United States District Court, D. New Jersey
MCNULTT, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the post-trial motion of the
defendant, Jesse Tullies (DE 69), joined by his codefendant,
Eugene Williams (DE 72), for a judgment of acquittal,
pursuant to Fed. R. Crim. P. 29(c), or in the alternative for
a new trial, pursuant to Fed. R. Crim. P. 33. I have
considered the proffered grounds separately and in
combination. For the reasons expressed herein, the motion
will be denied.
The prosecution case
charges stemmed from the events of a single afternoon,
October 4, 2017. An undercover officer saw the defendants
engage in two sales of illegal narcotics. The officers
apprehended one customer in possession of the heroin he had
just purchased. They seized heroin and crack cocaine, as well
as three loaded handguns, from a parked car that defendants
used as a stash.
first witness, Detective Yusef Ellis of the Essex County
Sheriffs Department, identified defendants Tullies and
Williams as the persons he had seen conduct two hand-to-hand
narcotics transactions on October 4, 2017. On that date, Det.
Ellis testified, he was in Newark, on Weequahic Avenue near
Clinton Place, conducting surveillance from an unmarked
vehicle. He was alone, but in radio contact with backup
officers nearby. Tullies and Williams, he testified, were two
of three men he saw there. (Tr. 158)
Ellis saw a green Honda Civic pull up and saw the driver, a
white male, speak to Tullies. (Tr. 159-60) Williams then
walked up the driveway of 249 Weequahic Avenue and approached
a Chevy Lumina with no license plates that was parked there.
(Tr. 161-63, 211) He went to the rear bumper of the car, bent
down, took out a clear plastic bag, removed some items, and
replaced the bag under the car. (Tr. 164-65) He then walked
back to the Honda Civic and handed the items to Tullies.
Ellis could see that the items were glassine folds, commonly
used to package heroin. (Tr. 166) Ellis saw Tullies hand the
items to the driver of the Civic, and saw the driver give
Tullies cash in exchange. The Civic then drove away. (Tr.
unidentified African-American woman then approached Tullies
on foot. (Tr. 170-71) Tullies walked up the driveway of 249
Weequahic, as Williams had done earlier. (Tr. 171) Tullies
reached under the rear bumper of the Chevy Lumina, took out a
plastic bag, removed items from the bag, and replaced it
under the bumper. (Tr. 172) Tullies then walked back to the
unidentified woman. (Tr. 173) When Tullies opened his hand,
Ellis again could see that the items were glassine folds. The
woman handed Tullies cash, which he placed in his pocket.
(Tr. 174) The woman then walked away. (Tr. 174-75)
radioed the backup officers and described where Tullies and
Williams were standing. At this point, some five minutes had
passed since the hand-to-hand transactions. (Tr. 177)
Evans and Pearce appeared and arrested Tullies and Williams.
(Tr. 178) When arrested, Tullies possessed $1275 in currency
and Williams possessed $360 in currency. (Tr. 252-58)
radioed a brief description of the unidentified woman
purchaser and the Civic driver to the backup officers. (Tr.
175-76) The unidentified woman was not found, but Detective
Docke pulled over the green Civic nearby, on Lyons Avenue.
(Tr. 304, 306) The driver was identified as John Potts. (Tr.
309) Potts surrendered two glassine envelopes of heroin,
bearing the brand stamp "Black Jack." (Tr. 309-11)
Docke radioed back to Ellis, reporting the results of the
stop, and then drove to the Weequahic location. (Tr. 176-77,
directed Detectives Ryals and Docke to the Chevy Lumina. (Tr.
178-79) Together they searched the Lumina and the surrounding
area. (Tr. 235) From under the rear bumper of the car, Ryals
personally recovered "jugs" (small plastic
containers) of crack cocaine and a loaded handgun with
ammunition. (Tr. 236-43, 317-18) Detective Docke recovered
from under the bumper a bag containing glassine envelopes of
heroin, rubber-banded in bundles of ten, and stamped with the
brand name "Black Jack." (Tr. 243-47, 313-16) The
brand-stamp "Black Jack" matched the stamp on the
two envelopes seized from Potts. (Tr. 259-60) Docke also
recovered from under the bumper two additional loaded
handguns. (Tr. 247-52, 316-17)
parties stipulated that the drugs were analyzed and found to
consist of 3.714 grams of heroin and .563 grams of cocaine
base. (Tr. 371-72) The guns were identified as a Beretta BU9,
serial number NU068181; a Taurus Millennium PT111 G2, serial
number TGU47186; and an FEG 9mm, serial number AG0726. (Tr.
