United States v. Isaac Barlow , 307 F. App'x 678 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-26-2009
USA v. Isaac Barlow
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1370
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 08-1370, 08-1388
UNITED STATES OF AMERICA
v.
ISAAC BARLOW, a/k/a Chin,
Appellant in 08-1370.
UNITED STATES OF AMERICA
v.
ALFREDO PAYNE, a/k/a Fredo,
Appellant in 08-1388.
Appeal from the Order of the United States District Court
for the District of New Jersey
(D.C. Crim. Nos. 06-cr-00694-001 and 06-cr-00694-002)
District Judge: Honorable Freda Wolfson
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 8, 2009
____________
Before: FUENTES, FISHER, and ALDISERT, Circuit Judges
(Filed: January 26, 2009)
OPINION
FUENTES, Circuit Judge:
Isaac Barlow and Alfredo Payne (collectively “Defendants”), appeal their
respective convictions for various drug conspiracy charges. On appeal, Defendants argue
that they were denied a fair trial. Because we find the arguments asserted by Defendants
without merit, we will affirm.1
The facts of this case are lengthy and complicated. In short, Defendants were
members of a street gang in Trenton. Between November 2005 and March 2006, they
were arrested for dealing crack, cocaine, heroin, and marijuana on multiple occasions by
both state and federal authorities. These arrests resulted from testimony of confidential
informants who recorded drug transactions, as well as cooperation from another gang
member after Barlow tried to kill him. The police recovered an inordinate amount of
incriminating evidence incident to these arrests.
While in pre-trial detention, Barlow talked to another federal prisoner at length
about the charges against him. The prisoner, familiar with the role of a cooperating
witness, kept notes of the incriminating statements, and notified the FBI. In addition,
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
2
Barlow called his wife from jail several times, during which he admitted critical facts and
discussed efforts to silence government witnesses. Payne, also incarcerated, sent letters to
Barlow, discussing trial strategy and admitting several critical facts. He apparently was
unaware that mail to and from inmates is reviewed by prison authorities.
Barlow and Payne were each convicted of several drug and conspiracy offenses
after a jury trial in June 2007. Barlow was sentenced to life imprisonment, with
concurrent terms of 240 months’ imprisonment. Payne was sentenced to three concurrent
terms of 120 months’ imprisonment. Each appeals his judgment of conviction. On
appeal, Barlow argues that testimony about gang-related activity as evidence of the
conspiracy was in error and unduly prejudicial. He also argues that the phone
conversations with his wife from the jail were privileged. Payne argues that the District
Court erred by admitting his prior state drug arrests as evidence of overt acts of the
charged conspiracy. Like Barlow, Payne also argues that the testimony relating to gang-
related activity was irrelevant as evidence of overt acts of the conspiracy charge.2
Brandon Beck, who cooperated with the government after Barlow tried to kill him,
testified about Barlow’s drug-trafficking operation, as well as Barlow’s use of guns in
furtherance of the charged conspiracy. The District Court’s admission of Beck’s
2
Barlow failed to object to much of the evidence about which he now complains,
which we review for plain error. United States v. Gambino, 926 F.2d 1355, 1362-63 (3d
Cir. 1991). With regard to Defendants’ remaining evidentiary arguments, we review for
abuse of discretion. United States v. Lore, 430 F.3d 190, 207 (3d Cir. 2005).
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testimony was neither an abuse of discretion, nor plain error. Beck’s testimony was
unquestionably relevant. Moreover, while this evidence was prejudicial, it was not
unfairly prejudicial under Federal Rule of Evidence 403. See United States v. Bobb, 471
F.3d 491, 497 (3d Cir. 2006) (“Even if [evidence] is extremely prejudicial to the
defendant, the trial court would have no discretion to exclude it because it is proof of the
ultimate issue in the case.”) (internal quotation marks omitted). Similarly, the District
Court’s admission of Payne’s prior state drug convictions was not an abuse of discretion,
because this evidence was both relevant and probative of the charged conspiracy.
Defendants also argue that the District Court abused its discretion when it did not
grant their motion for a mistrial following a fleeting, general comment in the gang
expert’s testimony about the types of criminal activity in which Defendants’ street gang
engaged. We disagree. After Defendants objected to the testimony, several minutes after
the prosecutor asked and the witness answered the question at issue, the District Court
struck the comment from the record and, in an abundance of caution, issued a curative
jury instruction. This was more than enough to cure any prejudice, assuming the
comment was prejudicial in the first place. Regardless, the record demonstrates
overwhelming evidence of Defendants’ guilt, even without the expert’s comment. In
other words, his testimony regarding this conduct did not affect the outcome of this case.
Finally, Barlow objects to the admission of his phone conversations with his wife
from jail, during which he discussed attempts to silence government witnesses. Barlow
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claims these conversations are privileged. His contentions are completely without merit.
See, e.g., Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) (“[S]imply because prison
inmates retain certain constitutional rights does not mean that these rights are not subject
to restrictions and limitations. Lawful incarceration brings about the necessary withdrawal
or limitation of many privileges and rights, a retraction justified by the considerations
underlying our penal system.”) (internal quotation marks omitted).
For the foregoing reasons, we will affirm Defendants’ convictions.
5