U.S. v. Dodd, 04-1313.

• Decision Date: 13 December 2004
• Docket Number: No. 04-1313.,04-1313.
• Citation: 391 F.3d 930
• Parties: UNITED STATES of America, Appellant, v. Joseph DODD, also known as Shakespeare, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

391 F.3d 930

UNITED STATES of America, Appellant, v. Joseph DODD, also known as Shakespeare, Appellee.

No. 04-1313.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2004.

Filed: December 13, 2004.

COPYRIGHT MATERIAL OMITTED

Clifford Cronk, argued, Asst. U.S. Atty., Rock Island, IL, for appellant.

Thomas J. O'Flaherty, argued, Swisher, IA, for appellee.

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.

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 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 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.

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 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, 114 S.Ct. 894, 127 L.Ed.2d 86 (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...