343, 347-49, 354; GE 4, 5, 6) Agent Casanova of the Bureau of
Alcohol, Tobacco, and Firearms confirmed that the seized guns
were operable, that they fit the statutory definition of a
firearm, and that the guns and ammunition were manufactured
outside the State of New Jersey and hence had traveled in
interstate commerce. (Tr. 332-58)
Havens of the FBI testified in the capacity of an opinion
witness on "methods used by drug dealers to conduct
street-level drug business to include the distribution,
packaging, pricing, and storage of the drugs, and also the
use of firearms in furtherance thereof." (Tr. 382) He
described packaging of heroin in decks, bundles, and bricks,
as well as the use of brand-name stamps; the packaging of
cocaine base (crack cocaine) in jugs; prevailing prices in
Newark; and related matters. Havens testified that
street-level drug dealers will typically set up a territory,
often on a quiet block, will protect that territory, and will
generally permit only one brand to be sold within that
territory. Transactions, he explained, are generally done in
cash, and often in small bills, which may be traded in for
larger bills at local businesses such as bodegas. The
packaging of the drugs and the currency seized in this case,
he opined, were typical. (Tr. 374-398) Havens testified that
street-level dealers do not want to be caught in physical
possession of drugs, so they typically stash them at a
location which they can monitor. They then retrieve amounts
as necessary for sales. To maintain deniability, the location
would typically not be owned by or traceable to the dealer.
The facts of this case, he opined, fit that pattern. (Tr.
testified further that guns are tools of the narcotics trade.
They are used to protect the drugs and the territory, to
defend against robbery, and to guarantee payment. Guns will
sometimes be stashed with the drugs they are meant to
protect; here, too, the dealer may want to avoid being caught
in physical possession of a firearm. Once again, Havens
testified that the pattern fit the facts of this case. (Tr.
401-04) Semi-automatic handguns like the ones seized here, he
testified, are typical and well-suited to the purposes for
which street-level drug dealers use them, such as defense,
protection of the stash, or discouragement of robbery. (Tr.
bifurcated second phase of the case, the government
introduced a stipulation that each of the defendants had a
prior, unspecified felony conviction. (Tr. 587-90, Tr.
The defense case
Travers, defendant Tullies's daughter, testified that on
October 4, 2017, she went to Weequahic Avenue with her
friend, Stephanie Davis. She went there to meet Tullies, who
was to give her some money for work shoes. (Tr. 444-45, 449)
Tullies pulled up in a car, got out, and walked toward a car
that was parked behind the one in which Travers was sitting.
Tullies spoke to two females, and then walked toward
Travers's car, where Travers was still sitting. At that
point the police arrived and blocked everybody in. (Tr. 445)
Tullies was handcuffed and arrested. (Tr. 446)
Davis testified that on October 4, 2017, she drove to
Weequahic Avenue with Leanna Travers, her best friend. They
parked and waited for Tullies. The car of Travers's
cousin was parked behind them. (Tr. 435-37) Tullies pulled up
in a light blue car and parked on the opposite side of the
street. (Tr. 437-38) Multiple police cars with flashing
lights then arrived, and the police took everyone's car
keys. Tullies was handcuffed behind the Davis/Travers car and
then placed in a police car. (Tr. 439) Asked on
cross-examination why they went to Weequahic Avenue to look
for Tullies, Davis agreed that it was the location where he
usually hangs out. (Tr. 442)
Potts, the driver of the green Civic, testified that he drove
to Weequahic Avenue on October 4, 2017. A now-recovering
heroin addict, he admitted that he went there to buy drugs.
(Tr. 451) The persons who sold him the drugs, he said, were
not Tullies and Williams but "younger kids," whom
he described as two skinny black males, 6 feet in height,
around 18 to 20 years old. (Tr. 452-53) He testified that he
recognized Tullies and Williams only from having been
arrested with them.
