500 F.3d 83 (2nd Cir. 2007), 06-1078, United States v. Owen

Docket Nº:06-1078-cr(L), 06-1331-cr(XAP). [*]
Citation:500 F.3d 83
Party Name:UNITED STATES of America, Appellant-Cross-Appellee, v. Lance Edgar OWEN, Defendant-Appellee-Cross-Appellant.
Case Date:September 04, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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500 F.3d 83 (2nd Cir. 2007)

UNITED STATES of America, Appellant-Cross-Appellee,

v.

Lance Edgar OWEN, Defendant-Appellee-Cross-Appellant.

Nos. 06-1078-cr(L), 06-1331-cr(XAP). [*]

United States Court of Appeals, Second Circuit.

Sept. 4, 2007

Argued: May 11, 2007.

William J. Harrington, Assistant United States Attorney, on behalf of Michael J. Garcia, United States Attorney for the Southern District of New York (Jacob W. Buchdahl and John M. Hillebrecht, Assistant

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United States Attorneys, on the brief), for Appellant.

James A. Cohen, Lincoln Square Legal Services, Inc., New York, N.Y. (Michael W. Martin and Gemma Solimene, on the brief), for Defendant-Appellee.

Before: B.D. PARKER, RAGGI, WESLEY, Circuit Judges.

WESLEY, Circuit Judge

The Government appeals an order of the district court granting defendant Lance Edgar Owen a new trial on the basis of newly discovered evidence. The Government charged Owen and codefendants Mark Baroody and Paul Samuels with two counts of violating Title 21 of the United States Code. Count One charged Owen, Baroody and Samuels with conspiring to distribute in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. § 846. Count Two charged the defendants with distributing and possessing with intent to distribute approximately 175 kilograms of marijuana in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). After a four day trial, the jury convicted all three defendants on both counts. The district court (Patterson, J.) sentenced Owen to the mandatory minimum sentence of sixty months imprisonment. At Samuels' sentencing hearing, he made statements for the first time purportedly exculpating Owen. Because Samuels exercised his right not to testify at trial, Owen claimed Samuels' statements were newly discovered evidence warranting a new trial. The district court agreed and granted Owen a new trial pursuant to Federal Rule of Criminal Procedure 33 ("Rule 33"). We reverse. Because Samuels' testimony related to his direct dealings with Owen, Owen was--or certainly should have been--aware of the substance of Samuels' testimony prior to trial, and, thus, it was not "newly discovered" within the meaning of Rule 33 when it was offered by Samuels at sentencing. [1

BACKGROUND

In April of 2004, agents of the Drug Enforcement Agency ("DEA") were alerted by a confidential source to suspicious activity at a warehouse in the Bronx, New York. The source claimed that, on numerous occasions, Paul Samuels entered the warehouse to retrieve large boxes of marijuana and loaded them into his or other persons' cars. Special Agent Eric Baldus and his partner conducted surveillance of the warehouse during normal business hours on two or three occasions but did not see anyone enter or exit the warehouse and the doors to the warehouse remained closed. On June 7, 2004, agents again received information concerning activity at the warehouse, causing them to resume their surveillance the following day.

At approximately 11:15 a.m. on June 8, Agent Baldus observed Samuels standing outside the warehouse, directing a white box truck into the loading bay. When the truck stopped, Baldus saw Owen exit the driver's side door and enter the warehouse with Samuels. From Baldus' surveillance point he could not see into the box of the truck or the warehouse because the truck was flush with the loading bay. However, Baldus observed that, over the next hour, the truck gently shook back and forth, as if it was being loaded or unloaded. Baldus testified that, at one point, Owen came out of the warehouse and entered the passenger side of the truck's cab, where he retrieved

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a notebook, and then returned to the warehouse. A short time later, Owen came out of the warehouse, put the notebook back in the cab, and returned to the warehouse. The book turned out to be a receipt book that the Government introduced at trial.

