Opinion
CASE NO. 4:08CR102.
October 6, 2010
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Linnard Lawson's ("Lawson") Motion for Judgment of Acquittal (Dkt. # 50) and Motion for New Trial (Dkt. # 51). For the reasons that follow, Lawson's Motion for Judgment of Acquittal is DENIED in part and GRANTED in part and Lawson's Motion for a New Trial is DENIED.
I. PROCEDURAL BACKGROUND
On February 27, 2008, the Grand Jury of the United States District Court for the Northern District of Ohio issued a three count Indictment charging Lawson with: (1) possession with intent to distribute a mixture or substance containing a detectable amount of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (2) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (3) carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
On August 3, 2010, the matter proceeded to trial on all three counts of the Indictment. Testimony was taken before the jury from August 3, 2010 to August 4, 2010. On August 4, 2010, the jury returned a verdict of guilty against Lawson on all three counts. The jury also found that the Government had proven beyond a reasonable doubt that an amount of cocaine base (crack) weighing at least two hundred eighty (280) grams could be attributed to Lawson. (Dkt. # 39). The verdict was accepted and ordered filed. (Dkt. # 40).
On August 27, 2010, Lawson filed his Motion for Acquittal (Dkt. # 50) and Motion for New Trial (Dkt. # 51). On September 17, 2010, the Government filed its Responses in Opposition to Lawson's Motions. (Dkt. # 52, 53).
II. TESTIMONY AT TRIAL
The following Drug Enforcement Administration ("DEA") task force officers testified at trial: DEA Special Agent Frank Drew ("Special Agent Drew"), DEA Special Agent Francesco Vezio, DEA Special Agent Erik Kochanowski ("Special Agent Kochanowski"), Warren Police Officer Troy Walker, and St. Clair Township Police Officer Timothy Anderson (collectively, "the officers"). The Government also called DEA Forensic Chemist Timothy Anderson, East Liverpool Police Officer Patrick Wright ("Officer Wright"), and Special Agent Nicholas John Vouvalis of the Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives. After the Government rested, counsel for Lawson recalled Special Agent Kochanowski to the stand, but declined to call any additional witnesses on Lawson's behalf.
According to testimony, on January 18, 2009, the officers arrived at 208 Needham Street ("the Needham Street residence") to serve a federal arrest warrant (Tr. at 84) and a federal search warrant (Tr. at 83, 115, 131-32, 136). Upon arriving, the officers knocked on the front door of the residence and announced their presence. (Tr. at 138). Although the officers could see individuals inside, no one answered the door and as a result, the officers made entry into the home. (Tr. at 138-39).
"Tr." corresponds to page numbers of a preliminary version of the trial transcript. Because these page numbers might vary from the final version, Appendix A contains all transcript pages cited in this opinion.
Once inside the residence, the officers encountered Lawson and Keira Abercrombie. (Tr. at 139-40). The two individuals were mostly unclothed and were standing at the top of a staircase that led to the second floor. (Tr. at 139-40). The officers then secured the home, and while doing so, discovered a .380 automatic pistol on a shelf in the first floor living room. (Tr. at 85, 95, 120, 156, 217-18). Shortly thereafter, the officers handcuffed Lawson, read him his Miranda rights (Tr. at 85, 141), and began to question him (Tr. at 85, 141-42).
When the officers asked Lawson if there were any drugs, money, or weapons in the house, he replied: "well you already found the gun." (Tr. at 85). Lawson also told the officers that he had narcotics in his pants. (Tr. at 86). The officers discovered $1,090 in currency on Lawson's person, but Lawson's pants did not contain any drugs. (Tr. at 86, 88-89, 145).
According to the testimony of multiple witnesses, Lawson then directed the officers to the kitchen by body gestures, including nodding his head toward a porcelain container located near a microwave. (Tr. at 86, 116-18, 125-126, 128). Special Agent Drew recalled hearing Lawson state: "Over in the container, over by the microwave." (Tr. at 111). Inside the porcelain container were three plastic bags containing a total of 16.5 grams of crack cocaine, all contained within a fourth plastic bag. (Tr. at 110-111, 118, 149, 181, 230). Lawson then directed the officers to a box of .380 caliber semiautomatic weapon ammunition contained in a crouton bag on the kitchen counter. (Tr. at 110-11, 119, 126-27).
The officers also found approximately $6,926 in currency (Tr. at 145) and 270.6 grams of crack cocaine (Tr. at 132-33, 233) in a drop ceiling upstairs in the master bedroom. Lawson did not respond when the officers showed him the crack cocaine and asked Lawson if it belonged to him. (Tr. at 184). However, when the officers asked Lawson if the bags containing the drugs would have his fingerprints on them, Lawson responded that his prints might be on the packaging. (Tr. at 145).
This exchange is discussed in greater detail below.
The officers sent for fingerprint analysis the plastic bags found in the kitchen that contained 16.5 grams of crack cocaine. (Tr. at 149). However, no identifiable prints were found on any of the bags. (Tr. at 50). Special Agent Kochanowski testified that in his experience, it was common not to be able to obtain fingerprints on plastic bags. (Tr. at 150). The larger bag of crack cocaine found in the drop ceiling was not sent for fingerprint analysis because, according to Special Agent Kochanowski, the officers did not feel the need to request fingerprints based on Lawson's statement that they might find his prints on the narcotics. (Tr. at 142, 145, 149).
Officer Kochanowski testified that the packaging and quantity of the narcotics found in the Needham Street residence, in his experience, were consistent with trafficking. (Tr. at 1534). Finally, according to his testimony, Officer Wright observed Lawson's vehicle at the Needham Street residence on numerous occasions prior to January 18, 2008. (Tr. at 263).
III. LAW AND ANALYSIS
A. Motion for Judgment of Acquittal
On a motion for judgment of acquittal, the Court must determine whether a reasonable jury could fairly find Lawson guilty beyond a reasonable doubt, viewing the evidence in a light most favorable to the Government. See United States v. Gorman, 807 F.2d 1303 (6th Cir. 1986). The relevant question for the Court is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 319 (1979).
However, the evidence "need not unequivocally point to the defendant's guilt as long as it permits the jury to find the defendant guilty beyond a reasonable doubt." United States v. Pungitore, 910 F.2d 1084, 1129 (3rd Cir. 1990). The Court must view all the evidence and resolve all reasonable inferences in favor of the Government. Id. United States v. Searan, 259 F.3d 434, 441 (6th Cir. 2001). Courts must take care not to invade the jury's province. See United States v. Mariani, 725 F.2d 862, 865 (2nd Cir. 1984). Moreover, a finding of insufficiency should "be confined to cases where the prosecution's failure is clear." Burks v. United States, 437 U.S. 1, 17 (1977).
1. Count 1
Count 1 of the Indictment charges Lawson with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). In order to convict Lawson of this charge, the Government must have proven beyond a reasonable doubt that Lawson: (1) knowingly, (2) possessed a controlled substance, (3) with intent to distribute it. See United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995) (citing United States v. Peters, 15 F.3d 540, 544 (6th Cir. 1994)).
However, the Government need not have proven that Lawson physically possessed the narcotics to be found guilty of Count 1. "Possession may be either actual or constructive and it need not be exclusive but may be joint." United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973). To establish constructive possession, the evidence must show that Lawson knowingly had the power and the intention at a given time to exercise dominion and control over the crack cocaine either directly or through others. United States v. Welch, 97 F.3d 142, 150 (6th Cir. 1996). Proof of constructive possession through direct or circumstantial evidence is sufficient. Id. While mere proximity to the drugs is not sufficient, proximity combined with other evidence of the defendant's involvement in a conspiracy to distribute crack cocaine will suffice to establish possession. Id. at 150-51.
Lawson contends that the Government did not produce sufficient evidence at trial to support this charge. Specifically, Lawson argues that his mere presence in the Needham Street residence where narcotics were found does not establish beyond a reasonable doubt that he was the possessor of those drugs, especially when other individuals had access to the residence.
Viewing the evidence in the light most favorable to the Government, a reasonable juror could find Lawson guilty of Count 1 beyond a reasonable doubt. In response to being asked if there were drugs in the house, Lawson knew exactly where they were and directed the officers to the narcotics in the kitchen near the microwave. Lawson also acknowledged that there might be some drugs on his person — further pointing to his having access to the drugs. In addition, when confronted with the larger amount of narcotics hidden in the upstairs drop ceiling, Lawson conceded that his fingerprints might be on the bags.
The Government also introduced evidence that Lawson's vehicle was frequently present at the Needham Street residence. This evidence, along with the fact that Lawson was mostly unclothed when the officers arrived strongly suggests that Lawson lived or stayed at the residence. All of these facts, combined with the large amount of money found on Lawson's person could easily lead a reasonable juror to conclude that Lawson had constructive possession of the crack cocaine. Finally, the large quantity of narcotics and the nature of their packaging suggests that the drugs were intended for redistribution.
2. Count 2
Count 2 of the Indictment charges Lawson with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In order to convict Lawson of this charge, the Government must have proven the following elements beyond a reasonable doubt: (1) Lawson was convicted of a crime punishable by imprisonment for more than one year; (2) Lawson, following his conviction, knowingly possessed the firearm specified in the indictment; and (3) the specified firearm crossed a state line prior to the alleged possession. See United States v. Schreane, 331 F.3d 548, 560 (6th Cir. 2003).
"Presence alone near a gun . . . does not show the requisite knowledge, power, or intention to exercise control over the gun to prove constructive possession." United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (citation and internal quotation marks omitted). "Other incriminating evidence must supplement a defendant's proximity to a firearm in order to tip the scale in favor of constructive possession." United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). However, as discussed above, the Government was not required to prove that Lawson actually possessed the weapon, but rather that Lawson knowingly had the power and the intention at a given time to exercise dominion and control over the firearm. See Welch, 97 F.3d 142 at 150.