Blackwell, who identified Tullies as her fiance, testified.
As for the $1275 possessed by Tullies, she stated that it was
intended for a rental deposit on a house. She testified that,
although she later saw Potts in municipal court, she did not
have a conversation with him. (Tr. 484-87)
Blackwell is the mother of Dina Blackwell, whom she
identified as Tullies's wife. Audrey Blackwell did not
witness the events, but corroborated that Tullies had
borrowed her car, a Nissan Altima, on October 4, 2017.
Following the arrests, she recovered the car from the police
at Weequahic Avenue. (Tr. 479-82)
Tullies and Williams were originally charged by complaint
filed on December 19, 2017. (DE 1) On January 19, 2018,
Tullies and Williams were jointly indicted. (DE 13) All
counts were charged as occurring "[o]n or about October
first three counts of the indictment, charged jointly against
both defendants, are:
Count 1: Conspiracy to distribute heroin (21 U.S.C. §
Count 2: Distribution, possession with intent to distribute
heroin (21 U.S.C. § 841(a)(1) & (b)(1)(c))
Count 3: Distribution, possession with intent to distribute
cocaine base (21 U.S.C. § 841(a)(1) & (b)(1)(c))
remaining counts, charged against Tullies or Williams
Count 4: Possession of firearm by a felon (18 U.S.C. §
Count 5: Possession of firearm by a felon (18 U.S.C. §
Count 6: Possession, use and carrying of firearm in
furtherance of drug trafficking crime (18 U.S.C. §
Count 7: Possession, use and carrying of firearm in
furtherance of drug trafficking crime (18 U.S.C. §
4, 2018, a jury was selected but not empaneled. (DE 43) On
June 5, 2018, the Court conducted a suppression hearing and
heard motions in limine. (Tr. 1 et seq.)
After the motions were decided, the jury was empaneled.
statements and the introduction of evidence commenced on June
6, 2018. (Tr. 99 et seq.) On June 7, 2018, the
government rested, and the defense moved for a judgment of
acquittal, which was denied. (Tr. 432-33; see also
Tr. 563) The defense then put on a case that included the
testimony of five witnesses. The defendants themselves did
not testify. (Tr. 434-96) The court conducted a final charge
conference. (Tr. 496-510) Both sides delivered their
summations to the jury. (Tr. 510-552)
following morning, June 8, 2018, defense counsel made a
motion for a mistrial based on statements in the
government's summation which, they said, implied
wrongdoing on dates other than October 4, 2017. (Tr. 559) The
Court denied the mistrial motion, but offered to incorporate
a curative instruction into the jury charge. (Tr. 563-65) The
Court then instructed the jury as to the law governing their
deliberations. (Tr. 565-617) The instructions included an
admonition that any references to events apart from those of
October 4, 2017, were not to be considered. (Tr. 568-69;
see also Tr. 570.) As to Counts 4 and 5, the
felon-in-possession charges, the presentation of evidence had
been bifurcated. The jury therefore was not instructed to
return a verdict as to those two counts, but only to answer
two interrogatories that asked whether each defendant had
knowingly possessed each firearm in interstate commerce.
8, 2018, the jury returned a verdict of guilty on counts 1,
2, 3, 6, and 7. They answered the interrogatories regarding
Counts 4 and 5 in the affirmative. (DE 56 (Jury Verdict); Tr.
628-32) Following the reading of that verdict, the jury heard
additional evidence on the bifurcated Counts 4 and 5. The
government introduced stipulations that each defendant had a
prior conviction for an unspecified felony. (DE 57, 58; Tr.
634-35) The Court delivered supplemental legal instructions
as to Counts 4 and 5. (Tr. 636-39) The jury again
deliberated, and then returned verdicts of guilty on Counts 4
and 5. (DE 62 (Supplemental Jury Verdict); Tr.
15, 2018, Tullies timely filed a motion for judgment of
acquittal, under Fed. R. Crim. P. 29(c), or in the
alternative for a new trial, under Fed. R. Crim. P. 33. (DE
69) On July 3, 2018, Williams filed a one-sentence letter
joining in Tullies's motion. (DE 72) The government filed
an opposing brief. (DE 73) Tullies filed a reply (DE 74), in
which Williams joined (DE 75).
