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United States v. Tullies

United States District Court, D. New Jersey

November 14, 2018




         This 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.

         I. Evidence[1]

         A. The prosecution case

         The 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.

         The 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.[2] (Tr. 158)

         Det. 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. 166-67)

         An 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)

         Ellis 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)

         Detectives 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)

         Ellis 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, 311)

         Ellis 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)

         The 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)

         Agent 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. 398-401)

         Havens 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. 404-06)

         In the 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. 636-39)[3]

         B. The defense case

         Leanna 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)

         Stephanie 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)

         John 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.[4]

         Dina 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)[5]

         Audrey 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)

         II. Procedural Background

         Defendants 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 4, 2017."

         The first three counts of the indictment, charged jointly against both defendants, are:

Count 1: Conspiracy to distribute heroin (21 U.S.C. § 846)
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))

         The remaining counts, charged against Tullies or Williams individually, are:

Count 4: Possession of firearm by a felon (18 U.S.C. § 922(g)(1)) (Tullies)
Count 5: Possession of firearm by a felon (18 U.S.C. § 922(g)(1)) (Williams)
Count 6: Possession, use and carrying of firearm in furtherance of drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)) (Tullies)
Count 7: Possession, use and carrying of firearm in furtherance of drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)) (Williams)

         On June 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.

         Opening 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)

         The 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.

         On June 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. 640-42)[6]

         On June 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)[7] The government filed an opposing brief. (DE 73) Tullies filed a reply (DE 74), in which Williams joined (DE 75).

         III. Standards Under Rules 29 and 33

         Under 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. 1987).

         The 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)).

         The 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.)

         IV. Rule 29 Motion for Judgment of Acquittal

         A. Count 1 (Conspiracy to distribute heroin)

         The 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)

         The 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.

         That 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.

         From 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 is denied.

         B. Count 2 and Count 3 (Possession with intent to distribute heroin and cocaine base)

         The 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. 584)

         As in 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.

         As to Counts 2 and 3, then, the Rule 29 motion for a judgment of acquittal is denied.

         C. Counts 4 and Count 5 (Felon in possession of firearms)

         Count 4 (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, 636-39)

         Expert 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)

         The 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)

         The 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.

         That evidence was sufficient. As to Counts 4 and 5, the Rule 29 motion for a judgment of acquittal is denied.

         D. Counts 6 and Count 7 (Use of firearm in drug trafficking crime)

         Count 6 (Tullies) and Count 7 (Williams) charge possession of a firearm (again, actually three loaded firearms) in furtherance of a drug trafficking crime.[8] 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. 591-93)

         The 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.

         That 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.

         V. Rule 33 Motion for New Trial

         A. Doyle error in cross-examination of Potts

         As noted above, Potts testified that he had bought drugs from two unidentified "younger kids," not from the defendants. (Tr. 452-53)

         On 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.

         Most 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)

         Potts 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 case."

         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.

         At the 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)

         On 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)

         Potts 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 ...

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