McKEE, Chief Judge.
This appeal arises from the convictions of four men belonging to a violent heroin trafficking organization that operated out of Atlantic City, New Jersey. Over the course of two and a half years, law enforcement officials documented the extensive reach of this organization and the crimes its members committed. Thirty-four people were charged with drug-trafficking related offenses as a result of the investigation. They include the four defendant/appellants here: Kareem Bailey, Terry Davis, Lamar Macon, and Dominique Venable.
On appeal, Bailey, Davis, Macon, and Venable make four principal arguments for reversal. They contend that: (1) the evidence presented at trial was insufficient to support their convictions; (2) the district court should have suppressed the government's wiretapping evidence; (3) the district court violated Federal Rules of Evidence 404(b) and 403 when it admitted certain evidence regarding a drug-trafficking-related murder and a drug-trafficking-related assault; and (4) the district court abused its discretion when it declined to order a mistrial on two different grounds. Bailey further contends that the district court abused its discretion in admitting evidence of his past convictions for possession of cocaine with intent to distribute and possession of a firearm. The defendants' first, second, and fourth arguments are entirely without merit. However, their Rule 403 claim merits serious consideration. As we will explain, we agree that the district court violated Rule 403 when it admitted certain evidence. Nonetheless, given the overwhelming amount of other evidence of guilt, we hold that the error was harmless. Accordingly, we will affirm the convictions.
Bailey, Davis, Macon, and Venable were associates in a violent heroin-trafficking organization that operated out of the Stanley Holmes Public Housing Village in Atlantic City, New Jersey. This organization was led by Mykal Derry and known as the Derry Drug Trafficking Organization (DDTO). Derry purchased large quantities of heroin from three New Jersey suppliers and distributed the heroin in "bundles" (ten wax envelopes of heroin) and "bricks" (five bundles) to members of the DDTO. These DDTO associates then sold the heroin in and around the public housing complex. Investigators estimated that Derry received 717 bricks of heroin for distribution from October 2012 to February 2013. The DDTO maintained control of its drug-trafficking turf by assaulting, robbing, and killing rival drug dealers.
In July of 2010, the FBI began investigating the DDTO in conjunction with state and local law enforcement agencies. At first, confidential informants and undercover police officers made a series of controlled buys that were captured on audio and video recordings. By October, officers had identified Mykal Derry as the leader of the organization. For the next two years, police relied on confidential informants, controlled buys, physical surveillance, phone records, pen registers, and intercepted prison phone calls placed from the Atlantic County Jail to map the scope of the DDTO's operations.
However, the investigators eventually found these techniques inadequate to uncover the full reach of the conspiracy. In an attempt to remedy this, the government secured authorization for a wiretap from the United States District Court for the District of New Jersey in October 2012. Wiretaps on the phones of Mykal Derry and one of his suppliers, Tyrone Ellis, revealed many DDTO co-conspirators that police had previously been unaware of as well as new evidence regarding the organization's criminal activities. Overall, law enforcement intercepted and recorded approximately 6,700 pertinent calls over the course of their investigation.
A federal grand jury returned a fifteen-count indictment against fifteen defendants, including the four in this consolidated appeal. Thereafter, the grand jury returned a 125-count superseding indictment against nineteen defendants, including these four defendants. The issues raised in this appeal pertain to the following charges in that indictment: (1) Conspiracy to Distribute and Possess with Intent to Distribute Heroin within 1000 Feet of a Public Housing Complex, in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) & (b)(1)(A), and 21 U.S.C. § 860 (drug conspiracy count); (2) Use or Possession of a Firearm in Furtherance of a Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (firearm count); (3) Use of a Communication Facility to Further a Drug Conspiracy, in violation of 21 U.S.C. § 843(b) (phone count); and (4) Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (felon in possession count). While all four defendants were charged in the first three of those counts, only Terry Davis was charged in the fourth. The indictment alleged that the charged conspiracy lasted "[f]rom in or about October 2010 through in or about March 2013."
Given logistical hurdles arising from the number of individuals indicted, the district court established three groups of defendants who would be tried separately. The four defendants here were among those joined in the first group to be tried. All four were subsequently convicted on all counts charged against them, except one phone count on which Bailey was acquitted. Davis received an aggregate sentence of 240 months' imprisonment in accordance with the applicable mandatory minimums. Venable was sentenced to 240 months; Bailey to 241 months; and Macon to 240 months.
