UNITED STATES OF AMERICA, Appellee, v. CHRISTOPHER BARRET, D/B/A Derrick Brown, A/K/A Sean Brown, A/K/A Mouthy, A/K/A The General, A/K/A Chris, A/K/A Solo, OMAR MITCHELL, A/K/A Sox, LEON SCARLETT, A/K/A Agony, A/K/A Piggy, Defendants-Appellants.
Docket Nos. 12-4663(L), 13-3800, 14-573, 14-2014
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: February 15, 2017
August Term, 2015 (Argued: January 6, 2016)
Before: POOLER, HALL, and CARNEY, Circuit Judges.
We join our sister Circuits in finding that the testimony of a former co-defendant who pleads guilty during trial and then agrees to testify as a government witness at that same trial is admissible so long as the district court takes steps to avoid undue prejudice to the remaining defendants. See, e.g., United States v. Olson, 450 F.3d 655 (7th Cir. 2006). These steps include limiting testimony to events other than the witness‘s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances.
We also hold that the evidence adduced at trial was sufficient to permit the jury to conclude that Mitchell knowingly joined a conspiracy to distribute more
Affirmed.
JAMES M. BRANDEN, New York, NY, for Defendant-Appellant Christopher Barret.
MICHAEL H. SPORN, New York, NY, for Defendant-Appellant Omar Mitchell.
PETER TOMAO, Garden City, NY, for Defendant-Appellant Leon Scarlett.
TYLER J. SMITH, Assistant United States Attorney (Amy Busa, Peter A. Norling, Assistant United States Attorneys, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, New York, NY, for Appellee.
POOLER, Circuit Judge:
Appeal from the judgment of the United States District Court for the Eastern District of New York (Matsumoto, J.) convicting Christopher Barret, Omar Mitchell, and Leon Scarlett of conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana. This opinion addresses two arguments raised by appellants: whether (1) the district court
We join our sister Circuits in finding that the testimony of a former co-defendant who pleads guilty during trial, and then agrees to testify as a government witness at that same trial, is admissible so long as the district court takes steps to avoid undue prejudice to the remaining defendants. See, e.g., United States v. Olson, 450 F.3d 655 (7th Cir. 2006). These steps include limiting testimony to events other than the witness‘s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances.
We also hold that the evidence adduced at trial was sufficient to permit the jury to conclude that Mitchell knowingly joined a conspiracy to distribute more than 1,000 kilograms of marijuana, and that such an amount was reasonably foreseeable to him. Appellants’ remaining arguments are addressed in a summary order issued simultaneously with this opinion.
I. The Investigation
This case developed from a joint investigation by the United States Postal Inspection Service, the Drug Enforcement Administration (“DEA“), and the New York City and New York State Police Departments, into the activities of a large-scale marijuana distribution organization in Queens, New York known as the “Fatherless Crew.” The government alleged, and as outlined below the evidence at trial demonstrated, that the Fatherless Crew acted as wholesalers for New York-based drug dealers, with the drugs shipped from suppliers in Arizona and California via the United States Postal Service. Barret headed the Fatherless Crew; Scarlett served primarily as an enforcer for Barret; and Mitchell served as a lookout who, from time to time, also sold drugs.
The Fatherless Crew is alleged to have run its operation out of the Barret residence in Jamaica, Queens, one other residential property, and several commercial mail receiving agencies (“CMRAs“) located in Queens. Arizona police officers contacted the Postal Inspection Service in Arizona after observing a subject in a narcotics investigation mail three packages. The packages were set
On July 27, 2010, investigators observed Mitchell walking back and forth between the front of the Barret residence and a nearby street corner, and then sitting in front of the house “for quite a period of time.” Gov‘t App‘x at 107. When a silver Chrysler arrived, Mitchell talked to the driver, and then allowed him to back the car into the driveway. A second individual removed a cardboard
On August 26, 2010, four parcels that together weighed roughly 45 kilograms were dropped off at a post office in Arizona. The packages arrived in Flushing on August 28, 2010. On August 28, 2010, co-defendant Andre Wilson backed his Cadillac into the driveway of the Barret residence and unloaded the boxes into the house. Also that same day, three parcels that together weighed roughly 34 kilograms were dropped off at a post office in Arizona. These three parcels arrived in Flushing on August 30, 2010, and Wilson again backed his Cadillac into Barret‘s driveway and unloaded boxes into the house.
