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United States District Court, S.D. New York

May 07, 2004.


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


On January 16, 2004, following a two-week jury trial, Defendant Jeffrey McDaniel was convicted of possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Invoking Federal Rules of Criminal Procedure 29 and 33, Defendant now moves for an order setting aside the jury verdict and entering a judgment of acquittal, or, in the alternative, ordering a new trial.

The Court has considered carefully the Defendant's and the Government's respective submissions on the post-trial motion. For the following reasons, Defendant's motion is denied.

  Rule 29 Motion

  Defendant argues that the Court should enter a judgment of acquittal pursuant toFederal Rule of Criminal Procedure 29 because the warrant authorizing the search in which the ¶ was seized was defective and improperly obtained, and because the ¶ to prove what Defendant contends are elements of the crime charged. Neither Government failed to prove what Defendant contends are elements of the crime charged. Neither argument is meritorious.

  The warrant-related element of Defendant's application is essentially an effort to relitigate Defendant's pre-trial suppression motion on the same grounds. The pre-trial motion was denied for the reasons detailed in the Court's August 29, 2003 Memorandum Opinion and Order. The Court also denied a defense application to reopen the search warrant proceeding for reasons detailed on the record of the pre-trial conference held in this case on December 2, 2003. (Dec. 2, 2003 Conf. Tr. at 8-10.) As in his prior attacks on the search warrant, Defendant argues here that the inconsistency between the warrant application's reference to a "handgun" and the nature of the weapon actually seized, as well as inconsistencies between statements and testimony of the officer who signed the complaint and testimony of the confidential informant upon whose information the warrant application was based in part, are indicative of a lack of probable cause for issuance of the warrant and of deliberate falsification by the law enforcement officers who obtained the warrant.

  Rule 29 of the Federal Rules of Criminal Procedure authorizes motions challenging the sufficiency of the evidence presented at trial. The warrant-related aspect of Defendant's motion thus is not properly asserted under Rule 29, and, having previously been addressed by the Court on more than one occasion, is properly denied on that basis alone. Furthermore, even if the Court were to reconsider its prior determinations regarding the sufficiency of the warrant to support probable cause in light of the evidence presented at trial and falsification of the information therein, the Court's prior determinations upholding the warrant would not change. Defendant focuses principally on the statement in the warrant application, signed by NYPD Sergeant Daniel Fraser and presented to the Magistrate Judge in support of the warrant application, that a confidential informant had seen the defendant display a ".22 caliber handgun."*fn1 The weapon ultimately found and seized was a .22 caliber rifle. At trial, Fraser testified that he had assumed that the weapon was some sort of handgun because the informant had told him that the weapon was a "Calico" and he had previously seen only large handguns manufactured by that company. (Trial transcript ("Tr.") at 181.) The confidential informant, Clevon Edge, testified that he had told the police that the weapon was a "Calico." (Tr. at 529-30.) Defendant also cites discrepancies between the assertion in the warrant application that the informant claimed to have been in Defendant's residence on a number of occasions, and Edge's trial testimony as to the number of times he had been in the residence, arguing that those discrepancies are indicative of deliberate falsification. At the December 2003 proceeding before the Court. Defendant argued that the use of "handgun" in the affidavit rather than "rifle" was likely the product of a deliberate falsification intended to increase the likelihood that a search warrant would be issued.

  Under the rules enunciated by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-5C) (1978), a search warrant may be challenged on the ground that the affidavit supporting the warrant application presented deliberately or recklessly falsified information where the allegedly false information was necessary to the finding of probable cause. Even where. however a defendant makes a substantial preliminary showing that the affiant knowingly and intentionaily. or with reckless disregard for the truth, included a false statement in the ¶ no evidentiary hearing is required if, setting aside the allegedly false material, the affidavit still contains information sufficient to support probable cause. Id. at 155-56, 171-72.*fn2 The Court denied Defendant's December 2003 application for a Franks hearing because Defendant had failed to make the requisite substantial preliminary showing and because, in any event, even if the word "handgun" were removed from the affidavit, the reference to ".22 Caliber" would still have been sufficient in the context of the information presented to support probable cause to believe that the Defendant was or had been in illegal possession of a firearm.*fn3 The trial testimony does not change this conclusion. Both witnesses confirmed that Edge had told the police that Defendant had shown him a firearm and had described characteristics of the weapon retrieved pursuant to the warrant. The inaccuracy at issue here, namely the statement that Edge was shown a handgun, when claims that he actually was shown a rifle, at Defendant's residence in no way undermines the Magistrate Judge's probable cause determination. Nor would excision of the affidavit's specific representations as to the frequency of Edge's prior visits to Defendant's residence have vitiated the factual basis presented in the affidavit for probable cause to believe that evidence of a section 922(g)(1) violation could be found in the residence.