Defendants now raise overlapping and individual challenges to their convictions. They raise four principal arguments. First, they contend that the government did not present sufficient evidence to support the jury's verdict. Second, Bailey, Venable, and Macon argue that the district court should have suppressed the evidence obtained through the wiretaps. Third, they claim that the district court violated Federal Rules of Evidence 404(b) and 403 when it permitted the government to present evidence of a murder committed by Mykal Derry's brother, Malik Derry. Bailey and Macon also argue that the district court violated Rule 403 when it permitted the government to present evidence of another drug-trafficking-related assault that DDTO members carried out. Bailey further appeals the district court's admission of his prior convictions under Rules 404(b) and 403. Fourth and finally, Venable, Bailey, and Macon claim there are three different grounds for a mistrial that were erroneously denied. For the reasons that follow, we hold that only one of the defendants' evidentiary challenges has any merit. Nonetheless, the resulting error was harmless.
All four defendants contend that the evidence presented at trial was insufficient to support their convictions for membership in a heroin-trafficking conspiracy and use (or possession) of a firearm in furtherance of that drug trafficking conspiracy.
In drug conspiracy cases, the government must prove that the defendants were not merely engaged in "buyer-seller" relationships with their suppliers.
Of course, merely comprehending the nature of the group one purchases from does not change a person who is otherwise only a purchaser into a conspirator, and Gibbs does not hold otherwise.
Our standard of review in sufficiency of the evidence challenges is highly deferential.
We further clarified the application of this deferential standard to drug conspiracy cases in a relatively recent en banc decision, United States v. Caraballo-Rodriguez.
The defendants must therefore clear a high hurdle to prevail on their challenge to the sufficiency of the evidence.
Here, there is considerable evidence that the DDTO was a drug trafficking organization, of which each of the defendants was a member. Kareem Young testified that Derry sold him and other DDTO associates bricks of heroin, some of which Young paid for upon delivery and some of which he obtained on credit. Young explained that he and other DDTO associates stored heroin and guns inside trap houses that they operated at the Stanley Holmes Village apartments. He also stated that if a rival drug dealer attempted to sell heroin on DDTO "turf," DDTO associates would beat, rob, and/or shoot the invader.
Regarding the four defendants here, Young first testified that Derry provided heroin to Macon from 2011 through 2013, and Macon resold the heroin in Atlantic City on a daily basis. Young also stated that Derry sold Macon heroin on credit. Wiretapped phone calls between Macon and Derry corroborate this testimony. The wiretaps also captured a conversation between Derry and Macon in which Macon warned Derry about police surveillance. This fact suggests that Macon had a stake in the continued viability of Derry's drug operation. Similarly, police recorded Macon directing heroin customers to Derry. This evidence was more than sufficient to establish that Macon had an interest in the Derry conspiracy and, thus, was a member of it.
The evidence also established Davis was a member. In fact, Davis served as an "enforcer" for the group. Davis carried firearms to protect DDTO associates during heroin sales. Young testified that Derry delivered heroin to Davis for redistribution, occasionally providing it on credit. Intercepted conversations corroborated Young's testimony against Davis. The prosecution also presented other examples of Davis's active membership in the DDTO. These examples included recorded conversations about an incident in which Davis rented a hide-away room at the Trump Taj Mahal Casino for Derry after Derry and his brother Malik murdered a member of a rival gang. This evidence was enough to allow a reasonable jury to conclude that Derry and Davis had a shared interest in the success of the DDTO.
Venable's attempt to distance himself from membership in the DDTO fares no better. Young recounted that Derry sold heroin to Venable in 2011 and 2012, occasionally providing it to him on credit. Moreover, Venable conceded in his brief that "direct proof ... of Venable's membership in the conspiracy"
The government also presented sufficient evidence of Bailey's membership in the DDTO drug conspiracy. Recorded calls revealed Bailey setting up sales for Derry. Bailey, like Macon, also acted as a lookout for the DDTO. Lastly, the evidence included recorded conversations between Derry and Bailey in which the two discussed collecting money from other DDTO associates so that they could post bail for Davis and another DDTO co-conspirator.
This evidence establishes several important Gibbs factors. First, as Gibbs teaches, "[a] large transaction or an accumulation of deals suggests more trust, garnered over a period of time, as well as a greater likelihood that the parties have `put their heads together' to figure out planning, organization, and ways to conceal their activities."
