United States v. Mark Miller ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Nos. 13-3477 and 13-4449
__________
UNITED STATES OF AMERICA
v.
MARK MILLER, a/k/a Sharkey
Mark Miller,
Appellant at No. 13-3477
__________
UNITED STATES OF AMERICA
v.
JAQUEL CREWS, a/k/a Quelly
Jaquel Crews,
Appellant at No. 13-4449
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-10-cr-00663-006 and 2-10-cr-00663-004)
District Judge: Honorable John R. Padova
Submitted Under Third Circuit LAR 34.1(a)
September 9, 2015
BEFORE: VANASKIE, NYGAARD, and RENDELL, Circuit Judges
(Filed: April 1, 2016)
__________
OPINION*
__________
NYGAARD, Circuit Judge.
Introduction
Appellants Mark Miller and Jaquel Crews were convicted by a federal jury for
their participation in a multimillion dollar drug organization that distributed hundreds of
kilograms of cocaine and crack cocaine in Philadelphia’s Frankfort neighborhood for
more than 20 years. They have appealed their convictions and sentences. We will
affirm.
Background
Because we write solely for the parties, we will provide only a brief outline of the
factual background. Miller and Crews were veterans of the illegal drug trade. Testimony
revealed that Miller had been selling cocaine at least since 1986, while Crews had been
supplying drug dealers since 1996. Together, the Appellants laundered millions of
dollars in drug proceeds through the purchase of real estate and other assets. Although
neither Appellant was gainfully employed, they lived extravagantly, attending events like
the Super Bowl and the MTV Video Music Award show. They also laundered drug
proceeds through the purchase of luxury items like mink coats, Breitling watches, and
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
more than $100,000 in diamond jewelry. Both Miller and Crews routinely delivered
money to a California-based cocaine supplier, flying between Philadelphia and Los
Angeles and Philadelphia and Las Vegas on numerous occasions. The supplier, in turn,
would provide Crews and other members of the conspiracy with cocaine.1
After a ten-day trial, a jury convicted Crews and Miller of one count of conspiracy
to distribute five kilograms or more of cocaine and fifty grams or more of crack cocaine
between 1986 and November of 2007, in violation of 21 U.S.C. § 846. Miller was also
convicted of seven counts of money laundering, in violation of 18 U.S.C. §
1956(a)(1)(A)(i) and 18 U.S.C. § 1956(a)(1)(B)(i). Crews was found guilty of ten counts
of money laundering in violation of the same aforementioned statutes. The Government
filed forfeiture motions, seeking personal forfeiture money judgments against both
Appellants in the amount of $5,000,000, pursuant to 21 U.S.C. § 853, which the District
Court granted. At sentencing, the District Court imposed a 212-month prison sentence on
Miller while Crews received a sentence of 240 months’ imprisonment.
We granted Miller’s motion to consolidate his appeal with Crews.’ Together, and
in some instances individually, they raise numerous challenges to their convictions,
sentences, and the District Court’s forfeiture order. We will discuss each issue in turn,
beginning with the evidentiary claims.
Exclusion of the Lofton Recordings
At trial, Crews and Miller attempted to introduce excerpts of telephone calls a
Government witness, Craig Lofton, made from prison to various individuals on the
1
App. 780-81a.
3
outside. One of several witnesses called by the Government, Lofton testified to his
knowledge and participation in Miller and Crews’ drug trafficking schemes. The
Appellants argued to the District Court that these excerpts would impeach Lofton by
revealing incentives he had to lie on behalf of the Government. The District Court
permitted Miller to use eight of the requested twelve excerpts. On appeal, Miller and
Crews argue that the District Court abused its discretion by excluding the four remaining
excerpted conversations from evidence.2
At the outset, we reject the Appellants’ overarching contention that the District
Court failed to articulate a legal basis for excluding these four excerpts from evidence.
The record clearly reveals the foundation for the District Court’s ruling: Federal Rule of
Evidence 608.3 Under this rule, “extrinsic evidence is not admissible to prove specific
instances of a witness’s conduct in order to attack or support the witness’s character for
truthfulness.”4 The District Court ruled these four excerpts to be extrinsic evidence and it
did not abuse its discretion in doing so.
For example, the excerpt taken from a telephone conversation between Lofton and
an unidentified woman during which Lofton discussed his belief that he and Crews were
2
We review the District Court’s ruling as to the admissibility of evidence and its
limitation on cross-examination for an abuse of discretion. United States v. Knight, 700
F.3d 59, 62 (3d Cir. 2012); United States v. Mussare, 405 F.3d 161, 169 (3d Cir. 2005).
3
The District Court asked counsel for Appellant Crews: “So that these conversations are
conversations that were made outside the courtroom. They were made – they involve Mr.
Lofton and other people, and the defendant Crews wants to use these conversations for
impeachment – for credibility purposes under Rule 608(b), is that a fair statement?”
Counsel for Crews responded “Fair enough.” App. at 1445a.
4
Fed. R. Evid. 608(b).
4
coming “home in two years,”5 is extrinsic because Lofton testified three years after
making that statement. By that time, he could no longer have had the expectation he was
going to be released in two years since three had already passed. Crews now argues that
this excerpt should have been admitted nonetheless because it was contrary to Lofton’s
testimony that he had not been given any promises or sentencing expectations by the
Government. This argument misses the important point that, at trial, Lofton was
questioned about his then-current sentencing expectations; not the expectations he had in
2009 when this telephone conversation was recorded. Miller attacks this exclusion from
a somewhat different angle, arguing it was admissible to prove Lofton expected to serve
two years, not twenty-five. But, this excerpt is irrelevant to Miller’s argument. As we
just noted, by the time he testified at trial, Lofton’s purported expectation of a two year
sentence was already outmoded by a year, rendering his prior conversation about that
expectation irrelevant. Therefore, the District Court did not abuse its broad discretion in
evidentiary matters by ruling this excerpt out of bounds.
