United States v. Joseph Dodd ( 2004 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-1313
    ___________
    United States of America,               *
    *
    Appellant,                 *
    * Appeal from the United States
    v.                                * District Court for the Southern
    * District of Iowa.
    Joseph Dodd, also known as              *
    Shakespeare,                            *
    *
    Appellee.                  *
    ___________
    Submitted: October 19, 2004
    Filed: December 13, 2004
    ___________
    Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
    ___________
    BOWMAN, Circuit Judge.
    A jury convicted Appellee Joseph Dodd of conspiring to distribute and possess
    with intent to distribute cocaine and cocaine base (i.e., crack cocaine). Thereafter,
    Dodd moved for a new trial, arguing that the verdict was contrary to the weight of the
    evidence. The District Court1 granted Dodd's motion and set aside the jury's verdict.
    The government now appeals the District Court's order granting Dodd a new trial.
    We affirm.
    1
    The Honorable Robert W. Pratt, United States District Judge for the Southern
    District of Iowa.
    I.
    Joseph Dodd, also known as "Shakespeare," was tried alongside his nephew
    Fred Dodd based on their alleged membership in a conspiracy to distribute crack
    cocaine. According to testimony at trial, the conspiracy began in Clinton, Iowa, and
    over the years relocated to the Quad Cities area, which includes Davenport, Iowa, and
    Rock Island, Illinois. The conspiracy operated from before 1992 until January 2003,
    when Fred Dodd was arrested.
    The government presented evidence that in 1994 Joseph Dodd was staying with
    Fred Dodd in a Clinton apartment and that Joseph Dodd often sold drugs to make
    money while he was there. Years later, Fred Dodd relocated to the Trinity
    Apartments in Davenport and along with others supplied numerous customers with
    crack cocaine. Joseph Dodd often came to the Trinity Apartments to purchase drugs
    from Fred Dodd and stayed with him on occasion.
    Joseph Dodd later moved to Rock Island where he rented a room from George
    Butler. Both Butler and his girlfriend testified that they were addicted to crack and
    that Joseph Dodd usually supplied it free of charge. They also testified that numerous
    people, mostly young women, came to the residence with Joseph Dodd to buy drugs
    or get high. Further, Butler believed that Joseph Dodd cooked powder cocaine into
    crack cocaine in his room using baby food jars and a borrowed hot plate.
    Joseph Dodd was stopped in January 2002 while driving in Rock Island. Dodd
    was carrying no identification, and he gave the police a false name and social security
    number. He claimed he could be identified if the police would transport him to
    Butler's residence. Before transporting him, a police officer conducted a pat-down
    search for weapons. The officer removed a handkerchief from Dodd's pocket before
    placing him in the patrol car and afterwards found a small baggie of crack cocaine
    -2-
    where Dodd had been standing. The police also found a digital scale containing
    cocaine residue in the car. Dodd was immediately arrested.
    Several months later, someone from Butler's residence called 911 but hung up
    without speaking. When the police arrived to investigate, Dodd answered the door,
    told the police nobody had called, then shut and locked the door. When the police
    called for back-up and again knocked on the door, they were allowed in by Butler.
    Dodd was taken into custody while talking on his cell phone, allegedly trying to cover
    his face with his fingers to hide from the police.2
    The police put Dodd in the patrol car and went back to search the residence,
    where they found numerous baggies containing cocaine residue. They also found a
    handgun hidden in a bathroom, but no fingerprints were found on the gun. The
    search of a bedroom containing Dodd's belongings revealed several baby food jars
    containing cocaine residue along with a type of postal scale often used to weigh
    drugs. While the police were searching the residence, Dodd kicked out the window
    of the patrol car and fled. He was arrested the next morning.
    Dodd was charged with conspiracy to distribute and possess with intent to
    distribute cocaine and cocaine base. A key portion of the testimony against Dodd
    centered around an undercover purchase of drugs set up by the Davenport Police
    Department. On February 9, 2002, Detective Gina Clark drove to the Trinity
    Apartments with a confidential informant named Debra Cunningham to purchase
    drugs as they had done several times before. On this occasion, Clark observed a
    2
    The record is unclear as to why Dodd was not in custody after his arrest
    several months earlier and why Dodd was arrested during this incident. Butler
    testified that Dodd had pressed a gun to Butler's head and accused Butler of stealing
    money. The incident, however, resulted in Butler's arrest for being a felon in
    possession of a handgun, and it appears Dodd was not charged for the alleged assault.
    We note that Dodd was arrested before the police searched the residence.