  Turning to Defendant's remaining Rule 29 argument, it is axiomatic in the Second Circuit that "[a] defendant challenging the sufficiency of the evidence underlying his conviction `bears a very heavy burden." United States v. Gonzalez, 110 F.3d 936, 940 (2d Cir. 1997) (internal citation omitted). The Court must view the evidence in the light most favorable to the Government and construe all inferences in the Government's favor. A judgment of acquittal may only be entered where the Court finds that "no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id

  Defendant argues that the Court should enter a judgment of acquittal because the Government failed to prove that the firearm was semi-automatic and that it was, in fact, a working firearm. Defendant was charged pursuant to 18 U.S.C. § 922(g)(1) with being a felon in possession of a firearm. Title 18 defines a "firearm" as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projecfile by the action of an explosive."*fn4 18 U.S.C.A. § 921(a)(3) (West 2000) (emphasis supplied). The evidence presented at trial was sufficient to enable the jury rationally to conclude that the .22 Calico. rifle is a firearm within the meaning of the statute.

  Defendant asserts that the Government was required to offer proof from a ballistics expert or other witness that the firearm was capable of firing. (Deft. Mem. of Law, at 6-7.) This proposition fails as a matter of law, as "[n]othing in the statute requires such . . . evidence." United States v. Jones, 16 F.3d 487, 491 (2d Cir. 1994) ("The mere possibility that the object seen by witnesses may have been a sophisticated toy or other facsimile does not necessarily create a reasonable doubt, nor is the government required to disprove that theoretical possibility.") The Government was not required to prove that the weapon was operable. The statutory definition includes, on its face, devices "designed to" expel projecfiles by action of an explosive. On the Government's direct case, Charles Mulham, who was tendered and qualified as an expert in the identification and origin of firearms, explained the firing mechanism of firearms, and identified the gun in question as a firearm manufactured by Calico. Industries, a firearms manufacturer, outside New York State. (Tr. 1179-1195.) The Second Circuit has held that even simple eyewitness testimony that a weapon is a firearm is sufficient to meet the Government's burden of proof under 18 U.S.C. § 921(a)(3), "so long as it provides a rational basis for the jury to find that the object observed by eyewitnesses `was, in fact, a firearm . . . No specific type of testimony is required.'" Jones, 16 F.3d at 490-91 (citations omitted). In this case, the officers who recovered the weapon during the search, including Sergeant Fraser and Lieutenant James O'Sullivan, as well as the confidential informant, Clevon Edge, all recognized the weapon to be a firearm. In fact, Edge testified that the Defendant had shown him how to load the rifle, bragged that it could shoot someone from a long distance, and allowed Edge to hold it. (Tr. 519-523.) Finally, the rifle itself was entered into evidence, thereby allowing the jurors to inspect it and draw their own conclusions. A rational trier of fact could certainly have concluded beyond a reasonable doubt, based on the evidence presented on the Government's direct case, that the weapon was a firearm as defined by 18 U.S.C. § 921(a)(3). Defendant's Rule 29 motion on this issue is therefore denied.*fn5 Rule 33 Motion

  Defendant further argues that the Court should vacate the guilty verdict and grant him a new trial, pursuant to Federal Rule of Criminal Procedure 33, to correct "numerous errors and improprieties." (Deft. Mem. of Law, at 8.) Federal Rule of Criminal Procedure 33 provides that, "[u]pon the defendant's motion the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R. Crim. P. 33. As Defendant acknowledges, "[t]he ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 1997); see Def. Mem. of Law at 8. The Second Circuit has stated that a district court should exercise such authority only "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993). Because the decisions targeted by Defendant as erroneous alone or in combination, did not work any injustice to Defendant that would warrant a new trial, the Rule 33 aspect of Defendant's motion is denied.

