UNITED STATES OF AMERICA, Appellee, v. LARRY WILLIS, ISIAH PIERCE, Defendants-Appellants.
Nos. 18-3617-cr, 19-1051-cr
United States Court of Appeals For the Second Circuit
Argued: December 7, 2020; Decided: September 20, 2021
August Term, 2020
Before: POOLER, PARKER, and LYNCH, Circuit Judges.
Defendants-Appellants Larry Willis and Isiah Pierce appeal from judgments entered by the United States District Court for the Western District of New York (Lawrence J. Vilardo, J.) following their convictions on multiple drug and gun-related counts. Willis and Pierce contend that there was insufficient evidence to support their convictions and raise various issues relating to the
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
KATHERINE A. GREGORY, Assistant United States Attorney for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, N.Y., for Appellee.
CARLA M. SANDERSON, Carla Sanderson Law, New York, N.Y., for Defendant-Appellant Willis.
ROBERT A. CULP, Garrison, N.Y., for Defendant-Appellant Pierce.
BARRINGTON D. PARKER, Circuit Judge:
Larry Willis and Isiah Pierce appeal from judgments of conviction entered following a three-day trial in the United States District Court for the Western District of New York (Vilardo, J.). The defendants, charged in a twelve-count superseding indictment, were convicted of various drug-related crimes and
On appeal, defendants contend that the evidence was insufficient to support the jury‘s verdict on each of the counts of conviction. They also challenge various of the district court‘s evidentiary rulings and its calculation of the sentences recommended by the Sentencing Guidelines (“U.S.S.G.” or
BACKGROUND
The issues raised on appeal center on Willis‘s and Pierce‘s use of two apartments—the upper and the lower—at 70 Henrietta Avenue, Buffalo, New York (“70 Henrietta“) from which they conducted a drug trafficking operation. Officers of the Erie County Sheriff‘s Office (“ECSO“) executed search warrants at that location and seized narcotics, drug trafficking paraphernalia, firearms, and ammunition.
Testimony adduced by the government at trial established that on the morning of December 1, 2016, the ECSO had attempted to execute a warrant authorizing a search of 108 Peck Street, of Willis‘s person, and of his black Pontiac Grand Prix. Efforts to locate Willis led them to the two apartments at 70 Henrietta. While conducting surveillance, Deputy William Granville of the ECSO saw a dark-colored Dodge Charger pull into the front of 70 Henrietta, followed closely by a blue Chevrolet Equinox (the “Equinox“). Defendant Isiah Pierce was driving the Charger, while Tanzie Fuller was driving the Equinox, which was
After a short period, Pierce and Fuller exited 70 Henrietta, and both got into Willis‘s Equinox. Shortly thereafter, Officer Cully Ferrick stopped Pierce who was driving the Equinox for excessive tint on the glass. After a brief conversation, Detective Timothy Donovan asked him to step out of the vehicle because he “smelled the odor of marijuana.” Pierce App‘x at 51. The officers searched the vehicle and recovered a “violation” or non-criminal quantity of marijuana, as well as five cellphones. A search of Pierce‘s person turned up approximately $1,700 in cash and a set of keys. At that point, Pierce was arrested, searched, and taken to the ECSO headquarters at 45 Elm Street (“45 Elm“). Once they arrived, Pierce was left handcuffed in an interview room. Detective Donovan testified that at some later point he went back into the interview room and “found a large amount of narcotics that were underneath the desk area” that had not been in the room when he first left Pierce there. Pierce App‘x at 55.
Although none of these materials had been found in the search incident to Pierce‘s arrest, Donovan testified that he found “a plastic bag which contained numerous knotted plastic bags that contained white rock-like substance that
While Pierce was being detained by the ECSO, Deputy Granville continued his surveillance of 70 Henrietta. Deputy Granville testified that around 2:15 PM, he saw Willis leaving 70 Henrietta, appearing to lock the front door, entering a black Pontiac, and driving away. Around 2:30 PM, officers stopped Willis‘s car, searched and arrested him, and searched the car from which they recovered cash, keys, and two cellphones. Deputy Granville testified that, after seeing Willis leave, he remained outside 70 Henrietta for two additional hours until about 4:15 PM when he was notified that other officers were coming to 70 Henrietta to execute a search warrant.
