United States of America v. Anthony Lamon Frazier

Anniston, AL - Criminal defense lawyer represented defendant with intentionally possessing with the intent to distribute 50 or more grams of methamphetamine charge.

The court first addresses Frazier's motion for judgment of acquittal (doc. 43).1

A defendant may move for a judgment of acquittal under Rule 29, and the court must

acquit the defendant "of any offense for which the evidence is insufficient to sustain

1 Several arguments that Frazier advances in support of his motion for judgment of acquittal

overlap with the arguments made in his motion for new trial. As for Frazier's motion for judgment

of acquittal, the court only addresses whether there is sufficient evidence to sustain his conviction

because it finds that Frazier's other arguments are better analyzed under the standards applicable

to motions for a new trial.

FILED

2021 Feb-12 PM 03:30

U.S. DISTRICT COURT

N.D. OF ALABAMA

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a conviction.” See Fed. R. Crim. P. 29(a), (c). In reviewing a motion for judgment

of acquittal, this court "must decide whether the evidence, examined in a light most

favorable to the Government, was sufficient to support the jury's conclusion that the

defendant was guilty beyond a reasonable doubt.” See United States v. Williams, 390

F.3d 1319, 1323 (11th Cir. 2004) (internal quotations and citations omitted). "All

credibility choices must be made in support of the jury's verdict.” Id.

To secure a conviction under 21 U.S.C. § 841(a), the government had to prove

that Frazier knowingly possessed methamphetamine and intended to distribute it.

See 21 U.S.C. § 841(a)(1). To enhance Frazier's sentence, the government had to

show that Frazier possessed and intended to distribute at least 50 grams of

methamphetamine. See 21 U.S.C. § 841(b)(1)(A).

At trial, a confidential informant testified that, while working with ATF

agents, he called Frazier to set up a drug buy of two pounds of methamphetamine

for $9,000. The confidential informant said that on the day of the controlled drug

buy he traveled to a convenience store in Talladega, Alabama where he paid a man

named Jeremey Rivers the $9,000. The confidential informant then testified that he

went to Roosevelt Avenue where he saw Frazier drive up in a "city” or "government”

work truck. According to the confidential informant, when Frazier pulled away, the

confidential informant retrieved a bag that Frazier had thrown out of his truck. The

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confidential informant gave the bag to the ATF agents he was working with, and lab

testing revealed that it contained about one-and-a-half pounds of methamphetamine.

Frazier points out that the confidential informant does not have a recording of

him dropping off the drugs on Roosevelt Avenue or a recording of Rivers taking the

$9,000. Frazier also notes that the government never established the exact nature of

the relationship between Rivers and Frazier. But the jury had a right to credit the

confidential informant's version of events. Viewing the evidence in the light most

favorable to the government, the court finds that there was sufficient evidence to

support the jury's conclusion that Frazier knowingly possessed, with the intent to

distribute, at least 50 grams of methamphetamine. So the court will deny Frazier's

motion for a judgment of acquittal (doc. 43).

MOTION FOR NEW TRIAL

The court next considers Frazier's motion for new trial. "Upon the defendant's

motion, the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). Frazier argues that he was denied a fair

trial because: (1) the verdict is against the weight of the evidence, (2) the court

allowed the government to introduce 404(b) evidence of a narcotics detection canine

signaling the presence of a controlled substance in Frazier's vehicle, (3) the agent

and confidential informant gave false testimony at trial, and (4) the government

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withheld evidence from him in violation of Brady v. Maryland, 373 U.S. 83 (1963).

The court will address each argument in turn.