At approximately 12:15 p.m., Owen, Baroody and Samuels exited the warehouse together. After a brief conversation with Samuels, Owen got into the truck and drove away. Baldus called for agents to follow the truck. Samuels then locked the warehouse and he and Baroody got into a Ford sedan and drove off as well. Baldus tried to follow the Ford himself but was unsuccessful.

Agents pulled Owen over near the entrance to Interstate 95. Special Agent Joe Doherty approached the driver's side of the truck and asked Owen for his license and registration. Owen explained to Doherty that he was a part-time mover and was in the process of moving some items to Florida for a client there. Owen showed Doherty a document that was purportedly a proposal and receipt for moving household items from the Bronx to an address in Tampa, Florida, for a woman named Susan Thomas. The receipt stated that Owen was to receive $1,800 dollars for the job. The receipt also stated that Owen was to drop the items off at 1835 Humphrey Street in Tampa and it listed a contact number for Susan Thomas. Investigators subsequently determined that the address on the receipt did not exist and the phone number was not working.

Doherty took Owen to the back of the vehicle where he asked Owen if there were any bombs, guns or drugs in the box of the truck. Owen replied that there were not. Doherty requested to see for himself and Owen obliged, removing a padlock and opening the door to the box. Doherty and Special Agent Chris Oksala, who was also present, testified at trial that immediately upon opening the door, they smelled the strong scent of marijuana.

When Doherty climbed into the box of the truck, he observed various items of furniture and appliances, including a washing machine, a refrigerator, bed boards, beds, and box springs. These items were described at trial by one witness as "old stuff that was pretty much garbage." Doherty found a number of boxes with individually-wrapped items of clothing. Upon moving the clothing to one side, Doherty discovered bundles of marijuana wrapped in a cellophane-like material. Doherty made his way out of the truck and promptly placed Owen under arrest.

Owen had rented the truck, and, although he claimed to be headed for Tampa, the rental agreement stated that the truck had been rented for a one-way trip between the Bronx and Philadelphia, Pennsylvania. In addition, the agreement required Owen to return the truck to Philadelphia no later than two days after he picked it up in the Bronx, and limited Owen to 124 miles of travel. If the truck was returned late, the rental agreement provided that Owen would be charged $60 for each additional day; for each mile Owen drove the truck in excess of the stated limit, Owen would be charged $0.60. Tampa is over 1,000 miles from Philadelphia. Thus, the round trip would have cost Owen $1,200 in mileage alone, excluding gas and late fees.

During his safety valve hearing, Owen testified that he was willing to incur these additional charges, despite the fact that he was only to receive $1,800 for the moving job, because he was going to tow a used Chevy Caprice to Atlanta [1 and sell it for

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$800 or $900. Owen stated that he purchased the car for $200 in the Bronx with the intention of selling it in Atlanta. Owen conceded that he did not have a buyer for the car but confidently asserted that he could find one with little difficulty once in Atlanta. Owen was not towing a Caprice when the police pulled him over; he claims he was arrested before he could pick up the car. Owen testified that another reason he was willing to embark on such an unprofitable venture was because it would allow him to pick up his children, who lived in Atlanta with their mother. Owen stated that his children were out of school for the summer and that he intended to bring them back to New York with him for a visit.

After Owen's arrest, the drugs were seized and the truck was returned to Budget Truck Rental. The agent who had rented Owen the truck contacted Owen and inquired about the disposal of the contents--the furniture and appliances allegedly belonging to Susan Thomas. Owen told the agent that he should "just get rid of it."

When DEA agents returned to the warehouse, they discovered it was almost bare, save for a forklift, a single wooden loading pallet, and some empty boxes. However, agents also discovered a small amount of green wrapping material that appeared to be the same as that used to wrap some of the marijuana found in Owen's truck, and a single bud of marijuana inside one of the boxes.

At their joint trial, all three defendants exercised their right not to testify...

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