UNITED STATES OF AMERICA, -against- JOSHUA GOLSTON, Defendant.
23 Cr. 362 (AT)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 5, 2024
ANALISA TORRES, District Judge
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 06/05/2024
On March 1, 2024, a jury found Defendant, Joshua Golston, guilty of distribution of narcotics, in violation of
BACKGROUND
Count Three charges a violation of
Golston argues that the Government “misdescribed the nexus еlement” of Count Three in its rebuttal summation, warranting a new trial. Def. Mem. at 1. He concedes that the Government accurately stated the nexus requirement during its initial summation, during which the Government еxplained to the jury:
Now, I expect that Judge Torres is going to tell you what it means for a firearm to be possessed in furtherance of drug trafficking, and you are required, to be clear, to listen to her, not me, when it comes to instructions on the law. But I expect that Judge Torres will tell you something like this, that for you to conclude that the firearm was possessed in furtherance of drug dealing, the firearm must have had something called a nexus, some purpose or effect with respect to the underlying drug offense such as where the firearm is readily accessible tо protect drugs, drug proceeds, or the drug dealer himself. And in deciding whether the gun was used for such a purpose, you may consider various factors. Judge Torres will explain those to you later.
Trial Tr. at 270:16-271:3; see Def. Mem. at 3-4, 5 (describing the Government‘s initial description of the nexus element as “unobjectionable“). In its opening statement, the Government also discussed the evidence that it contended supported a nexus finding, noting that the gun was loaded, Trial Tr. at 274:7-11; was illegally possessed, id. at 274:11-23; had a defaced serial number, id. at 274:23-275:8; and was physically accessible to Golston during the drug deals, id. at 275:9-13.
Then, in its rebuttal summation, the Government told the jury:
Some of the other facts [the Government] pointed out—and we could just stop right there, ladies and gentlemen—that accessibility of the gun during those drug deals, that‘s all you need. It speaks for itself, but you can think back to those other facts, too, the gun being strapped to his chest filled with bullets, the fact that the [Defendant] wasn‘t even allowed to possess a gun because he‘d been previously
convicted of a felony, the fact that the serial number was drilled out. All of these things tell you that gun was possessed for drug dealing, not for some other innocent purpose.
Trial Tr. at 311:2-11.
Following summations, the Court instructed the jury:
To possess a firearm in furtherance of the crime means the firearm helped forward, advance, or prоmote the commission of the crime. The mere possession of the firearm at the scene of the crime is not sufficient under this definition. The firearm must have had some nexus, that is some purрose or effect with respect to the underlying drug offense; such as where the firearm is readily accessible to protect drugs, drugs proceeds or the drug dealer himself. In deciding whether there is such a nexus, you may consider the accessibility of the firearm, whether the firearm was loaded, the type of weapon, whether or not the defendant legally possessеd it, the type of drug activity conducted, whether the firearm was stolen, the time and circumstances under which the firearm was found, and the proximity of the firearm to drugs or drug profits. This list of factors is nоt exclusive, but it helps to distinguish between possession in furtherance of a crime, and innocent possession, such as a drug dealer who possesses a wall-mounted antique or an unloaded rifle that is locked in a cupboard and used for target shooting or in a hunting game.
Id. at 336:17-337:11. The Court also instructed the jury that “[i]f an attorney has stated a legal principle different from any thаt I state to you in my instructions, it is my instructions that you must follow.” Id. at 313:1-3. The jury received physical copies of the charge to consult during its deliberations.
After the charge, defense counsel objеcted to the Government‘s rebuttal statement that “all you need” to find a nexus is “accessibility.” Id. at 351:8-14. Counsel for the Government responded that it was permissible “to argue that one of thosе factors is most compelling and would be sufficient on its own to reach that conclusion, especially when it‘s followed by discussion of the other factors.” Id. at 351:19-23. The Court explained thаt it “made a very explicit instruction” and denied defense counsel‘s request for a “further curative instruction.” Id. at 352:1-3.
LEGAL STANDARD
Courts have broad discretion to grant a new trial under
“It is well-settled that both the prosecution and defense are entitled to broad latitude in the inferences they may suggest to the jury during closing arguments, provided they do not misstate the evidence, refer tо facts not in evidence, or express counsel‘s personal belief as to guilt or innocence.” United States v. Smith, 778 F.2d 925, 929 (2d Cir. 1985) (quotation marks and citation omitted). “An improper summation will only warrant a new triаl when the challenged statements are shown to have caused substantial prejudice to the defendant; rarely will an improper summation meet the requisite level of prejudice.” United States v. Daugerdas, 837 F.3d 212, 227 (2d Cir. 2016) (quoting United States v. Mapp, 170 F.3d 328, 337 (2d Cir. 1999)). In considering whether a prosecutor‘s remarks rise to the level of prejudicial error, courts examine “the severity of the misconduct, the measures adopted to cure thе misconduct, and the certainty of conviction absent the misconduct.” United States v. Coplan, 703 F.3d 46, 86 (2d Cir. 2012)
DISCUSSION
Golston argues that he should receive a new trial on Count Three because the Government‘s rebuttal summation “rеwrote the [nexus] element as a mere ‘accessibility’ requirement.” Def. Mem. at 8. The Court disagrees.
First, the Court considers the severity of the misconduct. The Government‘s rebuttal remarks on the accessibility of the firearm being “all you need,” “while arguably imprecise, were by no means unreasonable in light of the evidence presented at trial.” United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005). Accessibility of a firearm during a drug сrime is one relevant factor to the “ultimate question[:] whether the firearm afforded some advantage (actual or potential, real or contingent) relevant to the vicissitudes of drug trafficking.” Lewis, 62 F.4th at 746 (cleaned up). In summations, where the parties are “entitled to wide latitude,” the Government did not prejudice Golston by focusing on accessibility, which it perceived to bе one of its strongest arguments. Daugerdas, 837 F.3d at 227 (citation omitted); see Trial Tr. at 271:16-272:22; id. at 310:25-311:5. And, the Government went on to detail other factors relevant to nexus—including that the gun was loaded, illegally possessed, and had a defaced serial number—diminishing the risk that the jury focused solely on whether the gun was accessible. Trial Tr. at 274:7-275:8; id. at 311:5-11. Any misstatement of the law on the Government‘s part was, therefore, far from severe.
Second, to the extent that the Government‘s rebuttal remarks were improper, any error was neutralized by the Court‘s subsequent charge to the jury. See, e.g., United States v. Faison, 555 F. App‘x 60, 64 (2d Cir. 2014) (finding that “the district court cured any misunderstanding through its instructions to the jury“); see also Weeks v. Angelone, 528 U.S. 225, 226 (2000) (“[A]
Finally, the evidence discussed above shows a “certainty of conviction absent the [purported] misconduct.” Coplan, 703 F.3d at 86. Thе Government offered ample evidence to support a finding of guilt beyond a reasonable doubt on Count Three, and Golston has not shown that “absent the isolated impropriety оf the prosecutor in rebuttal summation (taken in the context of the entire trial),” he would not have been convicted. United States v. Elias, 285 F.3d 183, 192 (2d Cir. 2002). Although the jury expressed some difficulty in arriving at the verdict, see Tr. at 371:24-372:3, the defense cannot be heard to say that the ultimate conviction hinged on the rebuttal summation.
CONCLUSION
For the foregoing reasons, Golston‘s motion for a new trial is DENIED. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 82.
SO ORDERED.
Dated: June 5, 2024
New York, New York
ANALISA TORRES
United States District Judge