At trial, Lawson stipulated that he had been previously convicted of a crime punishable for more than one year. (Tr. at 81-82). Likewise, Lawson does not contest the Government's evidence that the .380 automatic pistol found in the Needham Street residence was manufactured in a state other than Ohio and crossed state lines. Rather, Lawson contends that the Government did not produce sufficient evidence at trial to prove that Lawson knowingly possessed the firearm described in the Indictment. Once again, Lawson argues that his mere presence in the home where the gun was located does not establish that he knowingly possessed it.
The Court finds that Lawson's statement in response to the officers' questioning: "you already found the gun," affirmatively acknowledged ownership, or at least control of the weapon. Lawson also had knowledge of the hiding spot where the ammunition specific to the gun had been concealed. Drawing all inferences in favor of the Government, the above evidence was sufficient to allow a reasonable juror to conclude that Lawson was guilty beyond a reasonable doubt of knowingly possessing the .380 caliber weapon and .380 ammunition described in the Indictment.
3. Count 3
Count 3 of the Indictment states the following:
On January 18, 2008, in the Northern District of Ohio, Eastern Division, LINNARD O. LAWSON did knowingly carry a firearm during and in relation to a drug trafficking crime for which said defendant may be prosecuted in a court of the United States, that is to possess with intent to distribute fifty (50) grams or more of a mixture or substance containing a detectable amount of cocaine base (crack), a Schedule II narcotic drug controlled substance, in violation of Title 21, Sections 841(a)(1) and (b)(1)(A), United States Code, as charged in Count 1 of this Indictment; in violation of Title 18, Section 924(c)(1)(A), United States Code, and punishable under Title 18, Section 924(c)(1)(A)(i), United States Code.
(Dkt. # 1 at 2-3) (emphasis added).
18 U.S.C. § 924(c)(1)(A) provides in pertinent part:
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . . be sentenced to a term of imprisonment of not less than five years.
In United States v. Combs, 369 F.3d 925, 930-33 (6th Cir. 2004), the Sixth Circuit held that 18 U.S.C. § 924(c) criminalizes two separate offenses: (1) using or carrying a firearm during and in relation to a drug trafficking crime, and (2) possessing a firearm in furtherance of a drug trafficking crime. In addition, the Government is required to present different proof for each offense. Id. at 932.
In its Response to Lawson's Motion for Judgment of Acquittal, the Government concedes that "the Indictment should have specified `possession' and not `carry.'" (Dkt. # 52 at 5). Moreover, the Government presented no evidence at trial that Lawson carried a firearm during and in relation to a drug trafficking crime, and the parties submitted jury instructions relating only to the carry prong of 18 U.S.C. § 924(c). (Dkt. # 28 at 26-27; Dkt. # 37 at 23). Therefore, Lawson's Motion for Judgment of Acquittal is hereby GRANTED with respect to Count 3 alone.
B. Motion for New Trial
Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon a defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). When presented with a Rule 33 motion, a trial court may weigh the evidence and assess the credibility of the witnesses; "it has often been said that [it] sits as a thirteenth juror." United States v. Solorio, 337 F.3d 580, 589 n. 6 (6th Cir. 2003) (internal citations omitted).
Lawson contends that the following statement, made by counsel for the Government in her closing argument, was improper, and thus necessitates a new trial:
I would submit to you, ladies and gentlemen of the jury, that if this wasn't your crack, and if this wasn't your gun, and if this wasn't your ammunition, would you not have said, "Where did that come from? Not mine?"
(Tr. at 54).
Counsel for Lawson promptly objected to the statement, and the Court gave the following instruction to the jury:
There is an objection. Let me explain to the jury that personal beliefs of counsel is not for you to consider. You should disregard any personal beliefs of what was stated by either counsel. Although counsel may make reasonable inferences based upon the evidence, your duty is to decide this case based upon the evidence that you heard and saw in this courtroom and the instructions of law that I will give you, and nothing else. Anything else you should disregard during your deliberations.
(Tr. at 55).
Counsel for the Government then continued:
Instead the defendant said, "you already found the gun." "My prints might be on this bag," directing the agents toward the crack cocaine in the canister.
(Tr. at 55).
The only evidence in the record that Lawson remained silent at any time during the officers' questioning is the following testimony of Special Agent Kochanowski on cross-examination:
Q. The drugs were brought downstairs to Task Force Officer Wright. You asked Mr. Lawson if these were his drugs, and you said there was no response, he didn't answer?
A. Correct.
Q. Then the next thing you said, "Well, will your fingerprints be on the baggies?" And you wrote in your report, you testified that he said, "Well, they might be," that was his response?
A. Correct.
Q. And there was no further response after that, correct?
A. Correct.
(Tr. at 184).
This line of questioning was prompted by Special Agent Kochanowski's testimony during direct examination:
Q. Tell us what, if anything, you heard at that point.
A. I heard some discussion about any narcotics in the house. He indicated that he might have something in his pants or in his shirt in the kitchen. There were some agents that searched those, with negative results. When the officers found the crack cocaine upstairs, they brought it down. I had a personal conversation with Mr. Lawson, and I asked him if we would find his fingerprints on the plastic bags or on the narcotics, and he indicated that we might find his fingerprints on those narcotics.
(Tr. at 142).
When presenting closing argument, a prosecutor may not inject improper or prejudicial material that deprives the defendant of his right to a fair trial. United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991). The prosecutor is not merely another advocate; he or she has a duty to refrain from improper methods used to wrongfully convict in addition to his duty to use every legitimate means to bring about a just conviction. Gravley v. Mills, 87 F.3d 779, 789 (6th Cir. 1996).
In Doyle v. Ohio, 426 U.S. 610, 619, (1976), the Supreme Court held that it was a violation of the due process clause of the Fourteenth Amendment for a prosecutor to use a defendant's post-arrest silence to impeach exculpatory testimony given by him at trial. Gravley, 87 F.3d 779 at 786; see also Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000) (holding that the use of a defendant's pre-arrest silence as substantive evidence of guilt also violates the Fifth Amendment's privilege against self-incrimination). The Sixth Circuit has applied this rule to comments about a defendant's silence made by prosecutors in their closing arguments. Jaradat v. Williams, 591 F.3d 863, 867 (6th Cir. 2010).
However, not every Doyle error warrants a new trial. Prosecutorial misconduct cannot support the grant of a new trial unless it "permeated the entire atmosphere of the trial." United States v. Bond, 22 F.3d 662, 667 (6th Cir. 1994) (internal citations omitted). Additionally, an admonition to the jury by the trial court indicating that the lawyer's arguments do not constitute evidence is generally sufficient to cure any improprieties in closing argument. Id. at 670; United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001).
In the instant case, Lawson contends that the prosecutor's statement was an impermissible reference to Lawson's silence at the time of his arrest. Lawson argues that the prosecutor was using Lawson's silence to persuade the jury to infer guilt. Lawson further emphasizes that counsel for the Government made the statement during rebuttal, when Lawson's attorney was not afforded a response.
However, even if Lawson's non-response to a single question asked by Officer Kochanowski can be characterized as silence, the Court promptly gave a curative instruction immediately following the prosecutor's statement, and it is presumed that a jury will follow such instructions. See United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991). While the charge did not directly address the Doyle issue, the jury was made aware that counsels' statements were not to be considered as evidence.
In United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994), the Sixth Circuit clarified the test to be used in determining whether a prosecutor committed misconduct in closing argument. First, the court considers "whether a prosecutor's remarks were improper." Id. at 1385. If the remarks were improper, the court must determine whether they were flagrant, using four factors: (1) whether the statements tended to mislead the jury or prejudice the accused, (2) whether they were isolated or extensive, (3) whether they were deliberately or accidentally placed before the jury, and (4) the overall strength of the evidence against the accused. Id. If the prosecutor's statements were not flagrant, a new trial is only warranted if: (1) proof of the defendant's guilt is not overwhelming, and (2) defense counsel objected, and (3) the trial court failed to cure the error with an admonishment to the jury. Id. at 1385-86. Moreover, in the context of an alleged Doyle error, the Sixth Circuit has paid special attention to the Government's evidence of a defendant's guilt and the frequency of the prosecution's reference to a defendant's silence. See Gravely, 87 F.3d at 789;Jaradat, 591 F.3d at 871.
Even if the prosecutor's statement could be construed as an improper reference to Lawson's silence, the statement was not flagrant. First, it was not intended to mislead the jury or prejudice Lawson. Rather, it appears to have been an off-the-cuff response to comments made by counsel for Lawson. In his closing argument, Lawson's attorney repeatedly made reference to the notion that the Government's account of the events were not "substantiated." It is clear from the record that counsel for Lawson wanted the jury to draw the inference that the police had fabricated Lawson's incriminating statements. Nothing indicates that the prosecutor's isolated remark was intended to mislead the jury or prejudice Lawson.
Second, the statement was not repetitive. It was confined to one moment during the Government's closing argument on rebuttal. After the jury was admonished, counsel refocused her argument on Lawson's answers and actions in response to Special Agent Kochanowski's questioning. In other words, the prosecutor's focus shifted back to what Lawson did say and do. This is not the kind of deliberately repeated mistake courts have characterized as Doyle error. See Gravely, 87 F.3d at 788 ("From the beginning of its own case, through the cross examination of the defendant, up until the culmination of its final argument, the state consistently and repeatedly sought to make impermissible references to Gravley's silence after his arrest."); Jaradat, 591 F.3d at 871 ("The prosecution's conduct in this case was repetitive and deliberate."). Lastly, as discussed above, the evidence presented at trial of Lawson's guilt was strong and weighs heavily against disturbing the jury's verdict.