The fact that Macon and Davis obtained heroin from Derry on credit with some regularity further shows the trusting and continuing nature of the relationship between them. This trust is indicative of membership in a conspiracy rather than merely purchasing from it.
The fact that Bailey, Macon, and Davis occasionally advanced the DDTO by serving as lookouts are also indicative of membership in the conspiracy. We have explained that when a defendant "acted as a lookout [while an alleged coconspirator] conducted drug sales, [] that fact alone may well have been enough to show the existence of a conspiracy between" those persons.
Accordingly, it is abundantly clear that all four of these defendants had a stake in the DDTO organization and actively worked to advance the goals of that organization; these were goals from which each of these defendants shared and benefitted. This evidence is clearly sufficient to establish each of the defendants' membership in the charged conspiracy beyond a reasonable doubt, and their protestations to the contrary are unpersuasive.
The defendants further claim that the evidence was insufficient to prove that they possessed, carried, or used firearms in furtherance of the heroin-trafficking conspiracy. This argument is only slightly
However, since the government charged a conspiracy, it need not prove that each defendant himself personally used a firearm in furtherance of the conspiracy. Instead, under Pinkerton v. United States,
Here, the government introduced considerable evidence of the DDTO's profligate use of firearms to further the common interests of the conspirators. Young testified that the DDTO associates engaged in numerous shootings, targeting rival drug dealers and former DDTO associates in an effort to maintain DDTO control over the drug-trafficking trade in the Stanley Holmes area. For example, Young explained that Derry and another DDTO associate assaulted a former DDTO associate named Anthony Rosario after Rosario stopped buying heroin from Derry. After Rosario reported the assault to the police, Derry ordered his cousin to shoot Rosario.
The government introduced evidence that Macon, Davis, Venable, and Bailey either committed the substantive crime of possession in furtherance of a drug-trafficking conspiracy or else met Pinkerton's standard for co-conspirator liability. As previously explained, "As long as [a conspirator's] action was within the purview of the conspiracy, his co-conspirators are as liable for his gun as if they had carried the firearm themselves."
Young further explained that he repeatedly saw Davis carrying guns, and that Davis was an "enforcer" for the DDTO. Law enforcement also intercepted conversations between Davis and another DDTO associate regarding a shooting that a DDTO associate carried out against rival drug dealers.
According to Young, Venable regularly carried a loaded .22 caliber rifle with a sawed-off barrel to shoot at rival drug dealers. The police seized a sawed-off, .22 caliber rifle from Venable, thus corroborating Young's testimony. Moreover, Young testified that Venable admitted that he was involved in a shooting on rival drug turf. The presence of a discharged .22 caliber shell casing found at the scene of the shooting corroborated this testimony.
Young testified that Bailey possessed "firearms at times while he was selling drugs or engaged in the business of selling drugs in and around" the Stanley Holmes Village and other locations. After Bailey was arrested, Derry told Bailey that he was glad that Bailey "wasn't strapped" when he was arrested, and Bailey acknowledged his ownership of a gun ("my joint").
This evidence is sufficient to establish actual possession of firearms in furtherance of drug-trafficking activity. It is also more than enough proof that each defendant conspired to possess them for that purpose. There was also evidence that Davis, Venable, and Bailey carried firearms during drug sales, supporting the inference that they relied on these firearms to enforce and protect their drug business. Venable even appears to have used his firearm in drug-related shootings.
Even without this direct evidence, the government produced sufficient evidence to prove that all four defendants knew the DDTO used guns in furtherance of the drug conspiracy. All four were aware of numerous drug-related DDTO shootings, saw firearms in trap houses, and knew that the DDTO used armed, i.e. "strapped," enforcers.
Bailey, Macon, and Venable claim that the government failed to establish "necessity" for its wiretaps. Thus, they contend that the district court erred in not suppressing the evidentiary "fruits" of those wiretaps. According to the defendants, the investigators obtained sufficient information through "traditional investigative techniques," such as controlled purchases of heroin, physical surveillance, review of telephone records, and confidential informants. The record is to the contrary.
The team that investigated this case used nearly every technique in the book before requesting authorization for a wiretap. They ultimately applied for a wiretap only when it became clear that the less invasive techniques they had been using were not effective. Those methods did not disclose the full scope of the DDTO's conspiracy. We review the district court's approval of the wiretap application for clear error, while exercising plenary review over its legal determinations.