After Willis was arrested, he was brought to 45 Elm where he was placed in an interview room. Detective Timothy Carney testified that he saw Willis “digging down his pants,” that he and Detective Daniel Granville entered the room, and that Detective Granville located narcotics in a bag on the floor. Willis App‘x at 70. In the bag, the officer claimed to find yellow bags commonly used for packaging heroin, and bags that contained crack cocaine and heroin. The
Later that day, the officers executed a search warrant for the lower apartment at 70 Henrietta. Keys recovered from Willis at his arrest opened the front door at 70 Henrietta, as well as the door to the lower apartment. The officers recovered a cache of weapons including assault rifles, a pistol, magazines, and rounds of ammunition. The officers also recovered 10.35 grams of cocaine base and tools of the drug trade including baking soda, digital scales with traces of white powder, a metal strainer, bags, whisks, a spoon, a fork, a large quantity of small rubber bands, razors, a latex glove, and a metal weight. In addition, the officers seized a title, in Willis‘s name, to the Chevrolet Equinox that Fuller and Pierce had been driving earlier, insurance documents in the name of Larry Willis, a Buffalo police incident card, a traffic ticket, DMV paperwork, and photographs of Willis and Pierce together.
Later that evening, the officers executed a search warrant for the upper apartment. Keys recovered from Pierce at his arrest opened the front door of 70
Inside the upper apartment, officers recovered a separate cache of weapons that included handguns, a large capacity magazine, rounds of ammunition, a digital scale, packaging materials, and three bags containing 167.98 grams of butyryl fentanyl and heroin. The officers also recovered cocaine base and additional quantities of heroin, fentanyl, and butyryl fentanyl. The total weight of the additional heroin and fentanyl was approximately 50 grams. The weight of the cocaine seized was approximately 142 grams of base, and approximately 253 grams of powder. One of the main factual issues on appeal centers on whether the contraband found in the two apartments could be attributed to either or both defendants.
The arresting officers subsequently obtained warrants to search the phones seized from Willis and Pierce. One of the phones recovered from the Equinox had received texts addressing the recipient as “Zeke,” Pierce‘s nickname, and inquiring about Pierce‘s girlfriend and daughter, tending to show that the phone
Both defendants were subsequently indicted and proceeded to trial. The government‘s theory was that the two apartments were jointly used by Willis and Pierce to manufacture and distribute drugs. The government argued that Willis resided in the lower apartment, pointing to his ownership of keys to the unit and the presence of his personal effects there. Pierce, according to the government, controlled the upper unit as evidenced by his possession of keys to the unit and to the padlocked interior bedroom where the drugs and guns were found. As evidence of joint control, the government argued that after being taken to 45 Elm, Willis discarded heroin and cocaine wrapped in the same yellow packaging found in the upper unit and that the crack cocaine Pierce discarded at 45 Elm was wrapped in blue envelopes that were the same as those found in the lower unit.
The jury returned a mixed verdict. Willis was convicted of possessing less than 28 grams of cocaine base with intent to distribute (Count 2); possessing powder cocaine with intent to distribute (Count 5); maintaining a drug involved
Both defendants were acquitted of the narcotics conspiracy charged in Count 1, and of possessing the cocaine base and heroin that two officers claimed to have found in the interview rooms at 45 Elm as charged in Counts 10, 11, and 12. Willis was also acquitted of possessing the heroin and fentanyl found in the upper apartment charged in Counts 3 and 4. After trial, both defendants moved for judgments of acquittal under
The district court agreed with Willis in part, finding that the currency found at 369 Wabash, the home of Pierce‘s girlfriend Courtney Brouse, was not attributable to Willis, but accepted the remaining facts in the PSR as its findings. The district court concluded that the drugs located in the upper apartment and the interview rooms at the police station were “possessed within the scope and in furtherance of the jointly undertaken criminal activity and were reasonably foreseeable,” Willis App‘x at 135, and incorporated into the Guidelines calculation all the drugs from the upper apartment and the cocaine base that Willis and Pierce were acquitted of possessing in the police interview rooms at 45 Elm. These findings had a significant effect on the district court‘s Guidelines
The district court determined that Willis‘s Guidelines range was 248 to 295 months. The district court agreed with Willis that the Guidelines were “too high,” Willis App‘x at 163, and sentenced Willis to 150 months concurrently on all counts, except for a mandatory consecutive 60-month term for possession of a firearm in furtherance of drug trafficking, for an aggregate term of 210 months’ imprisonment. The district court did not state explicitly whether Willis‘s federal sentence would run concurrently to a then-anticipated state sentence, although Willis‘s counsel had noted on the record his assumption that this was the district court‘s intention. After calculating Pierce‘s Guidelines range, the district court sentenced Pierce to 168 months.3
DISCUSSION
Defendants contend that the government failed to adduce sufficient evidence on all counts of conviction. Because, as discussed below, the government‘s evidence of guilt on nearly all counts was substantial, we discuss in detail only the defendants’ colorable insufficiency arguments. Willis, in this regard, contends that though the evidence at trial supported the inference that he had access to the lower apartment, it was insufficient to prove that he possessed the cocaine base and firearms found in the lower apartment, and the powder cocaine found in the upper apartment. Willis also argues that the district court improperly calculated his Guidelines range when it found that, though acquitted of the charged conspiracy, he jointly possessed all the narcotics in the upper apartment with Pierce. As noted, this issue bears heavily on his sentence.
