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734

(1993). Even if these conditions are met, we may exercise our discretion to correct the error

only if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Haywood, 363 F.3d at 207.

       In this case, even if the provision of the dictionary to the jury was error, DeSivo was

not prejudiced as a result. See Gibson v. Mayor and City Council of Wilmington,

355 F.3d 215, 231 (3d Cir. 2004). The District Court recognized the potential problems with

having provided a dictionary and, after consulting with counsel, instructed the jury as to the

proper meaning of specific terms that the jury had questioned. The District Court also

clarified that the jury should not consider dictionary definitions for terms that were defined

in the instructions. We conclude that this supplemental guidance avoided the potential

danger that the jury would misuse the dictionary and eliminated any prejudice to DeSivo.

       The District Court’s evidentiary rulings with respect to admission of the photographs

and the scope of cross-examination regarding the report about police misconduct are

reviewed for abuse of discretion. United States v. Frazier, 469 F.3d 85, 87 (3d Cir. 2006);

United States v. Mussare, 405 F.3d 161, 169 (3d Cir. 2005).



                                              4
       With respect to admission of the photographs of the destroyed items, the Supreme

Court has held that:

              “[w]hatever duty the Constitution imposes on the States to
              preserve evidence, that duty must be limited to evidence that
              might be expected to play a significant role in the suspect’s
              defense. . . . To meet this standard of constitutional materiality,
              evidence must both possess an exculpatory value that was
              apparent before the evidence was destroyed, and be of such a
              nature that the defendant would be unable to obtain comparable
              evidence by other reasonably available means.”

California v. Trombetta, 467 U.S. 479. 488-89 (1984) (internal citation omitted). We have

held that “[w]ithout a showing of bad faith, failure to preserve evidence that might be of use

to a criminal defendant after testing is not a denial of due process.” United States v. Deaner,

1 F.3d 192, 200 (3d Cir. 1993).

       The record reveals no showing of bad faith on the part of the police who destroyed the

items. Rather, Trooper Michael Adams testified that they were destroyed for safety reasons,

because of the chemicals that might have been used in connection with the items, and that

items of a hazardous nature are not kept in the police evidence room. Moreover, we fail to

see how the admission of the photographs of the destroyed evidence prejudiced DeSivo’s

ability to present his defense. Adams testified that the police had found neither drugs nor an

active methamphetamine lab in the camper and acknowledged that the items in the

photographs could commonly be used for purposes other than manufacturing

methamphetamine. In light of the testimony about the items seized from the camper, the

District Court did not abuse its discretion in admitting photographs of those items.

                                              5
       Nor did the District Court abuse its discretion in precluding DeSivo from cross-

examining Trooper John Pierce regarding a report uncovering fabrication by a New York

State Police investigator in an earlier case involving DeSivo. In determining whether a

limitation on cross-examination violates the Confrontation Clause, we consider “(1) whether

the limitation significantly limited the defendant’s right to inquire into a witness’s motivation

for testifying; and (2) whether the constraints imposed fell within the reasonable limits that

a district court has the authority to impose.” Mussare, 405 F.3d at 169. The District Court

has “‘wide latitude . . . to impose reasonable limits on . . . cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only marginally relevant.’” Id. (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

       Here the District Court found that cross-examination as to the report’s findings would

be inappropriate and immaterial, given that Pierce had no close relationship with the

investigator cited in the report. We agree that this fact would undermine any argument that

Pierce was biased against DeSivo because of the report and would minimize the report’s

relevance. Pierce himself told the District Court that he bore no animosity or bias against

DeSivo. On this record, the District Court did not abuse its discretion in refusing to allow

cross-examination regarding the report.

       We review the District Court’s denial of DeSivo’s motion for a new trial for abuse of

discretion. United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006). We have interpreted



                                               6
Federal Rule of Criminal Procedure 33 as permitting a District Court to grant a new trial on

the basis of “newly discovered evidence” where certain conditions are met:

              “(a) the evidence must be in fact, newly discovered, i.e.,
              discovered since the trial; (b) facts must be alleged from which
              the court may infer diligence on the part of the movant; (c) the
              evidence relied on, must not be merely cumulative or
              impeaching; (d) it must be material to the issues involved; and
              (e) it must be such, and of such nature, as that, on a new trial,
              the newly discovered evidence would probably produce an
              acquittal.”