A. Weight of the Evidence

Frazier first argues that he should get a new trial because his conviction is

against the weight of the evidence. "A motion for a new trial based on the weight of

the evidence is not favored and is reserved for really exceptional cases.” United

States v. Brown, 934 F.3d 1278, 1297 (11th Cir. 2019) (internal quotations and

citations omitted). "For a new trial to be warranted, the evidence must preponderate

heavily against the verdict, such that it would be a miscarriage of justice to let the

verdict stand.” Id. (cleaned up). The standards for granting a motion for judgment of

acquittal and a motion for new trial based on the weight of the evidence are similar,

but they are not identical. See id. For example, "[a] district court may grant a new

trial based on the weight of the evidence even if the evidence is sufficient to convict

in the 'rare' case in which the evidence of guilt although legally sufficient is thin and

marked by uncertainties and discrepancies.” Id. (internal quotations and citations

omitted).

Frazier has not shown that the evidence presented at trial was "marked by

uncertainties and discrepancies.” And as explained above, there was sufficient

evidence for the jury to find Frazier guilty, so the evidence did not preponderate

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heavily against the verdict. So the court rejects Frazier's argument that his

conviction was against the weight of the evidence.

B. Rule 404(b)

Frazier also argues that he was denied a fair trial because the court allowed

the government to introduce video evidence of a drug dog alerting to the presence

of a controlled substance in his Talladega county work truck. Rule 404(b) provides

that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's

character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). But this evidence may be

admissible for another purpose, such as proving motive, opportunity, intent, plan, or

identity. Fed. R. Evid. 404(b)(2). The court allowed the government to show the jury

the video evidence of the drug dog to prove Frazier's identity.

The Eleventh Circuit applies a three-part test to determine whether evidence

of a crime, wrong, or other act is admissible under Rule 404(b). "First, the evidence

must be relevant to an issue other than the defendant's character.” United States v.

Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993). Then, "as part of the relevance

analysis, the evidence must be sufficient to support a finding that the defendant

actually committed the extrinsic act.” Id. Finally, "the probative value of the

evidence must not be substantially outweighed by unfair prejudice.” Id.

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The "application of this test to evidence introduced under Rule 404(b) var[ies]

depending on the issue for which it was offered.” United States v. Phaknikone, 605

F.3d 1099, 1108 (11th Cir. 2010) (internal quotations and citations omitted). And

"evidence offered to prove identity must satisfy a 'particularly stringent' analysis.”

Id. The crucial consideration is the likeness of the offenses, and the two offenses

must be so similar that they evidence a modus operandi. See id. "Evidence cannot

be used to prove identity simply because the defendant has at other times committed

the same commonplace variety of a criminal act.” Id. (cleaned up).

Evidence of the drug dog indicating drugs in Frazier's Talladega County work

truck was relevant to proving his identity. Throughout trial, Frazier questioned the

confidential informant and case agent's ability to identify him as the person who

distributed methamphetamine during the controlled drug buy. As a result, Frazier

made identity a primary issue at trial.

And the transportation of drugs in Frazier's work truck was sufficiently

similar to the distribution of the methamphetamine during the controlled drug buy

to meet the standards for admissibility under Rule 404(b). The confidential

informant testified that he saw Frazier drive up to Roosevelt Avenue in a white "city”

or "government” work truck and throw a white bag out the window. The white bag

was then later found to contain about one-and-a-half pounds of methamphetamine.

Several months later, a drug dog signaled that narcotics had been present in a

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Talladega County work truck belonging to Frazier and matching the description

provided by the confidential informant.2 The court finds that the transportation of

drugs in a county work truck is not so "commonplace” that any individual could

have done it. See id. So the government satisfied the first-prong of the Rule 404(b)

test.

But Frazier argues that evidence that he transported drugs in his work truck

around August 2020, when the drug dog signaled the presence of narcotics in his

vehicle, is "unsupported.” Frazier also contends that about a month after the videos

shown at trial were taken, the same drug dog alerted to the presence of drugs in his

work truck, but the testing of bottles seized from Frazier's truck failed to show the

presence of drugs. According to Frazier, these subsequent events cast doubt on the

accuracy of the drug dog's hit on his work truck.