Though counsel for the Government's statement was not flagrant, the Court must still determine whether a new trial is nevertheless warranted. As stated above, proof of Lawson's guilt was strong, and the Court promptly cured counsel's statement with an admonition to the jury. Because the statement was an isolated utterance that must be weighed against the strong evidence of Lawson's guilt, holding a new trial would not be in the interest of justice.
IV. CONCLUSION
For the foregoing reasons, the Court hereby orders that Lawson's Motion for Judgment of Acquittal is DENIED in part and GRANTED in part. (Dkt. # 50). Lawson's Motion for a New Trial is DENIED. (Dkt. # 51).
IT IS SO ORDERED.
October 6, 2010
Appendix A
quicker. Have you heard all the questions that have been asked?PROSPECTIVE JUROR: Yes, I have.
THE COURT: Can you give us any reason why you can't be a fair and impartial juror in this case?
PROSPECTIVE JUROR: No.
THE COURT: All right. It is defendants. Or is it the government? I am losing track, you are going so fast.
MS. BARR: Defendant.
THE COURT: Why did you look at me like that?
MS. BARR: Are we going to be able to ask questions?
THE COURT: You have been passing. Go ahead. Sorry.
MS. BARR: Sir, you indicated that a family member has been a victim of a crime.
PROSPECTIVE JUROR: Yes.
MS. BARR: what was the type of crime?
PROSPECTIVE JUROR: It was a shooting.
MS. BARR: Was there anything about that experience, either positive or negative, other than the fact, obviously, that was a traumatic experience?
PROSPECTIVE JUROR: He was paralyzed.
MS. BARR: Was there someone prosecuted for the shooting?
PROSPECTIVE JUROR: Yes.
MS. BARR: And what was the outcome?
not guilty for Mr. Lawson, then I believe that liberty and justice has suffered based upon the evidence in this case.
And so we implore you to return a verdict of not guilty. Thank you.
THE COURT: Ms. Barr, do you need more time?
MS. BARR: Just a few moments, Your Honor.
THE COURT: No, I mean do you need more than the allotted time?
MS. BARR: Ten minutes will be fine.
THE COURT: We will take a recess before I give you the instructions after Ms. Barr completes her rebuttal.
MS. BARR: Mr. Bryan has told you at the very beginning of his argument why he thinks America is beautiful, and he talked about the songs that were played when you first came into the courtroom.
Why does the United states think America is beautiful? Well, because in our system of justice, in a jury trial such as this, a defendant can finally be held responsible for his crimes. America is beautiful because a country is only as good, even with all of our history, as the justice system that it employs.
But there comes a certain point in a trial, ladies and gentlemen, and that time is now, when the defendant is stripped of the presumption of innocence, and it is time to hold the defendant accountable for his crimes.
And I want to correct something that the defense counsel said about other people not being charged or being charged in this case. And there was no evidence one way or the other of that. And the court will instruct you to keep in mind whether anyone else should be prosecuted and convicted for this crime is not a proper matter for you to consider. The possible guilt of others is no defense to a criminal charge. Your job is to decide if the United States has proven the defendant guilty. Do not let the possible guilt of others influence your decision in any way.
I would submit to you, ladies and gentlemen of the jury, that if this wasn't your crack, and if this wasn't your gun, and if this wasn't your ammunition, would you not have said, "Where did that come from? Not mine"?
MR. BRYAN: objection, Your Honor.
MS. BARR: Instead —
THE COURT: There is an objection. Let me just explain to the jury that personal beliefs of counsel is not for you to consider. You should disregard any personal beliefs of what was stated by either counsel. Although counsel may make reasonable inferences based upon the evidence, your duty is to decide this case based upon the evidence that you heard and saw in this courtroom and the instructions of law that I give you, and nothing else. Anything else you should disregard during your deliberations.
MS. BARR: Instead the defendant said, "You already found the gun." "My prints might be on this bag," directing the agents towards the crack cocaine in the canister.
Ladies and gentlemen of the jury, this isn't a popularity contest. Contrary to what was submitted, the United States doesn't want you to find the defendant guilty because you like police in general or you like the agents who testified in this case. You should find the defendant guilty because you believe the evidence and you believe the evidence leads to the conclusion that the defendant is, in fact, guilty of the crimes charged.
The defendant has submitted that he might have said, "If I had anything, it would be in my pants," but that's not what the agent testified to. Perhaps the defendant just forgot it was no longer in his pants, that he had placed it somewhere else, perhaps in the canister. And if you weren't connected in any way to the drugs, why would you say, "If I had anything, it would be in my pants"? Why wouldn't you say, "I don't have anything to do with drugs"?
The defendant wants you to have it both ways, ladies and gentlemen. He wants you to say that — wants you to believe that he never made those statements. But if you do believe he made those statements, then they don't really mean what the United States says they mean. They don't mean anything bad or incriminatory.
He wants you to believe that the defendant has — this isn't crack cocaine, but if it is crack cocaine, it doesn't belong to the defendant, when the evidence suggests otherwise.
He wants you to believe that the United States should have found receipts or debit cards or tax returns. But is that the lifestyle of a drug dealer, debit cards, when you have all that cash? Accountability?
Responsibility?
If you were just visiting a home, would you leave all that money and those valuable drugs there?
Ladies and gentlemen, it goes back to the burden
And the third count in this case is related to that same firearm, and it is a separate count, however, it has nothing to do with Mr. Lawson having previously been convicted of a felony. But there is a count under the law that says that if a person carries a firearm during and in relation to a crime of violence or a controlled substance offense, in this instance, the government is alleging Count 1 to be that controlled substance offense, that is a separate crime.
For the reasons that we believe the evidence will be insufficient to demonstrate that Mr. Lawson even possessed the cocaine to begin with, and possessed it with the intent to distribute, we believe that the evidence will be insufficient to prove beyond a reasonable doubt that he, in fact, carried the firearm in relation to the drug trafficking offense.
But also the fact that there is no evidence that the firearm within the home was possessed during some form of drug trafficking offense or what have you. The judge instruct you that the firearm cannot be coincidental specifically to the drug offense, it has to be in relation to the drug offense. We believe the evidence will be insufficient to establish that element as well.
Ladies and gentlemen, after hearing all the evidence in this case and all the arguments of counsel, we believe the evidence will not be sufficient to establish Mr. Lawson's guilt beyond a reasonable doubt. We believe that the presumption of innocence that he begins this trial will remain on him throughout this trial and will continue to remain on him as you deliberate, because without evidence, we cannot deprive somebody of that presumption of innocence. And the only proper conclusion you will be able to make at the end of this case is that Mr. Lawson is not guilty of the three counts for which he is charged. Thank you.
THE COURT: All right. Before the government calls its first witness, let me tell the jury that before the trial of this case, the court held a conference with counsel for both sides. At that conference, the parties entered into a stipulation, which is an agreement, which they agreed, along with the defendant, that the fact that Mr. Lawson has a prior felony conviction can't be taken by you as true without further proof. By this procedure, it is often possible to save much time.
Let me read the stipulation to you.
"The United States of America and the defendant, Linnard O. Lawson, hereby stipulate to the following: The United States and the defendant have agreed and stipulated that prior to the date of the crime charged in the indictment," this is Count 2 in which this is an element, "the defendant was convicted of a felony, that is, a crime punishable under the laws of the state of Ohio for a term of imprisonment exceeding one year."
Since the parties have so agreed, I am instructing you that you are to take this fact as true for the purposes of this case. However, this doesn't relieve the government of its burden. It is still your duty to consider whether the government has proved beyond a reasonable doubt all the elements involved in count 2, even if the defendant and the
Q. And that's done in an effort to try to document on that day what was happening during the search, correct?
A. Correct.
Q. And to help you maybe even refresh your memory about what happened two and a half years before, correct?
A. Correct.
Q. Now, on January 18th, 2008, there were more than a few law enforcement officers at the Needham Street address, correct?
A. Yes, sir.
Q. And based on your investigation, you knew that this was the home who was rented by the female who was in the home that day Keira Abercrombie?
A. I don't know if she was the renter. I know somebody was renting it.
Q. Okay. And you also knew from your investigation that Mr. Lawson himself was a resident of Beaver, Pennsylvania, correct?
A. He was supposed to be a resident of Beaver, yes.
Q. Okay. And you knew that he had ties to the Beaver, Pennsylvania area, correct?
A. Yes, sir.
Q. And that East Liverpool from Beaver, Pennsylvania is what, about a 40-minute drive?
A. A little less than that.
Q. A little bit — maybe a half hour or 40 minutes?
A. It borders Beaver County, but the town of Beaver to East Liverpool is less than that.
Q. And you knew, based upon just being there, you knew government have entered into a stipulation as to one of the elements of a crime.
All right, you may call your first witness.
MS. BARR: The United States would call Special Agent Frank Drew. He is outside, Your Honor. He was sequestered.
SPECIAL AGENT FRANK DREW, of lawful age, a witness called by the Government, being first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION OF SPECIAL AGENT FRANK DREW
BY MS. BARR:
Q. Would you please tell the members of the jury your name, sir?
A. My name is Frank Drew, D-r-e-w.
Q. And what is your profession?
A. I am a special agent, group supervisor with the Drug Enforcement Administration.
Q. And how long have you been with the DEA?
A. I have been with the DEA 27 years, 28 years. I am sorry. I am sorry, DEA 23 years, the Department of Justice, almost 30.
Q. And what were you prior to being a DEA agent with the Department of Justice?
A. I was an investigator with the Federal Bureau of Investigation.
Q. On January 18th, 2008, were you present at a residence on Needham Street in East Liverpool, Ohio, for the purpose of serving a federal search warrant?
