2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/5NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 13

- 1218

_____________ UNITED STATES OF AMERICA

v. BRUCE E. COSTA, JR.,

Appellant

_______________ On Appeal from the United States Dist rict Court

for the District of Delaware (D.C. No. 10

- cr
- 047) District Judge: Hon. Leonard P. Stark

_______________ Submitted Under Third Circuit LAR 34.1(a)

December 16, 2013
Before: JORDAN , VANASKIE and VAN ANTWERPEN, Circuit Judges

. (Filed : January 27, 2014 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Bruce E. Costa, Jr. , appeals h is convictions for unlawful distribution of oxycodone and maintaining a premises for distributing oxycodone . He also appeal s t he sentence2

imposed by the United States District Court for the District of Delaware

. For the following reasons, w e will affirm.
I. Background In 2007, the Federal Bureau of Investigation (“ FBI ”) and Drug Enforcement Administration (“ DEA ”) suspected th at Michael Scalia and his nephew, Joseph Sc a lia , were distributing oxycodone. The agencies began an investigation , during which they learned that Ronald Turner was the supplier for the Scalia s
. The DEA began su rveillance on Turner in August 2009 and , on three separate occasions

– August 29, 2009, September 5, 2009, and September 12, 2009

– they o bserved him receiving oxycodone pills from Costa outside of the Renaissance Family Pharmacy LLC (“Renaissance”) , a retail pharmacy in Claymont, Delaware

. Costa, a licensed pharmacist, had opened
Renaissance in January 2008. 1 His c riminal activity there apparently began soon after.
T he federal investigation revealed that Renaissance‟s records between October 1, 2008 , and September 27, 2009 , failed to account for more than 45,000 oxycodone pills, which

was approximately half of all the oxycodone pills that Renaissance ordered. On Septemb er 22, 2010, a federal grand jury in the District of Delaware returned a superseding indictment charging Costa with three counts of unlawful distribution of oxycodone (Counts I, II, and III) , in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) (C) , and maintaining a premises for distributing oxycodone (Count IV) , in violation of 21 U.S.C. § 856(a)(1). At trial , Costa admitted that he was guilty of Counts I, II, and III

.

1 Costa purportedly sold his interest in Renaissance to a friend la ter in 2008, but he continued to run the store, including ordering and handling oxycodone pills.3

The jury found him guilty of all four counts , and he was subsequently sentenced t o , inter
alia , 20 years imprisonment o n each c ount, to be served concurrently. This timely appeal
followed.
II. Discussion 2
A. Pro secutorial Misconduct Costa argues that we should vacate his conviction and order a new trial because prosecutorial misconduct “permeated” the government‟s closing argument. (Appellant‟s Opening Br. at 19.) He primarily argues that the prosecutor (1) im properly shifted the burden of proof and asked the jury to assume g uilt by referencing the movie Jagged Edge ; (2) improperly used Costa‟s prior convictions to claim that he (Costa) was trying to bargain with the jury ; and ( 3 ) improperly referenced his (the prosecutor‟s) ow n experience and knowledge and vouched for his co

- counsel‟s knowledge and insight

. None of the se issues warrant s a new trial. 3

2 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

3 Costa also argues that various other errors in the prosecutor‟s closing argument warrant a new trial, but the complaints are unpersuasive. “The prosecutor is entitled to considerable latitude in summation to argue the evidence and any reasonable inference s that can be drawn from that evidence.” United States v. Werme , 939 F.2d 108, 117 (3d Cir. 1991). For example, the argument that Costa may have had more money which the FBI did not locate was based on Costa‟s assertion that, although the FBI found more than $1.4 million in cash in several safes belonging to Costa, the cash was from legitimate business, not from illegal drug dealing. Given that testimony, it was not plainly erroneous to permit the prosecutor to pose for the jury the question of where the proceeds of Costa‟s illegal drug dealing were. The prosecutor‟s statements that Costa‟s “back is up against the wall” (App. at A1575) and that Costa “is done, stick a fork in him” (App. at A1582) were also not improper because (though one might question the wisdom and tenor of the latter colloquialism) they referred specifically to Counts I, II, and III, to4 1. Standard of Review
We review a district court‟s ruling on a contemporaneous objection for abuse of
disc retion. United States v. Lee , 612 F.3d 170, 193 (3d Cir. 2010). “However, any non

