United States v. Kareem Bailey
840 F.3d 99
| 3rd Cir. | 2016Background
- Four appellants (Bailey, Davis, Macon, Venable) convicted for participating in the Derry Drug Trafficking Organization (DDTO): drug conspiracy, use/possession of firearms in furtherance of the conspiracy, and phone-facility offense; Davis also convicted as a felon in possession. Sentences ≈ 240–241 months.
- Investigation (2010–2013) used CI buys, surveillance, prison-call intercepts, GPS, pen registers, and ultimately authorized wiretaps on Mykal Derry and a supplier; ~6,700 relevant intercepted calls recorded; cooperating co-conspirator Kareem Young provided key testimony.
- Defendants challenged (1) sufficiency of evidence for conspiracy and firearms counts, (2) admissibility of wiretap-derived evidence (necessity), (3) admission of violent-act evidence under Rules 404(b)/403 (notably video and non-video evidence of the Tyquinn James murder and the Rosario assault; and Bailey’s prior conviction), and (4) denial of mistrials based on isolated witness statements and rebuttal comments.
- District court admitted a broad set of evidence including wiretap calls, witness testimony, trap-house proof, firearms evidence, prior convictions, and a surveillance video of James’s murder; defendants mostly convicted on all charged counts.
- This panel affirms convictions in full, holding (a) sufficiency, wiretap necessity, and most evidentiary rulings proper, (b) admission of the James murder surveillance video violated Rule 403 but the error was harmless given overwhelming other evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for drug conspiracy membership | Gov’t: circumstantial proof (wiretaps, Young’s testimony, credit sales, lookouts, referrals) shows shared purpose, intent, and agreement | Defs: were mere buyers or peripheral actors, not conspirators | Held: Evidence sufficient; Gibbs/Caraballo-Rodriguez deferential standard; jury verdict upheld |
| Sufficiency for firearms-in-furtherance (including Pinkerton liability) | Gov’t: DDTO used guns routinely; defendants possessed/used guns or reasonably foresaw co-conspirators’ gun use | Defs: no proof they possessed or used guns in furtherance | Held: Sufficient; direct evidence plus Pinkerton foreseeability supported convictions |
| Wiretap necessity under Title III | Gov’t: exhaustive traditional techniques tried/failed; affidavit detailed why wiretap was needed to learn full scope | Defs: investigators should have relied on non-wiretap methods | Held: District court did not err; wiretap necessity shown (practical/common-sense review) |
| Admission of violent-act evidence (James murder video & non-video; Rosario assault) | Gov’t: murder/assault evidence probative of firearms usage and foreseeability; video shows brazen conduct | Defs: unfairly prejudicial under Rule 403 and some Rule 404(b) objections | Held: Non-video evidence admissible; surveillance video of James’s murder should have been excluded under Rule 403 (no on-record balancing and high prejudice vs low incremental probative value) but admission was harmless error due to overwhelming other evidence |
| Admission of Bailey’s prior Sept 2010 arrest/conviction | Gov’t: shows Bailey’s knowledge that local drug trafficking involved firearms; proper non-propensity purpose under Rule 404(b) | Bailey: evidence was improper propensity proof, not intrinsic, and too prejudicial under Rule 403 | Held: Evidence was extrinsic but admissible for non-propensity purpose (knowledge/foreseeability); Rule 403 balancing proper; admission affirmed |
| Denial of mistrials based on inadvertent testimony/comments | Gov’t: remarks were fleeting/mistaken, promptly cut off; no prejudice to defendants | Defs: remarks injected highly prejudicial detail (sexual assault reference; head-stamp/ballistics; rebuttal narrowing conspiracy period) | Held: No abuse of discretion in denying mistrials; statements were isolated, curable, and did not connect defendants to new uncharged conduct |
Key Cases Cited
- United States v. Gibbs, 190 F.3d 188 (3d Cir. 1999) (factors differentiating conspirator from buyer-seller relationships)
- United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d Cir. 2013) (en banc) (deferential sufficiency review in drug conspiracy cases; do not act as thirteenth juror)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of the evidence)
- Pinkerton v. United States, 328 U.S. 640 (U.S. 1946) (co-conspirator liability for reasonably foreseeable substantive offenses)
- Old Chief v. United States, 519 U.S. 172 (U.S. 1997) (government entitled to prove its case and may refuse defendant’s stipulation)
- United States v. Cunningham, 694 F.3d 372 (3d Cir. 2012) (Rule 403 cumulative/graphic video analysis; diminishing probative value of repetitive excerpts)
- United States v. Zehrbach, 47 F.3d 1252 (3d Cir. 1995) (harmless error standard for evidentiary mistakes)
- United States v. Giordano, 416 U.S. 505 (U.S. 1974) (Title III wiretap necessity principles)
- Huddleston v. United States, 485 U.S. 681 (U.S. 1988) (Rule 404(b) relevance requires that a jury could reasonably conclude the act occurred and the defendant was the actor)
- United States v. Armocida, 515 F.2d 29 (3d Cir. 1975) (wiretap use justified to uncover full scope of conspiracy)
- United States v. Vento, 533 F.2d 838 (3d Cir. 1976) (Title III may be used to discover full extent of conspiracies)