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United States v. Joyner
Citation: 201 F.3d 61Docket: Docket Nos. 96-1198, 96-1720, 96-1721, 97-1069, 97-1292, 98-1176, 98-1177
Court: Court of Appeals for the Second Circuit; January 9, 2000; Federal Appellate Court
From 1989 to 1995, Archie Joyner led a drug trafficking operation in Binghamton, New York, resulting in the indictment of 41 individuals, including appellants Teddy T. Atkinson, Jesse M. Carter, Carlos Charles, Raymond A. Collins, William Willoghby, Michael Barrett, and Craig Sweat. Atkinson, Carter, Charles, Collins, Barrett, and Sweat pleaded not guilty. Following an eight-week jury trial, with Joyner as the government's main witness, the jury convicted Atkinson of engaging in a continuing criminal enterprise (CCE), drug trafficking conspiracy, possession of cocaine with intent to distribute, and cocaine distribution; Carter of CCE, attempted cocaine distribution, cocaine distribution, possession of cocaine with intent to distribute, and using a firearm during a drug trafficking offense (later vacated); Charles of CCE, drug trafficking conspiracy, cocaine distribution, possession with intent to distribute, and using a firearm during a drug trafficking offense; and Collins of arson conspiracy and arson. The jury could not reach a verdict for Barrett and Sweat, but they were later convicted of CCE and drug trafficking conspiracy upon retrial. Willoghby pleaded guilty to drug trafficking conspiracy. Sentences ranged from 292 months for Atkinson to life imprisonment for Collins, with Collins also ordered to pay over $1.8 million in restitution. The court affirmed the CCE convictions but vacated the drug conspiracy convictions for Atkinson, Charles, Barrett, and Sweat, acknowledging that drug conspiracy is a lesser included offense of CCE. Carter’s and Charles’s firearm convictions were vacated due to insufficient evidence. Additionally, the restitution order for Collins was vacated for lack of consideration of the necessary factors during sentencing. The court provided a detailed background of the operation, illustrating Joyner's activities, partnerships, and management of bars to facilitate drug distribution while evading law enforcement. Atkinson was arrested for distributing cocaine after separating from Joyner but was released on bail posted by Joyner. To repay Joyner, he worked as a seller at Begie’s until it lost its liquor license and closed due to a police raid in late 1993. Joyner then bought another bar, Sheion’s, and hired his friend Charles as a manager, compensating him with the ability to sell drugs. Willoghby, a janitor at Sheion’s, also sold cocaine for Joyner. Carter, another associate, was arrested for possessing cocaine but resumed managing Sheion’s after his release. Joyner reopened Begie’s under the name 'Choice’s' and allowed rival drug dealers to sell cocaine there in exchange for a cut of the profits while he began sourcing drugs from Reginald Perry. In May 1994, Joyner and others conspired to burn down a competing bar, resulting in a fatal fire. Joyner and Charles were arrested in a police raid on June 17, 1994, and continued drug operations from prison. Joyner’s girlfriend, Tracey Smith, and Barrett's crew managed sales at Choice’s, leading to internal conflicts. Atkinson, recently released from prison, returned to sell drugs at Choice’s. Gillespie, Joyner's bodyguard, later cooperated with police, resulting in multiple arrests and convictions. Atkinson contests his continuing criminal enterprise (CCE) conviction, arguing that the indictment only covered activities through 1991 and the evidence presented exceeded this timeline. He claims this constituted a constructive amendment of the indictment, which the court refutes, asserting that the indictment charged Atkinson with engaging in a CCE from 1989 to 1995, and the government's evidence did not alter the essential elements of the offense. To secure a conviction for engaging in a Continuing Criminal Enterprise (CCE), the government must demonstrate a sustained series of violations conducted alongside at least five individuals, with the defendant acting as an organizer, supervisor, or manager, and that substantial income was gained from these criminal activities. Atkinson contends that evidence was insufficient to prove he organized or supervised five individuals in Joyner's organization. However, testimonies indicated that Atkinson directly supervised drug sales and directed various individuals in drug packaging and transportation. Witnesses confirmed Atkinson's role within the drug ring, providing ample evidence for a rational juror to conclude he met the supervisory criteria. Regarding aiding and abetting a CCE, Atkinson argues that the indictment incorrectly charged him with this offense, as a defendant cannot be held liable for aiding and abetting a CCE. Although the jury was instructed that they could not convict based on aiding and abetting theory, Atkinson highlighted a lack of clarity between coconspirator liability and aiding/abetting liability, which may have confused the jury. While the indictment contained references to aiding and abetting a CCE, the court clarified that a defendant could not be convicted of engaging in a CCE merely for aiding a 'kingpin.' The court's failure to include additional cautionary instructions was deemed harmless, as it is assumed jurors follow their instructions. Atkinson's drug conspiracy conviction is vacated due to the upholding of his Continuing Criminal Enterprise (CCE) conviction, as