contemporaneous objections are reviewed for plain error. ” Id. As Costa concedes, he “did not raise [any] issues [of prosecutorial misconduct] below except for an objectio n concerning an improper reference to defense counsel, and an improper reference to the prosecutor‟s own professional experience.” 4 (Appellant‟s Opening Br. at 1 (citations

which Costa had admitted his guilt. Nor was it improper for the prosecutor to comment that oxycodone abuse “causes untold hardship ... and ... tears at t he very fabric of our society,” while certain people, including Costa, have “profited from that tragedy and ... profited from that hardship.” (App. at A1605.) A prosecutor may “impress upon the jury the seriousness of [drug

- related] charges,” United States v. Tucker , 714 F.3d 1006, 1015 (7th Cir. 2013) , and, given the evidence of the illegal oxycodone transactions and the money that the FBI found, the assertion that Costa profited from oxycodone abuse was supported by the evidence.

4 The trial transcript r eads , in relevant part : [ The government]: I suggest to you that this is neither [defense counsel‟s] nor [Costa‟s] first time at the rodeo. [ D efense counsel] in fact knows, and I don‟t suggest that 14 members of the citizenry will do this, but he knows th at the juries sometimes compromise. And Mr. Costa

– [Defense counsel] : Objection, your Honor.

.... (Sidebar conference.)

.... [Defense counsel]: If he had limited it to Mr. Costa, I would have no problem . It’s when you put me in it, make it personal. You ca n’t do that. [The government]: Okay. I‟ll retract then in front of the jury. The Court: Do you want the retraction? [The government] : That‟s fine. The Court: Then stay away from that. (Sidebar conference ends.)5

omitted).) Therefore, the only issue of alleged misconduct that we will review fo r abuse of discretion is the prosecutor‟s comments on the prosecutorial team‟s knowledge and experience

. 5 We will review for plain error the other issues of alleged misconduct

. A findi ng of prosecutorial misconduct “does not always warrant the granting of a mistrial.” United States v . Zehrbach , 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc) . “A criminal conviction is not to be lightly overturned on the basis of a prosecutor‟s comments standing alone, for the statements or conduct must be viewed in context ... .” United States v. Young , 470 U.S. 1, 11 (1985). “Therefore, we will reverse if we conclude that the prosecutor‟s remarks, taken in the context of the trial as a whole, prejudiced the defendant[].” Zehrbach , 47 F.3d at 1265. To determine prejudice, w e consider “the scope of the improper comments in the overall context of trial,” “the effect of any curative instructions given,” and “the strength of the evidence against the
defendant.” United States v. Mastrangelo , 172 F.3d 288, 297 (3d Cir. 1999). “I f the

.... [The government]: I misspoke. I‟m going to stay away from what [defense counsel] said. He is a fine attorney and you guys have seen that. All of you have seen that. And I will stay away from what he knows and what he doesn‟t know. (App. at A 1584

- 85) (emphasis added). Near the end of the cl osing argument, the prosecutor asserted: “It‟s not my first time [at the rodeo] either. You know, I have prosecuted powder cocaine traffickers[.]” Costa then raised the “[s]ame objection,” which the Court sustained. (App. at A1604

- 05.)