  Defendant cites several alleged errors, which the Court will discuss sequentially.

  Alleged Violation of Suppression Order

  In its August 29, 2003 Memorandum Opinion and Order, the Court held that an incriminating statement made by the Defendant prior to the administration of Miranda warnings was the product of an interaction likely to elicit an incriminating response from Defendant and, on that basis, granted Defendant's motion to suppress the statement. The statement, to the effect that the ¶ question was hidden under the Defendant's mother's bed, was made when Defendant was being held during the search in a police car outside the residence.

  On direct examination. Sergeant Fraser, who was called as the Government's first witness, testified in response to a series of questions that he stepped outside the residence after the search had proceeded for about 15 minutes and saw the Defendant in the police car across the street. (Tr. at 196-97) In response to a question as to what Fraser did "immediately" after he had seen the Defendant, Fraser testified that he "went right back into the house, up to the top floor, to the mother's bedroom." Defense counsel promptly objected and moved for a mistrial, arguing that the Government violated the suppression order by eliciting testimony implying that information received from Defendant had directed Fraser's attention to the bedroom. (Id.) The Court reserved decision on the motion. (Tr. 199.) When the testimony resumed, the Government questioned Fraser regarding his activities after he reached the bedroom. Fraser's testimony in this connection included the statement that, after he entered the bedroom, "I went right to the bed. Another officer lifted up the bed. I saw a black plastic bag. I picked it up, and I recovered the weapon." (Tr. 200.)

  The Court denied the motion for a mistrial following the close of all of the evidence, noting that a mistrial is appropriate only where, "taking all of the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise have been defeated," and that the Second Circuit has instructed the district courts that the power to declare a mistrial ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. United States v. Millan, 817 F. Supp. 1086, 1088. (S.D.N.Y. 1993) (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)) (internal citation omitted); (Tr. at 1233-34.) No such circumstances were presented by Sergeant Fraser's testimony. As the Court explained to the extent that any inference regarding a statement by Defendant might have been suggested by the testimony, it was diluted by the wealth of evidence regarding people who were moving in and out of the house during the course of the search and by the earlier testimony that Fraser had already been inside the house. (Tr. at 1234.) There was no violation of the suppression order, as the Government did not elicit evidence of Defendant's statement, and no unfair prejudice was injected into the trial by the elicitation of testimony regarding Fraser's actions in connection with the search. The mistrial motion was properly denied, and no manifest injustice arose warranting a new trial.

  Closing Argument Remarks

  Defendant next argues that he was prejudiced by the Government's remarks regarding a defense witness, Jason Johnson, the Defendant, and Clevon Edge in its rebuttal argument, specifically:

Jason Johnson's testimony actually is very helpful here. I submit to you, first of all, very straight-up individual, very good person, clearly from a good family. You heard his testimony. They basically adopted the defendant. The defendant of course brought Clevon Edge into the house. Defendant is not the same person perhaps as Jason Johnson and his step-family.
(Tr. at 1323.) Defendant objected and, in an abundance of caution, the Court sustained the objection and instructed the jury to disregard the remark. (Id.) Defendant has cited no authority in support of his argument that the remark was improper. Even assuming (as the Court did in instructing the jury to disregard the remark) the potential for some unfair prejudice, the fact that the remark was made did not deprive Defendant of a fair trial.

  The Second Circuit has explained that "[i]t is well settled that `the prosecution and defense are entitled to broad latitude in the inferences they may suggest to the jury during closing arguments, provided they do not misstate the evidence.'" United States v. Meyerson, 18 F.2d.153. 163 (2d Cir. 1994) (internal quotation omitted). Indeed, reversal is proper only where the prosecutor's comments, "viewed against the entire argument before the jury, deprived the defendant of a fair trial." Id. (internal quotation omitted). In evaluating the prejudice to the Defendant, the Court must consider the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper statements. Id at 162.