The statute governing the authorization of wiretaps, Title III,
A district court may approve a wiretap application when the government demonstrates that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."
Here, law enforcement either exhausted the normal investigative techniques available to them or else reasonably concluded that such procedures were unlikely to succeed if tried. The affidavit in support of the wiretaps lays this out in exhaustive detail. The investigators first recruited confidential informants who made controlled purchases of heroin from Derry and other DDTO associates. Investigators used physical surveillance of most of the controlled purchases of heroin from Derry. Investigators also obtained information from recorded prison telephones involving incarcerated DDTO associates.
These techniques proved to be insufficient. The confidential informants bought heroin almost exclusively from Derry and did not "know all" of his confederates. They also could not ascertain the DDTO's "method(s) or source(s) of supply, nor locations used for storage, packaging or distribution."
Law enforcement further determined that other, less invasive investigative techniques would also fail to reveal the full scope of the DDTO's operations. Continued physical surveillance was likely to be fruitless because most of the associates were surveillance conscious, avoiding locations that were visible to security cameras. They were also occasionally aware of surveillance vehicles when they were present (some of these defendants even alerted each other to the presence of surveillance vehicles). Investigators also determined that searches of the targets' trash would provide little relevant evidence because trash at the Stanley Holmes Village was thrown into communal dumpsters and could not be attributed to particular tenants.
Law enforcement also decided that the execution of search warrants would be futile because such searches would alert DDTO associates to the existence of the investigation, thereby leading to the concealment or destruction of evidence before police could identify all drug stash locations. Additionally, execution of search warrants "in and of themselves, would [not] meet the goals and objectives of this investigation" because the "[e]vidence seized would only implicate the individual directly associated with the respective property[] and not the entire organization."
As the government explained in its affidavit, Derry largely conducted his business over cell phones, using seven different mobile telephones an average of 205 times per day. In a final attempt to avoid applying for wiretap authorization, investigators first obtained judicial approval to install pen registers and trap-and-trace devices as well as collect global positioning satellite information on Derry's mobile telephones. These devices enabled officers to track Derry's location and contacts without allowing them to listen to the substance of his calls. However, police were still unable to ascertain the identities of the people speaking to Derry on the phone. It was therefore necessary for the government to obtain more precise information regarding Derry's cell phone use.
Moreover, as the government explains in its brief, the "value of historical telephone usage information was limited by the fact that targets occasionally used `pre-paid' telephones or `drop phones' — for which service providers were not required to maintain subscriber information — or used fictitious names to subscribe for telephone service."
Far from being inadequate to justify authorization of a wiretap, the government's application here is a textbook model of care and thoroughness, and the individuals who prepared it are to be commended. With meticulous and painstaking care, they clearly explained the
In United States v. Armocida,
Moreover, as previously explained, the government was not required to show that all other investigative methods would have been ineffective (even though the government appears to have made such a showing here). "It is sufficient that the government show that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of those avenues of investigation."
The district court permitted the government to present evidence that Mykal Derry and his brother Malik murdered a rival heroin trafficker named Tyquinn James for selling drugs on their turf. The evidence was admitted to prove the firearm and drug trafficking conspiracy charges.
On February 10, 2013, Malik Derry shot Tyquinn James at extremely close range outside a populated fast food restaurant and liquor store in Atlantic City. A security camera outside the restaurant partially captured the murder on video. At trial, the district court permitted the government to present both the video recording of this murder as well as non-video evidence — testimony and recorded conversations — discussing the murder. Davis, Bailey, Macon, and Venable argue that the district court erred in admitting both the video and non-video evidence of the James murder under Federal Rule of Evidence 403. Davis also argues that the evidence was
We conclude that the district court did not err in admitting the non-video evidence of the James murder. Given the nature of the charged conspiracy, that evidence was more probative than prejudicial and therefore admissible under Rule 403. However, we are extremely troubled by the district court's decision to allow the surveillance video of that shooting into evidence. The video depicted a brutal murder; it was not necessary to establish the government's stated purpose in seeking its admission, and the probative value of this video — if any — was vastly outweighed by the significant risk of undue prejudice and emotion it most likely stimulated in the jury. As we shall explain, the district court should not have admitted this tape into evidence. Nevertheless, even though we are disturbed by this error and the prosecution's tactic, given the plethora of evidence of guilt of each of these defendants, we hold that this error was harmless. We address each of these issues in turn, beginning with the non-video evidence.
