United States v. Faison , 555 F. App'x 60 ( 2014 )

12-5006
United States v. Faison
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of February, two thousand fourteen.
PRESENT:
PIERRE N. LEVAL,
GUIDO CALABRESI ,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 12-5006
Timothy Faison,
Defendant-Appellant.
_____________________________________
FOR APPELLEE: Emily Berger, Julia Nestor, Assistant United
States Attorneys, for Loretta E. Lynch,
United States Attorney, Eastern District of
New York, Brooklyn, NY.
FOR DEFENDANT-APPELLANT: Timothy Faison, pro se, Bruceton Mills,
WV.
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Appeal from a judgment of the United States District Court for the Eastern District of
New York (Denis R. Hurley, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment is AFFIRMED.
Following a jury trial at which he represented himself, appellant Timothy Faison was
convicted of possessing 28 grams or more of cocaine base with intent to distribute, 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(iii); distributing 28 grams or more of cocaine base, §§ 841(a)(1),
841(b)(1)(B)(iii); and two counts of distributing cocaine base, §§ 841(a)(1), 841(b)(1)(C). His
conviction arose out of three events: (1) his March 2, 2010 sale of crack cocaine to an informant
working with the Glen Cove Police Department (“GCPD”); (2) his March 10, 2010 sale of crack
to that same GCPD informant; and (3) his June 15, 2010 sale of crack to an informant working
with the Drug Enforcement Agency. He was arrested by the GCPD in June 2010, but was not
tried in state court; he was subsequently placed under federal arrest while in state custody. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
1. Faison’s Indictment
On appeal, Faison renews three challenges to the indictment, none of which has merit.
First, Faison was not, as he contends, arrested pursuant to a fraudulent warrant. As the district
court noted, the federal authorities who arrested Faison at the Nassau County Correctional
Center had probable cause to take him into custody on federal charges, and did not need a
warrant to do so. United States v. Watson, 423 U.S. 411, 418 (1976) (holding that where there is
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probable cause to believe a suspect has committed a felony, that suspect may be arrested without
a warrant).
Second, the Double Jeopardy Clause did not bar Faison’s prosecution in federal court.
The Double Jeopardy Clause does not prohibit sequential prosecutions by different sovereigns,
so a prior state prosecution would not bar a later federal prosecution based on the same events.
United States v. Sewell, 252 F.3d 647, 651 (2d Cir. 2001). “An exception to the dual
sovereignty doctrine does exist for cases in which one of the sovereigns effectively controlled
the other, and the subsequent prosecution was merely a sham . . . .” United States v. Nelson, 277
F.3d 164, 212 (2d Cir. 2002) (internal quotation marks omitted). But this was not such a case; as
the district court found, far from being a case in which the state investigation or prosecution was
directed by federal authorities, neither the federal nor state authorities even knew of each other’s
activities until after Faison was arrested. Moreover, even if both charges had been brought by
the same sovereign, there would be no double jeopardy violation, because jeopardy never
attached in Faison’s state case. The Double Jeopardy Clause “does not come into play until a
proceeding begins before a trier” of fact. Serfass v. United States, 420 U.S. 377, 391 (1975).
Faison was never even indicted on the state charges.
Third, the government indicted Faison well within the time limits set by the Speedy Trial
Act. In general, only a federal arrest starts the thirty-day clock for prosecutors to file an
indictment. “[A] defendant does not become an ‘accused’ for Speedy Trial Act purposes until he
is under Federal arrest.” United States v. Lai Ming Tanu, 589 F.2d 82, 88 (2d Cir. 1978).
Although collusion between state and federal authorities can create an exception to this rule,
here, as in United States v. Jones, 129 F.3d 718, 723-24 (2d Cir. 1997) (per curiam), there was
no evidence of a “ruse” to circumvent the Speedy Trial Act.
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II. Trial Issues
Faison also challenges several of the district court’s trial rulings. We assume without
deciding that all of these challenges, many of which were raised in post-trial motions, were
properly preserved.
First, Faison argues that the district court improperly admitted testimony regarding his
conduct and statements leading up to the June 15, 2010 drug sale. We find no error, much less
an abuse of discretion, in the district court’s evidentiary rulings. See United States v. Mercado,
573 F.3d 138, 141 (2d Cir. 2009), and find none here. All of the challenged testimony was
admissible as evidence that “arose out of the same transaction or series of transactions as the
charged offense[,] . . . [was] inextricably intertwined with the evidence regarding the charged
offense[,] . . . [or was] . . . necessary to complete the story of the crime on trial.” United States v.
Kaiser, 609 F.3d 556, 570 (2d Cir. 2010) (citations and quotation marks omitted). In particular,
statements about the price of cocaine from meetings in the spring of 2010 attest to Faison’s
intent to buy and sell the drug, and conversations in early June demonstrate that Faison sought
and found a willing buyer for his drugs. Moreover, the district court allowed testimony relating
to heroin only after Faison himself opened the door to such evidence.
Second, Faison argues that several prosecution witnesses committed perjury. “Reversal
of a conviction based upon allegations of perjured testimony should be granted only with great
caution and in the most extraordinary circumstances.” United States v. Zichettello, 208 F.3d 72,
102 (2d Cir. 2000) (citations and quotation marks omitted). Faison has not established that any
witness willfully misled the jury.1 Id. Faison merely highlights various inconsistencies in the
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In particular, there is no reason to believe that chemist James DiSarno lied about examining the cocaine amount
charged in Count 2. After conducting a post-trial evidentiary hearing, the district court found that Special Agent
Scott Knox had merely misspoken in an email about his investigation. Faison does not identify any reason to
question the district court’s conclusion, nor does the record suggest one.
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testimony, which were or could have been brought to the jury’s attention on cross-examination.
Whether such inconsistencies indicated deliberate deception, or otherwise undermined the
witnesses’ credibility, was for the jury to decide.
Third, Faison challenges certain references to allegedly inadmissible evidence made by
the prosecutor during her opening and summation. But prosecutorial misconduct requires a new
trial only if “the conduct substantially prejudiced the appellants so as to deny them a fair trial.”
United States v. Russo, 74 F.3d 1383, 1396 (2d Cir. 1996). We see no prosecutorial misconduct,
but even if the prosecutor’s statements had been improper, they would not justify vacating the
conviction, as the district court cured any misunderstanding through its instructions to the jury.
Fourth, Faison attacks testimony from scientists at the Nassau Crime Lab as
untrustworthy given sub-standard testing practices at the lab. As the district court noted, any
deficiency in the lab’s testing processes could not have affected the case. The purchased drugs
were tested by a federal chemist who testified at trial that they were indeed cocaine, rather than
some other compound; the Nassau County technicians did not test the drugs, and testified about
their handling of the drugs only to prove chain of custody. To be sure, since the time of trial, a
special commission’s report has suggested lax evidence-handling procedures at the Nassau
Crime Lab. But the unavailability of this report did not prejudice Faison. As the district court
noted, the lab’s problems were well known at the time of Faison’s trial, and Faison cross-
examined state lab officials about the possibility that the evidence in his case had been confused
with evidence from another case. What’s more, because the report post-dated the trial, it was not
evidence that could have been discovered earlier and used to discredit the witnesses.
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Finally, Faison disputes the sufficiency of the evidence on each count. But the evidence
of Faison’s guilt, including testimony from several informants and video and audio evidence of
the charged transactions, was overwhelming.
We have considered all of Faison’s remaining arguments and find them to be without
merit. Accordingly we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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