5 Although Costa objected to the lead prosecutor‟s reference to his (the prosecutor‟s) own experience, Costa did not expressly object to the lead prosecutor‟s reference to the co

- prosecutor‟s knowledge and insight of the case. Nevertheless, we will give Costa the benefit of the doubt and review the references to both the lead prosecutor‟s experience and the co

- prosecutor‟s knowledge and insight for abuse of discretion.6

error is constitutional, we will affirm [ only ] if we determine that the error is harmless beyond a reasonable doubt.” Lee , 612 F.3d at 194 (alteration in original) (internal quotation marks omitted). “If the error is non

- constitutional, we will aff irm when it is highly probable that the error did not contribute to the judgment.” United States v. Helbling , 209 F.3d 226, 241 (3d Cir. 2000) (quoting Gov’t of V.I. v. Toto , 529 F.2d 278, 284 (3d Cir. 1976))

.

2. Alleged Misconduct

a . Reference to J agged Edge
T he prosecutor began his closing argument by quoting the actor Jeff Bridges‟
character from the movie Jagged Edge : “So you think I killed my wife. Prove it.” (App.

at A1565.) The prosecutor noted that Bridges‟ character was in fact guilty of killing his
wife b ut observed that “ the way our system is set up, and rightly so, if someone is ... charged with a crime, ... [ h ] e has a right to say I‟m not guilty and, Government, you have to prove it.” (App. at A 1566.) Costa argues on appeal that the refe rence to Bridges‟
character in Jagged Edge “cast a specter over the entire closing” by implying that “defendants are guilty as charged but that they sometimes force the government to „prove
it‟ in the charade of a trial.” (Appellant‟ s Opening Br. at 26). The government counter s that the prosecutor made the reference to Jagged Edge simply “to illustrate several points about the criminal justice process.” (Appellee‟s Br. at 43.)
Costa cites United States v. Kincannon , 567 F.3d 893 (7th Ci r . 2009), in wh ich the government , in its closing argument, made an analogy to the movie The Godfather to explain to the jury that it would try to tie together the events of the underlying crime7

much like director Francis Ford Coppola did in various scenes depicting assassi nations coordinated by the character Michael Corleone. Id. at 896

. Costa focuses on the Seventh
Circuit‟s observation in dicta that , had “the government compared [the defendant] to ... Corleone, an organized crime kingpin responsible for murders and a whol e host of other criminal activity[,] [s]uch an analogy would be utterly unmoored from the record ... .”
Id. at 900 (citation omitted)

. Despite that comment, the Kincannon court held that the “reference to The Godfather [did] not approach impropriety” beca use the government used the movie to “explain[] to the jury that [it] would try to do orally what Coppola did in his film

– that is, tie together the events that occurred ... into one seamless story.” Id. Similarly, the prosecutor ‟s remarks in this case ca n be understood as not directly comparing Costa with Bridges‟ character in Jagged Edge but i nstead referenc ing the movie to exemplif y Costa‟s right to claim his innocence and require the government to prove his guilt. T he prosecutor emphasize d to the jury that , despite Costa‟s admissions, it “ still [had] to prove” Counts I, II, and III, and that it would explain “why [ it ] [ha d ] shown ... that [Costa] is in fact guilty of Count [IV] also.” (App. at A1567.) Th us, while unnecessary,
the reference to Jagged Ed ge was consistent with the government‟s burden of proof , and it was not plain error for the District Court to see it as less than misconduct

.

b

. Reference to Jury Bargaining Costa also argues that the prosecutor improperly accused Costa of trying to
ba rgain with the jury. After summarizing t he evidence against Costa, the prosecutor suggested that the reason Costa admitted his guilt on Counts I, II, and III at trial , but not8

on Count IV , was because he was trying to “bargain” or “horse trade” with the j ury

– asking, in return for his concession s , that the jury find him not guilty of Count IV. (App.
at A1585

