United States v. Adams

Citation: 316 F. App'x 60Docket: Nos. 06-1714-cr(L)-Closed *, 06-1900-cr(CON), 06-1909-cr(CON), 06-1914-cr(CON)-Closed, 06-1932-cr(CON), 06-1953-cr(CON), 06-1962-cr(CON), 06-2221-cr(CON)-Closed, 06-2518-cr(CON)

Court: Court of Appeals for the Second Circuit; March 23, 2009; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Defendants-Appellants are appealing convictions from two jury trials related to drug smuggling at John F. Kennedy International Airport. In the first trial, Michael Erskine, Priestly Green, and Englan Younge were convicted of conspiring to import and possess significant quantities of cocaine and marijuana. Erskine and Green received sentences of 36 and 48 months respectively, while Younge was sentenced to 210 months, found guilty of cocaine-related charges but not marijuana. In the second trial, Gary Lall and Richard Pitcher were convicted of similar conspiracies involving cocaine, with Lall also convicted for marijuana-related conspiracies. Lall received a 210-month concurrent sentence, and Pitcher received 120 months.

On appeal, the defendants raise multiple issues, including claims of variance, misjoinder, and prejudicial spillover. Erskine and Lall assert that there was a fatal variance between the conspiracies charged and those proven at trial. The court follows a two-part inquiry: first, assessing whether the government proved the conspiracy alleged in the indictment and the defendant's involvement; second, if not, determining if the defendant was substantially prejudiced by the variance. Substantial prejudice is considered if the jury convicted based on evidence unrelated to the defendant's own actions. The court considers factors such as the presence of a Pinkerton charge, use of statements from non-conspirators, the impact of multiple defendants, and any inflammatory evidence.

Erskine specifically disputes the connection between two alleged conspiracies (Barbados and Guyana) and claims that the Barbados scheme did not constitute a conspiracy. However, he fails to demonstrate prejudice from any variance since he was involved in all conspiratorial conduct proven at trial.

The district court correctly determined that two schemes were part of the same importation conspiracy, as the nature of a conspiracy is not altered by time lapses, changes in participants, or shifts in operational locations. Erskine, involved in the conspiracy through importations from Barbados, was not prejudiced by the introduction of cocaine evidence from Guyana, satisfying the requirement of proving his membership in the conspiracy. Even if prejudice were to be considered, factors indicating a lack of prejudice include the absence of a Pinkerton charge, a limited number of defendants, no inflammatory evidence, and reliance on Erskine's own intercepted statements. Lall claimed prejudice from discrepancies between the indictment and trial evidence, as well as the joinder of multiple conspiracies, but the government proved his connection to the conspiracies charged. Lall waived any misjoinder claim by failing to seek a pretrial severance, and even if preserved, he could not demonstrate prejudice due to evidence linking him to both conspiracies. Additionally, the testimony regarding the unrelated Adams conspiracy was admitted with specific limiting instructions, which jurors are presumed to follow. 

Regarding the sufficiency of evidence for Green, Erskine, Younge, and Pitcher, they argued that the evidence was insufficient to support their convictions. However, the burden rests on defendants to show insufficiency, and a conviction is upheld if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt, with evidence viewed favorably to the government.

The court affirms the jury's role in assessing evidence weight, witness credibility, and drawing inferences. Green contends that evidence did not prove his involvement in the conspiracy, claiming he did not agree to participate or contribute to drug importation. However, testimony and intercepted calls indicate he agreed to assist with narcotics shipments and sought compensation. Green's post-arrest admissions further implicate him in discussions about drug diversion in Miami. The absence of evidence showing drugs imported through him is not necessary for a conspiracy charge, as conspiracies can exist independently of the substantive crime. The essence of conspiracy lies in the agreement among conspirators rather than their actions.

Erskine similarly argues insufficient evidence for his involvement but intercepted calls planning importation with Adams support the jury's conclusion of his participation in the conspiracy. The government need only demonstrate reasonable inference of knowledge and participation in the alleged scheme. Although no drugs imported as a result of Erskine’s actions were shown, this is not required for a conspiracy conviction.

Younge challenges the sufficiency of evidence regarding his involvement, but the court defers to the jury's determinations based on multiple witnesses observing him engaged in illegal activities, including tossing a drug-filled bag to bypass customs. His extended participation in a related scheme was also established.

Pitcher disputes the evidence supporting his conviction; however, audio recordings, his post-arrest statements, and documents from his vehicle substantiate the jury's verdict against him. He also claims insufficient evidence for responsibility for five kilograms or more of cocaine, but the court finds the evidence presented adequate to uphold the convictions.

Pitcher argues that Special Agent Flood's testimony about drug values imported into New York was not used against him, despite the district court providing a limiting instruction for one of Flood's responses. The jury could reasonably conclude from Flood’s testimony regarding cocaine values, fees paid to coconspirators, and importation methods that the conspiracy involved five kilograms or more of cocaine. 

Pitcher also contests the district court's determination that he voluntarily consented to the search of his vehicle upon arrest. The appellate court will not overturn this determination unless it is clearly erroneous. Pitcher fails to demonstrate non-consent, as the testimony of two agents at the evidentiary hearing, which the district court found credible, supports the conclusion that his consent was voluntary.

Younge challenges the admission of evidence concerning prior uncharged conduct, specifically his involvement in drug shipments using fish pallets. He argues this evidence should not be admissible under the Government's theory of modus operandi because it was replicated by another group and linked to a different importation method. The district court’s decision to admit such evidence is reviewed for abuse of discretion. Evidence of Younge's unique method of importing cocaine reinforces the jury's inference that his cooperation with suppliers was part of a single conspiracy, making it admissible under Rule 404(b) as modus operandi evidence. The district court found this evidence directly related to the charged conspiracy, and the appellate court sees no abuse of discretion.

Lall asserts that the admission of certain evidence, including testimony about a 2002 cocaine seizure, led to a constructive amendment of the indictment, resulting in a conviction for charges not originally specified. Constructive amendment occurs when the trial court broadens the basis for conviction beyond what was charged in the indictment.

To establish a constructive amendment claim, a defendant must prove that either the trial evidence or jury instructions significantly altered an essential element of the charge, creating uncertainty about whether the conviction aligned with the grand jury's indictment. A constructive amendment does not occur if a broadly framed indictment includes the specific legal theory or evidence presented at trial. In the case discussed, the indictment's charges covered evidence presented, including testimonies and seizures related to the importation conspiracy, thus no constructive amendment was found.

Younge contested the district court's determination that he was a leader in a criminal scheme, leading to a 4-level increase in his Guidelines offense level, and that he was responsible for 124 kilograms of cocaine found in a shipment. Reviewing for clear error, the court found ample trial evidence supporting Younge's role as a leader, including recruiting and compensating participants and planning further shipments. Regarding culpability for narcotics, it is sufficient for a defendant to foresee the quantity involved in the conspiracy, not necessarily to know the exact amount. The jury's verdict confirmed Younge's involvement in a larger conspiracy, making him accountable for the quantity he could foresee. Ultimately, the district court found him responsible for 120 kilograms rather than 180 kilograms, which was deemed correct.

Lall raised an ineffective assistance of counsel claim on appeal, but the court typically prefers such claims to be addressed through a 2255 motion rather than on direct appeal. However, it allowed Lall's claim to be deferred for future consideration if he opts to file a motion. The court dismissed the remaining arguments from the defendants as meritless and affirmed the district court's judgments. Additionally, Pitcher withdrew his sufficiency challenge regarding intercepted phone calls.