Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-19-2004
USA v. Katzin
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2407
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"USA v. Katzin" (2004). 2004 Decisions. Paper 818.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-2407
____________
UNITED STATES OF AMERICA,
v.
MARK LOUIS KATZIN, SR.,
Appellant
____________________
ON PETITION FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-cr-00456-4)
District Court Judge: Hon. Harvey Bartle, III
Submitted Under Third Circuit LAR 34.1(a)
March 30, 2004
Before: ALITO, ALDISERT, and BECKER Circuit Judges
(Opinion Filed: April 19, 2004)
______________________
OPINION OF THE COURT
______________________
PER CURIAM:
As we write only for the parties involved, we will not restate all of the facts. Mark
Louis Katzin, Sr. appeals the District Court’s judgment of conviction and sentence on
four grounds. Katzin argues that the District Court erred by: (i) holding that there was
sufficient evidence to support the jury’s verdict of guilty; (ii) qualifying the case agent,
Kenneth Bellis (“Agent Bellis”), as an expert and allowing him to present expert
testimony regarding how drug dealers operate, without providing the defense with an
expert report; (iii) allowing the government to present evidence of Katzin’s flight after his
arrest and pretrial release; and (iv) admitting into evidence items seized pursuant to
warrants obtained by the Pennsylvania Office of Attorney General. Katzin argues that the
District Court’s errors entitle him to a judgment of acquittal or a new trial. We find
Katzin’s claims to be without merit and therefore affirm.
I.
Katzin was convicted of conspiracy to distribute in excess of 500 grams of
methamphetamine, in violation of 21 U.S.C. § 846, and of using a communication facility
in furtherance of a drug offense, in violation of 21 U.S.C. § 843(b).
We apply a particularly deferential standard of review when deciding whether
a jury verdict rests on legally sufficient evidence. It is not for us to weigh the
evidence or to determine the credibility of the witnesses. Rather, we must
view the evidence in the light most favorable to the government, and will
sustain the verdict if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Thus, a claim of
insufficiency of the evidence places a very heavy burden on an appellant.
-2-
United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002) (internal quotations and
citations omitted).
For essentially the reasons stated in the District Court’s Memorandum Opinion of
April 30, 2002, at 5 - 8, we hold that the defendant’s convictions are supported by ample
evidence. On the conspiracy conviction, the defendant’s primary argument is that the
evidence showed no more than his participation in simple buyer-seller relationships, but
we do not agree and do not think that this case is analogous to United States v. Pressler,
256 F.3d 144 (3d Cir. 2001). Here, the defendant does not contest the existence of a
conspiracy but merely argues that the evidence was insufficient to establish that he joined
the conspiracy. Moreover, there was telling evidence that he did join. This proof
included evidence that the defendant’s relationship with co-conspirators continued for a
significant period of time, that the defendant was familiar with the coded language used
by the conspiracy, and that the defendant sold drugs on credit, thus giving him a stake in
the buyer’s operation.
There was also sufficient evidence to prove that the defendant used a telephone to
facilitate the conspiracy. The jury heard hours of conversations between the co-
conspirators, including Katzin. In these communications, the co-conspirators referred to
specific individuals, locations, and events concerning drug transactions, and used a
common code to do so. Many of these communications were by telephone, and they were
intercepted and recorded.
-3-
In attacking his conviction on the telephone count, the defendant notes that a key
transaction to which an agent testified was not captured on videotape. However, the
agent testified about the transaction, and it was for the jury to assess the agent’s
credibility and the weight that his testimony should be given. Under our standard of
review, there was more than enough evidence to prove the defendant’s guilt.
II.
Citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), Katzin
contends that the government should not have been permitted to offer expert testimony by
Agent Bellis because the government did not provide the defense with any “report”
prepared by Agent Bellis in advance of trial. We reject this argument.
The government’s principal discovery obligations regarding Agent Bellis’s expert
testimony are set out in FED. R. C RIM . P. 16(a)(1)(G), which requires that, at the
defendant’s request, the government shall disclose to the defendant “a written summary”
of expert testimony, providing “the witness’s opinions, the bases and reasons for those
opinions, and the witness’s qualifications.” Prior to trial, the defense was provided with,
among other pertinent documents, a 469 page affidavit in which Agent Bellis explained
how, based on his experience and training, he identified the calls with cryptic language,
codes, and drug jargon used by the co-conspirators, and provided his opinion regarding
the meaning of the calls. Supp. App. 856-1325.
The defendant next argues that Agent Bellis was not qualified as an expert.
-4-
However, Bellis’s qualifications were thoroughly explored during voir dire, and the
defense did not object to his certification as an expert. We have reviewed the record, and
we conclude that the District Court did not abuse its discretion in qualifying Agent Bellis
as an expert and permitting him to testify based on his expertise. We find no merit in
Katzin’s argument concerning coded drug jargon, because the subject matter of the
testimony only defined words outside their ordinary usage.
III.
Katzin argues that the District Court erred in allowing the government to present
evidence of other crimes without complying with the defense request for discovery.
Specifically, the government introduced evidence that, following Katzin’s pretrial release
and before the scheduled trial date, Katzin violated the conditions of pretrial release by
becoming a fugitive. He remained in a fugitive status until he was arrested by Deputy
United States Marshals while he was hiding in a closet in his residence. Because this
objection was not presented before the District Court, our review of the admission of
evidence of evidence of flight is for plain error. United States v. Boone, 279 F.3d 163,
174 n.6 (3d Cir. 2002).
We have consistently held that “evidence of a defendant’s flight after a crime has
been committed is admissible to prove the defendant’s consciousness of guilt.” United
States v. Punigitore, 910 F.2d 1084, 1151 (3d Cir. 1990); see also United States v. Green,
25 F.3d 206, 210 (3d Cir. 1994) (same). We hold such evidence admissible as
-5-
circumstantial evidence of guilt to be considered with the other facts of the case. United
States v. Miles, 468 F.2d 482, 489-90 (3d Cir. 1972). In fact, the District Court charged
the jury to consider the evidence only for proper purposes. Supp. App. 583 (“Whether or
not evidence of flight or concealment shows a consciousness of guilt, and the
significance, if any, to be attached to such a circumstance are matters for determination by
you, the jury.”). Evidence of flight is not considered inadmissible under F ED. R. E VID .
404(b). W e find no error here.
IV.
Katzin contends that agents of the Pennsylvania Office of Attorney General,
Bureau of Narcotics Investigation and Drug Control, had no authority under state law to
obtain the warrants which were issued by state officials. Katzin claims that absent a valid
request by a local district attorney, the Pennsylvania Office of Attorney General lacked
authority to apply for search warrants, and therefore, the evidence seized pursuant to
warrants should have been suppressed. Because this objection was not presented before
the District Court, our review of the admission of evidence obtained during the Attorney
General’s investigation and prosecution of Katzin is for plain error. Boone, 279 F.3d at
174 n. 6.
This Court does not exclude evidence seized pursuant to a state warrant provided
that the warrant was sufficient under federal law, regardless of the state law. See United
States v. Williams, 124 F.3d 411, 428 (3d Cir. 1997); United States v. Stiver, 9 F.3d 298,
-6-
300 (3d Cir. 1993). The requirements for a warrant to be properly issued under federal
law are that it must have been issued by a neutral and detached magistrate, and it must
have been based on probable cause. U.S. C ONST. amend. IV. Katzin does not dispute that
those requirements were met in this case. Therefore, we will affirm the District Court’s
admission of the evidence seized pursuant to the Attorney General’s search warrants.
V.
We find no merit in the defendant’s arguments, and we therefore affirm.