Filed: Jul. 07, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-7-2005 USA v. Potts Precedential or Non-Precedential: Non-Precedential Docket No. 03-3163 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "USA v. Potts" (2005). 2005 Decisions. Paper 894. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/894 This decision is brought to you for free and open access by the Opinions of the United States Co
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-7-2005 USA v. Potts Precedential or Non-Precedential: Non-Precedential Docket No. 03-3163 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "USA v. Potts" (2005). 2005 Decisions. Paper 894. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/894 This decision is brought to you for free and open access by the Opinions of the United States Cou..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-7-2005
USA v. Potts
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3163
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"USA v. Potts" (2005). 2005 Decisions. Paper 894.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/894
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 2005 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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-3163
___________
UNITED STATES OF AMERICA
v.
RICHARD POTTS,
a/k/a Nasir Haqq,
a/k/a Nasir Jones,
a/k/a Nasir,
a/k/a Naz
Richard Potts,
Appellant
.
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 01-cr-00457-3)
District Judge: The Honorable James T. Giles
___________
Submitted Under Third Circuit LAR 34.1(a)
June 27, 2005
BEFORE: NYGAARD, SMITH, and FISHER, Circuit Judges.
(Filed July 7, 2005)
__________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant Richard Potts was convicted by a jury of conspiracy to distribute more
than 50 grams of cocaine base “crack,” in violation of 21 U.S.C. § 846, and murder in
furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A).
Potts was sentenced to two terms of life imprisonment. We will affirm his conviction, but
vacate his sentence and remand for resentencing.
Because we write only for the parties, we discuss only those facts that are relevant
to the issues on appeal. This case centers around a large scale drug organization in
Philadelphia known as “Do or Die” or “D.O.D.,” which was operated by a man named
Daniel Coach. Potts was involved in various ways throughout the conspiracy including
partnering with Coach in drug distribution and killing Rodney Trusty.
I.
Potts went to trial with three other co-defendants: Keith Waters, Andre Coach,
andTravis Coffey. After the jury was selected and the panel was sworn in, Andre Coach
pleaded guilty1 by entering into a cooperation agreement with the Government.
1 Andre Coach pleaded guilty to conspiracy, possession with intent to distribute
(continued...)
2
After Andre Coach entered into his agreement with the Government, Potts moved
for dismissal of the jury. The District Court denied that motion. Later, Andre Coach
testified as a Government witness. The District Court did not give a specific instruction
to the jury with respect to Andre Coach’s testimony and the fact that he had been a co-
defendant during jury selection. On appeal, Potts argues that the District Court’s failure
to dismiss the jury, or at least give a curative instruction, was in error.
In United States v. Gambino, 926 F.2d 1355, 1364 (3d Cir. 1991), a former co-
defendant pleaded guilty on the twelfth of twenty-six days of trial and became a witness
for the government. We reviewed the district court’s decision to admit the testimony for
abuse of discretion.
Id. We also held that the district court’s curative instruction, given
the first day after the former co-defendant no longer appeared at the defense table, was
enough to quell any implication of guilt from his disappearance.
Id. at 1364 n.7.
Here, we are faced with a slightly different situation. The District Court did not
offer any special instruction relating to the fact that Andre Coach had once been a co-
defendant. Nor did the Court address his disappearance from the defense table. There are
also other significant factual differences. His disappearance did not occur in the midst of
trial, but rather during the twenty day period after the jury was sworn and before the start
1 (...continued)
more than 50 grams of cocaine base, possession with intent to distribute more than
500 grams of cocaine, and managing an establishment for the manufacture or
distribution of a controlled substance.
3
of the trial. This was not a situation where the jurors went home one night with four co-
defendants and returned the next morning to only three.
We conclude that the District Court did not err by keeping the jury empaneled nor
by declining to give a specific jury instruction. Although we have upheld a district
court’s use of curative instructions, Gambino, 926 F.2d at 1364, they are not always
necessary. The instruction given in cases such as Gambino is intended to prevent
prejudice to the defendant remaining at trial.
Id. We upheld the District Court’s
determination that the instruction was necessary and sufficient to prevent prejudice.
Here, that is not the case. With a twenty day gap in time between jury selection and the
beginning of trial, an instruction may very well have brought unneeded attention to Andre
Coach’s guilty plea. Although our earlier cases have supported instructions, they do not
require them. See
Gambino, 926 F.2d at 1364. Thus, we continue to hold that decisions
on whether to release a jury or give a curative instruction when a co-defendant enters a
plea and then testifies as a government witness are vested in the sound discretion of the
District Court. In this case, we find no abuse of discretion.
II.
Potts also challenges the sufficiency of the evidence. He claims that he was
engaged in a separate drug conspiracy, not the one charged, and that the evidence was
insufficient to prove he possessed the required intent to kill Rodney Trusty.
4
The Government presented extensive evidence regarding Potts’ involvement with
the D.O.D./Coach conspiracy. There is sufficient evidence to conclude that after agreeing
to “share” a particular corner with Coach, Potts and Coach worked together in one
conspiracy. Given the testimony of former co-conspirators, there was also sufficient
evidence to conclude that Potts possessed the necessary intent to kill Rodney Trusty.
Viewing the evidence in the light most favorable to the Government, there is sufficient
evidence to sustain the verdict against Potts.
Potts also claims that the testimony of Daniel Coach, the former leader of the
conspiracy, was so corrupt that it could not form the basis of a guilty verdict. Testimony
by co-conspirators, however, even if uncorroborated, is sufficient to form the basis of a
guilty verdict. United States v. Perez, 280 F.3d 318, 344 (3d Cir. 2002). Thus, even if we
accept Potts’ assertion that Coach’s testimony is suspect, it does not undermine the basis
of Potts’ conviction.
III.
Finally, Potts challenges the calculation of his sentence. Since the filing of this
appeal, the United States Supreme Court has decided the case of United States v. Booker,
543 U.S. __, 125 S. Ct. 738 (2005). Having determined that the sentencing issues Potts
raises are best determined by the District Court in the first instance, we vacate the
sentence and remand for resentencing in accordance with Booker.