Likewise, the District Court did not abuse its discretion by excluding excerpts
from a telephone conversation in which Lofton speaks of being suicidal. Here, Lofton
was talking with another Government witness, Michael Durrant, in March of 2009.
Lofton told Durrant that a ten-year sentence was “a long time,” and that “[a]nything
underneath it, I’m extremely underneath that over it. I’m upset. I’m tore down. Suicide
5
App. at 1666a.
5
material.”6 The District Court found this particular excerpt to be extrinsic evidence of
Lofton’s motivation for testifying, and we agree. Lofton had already testified that he did
not have an expectation of a reduced sentence in exchange for his cooperation with the
Government.7 On appeal, Miller maintains that this excerpt was evidence of Lofton’s
bias and that the District Court erred by preventing him from challenging Lofton. We see
nothing in the record that supports his argument. Crews and Miller were unencumbered
in their cross-examination of Lofton and questioned him in detail about his plea
agreement and the possible sentence Lofton may have received had he not pleaded guilty.
Further, Crews and Miller could certainly have recalled Lofton to question him about the
other admitted excerpts, but elected not to do so. Therefore, we see no abuse of
discretion in the exclusion of this excerpt from evidence.
Lastly, Miller and Crews argue that two excerpts from a conversation Lofton had
with an agent from the Drug Enforcement Agency should have been admitted into
evidence. These excerpts are part of a conversation between Lofton and a DEA agent
concerning plans to take Lofton to meet with Government lawyers prior to his grand jury
testimony. In the first excerpt, after clarifying where Lofton was being held, the agent
inquired whether Lofton would like “a nice sit down dinner” when they picked him up.8
6
App. at 1668a.
7
App. at 1455a.
8
App. at 1668a.
6
Lofton thought that would be “lovely.”9 In the second excerpt, Lofton tells the agent
“Yeah man, its three people that pretty much gonna walk through this thing. You know
what I mean. You know them all. I can’t call em out, but you know who they are. One
of ‘em already walked through the water look the devil in the face. An he’s up on the
west side. Everybody can’t get a break but I make sure I protected them.”10 At trial,
counsel for Miller and Crews tried to admit these excerpted conversations as evidence of
Lofton’s inconsistent statements but acknowledged that Lofton had never been
questioned about these statements.11 The District Court sustained the Government’s
objection to the admission of this excerpt.12
Now on appeal, both Appellants maintain that the first conversation should have
been admitted as evidence of bias. Miller believes that this exclusion prevented him
“from showing . . . that Lofton received special treatment from the investigating
agents.”13 This basis for admission, however, was never argued to the District Court and,
as such, is waived.14 And, even were it not, the record does not support this claim
because Lofton was never questioned by the defense about the invitation to dinner, nor
did the defense call the DEA Agent to be questioned about his offer. Likewise, it was not
9
Id.10
App. at 1667a.
11
App. at 1454a.
12
App. at 1454a, 1466a.
13
Miller Br. at 26.
14
United States v. Burnett, 773 F.3d 122, 130 (3d Cir. 2014).
7
an abuse of discretion for the District Court to exclude the second excerpt. Nothing in
that exchange was inconsistent with Lofton’s prior testimony and the excerpt makes no
mention of coordination with other witnesses or any other type of conversation.
In sum, it was not an abuse of discretion for the District Court to exclude the
forgoing excerpts from Lofton’s recorded telephone conversations.
Crews’ Mandatory Minimum Sentence
Next, Crews individually challenges his sentence, specifically the imposition of a
statutorily mandated minimum term. Prior to sentencing, the Government filed for a
downward variance from the advisory guidelines range on account of assistance Crews
provided in another prosecution. The Government declined to file, however, a motion
permitting a sentence below the statutory mandatory minimum of 240 months. Crews
offered several objections to his proposed sentence, including an objection based on a
perceived Alleyne error as well as an objection to an enhancement for his leadership role
in the offense. The District Court granted Crews a downward variance, rejected his other
challenges, and imposed the mandatory minimum sentence permitted by the statute—240
months. On appeal, Crews again attacks the propriety of his sentence. We start with his
claim of Alleyne error.
After the verdict was handed down, but before Crews was sentenced, the Supreme
Court announced its decision in Alleyne v. United States.15 In Alleyne, the Supreme
133 S.Ct. 2151 (2013). The jury verdict was announced on March 14, 2012. The
15
Supreme Court handed down its opinion in the Alleyne case on June 17, 2013, and Crews
was sentenced on November 5, 2013.
8
Court held that any fact that increases the mandatory minimum sentence is an element
which must be determined by the jury.16 Therefore, where a factual determination such
as a drug quantity “trigger[s] a statutory mandatory minimum sentence, [it] must . . . be
submitted to a jury.”17 Crews was charged, at Count Five of the indictment, with
responsibility for distributing “five kilograms or more, that is hundreds of kilograms, of
mixture and substance containing a detectable amount of cocaine, and 50 grams or more,
that is multiple kilograms, of a mixture and substance containing a detectable amount of
cocaine base (“crack”).”18 Concerning Count Five, the District Court instructed the jury
that, to find Crews guilty, it must “be satisfied that the Government proved the weight or
quantity beyond a reasonable doubt.”19 Further, the District Court noted that the jury had
received “evidence during the course of this trial as to how much—what the weight was
with respect to what was recovered and what was involved.”20 The jury was also
specifically told that it must “determine the weight of the cocaine and cocaine base crack
which was involved in the conspiracy,” and that “in making this decision, you should
consider all the controlled substances that the members of the conspiracy actually
distributed.”21 Finally, the District Court told the jury that they must “unanimously find
16
Id. at 2155, 2163.
