On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Nos. 02-cr-00106-1, 02-cr-00106-3, 02-cr-00106-2) District Judge: Hon. Marvin Katz
Before: Sloviter, Van Antwerpen, and Cowen,
The opinion of the court was delivered by: Sloviter, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) October 7, 2004
We have before us the appeal of defendants Kevin Davis, Kevin A. Minnis, and Reginal Scott, who were tried together and who were each found guilty by the jury of both possession of cocaine base or crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm during and in relation to an underlying drug felony in violation of 18 U.S.C. § 924(c)(1)(A).*fn1 We have before us both merits issues and sentencing issues. Although defendants raise a number of issues on the merits, we focus primarily on the defendants' contention that the District Court abused its discretion in admitting the testimony of the government's expert witness, Philadelphia Police Officer Derrick Garner, and the defendants' contention that the District Court abused its discretion in refusing to sever Reginal Scott's trial from the trial of the other two defendants.
Two police officers traveling in South Philadelphia in an unmarked car saw six or seven shots fired from the passenger side of a black Honda automobile one block in front of them on 17th and Annin streets. The officers immediately activated their lights and siren, and pursued the Honda when the Honda did not stop. Within a few minutes, a marked police car also joined the chase led by the fleeing vehicle as it traveled at a high rate of speed, passed a number of red lights and stop signs, and on several occasions drove the wrong way on one-way streets. The police cars never lost sight of the Honda, and they eventually forced it to stop. All four doors immediately opened and the passengers attempted to exit.
Officer Brook, one of the officers in the marked car, testified that he observed Reginal Scott exit from the back passenger seat and Kevin Davis emerge from the front passenger seat. According to Officer Brook, Scott initially put up his hands and surrendered, but then began inching away from the car. At the same time, Davis attempted to flee on foot and Officer Brook pursued him. According to Officer Brook, Davis pointed his firearm at him and he then fired one shot and hit Davis. A pistol was recovered from the area where Davis fell. Davis was then taken to the hospital by Officers Haines and Thomas who recovered from Davis $169.00 in cash and one plastic baggie containing nineteen zip-lock packets of cocaine base.
Officer Bucceroni, who was with Officer Brook, observed Kevin Minnis exiting the vehicle with a semiautomatic firearm in his right hand. Officer Bucceroni instructed Minnis to drop the firearm. After he complied the officer retrieved the weapon, placed Minnis under arrest, and, in the search incident to the arrest, recovered twelve packets containing cocaine base. At approximately the same time, Officer Dawsonia, who arrived on the scene after responding to the radio call for assistance, was instructed to stop Scott who had been slowly attempting to inch away. Upon hearing this instruction, Scott threw a handgun onto the ground and was arrested by Officer Dawsonia, who searched Scott and recovered forty-four packets of cocaine base from his pocket. Ballistics tests later confirmed that the firearm recovered from Scott was the weapon fired at 17th and Annin Streets.*fn2
Defendants were convicted following a jury trial on the drug and weapons charges referred to above. Defendant Minnis, who sought and was granted a bifurcated trial on the charge under 18 U.S.C. § 922(g)(1), was also found guilty of that charge. See note 1 supra. The District Court denied defendants' motions for acquittal under Federal Rule of Criminal Procedure 29 and for a new trial pursuant to Rule 33. United States v. Davis, 233 F. Supp. 2d 695 (E.D. Pa. 2002).
Defendants filed a timely appeal.
Defendants argue first that the District Court erred in admitting as expert testimony the responses of Officer Garner to the following hypothetical question: whether, assuming that "five persons were in a car, four of whom possessed handguns," and that "one person possessed a handgun with 12 packets, another person possessed a handgun with 19 packets, [and] one person... possessed a handgun with 44 packets," "would you say that would be consistent with drug trafficking or consistent with possession, simple possession." Jt. App. at 314a. Officer Garner responded, "It would be my opinion that would be possession with intent to deliver the narcotics." Id. He further explained that the bases for his opinion were "[t]he gun would be one factor, the narcotics would be the other," and "[t]he number of people in the vehicle and the circumstances of the arrest" would all play a factor." Id. at 314a-15a.
Defendants contend that the government did not provide adequate discovery with regard to this testimony and they argue that there was no scientific basis for Officer Garner's opinion. We review the District Court's decisions regarding the admission of expert testimony for abuse of discretion. See United States v Watson, 260 F.3d 301, 306 (3d Cir. 2001).
With regard to expert witnesses, under Rule 16(G) of the Federal Rules of Criminal Procedure, the government must disclose, upon a defendant's request, "a written summary of any testimony that the government intends to use." In addition, if the government makes a reciprocal discovery request then the written statement must include the "witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(G). Because both parties requested discovery, the government was obligated to provide the more extensive written summary. Although we agree with defendants that the government failed to adequately satisfy this requirement, we have held that a new trial is only warranted if the "District Court's actions resulted in prejudice to the defendant." United States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001).
Defendants do not argue that they were prejudiced by the inadequate discovery. They simply argue that because the government did not fully comply with its discovery obligations they are entitled to a new trial. However, this argument was addressed and dismissed in Lopez, where we stated that "'the prejudice that must be shown to justify reversal for a discovery violation is a likelihood that the verdict would have been different had the government complied with the discovery rules.'" Id. at 483-84 (quoting United States v. Mendoza, 244 F.3d 1037, 1047 (9th Cir. 2001)). The defendants in this case have failed to establish any prejudice stemming from the government's inadequate discovery, and therefore the District Court did not abuse its discretion in denying defendants' request for a new trial.
Defendants also argue that there is no objective basis for Officer Garner's testimony and that it fails the analysis required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because "there was absolutely no pretense of scientific method, scientific testing, peer review in publication, a known or potential rate of error, and the extent to which [Officer Garner's] theory is generally accepted." Jt. App. at 41a. However, the factors enumerated ...