U.S. v. Smallwood

• Decision Date: 01 March 2004
• Docket Number: No. CRIM.A. 03-245-A.,CRIM.A. 03-245-A.
• Citation: 306 F.Supp.2d 582
• Parties: UNITED STATES of America v. Tyrone SMALLWOOD Thomas Edward Smith, Jr.
• Court: U.S. District Court — Eastern District of Virginia

306 F.Supp.2d 582

UNITED STATES of America v. Tyrone SMALLWOOD Thomas Edward Smith, Jr.

No. CRIM.A. 03-245-A.

United States District Court, E.D. Virginia, Alexandria Division.

March 1, 2004.

Brian D. Miller, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Thomas Abbenante, Washington, DC, Lana Manitta, Marin, Arif, Petrovich & Walsh, Springfield, MO, Ivan Darnell Davis, Office of the Federal Public Defender, Frank Salvato, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

At issue in this prosecution of two defendants for murder and use of a firearm while engaged in a drug conspiracy in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 924(c) & (j) is whether two firearms recovered from defendants' residence at the time of defendants' arrest on a related drug conspiracy charge are relevant and admissible evidence pursuant to Rules 401, 403, and 404(b), Fed.R.Evid. This Memorandum Opinion sets forth in greater detail the reasons given in support of a bench ruling denying defendants' motion to exclude these firearms.

I.

Defendants Tyrone Smallwood and Thomas Edward Smith, Jr. were indicted for (i) the murder of Conrad Shelton in Washington, D.C., a murder they allegedly committed while engaged in drug trafficking, in violation of 21 U.S.C. § 848(e)(1)(A), and (ii) the use of a firearm in connection with a drug conspiracy in violation of 18 U.S.C. § 924(c) and (j). Smith is also charged with conspiring to traffic in drugs in violation of 21 U.S.C. § 846.¹ For a more detailed statement of the facts underlying the alleged drug conspiracy and murder of Shelton, see United States v. Smallwood et al., 293 F.Supp.2d 631 (E.D.Va.2003) (denying defendants' motion to transfer venue, denying defendants' motion to dismiss § 924(c) charge, and deferring ruling on defendants' motion to suppress statements pending further hearing) and United States v. Smallwood et al., 2004 U.S. Dist. LEXIS 23932 (E.D.Va. January 13, 2004) (granting in part and denying in part government's motion in limine to admit statements of decedent on the day of the murder). Only the facts pertinent to the government's motion to suppress the firearms recovered from defendants' residence are recounted here.

According to the superseding indictment,² Smallwood and Smith were members of a drug trafficking conspiracy that manufactured and distributed drugs in the District of Columbia, Maryland, Virginia, and elsewhere between 1993 and 1999. The superseding indictment alleges that Smallwood and Smith maintained a residence at 7403 Hendricks Drive in Hyattsville, Maryland at which they stored drugs and drug money. Nor were defendants the only members of this conspiracy. In fact, more than a dozen co-conspirators have been successfully prosecuted in this district for their roles in the drug conspiracy.³ Moreover, one co-conspirator, Anthony Brown, pled guilty to aiding and abetting the murder of Shelton while engaged in a crack cocaine distribution conspiracy in violation of 18 U.S.C. § 848(e)(1)(A). See United States v. Brown, Criminal Action No. 03-612-A (E.D.Va. December 30, 2003) (Plea Agreement).

On November 4, 1996, defendants and two other individuals were arrested during a search by Federal Bureau of Investigation ("FBI") agents of defendants' Hyattsville, Maryland residence. Smith was released after being detained briefly owing to confusion regarding his identity. Smallwood, however, was charged with several drug offenses, including the drug conspiracy Smith is charged with here.

At the time of defendants' arrest, FBI agents seized crack cocaine, money, ballistics vests, and a Toyota Land Cruiser registered under Smith's alias, "Anthony Young," from defendants' Hyattsville, Maryland residence. Notably, FBI agents also seized two firearms: (i) a Norinco Model 54, 7.62 mm Semi-automatic pistol and (ii) an Armi Fratelli Tanfoglio SPA, Model TA 90, 9 mm Parabellum Semi-automatic pistol. Smallwood told FBI agents during the search that one of the firearms belonged to him. Nonetheless, the parties agree, as a ballistics investigation has confirmed, that neither of the seized weapons was used to kill Shelton.⁴

