United States v. John Gunther ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 21-2791, 22-1481, & 22-1588
_______________
UNITED STATES OF AMERICA
v.
JOHN GUNTHER, Appellant in 21-2791
WILLIAM ROLAND, a/k/a “CHILL’, Appellant in 22-1481
TALEAF GUNTHER, a/k/a “Leafy”, a/k/a “L”, Appellant in 22-1588
_______________
On Appeal from the United States District Court
For the District of New Jersey
(D.C. Crim. No. 1-17-cr-00488)
District Judge: Honorable Renée Marie Bumb
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 28, 2023.
Before: KRAUSE, AMBRO, and SMITH, Circuit Judges
(Filed: October 16, 2023)
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OPINION *
_______________
KRAUSE, Circuit Judge.
In this consolidated appeal, Appellants John Gunther; his brother, Taleaf Gunther;
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not
binding precedent.
and William Roland challenge their convictions and sentences for various crimes related
to their drug-trafficking operation in Camden, New Jersey. Because we see no error in the
District Court’s rulings, we will affirm.
I. DISCUSSION 1
Appellants raise a host of issues on appeal. Between the brothers, John Gunther
maintains that his conviction was supported by insufficient evidence; both John and Taleaf
Gunther argue that the District Court erred in its instruction to the jurors about how they
should determine the relevant quantity of drugs; and Taleaf alone says the District Court
wrongly denied his motion to suppress several intercepted phone calls. For his part, Roland
argues that the District Court erred by allowing the Government to present cumulative
testimony, refusing to issue a curative instruction, and denying his motion for a new trial.
And all three defendants challenge their sentences as unreasonable on various grounds.
We address these arguments in turn. 2
1
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and this Court
has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
We do not consider Roland and John Gunther’s argument that the District Court erred in
denying their requests for a duress instruction. Roland asked for the instruction, but his
counsel later withdrew the request, so his argument is waived. J.A. 1890. Gunther, on the
other hand, appears to have forfeited the argument, having failed to raise it at trial. The
trial transcript records Roland’s counsel as raising the duress instruction and Gunther’s
attorney as making the substantive argument on its behalf, J.A. 1803, but this was a typo.
Roland’s brief says that the court reporter erred in attributing the argument’s substance to
Gunther’s counsel, Roland Br. at 22–23, and the Government agrees, Resp. Br. at 23–24.
The trial transcript shows the Judge directly asking Roland’s counsel to explain the grounds
for a duress charge. Moreover, in answering, Gunther’s counsel is recorded as claiming
that “there was no evidence of any preexisting relationship between my client and the other
clients,” which would be an absurd argument for John Gunther to make about a group that
included his brother Taleaf. J.A. 1803-04. We thus conclude that John Gunther did not
ask for a duress instruction at trial and so forfeited the issue on appeal.
2
A. Sufficiency of the Evidence 3
John Gunther raises three challenges to the sufficiency of the evidence supporting
his convictions under 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), and 846. None is
persuasive.
First, John faults the Government for proving up the net weight of the substances
attributed to him containing cocaine base by extrapolating from randomly tested samples
instead of testing each item. J. Gunther Br. 12–13, 40–42. But there is no requirement
of individual testing. To the contrary, a drug quantity may be extrapolated from a test
sample so long as “there is an adequate basis in fact for the extrapolation” and “the quantity
was determined in a manner consistent with accepted standards of reliability.” United
States v. McCutchen, 992 F.2d 22, 25–26 (3d Cir. 1993). Both criteria are met here
because, as the forensic chemist testified at trial, the tests conducted on the drugs followed
a standard and accepted methodology for drug testing and extrapolation. J.A. 1365–68.