The pattern repeated itself multiple times throughout September: packages were tendered in Arizona to the postal service; arrived at various CMRAs in Flushing; and were delivered to the Barret residence. Altogether, during the month of September, investigators observed roughly 187 kilograms of marijuana transported in this fashion.4
On October 7, 2010, a number of individuals, including Forrest, gathered at the Barret residence. Around noon, Melbert Palmer arrived at the house with $1,500 to purchase marijuana. Barret told Palmer he didn‘t have the marijuana, but that the marijuana was due soon, so Palmer should wait. Barret told Scarlett, Forrest, and two other individuals to join Wilson on his trip to pick up marijuana from the CMRAs. Palmer testified that he heard Barret tell Forrest to get two guns and to give one to Scarlett and one to another individual. Investigators observed Wilson and the others leaving to go to the CMRAs to pick up boxes,
Barret instructed Forrest and Constantine Branch to cut open the boxes and remove the marijuana, while asking Palmer to “burn” the address labels. Barret then left the residence and was arrested, along with a number of co-defendants. Immediately prior to his arrest, Barret called Kevin Lee, who was still at the residence, and told Lee to “[r]un, run, run.” Following Barret‘s arrest, a New York Police Department SWAT team executed a search warrant at the Barret residence. The police also arrested Scarlett, Forrest and several others.
During their search of the residence, investigators discovered an open box, along with one bale of marijuana on the kitchen counter and another bale on the floor. Investigators also opened the remaining unopened parcels and found more bales of marijuana. The total weight of the marijuana recovered from the packages exceeded 95.7 kilograms.5 Investigators recovered approximately 20.4 kilograms more of marijuana elsewhere in Barret‘s house. The investigators also recovered two guns, one in an adjacent backyard and one in the living room,
II. The Indictment
On December 29, 2011, a federal grand jury in the Eastern District of New York returned a six-count superseding indictment. Count One charged Barret with being the leader of a continuing criminal enterprise in violation of
III. The Trial and the Admission of Forrest‘s Testimony
At trial, the government called nineteen witnesses, including four cooperators: Melbert Palmer, Clifton Williams, Leemax Neunie, and Kareem Forrest. Opening statements at trial began January 9, 2012, with Forrest as one of the co-defendants. The first four days of trial consisted primarily of testimony by the case agent, after which Forrest entered into proffer talks with the government. He entered into a cooperation agreement with the government and changed his plea from innocent to guilty on January 17, 2012. That same day, the government advised the court and defense counsel of its intention to add Forrest to its witness list. As a result, the district court instructed the jury that:
One co-defendant is no longer on trial, and you are not being asked, or you will not be asked to reach a verdict as to him. You are not to be concerned with that co-defendant, nor are you to speculate about the reasons why he is no longer part of this trial, and this fact should not affect or influence
your verdict with respect to the remaining defendants. You must base your verdict as to the remaining defendants solely on the basis of evidence, or lack of evidence, against each defendant.
Gov‘t App‘x at 132.
Scarlett, Mitchell, and co-defendant Ryan Anderson objected and moved to exclude Forrest‘s testimony, arguing: (1) Forrest participated in defense strategy before entering into his cooperation agreement, enabling him to report on such strategies to the government in violation of his co-defendants’ Sixth Amendment rights to counsel; (2) Forrest was present at trial for the testimony of the government‘s first witness, violating Rule 615 of the Federal Rules of Evidence which, appellants assert, requires the exclusion of witnesses from the courtroom; and (3) Forrest‘s testimony would likely refute assertions made during the defense‘s opening and arguments that were critical to the defense.
In a written opinion, the district court rejected each argument. United States v. Barret, et al., No. 1:10-cr-809, slip op. at 1-14 (E.D.N.Y. Jan 21, 2012), reprinted in Gov‘t App‘x at 278-291. First, it stated that there was no Sixth Amendment violation because there was no evidence that Forrest had been “planted” or sent to infiltrate the defense team. Rather, he approached the government on his own volition, and his testimony would be limited to events that occurred prior to any
The district court determined that Mitchell failed to cite any legal authority to support his claim that Forrest‘s testimony “should be excluded solely because he was present in the courtroom as a defendant during [witness] testimony.” Barret, No. 1:10-cr-809, slip op. at 8, Gov‘t App‘x at 285. Viewing the record as a whole, the district court was “unpersuaded that Mr. Forrest‘s presence in the courtroom during the first three days of trial constitute[d] valid grounds to exclude his testimony.” Id.
The district court stated it would follow the guidance set forth by the Seventh Circuit in United States v. Olson, 450 F.3d 655 (7th Cir. 2006), that “the lower court‘s cautionary instructions [are] key to determining whether reversible
Ladies and gentlemen of the jury, you will hear testimony about Mr. Forrest‘s decision to enter into a guilty plea. You are not to draw any negative inferences against any of the remaining defendants whatsoever based on Mr. Forrest‘s decision to enter into a guilty plea or to testify during this trial. The guilt of any person, including Mr. Forrest, is not evidence of the guilt of any other person; specifically, the remaining defendants on trial. You, as jurors, may give Mr. Forrest‘s testimony such weight that you feel it deserves keeping in mind that it must be considered with great caution and great care.