per Rutledge v. United States, which establishes that conspiracy is a lesser included offense of CCE, thus violating the Double Jeopardy Clause when convicted under both. Atkinson challenges convictions on Counts 19, 20, 21, and 37, which involve aiding and abetting or conspiring to possess and distribute cocaine in connection with the CCE. Liability for these counts is based on a Pinkerton theory, which holds that crimes committed by co-conspirators are foreseeable to all involved in the conspiracy. Atkinson contends that while he conspired with Joyner, there is insufficient evidence linking him to a larger conspiracy involving other individuals. However, substantial evidence connects Atkinson to Joyner’s drug operations, supporting the inference of his participation in the overall conspiracy. Evidence shows Atkinson was involved in drug sales, joint purchases, and recruitment activities, establishing his role and liability for the actions of his co-conspirators. Finally, regarding his criminal history calculation, Atkinson argues the inclusion of a 1994 state court sentence was erroneous, as it was part of his CCE offense. The court disagreed, stating that prior sentences must be considered unless they are part of the current offense, in accordance with U.S.S.G. 4A1.2(a)(1). Application Note 8 to U.S.S.G. Section 2D1.5 states that a prior conviction occurring before the last overt act of the current offense should be treated as a prior sentence under Section 4A1.2(a)(1) and not included in the current Criminal Enterprise (CCE) offense for criminal history. Atkinson acknowledges the relevance of Application Note 3 but argues for a remand due to the district court's lack of finding on the timing of the last overt act. However, Atkinson was convicted of a drug crime in October 1994, prior to his state drug conviction, validating the inclusion of that prior conviction. Carter challenges several aspects of his CCE conviction. He disputes the jury's finding that he managed or supervised five individuals, arguing that those individuals acted independently after purchasing drugs, and cites case law suggesting that mere establishment of a supply system does not qualify one as an organizer under the CCE statute. However, evidence indicates that Carter exercised significant control over sellers, requiring oversight, permission for discounts, and management of logistics, which supported the jury's finding of his managerial role. Carter further claims insufficient evidence of substantial income or resources derived from the CCE. He points to limited financial transactions and argues that expenses covered by Joyner were unrelated to his income. He references United States v. Ayala to support his position. However, the relationship between Carter and Joyner exceeds that of a mere subordinate, as Carter was Joyner's second-in-command. The jury could reasonably infer that Carter's expenses were funded by drug profits, thus substantiating the claim of substantial income or resources from the CCE. Joyner’s financial support for Carter, which included rent and living expenses, derived from drug proceeds and qualifies as income-in-kind under the Continuing Criminal Enterprise (CCE) statute. The jury could infer substantial income from visible wealth, supported by evidence of Carter's role in a drug operation, significant weekly sales, and approximately $2,500 in cash used for marijuana and utility bills. Carter's appeals against convictions on Counts 22, 23, and 24 lack merit. Count 22 involves an attempted cocaine distribution where Carter was arrested with cocaine in his possession, making the crime complete regardless of the arrest. Counts 23 and 24 charge him with conspiracy related to cocaine possession, where his incarceration did not absolve him of responsibility for foreseeable acts of his coconspirators. Regarding firearm convictions under 18 U.S.C. § 924(c)(1)(A), evidence must show that the firearm was actively employed in the drug crime. Although Carter only possessed firearms, testimony indicated he provided a .380 caliber handgun to security for drug operation protection, fulfilling the requirement for Count 41. Count 42 asserts he used the handgun in connection with drug trafficking, and Count 43 involves similar allegations on the same date, both indicating he foresaw its use by coconspirators. Carter's convictions for multiple counts related to drug trafficking and firearm offenses were upheld based on substantial evidence. On November 2, 1993, Gillespie and Schon carried a .380 caliber handgun at Begie’s bar, which was seized by law enforcement during a raid that led to the arrest of Marcia Forbes and Tyrone Pinkney for cocaine possession. Carter was deemed a coconspirator, responsible for the handgun's presence in connection with these drug offenses. His argument for vacating Counts 41, 42, and 43 due to their association with the same firearm on the same day was dismissed as unfounded; each count was linked to distinct drug trafficking offenses, affirming multiple violations under Section 924(c)(1). Count 44, however, was found to lack sufficient evidence. It alleged that Carter, Joyner, and Gillespie used and carried an M16 rifle during November 1993 and June 17, 1994. The government's claims relied on witness testimonies, but these did not sufficiently establish that the rifle was used in relation to drug activities. Gillespie's testimony indicated no knowledge of cocaine being stored with the rifle, and Joyner's account did not connect the rifle to any drug-related