17
United States v. Smith, 751 F.3d 107, 117 (3d Cir. 2014) (interpreting Alleyne).
18
App. at 111a. These were alleged violations of 21 U.S.C. § 841(a)(1) and (b)(1)(A).
19
App. at 1504a.
20
App. at 1505a.
21
App. at 1505a.
9
beyond a reasonable doubt that the weight or quantity of cocaine that was involved in the
conspiracy was five kilograms or more.”22 In finding Crews guilty of conspiracy, the
jury unanimously determined that the conspiracy involved five or more kilograms of
cocaine and 280 grams or more of cocaine base.23 But, as Crews submits, and the
Government concedes, the jury did not determine an exact amount of cocaine and cocaine
base directly attributable to Crews himself. This lack of an individualized determination,
the parties maintain, was error in light of Alleyne. We agree. However, such a lapse was
harmless.
Alleyne errors can certainly be reviewed for harmlessness. Recently, in United
States v. Lewis,24 we applied a harmless error analysis to an Alleyne error, noting that,
while the Supreme Court had not discussed such a review in Alleyne, the Court has “. . .
adopted the general rule that a constitutional error does not automatically require reversal
App. at 1505a. Similar instructions were given to the jury on the amount of cocaine
22
base they needed to find (280 grams). See App. at 1506a.
23
App. at 1652a. We note that after Crews and Miller were indicted, the Fair Sentencing
Act of 2010 (FSA) was enacted. It increased the amount of crack cocaine that triggers
the ten-year mandatory minimum sentence from 50 grams to 280 grams. On June 21,
2012, the United States Supreme Court held that the more lenient penalties of the FSA
apply to those offenders whose crimes occurred before the effective date of the Act
(August 3, 2010), but who were sentenced after that date. See Dorsey v. United States,
132 S.Ct. 2321, 2335 (2012). Here, the offenses being prosecuted occurred well before
August of 2010 and the Appellees were sentenced well after that date. Therefore, while
the indictment charged them only with conspiracy to distribute 50 grams of crack
cocaine, the District Court correctly instructed the jury that it had to find the conspiracy
involved 280 grams of crack cocaine.
24
802 F.3d 449 (3d Cir. 2015).
10
of a conviction,” and that the Supreme Court has “applied harmless error analysis to a
wide range of errors and has recognized that most constitutional errors can be
harmless.”25 Lewis provides an important template for our analysis in this case. As a
prerequisite, Lewis instructs that harmless error review may only be undertaken “when
the defendant has made a timely objection to an error.”26 That was done here. Crews’
objections to his sentence contained specific reference and argument to Alleyne, sufficient
to satisfy this requirement.27 Lewis additionally reminds us that the Government has a
heavy burden “to demonstrate that reversal is not warranted.”28 And lastly, Lewis notes
the important distinction between trial errors and sentencing errors.29
Both types of errors are subject to harmless-error review, though our standard of
review differs markedly for each one. “Harmless-error review for a sentencing error
turns on whether the error did or did not ‘contribute to the [sentence] obtained.’”30 By
contrast, harmless-error review for a trial error “turns on whether it is ‘clear beyond a
25
802 F.3d at 454 (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).
26
Id. (quoting United States v. Adams, 252 F.3d 276, 281 (3d Cir. 2001)).
27
See, e.g., App. at 1807a, 1874a.
Lewis, 802 F.3d at 454 (quoting United States v. Waller, 654 F.3d 430, 438 (3d Cir.
28
2011)).
29
Id. 455 (citing United States v. Brennan, 326 F.3d 176, 180 (3d Cir. 2003)).
30
Id. at 456.
11
reasonable doubt that a rational jury would have found the defendant guilty absent the
error.’”31
In Lewis, we categorized the Alleyne error as “a pure sentencing error.”32 There,
Lewis’s indictment charged him with the offense of using or carrying a firearm during
and in relation to a crime of violence. And at trial, the jury was properly instructed for
that offense and found him guilty. Yet the District Court sentenced him for brandishing a
firearm during a crime of violence, which is a “‘separate, aggravated offense that must be
found by a jury.’”33 We held that this was a “pure sentencing error,” as the jury was
properly instructed at trial as to each element of the crime for which Lewis was indicted
and found him guilty of that crime, but then the District Court sentenced him for a crime
for which he was neither indicted nor tried. As a result, applying harmless-error review,
we considered whether the Alleyne error contributed to Lewis’s sentence, concluded that
it did, and vacated the sentence and remanded.
Importantly, we also recognized in Lewis that “not . . . all Alleyne or Apprendi
errors are pure sentencing errors.”34 For example, in United States v. Vasquez,35 we were
confronted with “both a trial error and a resulting sentencing error.”36 There, Vasquez
31
Id. (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).
32
Id. at 455.
33
Id. at 454 (quoting Alleyne v. United States, 133 S. Ct. 2151, 2162 (2013)).
34
Id. at 455.