Gov‘t App‘x at 249.
IV. The Admission of Mitchell‘s Statement
As part of its case-in-chief, the government introduced a statement given by Mitchell after his arrest. Mitchell was not with Barret or at the Barret residence during the October 7, 2010 raid, and thus was not arrested with Barrett and the other co-defendants. When Mitchell was arrested, however, he waived his Miranda rights and agreed to speak with investigators. Mitchell identified himself in photographs taken during surveillance of the Barret residence, and also identified others arrested on October 7, 2010, including Kwaume Wilson, Leemax Neunie, Kevin Lee, Melbert Palmer, Kerry Gunter, and Clifton Williams. Mitchell also stated he had seen someone named “Stewie” bring $9,000 to the
After the four-week jury trial, the jury returned a verdict on February 8, 2012, convicting Barret on all counts, Scarlett on the conspiracy to distribute and distribution counts, and Mitchell on the conspiracy to distribute count. The district court sentenced Barret primarily to 40 years’ imprisonment: 33 years’ imprisonment on Counts One through Five and a consecutive sentence of seven years’ imprisonment on Count Six (the Section 924(c) firearms count). The district court sentenced Scarlett primarily to 150 months’ imprisonment. And the district court sentenced Mitchell primarily to 130 months’ imprisonment. This appeal followed.
DISCUSSION
I. Admission of Forrest‘s Testimony.
We review a district court‘s decision to admit testimony for abuse of discretion, “recogniz[ing] that district courts enjoy broad discretion over the admission of evidence.” United States v. McDermott, 245 F.3d 133, 140 (2d Cir. 2001); see also United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 87 (2d Cir. 1999) (“Evidentiary rulings are reversed only if they are manifestly erroneous,
The question of whether a district court may permit the testimony of co-defendants who change their pleas to guilty mid-trial and testify for the government is a question of first impression in our Circuit. We join our sister Circuits in holding that a district court may allow such testimony, but must take appropriate steps to avoid causing unfair prejudice to the remaining co-defendants. See, e.g., United States v. Olson, 450 F.3d 655, 677-78 (7th Cir. 2006) (holding that the district court did not abuse its discretion in permitting co-defendant to testify for the government after pleading guilty mid-trial where the court gave appropriate instructions to the jury); United States v. Gambino, 926 F.2d 1355, 1364 (3d Cir. 1991) (same); see also United States v. Mejia, 82 F.3d 1032, 1037-38 (11th Cir. 1996) (“A mistrial is not required where a codefendant changes his plea in the middle of a trial if the jury is properly instructed and if evidence of the plea is properly limited.“), overruled on other grounds by Bloate v. United States, 559 U.S. 196 (2010);
We adopt the standard articulated by the Seventh Circuit in Olson, which guided the district court‘s approach below. Olson relied on the Seventh Circuit‘s decision in United States v. Thomas, 774 F.2d 807 (7th Cir. 1985), which noted that “it is well-recognized that the testimony of codefendants after negotiating a mid-trial plea bargain is admissible in certain instances for limited purposes.” 774 F.2d at 809. In Thomas, as here, a co-defendant pleaded guilty mid-trial and then testified against the remaining co-defendants. Id. As the co-defendants did here, the remaining defendants objected on the grounds that (1) the co-defendant participated in pre-trial defense planning and thus was aware of privileged conversations and strategies; (2) the co-defendant was present at trial prior to his guilty plea, and his presence violated the witness exclusion rule; and (3) the testimony of a defendant-turned-government-witness was unfairly prejudicial to the remaining defendants. Id. The Thomas court rejected each of these arguments,
Similarly, in Gambino, the Third Circuit addressed whether a co-defendant who changed his plea to guilty on the twelfth day of a 26-day trial could testify for the government. 926 F.2d at 1364. The Third Circuit held that the district court‘s limiting instruction, given the day after the co-defendant was absent from the defense table, was sufficient to avoid the “possibility [of] prejudice” by “properly instruct[ing] the jury on the appropriate uses of guilty pleas.” Id. The Gambino court noted that “as with the guilty pleas of the other co-conspirators,
We agree that a co-defendant who turns government witness during trial may be permitted to testify at that trial, provided that the district court takes steps to avoid unfair prejudice. First, the district court must ensure that the testimony of the former co-defendant is admitted only for the limited purpose of testifying to events other than the witness‘s involvement in joint defense planning. This protects the remaining co-defendants from any prejudice that would arise from the former co-defendant‘s awareness of defense strategy, pre-trial conversations with co-defendants occurring after arrest, or privileged conversations with counsel.