A. Yes, I was.
Q. Do you know approximately what time, morning, afternoon, evening you would have been there?
A. It was in the morning, approximately between 9 and 10 a.m.
Q. And when you arrived at that residence, what was your assignment?
A. Just pretty much, we were hanging on the back — I was hanging in the back after the entry team had gone in.
Q. And what would be the purpose of you being in the rear of the residence?
A. We had — myself, I was part of the team, me and my group had an arrest warrant for Mr. Lawson based out of the United states Attorney's Office in Pittsburgh.
Q. Was the defendant present in the residence?
A. Yes, he was.
Q. And where was he in the home when you encountered him?
A. By the time I got in, he was down in the kitchen area.
Q. Okay. And were you with any other agents at that particular time?
A. Yes, I was. I was with Task Force Officer Michael Warfield and special Agent Frank Vezio.
Q. Is the person that you encountered in the kitchen on January 18th, 2008, present here in court today?
A. Yes, he is.
Q. Would you please point him out?
A. That is Mr. Lawson right there, next to his attorney. (Indicating.)
MS. BARR: Let the record reflect that the witness has identified the defendant.
THE COURT: The record will so reflect.
BY MS. BARR:
Q. Now, were you present when he was seated in the kitchen and he was read his Miranda rights?
A. Yes, I was.
Q. And who read him his rights?
A. Task Force Officer Warfield.
Q. And were you and Task Force Officer Warfield together, in close proximity?
A. Yes. It was a small kitchen area.
Q. And was the defendant questioned at all at that time?
A. Yes, he was.
Q. What was initially asked of him?
A. Basically, if he had any weapons or any narcotics in the house, any money. And he indicated, "well, you already found the gun."
Q. Now, let me try to establish this. That is the first question, asking about weapons or narcotics in the home?
A. One of the first ones I heard, yes.
Q. And, to your knowledge, had a firearm been found when he made the comment, "You already found the gun"?
A. Yes.
Q. And do you know where it had been located?
A. It had been in the living room area.
Q. Okay.
A. Which was —
Q. If you know —
A. I'm sorry. Which was as soon as you came into the home. The living room was right in front of you, and pretty much the kitchen was off to the left — off to the right.
Q. If you were sitting in the kitchen, would you be able to see into the living room area?
A. Yes.
Q. Did anyone show the firearm to you or to the defendant at that time?
A. I don't know if he had seen the weapon. I had seen it. So I had seen the weapon.
Q. All right. So the defendant says that "You've already found the gun." And then did he have anything to say about any narcotics in the home?
A. Yes. He indicated there was narcotics in the kitchen area in a — above the microwave and in a — in a bag.
Q. Now, did he direct you to any articles of clothing initially?
A. There was a pair of pants that he said there was also — there should be drugs in the pants. But a search of that indicated there was not.
Q. And did you indicate to him that there weren't any drugs in the pants?
A. Yeah, "There is nothing here." And that's when he said, "Well, above the microwave or around by the microwave."
Q. And then you're in the kitchen. what is the dimensions, just roughly, of this kitchen area? Just roughly.
A. It's very small. You know, you had a table, which took up a lot of space, and you had countertops over by the window, refrigerator. And then off to your left, I believe, was the — if I remember correctly, was the cabinets, and maybe, I think, the stairway.
Q. So the container and the microwave that he was directing you to was clearly visible from where you were congregating?
A. Yes, maybe 5, no more than 5 feet away.
Q. All right. And did someone go over to the container that he pointed out?
A. Yes, Agent Vezio.
Q. All right. And did you see him do that?
A. Yes, I did.
Q. And what, if anything, did Agent Vezio find in the container?
A. He recovered some narcotics in the container.
Q. Do you know what those narcotics were?
A. I believe it was crack cocaine.
Q. All right. Now, at some point in time later in the day, did you also locate some currency on the defendant?
A. Yes, I did.
Q. Okay. And how much currency did he have on his person?
A. $1,090.
Q. And did you seize that currency?
A. Yes, I did.
MS. BARR: Thank you. No further questions.
CROSS-EXAMINATION OF SPECIAL AGENT FRANK DREW
BY MR. BRYAN:
Q. Special Agent Drew, you indicated that you were there when the execution of the search warrant was taking place, correct?
A. That's correct.
Q. Okay. And this was in East Liverpool, Ohio?
A. Yes, sir.
Q. Which is basically down along the Ohio River there right along the Pennsylvania border, correct?
A. Yes, correct.
Q. And the residence itself was 208 Needham Street, correct?
A. I would have to look at the report for the number, but I remember the address.
Q. Okay. You indicated that you'll have to look at the report for the number. Did you write your own report concerning this matter?
A. Did I? No.
Q. Okay. And did you review a report prior to your testimony here today concerning this matter?
A. Yes, I did.
Q. And would that have been the report that was prepared by Special Agent Kochanowski?
A. Yes, sir.
Q. And that was a six-page report, if you recall?
A. It could be six.
MR. BRYAN: Your Honor, may I approach the witness?
THE COURT: You may.
BY MR. BRYAN:
Q. Sir, I am handing you what's been previously just now marked as Defendant's Exhibit A for identification purposes. Do you recognize that report?
A. Yes, I do.
Q. Does that appear to be the copy of the report that you read today?
A. Yes, sir.
Q. Excuse me, that you have read before?
A. Yes.
Q. And you can thumb through it just to —
A. Yeah, it appears to be the same one.
Q. Okay. Now, this search happened on January 18th, 2008?
A. I believe that's the date.
Q. Okay. So that was over about two and a half years ago, correct?
A. Correct.
Q. Okay. And since that time, you've continued to work as a DEA agent?
A. Yes, sir.
Q. And you've been involved in other search warrants that have taken place since that time?
A. Yes, sir.
Q. And other arrests that have taken place since that time?
A. Yes, sir.
Q. And is it safe to say that you've been involved in a lot of arrests and a lot of searches that have taken place since that time?
A. My fair share.
Q. Okay. And part of the reason why you write reports about the incident is because you don't know exactly when the report — or, excuse me, when the incident may be brought to court, if it is ever brought to court, correct.
A. Correct.
correct?
A. Correct.
Q. And while the sweep is being done, officers are looking not only for people that could be a threat to them, but items that could be a threat to them as well, right?
A. No, not at that point. You are looking for people that are going to be a threat.
Q. Well, if you see a firearm laying on a shelf or something like that, that's something that you would take inventory of, correct?
A. Not at the moment. Your main concern is for the people.
Q. Okay.
A. The human threat that may be there. Once the room is cleared, once everybody is secured and you know where everybody is, then you methodically start your search. If you saw an item in plain view, you take note of it, let everybody know, and then —
Q. Well, you may take note of a firearm, but you may actually secure it at that time so somebody couldn't jump out of a closet and grab it or something, right?
A. It depends where it is.
Q. Okay. Do you know where this — when you saw the firearm for the first time, was it already in another law enforcement officer's possession?
A. No, it was in the same room, same area.
Q. Okay. So you actually saw it in the living room?
A. It was in the living room.
Q. Did you see where it was located within the living room?
A. I'm sorry?
Q. Did you see where the firearm was located within the living room?
A. when I saw it, it was in the living room on the table.
Q. Okay. So you saw it on a living room table?
A. Yes.
Q. But you don't know if somebody had taken it from another place and put it on the table?
A. No. That I don't know.
Q. Meaning, it could have been law enforcement who was sweeping the house?
A. It could have been. I'm not ruling that out.
Q. So, but you do recall that Mr. Lawson then was Mirandized by one of the task force officers, correct?
A. Yes, sir.
Q. And at that time, Agent Vezio was there as well?
A. Yes, sir.
Q. Do you have a — well, maybe one of the other agents. Do you personally have a copy of the Miranda warnings that were read to Mr. Lawson?
A. I have a copy on me.
Q. Could you —
A. Not what I —
Q. I'm sorry?
A. I have a copy on me. We always keep one on us.
Q. All right. I'm talking about the actual one that was read to Mr. Lawson, where he signed or was —
A. The actual one, I don't know, you know, who has that, or if one — there was — you know, we have cards that we said that there were drugs in his pants, there weren't drugs in his pants?
A. That is correct.
Q. Is it possible that Mr. Lawson said words to the effect, "If I got anything, it would be in my clothes, in my pants"?
A. No.
Q. So based on your two-and-a-half-year-old memory, he said definitively that there were drugs in his pants, and not that, "well, if I've got anything, it would be in my pants"?
A. No, it is in the pants.
Q. Now, as it related to the search of the home, obviously, pursuant to the search warrant, law enforcement had the authority to subject the full home to a search, correct?
A. Correct.
Q. And to look in any item that they wanted to look in while they were searching for contraband, correct?
A. Correct.
Q. And, in fact, they had a canine unit, a drug dog that was there during the search as well; do you recall that?
A. I don't recall that. There may have been a drug dog, but I don't recall that.
Q. Okay. But as it related to the drugs in a porcelain container on a microwave, you indicated that Mr. Lawson directed or indicated that there was something in the container? Or you said something about the bag —
A. Correct.
Q. — in your direct examination. What was it specifically that you recalled again?
A. He pointed out that above the microwave was a porcelain jar, maybe cereal jar, which contained narcotics. And he said, "In the bag." And in the bag, there was like a cereal bag or whatever, and in that was some rounds to the weapon.
Q. Okay. So was the bag in the porcelain container?
A. No, two separate bags, two separate. container; bag.
Q. Okay. What was in the porcelain container?
A. Narcotics, crack cocaine.
Q. Okay. So you indicated that — in the report, and again, you read the report, it just says he directed agents to a porcelain container?
