                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-13-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2286




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"USA v. Darby" (2009). 2009 Decisions. Paper 2055.
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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 06-2286
                                      ____________

                            UNITED STATES OF AMERICA

                                             vs.

                                  TERRANCE DARBY,
                                                Appellant

                                      ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                            (D.C. Crim. No. 04-cr-00318)
                  District Judge: Honorable Dennis M. Cavanaugh

                                      ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                December 2, 2008
           Before: AMBRO, WEIS and VAN ANTWERPEN, Circuit Judges

                                  Filed: January 13, 2009
                                      ____________

                                        OPINION


WEIS, Circuit Judge.

              After a jury trial, Terrance Darby was convicted of knowingly or

intentionally possessing with intent to distribute cocaine and cocaine base, in violation of

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21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; knowingly possessing a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c); and

possessing a firearm and ammunition after having been convicted of a crime punishable

by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 2, 922(g)(1).

We will affirm his conviction.

              Darby challenges the District Court’s denial of his motion to suppress

without holding an evidentiary hearing. The motion did not include any factual basis for

suppression. Before trial, the District Court inquired as to whether such a basis existed,

to which Darby responded, “Your Honor, I’ll submit to the Court’s discretion.”

              “A defendant seeking an evidentiary hearing on a motion to suppress must

provide sufficient information to enable the court to conclude that a substantial claim is

presented and that there are disputed issues of material fact which will affect the outcome

of the motion.” United States v. Juarez, 454 F.3d 717, 719-20 (7th Cir. 2006) (citing

United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998)) (internal quotation mark

omitted); see also United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996) (a defendant

is entitled to a pretrial hearing when his “moving papers . . . demonstrate a colorable

claim for relief . . . [and] must consist of more than mere bald-faced allegations of

misconduct” (internal citations and quotation marks omitted)). Because Darby’s counsel

did not present a factual basis for suppression, the District Court did not err in failing to

conduct an evidentiary hearing.



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              Darby also complains about an allegedly prejudicial statement in the

testimony of a government witness and a curative instruction the District Court gave the

jury in response. During the direct examination of Sergeant Burgos of the Newark Police

Department, he was asked “what type of operation” he was involved in at the time of the

arrest, to which he responded, “[n]arcotics investigation and gang investigation.” Darby’s

counsel objected and requested a mistrial, which the Court denied. After conferring with

counsel, the Court issued a curative instruction to the jury,

                 “Ladies and gentlemen, you just heard the sergeant
              mention the type of duty he was on that day involving
              narcotics and gangs.
                 This case has nothing to do with gangs, so that’s not to be
              dealt with in any way. This case has to do with what the
              prosecutor told you in his opening statement.
                 So I just want you to be aware of that. Okay?”

Darby did not object to the curative instruction. He now argues that the instruction

exacerbated Sergeant Burgos’s allegedly prejudicial testimony, “lending credibility to the

prosecution’s version of the events,” and amounting to reversible error.

              Any prejudice that may have resulted from Sergeant Burgos’s testimony

was eliminated by the District Court’s curative instruction. “[W]e . . . presume that a jury

will follow an instruction to disregard . . . evidence inadvertently presented to it, unless

there is an overwhelming probability that the jury will be unable to follow the court’s

instructions, and a strong likelihood that the effect of the evidence would be devastating

to the defendant.” United States v. Thornton, 1 F.3d 149, 157 (3d Cir. 1993) (quoting



                                               3
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)) (internal quotation mark omitted). Darby

has not demonstrated that this standard is met.

              Darby contends that the curative instruction exacerbated the prejudice he

allegedly suffered as a result of Sergeant’s Burgos’s testimony about gangs. We conclude

that the District Court did not abuse its discretion in composing the curative instruction.

Darby’s trial counsel “did not object to the phrasing of the instruction, a fact which

suggests that counsel agreed with the Judge’s approach.” United States v. Hakim, 344

F.3d 324, 331 (3d Cir. 2003).

              Finally, Darby asserts that the District Court erred in admitting into

evidence a photograph taken of him on the day of his arrest because “it further

exacerbate[d] his possible gang affiliation” and was unnecessary cumulative evidence.

He also argues that the District Court erred in permitting testimony about a narcotics field

test of a plastic bag seized from him. He asserts that this testimony was “needless . . .

cumulative evidence.”

              “We review a district court’s decision to admit or exclude evidence for

abuse of discretion, and such discretion is construed especially broadly in the context of

Rule 403.” United States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007) (quoting United

States v. Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001)). Applying this deferential

standard of review, we find that the District Court did not abuse its discretion in

concluding that the probative value of the photograph was neither substantially



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outweighed by the spectre of unfair prejudice nor needless presentation of cumulative

evidence.

              Because Darby’s counsel did not object to the testimony regarding the

narcotics field test, we apply the plain error standard. United States v. Moore, 375 F.3d

259, 262 (3d Cir. 2004). Other than making a conclusory assertion that this evidence was

“unduly prejudicial and a ‘needless presentation of cumulative evidence,’” Darby does

not provide this Court with a reason why we should find plain error.

              In sum, we conclude that Darby’s appeal lacks merit. Accordingly, we will

affirm the judgment of the District Court.




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