We generally review a district court's evidentiary findings for abuse of discretion.
Rule 403 states: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
Here, Davis contends that the district court abused its discretion because it failed to conduct the requisite on-the-record balancing with respect to the video evidence of the James murder. Although Davis does not raise this argument with respect to the non-video evidence, we will address this point with respect to all evidence of the James murder as it dictates the degree of deference we must afford the district court's decision. We conclude that the district court articulated sufficient reasons, on-the-record, for admitting the non-video evidence of the James murder.
At trial, both parties briefed the Rule 403 issue with respect to both testimonial and video evidence, and the district court heard argument on the issues. The court then conducted the necessary balancing with respect to the non-video evidence. First, the district court acknowledged that the evidence was prejudicial, but only in the way that all probative evidence is prejudicial. The court then rejected the defendants' argument that the non-video evidence of the James murder was cumulative of other documentation of the DDTO's drug-related violence. The court reasoned that nothing about this evidence was unfairly prejudicial and rejected the defendants' Rule 403 argument. The district court considered a number of relevant factors in conducting its on-the-record balancing. The balancing inquiry convinced the court that the testimonial and wiretapping evidence of the James murder should be admitted. Accordingly, we review that decision only for an abuse of discretion. We must therefore determine whether "`the district court's action was arbitrary, fanciful or clearly unreasonable,' and `we will not disturb a trial court's exercise of discretion unless no reasonable person would adopt the district court's view.'"
We now turn to the merits of the district court's Rule 403 ruling as to the non-video evidence of the James murder. As previously stated, under Rule 403, a court may "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
The evidence of the James murder was highly probative to the firearms charge. As previously explained, the government had to prove either that each defendant conspired to traffic heroin and knowingly possessed firearms in furtherance of that conspiracy
The defendants nonetheless argue that the danger of unfair prejudice associated with this evidence outweighed its probative value. They point out that they offered a trial stipulation that DDTO associates murdered James. However, we have repeatedly acknowledged the Supreme Court's canonical directive in Old Chief v. United States.
Thus, the government was entitled to present evidence of the James murder to the jury through testimony, rather than by stipulation.
Defendants also argue that evidence of the James murder was cumulative because evidence pertaining to other DDTO shootings was presented at trial. But Old Chief also teaches that "the mere fact that two pieces of evidence might go to the same point would not ... necessarily mean that only one of them might come in."
The government stipulated to the fact that none of the defendants here actually murdered or plotted to murder James. Indeed, the government took pains to prove that Derry and his brother committed this murder. As we explained in United States v. Jones,
In contrast to its treatment of the non-video evidence, the district court failed to conduct the requisite Rule 403 on-the-record balancing with respect to the video of the James murder. Had it done so, it is difficult to see how it could have concluded that the probative value of this video outweighed its prejudicial impact.
The extent of the district court's balancing regarding this piece of evidence was an off-handed and rather casual remark that
We have stated numerous times that a district court must provide a statement of reasons, on-the-record, explaining why it is admitting evidence over a Rule 403 objection. In United States v. Caldwell,
Here, the district court failed to discuss the probative value of this evidence or even acknowledge the video's potential for prejudice. Instead, the district court merely recited the text of Rule 403 and concluded that the evidence was admissible — exactly what Caldwell prohibits. Because the district court's "rationale is not apparent from the record," we have "no way to review its discretion."
In contrast to the non-video evidence, it is clear that the district court should not have admitted the video of the James murder. This video had a substantially greater risk of unfair prejudice than the testimonial and wiretap evidence because it graphically depicts what can only be described as a cold-blooded murder. The video shows James standing in front of a populated restaurant as Malik Derry rides up on a bicycle, draws his gun, and shoots James in the head at point blank range. Malik then casually rides away as James crumples and collapses to the ground. A child leaves the restaurant, staring at James' body, as another passerby appears to call the police. Although no blood is visible in the video, it is nonetheless highly disturbing. As the government repeatedly emphasized in oral argument, the video depicts a ruthless murder, carried out by someone with no regard for human life. It is difficult to understand how the emotional impact of this video
Nonetheless, as we just explained, we will not disturb the district court's determination unless the danger of unfair prejudice substantially outweighs the probative value of evidence. We have little trouble concluding that it does. The government introduced abundant evidence to prove the James murder and its relationship to the charged drug conspiracy via recorded telephone conversations and testimony at trial. This video was not merely cumulative, it was a graphic depiction of an event that had already been thoroughly proven. This court
We explained this concept in United States v. Cunningham.