Standards Under Rules 29 and 33
Rule 29, a defendant who asserts that there was insufficient
evidence to sustain a conviction shoulders "a very heavy
burden." United States v. Anderson, 108 F.3d
478, 481 (3d Cir. 1997) (quoting United States v.
Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)). In reviewing
a motion for acquittal, the court "must be ever vigilant
... not to usurp the role of the jury by weighing credibility
and assigning weight to the evidence, or by substituting its
judgment for that of the jury." United States v.
Flores, 454 F.3d 149, 154 (3d Cir. 2006) (quoting
United States v. Brodie, 403 F.3d 123, 133 (3d Cir.
2005)). The evidence is to be viewed in the light most
favorable to the prosecution. United States v. Hart,
273 F.3d 363, 371 (3d Cir. 2001). The government receives
"the benefit of inferences that may be drawn from the
evidence and the evidence may be considered probative even if
it is circumstantial." United States v. Pecora,
738 F.3d 614, 618 (3d Cir. 1986). Credibility conflicts, too,
are to be resolved in the government's favor. United
States v. Scanzello, 822 F.2d 18, 21 (3d Cir. 1987).
Having applied those principles of interpretation, the court
must uphold the conviction if "any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). Accord United States v. Fattah, 902 F.3d
197, 268 (3d Cir. 2018) (reviewing court, applying same
standard as district court, must affirm "unless no
reasonable juror could accept the evidence as sufficient to
support the defendant's guilt beyond a reasonable
doubt"); United States v. Caraballo-Rodriguez,
726 F.3d 418, 430-31 (3d Cir. 2013) (en banc) (reaffirming
Jackson standard and reversing a line of drug
conspiracy cases to the extent they undermined it);
United States v. Coleman, 811 F.2d 804, 807 (3d Cir.
standard under Rule 33 is more general; a court "may
vacate any judgment and grant a new trial if the interest of
justice so requires." Fed. R. Crim. P. 33. When a
defendant seeks a new trial claiming that the verdict was
against the weight of the evidence, the court's review is
less restricted than it is under Rule 29. "However, even
if a district court believes that the jury verdict is
contrary to the weight of the evidence, it can order a new
trial 'only if it believes that there is a serious danger
that a miscarriage of justice has occurred-that is, that an
innocent person has been convicted.*" United States
v. Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008)
(quoting United States v. Johnson, 302 F.3d 139, 150
(3d Cir. 2002)). "Such motions are not favored and
should be 'granted sparingly and only in exceptional
cases.'" Id. at 1005 (quoting Gov't
of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir.
1987) (citations omitted)). A Rule 33 motion may also be
based on an alleged error or combination of errors at trial.
Borrowing the appellate concept of harmless error, district
courts have held that a new trial will be ordered when it is
"reasonably possible that such error, or combination of
errors, substantially influenced the jury's
decision." United States v. Crim, 561 F.Supp.2d
530, 533 (E.D. Pa. 2008) (citing U.S. v. Copple, 24
F.3d 535, 547 n. 17 (3d Cir. 1994)), affd, 451
Fed.Appx. 196 (3d Cir. 2011); accord United States v.
Bryant, Crim. No. 07-267, 2009 WL 1559796 at *6 (D.N.J.
May 28, 2009). In doing so, however, the court must consider
the alleged errors in the context of the strength of the
evidence of guilt, the scope of the objectionable conduct in
relation to the entire proceeding, and the ameliorative
effect of any curative instruction. See United States v.
Gambone, 314 F.3d 163, 179 (3d Cir. 2003) (citing
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d
Cir. 1995) (en banc); United States v. Helbling, 209
F.3d 226, 241 (3d Cir. 2000)).
defendants argue that the evidence was insufficient to
support the jury's verdict of guilty, requiring that a
judgment of acquittal be entered under Rule 29. (See
Section IV, infra.) The remaining grounds, primarily
involving alleged prosecutorial misconduct in summation, are
properly considered as arguments for a new trial under Rule
33. (See Section V, infra.)
