United States v. Curry

UNITED STATES OF AMERICA, Plaintiff, v. RAYMOND CURRY, Defendant.

8:20CR171

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

June 22, 2021

MEMORANDUM AND ORDER

This matter is before the Court on Defendant Raymond Curry's motion for judgment of acquittal under Federal Rule of Criminal Procedure 29. Defendant made the motion at the close of the government's evidence at trial and again at the close of all evidence. After the jury returned a guilty verdict, the Court expressly took the motion under advisement. Filing No. 78. For the reasons stated, the motion will be denied.

BACKGROUND

The following facts are summarized from the Transcript (Tr.) of the trial (Filing Nos. 67, 84-87) and, for purposes of this motion, are viewed in a light most favorable to the jury's verdict. For purposes of this Motion, the Court focuses on the initial traffic stop and testimony of DNA evidence.

I. Initial Traffic Stop

On February 5, 2020, at around 1:30 a.m., Omaha Police Officers Anthony Barnes and Tammy Phillips were on routine patrol on an otherwise empty Florence Boulevard in Omaha. The officers observed an oncoming vehicle with a burned-out headlight and turned around to conduct a traffic stop. As officers positioned their cruiser behind the vehicle, the vehicle immediately turned right onto Maple Street and parked, partially blocking the lane of travel. After parking the vehicle, the driver—later identified as Defendant—exited and walked away from the still-running vehicle. Officers issued several commands to stop before Defendant stopped walking. After stopping, Defendant told officers that he lived around the corner and that his girlfriend in the vehicle, Otoluse Pahulu, was pregnant and needed medical attention. Pahulu later told officers that she was not pregnant.

As Officer Barnes approached Defendant, Pahulu began to exit the vehicle. Officer Phillips testified that she saw Pahulu holding her left arm close to her body with her other arm relaxed. Officer Phillips testified that Pahulu could have been attempting to conceal something. The video of the stop introduced at trial shows that after Pahulu exited the vehicle, Pahulu attempted to run from Officer Phillips as she attempted to place Pahulu in handcuffs. After a short pursuit, Officer Phillips apprehended Pahulu on the ground. Officer Phillips testified that as Pahulu ran, she discarded an item onto the ground near where Officer Phillips caught her. The item was later determined to be a Jennings 9-millimeter handgun (the "firearm").

While Pahulu was on the ground, she told Officer Phillips, "It's not mine. It's not mine." Tr. 132, Filing No. 85 at 102. Shortly after making that statement, Pahulu told Officer Phillips, "It's mine." Id. Officer Phillips got Pahulu to her feet and as Officer Phillips was leading Pahulu away, Defendant yelled to Pahulu, "I told you not to [walk]." Tr. 124, Filing No. 85 at 94. Pahulu responded: "It doesn't matter, it's mine. The gun is mine." Id.

Pahulu was arrested and incarcerated in the Douglas County Jail on misdemeanor firearm and obstructing charges. Defendant was not jailed at the time. On two occasions, while still in jail, Pahulu had phone conversations with Defendant. During a call onFebruary 12, 2020, Pahulu asked Defendant to get her out on bond. During the call, Pahulu told Defendant, "you want me to be the one to admit to everything." See Trial Ex. 19. During a call the next day, Pahulu told Defendant to stop "talking to me like it's my fault, like please, because you know half of this shit I'm even going through right now is not even, ain't even my fault." See Trial Ex. 20. Defendant responded, "You right...I said you right." Id.

II. DNA Evidence

The government collected DNA swabs from the firearm. At trial, Crime Lab technician Russel Razsler testified that he specifically tested swabs from the textured features of the firearm, including the grip, magazine, release, and slide. Razsler explained that textured areas with high hand activity were most likely to cause skin to be sloughed. The government also presented testimony from a DNA expert, Mellissa Helligso, a forensic DNA analyst at the University of Nebraska Medical Center. Helligso also testified that the textured features of the firearm were more likely to accumulate DNA from skin cells as a result of touch or handling.

Helligso explained that DNA in humans is about 99.9 percent identical, and her laboratory studies the remaining 0.1 percent to generate the unique identity of an individual from a DNA sample. Within the chromosomes found in a DNA sample, analysts test 24 different "locations" to determine whether a specific person's "alleles" appear in any of the locations. An individual's alleles are unique to that person. Helligso used a geographic analogy to explain: if a chromosome is a state, the loci or locations are streets, and the alleles are the individual's specific address. See Filing No. 67 at 17-18.