We held that the video excerpts should have been excluded because their "aggregate risk of unfair prejudice was tremendous" while their probative value was low given the availability of other evidence.
Here, the James video was entirely redundant. Its only value lay in its emotional impact.
In other words, the government argued that the video allowed it to elicit the emotion that Rule 403 is designed to prevent. As in Cunningham, "[w]e disagree with the government's contention ... that [the] video [] needed to be shown to `fully appreciate the nature of [the] crimes.'"
It is hard to understand how the district court could have concluded that the relatively
Our conclusion that the district court erred in admitting the James video does not end our inquiry: we must still review to see if the error was harmless. An evidentiary error is harmless if "it is highly probable that the error did not contribute to the judgment,"
Here, we find that the district court's erroneous admission of the James video was harmless. As previously described, the government presented abundant evidence of the drug-trafficking conspiracy, the firearm charge, and the defendants' liability for each of these counts.
In concluding that this error was harmless under the circumstances here, we caution that the doctrine of harmless error is not a license to engage in whatever prejudicial practices an attorney might feel he or she can get away with because the harmless error analysis will inoculate the end result against reversal on appeal.
Davis alone argues that evidence of the James murder was extrinsic to the
In addition to the evidence of the James murder, the government presented evidence that DDTO associates assaulted a former member of the organization named Anthony Rosario. Rosario was a trafficker who obtained heroin from Mykal Derry until they had a falling out. When Rosario stopped buying heroin from Derry, Derry and another DDTO associate kidnapped Rosario, stole his car, and assaulted him. This assault occurred on October 30, 2010. When Rosario and his mother reported the kidnapping and assault to the police, Derry had his cousin, Kevin Washington, shoot Rosario on April 17, 2011, paralyzing him. The district court permitted the government to present evidence of this assault at trial over the appellants' Rule 403 objection.
On appeal, Bailey alone continues to contest the admission of this evidence.
The Rosario evidence was particularly probative because of the timing of the assault. The Rosario assaults occurred on October 30, 2010 and April 17, 2011, earlier in the conspiracy than evidence of the other violent acts DDTO associates committed. Thus, "those assaults [] had a longer time to influence the thinking of others who might consider opposing the DDTO."
Just weeks before the official "start" of the charged conspiracy, on September 4, 2010, Bailey was arrested with a .22 caliber semiautomatic handgun, loaded with five rounds of ammunition. He also had 20 grams of cocaine and $867 in cash in his possession. The government charged Bailey with unlawful possession of a handgun and unlawful possession of cocaine with the intent to distribute within 500 feet of a public housing complex (i.e., the Stanley Homes Village). Bailey plead guilty to both charges in juvenile court.
At trial, the district court permitted the government to introduce evidence of this arrest and conviction. The parties agreed to a stipulation that Bailey's firearm was operable. The parties further agreed that certain exhibits related to this incident — the firearm, ammunition, and a series of photos taken at the scene of the arrest — would be admitted in evidence. The district court admitted this evidence as being intrinsic to the charged conspiracy and, in the alternative, as an admissible prior crime under Federal Rule of Evidence 404(b). That rule allows evidence of uncharged past crimes to be admitted if it is not used to establish a defendant's criminal propensity. Under the rule, such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."
As previously explained, we generally review district courts' evidentiary rulings for abuse of discretion.
Here, the district court did articulate a chain of inferences that did not include propensity. At trial, Bailey argued that he should not be liable for the firearm charge because he did not have any knowledge that other DDTO members would carry guns, use guns, or discharge guns. Therefore, his knowledge was critical to the government's case and conversely, his defense. The district court realized this and offered the following explanation of how Bailey's past arrest shows something other than his mere propensity to carry weapons:
As the district court explained, Bailey's conviction tends to demonstrate his knowledge that the drug business in this area of Atlantic City was a particularly violent enterprise; one where drug dealers were frequently armed. This is a valid, non-propensity reason to admit Bailey's past conviction.
Bailey argues that, contrary to the district court's ruling, the evidence of his past conviction was not intrinsic. If the conviction evidence is intrinsic to the charged crimes, then we need not conduct the 404(b) analysis.
