                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2399




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"USA v. Worrells" (2004). 2004 Decisions. Paper 819.
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                                                      NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 01-2399
                           No. 03-3290




                UNITED STATES OF AMERICA

                                 v.

                      DAVID W ORRELLS,
                        a/k/a KERNEL

                            David Worrells,

                                  Appellant




ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           EASTERN DISTRICT OF PENNSYLVANIA

                   (Dist. Court No. 00-CR-313-02)
          District Court Judge: Honorable J. Curtis Joyner


                      Argued March 29, 2004

      Before: ALITO, FISHER, and ALDISERT, Circuit Judges.

                                              Hope C. Lefeber
                                              Suite 1000
                                              1420 Walnut Street
                                              Philadelphia, PA 19102

                                              Counsel for Appellant
                                                          Kathy A. Stark (Argued)
                                                          Suite 1250
                                                          Office of the United States
                                                          Attorney
                                                          615 Chestnut Street
                                                          Philadelphia, PA 19106

                                                          Counsel for Appellee


                               (Opinion Filed: April 19, 2004)




                                OPINION OF THE COURT


PER CURIAM:

       This is an appeal from a judgment in a criminal case. We find Worrells’ claims to

be without merit and therefore affirm.

       First, we reject Worrells’ argument that he is entitled to a new trial on the basis of

newly discovered evidence. We hold that Worrells cannot satisfy the second and fifth

prongs of the new trial test. See United States v. Jasin, 280 F.3d 355, 361 (3d Cir. 2002).

First, even if we believe that Worrells only discovered after the trial that his cellular

phone number was disconnected before the Agent’s testimony, he has put forth no

evidence to suggest that he used diligence during and before the trial to ascertain this fact.

See United States v. Jasin, 280 F.3d 355, 361 (3d Cir. 2002). Simply put, Worrells had

the same access to the phone records after trial as he had both during and before trial.

Using proper diligence, Worrells could have contacted the phone company and

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discovered that the cellular phone number in question had been disconnected prior to the

time the Agent claimed that he called the number. Second, the government provided

other evidence of the number, including Worrells’ girlfriend’s address book, see Supp.

App. 223-224; 231-234; 238, which recorded his name next to the cell phone number.

This identification, combined with other evidence at trial, means that we cannot conclude

that “the newly discovered evidence would probably produce an acquittal.” Jasin, 280

F.3d at 361.

       On this basis, we also reject Worrells’ contention that the District Court abused its

discretion in allowing into evidence various charts showing the electronic

communications between the conspirators. In addition to adequately establishing that the

cell phone and other phones were linked to Worrells, the charts and exhibits were

accurately explained by a government witness so as not to confuse the jury. See Supp.

App. 266-267; 294-297. Thus, the District Court did not abuse its discretion in finding

them more probative than prejudicial. See Federal Rules of Evidence 403 and 1006;

United States v. Serafini, 233 F.3d 758, 768 fn. 14 (3d Cir. 2000).

       Second, we hold that there was sufficient evidence for the jury to convict Worrells

of conspiracy to distribute drugs and unlawful possession of a weapon by a felon. When

the record is viewed in “the light most favorable to the government,” there was

“substantial evidence from which any rational trier of fact could find guilt beyond a

reasonable doubt.” See United States v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992). In



                                             3
addition to the testimony of numerous cooperating witnesses that placed W orrells within

the conspiracy as a manager, seller, and supplier of crack, see, e.g., Supp. App. 11; 21-25;

29-32; 33-34; 37-40; 41-42; 55-56; 61-63; 70; 77-81; 86-87, the police linked Worrells to

other conspirators via voluminous phone records and recorded drug dealers going into

and out of his mother’s house (which, according to testimony, Worrells used as a

stashhouse.) This was sufficient to convict Worrells of the conspiracy. As to the firearms

conviction, a police officer testified that he caught Worrells riding in a car with a firearm

underneath the rug in front of him. See App. 182a-186a. The officer testified that there

was an obvious bulge in the rug. This was sufficient evidence for a jury to infer that

Worrells (and not the owner/driver of the car) was in possession of the gun.

       Third, the District Court properly determined Worrells’ maximum sentence under

the statute. Contrary to Worrells’ argument, the District Court properly instructed the jury

as to its duty to find the quantity of drugs reasonably foreseeable to each defendant in the

conspiracy. The jury found that the quantity for Worrells was at least 1.5 kilograms,

enough to place him in the statutory maximum of life imprisonment. See 21 U.S.C.

841(b)(1)(A). As such, there was no error under Apprendi v. New Jersey, 530 U.S. 466

(2000). Moreover, the District Court properly determined that Worrells was responsible

for more than 1.5 kilos of crack (enough to place him in the highest guidelines category)

based on the evidence mentioned above. See United States v. Collado, 975 F.2d 985 (3d

Cir. 1992).



                                              4
       Fourth, the District Court did not commit clear error when it increased Worrells’

sentence based upon its factual findings that he was in possession of a gun during the

crime and that he played a managerial role in the conspiracy. The police found a loaded

firearm located next to Worrells at the time of his arrest. 1 Furthermore, as mentioned

supra, the police also caught Worrells with a different loaded firearm while he was

driving with a co-conspirator. This provided alternative evidence for increasing Worrells’

sentence.2 The government also presented sufficient evidence, again mentioned supra, to

show that W orrells played a managerial role in the conspiracy.

              For the above reasons, we affirm.




       1
         The jury specifically found that Worrells was in possession of this gun. The fact
that it later refused to convict him of possession of this gun did not prevent the District
Court from considering the gun possession in its sentence.
       2
       Worrells’ argument that the government failed to link the gun to the conspiracy
simply fails to state the facts accurately.

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