dispute. Counts 47 and 48 were similarly insufficient, as the government did not demonstrate that Carter's transportation of firearms with Darren Rhodes was linked to drug trafficking. In contrast, Count 49 was supported by evidence showing that Carter aided Rhodes in trading cocaine for a sawed-off shotgun, establishing liability as a coconspirator. Regarding Carter's claim of no probable cause for the seizure of his vehicle and the admissibility of the drugs found inside, the review of the probable cause determination was conducted de novo. On February 10, 1994, Trooper Jeffrey Kronenfeld observed a parked vehicle without a front license plate and questioned Carter and another individual about the vehicle's registration, which raised suspicions about the vehicle's true ownership and model year. Carter informed Kronenfeld that a man named Brian owned the vehicle in question but could not provide Brian's last name. After Carter and Harrison offered conflicting accounts of their destination, Kronenfeld requested permission to search the vehicle, which Carter, appearing nervous and agitated, refused. Convinced the car was stolen, Kronenfeld called a tow truck, believing this constituted probable cause for a brief detention as supported by Smith v. Ohio, allowing for detention based on reasonable suspicion of containing contraband. The cocaine found later was admitted as it was discovered post-warrant acquisition. Regarding Carter's claim of improper detention, it was determined that the appropriate remedy was a civil suit under Section 1983, not exclusion of evidence, as the detention did not taint the valid search that followed. Carter also argued that the violent acts of co-defendant Collins prejudiced his case, warranting either a severance or limiting instruction concerning the arson charge. However, because Carter did not request severance pretrial, his claim was reviewed for plain error. The court found that the drug and firearm charges were inherently linked to the arson due to its purpose of eliminating drug competition. Carter failed to demonstrate significant prejudice resulting from the joinder of cases, and the trial court's instructions to the jury were deemed sufficient to mitigate any potential spillover effect. Finally, Carter alleged ineffective assistance of counsel for failing to investigate adequately, not calling certain witnesses, and preventing him from testifying. The trial court reviewed the matter and determined that Carter had voluntarily chosen not to testify. The attorney's advice against Carter testifying is deemed to meet professional standards and did not impact the trial's outcome, referencing Strickland v. Washington. Carter's additional claims of ineffective assistance are not addressed due to the need for extra-record evidence, suggesting he pursue them through collateral attack per Billy-Eko v. United States. Regarding the Sixth Amendment right to a jury of peers, Carter fails to establish a prima facie case of unfair underrepresentation of African Americans in the jury pool, as he did not demonstrate systematic exclusion or unfair representation, citing Duren v. Missouri and United States v. Rioux for required standards. On the issue of drug quantity calculation at sentencing, the court finds any alleged error harmless, as U.S.S.G. 2D1.5 dictates a baseline offense level of 38 for a CCE conviction, regardless of the drug quantity attributed. Carter's pro se claims are deemed meritless. As for Charles, he contends the jury was inadequately instructed on the relationship between knowledge of a crime and conspiracy liability. While the court acknowledges a misstep in jury instruction, it concludes that Charles was not prejudiced since the jury was not misled, despite the court's failure to clarify that mere knowledge and inaction do not constitute conspiracy. The jury's question about knowledge and non-reporting was inadequately addressed, as the court did not direct them to relevant portions of the charge. The jury may have incorrectly concluded that mere knowledge of a conspiracy and inaction constituted participation as a conspirator, but this error was deemed harmless. Citing Neder v. United States, it asserts that erroneous jury instructions can be subject to harmless error analysis. In this case, overwhelming evidence established Charles’s involvement in Joyner’s drug trafficking organization, including testimony from Joyner and 18 former coconspirators, as well as a police informant who purchased drugs from Charles. A tape recording of a conversation with Charles and evidence of his guilty plea to a state drug offense further confirmed his active participation. It is concluded that even with an accurate instruction, the jury would have found Charles guilty beyond a reasonable doubt. Regarding firearm convictions, the evidence was insufficient to prove that Charles used or carried three firearms associated with Darren Rhodes. Although the government argued that Joyner and Rhodes traded cocaine for a .22 Ruger handgun, the evidence indicated that Rhodes acted contrary to Joyner’s wishes. Joyner testified witnessing Rhodes’s suspicious behavior and subsequently confiscated the handgun Rhodes had obtained. The actions of Rhodes were not a necessary consequence of the conspiracy, contradicting the principles established in Pinkerton v. United States, which clarify the intent behind firearm possession in relation to drug trafficking. Thus, Joyner and Charles's efforts to keep guns away from Rhodes aligned with the legislative intent to