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United States v. Smith

United States District Court, D. Vermont

September 11, 2018

UNITED STATES OF AMERICA
v.
ANTHONY SMITH

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL OR IN THE ALTERNATIVE FOR A NEW TRIAL (DOC. 171)

          CHRISTINA REISS, DISTRICT JUDGE

         Pending 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.

         Pursuant 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.[1] 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.

         The 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.

         I. The Evidence at Trial.

         At the 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.

         As he 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.

         Defendant 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 ammunition.

         Upon 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)).

         Corporal 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.

         After 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.)

         During 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.

         Ms. 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.

         Upon 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.

         After 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 possessed it.

         Similarly, 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.

         After 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 protective services.

         During 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 ...

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