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


7-21-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1860




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                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No: 04-1860


                           UNITED STATES OF AMERICA

                                            v.

                                     BRIAN SMITH,

                                          Appellant

                           ___________________________

                      Appeal from the United States District Court
                             for the District of New Jersey
                              (D.C. No. 00-cr-00399-2)
                            District Judge: John C. Lifland




                                Argued on April 20, 2005


                Before: ROTH, FUENTES and BECKER, Circuit Judges


                                  (Filed: July 21, 2005)

John A. Young, Jr., Esquire (Argued)
Willis & Young
921 Bergen Avenue, Suite 528
Jersey City, NJ 07306

             Counsel for Appellant

Ricardo Solano, Jr., (Argued)
George S. Leone
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

              Counsel for Appellee




                                         OPINION




ROTH, Circuit Judge.

       Brian Smith appeals his convictions for violating 18 U.S.C. §§ 241 and 242.

Smith makes three arguments in protest of these convictions. First, Smith argues that the

District Court erred when it denied his Motion for a New Trial based on the government’s

violation of Rule 16 of the Federal Rules of Criminal Procedure. Second, Smith argues

that the District Court erred when it denied his Motion for a New Trial based on the

government’s violation of Brady v. Maryland, 373 U.S. 83 (1963). Third, Smith argues

that the District Court erred when it denied his Motion to Sever his trial from that of his

co-defendants.

       Smith is also appealing his sentence of 108 months. Smith argues that his Sixth

Amendment rights were violated when the District Court increased his sentence based on

facts that the jury did not find beyond a reasonable doubt and that the District Court erred

in applying the Sentencing Guidelines in a mandatory fashion. United States v. Booker,

125 S.Ct. 738 (2005). Because we have concluded that the sentencing issues that Smith



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has raised are best determined by the District Court in the first instance, we will vacate

Smith’s sentence and remand his sentence to the District Court for resentencing in

accordance with Booker. Before vacating and remanding the sentence, we will address

the issues Smith raises concerning his conviction.

                                              I.

       On December 19, 2000, a jury found five Orange, New Jersey, Police Officers,

including Brian Smith, guilty of conspiracy to deprive civil rights and depriving civil

rights in violation of 18 U.S.C. §§ 241 and 242, respectively. These convictions stemmed

from the arrest and eventual death of Earl Faison, which took place on April 11, 1999.

Because the parties are familiar with the facts of this case, we will not repeat them here.1

       Prior to trial, Smith filed a Motion to Sever his trial from that of his co-defendants.

The District Court denied the motion. Smith also filed two post-conviction Motions for a

New Trial, one based on the alleged Rule 16 violation and one based on the alleged Brady

violation. The District Court denied both. The District Court ruled that the Rule 16

violation was not prejudicial and that the undisclosed evidence in the Brady violation was

not material. Smith made a timely appeal for the denial of each of these motions.

                                              II.

       Smith claims that the government violated Rule 16 because it failed to adequately



       1
         We laid out the facts of this case in detail on the first appeal. See United States v.
Smith, 294 F.3d 473 (3d Cir. 2002). On the first appeal, we reversed the District Court’s
grant of the defendant’s post-verdict motion for acquittal on the conspiracy conviction.

                                              -3-
disclose the opinion of its expert medical witness and the bases for that opinion. To

succeed, Smith must show both that the government violated Rule 16 and that the

violation was prejudicial. Even if the government did in fact violate Rule 16, we find that

any such violation was not prejudicial to Smith because Smith’s defense strategy would

not have changed if the government had complied with Rule 16 and because Smith’s trial

counsel conducted a “highly professional and effective” cross-examination of the

government’s expert witness . We also reject Smith’s argument that the government’s

failure to provide timely notice deprived him of the opportunity to request a pre-trial

hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Once

Smith objected to the witness’s testimony, the District Court held a Daubert hearing and

concluded that the witness was qualified under the standards in that case. Smith has

pointed to no evidence undermining that conclusion, and we see none.

       In Smith’s Brady claim, he argues that the government failed to disclose to the

defense that the laboratory technician who conducted the DNA testing in the case failed

to perform negative control sample testing, which ensures the reliability of the DNA

analysis. To succeed, Smith must show that (1) the evidence in question was favorable to

Smith, (2) the government suppressed the evidence, and (3) the evidence was material to

Smith’s guilt. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Smith contends that

his claim should be evaluated under the relaxed standard of materiality set forth in United

States v. Agurs, 427 U.S. 97, 103 (1976). We conclude that the evidence that the



                                             -4-
negative control sample testing was not performed is not material to Smith’s guilt on

either charge under any standard of materiality, so we need not determine the appropriate

standard.

       Smith argues that the redaction of his co-defendants’ statements combined with the

District Court’s instruction to the jury, which called attention to the use of the general

term “individuals” in those statements, implicated him and violated his Sixth

Amendment right to confront his accuser, in violation of Bruton v. United States, 391

U.S. 123 (1968). We find that the redaction of the statements was sufficient to protect

Smith’s Sixth Amendment rights. In this case, the use of the term “individuals” does not

implicate any particular individual, including Smith, because it not only fails to point to a

specific person, but also casts doubt on the number of individuals involved.2 Further, the

use of the term “individuals” not only satisfies the standard in Gray v. Maryland, 523 U.S.

185 (1998) (holding that use of the term “deleted” in place of a defendant’s name causes

a redaction to be insufficient), but also satisfies Priester v. Vaughn, 382 F.3d 394 (3d Cir.

2004) (noting that where “there were at least fifteen other perpetrators involved in the

shooting, and the phrases ‘the other guy’ or ‘another guy’ are bereft of any innuendo that

ties them unavoidably to Priester”). The term “individuals” does not refer to a specific



       2
       Smith also challenges the government’s use of an edited version of Officer
Thomas Smith’s grand jury testimony, which stated that “four individuals had control of
Mr. Faison” immediately after his arrest. Because the testimony was not incriminating
and because Brian Smith was not accused of violating Faison’s civil rights in the
moments immediately after his arrest, we reject this argument.

                                              -5-
person, which was the cause for concern in Gray. Further, the use of the term

“individuals” is ambiguous as to the number of persons involved. Thus, the redaction of

the statements was sufficient.

                                            III.

       For the foregoing reasons, we hold that the District Court did not err when it

denied Smith’s motion to sever and his two motions for a new trial. We will affirm the

judgment of conviction. As previously stated, however, we will vacate the sentence and

remand for resentencing in accordance with Booker.




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