A. Correct.
Q. Now, the "directed," was that verbally or looking at or pointing his head?
A. Over in the container, over there by the microwave.
Q. He said, "Open the container," he used the words "Open the container"?
A. "Over in the container, over by the microwave."
Q. "Over the container, over by the microwave"?
A. Yes.
Q. So were the items found over the container?
A. No, in the container.
Q. Okay. And then the bag, and the croutons bag, was that located near the microwave and the container as well?
A. It was on the kitchen counter, over on the side of the cabinets, to the left of the microwave. Now, was it exactly to the left, on the other side of the sink, it was in the kitchen.
Q. okay. And in there was a box of ammunition in the croutons bag?
A. There was ammunition in there, yes.
MR. BRYAN: One moment, Your Honor. (Pause.)
BY MR. BRYAN:
Q. Now, you indicated that you later located currency?
A. That's correct.
Q. And this was when Mr. Lawson was in your custody?
A. That's correct.
Q. And where specifically from Mr. Lawson did you find that currency?
A. It was in the jacket pocket, I believe, of his winter coat.
Q. Was this a winter jacket?
A. I consider it a winter coat.
Q. So when Mr. Lawson left that day with you, by that time, had he put those same pants on that were laying over the chair?
A. Felt pants, yes.
Q. The felt pants were placed on him, then he put a shirt on as well?
A. I believe he had a shirt on, and we also got him a jacket.
Q. And you give gave him that winter jacket. And those are the only things that left the house with Mr. Lawson that day, correct?
A. I believe so.
MR. BRYAN: Okay. Nothing further, Your Honor.
Q. Is there any doubt in your mind that he said that he had drugs in his pants or his jacket?
A. Nope.
Q. Is there any doubt in your mind that the defendant directed the agents to the container, which contained the crack cocaine in the kitchen on the microwave?
A. No, ma'am.
MS. BARR: Thank you, no further questions.
MR. BRYAN: Nothing further.
THE COURT: Okay. Thank you, you are excused.
MS. BARR: Call special Agent Frank vezio.
SPECIAL AGENT FRANK VEZIO, of lawful age, a witness called by the Government, being first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION OF SPECIAL AGENT FRANCESCO VEZIO BY MS. BARR:
Q. Would you please tell the members of the jury your name, sir?
A. Yes, my name is Francesco Vezio.
Q. How are you employed, sir?
A. United States Drug Enforcement Administration, I am a special agent.
Q. And how long have you been a special agent with DEA?
A. Eleven and a half years.
Q. Were you present at a residence on Needham Street in East Liverpool, Ohio, on January 18th, 2008, for the purpose of serving a federal search warrant?
A. Yes, I was.
Q. I am going to show you what has been marked as Government's Exhibit 1. Can you identify that photograph?
A. Yes.
Q. And what is it?
A. That is the residence where the federal search warrant was executed, 208 Needham Street, East Liverpool, Ohio.
Q. And when you first arrived at the residence, did you have any particular assignment?
A. Yes. I was assigned perimeter security of the rear.
Q. When you say "perimeter security," what's the purpose, as a DEA agent, of perimeter security in executing a search warrant?
A. As the entry team is entering through the primary entrance point, which would be the front door of this residence, in case any residents would escape through the rear, we would be there to apprehend whoever would be fleeing.
Q. And once entry was made, what did you do in this case?
A. Then I came around front and began to assist in the search.
Q. When you entered into the residence, was the defendant present?
A. Yes, he was.
Q. And is this morning, afternoon, evening, just so we know?
A. It was mid-morning.
Q. And did you have any responsibilities with regard to the search, any particularized area of the home?
A. Yes, I did. I was responsible for the kitchen area. Actually, that's where I walked into the kitchen, and that's where I remained.
Q. And where did you encounter the defendant, in what room?
A. In the kitchen. He was handcuffed behind his back, shirtless.
Q. Did you hear or engage in any verbal exchange with the defendant?
A. No, I did not.
Q. And were you directed at any point in time to a certain location in the kitchen to look for drugs?
A. Yes, I was.
Q. And how did that occur?
A. The defendant directed me to the area of on top of the microwave.
Q. And how did he direct you?
A. It was kind of like a nonchalant, like, you know, point with the nod. (Indicating.)
Q. was there a question that preceded it?
A. Yes.
Q. Okay. And just generally, what was the question?
A. He was asked if there were any weapons or drugs in the home.
Q. And he used his head to —
A. Yeah, kind of a, you know, like this. (Indicating.)
Q. And you knew the area that he was directing you towards?
A. Yes. It was to his left. It was a microwave on top of a stand.
Q. I show you what's been marked as Government's Exhibit Number 2. Can you identify that?
A. Yes. That is the microwave that I was referring to.
Q. okay. And when — did you look in those articles that are on top of the microwave for any drugs?
A. I did. I looked into specifically this porcelain, I guess that would be maybe a cookie jar, if you will.
Q. All right. Can you point to it using your finger? I think you can actually draw on that screen.
A. Sure. whoop, wait a minute. It's behind this black pepper thing. It is blue with a red stripe and little polka dots on the side. I guess it's not going with my finger here. (Indicating.)
Q. And when you looked in it, did you find anything?
A. Yes.
Q. okay.
A. I found what was later to be determined as crack cocaine. It was three individual plastic, knotted plastic bags that was contained inside there.
Q. I am going to show you what's been previously marked as Government's Exhibit Number 3. Can you identify that?
A. Yes. That's what I was referring to earlier, the porcelain jar there.
Q. And you can see something in the opening of that jar. Can you tell us what that was?
A. It was some clear plastic baggies knotted.
Q. And when you say "knotted," based on your training and experience as a DEA agent, how is crack cocaine sometimes packaged?
A. It is packaged in a clear plastic sandwich baggy, knotted at the top with the cocaine, crack cocaine at the corner of the plastic baggy.
Q. I am going to show you what's been previously as Government's Exhibit 4, and ask if you can identify that?
A. Yes. That is the item that I found inside the porcelain jar.
Q. Now, that's being suspended or lifted out of the container itself?
A. Yes, it is.
Q. And again, Government's Exhibit Number 5, I am going to ask you if you can identify this exhibit?
A. Yes. when I take them out and lay them on the table there, that's how they were packaged, individually.
Q. Now, did you look for anything else in the kitchen area of the home of a contraband nature?
A. Yes.
Q. Okay. What?
A. As we pulled this item out of the cookie jar, he also — the defendant indicated to a croutons bag that was just slightly above where the microwave stand was, and I retrieved the crouton bag and looked inside of it, and it was a box of .380 caliber semiautomatic weapon ammunition.
Q. I am going to put Government's 2 back. The crouton bag, is it seen in that photograph?
A. It was slightly above it.
Q. So it wasn't actually sitting on the microwave itself?
A. No.
Q. I am going to show you what's been marked as Government's Exhibit 7 and ask if you can identify that?
A. Yes. That is the croutons bag, plastic bag.
Q. And you actually seized that bag on that occasion, correct?
A. I did, I found it.
Q. And then Government's Exhibit 8?
A. And that is a photograph of the .380 automatic caliber ammunition that was contained inside the croutons bag.
Q. And were there actually croutons in the bag?
A. Yes, there was, there was some in the bottom.
Q. And now again, Government's Exhibit Number 9?
A. That is the overall photograph of the .380 caliber semiautomatic rounds, with a few that were missing.
Q. And were you familiar with a weapon that was found in the home that morning?
A. I was familiar that there was a weapon found. It was a .380 automatic pistol.
Q. And so based on this being .380 ammunition, this would have been ammunition that could have been used in the weapon that was discovered?
A. Yes, that's correct.
MS. BARR: All right. Thank you. No further questions.
THE WITNESS: You're welcome.
CROSS-EXAMINATION OF SPECIAL AGENT FRANCESCO VEZIO
BY MR. BRYAN:
Q. Special Agent Vezio, this occurred on January 18, 2008, correct?
A. That is correct, sir.
Q. And that's approximately two and a half years ago?
A. Yes.
the right.
Q. All right. So you came around the front and you came in through the front door?
A. Yes.
Q. And then you walked around to the kitchen?
A. That's correct.
Q. Do you recall officers there interviewing Mr. Lawson at that time?
A. There was Frank Drew, the U.S. Special Agent, Group Supervisor, and Task Force Officer Michael Warfield, that I recall, that were in the kitchen.
Q. Okay. Do you recall seeing Mr. Lawson Mirandized or anything like that, or did you come in after that?
A. I came in after that.
Q. Okay. So you didn't observe Mr. Lawson being questioned about the firearm or anything like that?
A. No, I do not.
Q. Did you see a firearm when you came in?
A. No.
Q. You don't — did you ever see a firearm?
A. I saw it after in the evidence that was taken from inside the residence back to where it was secured.
Q. Okay. Now, did Mr. — did another agent ask Mr. Lawson questions before you indicated that he directed you to the porcelain container? Do you recall questioning taking place at that time?
A. No, I don't. I don't recall that, no.
Q. Okay. Do you recall specifically anybody searching his pants that were hanging over a chair, or anything like that?
A. No.
Q. Okay. But what you do recall was him leaning towards the porcelain container, or doing sort of a head bob towards it?
A. Exactly, yes.
Q. But he didn't verbally say, "There is something in the porcelain container"?
A. Yes, he directed me through his —
Q. Body?
A. — body language, through his head.
Q. And that would have been the area that was on top of the entire microwave, correct?
A. Yes.
Q. And you eventually looked in the porcelain container and found crack cocaine, correct?
A. That's correct.
Q. And you said there was another head bob that pointed you in the direction of the croutons bag?
A. Yes.
Q. And this is the kitchen, so there's lots of things in the kitchen, correct?
A. Yes.
Q. Lots of containers?
A. There was a lot of items of there of perishable and non-perishable items in the kitchen area there.
Q. Now, you said, in your direct examination testimony, he indicated to a crouton bag? The word you used was "indicated." was this again another head gesture?
