Nos: 02-1040 & 02-1486 UNITED STATES OF AMERICA v. CEDRICK ATKINS a/k/a SHAWN TALLEY Cedrick Atkins

*Honorable James C. Hill, Senior Judge, United States Court of Appeals for the
Eleventh Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 02-1040 & 02-1486
UNITED STATES OF AMERICA
v.
CEDRICK ATKINS
a/k/a
SHAWN TALLEY
Cedrick Atkins,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 99-cr-00633-1)
District Court Judge: Hon. John R. Padova
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 5, 2002
Before: BECKER, Chief Judge, McKEE and HILL*, Circuit Judges
(Opinion Filed: January 23, 2003)

-- 1 of 5 --

1Atkins’ counsel did not appeal the judgment of sentence entered on December 7,
2000. On October 18, 2001, the Atkins filed a pro se Motion to Vacate, Set Aside or
Correct Sentence, pursuant to 28 U.S.C. §2255, alleging ineffective assistance of counsel.
One of these claims was that his counsel was ineffective for failing to file a timely notice
of appeal, as the defendant had requested. However, the district court vacated his original
sentence of December 7, 2000 and resentenced him on February 8, 2002 to the same
sentence of 183 months. Thereafter, pursuant to the court’s direction, the clerk filed a
notice of appeal on Atkins’ behalf.
2 Atkins also attempts to argue (in two paragraphs at the end of his brief) that his trial
was tainted by the inadvertent introduction of testimony that pertained to a count on which
the district court subsequently granted a mistrial. However, at the conclusion of the
2
OPINION OF THE COURT
MCKEE, Circuit Judge.
On June 8, 2000 a jury convicted Cedrick Atkins of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. §924(c). He was
thereafter sentenced to 183 months incarceration. Atkins now appeals that conviction.1
For the reasons that follow, we will affirm.
Inasmuch as we are writing only for the parties and the district court, we need not set
forth the factual or procedural background except insofar as may be helpful to our brief
discussion. Atkins argues that the district court erred by not charging the jury on the
offense of simple possession as a lesser offense included in the offense of possession with
intent to distribute.2 Atkins did not object to the district court’s jury instructions.

-- 2 of 5 --

evidence, the court gave an appropriately forceful instruction in which it told the jury to
disregard all such evidence. Nothing on this record overcomes the presumption that the
jury followed that curative instruction. United States v. Newby, 11 F.3d 1143, 1147 (3d
Cir. 1993). Therefore, to the extent that Atkins has raised that claim, we reject it as
meritless.
3
Accordingly, we will reverse only if we find plain error. United States v. Turks, 41 F.3d
893, 897 (3d Cir. 1994). See Rule 52(b) Fed. R. Crim. Pro ( “Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention
of the court.”). In order for a plain error to exist
[t]here must be an error that is plain and that affect[s] substantial rights.
Moreover, Rule 52(b) leaves the decision to correct the forfeited error
within the sound discretion of the court of appeals, and the court should not
exercise that discretion unless the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted).
Here, the evidence that Atkins possessed cocaine with the intent to distribute was
overwhelming. During their search, detectives recovered paraphernalia often used in
crack-cocaine distribution, such as new and unused plastic packets, razor blades, straws cut
at one end and a candle used as a heat source to heat seal packets for retail distribution.
Supp. App. 276; Supp. App. 426-435 (testimony of Officer John Brennan).
Officer John Brennan, the government’s expert witness, testified that the evidence
found at the defendant’s home was consistent with possession with intent to deliver. Supp.
App. 423. According to that testimony, the amount of cocaine base, the residue-laden

-- 3 of 5 --

3 In addition to the 108 grams of crack cocaine taken from Atkins’ residence, police
seized a loaded FMJ Cobray nine-millimeter machine pistol, a large quantity of
ammunition, a “banana clip” loaded with 7.62 ammunition, an additional magazine for a .40
caliber pistol, and two empty gun boxes. Supp. App. 265-277; Supp. App. 325, 337. Atkins
was wearing a holster for another weapon which was never recovered. Supp. App. 185-187.
4
plate, scale, firearms,3 bulletproof vest and packaging seized were wholly inconsistent with
personal possession or addiction. Supp. App. 424.
We are, of course, well aware that Atkins attempted to raise a reasonable doubt
about his intent to distribute by introducing testimony of his own expert. Former
Philadelphia Police Sergeant Michael Perrone, was qualified as a defense narcotics expert.
He testified that, without more facts, the items that were seized “could be for personal
use.” App. 48. Significantly, however, on cross examination, Sergeant Perrone admitted
that in the course of his 25 years of experience as a police officer he could not recall a
single case in which he thought that someone who had 108 grams of crack cocaine
possessed it solely for personal use. App. 88. That testimony is hardly sufficient to
support Atkins’ argument that the court committed plain error in omitting a charge on
simple possession. In fact, Perrone’s testimony corroborates the fact that Atkins
possessed the cocaine with the intent to distribute it.
Accordingly, we will affirm his conviction.
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion

-- 4 of 5 --

5
/s/ Theodore A. McKee
Circuit Judge

-- 5 of 5 --