    -3-
    person standing outside the apartments whom Clark believed to be conducting
    counter-surveillance for the activities inside. After Cunningham purchased drugs
    inside and returned to Clark's car, the person allegedly conducting counter-
    surveillance approached the car with another man named "Romeo." Romeo asked
    Clark for a ride and asked if he could get in her car to get high.3 Clark told Romeo
    he could not, then drove away with Cunningham.
    At trial, Detective Clark stated that the man she believed was conducting
    counter-surveillance "look[ed] like the defendant right there," indicating Joseph
    Dodd. Trial Tr. at 551. Upon cross-examination, however, Clark admitted that
    although she had seen the person allegedly conducting counter-surveillance, she did
    not know his identity, and that Cunningham had told her it was Joseph Dodd.
    Cunningham then testified that she could not distinguish between Joseph Dodd and
    his brother, Anthony Dodd, who had pleaded guilty to conspiracy charges. In fact,
    Cunningham stated she thought the two were twins. Cunningham also misidentified
    Joseph Dodd as "T" at trial, which was the nickname used by Anthony Dodd.
    Cunningham further testified that Joseph Dodd had been present at a separate assault,
    but the government stipulated that Joseph Dodd had not been present at that incident.
    Joseph Dodd made two motions at trial for judgment of acquittal based on
    insufficiency of the evidence, both of which were denied by the District Court. The
    evidence was then submitted to the jury, and the jury found Dodd guilty. After the
    verdict was returned, Dodd moved for a new trial under Rule 33 of the Federal Rules
    of Criminal Procedure. The District Court granted the motion and set aside the
    verdict in a detailed order stating its belief that a new trial was warranted. The
    government appeals.
    3
    In its order, the District Court confuses Romeo with the person Clark believed
    was conducting counter-surveillance. We address this in Part II.A.
    -4-
    II.
    A.
    The granting of a new trial under Rule 33 is a remedy to be used only
    "sparingly and with caution." United States v. Campos, 
    306 F.3d 577
    , 579 (8th Cir.
    2002) (quoting United States v. Lincoln, 
    630 F.2d 1313
    , 1319 (8th Cir. 1980)). The
    Rule specifies that the remedy should be granted only where "the interest of justice
    so requires." Fed. R. Crim. P. 33. The decision to grant a Rule 33 motion is within
    the sound discretion of the District Court, and we will reverse only for an abuse of
    that discretion. Campos, 
    306 F.3d at
    579–80. The District Court's discretion is broad
    in that it may "weigh the evidence, disbelieve witnesses, and grant a new trial even
    where there is substantial evidence to sustain the verdict." 
    Id. at 579
    . This discretion
    is abused, however, if the District Court fails to consider a factor that should have
    been given significant weight, considers and gives significant weight to an improper
    or irrelevant factor, or commits a clear error of judgment in considering and weighing
    only proper factors. 
    Id. at 580
    .
    To convict Dodd on the conspiracy charge, the government had to prove that
    a conspiracy to distribute cocaine existed, that Dodd knew of the conspiracy, and that
    Dodd knowingly joined and participated in the conspiracy. See United States v.
    Munoz, 
    324 F.3d 987
    , 990 (8th Cir. 2003). Only "slight evidence" was necessary to
    link Dodd to the conspiracy. United States v. Navarrete-Barron, 
    192 F.3d 786
    , 793
    (8th Cir. 1999).
    The District Court had no doubt the government proved the existence of a
    conspiracy. The District Court also stated it was reasonable for the jury to infer that
    Dodd knew of the conspiracy. What the government failed to conclusively show,
    according to the District Court, was "some degree of knowing involvement and
    cooperation" in the conspiracy by Dodd. Order of Jan. 7, 2004 (granting defendant
    -5-
    Joseph Dodd's motion for new trial) ("Order"), at 16 (quoting United States v. Casas,
    
    999 F.2d 1225
    , 1229 (8th Cir. 1993), cert. denied, 
    510 U.S. 1078
     (1994)). The
    government claims the District Court considered improper factors or made errant
    conclusions in reaching this decision. We disagree.
    To begin with, the government's inferences of Dodd's involvement in the
    conspiracy are tenuous at best. The government claims the crack cocaine Joseph
    Dodd allegedly possessed was "ready for resale, consistent with the manner that
    Joseph Dodd and Fred Dodd had distributed it in the past." Brief of Appellant at 23.
    But the District Court found there was conflicting evidence as to whether the crack
    cocaine at issue was actually ready for resale given its weight. In addition, a chunk
    of crack cocaine in a plastic baggie is fairly unremarkable in distribution cases. Even
    if such packaging was consistent with the manner in which Fred Dodd had distributed
    cocaine in the past, we cannot say it established an agreement to distribute cocaine
    between Joseph Dodd and Fred Dodd.