35
271 F.3d 93 (3d Cir. 2001).
36
Id.12
was indicted and tried for conspiring to possess and distribute more than five kilograms
of cocaine. But the District Court never properly instructed the jury at trial on drug
quantity, which was an element of the offense for which he was indicted and tried. As a
result, Vasquez’s prescribed statutory maximum was 240 months, but the District Court,
in violation of Apprendi, sentenced him to 288 months after finding at sentencing that he
had possessed a certain quantity of drugs. So, even though the District Court erred at
sentencing, that error was caused by a trial error—i.e., its failure to submit to the jury an
element of the offense for which he was indicted and tried. And because this trial error
was “comparable to the errors in both Neder [v. United States, 527 U.S. 1 (1999)], and
Johnson [v. United States, 520 U.S. 461 (1997)],” we considered whether the evidence at
trial established beyond a reasonable doubt that Vasquez had possessed the quantity of
drugs found by the District Court and held that it did.37 In other words, we were
“confident that Vazquez’s sentence would have been the same had the jury made the drug
quantity finding.”38
The error in this case is akin to the trial error in Vasquez rather than the pure
sentencing error in Lewis. Like Vasquez’s indictment, Crews’ indictment charged him
with conspiring to possess and distribute five or more kilograms of cocaine. Yet the
District Court never properly instructed the jury at trial that they had to determine the
quantity of drugs specifically attributable to Crews and instead instructed it to determine
the quantity of drugs attributable to the conspiracy as a whole. Then, at sentencing, the
37
Id. at 102.
38
Id. at 104.
13
District Court, in violation of Alleyne, sentenced Crews to 240 months, which was the
mandatory minimum for an offense involving five or more kilograms of cocaine.
Accordingly, because the District Court’s Alleyne error was caused by a trial error, we
can look to the trial record and conclude that the error was harmless because of the
overwhelming evidence in support of the drug quantity.
For example, Crews supplied Vincent Graham with 4.5 to 9 ounce quantities of
cocaine every five to seven days throughout 2003.39 And, evidence also established that
Crews supplied Graham with 4.5 to 13 ounces of cocaine every five to seven days
between May, 2005 and May, 2006.40 The trial record also reveals that Michael Durant
sold Crews 20 to 25 kilograms of cocaine between 2004 and 2005.41 Before that,
Emmanuel Moore supplied Crews with approximately 25 kilograms of cocaine between
the fall of 2002 and early 2003.42 Evidence also established that Moore traveled to
California two times per week between May 2003 and October 2004 and purchased “no
less than 5” kilograms of cocaine per week for Crews.43 Indeed, Crews admits in his
brief that “[i]n 2004, Moore purchased at least 20 kilos of cocaine on each trip to
California; Crews would receive between five and eight of the kilos.”44 And, the record
39
App. at 909a-15a.
40
App. at 916a-17a.
41
App. at 634a-38a.
42
App. at 983a-84a, 988a-93a.
43
App. at 998a-1003a.
44
Crews Br. at 5 (citing App. at 1011a).
14
also establishes Crews received 20 kilograms of cocaine from a source Lofton had in
North Carolina.45 Given all of this, including Crews’ admission on appeal, we have little
difficulty concluding that the trial record contained overwhelming evidence of drug
quantity attributable to Crews. Therefore, we also have little difficulty concluding the
District Court’s Alleyne error was harmless.
Crews next argues that the post-conviction assistance he gave the Government in
other investigations required the Government to file a motion pursuant to 18 U.S.C. §
3553(e).46 This argument is meritless as well.
At sentencing, the Government filed a motion for a downward variance from the
applicable Guideline range pursuant to U.S.S.G. § 5K1.1, based on Crews’ post-
conviction cooperation, but elected not to file a motion pursuant to 18 U.S.C. § 3553(e),
which would have permitted the District Court to sentence Crews below the mandatory
minimum sentence of 20 years. Crews first attempts to connect this refusal to file a §
3553(e) motion to the Government’s filing of a motion under §5K1.1.47 He tells us that,
because these provisions operate under the “same principles,” the District Court
mistakenly concluded that it lacked the authority to depart below the mandatory
minimum sentence, the absence of a §3553(e) motion notwithstanding. Crews is
45
App. at 727a.
46
18 U.S.C. § 3553(e) provides: “Upon motion of the Government, the court shall have
the authority to impose a sentence below a level established by statute as minimum
sentence so as to reflect a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.”
47
Crews Br. at 27.
15
incorrect. The Supreme Court has rejected the notion that § 5K1.1 and § 3553(e)
somehow connect to form a unitary downward departure system whereby a § 5K1.1
motion authorizes a district court to sentence below the mandatory minimum under §
3553(e).48
Crews could possibly have received a sentence below the statutory minimum if the
Government filed a motion pursuant to 18 U.S.C. § 3553(e).49 It did not do so here and
stated its reasons to the District Court in detail at the sentencing hearing.50 This makes
the Government’s decision unreviewable unless the parties agreed that the Government
would file such a motion and then did not do so, or that the Government’s reasons for not
filing the motion were based on an unconstitutional motive, like a defendant’s race or
religion.51 Crews had no agreement with the Government which would have required the
filing of such a motion. So, Crews is left to argue that the reasons provided by the
48
Melendez v. United States, 518 U.S. 120 (1996).
49
See United States v. Kellum, 356 F.3d 285, 289 (3d Cir. 2004) (holding that a district
court only has authority to depart below mandatory minimum sentence pursuant to 18
U.S.C. § 3553(e), (f)); Melendez v. United States, 518 U.S. 120, 130 (1996) (a district
court has no authority to impose a sentence below a statutory mandatory minimum when
the government has not made a motion pursuant to § 3553(e)). There are two other
avenues whereby a district court might impose a sentence less than the statutory
mandatory minimum—Federal Rule of Criminal Procedure 35(b) and the safety value set
out in 18 U.S.C. § 3553(f)(7)—which are inapplicable here.
