United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
A JUDGMENT OF ACQUITTAL OR IN THE ALTERNATIVE FOR A NEW TRIAL
CHRISTINA REISS, DISTRICT JUDGE
before the court is Defendant Anthony Smith's motion for
a judgment of acquittal or in the alternative for a new
trial. (Doc. 171.) Defendant was charged in a two-count
Superseding Indictment as a felon in unlawful possession of
ammunition and a firearm, in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). On January 25, 2018, a
jury convicted Defendant of both offenses. Defendant moved
for a judgment of acquittal at the close of the
government's case in chief, and renewed that motion at
the close of all evidence. Both motions were denied.
to Fed. R. Crim. P. 29(c), Defendant seeks a judgment of
acquittal notwithstanding the verdict, arguing that the
government's evidence at trial was insufficient to
support his conviction. In the alternative, Defendant moves
for a new trial under Fed. R. Crim. P. 33(a) on the grounds
that the testimony of one witness, which he contends implied
misconduct on the part of defense counsel during
investigation of the case, prejudiced the jury to the extent
that the interest of justice requires a new
trial. The government opposes the motion,
contending sufficient evidence supports the jury's
verdict and that the potentially prejudicial testimony
offered by a government witness does not mandate a new trial.
government is represented by Assistant United States
Attorneys Owen C.J. Foster, Wendy L. Fuller, and William B.
Darrow. Defendant is represented by Mark A. Kaplan, Esq.
The Evidence at Trial.
four day trial of this case, the government called fifteen
witnesses and introduced into evidence twenty-six exhibits.
Vermont State Police ("VSP") Corporal George C.
Rodriguez testified that, on April 19, 2016, he responded to
a report from Sarah Mahoney that a vehicle had driven across
her lawn causing damage to the property. She provided a
description of the vehicle. Corporal Rodriguez was familiar
with Ms. Mahoney as a previous source of information. Noting
that a MaplefieId's On the Run convenience store was
located in the vicinity of Exit 19 off of Interstate 89,
approximately four and a half miles from Ms. Mahoney's
home, Corporal Rodriguez proceeded south from Saint Albans,
Vermont to the convenience store and canvassed the parking
lot. After entering the lot, he observed "a black SUV
with temporary New Jersey plates[.]" (Doc. 163 at 65.)
He testified that he stopped his marked patrol cruiser
approximately "five or six spots from that
vehicle" and reported the temporary license plate
number to dispatch for verification. Id.
approached from the rear, Corporal Rodriguez initially
observed "one person in the vehicle, which was the
female operator." Id. at 66. He subsequently
discovered that a young child was in the back seat and a male
passenger was in the front seat in a fully reclined position.
Quianah Arrington, the driver, identified herself and stated
that her passenger's name was "Ant" and that
she did not know his last name. When asked for
identification, Defendant provided Corporal Rodriguez with a
New York benefits card. A records check revealed that
Defendant did not possess a valid driver's license and
that he was a convicted felon. It was subsequently determined
that Ms. Arrington had a suspended operator's license but
she was not issued a ticket.
advised Corporal Rodriguez that Ms. Arrington was his wife,
but Ms. Arrington denied this. She explained that she had
known Defendant for approximately nine to ten months and that
she had "run into him again to come up" to Vermont.
Id. at 74. Corporal Rodriguez concluded that
"nothing was adding up, nothing that [Ms. Arrington] was
saying was making sense at that point." Id. at
74-75. In light of what he considered "suspicious"
circumstances, Corporal Rodriguez requested consent to search
Ms. Arrington's vehicle which she provided. Id.
at 79. Ms. Arrington also informed Corporal Rodriguez that
Defendant had a bag "in the trunk area of the
vehicle." Id. at 80. During the course of his
search, Corporal Rodriguez discovered a red bag. Inside the
bag, he discovered large men's clothing consisting of a
pair of shoes and a large red shirt and a plastic bag
containing approximately twenty-four rounds of .22 caliber
discovering the ammunition, Corporal Rodriguez suspended his
search of the black SUV and placed Defendant in handcuffs. He
then returned to the vehicle and completed a search of the
rear passenger compartment before moving back to the front
seats. As he searched under the driver's seat, Corporal
Rodriguez observed the barrel of a firearm pointing towards
the front of the car, hidden among mechanical equipment used
to adjust the seat's position. He testified that, due to
the presence of the mechanical equipment, it was impossible
to remove the firearm from the front side of the seat. In
retrieving the firearm, Corporal Rodriguez did not wear
gloves or otherwise do anything to preserve any fingerprints
that might be found on it. However, "no case requir[es]
fingerprint or DNA evidence to sustain a conviction."
United States v. Pinkney, 644 Fed.Appx. 478, 483
(6th Cir. 2016) (citing United States v. Morrison,
594 F.3d 543, 545-46 (6th Cir. 2010)).
Rodriguez extracted the firearm from the rear of the black
SUV's driver's seat. He testified that, in his
opinion, an individual seated in the fully reclined front
passenger seat could have reached the butt of the firearm
from under the driver's seat, but that someone seated in
the driver's seat itself could not have accessed it.
Examining the firearm, Corporal Rodriguez determined that it
was a .22 caliber Colt handgun. Ms. Arrington informed
Corporal Rodriguez that the red bag belonged to Defendant.