On November 14, 1996, Smallwood entered into a plea agreement with the United States Attorney's Office for the District of Columbia in which he pled guilty to the unlawful distribution of more than fifty (50) grams of crack cocaine within 1000 feet of a school. As part of his plea agreement, Smallwood promised to cooperate with the government in its investigation of the drug conspiracy. In exchange for Smallwood's cooperation, the government agreed that it would "not use against [Smallwood], in any criminal proceeding, any of the information or materials provided to the United States by [Smallwood]."⁵ The plea agreement also made clear that at the time of the plea, the government had no evidence (i) that there was "a nexus between [Smallwood] and the firearms" recovered during the search of defendants' Hyattsville, Maryland residence or (ii) that "the firearms found in [Smallwood's] home were used to facilitate the narcotics trafficking offenses...."⁶ Therefore, the government agreed that it would not seek a two-level sentence enhancement under U.S.S.G. § 2D1.1(b)(1) on the grounds that Smallwood possessed the two firearms in relation to the drug conspiracy.⁷

Pursuant to the terms of Smallwood's plea agreement, defendants move to suppress (i) any statements Smallwood made while cooperating and (ii) the firearms. A ruling on defendants' motion to suppress with regard to both the statements and the firearms was deferred pending the filing of a motion by the government to be released from the terms of the plea agreement on the grounds of Smallwood's breach and a statement regarding whether the United States Attorney's Office for the District of Columbia joined the motion. See United States v. Smallwood, et al., Criminal Action No. 03-245-A (E.D.Va. November 24, 2003) (Order); United States v. Smallwood, et al., Criminal Action No. 03-245-A (E.D.Va. December 17, 2003) (Order). Defendants' motion to suppress Smallwood's statements was granted because the United States Attorney's Office for the District of Columbia declined to join the government's motion to be released from the terms of the plea agreement. See United States v. Smallwood, et al., 299 F.Supp.2d 578 (E.D.Va.2004) (Order). Yet, with regard to the firearms, defendants' motion to suppress was denied on the ground that the terms of the agreement related solely to whether the government would rely on the firearms in seeking a two-level sentence enhancement for the conspiracy conviction to which Smallwood pled guilty in 1996 and did not address or limit the government's use of the firearms in any subsequent prosecution of Smallwood. See United States v. Smallwood, et al., 293 F.Supp.2d 631 (E.D.Va.2003). Nonetheless, no determination was made regarding the firearms' relevance at the time the motion to suppress was denied. Thus, prior to trial, defendants moved to suppress the firearms on the grounds that the firearms were (i) irrelevant under Rules 401 and 402, Fed.R.Evid., (ii) inadmissible "other acts" evidence under Rule 404(b), Fed.R.Evid., and (iii) inadmissible on the grounds of undue prejudice under Rule 403, Fed.R.Evid. This motion places in issue whether the firearms recovered from defendants' Hyattsville, Maryland residence at the time of defendants' arrest are relevant and admissible under Rules 401, 403, and 404(b), Fed.R.Evid.

II.

Defendants' argue that the firearms must be excluded under Rules 401 and 402, Fed.R.Evid., because they are irrelevant to the charged offenses, as it is undisputed that they were not used to kill Shelton. The principles governing the inadmissibility of irrelevant evidence are well-settled. Rule 402 provides that "evidence which is not relevant is not admissible" and Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rules 401 & 402, Fed.R.Evid.; see also United States v. Bonetti, 277 F.3d 441, 449 (4th Cir.2002) (applying the Rule 401 relevance standard). And, settled precedent makes clear that relevance typically presents "a low barrier to admissibility." United States v. Leftenant, 341 F.3d 338, 346 (4th Cir.2003). In fact, to meet the relevance standard, "evidence need only be `worth consideration by the jury,' or have a `plus value.'" Id.

The firearms seized from defendants' Hyattsville residence are relevant under Rules 401 and 402 on two related, but distinct, grounds. First, the firearms are relevant because (i) defendants' possession of the firearms at the Hyattsville residence is an alleged overt act of the drug conspiracy⁸ and (ii) the firearms have a "tendency to make the existence of" defendants' firearms possession during the course of the drug conspiracy "more or less probable than it would be without the [firearms] evidence." Rule 401, Fed.R.Evid. Moreover, the firearms, offered to show that defendants possessed firearms as an overt act in furtherance of the conspiracy, are relevant not only to Count I, the drug conspiracy offense,⁹ but also to Counts II and III, as the drug conspiracy is an element of both of these offenses.¹⁰ See United States v. Lipford, 203 F.3d 259, 265 (4th Cir.2000) (finding that evidence of overt acts in furtherance of the conspiracy were "admissible to prove the existence and scope of the drug conspiracy"). Second, the possession of a firearm during and in relation to the drug trafficking conspiracy is an element of Count III, a violation of § 924(c).¹¹ Thus, the firearms are relevant to Count III on this second, independent basis.

Defendants next argue that even assuming, arguendo, that the firearms are relevant under Rules 401 and 402, they...