United States v. Davis
| Decision Date | 07 July 1971 |
| Docket Number | Crim. No. 70-283. |
| Parties | UNITED STATES of America v. Kelley DAVIS, a/k/a Tee and Inez Davis. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Charles F. Scarlata, Asst. U. S. Atty., Pittsburgh, Pa., for plaintiff.
Lloyd F. Engle, Jr., Kuhn, Engle & Blair, Pittsburgh, Pa., for defendants.
ON MOTION FOR JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL
The defendants, Kelley Davis, a/k/a Tee and Inez Davis, were convicted on eight counts and six counts, respectively, of violations of receiving and concealing a narcotic drug in violation of 21 U.S.C. § 174 and of possessing a narcotic drug not in or from the original stamped package in violation of 26 U.S.C. § 4704(a). At the conclusion of the trial, the defendant, Kelley Davis' Motion for Judgment of Acquittal as to two of the counts on which he was convicted was granted. The defendant, Inez Davis, has moved for Judgment of Acquittal and both defendants have moved for a new trial.
The defendant, Inez Davis' Motion for Judgment of Acquittal is based on the ground that the evidence is not sufficient to show the requisite possession or control of the narcotic drugs. The motion of both defendants for a new trial is based on the grounds that (1) the verdict was based upon illegally obtained evidence, (2) the verdict was based upon evidence obtained in violation of the defendants' rights guaranteed by the Fourth Amendment to the Constitution of the United States, (3) the verdict was contrary to the evidence, (4) the verdict was contrary to the weight of the evidence, (5) the verdict was contrary to the law, (6) the Court erred in refusing to grant defendants' Motion for Judgment of Acquittal based upon the fact that the U. S. Attorney, in his opening statement to the jury, amended the indictment and, thereby, rendered it null and void, and (7) the Court erred in refusing to grant defendants' Motion for Judgment of Acquittal based upon the fact that the proof offered by the U. S. Attorney was at total variance with the indictment.
For purposes of these motions, the facts and the inferences therefrom must be construed in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942). In that light, the testimony of the Government witnesses established the following. In the early evening of June 19, 1970, agents of the Bureau of Narcotics and Dangerous Drugs received information from an informant that Kelley Davis was then in the apartment of Inez Davis at 26 Braddock Avenue, Braddock, Pennsylvania, cutting heroin. Inez Davis is Kelley Davis' daughter. On that information, the agents, along with the Chief of Police of the Borough of Braddock, proceeded to the apartment. At the apartment, the agents and the Chief knocked on the door and announced their presence. When no one answered, they, upon hearing a rushing and scuffling inside, entered the apartment where they confronted three people, Inez Davis, Kelley Davis and one Gloria Anderson. The defendants, Inez Davis and Kelley Davis, were observed in the kitchen, near a kitchen table. Kelley Davis was attempting to pour liquid from a pitcher onto a quantity of loose white powder that was on the table. The agents proceeded to seize the loose powder and other materials, including paraphernalia usually used in mixing, diluting, and packaging certain narcotic drugs, which were on the table and to place the defendants under arrest. After advising the defendants of their rights, one of the agents searched the person of Kelley Davis whereupon he found two brown manila envelopes containing a white powdered substance in his pockets. The agents also seized some glassine envelopes containing a white powdered substance from the kitchen table, from beneath a windowsill in the kitchen, and from the sidewalk outside and below the apartment. Inez Davis' own testimony placed her in the kitchen for a fair length of time immediately prior to the entry of the agents. Her testimony was, however, to the effect that she was there for the purpose of preparing dinner and that the third person in the apartment, Gloria Anderson, a house guest, was sitting at the table working with, what Mrs. Davis indicated she only later learned were drugs. The drugs and the other materials, Mrs. Davis suggested, were in the sole possession of Gloria Anderson. It is apparent that the jury chose to believe the circumstantial evidence rather than the direct testimony.
The expert witnesses produced by the Government established that the white powdered substance contained heroin, a narcotic drug. Kelley Davis' convictions were with respect to the quantity of loose white powder found on the kitchen table, the glassine envelopes recovered from the kitchen table, the glassine envelopes recovered from beneath the windowsill in the kitchen, and the brown manila envelopes recovered from his person. Inez Davis' convictions were with respect to the...
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United States v. Davis
...in violation of 26 U.S.C. § 4704(a).1 Judge Teitelbaum's opinion denying their motions in the district court is reported at 329 F.Supp. 493 (W.D.Pa.1971). This appeal raises two questions: (1) the denial of a motion to suppress evidence allegedly seized in contravention of the Davises' four......
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U.S v. Escamilla
...determine witness is not credible and refuse to accept even uncontradicted testimony) (citations omitted); see also United States v. Davis, 329 F.Supp. 493, 495 (W.D.Pa.1971) (denying motion for acquittal and noting that jury properly chose to believe circumstantial evidence rather than dir......
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United States v. Crippen, 72-1081.
...457 F.2d 95, at p. 98 (3d Cir.1972). 2 United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701 (1971). Cf. United States v. Davis, 329 F.Supp. 493 (W.D.Pa.1971). 3 United States v. Malfi, 264 F.2d 147, 151 (3d Cir.), cert. denied, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959); United ......