UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA, 

v. Case No. 3:10cr55/MCR/CJK

 

CECIL ANTHONY DORTCH,

Defendant.

_______________________________/

ORDER and

REPORT AND RECOMMENDATION

This matter is before the court on the defendant’s motion for a new trial (doc.

127), filed pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The

matter isreferred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636. Having conducted a careful review of the record and the

arguments presented, the undersigned concludes that the motion should be denied. 

BACKGROUND AND PROCEDURAL HISTORY

On May 18, 2010, the defendant was indicted for possession of a firearm by a

convicted felon (count one), possession with intent to distribute marijuana (count

two), and possession of a firearm in furtherance of a drug-trafficking offense (count

three). (Doc. 1). The matter proceeded to trial, at which the defendant represented

himself. On July 9, 2010, at the conclusion of a three-day jury trial, the defendant

was convicted on all counts. (Doc. 57). The conviction was upheld on appeal. See

United States v. Dortch, 696 F.3d 1104 (11th Cir. 2012). At trial, Brad Purrus, an

officer with the Pensacola Police Department (“PPD”), testified that he found a .45

caliber Taurus pistol and a loaded magazine in a Girl Scout cookie box within the

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front bedroom of a house owned by defendant’s late mother. In that same bedroom,

officers also found a Hermann Weihrauch Arminius revolver. A Savage Arms, Inc.

.22 caliber rifle and a Browning .22 caliber rifle were discovered in the house’s

common area and back yard. The government presented evidence that the defendant

lived in the front bedroom of the home in which the weapons were found. 

On the third day of trial, the government called as a witness Justin Cooper, a

crime scene analyst for PPD, who was designated as an expert in latent print

extraction. (Doc. 111, pp. 8, 31). Cooper first described the procedures used to

obtain fingerprint and DNA samples from a firearm. He then testified regarding the

procedures he used to obtain fingerprint and DNA samples from the weapons found

at the home in which the defendant resided. Specifically, Cooper testified that he

swabbed the trigger, handle, and barrel of the .45 caliber Taurus pistol for DNA

evidence, placed the swabbings in a package titled “swabbing grip,” and transmitted

them to the Florida Department of Law Enforcement (“FDLE”) for analysis. (Doc. 1

111, p. 11). After he swabbed the weapon for DNA, he processed it for latent

fingerprints. Cooper repeated the same process on the Arminius revolver–he 2

swabbed “around all the grips” and “around the trigger guard where anybody would

typically touch a gun” and submitted the swabbings to the FDLE for DNA analysis. 

(Doc. 111, pp. 14-15). He then processed the gun for fingerprints. Finally, Cooper

swabbed the two firearms discovered in the backyard and common area of the home

 He did not swab the slide of the gun. 1

In a PPD Laboratory Work Request completed on June 26, 2009, Cooper noted that he 2

processed the firearms for fingerprints and forwarded the “swabbings from the grips” of these

firearms to the FDLE lab for analysis. (Docs. 127-2, pp. 25-26; 131, p. 13). 

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for DNA and submitted the swabbings to the FDLE. He also processed the weapons

3

for fingerprints. 

The FDLE lab received the DNA swabbings on July 2, 2009, and issued its

findings in letters dated October 21, 2009, and January 20, 2010. (Doc. 127-2, p. 26).

Jennifer Kay, a crime laboratory analyst in the biology section of FDLE, tested the

swabbings for DNA. Kay was certified at trial as an expert in DNA analysis. (Doc.

111, p. 101). She testified that she received four separate swabs, each of which was

marked by PPD as having come “‘from the grips of a gun.’” (Doc. 111, pp. 101-02). 

After testing the four swabs, Kay was able to extract a DNA sample from the swab

of the .45 caliber Taurus pistol which provided a“mixed profile,” meaning the sample

contained more than a single individual’s DNA. Kay then ran the DNA profile

through CODIS and received a match to the defendant’s DNA. After matching the

4

DNA through CODIS, a buccal swab of the defendant’s mouth was obtained for

further confirmation. The defendant’s DNA from the buccal swab was matched to

the DNA from the .45 caliber Taurus pistol at an occurrence of 1 in 860,000,000

African-Americans. 

5

ANALYSIS

Defendant claims the government violated his due process rights under Giglio

v. United States, 405 U.S. 150 (1972), and Brady v. Maryland, 373 U.S. 83 (1963),

On a PPD Property Record form, Cooper indicated that the swabbings from grips of the 3

various firearms were “seized”on June 26, 2009. (Doc. 131, p. 15). 

 CODIS is a database comprised of DNA samples, many of which are from prisoners and 4

missing persons.

