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United States v. Brown

United States District Court, D. Delaware

June 13, 2017

United States of America,
v.
Marquies Brown, Defendant.

          Libby Van Pelt, Assistant United States Attorney, for the Government.

          Dina Chivar, Assistant Federal Public Defender, for Defendant.

          MEMORANDUM OPINION

          Andrews, U.S. District Judge.

         Defendant Marquies Brown was convicted on February 2, 2017 of being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (D.I. 46). He stipulated to a prior felony conviction. Thus, the main issue at trial was whether he possessed a firearm on December 9, 2015. At trial and again after trial, Defendant moved for a new trial based on two remarks made by the prosecutor during closing arguments. Defendant also moved for a judgment of acquittal notwithstanding the verdict. For the following reasons, those motions (D.I. 58) are denied.

         I. Motion for a New Trial

         Federal Rule of Criminal Procedure 33 allows me to grant a new trial "if the interest of justice so requires." As a basis for his Rule 33 motion, Defendant points to two separate remarks made by the prosecutor during closing arguments.

         A. The Challenged Remarks and Related Trial Testimony

         The trial spanned three days, during which the jury heard from several law enforcement officers, including Detective Deshaun Ketler and Detective Ray Mullin, and saw extensive video footage and photo stills from the day of the arrest.

         i. Relevant Trial Testimony

         Detective Deshaun Ketler is a ten-year veteran of the Wilmington Police Department currently serving as a surveillance officer in the Drug, Organized Crime, and Vice Unit. (Tr. at 142-43)[1] At trial, Ketler testified to his observations on December 9, 2015. He testified he was surveilling a house on 6th and Adams Street in Wilmington when Defendant walked by the passenger side door, cellphone in hand, wearing a blue overcoat. (Tr. at 143-44). Ketler recognized Defendant from the community. (Tr. at 143). After disappearing out of sight for a few minutes, Defendant reappeared, this time without the overcoat and off the phone. (Tr. at 145). Defendant passed in front of Ketler's vehicle and continued walking down the street. (Tr. at 145, 147-48).

         Ketler testified that after Defendant had passed his car and continued walking, he then "observed a large bulge coming out of [Defendant's] right side, around his right hip area, which is a firearm." (Tr. at 149). Ketler also testified he observed Defendant pulling on his jacket and hitting his right side with his elbow and that he trained his binoculars on Defendant and observed "the protrusion was a lot more as he was pulling down, which was identical to the gun that we recovered." (Id.).

         At trial, Ketler stated he was "[a] hundred percent" certain Defendant had a gun. (Tr. at 155-56).

         During cross-examination, defense counsel brought out several relevant details. For example, Defendant's right side, where Ketler testified he saw the bulge, was facing away from Ketler. (Tr. at 170). In response to questioning, Ketler clarified, "I did not see the actual firearm..." (Tr. at 171). Defense counsel also brought out that in his incident report Ketler did not mention Defendant was on a cellphone when Ketler first saw him or that after arrest Ketler found a hairbrush in Defendant's left pocket. (Tr. at 168, 190). Ketler also acknowledged that he had stated only that Defendant "possibly" had a firearm several times: on the day of the incident over the radio, in the incident report, and at a prior hearing under oath. (Tr. at 172).

         Later in the trial, Detective Ray Mullin testified. Mullin was the chief investigating officer for Defendant's case and pursued Defendant the day of the arrest.

         On December 9, Mullin was out in Wilmington with his partner. (Tr. at 221-22). He testified that his partner was "a black male, big bushy beard, his hair is styled various ways from week-to-week, about 6 foot tall, 250 pounds or so." (Tr. at 222). That day, his partner was wearing a "wool winter cap, dark in color hoodie. I believe it was black, and some variation of cargo pants. If [I] remember correctly, dark in color." (Id.).

         Mullin also testified about his own appearance, describing his clothes as street clothes and saying "my hair was not combed. It was quite scruffy. I had [] quite an [unkempt] beard look for lack of a better term." (Tr. at 223). Mullin and his partner were riding that day in a black Ford Expedition, unmarked, with rear tinted windows. (Tr. at 224).

         After describing his appearance and the appearance of his partner, Mullin walked the jury through extensive video tape that showed his vehicle circling in and out of frame and showed Defendant at times running and at times walking.

         ii. The Challenged Remarks

         Ketler's testimony was the subject of one of the prosecutor's contested remarks. The prosecutor opened her closing with a description of the condition of the gun when found and then turned to Ketler's testimony. She said:

This is the intersection of Sixth and Adams Street, that pink dot. That's where Ketler saw the defendant with the gun. He told you he saw him with the gun. He showed you how he saw the gun. He told you he saw it because the magazine was extended out of the grip of the gun. He said he had been doing undercover police work for some time. He ...

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