United States v. Burden

Second Circuit

United States v. Burden

112 F. App'x 111

CourtCourt of Appeals for the Second Circuit

DecidedOctober 15, 2004

DocketNos. 02-1148(L), 02-1754(CON), 02-1756(CON), 03-1014(CON), 03-1148(CON), 03-1408(CON)

StatusPublished

This text of 112 F. App'x 111 (United States v. Burden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Burden, 112 F. App'x 111 (2d Cir. 2004).

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Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.

Defendant-Appellant Patrice St. Surin appeals from the order of the United States District Court for the District of Connecticut (Janet C. Hall, Judge) denying St. Surin’s motion for an acquittal notwithstanding the verdict pursuant to Fed. R.Crim.P. 29(c). St. Surin was found guilty by a jury of conspiracy to possess with intent to distribute 50 grams or more of cocaine base and 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and sentenced principally to a 188-month term of imprisonment, followed by five years of supervised release and a $5,000.00 fine.

St. Surin first argues that the evidence against him was insufficient to sustain a guilty verdict. We disagree. St. Surin incorrectly asserts that the only evidence connecting him to the drug conspiracy was the testimony of Eugene Weldon, an accomplice. The government, however, [113]*113corroborated Weldon’s testimony with wire interceptions, pen-register data, and video surveillance. Further, in this circuit, a conviction may be sustained on the basis of the testimony of a single accomplice without corroboration. United States v. Diaz, 176 F.3d 52, 92 (2d Cir.1999). Here, we easily conclude that the evidence was legally sufficient to support the jury verdict.

St. Surin also seeks a new trial because the government allegedly failed to turn over discoverable material in a timely fashion in violation of the Jencks Act, 18 U.S.C. § 3500, and Fed.R.Crim.P. 26.2, and because after the government turned over the material, the district court failed to strike the testimony of a government witness, Anthony Burden. The day after Burden testified, the government turned over discoverable material — Burden’s grand-jury testimony in an unrelated case — that it had inadvertently omitted to turn over earlier.

Under the circumstances, we find any error by the government to be harmless. Burden testified only about dealing with Weldon, not with St. Surin. Moreover, there was no material inconsistency between Burden’s grand-jury testimony in the unrelated case and his testimony at trial. And finally, the defendant was offered the opportunity to have Burden recalled for cross-examination on the basis of the grand-jury testimony and he declined the offer.

Accordingly, and for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

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SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.

Defendant-Appellant Patrice St. Surin appeals from the order of the United States District Court for the District of Connecticut (Janet C. Hall, Judge) denying St. Surin’s motion for an acquittal notwithstanding the verdict pursuant to Fed. R.Crim.P. 29(c). St. Surin was found guilty by a jury of conspiracy to possess with intent to distribute 50 grams or more of cocaine base and 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and sentenced principally to a 188-month term of imprisonment, followed by five years of supervised release and a $5,000.00 fine.

St. Surin first argues that the evidence against him was insufficient to sustain a guilty verdict. We disagree. St. Surin incorrectly asserts that the only evidence connecting him to the drug conspiracy was the testimony of Eugene Weldon, an accomplice. The government, however, [113]*113corroborated Weldon’s testimony with wire interceptions, pen-register data, and video surveillance. Further, in this circuit, a conviction may be sustained on the basis of the testimony of a single accomplice without corroboration. United States v. Diaz, 176 F.3d 52, 92 (2d Cir.1999). Here, we easily conclude that the evidence was legally sufficient to support the jury verdict.

St. Surin also seeks a new trial because the government allegedly failed to turn over discoverable material in a timely fashion in violation of the Jencks Act, 18 U.S.C. § 3500, and Fed.R.Crim.P. 26.2, and because after the government turned over the material, the district court failed to strike the testimony of a government witness, Anthony Burden. The day after Burden testified, the government turned over discoverable material — Burden’s grand-jury testimony in an unrelated case — that it had inadvertently omitted to turn over earlier.

Under the circumstances, we find any error by the government to be harmless. Burden testified only about dealing with Weldon, not with St. Surin. Moreover, there was no material inconsistency between Burden’s grand-jury testimony in the unrelated case and his testimony at trial. And finally, the defendant was offered the opportunity to have Burden recalled for cross-examination on the basis of the grand-jury testimony and he declined the offer.

Accordingly, and for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

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Bluebook (online)

112 F. App'x 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burden-ca2-2004.

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