United States v. Darby , 306 F. App'x 776 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-13-2009
USA v. Darby
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2286
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2286
____________
UNITED STATES OF AMERICA
vs.
TERRANCE DARBY,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 04-cr-00318)
District Judge: Honorable Dennis M. Cavanaugh
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 2, 2008
Before: AMBRO, WEIS and VAN ANTWERPEN, Circuit Judges
Filed: January 13, 2009
____________
OPINION
WEIS, Circuit Judge.
After a jury trial, Terrance Darby was convicted of knowingly or
intentionally possessing with intent to distribute cocaine and cocaine base, in violation of
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21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; knowingly possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c); and
possessing a firearm and ammunition after having been convicted of a crime punishable
by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 2, 922(g)(1).
We will affirm his conviction.
Darby challenges the District Court’s denial of his motion to suppress
without holding an evidentiary hearing. The motion did not include any factual basis for
suppression. Before trial, the District Court inquired as to whether such a basis existed,
to which Darby responded, “Your Honor, I’ll submit to the Court’s discretion.”
“A defendant seeking an evidentiary hearing on a motion to suppress must
provide sufficient information to enable the court to conclude that a substantial claim is
presented and that there are disputed issues of material fact which will affect the outcome
of the motion.” United States v. Juarez, 454 F.3d 717, 719-20 (7th Cir. 2006) (citing
United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998)) (internal quotation mark
omitted); see also United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996) (a defendant
is entitled to a pretrial hearing when his “moving papers . . . demonstrate a colorable
claim for relief . . . [and] must consist of more than mere bald-faced allegations of
misconduct” (internal citations and quotation marks omitted)). Because Darby’s counsel
did not present a factual basis for suppression, the District Court did not err in failing to
conduct an evidentiary hearing.
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Darby also complains about an allegedly prejudicial statement in the
testimony of a government witness and a curative instruction the District Court gave the
jury in response. During the direct examination of Sergeant Burgos of the Newark Police
Department, he was asked “what type of operation” he was involved in at the time of the
arrest, to which he responded, “[n]arcotics investigation and gang investigation.” Darby’s
counsel objected and requested a mistrial, which the Court denied. After conferring with
counsel, the Court issued a curative instruction to the jury,
“Ladies and gentlemen, you just heard the sergeant
mention the type of duty he was on that day involving
narcotics and gangs.
This case has nothing to do with gangs, so that’s not to be
dealt with in any way. This case has to do with what the
prosecutor told you in his opening statement.
So I just want you to be aware of that. Okay?”
Darby did not object to the curative instruction. He now argues that the instruction
exacerbated Sergeant Burgos’s allegedly prejudicial testimony, “lending credibility to the
prosecution’s version of the events,” and amounting to reversible error.
Any prejudice that may have resulted from Sergeant Burgos’s testimony
was eliminated by the District Court’s curative instruction. “[W]e . . . presume that a jury
will follow an instruction to disregard . . . evidence inadvertently presented to it, unless
there is an overwhelming probability that the jury will be unable to follow the court’s
instructions, and a strong likelihood that the effect of the evidence would be devastating
to the defendant.” United States v. Thornton, 1 F.3d 149, 157 (3d Cir. 1993) (quoting
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Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)) (internal quotation mark omitted). Darby
has not demonstrated that this standard is met.
Darby contends that the curative instruction exacerbated the prejudice he
allegedly suffered as a result of Sergeant’s Burgos’s testimony about gangs. We conclude
that the District Court did not abuse its discretion in composing the curative instruction.
Darby’s trial counsel “did not object to the phrasing of the instruction, a fact which
suggests that counsel agreed with the Judge’s approach.” United States v. Hakim, 344
F.3d 324, 331 (3d Cir. 2003).
Finally, Darby asserts that the District Court erred in admitting into
evidence a photograph taken of him on the day of his arrest because “it further
exacerbate[d] his possible gang affiliation” and was unnecessary cumulative evidence.
He also argues that the District Court erred in permitting testimony about a narcotics field
test of a plastic bag seized from him. He asserts that this testimony was “needless . . .
cumulative evidence.”
“We review a district court’s decision to admit or exclude evidence for
abuse of discretion, and such discretion is construed especially broadly in the context of
Rule 403.” United States v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007) (quoting United
States v. Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001)). Applying this deferential
standard of review, we find that the District Court did not abuse its discretion in
concluding that the probative value of the photograph was neither substantially
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outweighed by the spectre of unfair prejudice nor needless presentation of cumulative
evidence.
Because Darby’s counsel did not object to the testimony regarding the
narcotics field test, we apply the plain error standard. United States v. Moore, 375 F.3d
259, 262 (3d Cir. 2004). Other than making a conclusory assertion that this evidence was
“unduly prejudicial and a ‘needless presentation of cumulative evidence,’” Darby does
not provide this Court with a reason why we should find plain error.
In sum, we conclude that Darby’s appeal lacks merit. Accordingly, we will
affirm the judgment of the District Court.
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