The court notes that Frazier did not make this argument when moving to

exclude the videos of the drug dog either before or during trial. Nor has Frazier

presented evidence that shows that bottles seized from his truck tested negative for

the presence of narcotics. But the government does not dispute that this testing

happened during a larger investigation into Frazier. See Doc. 46 at 7. So the court

will assume that Frazier's description of these events is accurate.

2 The court recognizes that the confidential informant testified that he saw Frazier driving a "city”

work truck but notes that his description of the work truck generally matches the description of the

work truck that Frazier drove for Talladega County.

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Even so, the court finds that the government met its burden to show that the

drug dog accurately detected narcotics inside Frazier's work truck. Under the second

prong of the Eleventh Circuit's Rule 404(b) test, the government only had to present

enough evidence for the jury to find by a preponderance of the evidence that Frazier

had had narcotics inside his work truck. See United States v. Edouard, 485 F.3d

1324, 1345 (11th Cir. 2007). And at trial, the government presented video evidence

of a trained narcotics dog alerting to the presence of narcotics in a work truck that a

Talladega County Drug Task Force agent testified that he knew Frazier drove.

The agent also testified about the dog's extensive training in narcotics

detection and his belief that this dog was the best trained narcotics canine that he had

ever seen. The agent stated that based on his observations this dog had never had a

false positive hit on narcotics—i.e., the dog only alerts to the presence of narcotics

when narcotics had been or were present at that location. Frazier's contention that

bottles seized from his truck tested negative for narcotics does not undermine this

evidence, especially considering that the dog alerted to the presence of narcotics in

the truck, not specifically to the presence of narcotics in the bottles. The court thus

determines that a reasonable jury could find by a preponderance of the evidence that

Frazier committed the extrinsic act admitted under Rule 404(b).

Finally, the court addresses whether the probative value of the drug dog videos

was substantially outweighed by unfair prejudice to Frazier. Again, Frazier's identity

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was one of the main issues at trial. And the confidential informant testified that

Frazier was driving a white government work truck during the controlled drug buy.

So evidence that drugs had been present in Frazier's work truck was highly

probative. And while Frazier was at least somewhat prejudiced by the drug dog

videos, the court finds that the videos were not unduly prejudicial. The court gave

two limiting instructions related to this evidence. First, just before the government

played the videos, the court instructed the jury that the jury could only use this

evidence to consider whether the videos suggest that the same person committed the

acts charged in the indictment. Second, at the close of trial, the court instructed the

jury that Frazier was only on trial for the crime charged in the indictment and that

the jury may not convict him for an act committed at another time. These limiting

instructions mitigated any unfair prejudice to Frazier. See id. at 1346. So the

probative value of the videos was not substantially outweighed by unfair prejudice.

Because all prongs of the Rule 404(b) test are met even when considering

Frazier's allegations about the bottles taken from his truck, the court finds that the

introduction of the videos of the drug dog does not entitle Frazier to a new trial.

C. Alleged False Testimony of Confidential Informant & Special

Agent

Frazier next asserts that the government violated his due process rights by

knowingly offering false testimony from the confidential informant and case agent

Carrie Lane. To obtain a new trial on this basis, Frazier must show "that the

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prosecutor knowingly used perjured testimony, or failed to correct what he

subsequently learned was false testimony, and that the falsehood was material.”

United States v. Vallejo, 297 F.3d 1154, 1163–64 (11th Cir. 2002) (internal

quotations and citations omitted).

Frazier points to two categories of testimony that he says was false: (1)

testimony from the confidential informant about how he paid the $9,000, and (2)

testimony from Agent Lane related to cell phone calls. The court addresses each

category of testimony in turn.

1. Confidential informant: Frazier argues that the confidential informant's

testimony about how the drug transaction occurred must be false because it

contradicts testimony from Agent Lane during Frazier's detention hearing.3 As

detailed above, the confidential informant testified at trial that he went to a

convenience store and paid $9,000 for the methamphetamine to a man named Jeremy

Rivers. The confidential informant then said that he went (by himself) to Roosevelt

Avenue where he saw Frazier drive by and drop off the methamphetamine. At the

detention hearing, Agent Lane testified that the confidential informant told her that

he met with Rivers at the convenience store and then left the store with Rivers to go

to Roosevelt Avenue and see if the drugs were ready. She then stated that once the

3 The government contends that this testimony is from Frazier's grand jury proceedings, not the

detention hearing.