discourage firearms in drug-related activities. Pinkerton does not establish broad vicarious liability among co-conspirators for crimes committed by others. Counts 47 and 48 involved firearms allegedly used by Charles, Carter, Joyner, Rhodes, and others between February and June 1994. The government claims that on June 16, 1994, Joyner instructed Charles and Rhodes to remove firearms and drugs from Sheion’s due to an impending police raid. After the raid, Charles, while incarcerated, allegedly directed Rhodes to retrieve firearms that police had missed. The government argued that Rhodes violated Section 924(c) by carrying these firearms to prevent their seizure and as part of Joyner's plan to relocate his drug operation. Charles was deemed liable under Section 924(c) as an aider and abettor. However, the evidence did not support the government's claims. There was no testimony confirming that Joyner communicated a plan to move his operation or directed the firearms to be taken to Amp’s; he only ordered them to be "moved out." Thus, Charles's actions while in prison could not be linked to Joyner's unexpressed intentions. Additionally, there was no indication that Rhodes removed the firearms for any reason related to drug trafficking. Consequently, Charles's convictions on the firearm counts were vacated. Regarding the drug conspiracy conviction, it was vacated following the precedent set in Rutledge. Charles also claimed ineffective assistance of counsel for failing to present an alibi defense and other evidence, which should be raised through collateral attack due to the need for extra-record evidence. Lastly, Charles argued that Yolanda Turner violated his right to remain silent during her testimony, and that the prosecutor's comments further prejudiced the jury against him. However, since Charles did not object to these comments at trial, they were reviewed only for plain error, which was not found. Turner's isolated comments were not elicited by the prosecutor, and given the overwhelming evidence of Charles’s guilt, it is improbable that these comments or the government’s summation biased the jury. Regarding Collins's claims on appeal, under Title 18 U.S.C. § 844(i), it is illegal to commit arson against any building used in or affecting interstate commerce. Collins argued that the government did not demonstrate that Dell’s bar substantially affected interstate commerce, referencing United States v. Lopez. However, the court disagreed, citing Russell v. United States, which indicates Congress intended to exercise full power under the Commerce Clause regarding any building affecting interstate commerce. The Second Circuit's decision in United States v. Tocco clarified that Lopez did not increase the government's burden in federal arson cases; the only requirement is that the arson impacts property used in interstate commerce, even minimally. The court emphasized that the arson of a restaurant, like Dell’s, falls under this rule due to the broader market of food and drink delivery. Although the government lacked direct evidence of Dell's interstate connections, the jury could reasonably conclude that it was part of a larger commercial market. Collins also contended that he was improperly arraigned on a second superseding indictment while the first was ongoing. Jeopardy attaches under the Double Jeopardy Clause when a jury is empaneled and sworn, as established in Crist v. Bretz. Collins argues that his delayed arraignment violated his constitutional rights, but this claim is rejected. In Crist, the Supreme Court invalidated convictions because the first jury was empaneled and sworn before being dismissed. In Collins's case, the jury was never dismissed, so the failure to arraign him on the superseding indictment prior to trial did not infringe on his right to a chosen jury. Additionally, in Garland v. Washington, it was determined that a lack of formal arraignment does not deprive an accused of substantial rights or alter the trial's course to their disadvantage; strict adherence to trial formalities is unnecessary under the Due Process Clause. Regarding the claim of failure to sever his case, Collins must demonstrate plain error since no motion to sever was filed. He contends that the trial primarily focused on a narcotics conspiracy while only a small portion concerned arson. He argues that a separate trial would have excluded extensive narcotics and weapons evidence, but this claim is overstated. Evidence of the Joyner ring's drug trafficking would have been relevant to provide context for the arson, and any potential prejudice from this evidence was marginal. The overwhelming evidence against Collins and jury instructions to consider each defendant's guilt separately minimized the risk of prejudicial spillover. Lastly, Collins raises an ex post facto violation argument regarding arson penalties. At the time of his offense, the law required jury direction for imposing the death penalty or life imprisonment in cases of arson resulting in death. This requirement was removed in 1994, which is significant for his case. Collins claims that his life imprisonment sentence violates the Ex Post Facto clause because it was imposed without jury input, contrary to the law at the time of his offense. However, the court disagrees, stating that relevant case law, particularly Collins v. Youngblood, clarifies that an ex post facto law must punish acts retroactively, increase punishment, or withdraw defenses available at the time of the crime. The court emphasizes that the right to a