United States District Court, D. Delaware
Van Pelt, Assistant United States Attorney, for the
Chivar, Assistant Federal Public Defender, for Defendant.
Andrews, U.S. District Judge.
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.
Motion for a New Trial
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
Challenged Remarks and Related Trial Testimony
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.
Relevant Trial Testimony
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) 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,
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.).
trial, Ketler stated he was "[a] hundred percent"
certain Defendant had a gun. (Tr. at 155-56).
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.
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.
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.).
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).
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.
The Challenged Remarks
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 ...