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two men arrived together at Roosevelt Avenue, the confidential informant saw

Frazier's truck and paid Rivers the $9,000. According to Agent Lane, the

confidential informant told her that when he paid Rivers the $9,000, Frazier's truck

drove off, and he saw a that a bag had been left near a curb where Frazier had parked

the truck.

Agent Lane's testimony at the detention hearing about what the confidential

informant told her slightly contradicts the confidential informant's testimony at trial.

But their stories were generally consistent: the confidential informant met up with

Rivers at a convenience store and then went to Roosevelt Avenue where he saw

Frazier drop off a bag filled with methamphetamine. And the fact that two witnesses

have different memories of an incident "falls far short of establishing that the

government had knowledge of false testimony being presented to the jury.” See

United States v. Lopez, 985 F.2d 520, 524 (11th Cir. 1993). In fact, it is just as likely

that the confidential informant, and not Agent Lane, accurately described what

happened during the controlled drug buy. So the court finds that Frazier has failed

to show that the government knowingly allowed the confidential informant to

perjure himself at trial.

2. Cell phone calls: Frazier asserts that Agent Lane made three false

statements related to the cell phone call that set up the controlled drug buy. First,

Frazier contends that Agent Lane testified falsely when she said that it was her

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opinion that Frazier was the person on the phone with the confidential informant

because she had heard his voice before in jail phone calls. Second, Frazier alleges

that Agent Lane falsely testified when she stated that in meetings before setting up

the controlled drug buy, the confidential informant had identified the number that he

called to set up the drug buy as belonging to Frazier. Finally, Frazier states that Agent

Lane falsely testified that she ran a search on the cell phone number that the

confidential informant called and that the number came back to a prepaid phone.

Frazier has failed to prove that any of Agent Lane's testimony related to the

cell phone calls was false. Nor has he shown that the government knew that Agent

Lane perjured herself. Instead, Frazier merely speculates that Agent Lane's

testimony about hearing Frazier speak on jail calls and being told his phone number

before the confidential informant set up the controlled drug buy must be false

because he received no discovery from the government that revealed these facts. And

he argues that Agent Lane must have lied about tracing the cell phone number to a

prepaid phone because after trial his attorney ran a search on the cell phone number

and it came back to a person other than Frazier.

Just because Frazier received no discovery about certain aspects of Agent

Lane's testimony does not mean that Agent Lane's testimony was false, much less

that the government knew it was false. That is all the more true because Agent Lane

did not testify about having heard Frazier's voice before or having been told that the

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cell phone number belonged to Frazier until Frazier's attorney asked questions

related to these topics on cross examination. And Agent Lane testified that she was

"not a hundred percent certain” but "believe[d]” her search of the number given to

her by the confidential informant "came back to a prepaid telephone.” See Doc. 42

at 37. So the court highly doubts that the government knew Agent Lane's testimony

related to the search results of the cell phone number was false. The court will not

grant Frazier a new trial based on his argument that the government knowingly

presented false testimony in violation of his right to due process.

D. Alleged Brady violations

Frazier finally argues that the government suppressed evidence related to the

alleged false testimony in violation of Brady. Brady requires the government "to turn

over to the defense evidence that is favorable to the accused.” United States v.

Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003). And "[i]mpeachment evidence should

be disclosed in time to permit defense counsel to use it effectively in crossexamining the witness.” Id. at 1253.

But the government's obligations under Brady are limited to evidence that is

material. "Accordingly, under Brady, the government need only disclose during

pretrial discovery (or later, at the trial) evidence which, in the eyes of a neutral and

objective observer, could alter the outcome of the proceedings.” Id. at 1252.