    Further, we think the government overstates the significance of a single
    misinterpretation by the District Court. It is true the District Court confused the
    person who asked to get high in Detective Clark's car with the person allegedly
    conducting counter-surveillance. The District Court reasoned that because the person
    asked to get high in the car, he likely was not conducting counter-surveillance for
    drug-selling activities. The record shows these were two different people, thereby
    precluding the District Court's reasoning. The government argues that this amounts
    to "clear error." Brief of Appellant at 24.
    The District Court's primary concern, however, was with the identification of
    Dodd as the person conducting counter-surveillance. Clark's identification of the
    person was based on second-hand information from Cunningham, who admittedly
    confused Joseph Dodd with Anthony Dodd. Indeed, Cunningham misidentified
    Joseph Dodd both at trial and in her testimony. Thus, the District Court used the
    -6-
    misinterpretation only to "bolster[]" its conclusion there was no link shown between
    Joseph Dodd and the conspiracy. Order at 18. We therefore cannot say the District
    Court made a clear error of judgment.
    Moreover, in claiming the District Court erred by questioning any link shown
    between Dodd and the conspiracy, several of the government's arguments are
    unconvincing. For example, the District Court pointed out a lack of Dodd's
    fingerprints on any of the evidence seized. In rebuttal, the government points to
    expert testimony at trial that "a person does not necessarily leave a fingerprint
    whenever something is touched." Brief of Appellant at 25.
    In another example, the District Court noted that although the government
    seized and subpoenaed the records for many cellular phones, it found not a single call
    linking Dodd to any of the conspirators. The government rebuts this fact by arguing
    that no phones associated with Dodd were ever confiscated. This rebuttal raises a
    question as to the whereabouts of the cellular phone Dodd was "holding . . . to his
    face" when he was arrested. Trial Tr. at 497.
    As a third example, the District Court was troubled that the crack cocaine
    allegedly possessed by Dodd was not produced at trial. The government rebuts this
    by pointing to testimony that the items were "destroyed routinely at the conclusion
    of the state prosecution." Brief of Appellant at 24. Perhaps, but as with all three
    examples, evidence missing at trial is not transformed into evidence on appeal by an
    explanation of its absence.
    In summary, even though only slight evidence was necessary to link Dodd to
    the conspiracy, it was within the District Court's province to weigh the evidence,
    disbelieve witnesses, and grant a new trial—even in the face of substantial evidence.
    On appeal, the government has dutifully rehashed the evidence that Dodd possessed
    and distributed drugs, but the District Court assumed these two facts in reaching its
    -7-
    conclusion regarding Dodd's conviction on the conspiracy charge. The District Court
    granted a new trial because it was "left with a perpetual 'bad taste' in its mouth over
    the nature, quantity, and character of evidence" of Dodd's involvement in the
    conspiracy. Order at 23. In these circumstances, we cannot say the District Court
    abused its discretion in granting Dodd's motion for a new trial.
    B.
    In his brief, Dodd argues that his retrial is barred by the Double Jeopardy
    Clause of the Fifth Amendment. See U.S. Const. amend. V. Dodd did not raise this
    constitutional challenge with the District Court, nor did he raise the issue in a cross-
    appeal. But because the government has responded to Dodd's argument in its reply
    brief, we will address the issue out of an abundance of caution. The Double Jeopardy
    Clause is implicated where a conviction is set aside because the evidence supporting
    it is "legally insufficient." Tibbs v. Florida, 
    457 U.S. 31
    , 41 (1982). Evidence is
    legally insufficient if it is so lacking that the case does not merit submission to the
    jury. 
    Id.
     By contrast, a defendant may be retried where the conviction is set aside as
    being "against the weight of the evidence." 
    Id. at 42
     (emphasis added).
    In viewing the entire order, it is clear the District Court did not find the
    evidence to be legally insufficient. The District Court denied Dodd's mid-trial and
    end-of-trial motions under Rule 29—the vehicle for obtaining judgment of acquittal
    based on the legal insufficiency of the evidence—and submitted the case to the jury.
    See Fed. R. Crim. P. 29. Further, the standard of review the District Court properly
    applied in its order was whether the verdict was "contrary to the weight of the
    evidence." Order at 2 (emphasis added). Finally, the District Court based its order
    on the "nature, quantity, and character of evidence" against Dodd rather than on a
    complete lack of evidence. Id. at 23. We therefore hold that Dodd may be retried
    without violating his Fifth Amendment rights.
    -8-
    III.
    For the reasons stated, we affirm the District Court's order granting Dodd a new
    trial under Rule 33, and we hold that Dodd may be retried without violating the
    Double Jeopardy Clause of the Fifth Amendment.
    ______________________________
    -9-