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United States v. Fitzgerald

United States District Court, N.D. Ohio, Eastern Division

June 16, 2017

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CHRISTOPHER FITZGERALD, DEFENDANT.

          MEMORANDUM OPINION

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Before the Court is the motion of defendant Christopher Fitzgerald (“defendant” or “Fitzgerald”) for a new trial. (Doc. No. 112 [“Mot.”].) The United States opposes the motion. (Doc. No. 122 [“Opp'n”].) For the reasons to follow, defendant's motion for a new trial is denied.

         I. Background

         On April 20, 2016, the United States returned an indictment against defendant and two other individuals, charging the trio with participation in a drug trafficking organization. With respect to Fitzgerald, it was the United States' theory that he used his position as a truck driver for FedEx to facilitate drug transactions. The indictment charged Fitzgerald with conspiracy to possess with intent to distribute and to distribute cocaine; distribution of cocaine; and multiple counts of use of a communications facility to facilitate a drug trafficking offense. The United States also sought forfeiture of certain property owned by Fitzgerald. (Doc. No. 1 (Indictment).)

         All three defendants proceeded to trial. Among the United States' witnesses was Walter Walker, who testified as to his drug-related dealings with defendants. The United States also presented several members of law enforcement; most testified exclusively as fact witnesses, testifying to their roles in the investigation that led to the arrest of Fitzgerald and his co-defendants, while Task Force Officer James Cudo offered expert testimony on drug trafficking. Fitzgerald was the only defendant to take the stand. On March 7, 2017, after an eight day jury trial, the jury returned guilty verdicts against all defendants on all counts charged in the indictment. (Doc. No. 80 (Jury Verdicts).) The jury also returned a special verdict of forfeiture against Fitzgerald. (Doc. No. 81 (Special Verdict).)

         II. Standard of Review

         Rule 33 of the Federal Rules of Criminal Procedure provides that “‘[u]pon the defendant's motion, [a district] court may vacate any judgment and grant a new trial if the interest of justice so requires.'” United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (quoting Fed. R. Crim. P. 33(a)). “The rules does not define ‘interest of justice' and the courts have had little success in trying to generalize its meaning.” Id. (internal quotation marks and citation omitted). It is, however, “widely agreed that Rule 33's ‘interest of justice' standard allows the grant of a new trial where substantial legal error has occurred.” Id. (citation omitted). Any legal error that is significant enough to require reversal on appeal is an adequate ground for granting a new trial. See Id. (quoting with approval United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004)); see United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989) (new trial may be warranted when “the substantial rights of the defendant have been jeopardized by errors or omissions during trial”). However, any error that is considered harmless under Fed. R. Crim. P. 52 will not warrant a new trial. See 3 Charles Alan Wright & Sarah N. Whelling, Federal Practice and Procedure § 581 (4th ed. 2011) (citing, among authority, United States v. Wilkerson, 251 F.3d 273, 280 (1st Cir. 2001)).

         “[T]he defendant bears the burden of proof that a new trial is warranted and ‘such motions should be granted sparingly and with caution.'” United States v. Dolan, 134 F.3d 372, at *3 (6th Cir. 1997) (quoting United States v. Turner, 995 F.2d 1357, 1364 (6th Cir. 1993)). The decision of whether a new trial should be granted rests within the district court's sound discretion. United States v. Wheaton, 426 F.Supp.2d 666, 669 (N.D. Ohio 2006) (citing United States v. Hoffa, 382 F.2d 856, 862 (6th Cir. 1967)); see United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991) (citation omitted).

         III. Discussion

         In his post-trial motion, Fitzgerald argues that five purported trial errors necessitate that he receive a new trial: (1) that the United States improperly elicited testimony from a police detective regarding his belief that a drug transaction between Fitzgerald and Walker had taken place; (2) that the Court improperly limited the direct examination of Fitzgerald into allegations that Walker had threatened to kill him; (3) that the Court limited defense counsel's cross-examination of Walker; (4) that the Court erred when it allowed the United States to introduce hearsay testimony regarding defendant's presence at an apartment that was searched in connection with the investigation; and (5) that the United States used “other acts evidence” to convict defendant. (Mot. at 2471-72.) The Court will address each argument in turn.[1]

         1. The United States did not Elicit Improper Opinion Evidence

         Defendant argues that United States' witness John Guzik, a detective with the City of Lakewood, Ohio, was permitted to offer his opinion that Fitzgerald met with Walker for the purpose of conducting a drug transaction in violation of Rules 702 and 704(b) of the Federal Rules of Evidence.[2] While he concedes that law enforcement officials may “offer an expert opinion to assist jurors in making determinations to better understand complex criminal activities or criminal behavior[, ]” Fitzgerald maintains that the Court erred in permitting the witness to assert “his belief or opinion that [Fitzgerald] had engaged in a drug transaction with [Walker] in violation of Rule 704(b)[.]” (Mot. at 2473, case citation omitted.) There are several problems with defendant's argument.

         First, Officer Guzik was not called as an expert witness on drug trafficking. Rather, he was called as a fact witness to testify as to the role he played in, and the actions he took during, the investigation of defendant and his co-conspirators. Officer Guzik testified that, in addition to preparing the Title III wiretap affidavits, he monitored the intercepted cellular phone calls. In particular, he testified that his team intercepted a phone call between Walker and Fitzgerald, during which he believed that the two men had arranged for a “meet” to take place on January 31, 2015. (Doc. No. 101 at 1384-85.) He explained that, despite deploying his team on that date, no meeting between the two men was observed because “obviously it happened prior to us being deployed.” (Id. at 1386.) Upon objection by defendant's counsel, the Court struck the portion of the answer containing the officer's assumption that the meeting had already taken place. (Id.) Thereafter, the witness answered questions relating to the facts that led him to conclude that the meeting had taken place. A series of defense objections followed, culminating in the Court requiring that, at defense counsel's insistence, the United States be limited to inquiring as to whether the officer's investigation led him to believe that a meeting had taken place (as opposed to stating that one did, indeed, take place). (Id. at 1387-97.) Defense counsel agreed that such an inquiry would resolve his objection, and the officer testified to his belief that a meeting took place and the facts from his investigation that led him to reach this belief.[3] (Id. at 1397 [The Court: So he needs to phrase it in terms of what he believed occurred … [w]ould that resolve your objection? Mr. Watson: “Yes, in significant part.”].)

         There was no error in permitting such testimony. “Testimony need not be excluded as improper lay opinion, even if some specialized knowledge on the part of the agents was required, if was based on first-hand observations in a specific investigation.” United States v. El-Mezain, 664 F.3d 467, 513 (5th Cir. 2011) (officers could testify as to their “personal perceptions from their investigation of this case”) (citations omitted); see also United States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 2014) (“a law enforcement officer involved in the investigation may offer lay opinions about the meaning of intercepted phone calls, but those opinions are subject to the requirements of Federal Rule of Evidence 701”) (citations omitted). Here, Officer Guzik properly testified to the conclusions he reached based upon his personal observations ...


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