Pierce, for his part, argues that the evidence produced at trial equally supports the inference that others connected to the apartments controlled the drug operation and possessed the drugs and the weapons seized by law enforcement. Pierce also contends that the district court abused its discretion in denying his motion for a new trial on ineffective assistance of counsel grounds,
I
A. Legal Standards
In evaluating the sufficiency of the evidence, we ask “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In performing this analysis, we are required to draw all permissible inferences in favor of the government and resolve all issues of credibility in favor of the jury‘s verdict. United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). In
The defendants contend that the government adduced insufficient evidence that either of them possessed any of the contraband recovered from 70 Henrietta. At trial, the government pursued theories of constructive possession. “Constructive possession exists when a person has the power and intention to exercise dominion and control” over the contraband in question and may be shown by direct or circumstantial evidence. United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998). Mere presence is insufficient. However, “presence under a particular set of circumstances from which a reasonable jury could conclude that the defendant constructively possessed contraband” is sufficient. United States v. Facen, 812 F.3d 280, 287 (2d Cir. 2016). For example, documents pertaining to a defendant found in the same location as narcotics, possession of a key to the location where drugs are found, or whether the drugs are in plain view, are factors relevant to constructive possession. Facen, 812 F.3d at 287 (collecting cases). Once possession of narcotics has been established, a defendant‘s possession of firearms, and “of equipment to weigh, cut and package drugs is
B. Discussion
Pierce argues that the evidence produced at trial supports the inference that other people—some combination of Tanzie Fuller, his codefendant Willis, or the individuals named on the lease and otherwise connected to the apartments—possessed the drugs and the weapons found in the upper apartment. Regarding the keys in particular, Pierce argues that the circumstances of the surveillance and arrest suggest that Tanzie Fuller also could have been the owner of the keys.
To be sure, it is true that the evidence produced at trial connecting Pierce to 70 Henrietta—and consequently to the drugs and weapons which were recovered—did not rule out an inference that others were involved in the drug trafficking at that location. However, the government was not required to prove that the contraband was not subject to the control of others, because possession need not be exclusive, and the jury was not required to accept Pierce‘s alternative explanation of innocence. United States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002); see United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (“the Government is not required to preclude every reasonable hypothesis which is consistent with
Even so, the government‘s evidence that the keys belonged to Pierce was compelling. Pierce was arrested in possession of the keys and a key ring on the keys held a Tops Friendly Markets Bonus Card belonging to Courtney Brouse, his girlfriend and the mother of his child. In addition, the government introduced a recorded statement made by Pierce to Brouse from jail that “they have my keys.” Gov‘t App‘x at 88. Law enforcement officers found large quantities of narcotics and multiple weapons in a padlocked room inside the upper apartment to which Pierce held the keys. A test of DNA found on a loaded Ruger 9mm semi-automatic firearm there could not exclude Pierce as a contributor to the mixture of DNA, with it being 33,000 times more likely to be a match to Pierce than to a random individual. Finally, the jury heard evidence that a cell phone tied to Pierce received multiple text messages discussing what a law enforcement witness testified was evidence of drug transactions. Given these facts, a rational trier of fact could conclude that Pierce controlled the upper apartment as well as the contraband seized there.