jury trial, while substantial, does not pertain to the definitions of crimes or punishments under the Ex Post Facto Clause. Changes in law that reduce the jury's role do not constitute ex post facto violations if they do not alter the substantive nature of the crime or punishment. Regarding restitution, Collins argues that the district court failed to consider the statutory factors required by 18 U.S.C. § 3664(a) when ordering him to pay $1,846,637.45. The court reviews restitution orders for abuse of discretion, noting that a failure to comply with statutory requirements can lead to vacating the order. Section 3664(a) mandates consideration of the victim's loss, the defendant's financial resources, needs, and those of dependents. The record does not demonstrate that the court adequately considered these factors before imposing restitution. Although the government claims the court addressed these factors post-imposition by declining to impose a fine due to Collins's financial condition, this does not fulfill the requirements of Section 3664(a) regarding restitution. The district court's decision regarding the restitution amount of $1,846,637.45 was set aside due to a lack of clarity on whether it considered the defendant's ability to pay, as highlighted by the precedent in United States v. Kinlock. The case was remanded for further examination of this issue. Collins claimed ineffective assistance of counsel, citing failures to file a severance motion, object to the judge’s instructions on interstate commerce, and contest the restitution order. However, the court found no prejudicial omissions affecting the trial's outcome regarding the severance and interstate commerce issues, and stated that Collins could seek relief on the restitution matter upon remand, thus not meeting the second prong of Strickland regarding prejudice. Willoghby contested the district court's failure to explain its downward departure in sentencing, but this claim was deemed non-cognizable on appeal. He also challenged the determination of his base offense level as 26, asserting a dispute over drug sales quantity. The court found that Willoghby had previously accepted this quantity during a probation interview, and concluded that he was aware of the drug activities occurring around him. The court's determination was not considered clearly erroneous and satisfied the requirements of Federal Rule of Criminal Procedure 32(b)(6)(D). Barrett and Sweat objected to their indictment for aiding and abetting a continuing criminal enterprise (CCE) and sought severance. The court rejected these claims based on prior discussions regarding other defendants. Additionally, they alleged non-disclosure of Brady material related to the government's key witness, Shatima Turner, who was indicted for drug trafficking after their retrial. The court denied their motion for a new trial, determining that the prosecution was unaware of Turner’s drug offenses during the retrial and had disclosed all available evidence before trial. Barrett and Sweat assert that the government failed to disclose information regarding Turner being the target of an ongoing investigation, which they argue constitutes reversible error. However, the court found no such error, as the prosecutor's affidavit indicated he was unaware of Turner's 1996 drug crime during their retrial, and the court deemed this affidavit credible. Regarding allegations of perjured testimony, Barrett and Sweat contend that the government should have known Turner lied during the retrial. The court disagreed, noting that Turner’s accounts were not inconsistent and her explanation for omitting details in her first testimony was plausible. Even if her testimony were deemed perjurious, the court stated that cross-examination and jury instructions typically address this issue, and in this case, Barrett had the opportunity to cross-examine Turner, and the jury was appropriately instructed. Barrett and Sweat claimed a violation of the Jencks Act due to the late disclosure of grand jury testimony from Investigator Edwin Ramos. Although the prosecutor later provided the second transcript shortly after Barrett's opening statement, Barrett argued this late disclosure harmed his case. The court found that the Jencks Act requirements had been met, and even if there was an error, it was harmless since Ramos was a minor witness whose testimony did not significantly incriminate Barrett. Finally, Barrett and Sweat argued that their retrial breached the Double Jeopardy Clause due to the lack of a mistrial motion and opportunity for a hearing on this issue. The trial court declared a mistrial without the defendants' consent, prompting their claim of insufficient inquiry regarding jury deliberations. However, this claim lacks merit as established by the Supreme Court in Arizona v. Washington, which recognizes a judge's discretion to declare a mistrial when a jury is genuinely deadlocked. The trial judge’s decision was supported by the jury’s inability to reach a verdict despite extended deliberations and an Allen charge. After polling the jury, the judge appropriately discharged it. Furthermore, it is noted that a retrial is not precluded by the Double Jeopardy Clause when a mistrial results from a hung jury. The defendants also contended that the admission of coconspirator testimony violated the anti-gratuity statute due to promises of leniency from the government, but this argument has been previously rejected. The court's ruling is to affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.