United States v. Bryant Calloway ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1124
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UNITED STATES OF AMERICA
v.
BRYANT CALLOWAY,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cr-00518-001)
District Judge: Honorable Juan R. Sanchez
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 31, 2022
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Before: CHAGARES, Chief Judge, SHWARTZ, Circuit Judge, and ROSENTHAL,
District Judge.*
(Filed: April 1, 2022)
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OPINION **
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*
Honorable Lee H. Rosenthal, Chief U.S. District Judge for the Southern District
of Texas, sitting by designation.
**
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Bryant Calloway was convicted of, among other things, murder in relation to a
drug trafficking crime. He appeals, arguing that (1) the Government presented perjurious
testimony to the grand jury, and (2) the District Court improperly restricted his recross
examination of two witnesses. Because these arguments are meritless, we will affirm.
I
Two rival crews distributed crack cocaine within a few blocks of each other in the
Mill Creek neighborhood of West Philadelphia. One crew operated in and around the
“Pit” (a sunken basketball court), and the other crew operated in and around the
“Grounds” (a public playground). Calloway, a member of the Pit crew, wished to expand
his crack distribution into the Grounds. To that end, Calloway and an associate opened
fire on Brian Littles (“the Victim”) and Clayton Roberts, two members of the Grounds
crew who were selling crack cocaine at the Grounds. The Victim was killed.
A grand jury indicted Calloway for, among other things, conspiracy to distribute
crack cocaine and the murder of the Victim in connection with a drug trafficking crime.
Federal agents and civilian witnesses, including Valdo Guilford, testified before the
grand jury. Guilford testified that he saw Calloway entering the Grounds the night of the
murder, heard gunshots, saw Calloway fleeing the Grounds with a gun after the gunshots,
and that Calloway later confessed to him that he had killed the Victim.
At trial, Guilford and nineteen other witnesses testified. Defense counsel sought
to recross two witnesses, Guilford and Roberts, but the District Court denied recross of
2
Guilford and permitted only one question on recross of Roberts. The jury convicted
Calloway on all counts, and the Court sentenced him to life in prison plus twenty years’
imprisonment.
Calloway appeals.
II 1
Calloway argues that (1) the Government presented perjurious testimony to the
grand jury; and (2) the District Court improperly restricted Calloway’s recross of
Guilford and Roberts at trial. We address each argument in turn.
A2
Knowingly presenting perjurious testimony to the grand jury constitutes
prosecutorial misconduct. United States v. Soberon, 929 F.2d 935, 940 (3d Cir. 1991). A
petit jury’s guilty verdict, however, renders harmless such misconduct. United States v.
Console, 13 F.3d 641, 672 (3d Cir. 1993). This is because
[a]ny prosecutorial misconduct before [a] grand jury ha[s] the theoretical
potential to affect the grand jury’s determination whether to indict [a] . . .
defendant[] for the offenses with which [he was] charged. But [a] petit jury’s
subsequent guilty verdict means not only that there was probable cause to
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
2
Calloway did not raise his perjurious testimony claim before the District Court.
As a result, we review it for plain error. See United States v. James, 955 F.3d 336, 344
n.7 (3d Cir. 2020), cert. denied, 141 S. Ct. 329 (2020). To demonstrate plain error, an
appellant must prove that (1) there was an error, (2) “the error was ‘plain’ at the time of
appellate consideration,” and (3) “the error affected substantial rights.” Gov’t of V.I. v.
Rosa, 399 F.3d 283, 293 (3d Cir. 2005). An error that “does not affect substantial rights”
is a “harmless error” and “shall be disregarded.” United States v. Olano, 507 U.S. 725,
731 (1993) (quoting Fed. R. Crim. P. 52(a)).
3
believe that the defendant[] w[as] guilty as charged, but also that [he was] in
fact guilty as charged beyond a reasonable doubt. Measured by [a] petit
jury’s verdict, then, any error in [a] grand jury proceeding connected with [a]
charging decision [i]s harmless beyond a reasonable doubt.
Id. (citation and quotation marks omitted). Here, a petit jury convicted Calloway after
hearing testimony from twenty witnesses. 3 The petit jury’s guilty verdict renders
harmless Guilford’s allegedly perjurious grand jury testimony.
There are “isolated exceptions to the harmless-error rule,” but none applies here.