- 86.) Costa also characterize s the prosecutor ‟s attack on the defense as amounting to a statement that the defense was a “sham” aimed at “deceitfull y bargaining directly with the jury.” (Appellant‟s Opening Br. at 29.)
A s already discussed , the government did not presuppose Costa‟s guilt or shift the burden of proof, even though Costa admitted his guilt to Counts I, II, and III. Furthermore, “attack ing and exposing flaws in one‟s opponent‟s arguments is a major purpose of closing argument.” United States v. Rivas , 493 F.3d 131, 139 (3d Cir. 2007); cf. United States v. Balter , 91 F.3d 427, 441 (3d Cir. 1996) (holding that permitting a
comment that “a ttempted to focus the jury‟s attention on holes in the defense‟s theory” was not plain error). While it is improper for counsel to “introduce information based on personal belief or knowledge,” he “ may state his views of what the evidence shows and
the in ferences and conclusions that the evidence supports ... .” Zehrbach , 47 F.3d at 1265 n.11. In this case, t he prosecutor ‟s suggestion of the motive behind Costa‟s trial strategy was not so untoward as to warrant any conclusion that the District Court plainl y erred in permitting it. 6

6 Additionally, Costa argues that the prosecutor used his prior convictions improperly in closing argume nts. The prosecutor asserted that “Costa knows about a bargain” because he was previously charged with five counts of felony Medicaid fraud in state court but pleaded to misdemeanors. (App. at A1585.) As the government recognizes, the District Court had ruled that the prior convictions were admissible for two limited purposes: impeaching Costa‟s character, pursuant to Federal Rule of Evidence 609, and showing Costa‟s motive to sell Renaissance, pursuant to Federal Rule of Evidence 404(b). It is arguable that Costa opened the door to a broader use of his prior9 c . Reference to the Prosecutor s ’ Experience and Insight Costa argues that the prosecutor vouched for his own experience in prosecuting powder cocaine traffickers and for his co

- counsel‟s “insight and knowledge of this cas e.” (App. at A1581

. ) Vouching “threatens to „ convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant. ‟ ” United
States v. Berrios , 676 F.3d 118, 133 (3d Cir. 2012) (quoting Un ited States v. Walker , 155
F.3d 180 , 184 (3d Cir. 1998)). Improper vouching may occur if a prosecutor makes

“ repeat ed comments aimed at establishing his own veracity and credibility as a representative of the government.” United States v. Smith , 962 F.2d 923, 933 (9 th Cir. 1992); see also Lee, 612 F.3d at 195 ( holdi ng that a prosecutor is not allowed to sp eak
about his own personal experience s ).
Costa promptly and successfully objected to the lead prosecutor‟s alleged vouching for his own experience in prosecuting other drug

- related cases. Assuming that
the prosecutor indeed engaged in improper vouching, however, “a new trial is not warranted because it is highly probable that the error did not contribute to [Costa‟s]
conviction.” 7 Lee , 612 F.3d at 19 5. T he prosecutor did not continue the vouching after

convictions, but, even if the prosecutor‟s use of the prior convictions was improper , the passing comment about bargaining inflicted no prejudice that would warrant a new trial.

7 Vouching is a non

- constitutional error, United States v. Dispoz

- O

- Plastics, Inc. , 172 F.3d 275, 286 & n.10 (3d Cir. 1999), so the question of prejudice is whether it is “highly probable that the error did not contribute to the judgment,” United States v. Helbling , 209 F.3d 226, 241 (3d Cir. 2000).10

the District Court sustained the objection

. 8 He immediately moved on , emphasizing that “the trial necessarily focuses on [Costa]” and observing that the crimes were not victimless. (App. at A1605.) Moreover, the District Court reminded the jury that “what is said in closing arguments is not evidence.” (App. at A1565). Viewed in the context of
the entire trial record, it is not highly probable that the prosecutor‟s vouching for himself weigh ed on th e jury‟ s decision , and, therefore, a new trial is not warranted. See Lee , 612
F.3d at 195 (holding that, “even though the prosecutor did cross the line into improper vouching,” a new trial was not necessary because, inter alia , “the prosecutor did not

con tinue the vouching once an objection was raised and the District Court directed the prosecutor to move on”). Similarly, even if the lead prosecutor‟s passing reference to the knowledge and insight of his co

