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.
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
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)
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
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
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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
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
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).
Outcome: 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).