It is a closer question whether sufficient evidence supports Willis‘s conviction for possession of the powder cocaine found in the upper apartment. There was no evidence that Willis possessed a key to the upper apartment or to the padlocked closet in which the cocaine powder was stored. Neither his documents nor personal effects were found there and no forensic evidence otherwise connected him to it. The drugs found there were not in plain view, and he was not arrested under circumstances that suggested that he had complete
Nonetheless, even if the evidence did not establish that Willis had dominion and control over the upper apartment, a rational jury could have concluded that he possessed the cocaine powder found there, if not directly, then through others, namely Pierce. This is because the superseding indictment charged Willis with committing and, in the alternative, aiding and abetting, the crime of possession of cocaine with intent to distribute it and the district court instructed the jury on this charge.
“Under
Both defendants were convicted under Count 6 for maintaining a premises where drugs were manufactured or distributed. See
The government adduced sufficient evidence that both defendants violated this provision. That evidence established that Willis possessed the cocaine powder and cocaine base as well as cutting agents, packaging materials, and firearms found at 70 Henrietta. That evidence also established that Pierce possessed powder cocaine, cocaine base, heroin, and fentanyl at that location and that the upper apartment contained little else but this contraband. Indeed, the evidence strongly supported an inference that the apartment was used for little else than for distributing and packaging narcotics. The seized narcotics and drug paraphernalia were in sufficient quantity for the jury to conclude that the defendants intended to distribute them.
To convict for possession of a firearm in furtherance of a drug trafficking offense under
Section 924(c) requires the government to establish a “nexus” between the charged firearm and the charged drug selling operation. United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001). That nexus is established where the firearm “afforded some advantage (actual or potential, real or contingent)” to the drug trafficking. United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005).
Regarding Willis, a semi-automatic rifle—attributed to him as a likely match by DNA evidence—was concealed in a box by the front door of the lower apartment. A loaded .357 caliber Magnum pistol was found under a couch cushion, and Willis‘s DNA generated a likely match. Both weapons were readily accessible to protect the contraband. While Willis argues that he could have
Regarding Pierce, a loaded Ruger handgun—attributed to him as a likely match by DNA evidence—was found inside the padlocked upper apartment room to which he held the key. This loaded handgun was readily accessible to protect the powder cocaine, cocaine base, heroin, and fentanyl found near the gun. Notably, Pierce did not live where the weapons were located and kept them at an apartment that served as a stash house. Because the weapons were readily accessible to protect drugs or drug proceeds, a rational trier of fact could have found that Pierce was guilty of possessing a weapon in furtherance of drug trafficking.
IV
A. Evidentiary and Summation Challenges
Defendants argue that the district court abused its discretion in certain of its evidentiary rulings. They argue that it was error for the district court to allow a DEA witness to present expert testimony concerning the “means and methods
We review the district court‘s evidentiary rulings for abuse of discretion. See United States v. Fazio, 770 F.3d 160, 165 (2d Cir. 2014). “[S]o long as the district court has conscientiously balanced the proffered evidence‘s probative value with the risk for prejudice, its conclusion will be disturbed only if it is arbitrary or irrational.” United States v. Scully, 877 F.3d 464, 474 (2d Cir 2017).
When parties seek to introduce expert testimony in accordance with
Over Pierce‘s objection, the government proffered that it intended to ask Special Agent James McHugh, a DEA expert witness, whether certain items found at 70 Henrietta were “the kinds of paraphernalia or tools that are typically found in the possession of people who are distributing narcotics.” Doc. 201 at 205. The district court ruled that the expert witness could testify only “in general terms,” about those items but could not review photos of or testify about the actual paraphernalia found at 70 Henrietta. Doc. 201 at 206; see United States v. Nersesian, 824 F.2d 1294, 1308 (2d Cir. 1987).
When testifying, the government‘s witness stayed within these bounds. The government asked whether items like “whisks, sifters, and mixers [] have any role [in] narcotics trafficking,” and the witness confirmed that these were “typical tools” of the trade. Doc. 201 at 212-13. Further, the witness testified that references to “stamps” in text messages could refer to packaging for cocaine or heroin.
Nor was it manifestly erroneous for the district court to admit testimony from defendants’ parole officers. The government justified the need for the testimony on the theory that the parole officers were familiar with the defendants’ familial relationships and their living situations. At trial, Parole Officer McPartland testified to the familial relationship between Pierce and the leaseholder at 70 Henrietta, Pierce‘s nickname “Zeke,” Pierce‘s long-term relationship with his girlfriend Courtney Brouse, and the fact that Pierce lived with Brouse at 369 Wabash.