50
App. at 1876a-1882a.
51
See Wade v. United States, 504 U.S. 181, 185-86 (1992).
16
Government for not filing the § 3553(e) motion are “not rationally related to any
legitimate Government end.”52 He bears the burden on this point and has not met it.53
The Government set out numerous reasons in support of its decision not to file a §
3553(e) motion: the extent and breadth of Crews’ drug trafficking and money laundering
activities, the decades-long duration of the conspiracy, Crews’ leadership role, the
massive amounts of drugs put onto the streets of Philadelphia through Crews’ actions, the
large number of individuals involved in Crews’ activities, Crews’ continuation of drug
trafficking activities despite his conviction and supervised release for the same activities
in 1995, the timing of his cooperation with the Government—which he gave only after
being convicted—his post-conviction offer of information on the criminal activities of
witnesses who testified against him, Crews’ failure to accept responsibility for his crimes,
the sentences imposed on his co-defendants and the level of departure granted to
witnesses who cooperated, and the level of intimidation those witnesses faced as a result
of their trial testimony against Crews.54 The District Court found no arbitrariness among
these reasons nor do we. Crews maintains that several of the Government’s reasons were
indeed arbitrary, yet he offers us very few specifics or support for his contentions. Mere
claims that Crews provided substantial assistance and generalized allegations of the
Government’s improper motive do not “entitle a defendant to a remedy . . ..”55
52
Id.
53
Id. at 186.
54
App. at 1879a-1883a.
55
Wade, 504 U.S. at 186.
17
He argues, for example, that some defendants “more deeply involved in the same
conspiracy as Crews testified at trial and received lesser sentences.”56 But, Crews’ scant
paragraph of conclusory argument on this point lacks supporting facts from which a
viable claim of arbitrariness can spring. Additionally, Crews suggests that the
Government’s decision not to file the § 3553(e) motion amounted to an impermissible
attempt by the Government to control the exercise of judicial authority.57 This is a
separation of powers argument. He characterizes the Government’s concern with
avoiding sentencing disparities as representative of a “[d]isagreement with and distrust of
judicial authority.”58 However, Crews ignores the fact that a statute—§ 3553(e)—gives
the Government authority to make the decision whether to file the motion and that this
statutory mandate is not a usurpation of judicial power. We have noted that, “[w]hen
Congress establishes a minimum sentence for a particular crime, district courts are
required to sentence defendants guilty of that crime to a term of imprisonment no less
than the Congressionally prescribed minimum, unless an explicit exception to the
minimum sentence applies.”59 Indeed, the Supreme Court has “consistently recognized
56
Crews Br. at 30.
57
Id.
58
Id.
59
United States v. Winebarger, 664 F.3d 388, 392 (3d Cir. 2011).
18
that Congress has plenary authority over the designation of appropriate punishment for
federal crimes.”60
Lastly, Crews charges that the Government arbitrarily took the timing of his
cooperation into account when deciding not to file the § 3553(e) motion. He argues,
more specifically, that he was penalized for exercising his right to trial. That did not
happen here. At sentencing the Government acknowledged distinctions between Crews
and his co-defendants, recognizing that the co-defendants who pleaded guilty and offered
meaningful assistance to the Government received lesser sentences.61 Further, the
Government acknowledged that Crews had the right to proceed to trial and that the
Government was not penalizing him for exercising that right.62 There is no evidence,
however, of unconstitutional conduct by the Government. Instead, the Government made
the decision not to file the § 3553(e) motion after weighing the quantity and quality of
Crews’ assistance; assistance it did not find substantial enough to warrant the filing of the
motion. For example, while Crews did provide information on unsolved murders
allegedly committed by his co-conspirators, the information was decades old and, as the
Government noted, it does not typically prosecute murder cases.63 Crews also gave the
Government information concerning a cell phone that another co-conspirator used,
United States v. Frank, 864 F.2d 992, 1010 (3d Cir. 1988) (citing United States v.
60
Grayson, 438 U.S. 41 (1978).
61
See App. at 1879a.
62
Id.63
Id.19
information that the Government acknowledged as useful during the penalty phase of that
co-conspirator’s trial.64 However, since Crews was by then a convicted felon, thereby
diminishing the reliability of his testimony in the eyes of a jury, the Government elected
not to call him to testify in that case. The foregoing reasons do not reflect a motivation to
punish Crews for exercising his right to a trial. Instead, they reflect the Government’s
rational consideration of the value of Crews’ assistance as compared to that offered by
other conspirators. We agree, therefore, with the District Court that the Government did
not act arbitrarily in declining to file a § 3553(e) motion.
Crews next argues that § 841(b)(1)(A)’s mandatory minimum sentence “conflicts”
with the parsimony provision of 18 U.S.C. § 3553(a), which provides that a district court
“shall impose a sentence sufficient, but not greater than necessary” to accomplish the
goals of sentencing.65 Specifically, Crews maintains that the District Court was unable to
carry out its judicial function, as set forth in the mandates of 18 U.S.C. § 3553(a),
because it had to comply with the mandatory 20 year sentence. We have previously
rejected such challenges to mandatory minimum sentences.66 These decisions are
64
Id.65
18 U.S.C. § 3553(a).
66
See United States v. Grober, 624 F.3d 592 (3d Cir. 2010); United States v. Walker, 473
F.3d 71, 85 (3d Cir. 2007) (holding that there is no conflict between § 3553 and a
mandatory minimum sentence provision because “ § 3553(a) must be read in conjunction
with § 3553(e), which prohibits the court from sentencing a defendant below the statutory
mandatory minimum sentence unless the Government files a motion permitting such
departure”); United States v. MacEwan, 445 F.3d 237, 251–52 (3d Cir. 2006) (“Congress
has the power to define criminal punishments without giving the courts any sentencing
discretion.” (quoting Chapman v. United States, 500 U.S. 453, 467 (1991)).
