Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-27-2004
USA v. Garvin
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1693
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"USA v. Garvin" (2004). 2004 Decisions. Paper 971.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/971
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1693
________________
UNITED STATES OF AMERICA
v.
KYLE GARVIN,
Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 02-cr-00682-1)
District Judge: Honorable Michael M. Baylson
_______________________________________
Submitted February 26, 2004
Before: RENDELL, BARRY, and BECKER, Circuit Judges.
(Filed: February 27, 2004)
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
Kyle Garvin appeals from the judgment in a criminal case entered on a jury verdict
finding him guilty on four counts of an indictment charging possession of a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c); possession with intent to
distribute cocaine base, 21 U.S.C. §§ 841(a)(1)and (b)(1)(C); possession with intent to
distribute marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The District Court
imposed a sentence of 106 months imprisonment, a term of supervised release of five
years, a $500.00 fine, and a special assessment of $400.00. This timely appeal followed.
The facts and procedural history are well known to the parties and we will not rescribe
them here. Suffice it to say for present purposes that Garvin was arrested by Philadelphia
police officers at night following a chase on foot during which government witnesses
testified that he threw away certain evidence; Garvin denied having done so. When he
was apprehended, he possessed a large amount of cash in certain described
denominations.
Garvin presents two issues on appeal. First, he contends that the District Court
abused its discretion in allowing the prosecutor to use $623.00 in United States currency
as demonstrative evidence during closing argument when the currency was not the actual
currency taken from Garvin, no physical currency was introduced into evidence during
trial, and, in his submission, the prejudicial value substantially outweighed its probative
value in that it was misleading. Second, Garvin submits that the District Court abused its
discretion in admitting certain photographs into evidence where the prejudicial value
substantially outweighed the probative value in that the photographs were misleading as
they were taken during broad daylight and the incident occurred at night. We find no
merit in either argument.
2
During the trial, evidence was presented that $623.00 in United States currency, in
specifically identified denominations, was recovered from Garvin upon his arrest. During
closing arguments, the government used United States currency, in the exact
denominations recovered from Garvin, to demonstrate what that amount of United States
currency in those denominations looks like. Since the money was in the same
denominations recovered from Garvin, it gave the jury a fair approximation of the size of
the bundle of money that Garvin was carrying upon his arrest. 1 In using the
demonstrative aid, the government made it clear to the jury that although the money was
in the same denominations, it was not the exact money seized from Garvin.
It was within the District Court’s discretion to permit the use of demonstrative
exhibits during a summation to give the jury a better understanding. See, e.g., United
States v. De Peri, 778 F.2d 963, 979 (3d Cir. 1985), where we held that the District Court
did not abuse its discretion in permitting the prosecutor to use a chart during the opening
statement. There was no abuse of discretion here, and no prejudice to Garvin.
Neither did the District Court abuse its discretion in admitting as evidence
government photographs of the crime scene, foot chase area, and scene of Garvin’s arrest.
1
Garvin argues that
The same denominations and total dollar amount may look like a
significantly larger pile of money depending on how crumpled the money
was and how much use and/or abuse the cash had. As the government
never proved the volume of this cash, it was extremely prejudicial for the
government to be permitted to use this case for demonstration during
closing argument.
We are unpersuaded.
3
The photographs, although taken during the day when the crimes were committed at
night, fairly and accurately depicted the relevant scene. Moreover, counsel for the
defendant extensively cross-examined government witnesses regarding the differences
between the photos and way the crime scene actually appeared on the night of the crime
(e.g., that it was nighttime, not daytime). Additionally, on both direct and cross-
examination, detailed testimony was provided regarding the general conditions during the
surveillance, including the level of visibility, whether cars were moving back and forth on
the street, how far the surveillance officer was from Garvin at the time he observed him,
and the type and strength of binoculars used by the surveillance officer.
We have carefully considered Garvin’s argument that the photos were misleading
to the jury in that they suggested that the officers conducting surveillance on the night
Garvin was arrested had a clearer view than they actually had. A similar argument was
rejected in United States v. Crockett, 49 F.3d 1357, 1359-60 (8th Cir. 1995) (no abuse of
discretion in admitting photograph of crime scene taken during daylight when crime
occurred at night).
Under these circumstances we do not believe that the jury was misled. The
photographs were accurate and helped the jury to perceive what was where and to get a
sense of the distances involved. To that extent they were helpful. Fed.R. Evid. 401, 402.
Moreover, inasmuch as the jury knew their limitations, there was no prejudice.
The judgment of the District Court will be affirmed.
4