The Bailey conviction fails to meet either definition of intrinsic evidence. First, Bailey's prior arrest and conviction did not "directly prove" the charged offense. Bailey was arrested a month before the conspiracy even began. Bailey's conviction could not directly prove Bailey's role in a conspiracy that had not yet even begun.
Because Bailey's past conviction was not intrinsic to the charged crimes, it should only have been admitted if consistent with Rule 404(b)'s requirements. To be admissible under Rule 404(b), evidence of uncharged crimes or bad acts must: (1) have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) if the defendant requests it, the court must instruct the jury to consider the evidence only for the limited purpose for which it is admitted.
The government claims that Bailey's past conviction had a proper purpose because it tends to demonstrate that Bailey knew drug dealers in the Atlantic City area — specifically the Stanley Holmes Village — frequently used firearms in the course of their trafficking activities. We agree.
The circumstances here are quite similar to those we considered in United States v. Boone.
Like Boone, Bailey contests his knowledge of drug-trafficking practices in Atlantic City. And, as in Boone, the government seeks to rely on Bailey's past conviction to prove he did possess that knowledge. This chain of logic does not rely on improper propensity inferences. The temporal and geographic proximity of Bailey's past conviction to the charged crime tends to show that Bailey knew drug traffickers in this area possessed firearms in the course of their drug trafficking.
Finally, we must assess whether the danger of unfair prejudice associated with the evidence of Bailey's past conviction substantially outweighed its probative
The risk of unfair prejudice inherent in the evidence of Bailey's past conviction is obvious. It would have been difficult for the jurors to hear this evidence and not make the impermissible propensity inference. "Although the government will hardly admit it, the reasons proffered to admit prior bad act evidence may often be potemkin village, because the motive, we suspect, is often mixed between an urge to show some other consequential fact as well as to impugn the defendant's character."
Although this potential for unfair prejudice is significant, so too was the probative value of this evidence. As the district court recognized, this past conviction was directly relevant to Bailey's knowledge that drug dealers at the Stanley Holmes Village used firearms. Bailey's arrest one month prior to the charged conspiracy at the same location as the DDTO's trafficking activity is compelling evidence of his knowledge. Without this past conviction, the government's case for Bailey's Pinkerton liability was significantly weaker. As previously discussed, the only other evidence of Bailey's culpability on the firearm charge was 1) testimony from Young that Bailey possessed "firearms at times while he was selling drugs or engaged in the business of selling drugs in and around" the Stanley Holmes Village and other locations,
Accordingly, we cannot say that the district court's analysis and resulting conclusion regarding Bailey's past conviction was "arbitrary or irrational."
We affirm the district court's admission of the Bailey conviction.
Lastly, Bailey, Macon, and Venable contend that the district court abused its discretion when it denied their motions for mistrials based on statements witnesses and the government made at trial.
In reviewing the district court's denial of the mistrial motion based Holton's comments, we assess three factors. We consider: (1) whether the remarks were pronounced and persistent, (2) the strength of the other evidence, and (3) curative actions taken by the district court.
Venable also argues that the district court abused its discretion in failing
Nevertheless, at trial, Detective Michael Tracy accidentally testified that he discovered a casing of a ".22 caliber, head stamp super X"
Nothing in Tracy's testimony or any other witness's testimony connected Venable's.22 caliber rifle to the "super X" head stamp. It is unlikely that the jurors even understood the relevance of Tracy's reference. Therefore, the district court did not abuse its discretion in denying Venable's motion for a mistrial.
Finally, Macon contends that the government constructively amended its indictment during its rebuttal summation, entitling the defendants to a mistrial. During summation, Macon's attorney displayed a photograph of Macon with a group of men who were DDTO rivals. Macon's counsel argued that the photograph proved Macon was not a DDTO associate because if he were, he would not have posed with rival gang members. In rebuttal, the government argued that the photograph had been taken in mid-March 2013, after Mykal Derry had already been arrested and the "Derry brothers' reign on the streets of Atlantic City [was] coming to a close."
The argument hardly merits discussion. The government never asserted that the conspiracy had formally ended in mid-March 2013. It merely posited the common-sense inference that Mykal Derry's influence had waned due to his incarceration. Furthermore, Macon's arguments missed the point of the constructive amendment doctrine. The bar on constructive amendments seeks to ensure that the jury does not convict the defendant for uncharged conduct.
For all the reasons set forth above, we will affirm the judgments of conviction of each of these four defendants.