- prosecutor was vouching , it was a passing comment and not so prejudicial as to warrant a new trial.
B. Resentencing Costa argue s in the alternative that we should remand for resentencing because (1)
the District Court violated the Double Jeopardy Clause of the Fifth Amendment by failing to merge the four counts for sentencing purposes ; (2) the Court abused its discretion by not conducting an analysis under 18 U.S.C. § 3584 “ prior to running a

8 Costa points out that the Court did not give a curative instruction , but he never requested one. Costa also asserts, without explanation, that “[t]he final jury charge did not contain the correct standards concerning burden of proof, presumption of innocence, and use of Costa‟s prior convictions.” (Appellant‟s Br. at 34 (citing App. at A1696

- 98, A1706, A1708).) We discern no error in the cited instructions.11

portion of the sentences consecu tively”; and (3) the government did not produce Brady
material that “ was direc tly contradictory to the position that the government took at sentencing. ” ( Appellant‟s Opening Br. at 39

- 40.)

1. Double Jeopardy Clause 9 Costa argues that , for purposes of sentencing , his conviction s on Counts I, II, and
III ( unlawful distribution of oxyc odone under 21 U.S.C. §§ 841(a)(1) and (b)(1) (C) )
should have merge d with his conviction on Count IV ( unlawful maintenance of a premises for distribution of oxycodone under 21 U.S.C. § 856(a)(1) ). If they had been merged, he would face a statutory maximum of 2 0 years imprisonment, see 21 U.S.C. §§ 841(b)(1)(C), 856( b ), rather than the higher Guideline s range of 292 to 365 months that the District Court used as its starting point. Costa argues that Congress did not
intend to treat § 841 and § 856 as separa te offenses when based on the same underlying
conduct. He also argues that, under the double jeopardy test provided by Blockburger v.
United States , 284 U.S. 299 (1932), each offense does not require proof of a fact that the
other does not.
The Blockbur

ger test “is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States , 471 U.S. 773,
77 9 (1985). Because “„the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended[,]‟ ...

9 The Fifth Amendment to the Constitution provides in relevant part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb ... .” U.S. Const. amend. V. Because Costa‟s double jeopardy argument addresses only a question of law, we review it de novo. See United States v. Baird , 63 F.3d 1213, 1215 (3d Cir. 1995).12

a Double Jeopardy challenge must fail if the statutory text clearly reflects a legislative intent to impose multiple sentences on a defendant for a single underlying transaction

. ” Berrios, 676 F.3d at 138 (quoting Missouri v. Hunter , 459 U.S. 359, 366 (1983) ) (citing Albernaz v. United States , 450 U.S. 333, 344 & n.3 (1981))

. Other Circuit C ourts that have examined whether Congress intended to punish § 8 41 and § 8 56 offenses sep arately have concluded that, in enacting § 856 , “Congress unequivocally determined to create a distinct offense

– with its own , separate punishment

– aimed specifically at criminalizing the use of property for narcotics

- related purposes.” 10 United States v . Sturmoski , 971
F.2d 452 , 462 (10 th Cir. 1992) (relying on the plain language and legislative history of the statute) ; accord United States v. Church , 970 F.2d 401, 407 (7th Cir. 1992) (“The

10 Section 856 provides, in relevant part: [I]t shall be unlawful to

– (1) knowingly open, lease, rent , use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, o r using any controlled substance; (2) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance. 21 U.S.C. § 856(a). On the other hand, 21 U.S.C. § 841 provides, in relevant part: (a) Unlawful acts [I]t shal l be unlawful for any person knowingly or intentionally

