2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-2-2014

USA v. Bruce Costa, Jr.

Precedential or Non-Precedential: Non-Precedential

Docket 13-1218

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NOT PRECEDENTIAL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 District 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 his convictions for unlawful distribution of oxycodone 

and maintaining a premises for distributing oxycodone. He also appeals the sentence 
2

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

following reasons, we will affirm.

I. Background

In 2007, the Federal Bureau of Investigation (“FBI”) and Drug Enforcement 

Administration (“DEA”) suspected that Michael Scalia and his nephew, Joseph Scalia,

were distributing oxycodone. The agencies began an investigation, during which they

learned that Ronald Turner was the supplier for the Scalias. The DEA began surveillance 

on Turner in August 2009 and, on three separate occasions – August 29, 2009, 

September 5, 2009, and September 12, 2009 – they observed 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 criminal activity there apparently began soon after. 

The 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 September 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 later 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 to, inter 

alia, 20 years imprisonment on each count, to be served concurrently. This timely appeal 

followed.

II. Discussion2

A. Prosecutorial 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) improperly shifted the 

burden of proof and asked the jury to assume guilt 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) own 

experience and knowledge and vouched for his co-counsel‟s knowledge and insight. 

None of these issues warrants 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 inferences 

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, to 
4

1. Standard of Review

We review a district court‟s ruling on a contemporaneous objection for abuse of 

discretion. United States v. Lee, 612 F.3d 170, 193 (3d Cir. 2010). “However, any noncontemporaneous objections are reviewed for plain error.” Id. As Costa concedes, he 

“did not raise [any] issues [of prosecutorial misconduct] below except for an objection 

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 the 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 reads, in relevant part:

[The government]: I suggest to you that this is neither [defense 

counsel‟s] nor [Costa‟s] first time at the rodeo. [Defense counsel] in 

fact knows, and I don‟t suggest that 14 members of the citizenry will 

do this, but he knows that 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 can’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 for 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 finding 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, we 

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). “If 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 A1584-85) (emphasis added). Near the end of the closing 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 affirm 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 Jagged Edge

The 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 but 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 A1566.) Costa argues on appeal that the reference 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 counters 

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 Cir. 2009), in which 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 crime 
7

much like director Francis Ford Coppola did in various scenes depicting assassinations 

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 whole 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” because 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 can be understood as not directly comparing Costa with 

Bridges‟ character in Jagged Edge but instead referencing the movie to exemplify

Costa‟s right to claim his innocence and require the government to prove his guilt. The 

prosecutor emphasized 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] [had] shown ... that 

[Costa] is in fact guilty of Count [IV] also.” (App. at A1567.) Thus, while unnecessary, 

the reference to Jagged Edge 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 

bargain with the jury. After summarizing the evidence against Costa, the prosecutor

suggested that the reason Costa admitted his guilt on Counts I, II, and III at trial, but not
8

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

asking, in return for his concessions, that the jury find him not guilty of Count IV. (App. 

at A1585-86.) Costa also characterizes the prosecutor‟s attack on the defense as 

amounting to a statement that the defense was a “sham” aimed at “deceitfully bargaining 

directly with the jury.” (Appellant‟s Opening Br. at 29.)

As 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, “attacking 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 “attempted 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 inferences and conclusions that the evidence supports ... .” Zehrbach, 47 F.3d at

1265 n.11. In this case, the prosecutor‟s suggestion of the motive behind Costa‟s trial 

strategy was not so untoward as to warrant any conclusion that the District Court plainly 

erred in permitting it.6

 

6 Additionally, Costa argues that the prosecutor used his prior convictions 

improperly in closing arguments. 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 prior 
9

c. Reference to the Prosecutors’ 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 case.” 

(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 United States v. Walker, 155 

F.3d 180, 184 (3d Cir. 1998)). Improper vouching may occur if a prosecutor makes 

“repeated comments aimed at establishing his own veracity and credibility as a 

representative of the government.” United States v. Smith, 962 F.2d 923, 933 (9th Cir. 

1992); see also Lee, 612 F.3d at 195 (holding that a prosecutor is not allowed to speak 

about his own personal experiences).

 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 195. The 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 

weighed on the 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 

continue 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 argues 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 consecutively”; and (3) the government did not produce Brady

material that “was directly contradictory to the position that the government took at

sentencing.” (Appellant‟s Opening Br. at 39-40.)

1. Double Jeopardy Clause9

Costa argues that, for purposes of sentencing, his convictions on Counts I, II, and 

III (unlawful distribution of oxycodone under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C))

should have merged 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 20 years imprisonment, see 21 U.S.C. 

§§ 841(b)(1)(C), 856(b), rather than the higher Guidelines 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 separate 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 Blockburger 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, 

779 (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 Courts that 

have examined whether Congress intended to punish § 841 and § 856 offenses separately 

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 (10th 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, 

or 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 shall 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 to 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 

decisions. Since it is clear that Congress intended to punish § 841 and § 856 offenses 

separately, Costa‟s sentences could have run consecutively, and the District Court did not 

err in using the Guidelines range of 292 to 365 months.

2. Demand for Analysis Under 18 U.S.C. § 358411

Costa argues that the District Court 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 40.) 

The 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 

whether 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 argue 

that the Court should have conducted a § 3584 analysis before applying the Guidelines

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. United 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 

Guidelines 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 sentences 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 additional punishment and incarceration” 

(App. at A1886) because Costa was, “by far, the largest distributor of [oxycodone] in 

Delaware at the time” (id. at A1884-85) and had a “pattern of manipulation and

deception” (id. at A1887-88). The Court also took into account 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 discretion under 18 U.S.C. 

§ 3584.

3. Brady Violation13

Finally, Costa argues that the government withheld Brady material that was 

relevant to his sentencing. Specifically, 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, 14 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 documents 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 is material 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 probable that the result of the sentencing would have been different, there was 

no Brady violation.

III. Conclusion

For the foregoing reasons, we will affirm Costa‟s convictions and sentence.