Bank of Nova Scotia v. United States, 487 U.S. 250, 256-57 (1988). The Supreme Court
has recognized structural error in the grand jury context only when race or sex
discrimination occurred in grand jury selection. See Vasquez v. Hillery, 474 U.S. 254,
263 (1986) (race); Ballard v. United States, 329 U.S. 187, 193 (1946) (women); see also
United States v. Harmon, 833 F.3d 1199, 1204 (9th Cir. 2016) (excluding grand jurors
based on race or sex is the “only identified structural error” related to grand jury
practice). There is no assertion that the grand jury selection process here was improper.
Some appellate courts have also concluded that there is structural error when “the
prosecutor’s conduct . . . amount[s] to a knowing or reckless misleading of the grand jury
3
Other witnesses corroborated Guilford’s testimony. Roberts, an eyewitness to
the shooting, identified Calloway as the shooter. Ballistics evidence from the crime
scene matched a firearm recovered from a house associated with Calloway. The leader of
the Grounds crew testified that he repeatedly denied Calloway’s requests to expand
distribution into the Grounds and admitted that he orchestrated an attack on Calloway in
retaliation for Calloway’s murder of the Victim. Finally, Calloway’s own actions
towards Guilford in prison, calling him a “rat” and “hot” in front of fellow inmates the
morning of Guilford’s trial testimony, are consistent with the actions of a guilty man.
Thus, sufficient evidence supports Guilford’s account and the petit jury’s verdict.
4
as to an essential fact,” United States v. Lombardozzi, 491 F.3d 61, 79 (2d Cir. 2007)
(citation and quotation marks omitted), or when “the prosecutor engage[s] in flagrant or
egregious misconduct which significantly infringe[s] on the grand jury’s ability to
exercise independent judgment,” United States v. Lopez-Gutierrez, 83 F.3d 1235, 1245
(10th Cir. 1996) (quotation marks omitted). 4
Even assuming our Court recognized these exceptions, Guilford’s allegedly
perjurious grand jury testimony does not implicate them. First, the essential facts from
Guilford’s grand jury testimony tracked his trial testimony: (1) Guilford purchased crack
cocaine from Calloway; (2) Guilford saw Calloway cook crack cocaine at a house on
Funston Street; (3) Calloway told Guilford he wanted to sell crack cocaine in the
Grounds; (4) Calloway told Guilford the Grounds crew would have to “get down or lay
down,” SA151-52, A469; (5) Guilford saw Calloway enter the Grounds the night of the
murder; (6) Guilford heard gunshots and then saw Calloway “trot[ting]” from the
Grounds with a gun, SA166; (7) Calloway confessed to Guilford that he killed the
Victim; and (8) Guilford witnessed a member of the Grounds shoot Calloway in
retaliation. Second, Calloway’s belief that Guilford’s testimony was incredible or
inconsistent does not make it perjurious. 5 See United States v. Rose, 215 F.2d 617, 622
4
Cf. Harmon, 833 F.3d at 1204 & n.7 (holding no structural error occurred when
the “intentional misconduct by the prosecution goes to a witness’s credibility,” as
opposed to an “essential fact”).
5
Nor are Calloway’s arguments persuasive. First, the fact that Guilford saw
Calloway enter the Grounds from the south (the direction of the Pit does not mean that
Calloway did not then circle the Grounds, locate the Victim, and shoot at the Victim from
5
(3d Cir. 1954) (“Perjury is the willful, knowing and corrupt giving, under oath, of false
testimony material to the issue or point of inquiry.”). Third, Calloway has provided no
evidence from which we can conclude that the Government knowingly or recklessly
permitted Guilford to falsely testify on an essential fact before the grand jury. Thus, even
if we adopted the exceptions to the general rule that the petit jury’s guilty verdict renders
false, inaccurate, or contradictory grand jury testimony harmless, Calloway has not
shown that any of those exceptions apply.
For these reasons, Calloway’s grand jury argument fails. 6
B7
The District Court did not abuse its discretion in limiting Calloway’s recross of
Guilford and Roberts. The Confrontation Clause of the Sixth Amendment guarantees
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
north to south, consistent with the ballistics evidence. Second, the fact that Calloway is
obese does not mean that he is incapable of “trot[ting]” from the scene of a crime.
Third, the fact that Guilford did not hide after hearing gunshots is not unfathomable given
Guilford’s participation in Mill Creek drug activity. Fourth, the fact that Calloway spoke
to Guilford—someone who purchased crack cocaine from Calloway several times per
week for redistribution—about the Pit crew’s operations, bragged to him about killing a
rival gang member and cooked crack cocaine in front of him at the Funston Street house
is conceivable. In short, Calloway has not shown that any of this testimony was so
incredible that the prosecutor should have known it was perjurious.