Id. (internal quotation omitted).1

       The District Court found that the “newly discovered evidence” proffered by DeSivo,

namely a statement from a cell mate of Ricky Johnson, one of the many witnesses who

testified against DeSivo at trial, that Johnson had said that much of his testimony was untrue,

was merely impeaching and therefore not a basis to grant a new trial. The record indicates

moreover that this evidence would not probably produce an acquittal at a new trial.

Johnson’s testimony primarily related to indirect purchases of methamphetamine from

DeSivo. Multiple other witnesses (some with first-hand knowledge) testified about DeSivo’s

activities in distributing and manufacturing methamphetamine. As such, we cannot say that



   1
    DeSivo argues that the standard set forth in Larrison v. United States, 24 F.2d 82 (7th
Cir. 1928) applies to his case, in light of this Court’s holding in United States v. Massac, 867
F.2d 174 (3d Cir. 1989). However, in Massac, this Court made clear that our earlier
precedent had not adopted the Larrison rule and apparently applied the rule in that case only
because the parties had agreed to have it applied before the district court. Massac, 867 F.2d
at 178 (citing Gov’t of Virgin Islands v. Lima, 774 F.2d 1245, 1251 n.4 (3d Cir. 1985)).
Notably, the Seventh Circuit has overruled Larrison. United States v. Mitrione, 357 F.3d
712, 718 (7th Cir. 2004), vacated on other grounds, 543 U.S. 1097 (2005).

                                               7
the District Court abused its discretion in denying DeSivo’s motion for a new trial, even

absent an evidentiary hearing.

          DeSivo also challenges the District Court’s application of a sentencing enhancement

pursuant to U.S. Sentencing Guidelines § 3B1.1, based on its finding that he had a leadership

role in the offense. We review the District Court’s factual determinations underlying the

application of the U.S. Sentencing Guidelines for clear error and must give due deference to

the District Court’s application of the guidelines to those facts. United States v. Helbling,

209 F.3d 226, 242-43 (3d Cir. 2000). “We may not reverse if the [D]istrict [C]ourt’s findings

are plausible in light of the record viewed in its entirety.” United States v. Barrie, 267 F.3d

220, 223 (3d Cir. 2001) (internal quotation omitted). We exercise plenary review over legal

questions related to the interpretation and application of the guidelines. Helbling, 209 F.3d

at 243.

          We find no clear error in the District Court’s determination that DeSivo bore a

leadership or organizational role in the offense. We conclude that the District Court properly

interpreted the guidelines in applying the four-level enhancement under § 3B1.1. Section

3B1.1 provides for a four-level increase “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive.” This

Court has held that, “to be considered an organizer or leader, the defendant must have

exercised some degree of control over others involved in the commission of the offense.”

Helbling, 209 F.3d at 243. The record supports the District Court’s determination that



                                               8
DeSivo exercised control over his wife in the conspiracy and that the conspiracy involved

more than five people. Accordingly, the District Court properly determined that the four-

level enhancement applied.

       We also find that the sentence imposed by the District Court was reasonable. We

review a sentence for reasonableness following United States v. Booker, 543 U.S. 220

(2005). United States v. Cooper, 437 F.3d 324, 326-27 (3d Cir. 2006). “The touchstone of

‘reasonableness’ is whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475

F.3d 556, 571 (3d Cir. 2007) (en banc); Cooper, 437 F.3d at 329. Reasonableness review

essentially calls upon us to “ask[] whether the trial court abused its discretion.” Rita v.

United States, 551 U.S. __, 127 S.Ct. 2456, 2465 (2007). We may apply a presumption of

reasonableness to a sentence within the guidelines range. Id. at 2462-65.

       The record indicates that the District Court reasonably considered and applied the

Section 3553(a) factors in determining DeSivo’s sentence. DeSivo primarily faults the

District Court for imposing what he deems a disparate sentence compared to that imposed

on the other participants in the methamphetamine operation. However, DeSivo had a more

considerable criminal history than those other participants, and the District Court explained

the role of DeSivo’s criminal history in issuing its sentence. In addition, the sentence

imposed was within the range suggested by the guidelines. As such, we reject DeSivo’s

claim that the sentence imposed was unreasonable.



                                             9
III. Conclusion

      For the reasons set forth above, we will affirm the judgments of conviction and

sentence.




                                         10
