United States v. Burrell

Citation: 43 F. App'x 403Docket: Docket No. 00-1259-62

Court: Court of Appeals for the Second Circuit; May 1, 2002; Federal Appellate Court

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The judgment of the District Court regarding the convictions of Brian Burrell, Michelle Miles, and Darryl Banks is affirmed, along with Stanley Burrell's conviction for engaging in a continuing criminal enterprise (CCE) and the sentences of Stanley Burrell, Michelle Miles, and Darryl Banks. However, the sentences of Brian Burrell and Stanley Burrell's conspiracy conviction are vacated and remanded.

All four defendants were convicted for conspiracy to distribute heroin and crack cocaine from 1990 to 1997, with additional charges against Miles for selling crack and Stanley Burrell for firearm offenses. The defendants raised numerous objections to their convictions and sentences, most of which were deemed meritless, except for two: Darryl Banks’ challenge regarding juvenile evidence and a challenge under Apprendi v. New Jersey, which will be analyzed separately.

The order addresses objections related to evidentiary rulings. Stanley Burrell claimed the admission of a photograph of him with jewelry and money, and receipts for large expenditures was erroneous. However, these were relevant to showing his substantial income from the CCE. The receipts found in his apartment supported their admissibility.

Miles and the Burrell brothers contested the admission of prior consistent statements made by a cooperating witness, which were permissible as Miles had implied the witness might lie. Additionally, Miles argued that she should have been allowed to present evidence of her acquittal on a prior charge of possession, but the court correctly ruled that such acquittals are generally inadmissible to counter other evidence.

Brian Burrell objected to the admission of evidence from his arrests during the conspiracy period, claiming they were unrelated to the conspiracy. However, the court found that the evidence was consistent with the conspiracy, thus properly admitted.

The jury's consideration of the color of the caps pertained to the weight of the evidence rather than its admissibility. Defendants claimed that the judge's impatience with defense counsel and the prosecutor's conduct denied them a fair trial, but the court found no abuse of discretion upon reviewing these claims. Defendants objected to the court's instruction that allowed for conviction based on membership in the single conspiracy charged, asserting that a multiple conspiracy charge was necessary; however, sufficient evidence supported the jury's conclusion of individual membership in the conspiracy, rendering this argument unpersuasive. Stanley Burrell challenged his conviction for participating in a continuing criminal enterprise (CCE) based on alleged errors in jury instructions and verdict sheets, including issues relating to the underlying narcotics conspiracy and the requirement of supervising five or more individuals for each predicate act. The court upheld its discretion regarding the use of a special verdict sheet and found no merit in Burrell’s arguments, clarifying that the relevant legal precedents did not require that five individuals be involved in each predicate act. Additionally, the court confirmed that a narcotics conspiracy could be counted as a predicate act for a CCE. Banks contested the "mere presence" jury instruction related to conspiracy, but the court rejected his argument for lack of precedent. The government conceded that Burrell's conspiracy conviction should be vacated as it was a lesser included offense of his CCE conviction, leading to the vacating of that conviction and remanding the case for correction of the judgment.

Stanley Burrell's argument against his sentence enhancement under U.S.S.G. 2D1.1(b)(1) for weapon use during a crime was dismissed, as the presence of a weapon is sufficient for enhancement unless its connection to the offense is improbable. The court found no improbability regarding Burrell's gun being linked to his drug trafficking activities. Additionally, Brian Burrell's claim that his sentence should not have been enhanced due to two prior narcotics convictions was also rejected. Despite both parties considering this a novel issue, the court referenced United States v. Lovell, which established relevant precedent, affirming that the logic of that case applies here, even though it involved a different statutory section. Overall, the court found the defendants' arguments unmeritorious, aside from specific noted exceptions.