– (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance ... . 21 U.S.C. § 841(a)(1).13

plain language of the statute indicates that Congress intended t o punish conspiracies to violate 841(a)(1) separately from conspiracies to violate 856(a)(1)

. ”) ; cf. United States v.
Baker , 16 F.3d 854, 858 ( 8th Cir. 1994) (concluding that a § 856 offense is distinct from
a “controlled substance offense” under U.S.S.G. § 4B1.2). We agree with those
decision s
. Since it is clear that Congress intended to punish § 841 and § 856 offenses separately , Costa‟s sentences could have run consecutively , and t he District Court did not
err in using the Guideline s range of 292 to 36 5 months

.

2. Demand for Analysis Under 18 U.S.C. § 3584 11 Costa argues that the D istrict C ourt abused its discretion by not explicitly conducting an analysis under 18 U.S.C. § 3584 before “running a portion of the sentences consecutively to reach the higher Guideline range.” ( Appellant‟s Opening Br. at 4 0.)
Th e argument is without merit. Under 18 U.S.C. § 3584, a sentencing court has discretion to impose multiple terms of imprisonment either concurrently or consecutively: “[A] court, in determining

w hether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in [18 U.S.C. §] 3553(a).” 18 U.S.C. § 3584(b). Costa seems to ar gue that the Court should have conducted a § 3584 analysis before applying the Guideline s range of 292 to 365 months to each of Counts I, II, and III. As the government correctly

11 Because Costa‟s claim pertains to the District Court‟s decision on whether his convictions should be addressed in concurrent or consecutive sentences, we review for abuse of discretion the Court‟s exercise of discretion without explicitly conducting an analysis under 18 U.S.C. § 3584. Uni ted States v. Swann , 275 F.3d 272, 275 (3d Cir. 2002).14

points out, however, Costa conflates the court‟s obligation to determine the applicable
Guideline s range for each count with the court‟s discretion to order the sentences on each count to run concurrently or consecutively. Section 3584 relates to the latter determination, in which the District Court imposed Costa‟s 20

- year senten ces for each count to run concurrently. 12 Nonetheless, the District Court properly considered the § 3553(a) factors, as required by 18 U.S.C. § 3584(b), when determining the sentence for each of count. It
found that the facts compelled “substantial additio nal punishment and incarceration” ( App. at A188 6 ) because Costa was, “ by far, the largest distributor of [oxycodone] in
Delaware at the time ” ( id. at A 1884

- 85) and had a “pattern of manipulation and deception ” ( id. at A1887

- 88) . The Court also took into a ccount the sentences imposed on
other defendants involved in the underlying oxycodone distribution and distinguished the
rationales behind their sentences from the rationale behind Costa‟s sentence. Therefore, the Court did not err in exercising its dis cretion under 18 U.S.C. § 3584.
3. Brady Violation 13 Finally, Costa argues that the government withheld Brady material that was
relevant to hi s sentencing. Specific ally, he contends that, despite two written requests,

12 Running the sentences concurrently, rather than consecutively, was obviously to Costa‟s benefit.

13 A review of a Brady violation involves both questions of law and fact. United States v. Pelullo , 1 4 F.3d 881, 886 (3d Cir. 1994). We review questions of law de novo, and factual findings for clear error. Id.15

the government failed to produce do cuments that would have supported his argument for
a more lenient sentence

. Under Brady v. Maryland , 373 U.S. 83, 87 (1963), “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where
the evidence i s m aterial either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Materiality in this context requires a “reasonable probability” that, had the evidence been disclosed, the result of the proceeding would
have been different. United States v. Bagley , 473 U.S. 667, 684 (1985). Here , the
information at issue , even if assumed to be covered by Brady , would have been
cumulative of the evidence that the Court considered at sentencing. Because it is not reasonably probab le that the result of the sentencing would have been different, there was

no Brady violation.
III. C onclusion For the foregoing reasons, we will affirm Costa‟s convictions and sentence

.