A. when he indicated, I immediately looked to the area that he was nodding to, and there was a bag that was open.
I took it, looked inside of it, and said, "Oh, look what we have here."
Q. So when you looked in there, that's when you saw the ammunition in there?
A. Yes, that's correct.
Q. Okay.
MR. BRYAN: Nothing further at this time, Your Honor.
REDIRECT EXAMINATION OF SPECIAL AGENT FRANCESCO VEZIO BY MS. BARR:
Q. Agent Vezio, how would Agent Kochanowski, in order to write the report of all the events that occurred that day, how would he have gotten the information relative to the crack cocaine found in the porcelain container, the crouton bag, the ammunition, that type of thing?
A. From me, the individual that actually found the items of evidence, we would relay it to Agent Kochanowski, and he would do the report.
Q. And that would be something at the time that, the day, January 18th, you would relay that to him; would that be correct?
A. Yeah, instantaneously, when we found it, we would alert him to what we found.
Q. Would you recount how you found it or what occurred surrounding the time you found it?
A. Yes.
Q. And would that have included anything that the defendant said or did at that particular time?
A. Yes.
Q. Okay. And so Agent Kochanowski would have been taking notes so that he could write a report relative to what occurred that day?
A. Yeah, that's correct.
Q. And is that standard DEA procedure, to write one report for all of the events of the day involving multiple agents?
A. That is correct, that is standard procedure.
Q. Or did that just happen in this case and not any other DEA case?
A. It is standard procedure.
Q. Now, we've talked about the fact that this was in January of 2008. Is there any doubt in your mind that the defendant directed you to the container in which you found the crack cocaine?
A. Absolutely not.
Q. Is there any doubt in your mind that the defendant directed you to the area above the microwave where you found the crouton bag and the ammunition?
A. Absolutely not.
MS. BARR: Thank you. No further questions.
THE COURT: Do you have more?
MR. BRYAN: Just a couple questions, Your Honor.
RECROSS-EXAMINATION OF SPECIAL AGENT FRANCESCO VEZIO
BY MR. BRYAN:
Q. You indicated that you were conveying what you were discovering as it was happening?
A. A few seconds, minutes after. You know, it wasn't like — I don't have a time frame for you, but —
THE COURT: Thank you. You are excused.
THE WITNESS: Thank you, Your Honor.
MS. BARR: I call Officer Greg Coleman.
OFFICER GREG COLEMAN, of lawful age, a witness called by the Government, being first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION OF OFFICER GREG COLEMAN
BY MS. BARR:
Q. Would you tell the members of the jury your name, sir?
A. Greg Coleman.
Q. And what is your profession?
A. Police officer.
Q. How long have you been in law enforcement?
A. Twenty years.
Q. And during that time, did you work for a specific department or agency?
A. Yes.
Q. And what would that be?
A. Currently working with the Warren Police Department, Warren, Ohio.
Q. How long have you been a police officer in warren?
A. Seventeen years.
Q. All right. And at some point in time, did you become a task force officer with the Drug Enforcement Administration office here in Youngstown?
A. Yes, I did.
Q. And when would that have been?
A. That was in 2005.
Q. And how long were you assigned to the DEA office here in Youngstown, as a Warren police officer?
A. Four years.
Q. And are you currently with the DEA?
A. No, I am not.
Q. And why not?
A. Warren City had a layoff of 20 personnel. All outside officers were brought back to patrol duties.
Q. On January 18th, 2008, however, did you participate in the execution of a federal search warrant at a residence on Needham Street in East Liverpool, Ohio?
A. Yes, I did.
Q. And did you have any particular assignment that day relative to the search of the home?
A. I was in charge of photographs and a search team.
Q. And did you, in fact, take photographs of the home?
A. Yes, I did.
Q. And would those have been photographs of evidence, where it was found, drugs, where they were found, things of that nature?
A. Correct.
Q. Okay. Did you yourself search a particular area or room of the home?
A. I was in the upstairs master bedroom.
Q. Okay. And did you search that location on that day?
A. Yes, I did.
Q. What, if anything, did you find relative to this investigation?
A. In the drop ceiling of the master bedroom, I lifted a tile, and at that point I could see drugs and currency laying on the tile. We got the photographs and then recovered the items.
Q. okay. I am going to show you what's been marked as Government's Exhibit G-12. Can you identify that photograph?
A. Yes. That's the ceiling tile in the master bedroom.
Q. And how did you know to go to someplace like a ceiling tile to look for drugs or money or contraband?
A. In my experience with the narcotics unit and the DEA, I have often found drugs in non-conspicuous places, such as ceiling tiles. It's an easy place to tuck it in a hurry.
Q. And are those your hands, or are you taking the photograph?
A. I am taking the photo.
Q. I show you what's been marked as Government's Exhibit 13. Can you identify that photograph?
A. Those are the items that I recovered from the ceiling tile.
Q. And specifically, what were those items?
A. A large sum of money and a plastic baggy that contained crack cocaine.
Q. Do you remember how much money was recovered that day?
A. Not that day, no.
Q. Okay. And again, Government's Exhibit 14?
A. That was the money after it was placed in the box. You could photograph it better to see the total amount.
Q. Was it found in the box?
A. No, it wasn't.
Q. That's just a box that's used to collect the money?
A. We put it in the box, though, because it was loose.
A. The dog was not in the house, but the handler was.
Q. Okay. Now, did you have any observation of Mr. Lawson when you came into the home?
A. Just in the kitchen area.
Q. So you just saw him in the kitchen area as you went up the stairs?
A. Yes.
Q. Okay. So you weren't — you didn't participate in anything as it related to Mr. Lawson?
A. I never spoke to him.
MR. BRYAN: Nothing further, Your Honor.
THE COURT: Thank you. You are excused.
THE WITNESS: Thank you. A start excerpt
MS. BARR: We would call Agent Erik Kochanowski.
SPECIAL AGENT ERIK KOCHANOWSKI, of lawful age, a witness called by the Government, being first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION OF SPECIAL AGENT ERIK KOCHANOWSKI
BY MS. BARR:
Q. Please tell the members of the jury your name, sir.
A. Erik Kochanowski, K-o-c-h-a-n-o-w-s-k-i.
Q. And what is your profession, sir?
A. I am a special agent with the U.S. Department of Justice, Drug Enforcement Administration.
Q. And how long have you been a special agent with DEA?
A. Approximately 14 years.
Q. How many?
A. Fourteen years.
Q. Were you present on January 18th, 2008, at a residence on Needham Street in East Liverpool, Ohio?
A. Yes, I Was.
Q. And was that for the purpose of executing a federal search warrant?
A. Yes.
Q. And how do you obtain a federal search warrant?
A. You have to draft an affidavit of probable cause, get it reviewed by the U.S. Attorney's Office, and then present it to a judge for approval.
Q. And did you, in fact, do that?
A. Yes, I did.
Q. And were you granted authorization to search that residence on that day?
A. Yes.
Q. Do you recall approximately what time DEA was at the residence on Needham Street?
A. I believe it was approximately a quarter to ten in the morning.
Q. And you were looking for drugs, contraband, things of that nature, it was a drug investigation; is that correct?
A. Yes.
Q. Did you have any particular assignment that day?
A. Being the affiant and one of the case agents, I did a little bit of everything. When evidence was found, individuals would let me know. If statements were made, they would let me know. I spent some time in the kitchen assisting with the processing of evidence and with Mr. Lawson.
Q. Let me just stop you. Prior to actually even going inside the residence, did you have any particular assignment?
A. Yes. I was the first person on the entry team.
Q. Okay. And when you say "the entry team," that's the individuals, the agents who are responsible for actually making entry into the home and doing the initial securing of the home so that everyone inside the home is safe and you're safe?
A. That's correct.
Q. Okay. And is it standard police procedure and the law to knock and tell the people inside the home that you're there as police with a search warrant?
A. Yes.
Q. Okay. Did you do that in this case?
A. Yes, we did. And while we were knocking, we were informed by perimeter units that there was movement within the house, people continually looking out the window, but no one was coming to the front door to let us in.
Q. So you're knocking, saying, "Police, we have a search warrant," but no one is opening it up?
A. That's correct. And we had two East Liverpool Police Department marked units parked on the street in plain view to support us knocking on the door saying we were the police.
Q. I show you what's been previously marked as Government's Exhibit Number 1. can you identify that?
A. Yes. That's 208 Needham, East Liverpool, Ohio.
Q. And when you were knocking on the door and attempting to make entry to the residence or gain entry to the residence, what door were you using?
A. The front door, the door that you see right there next to the play — the play equipment, the kids' equipment.
Q. Now, at some point in time, did you decide that you needed to get into that residence and that you weren't going to get the door opened up for you?
A. Yes. You know, based on the individuals looking out the upstairs windows and not coming to the door, we made the decision to make entry so that we wouldn't give any individuals additional time to secure weapons or destroy evidence. And so we made — we breached the door and secured the residence.
Q. And is that a safety concern, if people know you are there and know you are police, but they are not opening the door?
A. Yes, it is.
Q. And so you made entry into the residence. What, if anything, did you observe?
A. We secured the first floor and then worked our way over to the steps. As I approached the steps, I observed Mr. Lawson and Keira Abercrombie at the top of the steps. We gave them commands, secured them, and then continued to secure the rest of the residence. There was no one else present at the time of the search warrant.
Q. So the defendant and a female were up at the top of the stairs, on the second floor?
A. That's correct.
Q. Okay. And you had them come down the stairs, correct?
A. That's correct.
Q. And what did you do at that point in time?
A. Well, we finished securing the residence, notified the perimeter team that the residence was secure, and then brought everyone in. we had to set up an evidence processing area in the kitchen. And we started having agents — giving agents assignments, bring the canine in to do a canine search, and processing the residence.