  Applying those considerations here, the Court finds that there was no prejudice to the Defendant that would warrant a new trial. First, the Government's conduct was not particularly egregious. Cf. United States v. Locascio, 6 F.3d at 945-46 (holding that prosecutor's comment that "murderous and treacherous" crime family should cause jury to question their safety did not warrant reversal). Moreover, the jury was immediately instructed to disregard the remark. Conviction was just as likely absent the Government's remarks, as there was ample evidence indicative of the Defendant's guilt, and the challenged comment was but one statement in the context of two weeks of trial testimony and argument.

  "Other Acts" Evidence

  Defendant next argues that the Court improperly admitted "similar acts" evidence under Federal Rule of Evidence 404(b). Defendant's contention that evidence of Defendant's prior gun and drug-related dealings with Clevon Edge, including drug selling, was unfairly prejudicial to Defendant and unnecessary to enable the jury to understand the alleged relationship of trust and confidence between the two was considered and addressed thoroughly by the Court before trial in an oral decision at the December 2, 2003 conference (Dec. 2, 2003 Conf Tr. at 41-43) and at the beginning of the trial, in response to the Defendant's request for reconsideration. (Tr. 4-7). Defendant presents no new arguments in this post-trial motion.

  As the has Court previously stated, this Circuit follows an inclusionary rule regarding "other crimes" evidence. The Court has broad discretion in admitting "other crimes" evidence pursuant to 404(b). US v. Rosa, 11 F.3d 315, 333-34 (2d Cir. 1993). Here, the Court found that "other crimes" evidence provided background information about the relationship of trust between the confidential informant, Clevon Edge, and the Defendant. The Court found that the evidence was relevant, and determined pursuant to Rule 403 that the probative value of the evidence was not substantially outweighed any risk of unfair prejudice. The Court gave a limiting instruction at each mention of the prior acts,*fn6 which was all that was required. United States v. Ortiz, 857 F.2d 900, 903-04 (2d Cir. 1988). The Court also reiterated the limiting instruction in its charge to the jury. (Tr. at 1341, 1350.) Furthermore, to the extent that Defendant argues that the Court's December 2, 2003 pre-trial ruling did not encompass the admission of prior bad acts evidence regarding the Defendant's narcotics sales, Defendant is incorrect. The Government proffered at the conference that Clevon Edge would testify as to such information, and the Court ruled that the testimony would be admissible. (Dec. 2, 2003 Conf. Tr. at 34-36, 41-43.) The evidence regarding Defendant's prior drug dealing and gun and drug-related activity with Clevon Edge, which was admitted for the purpose of showing a relationship of trust and confidence between the two consistent with the notion that the Defendant would have been comfortable disclosing his possession of an illegal weapon to Edge, neither unfairly prejudiced the Defendant nor denied him a fair trial.

  Other Alleged Trial Errors

  With regard to the other purported errors Defendant cites in pressing his Rule 33 motion for a new trial, namely, that defense counsel was not permitted to invite the jury to speculate that Defendant's underlying felony might have been shoplifting at Macy's, that the Court admitted evidence that ammunition (some of which was not for the Calico. weapon) and marijuana were found during the search of Defendant's residence, the Court finds that these matters worked no manifest unfairness, either singly or in combination with the other errors argued by the defense. It was improper for defense counsel to invite the jury to speculate as to the basis for Defendant's underlying felony conviction, particularly in light of the parties' stipulation that only the fact (rather than the nature) of the underlying felony conviction would be presented to the jury. The Court addressed defense counsel's error by giving a limiting instruction, directing the jury not to speculate as to the underlying felony conviction. (Tr. at 155.) The evidence regarding the ammunition was relevant to the contested issue of possession of the Calico. weapon even if the Government did not show that it was the proper ammunition for the Calico. firearm, and the Government was not required to present scientific evidence regarding the nature of the substance identified by the police witness as marijuana.

  The Court has also considered the "entire case, tak[ing] into account all facts and circumstances, and mak[ing] an objective evaluation." See Henderson, 246 F.3d at 134.

  Having considered thoroughly the entire case and Defendant's specific arguments, the Court concludes that, far from being the product of manifest injustice, the guilty verdict rendered by the jury was amply supported by competent, satisfactory and sufficient evidence properly admitted in the course of a fair trial. Cf. Id. Defendant's motion for a new trial is, accordingly, denied.


  For all of the foregoing reasons, Defendant's motion for acquittal or, in the alternative, for a new trial, is denied in its entirety.


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