Rule 29 Motion for Judgment of Acquittal
Count 1 (Conspiracy to distribute heroin)
jury was instructed, without objection, that the charged
conspiracy under 21 U.S.C. § 846 has three essential
elements: (1) that two or more persons agreed to distribute
heroin; (2) that each defendant was a member of that
agreement; and (3) that each defendant joined the agreement
knowing of its illegal objective to distribute heroin and
intending to achieve that objective. (Tr. 575-76) Such a
knowing and intentional agreement, the jury heard, need not
have been formal or even spoken; it is sufficient if two
persons arrived at a mutual understanding or meeting of the
minds. The proof of such an agreement may be circumstantial,
based on die surrounding facts. (Tr. 577-79) Mere presence at
the scene of an offense, however, is not enough; knowledge
and intent are required. (Tr. 579-80)
evidence as to the conspiracy was sufficient, and indeed
quite strong. Most pertinently, Detective Ellis testified
that, from an undercover observation point, he observed the
defendants acting together to complete two hand-to-hand drug
sales. The drugs were stashed beneath the rear bumper of the
Chevy Lumina; to accomplish the two sales, small amounts were
fetched once by Williams, and once by Tullies.
testimony was corroborated. One of the two customers, Potts,
was arrested a few blocks away in possession of heroin with a
"Black Jack" stamp that matched the stamp on the
heroin recovered from the stash in the Lumina. The
defendants, when arrested, possessed substantial amounts of
cash. Agent Havens gave expert testimony that the
observations of the officer on surveillance were consistent
with a street-level drug dealing operation.
this evidence, the jury was entitled to infer that Tullies
and Williams were working cooperatively to sell narcotics. To
be sure, the defendants offered evidence of their own. Under
the Rule 29 standard, however, I must presume that the jury,
as they were entitled to do, found the government's
evidence credible and rejected that of the defendants. As to
Count 1, then, the Rule 29 motion for a judgment of acquittal
Count 2 and Count 3 (Possession with intent to distribute
heroin and cocaine base)
jury was instructed, without objection, that the offenses of
distribution and possession with intent to distribute
narcotics require possession of a controlled substance;
knowledge and intent; intent to distribute (or actual
distribution) to another; and proof that the controlled
substance is in fact heroin or cocaine base. (Tr. 583-84)
Possession is defined broadly to include not just physical
custody, but the ability to take possession and control. (Tr.
the case of Count 1, the jury heard and was entitled to
credit police testimony regarding the stash of heroin and
cocaine base under the bumper of the Chevy Lumina. Each
defendant retrieved drugs from the stash, demonstrating that
he knowingly had possession, as possession is broadly
defined. Intent to distribute was established a
fortiori by Det. Ellis's observation of actual
distribution. In addition, Agent Havens gave expert opinion
testimony that the drugs seized were packaged for
distribution. Finally, it was stipulated that the drugs were
chemically analyzed as heroin and cocaine base.
Counts 2 and 3, then, the Rule 29 motion for a judgment of
acquittal is denied.
Counts 4 and Count 5 (Felon in possession of
(Tullies) and Count 5 (Williams) charge the offense of being
a felon in possession of a firearm (actually, three loaded
firearms) in violation of 18 U.S.C § 922(g)(1). The jury
was instructed, without objection, that the essential
elements are that a defendant knowingly possessed at least
one of the firearms; that the firearm had traveled in
interstate commerce; and that the particular defendant had
previously been convicted of a felony offense. (Tr. 587-90,
opinion testimony of Agent Casanova established that the
seized guns were operable firearms within the meaning of the
statute, and that they had been manufactured out-of-state.
(Tr. 342-58) The prior felonies were established by
stipulation. (DE 57, 58; Tr. 634-35)
element of possession was the only one seriously contested.
The jury was instructed without objection that physically
carrying the firearm was not necessary, but that the power
and intention to exercise control over a firearm sufficed to
establish possession. Possession, the jury heard, may be
joint or individual. (Tr. 588-89)
evidence established that the guns were stored, with the
drugs, beneath the bumper of the Chevy Lumina. Likewise, it
established that both defendants had free access to the stash
under the bumper. Havens's expert testimony established
the nexus between drugs and guns, permitting an inference
that the loaded guns were stored in proximity to the drugs as
tools of the narcotics trafficking trade. The jury could make
the commonsense inference, for example, that the guns would
permit the owners of the drugs to resist unauthorized access
to the stash.
evidence was sufficient. As to Counts 4 and 5, the Rule 29
motion for a judgment of acquittal is denied.