6
Because Calloway’s grand jury challenge fails on its merits, we need not address
whether it was untimely under Federal Rule of Criminal Procedure 12.
7
We review “[l]imitations that a district court place[ed] on []examination [at
trial]” for “abuse of discretion.” United States v. Mussare, 405 F.3d 161, 169 (3d Cir.
2005). “The exercise of the [district] court’s discretion necessarily operates not as a hard
and fast rule, but according to the actual development of the case.” United States v.
Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991).
6
with the witnesses against him,” U.S. Const. amend. VI, and this “guarantees the right of
a criminal defendant to confront witnesses for the purpose of cross-examination,” United
States v. Mussare, 405 F.3d 161, 169 (3d Cir. 2005). The Confrontation Clause also
guarantees the right to recross “[w]hen material new matters are brought out on redirect
examination.” United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991). Thus, a
district court abuses its discretion when it prohibits all recross and does not allow recross
on “new matters” raised in redirect. Id. at 1374-76.
Here, the District Court did not abuse its discretion in limiting recross of Guilford
or Roberts because the Government did not raise any new matter in its redirect-
examination of those witnesses. With Guilford, defense counsel sought to ask about the
timing of Guilford’s cooperation with law enforcement to suggest that he fabricated
testimony against Calloway to secure preferential treatment. This questioning, however,
does not concern a new matter raised on redirect: (1) on direct, the Government
established that Guilford met with agents after his 2014 arrest; (2) on cross, defense
counsel established that Guilford met with agents “several times about this case,” A545,
including after his arrest, and that Guilford answered their questions truthfully; and (3) on
redirect, Guilford confirmed that he met with agents on several occasions and they did
not tell him what to say. Because Guilford’s redirect testimony did not raise new matter, 8
8
The District Court denied defense counsel’s request for expansive recross,
explaining that the Government simply “rebutted or explained everything [defense
counsel] brought on cross.” A562. We agree and note that this case is unlike Riggi,
since, rather than impose a blanket restriction on all recross at trial, 951 F.2d at 1375, the
7
recross examination was not warranted.
On recross, defense counsel sought to ask Roberts about his fear of members of
his own crew. This, again, did not concern a new matter raised on redirect: (1) on direct,
Roberts testified that he was initially not forthcoming about identifying Calloway as the
shooter because he was “afraid for [his] life and [] family,” A364; (2) on cross, defense
counsel confirmed that Roberts did not immediately tell Frederick Porter, the leader of
the Grounds, that Calloway was the shooter, and then defense counsel cut off Roberts
when Roberts tried to explain why; (3) on redirect, Roberts explained that he told his
brother-in-law, Robert Keen, instead of Porter because Keen was “more like family” and
Roberts feared that Porter would demand acts of “retaliat[ion],” which Roberts did not
want to do, A407-08. Thus, we agree with the District Court that redirect did not raise
any new matter. Instead, redirect allowed Roberts to explain an answer that defense
counsel prevented Roberts from providing on cross. 9 Therefore, it was not an abuse of
discretion for the District Court to allow only one question 10 to Roberts on recross about
his reason for not speaking with Porter. 11
Court considered defense counsel’s specific requests.
9
To the extent defense counsel wished to recross Roberts about the specifics of his
plea agreement (including who determines whether he is telling the truth), defense
counsel probed that topic on cross and confirmed that it is the Government’s decision
alone whether to request a sentence reduction for Roberts.
10
On recross, defense counsel asked, “Are you telling us that you were afraid to
tell the people you work with about what happened?” and Roberts responded, “Yes.”
A413.
11
Moreover, even if recross of either witness was improperly restricted, the
restriction was harmless, see Riggi, 951 F.2d at 1376-78, because sufficient evidence
8
Thus, Calloway’s Sixth Amendment arguments also fail.
III
For the foregoing reasons, we will affirm.
supported Calloway’s conviction, see supra n.3. See also United States v. Pawlowski,
No. 18-3390, --- F.4th ---, 2022 WL 628543, at *10 (3d Cir. Mar. 4, 2022) (concluding
“the extent of [the defendant]’s opportunity to cross-examine [a witness] and the overall
strength of the Government’s case support the conclusion that any error [in limiting
recross] was harmless”).
9