Q. When you said initially you secured the residence, are you searching at that point in time?
A. No. We are strictly looking for individuals at that time, looking under the bed, in the closets, you know, in all the rooms to make sure that there is no one hiding that could secure a weapon and cause harm to anyone in the residence.
Once it is secure, then we get with the individuals in the residence, make sure they don't have any weapons on them, make sure there are no weapons on or around any of the furniture that we are going to place them on, and then bring the rest of the team in to start an orderly search of the residence.
Q. Now, you said you directed the defendant and the female down the stairs and then you secured the defendant. How was he dressed at that time?
A. Very little clothing. And we allowed him to put some — we got some pants for him and allowed Keira to get clothed.
Q. Did you direct him to any particular room of the home to begin the search process? Where were you going to keep the defendant while you were searching?
A. we kept him downstairs in the kitchen.
Q. And when you said that the defendant had very little clothing on and you allowed him to get clothing, where did that clothing come from?
A. I believe the clothing that he put on was from upstairs.
Q. Now, did you, at that point in time, have any particular assignment?
A. At that point, I was getting everyone organized, getting the search warrant kit into the residence, so that we could document all the items that we seized, and making sure that the canine officer came in so that everything could be done orderly.
I was in the kitchen. I assigned individuals to read Miranda to both individuals in the house, and then begin processing the scene.
Q. Did the defendant remain in the kitchen?
A. Yes.
Q. And were you present when his Miranda rights were read to him by agents?
A. Yes, I was.
Q. All right. And do you recall who read those rights to him?
A. Yes, I do.
Q. Who was that?
A. TFO Mike Warfield, and standing next to him was GS, group supervisor, Frank Drew.
Q. Were you present when any questions were asked of the defendant?
A. I was present. I overheard some conversation. I didn't hear all conversation that they had with him.
Q. Tell us what, if anything, you heard at that point.
A. I heard some discussion about any narcotics in the house. He indicated that he might have something in his pants or in his shirt in the kitchen. There were some agents that searched those, with negative results.
When the officers found the crack cocaine upstairs, they brought it down. I had a personal conversation with Mr. Lawson, and I asked him if we would find his fingerprints on the plastic bags or on the narcotics, and he indicated that we might find his fingerprints on those narcotics.
Q. And what was his demeanor when you asked him that question?
A. He was very relaxed, nonchalant. He was very personable to talk to, a gentleman even.
Q. Now, you said the defendant had to get some pants on. Were those separate and apart from the pants that he directed agents to look in for drugs?
A. Yes.
Q. And where were the pants that he was directing agents to look into?
A. In the kitchen area.
Q. Now, let's go back over that a little bit. You, at some point in time then, went into the upstairs of the residence?
A. Yes.
Q. And is that where the master bedroom was located?
A. Yes.
I made sure that the officers brought the evidence to the inventory officer, who was stationed in the kitchen. The inventory officer logged the evidence into inventory so that we could return the inventory to the judge at a later date.
Q. And then you physically took possession of the suspected crack cocaine found in the ceiling?
A. Yes, I did.
Q. And tell us what you did with it at that point.
A. I transferred custody to the inventory officer, and I had discussed the crack cocaine with Mr. Lawson, as stated previously, and asked him —
Q. Did —
A. I'm sorry.
Q. Go ahead.
A. — and asked him if his fingerprints were going to be on the plastic bags.
Q. Did you actually show him the crack cocaine that was found in the ceiling, or did you just talk to him about it?
A. I physically showed it to him.
Q. And his response was?
A. That he might have his fingerprints on this, on the bags.
Q. Now, you would have had occasion, as the case agent, at some point in time to have an accounting of the money that was discovered that day; is that correct?
A. That's correct.
Q. All right. And did you do that?
A. Yes, I did.
Q. All right. I am going to show you what's been previously marked as Government's Exhibit 14. what is that?
A. That was the money seized from above the ceiling tile in the bedroom upstairs. The total was approximately $6,926 U.S. currency.
Q. At some point in time did any other additional currency come into your possession as the case agent?
A. Yes, an additional $1,090, I believe was the total.
Q. And as the case agent, did you actually seize the money, drugs, ammunition and things that were found in the residence that day?
A. Yes. I took possession of everything.
MS. BARR: May I approach, Your Honor?
THE COURT: Yes, you may.
BY MS. BARR:
Q. I am going to show you what's been previously marked as Government's Exhibit Number 6, and ask if you can identify that exhibit?
A. Yes, I can.
Q. And what is it?
A. That is the plastic baggies that contained the crack cocaine that was seized from the kitchen of the residence.
Q. And now Government's Exhibit 15?
A. Is the crack cocaine that was seized from above the ceiling tile in the bedroom.
Q. Now, when you, as a DEA agent, seize suspected drugs or narcotics from anywhere, a residence or person, anywhere, what do you do with it?
A. We process it into evidence, we seal it, we mark the bags identifying where the evidence was found, give them exhibit numbers and then log them into evidence. we then
Q. And when you say you take the drugs back to the DEA office to weigh, do you actually physically take them out of whatever they were found in?
A. No. We take a gross weight of the exhibit contained within our evidence bag, and then the chemist will actually document the weight of the narcotics themselves.
Q. When you use the term "gross weight," you mean that you are weighing the drugs with the bag and packaging material?
A. with everything, everything here.
Q. Now, Government's Exhibit Number 15, the larger amount to your right.
A. Yes.
Q. Does that appear today as it was found in the ceiling of the residence on January 18, 2008?
A. The texture is different. The color is very much the same.
Q. When you say "the texture is different," what is different about it today as opposed to January of 2008 when it was discovered?
A. When crack is cooked, it is hardened. In 2008, it was chunky, very big chunks of a rock-like substance. When the chemist processes it, they pulverize it so that they get a consistent test across the whole exhibit. So they're not just taking one little corner, they are pulverizing it and then sampling that.
Q. So when it was originally found on January 18th, it was a bigger chunk of crack cocaine; is that correct?
A. That's correct. That's correct.
Q. Now, the bags that were found in the kitchen, the smaller exhibit, Government's Exhibit Number 6.
A. Yes.
Q. How many separate bags were there located?
A. There were three bags containing the crack cocaine, and then they were contained in a fourth bag.
Q. All right.
A. But there were three bags of crack.
Q. Were the bags of suspected crack cocaine sent for fingerprint analysis?
A. Yes, they were.
Q. were all of them sent?
A. No. The exhibit above the ceiling was not — fingerprint analysis was not requested.
Q. And that's the larger exhibit, Government's Exhibit 15?
A. That's correct.
Q. Why didn't you send Government's Exhibit 15, the larger amount of crack cocaine, for fingerprint analysis?
A. Based on Mr. Lawson's statement that his fingerprints could be on there, we did not feel the need to request fingerprints.
Q. All right. And did you receive an analysis back regarding the three bags found in the kitchen?
A. Yes, we did.
Q. And what was the determination?
A. There were no fingerprints or usable fingerprints on those bags.
Q. So there was no identifiable print found on the baggies; is that correct?
A. That's correct.
Q. And have you ever — has that ever happened in the past, where you send baggies to be printed to see if there are any fingerprints on them and no identifiable prints are found?
A. Yes. Very seldom do we get fingerprints off of baggies, because the baggies are crumbled and don't have flat sides, and so you don't get a complete fingerprint. And very seldom do we get a usable fingerprint from plastic baggies.
Q. Now, Agent Kochanowski, you have been a DEA agent for how long?
A. Approximately 14 years.
Q. All right. And can you tell the members of the jury a little bit about the training that goes into becoming a DEA agent?
A. Yes. We spend approximately four months at Quantico. The DEA academy is co-located with the FBI in Quantico, Virginia. we get hours and hours of training on drugs, the effects of drugs, investigative techniques, surveillance, how drugs are processed, and then what to expect when we are executing search warrants and apprehending targets of investigations.
Q. And is that it, once you become a DEA agent, you never have to have any more training the rest of your career?
A. No. A couple years after your initial training, you get advanced agent training. And then we have additional classes throughout your career that go into more depth and more specialized training, whether it be indoor marijuana growers or search warrants or financial investigations or informants, the cocaine is routinely packaged in small plastic bags for distribution on the street.
Q. Now, the crack cocaine that was found in the ceiling, that was found in one big bag; is that correct?
A. That's correct.
Q. And based on your training and experience, are you familiar with the amount of crack cocaine found in the baggy, which is Government's Exhibit Number 15, whether or not that would be for personal use or whether that would be used by an individual or individuals to traffic?
A. Yes.
MR. BRYAN: Objection.
THE COURT: Overruled.
THE WITNESS: Yes. That quantity is consistent with individuals that are trafficking. That would be broken down into smaller amounts and sold in multi-ounce or ounce quantities, or even smaller, into gram baggies, which are consistent with what we found downstairs in the kitchen.
BY MS. BARR:
Q. Going back now to Government's Exhibit G-5, the three smaller bags of crack cocaine. Based on your training and experience in the investigations that you've conducted here in the Northern District of Ohio, do you have an opinion as to the value of the crack cocaine in front of you, each of those bags?
A. Crack cocaine, at the time period of this investigation, was selling for approximately $1,200 an ounce. That was slightly more than a half ounce. And so based on it being broken down, the value starts to increase. And so you'd probably be around 800 or $900 for that, if you sold them each one individually.
Q. All right.
A. They are approximately 5 grams, a little bit over 5 grams, each baggy.
Q. Now, Government's Exhibit 15, the larger amount of crack cocaine, do you have an opinion as to the value of that larger amount?
