UNITED STATES оf America, Appellee, v. Timothy FAISON, Defendant-Appellant.
No. 12-5006.
United States Court of Appeals, Second Circuit.
Feb. 10, 2014.
Finally, Viola asserts that Alleyne, — U.S. —, 133 S.Ct. 2151, invalidates any judicial factfinding that increases the Guidelines sentencing range. Alleyne held that any fact that increases the mandatory minimum sentence a defendant faced is an element of the crime that must be submitted to the jury. See id. at 2155. Because the Sentencing Guidelines are advisory rather than mandatory, see United States v. Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), application of guidelines enhancements that do not increase the statutory maximum or minimum penalty neithеr implicates nor violates a defendant‘s Sixth Amendment right to a jury trial. See Alleyne, 133 S.Ct. at 2162-64 (emphasizing that its ruling “does not mean that any fact that influences judicial discretion” in imposing a sentence within statutоry limits must be found by a jury).
We have considered all of Viola‘s remaining arguments and find them to be without merit. For the foregoing reasons the judgment of the district court is affirmed.
Timothy Faison, Bruceton Mills, WV, pro se.
PRESENT: PIERRE N. LEVAL, GUIDO CALABRESI, and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Following a jury trial at which he represented himself, appellant Timothy Faisоn was convicted of possessing 28 grams or more of cocaine base with intent to distribute,
I. Faison‘s Indictment
On appeal, Faison renews three challenges to the indictment, none of which has merit. First, Faison was not, as he contends, arrested pursuant to a fraudulent warrant. As the district court noted, the federal authorities who arrested Faison at the Nassau County Correctional Center had probable cause to take him into custody on federal charges, and did not need a warrant to do so. United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding
Second, the Double Jeopardy Clause did not bar Faison‘s prosecution in federal court. The Double Jeopardy Clause does not prohibit sequential prosecutions by different sovereigns, so a prior state prosecution would not bar a later federal prosеcution based on the same events. United States v. Sewell, 252 F.3d 647, 651 (2d Cir.2001). “An exception to the dual sovereignty doctrine does exist for cases in which one of the sovereigns effectively controlled the othеr, and the subsequent prosecution was merely a sham....” United States v. Nelson, 277 F.3d 164, 212 (2d Cir.2002) (internal quotation marks omitted). But this was not such a case; as the district court found, far from being a case in which the state investigation or prosecution was directed by federal authorities, neither the federal nor state authorities even knew of each other‘s activities until after Faison was arrested. Moreоver, even if both charges had been brought by the same sovereign, there would be no double jeopardy violation, because jeopardy never attached in Faison‘s state case. The Double Jeopardy Clause “does not come into play until a proceeding begins before a trier” of fact. Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Faison was never even indicted on the state charges.
Third, the government indicted Faison well within the time limits set by the Spеedy Trial Act. In general, only a federal arrest starts the thirty-day clock for prosecutors to file an indictment. “[A] defendant does not become an ‘accused’ for Speedy Trial Act purposes until he is under Federal arrest.” United States v. Lai Ming Tanu, 589 F.2d 82, 88 (2d Cir.1978). Although collusion between state and federal authorities can create an exception to this rule, here, as in United States v. Jones, 129 F.3d 718, 723-24 (2d Cir.1997) (per curiam), thеre was no evidence of a “ruse” to circumvent the
II. Trial Issues
Faison also challenges several of the district court‘s trial rulings. We assume without deciding that all of these challenges, many of whiсh were raised in post-trial motions, were properly preserved.
First, Faison argues that the district court improperly admitted testimony regarding his conduct and statements leading up to thе June 15, 2010 drug sale. We find no error, much less an abuse of discretion, in the district court‘s evidentiary rulings. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009), and find none here. All of the challenged testimony was admissible as evidence that “arosе out of the same transaction or series of transactions as the charged offense[,] [was] inextricably intertwined with the evidence regarding the charged offense[,] [or was] ... necеssary to complete the story of the crime on trial.” United States v. Kaiser, 609 F.3d 556, 570 (2d Cir.2010) (citations and quotation marks omitted). In particular, statements about the price of cocaine from meetings in the spring of 2010 attest to Faison‘s intent to buy and sell the drug, and conversations in early June demonstrate that Faison sought and found a willing buyer for his drugs. Moreover, the district court allowed testimony relating to herоin only after Faison himself opened the door to such evidence.
Second, Faison argues that several prosecution witnesses committed perjury. “Reversal of a conviсtion based upon allegations of perjured testimony should be
Third, Faison challenges certain references to allegedly inadmissible evidence made by the prosecutor during her opening and summation. But prosecutorial misconduct requires a new trial only if “the conduct substantially prejudiced the appellants so as to deny them a fair trial.” United States v. Russo, 74 F.3d 1383, 1396 (2d Cir.1996). We see no prosecutorial misconduct, but even if the prosecutor‘s statements had been improper, they would not justify vacating thе conviction, as the district court cured any misunderstanding through its instructions to the jury.
Fourth, Faison attacks testimony from scientists at the Nassau Crime Lab as untrustworthy given sub-standard testing practices at the lаb. As the district court noted, any deficiency in the lab‘s testing processes could not have affected the case. The purchased drugs were tested by a federal chemist who testified at trial that they were indeed cocaine, rather than some other compound; the Nassau County technicians did not test the drugs, and testified about their handling of the drugs only to prove сhain of custody. To be sure, since the time of trial, a special commission‘s report has suggested lax evidence-handling procedures at the Nassau Crime Lab. But the unavailability of this rеport did not prejudice Faison. As the district court noted, the lab‘s problems were well known at the time of Faison‘s trial, and Faison cross-examined state lab officials about the possibility that the evidence in his case had been confused with evidence from another case. What‘s more, because the report post-dated the trial, it was not evidence that could have been discovered earlier and used to discredit the witnesses.
Finally, Faison disputes the sufficiency of the evidence on each count. But the evidence of Faison‘s guilt, including testimony from several informants and video and audio evidence of the charged transactions, was overwhelming.
We have considered all of Faison‘s remaining arguments and find them tо be without merit. Accordingly we AFFIRM the judgment of the district court.