United States v. Dorian Swan
707 F. App'x 99
3rd Cir.2017Background
- Dorian Swan and six co-defendants were convicted after a jury trial of conspiracy to possess with intent to distribute cocaine (21 U.S.C. §§ 846, 841(a)(1)) based on a scheme that moved cocaine from South America → BVI (Tortola) → USVI (St. Thomas/St. Croix) → U.S. mainland.
- Prosecution witnesses placed Swan in the conspiracy: Turnbull said Swan handled a Philadelphia/Baltimore route and provided drugs to Turnbull; Glenson Isaac testified he retrieved cocaine from Swan in New York after instructions from Mark; Swaney purchased 20 kg in New York from Swan; Kevon Isaac saw suitcases of drugs and money handled by Swan and recorded a call with Swan referring to "two fowls" (interpreted as two kilos) and "Thrush."
- The district court admitted the recorded call and other testimony; Swan moved for acquittal (Fed. R. Crim. P. 29) and for a new trial (Rule 33) based on alleged improper closing remarks; both motions were denied.
- Swan was sentenced to 210 months (later reduced to 168 months under Guideline Amendment 782); he appealed raising three principal claims: insufficient evidence, improper admission of other-bad-acts evidence (Fed. R. Evid. 404(b)), and prosecutorial misconduct in closing argument.
- The Third Circuit reviewed sufficiency deferentially (viewing evidence in the light most favorable to the prosecution), evaluated whether contested evidence was intrinsic to the charged conspiracy, and assessed whether prosecution remarks were a permissible inference or a misstatement prejudicial enough to require reversal.
Issues
| Issue | Plaintiff's Argument (Gov't/Appellee) | Defendant's Argument (Swan) | Held |
|---|---|---|---|
| Sufficiency of the evidence to prove membership in the charged conspiracy | Evidence (witnesses, sales, route testimony, recorded call) shows Swan acted with unity of purpose and agreement with co-conspirators | Evidence only shows buyer-seller dealings or a separate, independent route (St. Croix→NY), not the conspiracy charged (alleged St. Thomas→NC route); claims variance and Kotteakos wheel-conspiracy problem | Affirmed: substantial evidence supports a single conspiracy including Swan; jury could infer agreement, common goal, and overlapping participation |
| Variance / wheel-conspiracy (Kotteakos) argument | Indictment broadly alleged airport-based smuggling to mainland; testimony tied Swan to routes and to Mark/others, satisfying a single-conspiracy theory | Trial evidence proved a separate St. Croix→NY route and multiple conspiracies (classic wheel), inconsistent with indictment | Affirmed: no prejudicial variance; Kelly factors (common goal, continuous cooperation, participant overlap) satisfied—single conspiracy proved |
| Admission of other-bad-acts evidence (Fed. R. Evid. 404(b)) | Contested acts were intrinsic to the charged conspiracy and therefore admissible to prove participation, knowledge, and relationship with co-conspirators | Admission of evidence about other defendants’ acts was prejudicial and improperly admitted under Rule 404(b) | Affirmed: evidence was intrinsic (directly proved conspiracy) so 404(b) exclusion/limiting instruction not required; district court did not abuse discretion |
| Prosecutorial misconduct in closing (linking recorded call to Glenson Isaac’s sales) | Prosecutor drew reasonable inference linking Swan’s recorded statement about "two fowls" to testimony about two kilos sold to Glenson Isaac | Prosecutor misstated/linked temporally distinct events (months apart), misleading jury and warranting mistrial/new trial | Affirmed: statements were reasonable inferences, not misstatements; even if error, not prejudicial given strength/volume of other evidence and lack of request for curative instruction |
Key Cases Cited
- Kotteakos v. United States, 328 U.S. 750 (1946) (wheel-conspiracy concern where indictment alleges one conspiracy but multiple separate conspiracies are proved)
- Musacchio v. United States, 136 S. Ct. 709 (2016) (standard for reviewing sufficiency of the evidence under Jackson)
- Jackson v. Virginia, 443 U.S. 307 (1979) (benchmark: review whether any rational trier of fact could find guilt beyond a reasonable doubt)
- United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d Cir. 2013) (en banc) (framing deferential standard for sufficiency review)
- United States v. Kelly, 892 F.2d 255 (3d Cir. 1989) (three-factor test to distinguish single conspiracy from multiple conspiracies)