20
binding precedent, and consequently resolve Crews’ argument in favor of the
Government. Therefore, we need not discuss this particular issue in any greater detail.
We likewise need not discuss Crews’ next issue in any great depth. Crews
challenges the enhancement of his sentence due to his prior criminal conviction. Title 21
U.S.C. § 841(b)(1)(A) contains a proviso whereby a mandatory minimum sentence can
be doubled because of a prior criminal conviction. Crews argues that the existence of his
prior conviction was an element of his offense and, as such, had to be alleged in the
indictment and proven to the jury beyond a reasonable doubt. This argument has been
rejected.67 The District Court was thus fully empowered to make the necessary findings
to double Crews’ mandatory minimum sentence based on a prior conviction.
Lastly on the question of his sentence, Crews attacks the information filed by the
Government pursuant to 21 U.S.C. § 851, which doubled Crews’ mandatory minimum
sentence. Specifically, he claims the notice he received of this enhancement was
deficient. We disagree. Section 851 provides:
No person who stands convicted of an offense under this part
shall be sentenced to increased punishment by reason of one
or more prior convictions, unless before trial, or before entry
of a plea of guilty, the United States attorney files an
information with the court (and serves a copy of such
information on the person or counsel for the person) stating in
writing the previous convictions to be relied upon....68
67
Almendarez–Torres v. United States, 523 U.S. 224, 246–47 (1998) (prior conviction
that increases maximum penalty need not be treated as element of offense and proven to a
jury); United States v. Blair, 734 F.3d 218, 227 (3d Cir. 2013) (“Alleyne do[es] nothing to
restrict the established exception under Almendarez–Torres that allows judges to consider
prior convictions.”).
68
21 U.S.C. § 851(a)(1).
21
We review the sufficiency of the Government’s notice de novo and agree with the
District Court that Crews was provided with sufficient notice of the Government’s
intention to rely on his prior felony conviction to enhance his sentence.69
The Government’s information stated the following:
On or about February 21, 1996, defendant Jaquel Crews was
sentenced in the United States District Court for the Eastern
District of Pennsylvania on his guilty plea to the felony drug
offenses of conspiracy to distribute cocaine and distribution
of cocaine base, at Criminal Number 95-0391, to a term of 56
months, and 4 year supervised release. Jaquel Crews is
charged in the Second Superseding Indictment, Criminal No.
10-663-2, with, in Count Five, conspiracy to possess with
intent to distribute 5 kilograms or more of cocaine, in
violation of 21 U.S.C. § 846. Jaquel Crews’ prior felony drug
conviction serves as the basis for increased punishment
pursuant to 21 U.S.C. § 841(B)(1)(b).70
Crews asserts that this notice was faulty because it omits the date his prior trafficking
conviction became final and did not specifically mention that this conviction became
final before the offense dates in the instant prosecution. We have never required such
specificity, however. Instead, all that is required is that the § 851 notice provide a
defendant with reasonable notice of the Government’s intention to rely on a previous
conviction and an opportunity to be heard on the issue.71 The notice in this case satisfies
these basic requirements.
69
United States v. Weaver, 267 F.3d 231, 246 (3d Cir. 2001).
70
App. at 1671a-72a.
71
See Weaver, 267 F.3d at 247.
22
In sum, we see no error in the application of the mandatory minimum sentence to
Appellant Crews.
Enhancement for Leadership Role
Crews complains that the District Court incorrectly determined that he was a
leader of the drug conspiracy and, therefore, erroneously enhanced his sentence by four
levels.72 We review a district court’s ruling on a sentencing enhancement that requires a
predominately factual inquiry for clear error.73 The leadership enhancement is such an
inquiry and it is appropriately activated if the evidence shows that Crews exercised some
degree of control over at least one other person involved in the offense.74 We find no
clear error in the District Court’s determination that Crews bore a leadership or
organizational role in the offense. The evidence established, for example, that Crews
supervised Donielle Fletcher in the production, packaging, storage, and delivery of
cocaine from her residence.75 Further, evidence also established that Crews directed
Craig Lofton and others to purchase large amounts of cocaine on buying trips to
California. Crews paid for these trips from his own funds and answered to no one for
these excursions.76 As the District Court aptly summarized, “[t]hose deals were his
72
See U.S.S.G. § 3B1.1(a).
73
United States v. Richards, 674 F.3d 215, 221-22 (3d Cir. 2012).
United States v. Helbling, 209 F.3d 226, 243-44 (3d Cir. 2010); see also U.S.S.G. §
74
3B1.1 app. note 2.
75
App. at 262a-269a.
76
See App. 1859a-69a.
23
deals.”77 Accordingly, the District Court did not clearly err in determining that the four-
level leadership enhancement applied.