Finally, the defendants’ challenge to the government‘s summation likewise fails. Defendants assert that it was inappropriate for the government to comment on the “dedication and perseverance of the Erie County Sheriff‘s office detectives working to get [] weapons and [] addictive drugs ... out of the community” and
“A defendant asserting that a prosecutor‘s remarks warrant a new trial faces a heavy burden, because the misconduct alleged must be so severe and significant as to result in the denial of his right to a fair trial.” United States v. Banki, 685 F.3d 99, 120 (2d Cir. 2012). “In determining whether an inappropriate remark amounts to prejudicial error, we look to the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct.” United States v. Caracappa, 614 F.3d 30, 41 (2d Cir. 2010). Because the defendants did not object to any of the summation at trial, their challenge is subject to plain error review. See
Applying these principles, we see no error and certainly no plain error. The defendants have not demonstrated that any of these remarks were sufficiently improper to have denied them a fair trial. In other words, this is not the “rare case in which [alleged] improper comments in a prosecutor‘s
B. Rehaif-related Section 922(g) Challenges
Defendants argue that their convictions as felons in possession of firearms under
Subsequent to Rehaif, this Court decided United States v. Miller, et al., 954 F.3d 551 (2d Cir. 2020) and United States v. Balde, 943 F.3d 73 (2d Cir. 2019). Both cases effectively foreclose the defendants’ attacks on their convictions. When
In Miller, this Court held that the erroneous jury instruction was not reversible plain error because the defendant‘s PSR revealed that he was
V
A. Guidelines Calculation
Willis contends that the district court erroneously calculated his Guidelines range when it found that, although he had been acquitted of the conspiracy and most substantive narcotics possession counts, Counts 3, 4, 10, and 11, he nonetheless, for sentencing purposes, possessed all the narcotics seized from 70 Henrietta and 45 Elm because he participated in jointly undertaken criminal activity with Pierce. Specifically, Willis argues that the government failed to meet its burden of proving jointly undertaken criminal activity between
This Court has recognized that to hold the defendant accountable for jointly undertaken criminal activity, the district court must make two findings: “1) that the acts were within the scope of the defendant‘s agreement and 2) that they were foreseeable to the defendant.” United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995). When applying these requirements, district courts look to (1) “whether the participants pool[ed] their profits and resources, or whether they work[ed] independently“; (2) “whether the defendant assisted in designing and executing the illegal scheme“; and (3) “what role the defendant agreed to play in the operation, either by an explicit agreement or implicitly by his conduct.” Id. at 575 (emphasis in original).
A court may consider as “relevant conduct” drugs distributed by co-conspirators in the course of the conspiracy even where a defendant is acquitted of a drug conspiracy. United States v. Bell, 795 F.3d 88, 105-06 (D.C. Cir. 2015); but see United States v. Bell, 808 F.3d 926, 927 (D.C. Cir. 2015) (Kavanaugh, J.) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher
Willis‘s contention that the district court improperly relied on the narcotics allegedly recovered by law enforcement at 45 Elm—and which he was acquitted of possessing—to find that he and Pierce engaged in jointly undertaken criminal activity has merit.8 Detective Carney testified that he and Detective Daniel Granville entered the interview room and “located the narcotics on the floor ... on the side of the desk that Mr. Willis was sitting on” inside a “plastic baggy [that] appeared to have human feces on it.” Willis App‘x at 70. The detectives, however, did not submit the bag for DNA testing. And though Detective Carney
Additional record evidence renders this testimony implausible, including the fact that no drugs were found on either defendant when they were searched at the time of their arrest. Furthermore, Willis was apparently found to have had drugs concealed in his body despite the fact that there was no particular reason for him to go to such lengths to hide any drugs he was carrying while driving around the neighborhood; that each defendant independently decided to extract and discard these drugs while handcuffed in an isolated police station interview room makes this set of events all the less likely. More unlikely still that each defendant had drugs matching only the packaging found in the apartment to which he was less strongly linked.
CONCLUSION
For the reasons stated herein, the judgment of the district court is AFFIRMED in part and VACATED in part. Willis‘s sentence is remanded for resentencing and clarification.