In general terms, to determine whether an individual's DNA is present on an object, analyst compare test swabs taken from the object with swabs taken from an individual. Analysts first determine whether the alleles from the swabs match, and then test the probability of the individual sharing the alleles with the general population. These comparison tests generate one of three conclusions: First, the test could show that the individual was "excluded," meaning the individual was not detected as part of the DNA swabbed from the object. Second, the test could show that the individual was "not excluded," meaning the individual was a contributor to the DNA sample swabbed from the object. Third, the test could show that that the DNA sample was inconclusive, meaning there was not enough data to determine whether an individual was part of a DNA profile or not.

To reach one of these three conclusions for samples taken from the firearm, Helligso used a software called STRMix. STRMix analyzes data from a DNA sample and allows forensic analysts to first determine whether a sample has more than one DNA contributor and, if so, helps tease apart the individual DNA contributors of a sample. Helligso also used STRMix to generate a "likelihood ratio" for the swabs, which is a statistic that measures the likelihood that a particular individual's DNA was a contributor to a sample.

The likelihood ratio is essentially a division problem that measures the likelihood that an individual suspected of being a contributor to a DNA sample divided by the likelihood that unknown, unrelated individuals—essentially representing the people of the rest of the world—contributed to the sample. In its simplest form, the calculation might appear as follows:

Likelihood Ratio = DNA sample of suspect + DNA sample of 1 unknown individual / DNA sample of 2 unknown, unrelated individuals

If this (simplified) division equation results in a 1, that means that the likelihood on the top of the equation and the likelihood on the bottom of the equation are equally as likely, so the analysis would not be informative. As the number from the equation increases, so does the likelihood that the suspected individual contributed to the DNA sample. Helligso testified that a number between 2 and 99 provides limited support, a number between 100 and 9,999 provides moderate support, a number between 10,000 and 999,999 provides strong support, and a number over 1,000,000 is considered very strong support.

Helligso testified that swabs taken from the firearm showed a DNA mixture of at least three individuals. One individual contributed 84 percent of the DNA on the firearm, another contributed 9 percent, and another contributed 6 percent. Defendant's DNA compared to samples taken from the firearm. These percentages loosely represent the quantity of DNA of each individual retrieved from the swab of the firearm. The higher the percentage of DNA, the more DNA found from a particular swab. Helligso testified that if an individual handled an object more recently, the percentage of that person's DNA found from a swab would likely be higher.

Helligso concluded that Defendant was not excluded as a contributor to the DNA profile swabbed from the firearm. When Helligso analyzed the DNA profile that represented 9 percent of the mixture taken from the swabs, she concluded that the mixture was at least 2.67 trillion times more likely that it originated from Raymond Curry and two unknown unrelated individuals than if it related to three unknown unrelatedindividuals. According to Helligso, this likelihood ration showed very strong support that Defendant was a contributor to the DNA mixture found on the firearm.

STANDARD OF REVIEW

Under Fed. R. Crim. P. 29(a), the district court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." "A district court must consider a motion for judgment of acquittal with very limited latitude and must neither assess the witnesses' credibility nor weigh the evidence." United States v. Johnson, 474 F.3d 1044, 1048 (8th Cir. 2007). A guilty verdict should be overturned only if, viewing the evidence most favorably to the prosecution, "'no reasonable jury could have found the defendant guilty beyond a reasonable doubt.'" United States v. Sanchez, 789 F.3d 827, 834 (8th Cir. 2015) (quoting United States v. Slagg, 651 F.3d 832, 839 (8th Cir.2011)). "Like the district court, [the Court of Appeals] view[s] the evidence in the light most favorable to the guilty verdict, and grant[s] all reasonable inferences that are supported by that evidence." United States v. Dean, 810 F.3d 521, 527 (8th Cir. 2015).

DISCUSSION

Defendant was found guilty of being a felon in possession of a firearm. Because Defendant did not have actual possession of the firearm found with Pahulu, the government's theory of guilt was based on constructive possession. The government specifically argues that Defendant had shared dominion and access to the premises where the...