Issues Related to the Forfeiture Determination
Both Miller and Crews challenge the forfeiture judgments entered against them,
raising different points of attack.78 The Government sought forfeiture pursuant to 21
U.S.C. §853, which limits forfeiture to “any property constituting, or derived from any
proceeds the person obtained, directly or indirectly, as a result of such violation; or any of
the person’s property used, or intended to be used, in any manner or part, to commit, or to
facilitate the commission of, such violations.”79 The standard of proof is preponderance
of the evidence.80 The District Court granted the forfeiture motion in the amount of $5
million, and in doing so, indicated that its decision was supported by both a proceeds
theory and a facilitating property theory of forfeiture.81
We will start with a challenge to the forfeiture raised by Appellant Miller. Miller
asserts that the District Court, as opposed to the jury, unconstitutionally made certain
factual findings in ordering the forfeiture. Our decision in United States v. Leahy, and the
77
App. at 1867a.
As these issues present questions of law, we exercise plenary review. United States v.
78
Vampire Nation, 451 F.3d 189, 198 (3d Cir. 2006) (citing United States v. Ledesma–
Cuesta, 347 F.3d 527, 530 (3d Cir. 2003)).
79
21 U.S.C. § 853(a)(1), (2).
80
United States v. Leahy, 438 F.3d 328, 333 (3d Cir. 2006).
81
App. at 11.
24
Supreme Court’s decision in Libretti v. United States preclude Miller’s argument.82
Those decisions clearly hold that the right to a jury is not implicated in criminal forfeiture
proceedings.83 In light of this controlling precedent, Miller’s claim is untenable.84
For his part, Crews contends that the District Court lacked statutory authority to
impose a $5 million money judgment against him personally under 21 U.S.C. §
853(a)(1). This argument likewise fails when confronted with our prior precedent. In
United States v. Vampire Nation, we specifically held that “in personam forfeiture
judgments are appropriate under 21 U.S.C. § 853, even where the amount of the
judgment exceeds the defendant’s available assets at the time of conviction.”85 Crews
makes several attempts to distinguish our decision in Vampire Nation from his case, all of
which are unavailing. For example, he believes Vampire Nation is inapplicable because
the forfeiture there was rooted in 18 U.S.C. § 981(a)(1)(C), a civil forfeiture provision
that was made enforceable in criminal prosecutions by 28 U.S.C. § 2461(c), whereas his
82
438 F.3d 328, 331 (3d Cir. 2006)(en banc); 516 U.S. 29, 48-49 (1995).
83
See, e.g., Libretti, 516 U.S. at 49.
84
The Appellants call our attention to the Supreme Court’s decision in Southern Union
Co. v. United States, 132 S.Ct. 2344 (2014), arguing that opinion casts serious doubt on
the continued validity of Libretti. In Southern Union, the Supreme Court applied
Apprendi to the imposition of criminal fines, thereby requiring a jury determination
before fines can be imposed. The Appellants urge us to view Libretti as effectively
overruled, and ask us to now require a jury determination in the context of criminal
forfeitures, just as Southern Union required it for criminal fines. This, we cannot do.
Libretti has not been overruled, and we are obligated to follow its clear holding that “the
right to a jury verdict on forfeitability does not fall within the Sixth Amendment’s
constitutional protection.” 516 U.S. at 49.
85
451 F.3d 189, 203 (3d Cir. 2006).
25
forfeiture was imposed directly under § 853. This argument is meritless. Our decision in
Vampire Nation specifically addresses § 853 forfeitures.86
Next, Crews pivots and argues that Vampire Nation does not apply because that
case concerned § 853’s procedural provisions, while his forfeiture was premised on that
section’s substantive authority. Yet, Crews offers us no supporting authority to validate
this distinction, nor does he attempt to explain the importance of such a difference. The
Government, however, did find case law rejecting Crews’ argument. The Court of
Appeals for the Second Circuit looked at this issue and found “no meaningful difference”
between an in personam forfeiture judgment arising directly from § 853, and an in
personam forfeiture that might arise from § 853 by way of another statute, 28 U.S.C. §
2461(c), for example.87 We agree. Lastly, Crews tries to get out from our holding in
Vampire Nation by arguing that that opinion never addressed the point he advances here:
in personam money judgments are not available under § 853. This is not the case. We
did address this argument in Vampire Nation, specifically holding that “an in personam
forfeiture judgment may be entered for the full amount of the criminal proceeds.”88 This
holding precludes Crews’ argument.
86
Id. at 203.
87
United States v. Kalish, 626 F.3d 165, 169 (2d Cir. 2010).
88
451 F.3d at 202-03.
26
To conclude, the Appellants’ claims that in personam forfeiture money judgments
are unavailable in the context of their drug trafficking sentences are erroneous. We find
no error in the District Court’s imposition of such a judgment.
As a parallel argument, Crews contends the District Court lacked the authority to
enter an in personam money judgment against him based on a facilitating property theory.
Here, he finds fault with the indictment. Pursuant to Federal Rule of Criminal Procedure
Rule 32, “[a] court must not enter a judgment of forfeiture in a criminal proceeding
unless the indictment or information contains notice to the defendant that the Government
will seek the forfeiture of property as part of any sentence in accordance with the
applicable statute.”89 Crews argues that the forfeiture judgment was invalid because
while the phrase “the sum of $5,000,000” was indicated in the proceeds section of the
indictment, it was not repeated in the forfeiture property section.90 This reading of the
rule is too restrictive. Rule 32 and due process only require that notice of the possible
forfeiture be given to a defendant and that a defendant have an opportunity to be heard.91
An indictment is sufficiently specific as long as it “puts the defendant on notice that the
government seeks forfeiture and identifies the assets with sufficient specificity to permit
the defendant to marshal evidence in their defense.”92 Here, the indictment gave Crews
89
Fed. R. Crim. P. 32.2(a).
90
Appellant Miller joins in this argument.
91
See United States v. James Daniel Good Real Property, 510 U.S. 43, 48–50 (1993).