 The defendant’s fingerprints were not found on any of the weapons. 5

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“by causing the knowing use of perjured testimony to be presented to the jury,

uncorrected, and further, by failing to disclose the evidence which would have

impeached the perjured testimony.” (Doc. 127-2, pp. 9-10). In particular, the

defendant argues that the government solicited perjured testimony from Cooper. The

defendant avers that Cooper testified at trial that he swabbed various firearms for

DNA before processing the weapons for latent fingerprints when he actually dusted

the weapons for fingerprints prior to swabbing them for DNA, a method that “would

significantly decrease the likelihood” of procuring DNA samplesfrom the weapons. 

(Doc. 127-2, p. 10). The defendant also claims that the government possessed

exculpatory evidence which would have allowed himto impeachCooper’s testimony,

but never disclosed the evidence to him. According to the defendant, the government

disclosed only the results of the DNA swabs from the “grip” of each weapon and

withheld the results of the DNA swabs from the “‘trigger guard and trigger.’” (Doc.

127-2, p. 10). 

Under Rule 33, a motion for a new trial must be filed within fourteen days after

the verdict or within three years of the verdict if new evidence is discovered. FED.

R. CRIM. P. 33(b). “‘Motions for a new trial based on newly discovered evidence are

highly disfavored in the Eleventh Circuit and should be granted only with great

caution;’” moreover, “‘[t]he defendant bears the burden of justifying a new trial.’” 

U.S. v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006). Here, the defendant filed his

motion for a new trial over two and a half years after the jury returned its verdict. In

an effort to salvage his otherwise time-barred claim, the defendant alleges newly

discovered evidence. (Doc. 127-2, pp. 1-2). 

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After reviewofthe defendant’s motion and accompanying pleadings, however,

the undersigned cannot discern any such evidence. To the contrary, with respect to

Cooper’s testimony, the evidence on which the defendant bases his claim was

available to the defendant prior to trial and, in fact, relied on by the parties during

trial. Indeed, the defendant was present when Cooper testified and cross-examined

him regarding his collection of DNA evidence from the firearms. The defendant,

therefore, could have raised all of the concerns he discusses in his motion at trial on

cross-examination or, at the very latest, within fourteen days of the jury’s verdict.6

Because he failed to do so, his claim regarding Cooper’s testimony is now barred.

With respect to exculpatory evidence, although the defendant alleges that the

government withheld exculpatory DNA evidence, he has neither identified such

evidence nor put forward facts to establish its existence. His motion, therefore, fails

Defendant claims that he was unable to “put the falsehood together” during trial because: 6

All the documents and reports, motions and stand by lawyer all around me

and the fact I had an all white jury and court room for that matter. A rule of court

book and local court rules given to me by the Court to get to know. It was all I could

do to try to keep up with all that was going on in the trial. I could not read all the

reports and motions and rules and documents that was [sic] put on me inside of [sic]

such short time.

(Doc. 128, pp. 3-4). Notably, however, the court “admonished” the defendant of the “tremendous

risk of representing himself in a criminal case.” (Doc. 44, p. 1). The defendant declined the court’s

offer to appoint substitute counsel and instead insisted on proceeding to trial with standby counsel

only. (Doc. 44). Given the defendant’s insistence on representing himself at trial, the defendant

cannot now use the very rigors and demands (if which he was thoroughly warned) attending such

representation as an excuse for failing to adequately explore all potential defenses or avenues of

cross-examination. 

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on that ground as well. 

7

Accordingly, it is ORDERED:

Defendant’s Motion for Leave to File Out of Time Reply/Supplemental Reply

(doc. 133) is GRANTED.

And it is respectfully RECOMMENDED:

Defendant’s motion for a new trial (doc. 127) be DENIED for the reasons

stated herein.

At Pensacola, Florida, this 23rd day of October, 2013.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy thereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636;

United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

On a substantive level, defendant’s claims also fail. Cooper testified that he first swabbed

7

the firearms for DNA and then dusted them for fingerprints. His testimony is consistent with Kay’s

testimony as well as the various PPD propertyrecords, laboratorywork requests, and the FDLE DNA

results defendant includes with his motion. (Doc. 127-2, pp. 23-26). Defendant’s claim of

undisclosed exculpatory evidence is derived from an apparent inconsistency in Cooper’s labeling of

the DNA swabbings’ exhibit labels. Cooper’s trial testimony directly refutes defendant’s claim. 

Regardless, even if there were inconsistencies in the evidence, as alleged, such inconsistencies do

not provide a basis for granting a new trial under Rule 33. 

Case No: 3:10cr55/MCR/CJK