Impeachment evidence is material if it "is likely to cast doubt on the reliability of a

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witness whose testimony may well be determinative of guilt or innocence.” See id.

at 1253 (internal quotations and citations omitted).

1. Cell phone related evidence: The court rejects Frazier's argument that the

government violated Brady by suppressing evidence related to Agent Lane's

testimony about the cell phone call for three reasons. First, the government only

violates Brady when it withholds exculpatory evidence from the defense. See

Jordan, 316 F.3d at 125. And evidence that Agent Lane could identify Frazier's

voice during the call setting up the drug buy, had been previously told that the

number the confidential informant called belonged to Frazier, and traced the cell

phone number to a prepaid phone was inculpatory evidence helpful to only the

government.

Second, although Agent Lane's testimony that she could identify Frazier's

voice during the call setting up the drug buy might be material, evidence that Agent

Lane had been told the cell phone number belonged to Frazier and had traced the

number to a prepaid phone is not. Agent Lane testified multiple times at trial that

although the confidential informant had told her that the cell phone belonged to

Frazier, she had not been able to definitively tie the number to Frazier. And Agent

Lane testified that she merely "believe[d]” she had found out through investigation

that the cell phone number the confidential informant gave her came back to a

prepaid phone. Given the context of Agent Lane's testimony about whether the cell

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phone number belonged to Frazier and her admitted inability to tie the phone number

to Frazier, the court finds that disclosing this testimony to the defense before trial

would not have altered the outcome of the proceedings.

Finally, Frazier has failed to show that the government had evidence in its

possession that would have shown that Agent Lane's testimony was false. To the

extent that Frazier even makes this argument, he merely states that "the government

suppressed the evidence that would have shown the testimony was in fact false that

was used to convict the defendant.” See Doc. 47 at 2. This conclusory assertion falls

far short of meeting Frazier's burden to show a due process violation under Brady.

2. Detention hearing testimony: The court also rejects any argument Frazier

may be making that the government violated Brady by suppressing evidence of

Agent Lane's testimony at the detention hearing. The government states that it gave

Frazier a transcript of Agent Lane's testimony on November 30, 2020 (i.e., the first

day of trial). Frazier does not dispute this statement. Nor has he argued that he did

not receive the transcript in time to effectively impeach either Agent Lane or the

confidential informant on cross-examination. In short, Frazier has failed to show that

the government's handling of this transcript violated Brady. So the court can discern

no reason under Brady to grant Frazier's motion for new trial.

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* * *

Because none of Frazier's arguments in favor of a new trial have merit, the

court will deny Frazier's motion for a new trial (doc. 45).

MOTION FOR EVIDENTIARY HEARING

Frazier finally moves for an evidentiary hearing on his motion for new trial

(doc. 47). According to Frazier, "[a] hearing on the motion for new trial will show

that the Government knew or should have known about [the confidential informant

and Agent Lane's] false statements and that there is no evidence to support that the

testimony of the CI and the agent were not false.” Doc. 47 at 2.

"[P]ost-trial discovery or an evidentiary hearing based upon mere speculation

that it could produce helpful information is not appropriate.” See United States v.

Sotolongo, 748 F. App'x 879, 886 (11th Cir. 2018). And "[a]bsent some evidence

suggesting wrongdoing,” this court is "not obligated to grant a hearing” on a motion

for new trial. See United States v. Champion, 813 F.3d 1154, 1171 n.25 (11th Cir.

1987). As explained above, even accepting as true Frazier's allegations about the

bottles seized from his truck, the introduction of the 404(b) evidence does not entitle

Frazier to a new trial. And Frazier has offered only speculation and conjecture to

support his arguments that the government knowingly offered false testimony at trial

and withheld evidence in violation of Brady. So the court will deny Frazier's motion

for evidentiary hearing (doc. 47).

For these reasons, the court DENIES Frazier’s motion for judgment of

acquittal (doc. 43), motion for new trial (doc. 45), and motion for evidentiary hearing (doc. 47).