92
See, e.g., United States v. Loe, 248 F.3d 449, 464 (5th Cir. 2001).
27
ample notice that the Government intended to seek a $5 million forfeiture money
judgment and the fact that this request was not repeated in separate sections of the
indictment is not an error.
Crews also argues that the District Court erred by imposing joint and several
liability based on the forfeited property. Here, we share the Government’s belief that this
argument is largely academic, given that joint and several liability was also imposed by
the District Court based on the proceeds of the conspiracy, an action which our prior
precedent clearly endorses.93 Crews claims that the language of 21 U.S.C. § 853(a)(2)
limits the scope of a forfeiture under the facilitating property theory to that property
belonging only to him. We do not agree. Section 853(a)(2) permits the forfeiture of “any
of the person’s property used, or intended to be used, in any manner or part, to commit,
or to facilitate the commission of” the crime. Crews keys-in on the words “any person”
and “the person’s” as language, he says, that limits the extent of the forfeiture to property
that belongs solely to him. Crews neglects to mention, however, that the proceeds
section of § 853 contains the same language and we have held that language to take in all
the property possessed by any member of the conspiracy.94 In United States v. Pitts, we
noted that § 853(a)(1) “does not say that each conspirator shall forfeit only such property
involved in the offense which is or has even been in that conspirator’s possession.
93
See, e.g., United States v. Pitts, 193 F.3d 751, 765 (3d Cir. 1999); see also United States
v. Van Nguyen, 602 F.3d 886, 904 (8th Cir. 2010) (imposing joint and several liability
with respect to forfeiture of proceeds of a drug conspiracy).
94
193 F.3d 751, 765 (3d Cir. 1999).
28
Rather, the statute recognizes that the amount of property involved in a . . . conspiracy
cannot be different for different conspirators.”95 Given the identical language in §
853(a)(2), we see no reason not to apply this holding to that section. And, Crews has
offered us none. We therefore see no error in the District Court’s order of forfeiture.
Lastly, Appellant Miller argues that the District Court should have made a
foreseeability determination before imposing joint and several forfeiture liability. He
acknowledges, however, that he failed to “object on this basis below.”96 We, therefore,
apply a plain error review to his claims.97 Miller insists that we should apply plenary
review to this claim nonetheless because he did not have an opportunity to object to the
lack of a foreseeability finding.98 Specifically, he says that he could not have known the
District Court would impose joint and several liability on him without a foreseeability
determination until the District Court issued its order and memorandum.99 By that time,
he maintains, it was too late for him to object. We disagree. Miller had plenty of time
and opportunity to object. Indeed, almost a year would pass between the entry of the
District Court’s forfeiture order and Miller’s sentencing.100 Nothing prevented Miller
95
Id.
96
Miller Br. at 40.
97
United States v. Berger, 689 F.3d 297, 299 (3d Cir. 2012).
98
Miller Brief at 40.
99
Id.The forfeiture order and accompanying memorandum were filed on August 14, 2012
100
and Miller was sentenced on July 24, 2013.
29
from filing an objection to the forfeiture based on a lack of foreseeability during that
time. This is because a forfeiture order only becomes final at the time of sentencing.101
Therefore, given this omission, we review Miller’s claim for plain error.102
Under the plain error standard, we may reverse the District Court's ruling only if
there was “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) which
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”103
There was no error here, much less a plain one. We have held that a District Court may
impose joint and several liability on co-defendants as part of a forfeiture money
judgment.104 And, while other courts may have done so, we have not held that a
foreseeability finding is required prior to the imposition of joint and several liability on
co-defendants. Therefore, we see no error. Even were we to find error, it certainly would
not be plain, given that a foreseeability requirement is not uniformly required. Miller
calls our attention to decisions from other circuits that have required a foreseeability
finding—United States v. Elder,105 for example. He also points out that we have issued a
See Fed. R. Crim. P. 32.2(b)(1)(A); United States v. Pelullo, 178 F.3d 196, 202 (3d Cir.
101
1999).
102
See United States v. Flores, 454 F.3d 149, 156 (3d Cir. 2006) (citing Fed.R.Crim.P.
30; Gov’t of the Virgin Islands v. Knight, 989 F.2d 619, 631 (3d Cir. 1993)).
103
United States v. Paladino, 769 F.3d 197, 201 (3d Cir. 2014).
104
United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999).
105
682 F.3d 1065 (8th Cir. 2012).
30
non-precedential opinion requiring such a determination.106 However, courts are not
harmonized in their view that a foreseeability requirement is necessary. The Court of
Appeals for the Eleventh Circuit, for example, has specifically rejected a foreseeability
requirement, relying on Supreme Court precedent.107 And, our decision in Plaskett, as
the parties recognize, was a non-precedential opinion issued under our I.O.P. 5.7, and as
such lacks precedential authority and is non-binding on any subsequent case or panel.
Given these contrary opinions, we cannot say that the District Court’s lack of a
foreseeability determination was obvious error.108
Conclusion
In light of the foregoing, we will affirm the convictions of Appellants Crews and
Miller, the sentence of Appellant Crews, and the forfeiture money judgments entered
against both Appellants in the District Court.
106
United States v. Plaskett, 355 F. App’x 639 (3d Cir. 2009).
107
See, e.g., United States v. Browne, 505 F.3d 1229, 1279 (11th Cir. 2007).
United States v. Olano, 507 U.S. 725, 733-35 (1993) (“To demonstrate “plain error,” a
108
defendant must prove that the Court erred, that the error was “clear” or “obvious,” and
that the error “affect[ed] substantial rights” of the defendant.).
31