Second, the district court must deliver adequate cautionary instructions to the jury to make certain that the jury does not draw any adverse or unfair inferences against the remaining co-defendants, does not use the former co-defendant‘s admission as guilt as evidence of the guilt of the remaining co-
Scarlett and Mitchell argue that the admission of Forrest‘s testimony violated their Sixth Amendment right to counsel. They cite to Massiah v. United States, 377 U.S. 201 (1964), where the Supreme Court made clear that the government cannot gain access to defense strategy by infiltrating the defense team via government informants who deliberately seek incriminating evidence that the prosecution will then use at trial. However, there is no evidence that the government infiltrated the defense team or deliberately elicited incriminating evidence. To the contrary, Forrest approached the government during the trial, and there is nothing in the record that contradicts the government‘s representation that Forrest did not share defense strategy, defense tactics, or any other confidences with the government.
We also agree with the district court that Forrest‘s presence in the courtroom during the testimony of the government‘s first witness, Postal Inspector James Buthorn, did not violate
To the extent Forrest‘s testimony created a risk of unfair prejudice, the district court adequately mitigated that risk through its cautionary instructions to the jury. These instructions helped to ensure that the jurors (1) did not draw negative inferences against the remaining defendants; (2) did not use Forrest‘s guilty plea as any evidence of the guilt of the remaining co-defendants; and (3) gave Forrest‘s testimony the weight they felt it deserved, “keeping in mind that it
II. Sufficiency of the Evidence.
We next consider Mitchell‘s argument that the evidence was insufficient to convict him of conspiring to distribute and distribution of 1,000 kilograms or more of marijuana in violation of
To affirm a conviction for conspiracy to distribute under
Where, as here, a defendant challenges a conviction based on the insufficiency of the evidence against him, we are required:
to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Put another way, a court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.
United States v. Temple, 447 F.3d 130, 136 (2d Cir. 2006) (citations and internal quotation marks omitted). This is a “heavy burden.” Id. at 137. We must defer to the jury‘s determination of witness credibility, the weight of the evidence, and the reasonable inferences the jury draws from the evidence. United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). “In cases of conspiracy, deference to the jury‘s findings ‘is especially important . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon‘s scalpel.‘”
Mitchell argues that the government‘s evidence demonstrated nothing more than the fact that Mitchell associated with Barret and other members of the Fatherless Crew, and that Mitchell spent time at Barret‘s house. He argues that the evidence did not demonstrate that he knew the full scope of the conspiracy, or that he could reasonably foresee that the criminal enterprise aimed to distribute in excess of 1,000 kilograms of marijuana. We disagree.
Here, the evidence permits a rational jury to find the existence of a conspiracy, that Mitchell had knowledge of the scope of the conspiracy, and that he intentionally joined the conspiracy. The government adduced evidence that Mitchell was a member of the Fatherless Crew, and that he called Barret “General” because Barret was “the boss for ‘The Fatherless Crew.‘” Gov‘t App‘x at 139. Witnesses testified that Mitchell acted as a lookout when marijuana was scheduled to arrive at the stash house, that Barret took Mitchell on the road with him, and that Mitchell carried a gun to guard drugs stored at Barret‘s residence. Forrest testified about an instance in which he heard Barret telling Mitchell to stand in front of the house and watch out for police and robbers when marijuana
While a closer question, the evidence is also sufficient to establish a link between the quantities of drugs proved and a basis for the jury to infer that Mitchell was aware, or could reasonably foresee, that the conspiracy involved at least those quantities of drugs. Drug conspiracies can involve large numbers of individuals, with many members playing minor roles. Indeed, leaders of drug conspiracies may intentionally compartmentalize their operations in an effort to ensure that individual members are unaware of other parts of the conspiracy as well as the full scope of the conspiracy‘s operations. For this reason, there may often be circumstances in which “bit” players in a conspiracy cannot reasonably foresee the full quantity of drugs involved in the conspiracy as a whole.
Nevertheless, after a conviction we must view the evidence “in the light most favorable to the prosecution,” Temple, 447 F.3d at 136. Here, the record establishes that the conspiracy was broad in scope, that Mitchell had a close relationship with his half-brother Barret, that Mitchell was personally involved with many members of the Fatherless Crew, and that over an extended period of time Mitchell both protected Barret and served as a lookout during drug
CONCLUSION
For the foregoing reasons, the judgments of the district court are AFFIRMED with respect to these challenges. Appellants’ remaining arguments are addressed in the summary order issued simultaneously with this opinion.