Defendant later discussed the stop during a recorded
telephone conversation made from a correctional facility
while he was awaiting trial. A rational jury could interpret
this conversation as an admission by Defendant that the bag
and firearm belonged to him.
discovering the red bag, ammunition, and firearm, Corporal
Rodriguez placed Defendant under arrest. During a
"pat-down" search, he discovered Defendant's
cell phone which he seized and placed inside the red bag
after returning with Defendant to a VSP barracks. Following
initial processing at the barracks, Corporal Rodriguez
transported Defendant to Clinton County Correctional Center.
During the transport, Defendant stated that "at least
the gun wasn't loaded." (Doc. 164 at 23.)
Corporal Rodriguez's testimony, the government introduced
into evidence the red bag, the men's clothing, the
ammunition, and the firearm. It established the chain of
custody for those items through law enforcement witnesses.
Corporal Rodriguez's patrol cruiser was equipped with a
WatchGuard audio and video recording system which captured
the scene at the Maplefield's On the Run convenience
store. Corporal Rodriguez identified Defendant as the
individual in the video during his testimony.
Arrington testified that she first encountered Defendant,
whom she knew as "Ant," at the home of a mutual
friend in New York City, whom she knew as "Rome."
Ms. Arrington occasionally provided transportation for Rome
and his associates in exchange for compensation. When Rome
learned that Ms. Arrington was planning a trip to the
Burlington, Vermont area in the spring of 2016 to visit a
friend, he arranged for her to bring Defendant with her in
exchange for payment. After meeting Defendant in Brooklyn,
New York, Ms. Arrington stopped in Newark, New Jersey and
then proceeded north to Vermont with Defendant and her
daughter who was approximately eight years old.
reaching Vermont, Ms. Arrington brought Defendant to the home
of Russell Smith near Saint Albans. Defendant exited the
vehicle, while Ms. Arrington and her daughter remained in the
car. At some point, a man she did not recognize approached
the driver side window of her vehicle and she directed him
inside the residence. Thereafter, Defendant emerged from the
residence and reentered the vehicle carrying a bag which he
placed in the trunk. Ms. Arrington subsequently identified
the bag seized from Defendant and admitted into evidence as
the bag she observed Defendant carrying when he entered her
vehicle. With Defendant seated in the front passenger seat,
Ms. Arrington's daughter in the back, and Ms. Arrington
operating the black SUV, they proceeded to the
Maplefield's On the Run convenience store where they
encountered Corporal Rodriguez.
Corporal Rodriguez spoke with Ms. Arrington, he left her
vehicle to check on the status of her operator's license.
Defendant asked her daughter to hand him the bag he had
placed in the trunk. Defendant then opened the bag, retrieved
a firearm, and asked Ms. Arrington to tell Corporal Rodriguez
that the firearm belonged to her. She declined and testified
that Defendant then reached in the back seat before Corporal
Rodriguez returned. After Corporal Rodriguez found the
firearm under the driver's seat, Ms. Arrington told him
that it "shouldn't have been under [her]
seat" and that "it wasn't [hers]."
Id. at 120. Ms. Arrington agreed that someone seated
in the reclined passenger seat could have reached the
location where the firearm was hidden. She further testified
that she did not let other people drive her vehicle. Although
Defendant points out that Ms. Arrington was not asked to
identify the firearm at trial, there is no evidence that she
could reasonably be expected to do so. Consistent with her
testimony, she claimed to have never seen the firearm prior
to Corporal Rodriguez retrieving it from her vehicle. There
was no evidence that Corporal Rodriguez asked Ms. Arrington
to examine the firearm at any time. A rational jury could
therefore conclude that it was not necessary for her to do so
at trial in order to establish the firearm was the same one
retrieved from her vehicle. Other witnesses established that
link and Defendant provided corroboration when he noted that
at least the firearm was not loaded, revealing both his
knowledge of the firearm's existence and a fact about its
condition that would be unknown by someone who had never
although Ms. Arlington testified she could not be sure the
red bag belonged to Defendant, a rational jury could find
that in light of Ms. Arrington's testimony that she did
not let others drive her vehicle, and the men's clothing
in the bag that appeared to match clothing Defendant wore in
a photo, the red bag belonged to Defendant.
Defendant's arrest, Ms. Arrington received a ride to a
Pizza Hut in Saint Albans where the same man she had
encountered outside Mr. Smith's home gave her cash. The
following evening, she drove her own vehicle back to New
Jersey, where she sent "Rome" part of the cash she
received at the Pizza Hut and kept the rest for herself. A
friend of Ms. Arrington's testified and corroborated the
events at the Pizza Hut. She admitted that she had previously
been dishonest about these events because she was with her
children and did not want to risk a referral to child
her testimony, Ms. Arrington acknowledged that she had
previously refused to comply with a subpoena to testify
before a grand jury in connection with this case, resulting
in her arrest by the United States Marshal Service. She
admitted that she lied under oath when she eventually
testified on two occasions before the grand jury, and that
she also lied to agents from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives ("ATF") who were
investigating the events at the convenience store. On
cross-examination, Ms. Arrington explained:
I lied because, as I said before, I was scared. No. one cared
about our safety, and I didn't want to talk to them. I
didn't want to talk to anybody. I didn't want to talk
about it. But you called my ...