A. Yeah. That's approximately 10 ounces, at $1,200 an ounce. That would sell for anywhere between 10- and $12,000 for the cocaine in that bag.
Q. Typically, in that area, would a person sell that large amount, or break it down into smaller quantities like we see here in Government's Exhibit 5?
A. No, they would purchase the larger amount and then break it down to increase their profits.
Q. Based on your training and experience and the number of drug investigations you've done, as well as the search warrants that you've conducted, aside from this case, have you ever, prior to this time in 2008, discovered drugs or drug money in a ceiling?
A. Yes.
Q. And approximately on how many occasions?
A. On numerous occasions I've found narcotics in the ceiling, hidden in false walls, false pipes, in places that are within easy reach, but out of plain sight.
Q. Unusual to find crack cocaine, for instance, in a kitchen?
A. No.
Q. I am going to show you what's been previously marked as Government's Exhibit Number 10, and ask if you can identify that?
MS. BARR: May I approach?
THE COURT: You may.
BY MS. BARR:
Q. Can you identify that?
A. Yes, I can.
Q. What is it?
A. That is the .380 ammunition that was found in the crouton bag in the kitchen at 208 Needham, East Liverpool, Ohio.
MS. BARR: May I approach?
BY MS. BARR:
Q. I show you what's been marked as Government's Exhibit 16, and ask if you can identify that?
A. Yes, I can.
Q. And what —
A. That's a Jennings .380 semi-auto pistol, with a magazine that was found at 208 Needham, East Liverpool, Ohio.
Q. And the .380 ammunition, would it fit that firearm?
A. Yes, it would.
Q. Have you encountered weapons in residences where suspected drugs are found?
A. Yes.
Q. And what was the purpose of a weapon, based on your training and experience, in a residence?
Q. Okay. But right now, there's only one bag that it's in?
A. There's another bag in there, but the chemist may have put that in there to show the sample that they used. I would have to look at the submission sheet to tell you exactly what was submitted.
Q. We'll get to this, but as it relates to the stuff recovered from the porcelain container, that was specifically in three separately packaged bags, correct?
A. That's correct.
Q. And we already saw the exhibit, the picture of the exhibit, and the three separate bags were lying there, correct?
A. Correct.
Q. And that's how they were at the time they were pulled out of the porcelain container, correct?
A. Correct.
Q. And you indicated that each one of those bags would have been just a little bit over 5 grams, correct?
A. Approximately.
Q. And that people may actually buy just over 5 grams by themselves, correct?
A. Correct.
Q. To maybe redistribute it in smaller amounts to other individuals, correct?
A. Correct.
Q. The 5 gram bag amount, does that have a nickname? That's more than a quarter ounce, correct?
A. Yes.
Q. It's less than a half an ounce, correct?
A. Correct.
Q. How do you refer to that in the street?
A. I don't know what it was being referred to as. Often when we buy a quarter ounce, it will be short, because if they can short someone that is buying the narcotics, then they make more money. So a little bit over 5 grams, he could be selling it as a quarter ounce. He could be selling it as 5 grams.
Q. Okay. But a quarter ounce would be 4 grams, correct?
A. Well, a quarter ounce, an ounce is 28 grams, so it's 7 grams.
Q. Seven grams, I am sorry.
A. Yes.
Q. So this is way short of a quarter ounce, 2 grams short of a quarter ounce?
A. I think the total weight was 16 grams, so 16 divided by 3 is a little bit over 5.
Q. Right. But each 5 gram package was way less than —
A. Was short.
Q. — was way short of a quarter ounce?
A. Yes.
Q. Now, but the bag, the larger bag taken from the bedroom ceiling, you don't have any memory today whether that was broken into different bags of crack cocaine?
A. I do not.
Q. Does your memory indicate to you that it was all pretty much together, that it had not yet been broken down?
A. It was chunky. There might have been multiple chunks within it, but it was big chunks.
Q. What you have before us, it's in pulverized form, correct?
A. That's correct.
Q. What was separate chunks, different, maybe golf ball size rocks up to maybe Softball size rocks or half of softballs has been pulverized into basically powder, correct?
A. Correct.
Q. Okay. But what you saw were how many different rocks, multiple?
A. I can't tell you. It was a chunky, rock-like substance.
Q. But it did not yet appear to be broken down into smaller unit dosages for sale?
A. No, it did not.
Q. Okay. It looked like maybe, since it was 10 ounces, that maybe was just bought as 10 ounces?
A. Possibly.
Q. Okay. But as far as breaking it down for further distribution, that had not yet occurred?
A. Correct.
Q. Unless someone was just going to sell it as 10 ounces again?
A. Correct.
Q. Now, to be able to do that, based upon your experience, individuals who are selling these narcotics will use scales, correct?
A. Correct.
Q. They can use electronic scales or even handheld scales or even triple beam balances?
A. Correct.
Q. And what they're trying to measure is the gram amount, correct?
A. Correct.
Q. So as Mr. — excuse me.
The drugs were brought downstairs to Task Force Officer Wright. You asked Mr. Lawson if these were his drugs, and you said there was no response, he didn't answer?
A. Correct.
Q. Then the next thing you said, "well, will your fingerprints be on the baggies?"
And you wrote in your report, you testified that he said, "well, they might be," that was his response?
A. Correct.
Q. And there was no further response after that, correct?
A. Correct.
Q. Nor did you attempt to question him further beyond that?
A. We talked more. He didn't discuss the narcotics any further at that point.
Q. Well, I mean, there is nothing in your report concerning that, discussing — he wasn't questioned further concerning the narcotics at that time?
A. No.
Q. Other than asking if his fingerprints — he said his fingerprints might be, is the word you put?
A. Correct.
examined and testified as follows:
MS. BARR: United States calls Troy Walker.
DIRECT EXAMINATION OF DETECTIVE TROY WALKER
BY MS. BARR:
Q. Would you please tell the members of the jury your name, sir?
A. My name is Troy Walker.
Q. And how are you employed?
A. I am a detective with St. Clair Township Police. I am currently assigned with the Drug Enforcement Administration as a task force officer.
Q. And how long have you been a police officer?
A. Since 1991.
Q. And how long have you been a task force officer with DEA here in Youngstown?
A. Approximately two and a half years.
Q. And on January 18th, 2008, did you participate in the search of a residence on Needham Street in East Liverpool, Ohio?
A. Yes, I did.
Q. And was that in your capacity as a task force officer with DEA in Youngstown?
A. Yes, it was.
Q. And did you have any particular assignment that day?
A. That day I was assigned to search the living room area of the residence.
Q. And did you do that?
A. Yes, I did.
Q. I show you what's been previously marked as Government's Exhibit Number 11, and ask if you can identify that photograph?
A. Yes. That's the handgun that I recovered in the living room.
Q. All right. Can you tell us precisely where you recovered that firearm on?
A. It was in the living room next to the TV. It was a TV stand with a wooden shelf attached to it. The unit was a little bit rough in the shape of it. It wasn't brand new. And the gun was sitting right on top of it.
Q. Does Government's Exhibit Number 11 depict how that firearm was situated on the shelf or this table you are referring to?
A. Yes, it does.
MS. BARR: May I approach, Your Honor?
THE COURT: Yes, you may.
BY MS. BARR:
Q. I show you what's been previously marked as Government's Exhibit 16 and ask if you can identify that?
A. Yes.
Q. And what is that?
A. It's a Jennings firearm .380 semiautomatic, which is the weapon that I recovered out of the living room.
Q. And was it loaded or unloaded when you recovered it?
A. It was loaded.
MS. BARR: Thank you. I have no further questions.
CROSS-EXAMINATION OF DETECTIVE TROY WALKER
BY MR. BRYAN:
Q. Detective Walker, on January 18th, 2008, that would have been when you first pretty much began the task force, because you said you've been on the task force for about two and a half years?
A. Yes.
Q. Was this one of your first assignments with the task force, or had you had a few before this?
A. I had previous. I was with the county task force two years prior to that.
Q. Okay. So you were doing similar-type work, executing search warrants, things of that nature?
A. That's correct.
Q. Okay. On this particular occasion, you were assigned as part of the search team?
A. Yes.
Q. Were you also part of the team that swept the house to make sure that there were no other people in the house at the beginning of the search?
A. I was — my responsibility was to knock and announce, and then if nobody answered, I was to breach the door.
Q. You then must have been right next to Special Agent Kochanowski then as you went into the residence?
A. I'm actually the last person in. Once I breach the door, I step back, because I have no weapons or anything on me at that time. The entry team then makes entry, and then I come in, I am the last person in on the entry team.
Q. Okay. You didn't wait before you went in, though, you were just the last one to come in after the entry team?
A. Excuse me?
Q. You didn't wait for an all clear sign or anything like testified as follows:
DIRECT EXAMINATION OF PATRICK WRIGHT
BY MS. BARR:
Q. Would you please tell the members of the jury your name, sir?
A. Patrick Wright.
Q. And how are you employed?
A. I am a police officer for the City of East Liverpool, Ohio. I am assigned to the Drug Enforcement Administration, Youngstown, Ohio .
Q. And how long have you been a police officer in East Liverpool?
A. since July of 1997, so a little over 12 years.
Q. And how long have you been assigned to the DEA Task Force in Youngstown, Ohio?
A. Since August of 2006.
Q. And did you participate in the investigation of the defendant in this case?
A. Yes, I did.
Q. Did you ever conduct any surveillance of the residence on Needham Street in East Liverpool, Ohio, prior to the execution of the federal search warrant on January 18th, 2008?
A. Yes, I have.
Q. Can you describe what you might have done?
A. Yeah. Being a city police officer, I often drive through East Liverpool just checking known residences. And on numerous occasions, I observed the vehicle that Mr. Lawson drove to be at 208 Needham Street.