Counts 6 and Count 7 (Use of firearm in drug trafficking
(Tullies) and Count 7 (Williams) charge possession of a
firearm (again, actually three loaded firearms) in
furtherance of a drug trafficking crime. 18 U.S.C. §
924(c). The jury was instructed without objection that the
defendant must have committed one of the drug trafficking
offenses charged in Counts 1, 2, and 3, and knowingly
possessed a firearm in furtherance of one of those crimes.
"In furtherance" means to promote or advance the
goal of drug trafficking as charged. Mere presence of a
firearm at the scene is not sufficient to satisfy the
"in furtherance" element, which must be assessed in
light of such factors as the nature of the criminal activity,
the accessibility of the firearm, the type of firearm,
whether it is stolen, whether it is possessed legally,
whether it is loaded, the time and circumstances, and
proximity of the firearm to drugs or drug profits. (Tr.
jury's verdict of guilty was sufficiently supported by
the evidence. For the reasons stated above, the
defendants' joint or constructive possession of the guns
was established because they clearly had access to the
car-bumper stash. That the guns were possessed in furtherance
of the drug trafficking was likewise clear. As Agent Havens
testified, guns are a tool of the trafficking trade, used to
protect territory, guard against robbery, and enforce payment
if necessary. Placing them in the stash, as he testified, is
a typical way for traffickers to maintain deniability while
keeping the guns accessible to protect the drugs. The guns
were in immediate proximity to the drugs. They were there at
the very time the trafficking was occurring. All three were
loaded and ready for immediate use. There was no evidence
either way, however, as to their ownership.
was sufficient evidence that the guns were possessed and
intended for use in furtherance of narcotics trafficking. As
to Counts 6 and 7, the Rule 29 motion for a judgment of
acquittal is denied.
Rule 33 Motion for New Trial
Doyle error in cross-examination of Potts
noted above, Potts testified that he had bought drugs from
two unidentified "younger kids," not from the
defendants. (Tr. 452-53)
cross-examination, Potts was impeached on a number of
grounds, including his admitted status as a heroin addict and
a recent heroin charge. (Tr. 475, 477) The government
attorney cast doubt on his assertions that he had no regular
source of supply, but approached two strangers. (Tr. 476)
Also pertinent was the fact that no other witness, including
the police and Tullies's witnesses, saw those two
unidentified males on the street.
pertinently, the government's cross-examination suggested
bias and a motive to fabricate-namely, fear of the
defendants. Potts admitted that he had learned that Tullies
and Williams were accused of being armed drug dealers. (Tr.
471) As a heroin addict, Potts agreed, he "kn[e]w drug
dealers can be dangerous." (Tr. 476)
testified at first that he had "never" spoken to
any of Mr. Tullies's family members or friends. He then
admitted that this was "not truthful." (Tr. 470
("Okay. Yeah.")) Potts backtracked and said he had
"met" Tullies's wife or girlfriend, who showed
up at the courthouse for one of Potts's court
appearances, but did not speak to her "about the
government established that Dina Blackwell had attended
Potts's court appearance, uninvited. (Tr. 472)
Backtracking again, Potts said he had some conversation with
her, but could not remember anything about the contents. (Tr.
457, 470, 472-73) In this version, that was the only court
appearance at which he met Dina Blackwell, and the two of
them spoke alone.
time of the first court appearance, Potts did not tell
anyone, at least in court, that "it wasn't those
guys" [ie., the defendants) who sold him the
heroin. (Tr. 471-72) Potts admitted that he never exculpated
the defendants until sometime after he had spoken to Dina
Blackwell. (Tr. 474)
redirect examination by defense counsel, Potts then
remembered meeting Dina Blackwell in the company of his
counsel and a defense investigator at his second court
appearance. At that time, however, he said he spoke directly
only to the investigator. (Tr. 477-78)
testified that he did not offer an exculpatory explanation
until after he pled guilty in municipal court and was
sentenced to community service. The government elicited that
even then, however, Potts declined to ...