2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
2-27-2004 

# U S A v . G a r vin P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1693

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w . v i l l a no va . e du/thir dc ir c uit_2004/971NOT PRE CEDENT IAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT No. 03-1693

________________ UNITED S TATES OF AMERI CA

v. KYLE GARVI

N, Appellant

____________________________________ On A ppeal Fro m the U nited States D istrict Court For th e Ea stern D istrict of P enns ylvania (D.C. No. 02-cr -00682-1) Distri ct Judge: Honorable Michael M. Bay lson

_______________________________________

Submitte d February

26, 2004 Be for e: R EN DE LL , BA RR Y, a nd B EC KE R, Circuit Judges
. (Fil ed: Februar

y 27, 2004)

_______________________

OPI NION

_______________________ BE CK ER , Circuit

Judge
. Kyle Garvi n appeals f

rom the judgment

in a criminal cas e enter ed on a jury verdict findin g him guilty on four c oun ts of an indictm ent ch arging poss ession of a firearm in furthe rance of a d rug tra ffick ing crim e, 18 U .S.C. § 924 (c); po ssessio n w ith inten t to distribu te coc aine b ase, 21 U.S .C. §§ 841 (a)(1)a nd (b )(1)(C ); posse ssion w ith inten t to2

distribu te ma rijuana , 21 U .S.C. § § 84 1(a)(1 ) and (b)(1)(D ); and b eing a felon in possession of a firearm , in violation of 18 U.S.C . § 922(g)(1). The D istrict Court imposed a sent ence of 106 months i mprisonment, a term of supe rvise d relea se of five years, a $50 0.00 fine , and a sp ecia l asse ssm ent o f $4 00.0 0. T his tim ely ap pea l foll ow ed. The facts and pr ocedural hist oryare well known to the parties and we willnot res cribe them here. S uffic e it to say fo r prese nt pu rpose s that G arvin w as arre sted b y Philade lphia police officer s at ni ght foll owing a chase on foot during which gover

nment witness es test ifie d that he threw away ce rtai n evidence; Garvin denie d having done so. When he was apprehended, he possess ed a lar ge amount of cash i n certa in described denominations. Garvin presents tw o issues on a ppeal. First, he con tends that the D istrict Court abused it s discr etion in allowing t he prosecut or to use $623.00 in Unit ed State s curre ncy as demonstr ative evidence dur ing clos ing argument when the curre ncy was not the act ual currency taken fr om Garvin, no phy sicalcurrency was intr oduced int o evidence during tri al, and, i n his submi ssion, the prej udicia l value substantially out weighed it s probat ive value in that it w as m isleadin g. Sec ond , Garv in sub mits tha t the D istrict Co urt abu sed its discr etion in admitt ing cert ain photogr aphs int o evidence where t he prejudi cial value substantially out

weighed the pr obative value i n that t he photographs were mislea ding as they were taken dur ing broad daylight and the i ncident

occurred at night . We find no merit in either a rgum ent.1 Ga rvin ar gues that

The same denominati ons and tot al doll ar amount may look li ke a signi ficant ly

larger pile of money dependi ng on how crumpled the money was and how much use and/or abuse t he cash had. As the government never proved t

he volume of thi s cash, it was ext remely prejudi cial for the government t o be permitted to us e this case for demonst rati on during closing argu men t. We are unpersuaded. 3 Du ring the trial, evide nce w as pre sented that $6 23.00 in U nited S tates cu rrency, in specifi call y i dentif

ied denominations, was recovered from Garvin upon his ar rest . During closi ng arguments, the government used United St ates cur

rency , in t

he exact denominati ons recover ed from Garvin, to demonstr ate what t hat amount of Unit ed State s
cur re ncy inth ose den omi natio ns l ook s l ik e. Si nce th e mon ey was in the s ame denominati ons recover ed from Garvin, it gave the jur y a fair approxi mation of t he size of the bu ndle o f mo ney that G arvin w as carr ying up on h is arrest. 1 In using t he demonstrative ai d, the government made it clear to the j urythat a lthough t he money was in the s ame denominati ons, i t was not t he exact money

seized f rom Garvin. It was within the Dis tri ct Court’ s discr etion to permit t he use of demonstr ative exh ibits d urin g a s um ma tion to g ive th e jur y a be tter u nde rstan din g. See , e.g ., United States v. De Peri , 778 F.2d 963, 979 (3d Cir. 198 5), where we h eld that the D istrict Court did not abus e its discr etion in permitting the prosecutor to use a chart dur ing the ope ning stat ement. Ther e was no abuse of dis creti on here, and no prejudi ce to Garvi n. Neither di d the Dist

rict Court abuse i ts di scret ion in admi tting as evidenc e gov ern me nt p hot ogr aph s of the c rime sce ne, foot cha se a rea, a nd s cen e of Ga rvin ’s arr est.4

The photographs, although t aken during t he day when the crimes were committed at night, fairly and ac curate ly depict ed the re levant

scene. Moreover , counselfor the defendant ext ensively cr oss-exami ned government wit nesses r egarding t

he differ ences bet weenth e ph ot os and wa yth e crime sc ene act ual ly app ear ed o n the n ig htof t he c ri me (e.g., that it

was nighttime, not daytime). Additionally , on both direct and crossexaminati on, det aile d test imony was pr ovided regarding t he generalconditi ons during t he survei llanc e, i ncluding t he levelof visibili ty , whether c ars were moving bac k and forth on th e s tr eet , h ow far t

he s urvei ll anc e of

fi cer was f ro m Garvi n at

th e t ime he o bse rv ed h im, and the type and strength of b inoculars used by the surveillance officer. We have carefull y cons idered Garvin’s argument that t he photos were mis leadi ng to the j uryin that

they suggeste d that t

he officer s conducti ng survei llanc e on the ni ght Garvin was arr ested had a clear er view than they

actual ly had. A simil ar argument was rejec ted in Un ited Sta tes v. C rock ett , 49 F .3d 13 57, 13 59-6 0 (8th Cir. 1995) (no abuse of di sc re ti on i n admit

ti ng p hot ogr aphof c ri me s cen e t ake n du ri ng d ay li ght whencr ime occurred at night). Under these circumstance s we do not beli eve that the jur y was misl ed. The pho tograp hs w ere ac curate and h elped the jury to p erceiv e w hat w as w here a nd to get a
sen se o f the dista nce s inv olv ed. T o th at ex tent t hey w ere h elpf ul. F ed.R . Ev id. 4 01, 4 02. Moreover, ina smuch as the j uryknew their l imit ations , the re was no prej udice. The judgment of the Distr ict Court will be a ffirmed.