John’s second argument is that the Government failed to prove that he knowingly
joined or had specific intent to further the drug conspiracy. J. Gunther Br 11, 14, 25. Yet
voluminous evidence in the trial record shows otherwise. Testimony established that John
managed the drug operation and controlled the drug set’s crack. J.A. 1211, 1217–18, 1270,
1300–01, 1335. Seized mail and testimony established that although the Blackwood, New
3
Where, as here, a criminal defendant fails to move for a judgment of acquittal based on
the sufficiency of the evidence at trial but raises such argument on appeal, we review the
sufficiency claim for plain error, meaning we will affirm if, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Jabateh, 974
F.3d 281, 300 (3d Cir. 2020) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
3
Jersey apartment—where a search revealed substantial evidence of drug trafficking—was
not in his name, John resided there with his girlfriend, id. 464–65, 486–87, 499, 528–29,
582, 1657–58, 1682, 1764. John’s intercepted phone calls, too, showed that he was a sales
contact and central part of the conspiracy, id. 2274, 2278–79, 2299, and that he referred to
the Blackwood apartment as “my house” and indicated to others that he lived there. J.A.
2352–53. In view of this evidence, it cannot be said that no “rational trier of fact could
have found the essential elements of [John Gunther’s convictions] beyond a reasonable
doubt.” Jabateh, 974 F.3d at 300.
The trial record also defeats John’s third claim, which is that the Government did
not prove he possessed with intent to distribute furanyl fentanyl and heroin on February
22, 2017. J. Gunther Br. 43; J.A. 1217–18. The video surveillance footage from that day
showed both John and Taleaf on the block of 1700 Filmore shortly before Taleaf left to sell
drugs to a confidential informant. J.A. 891. Pen register intercepts showed that
immediately after Taleaf received the informant’s order, Taleaf called a number associated
with John Gunther. J.A. 907. And surveillance footage established that, after the sale,
Taleaf returned to 1700 Filmore and interacted with John. J.A. 902–03. The jury was
properly instructed about accomplice liability on this count, J.A. 1925–26, and on the
evidence presented, a reasonable jury could find John Gunther guilty of aiding and abetting
the distribution of furanyl fentanyl and heroin.
B. Purity Instruction 4
4
This Court exercises plenary review over the legal standard articulated in a jury
instruction, “but review[s] the wording of the instruction, i.e., the expression, . . . for abuse
4
In their appeals, John and Taleaf Gunther both argue that the District Court erred by
instructing the jury that “when determining whether the Government has proven beyond a
reasonable doubt the specific weight of the controlled substance, you are to consider the
entire weight of the mixture and substance including any inactive ingredients, cutting
agents, or diluents.” J. Gunther Br. 46-47 (quoting J.A. 1884); see also T. Gunther Br.
19. The brothers maintain that this “purity charge diluted the government’s burden of proof
beyond a reasonable doubt” and thus reversal is required. J. Gunther Br. 46.
We will affirm a jury charge if it “fairly and adequately submit[s] the issue[] in the
case to the jury.” United States v. Petersen, 622 F.3d 196, 203 (3d Cir. 2010) (quoting
United States v. Hart, 273 F.3d 363, 373 (3d Cir. 2001)). Here, there is no question that
the District Court’s instruction fairly and adequately stated the law. The relevant statute,
21 U.S.C. § 841(b)(1)(A)(iii), criminalizes certain acts involving “280 grams or more of a
mixture or substance described in clause (ii) which contains cocaine base.” Clause (ii), in
relevant part, refers to a “mixture or substance containing a detectable amount” of cocaine.
Id. § 841(b)(1)(A)(ii)(II). Clearly, the statute is concerned with the total weight of the
substance, not just the weight of the pure drug it contains. Chapman v. United States, 500
U.S. 453, 460 (1991). The District Court’s instruction accurately described this statutory
scheme.
of discretion.” United States v. Lee, 359 F.3d 194, 203 (3d Cir. 2004) (Alito, J.) (quoting
United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1999)). Where, as here, no objection
is made to an instruction at trial, we review the instruction for plain error. United States v.
Savage, 970 F.3d 217, 273 (3d Cir. 2020).
5
C. Motion to Suppress 5
Taleaf Gunther argues that the District Court should have granted his motion to
suppress several intercepted phone calls. T. Gunther Br. 9. He contends that he was
impelled to make the calls by an unconstitutional stop-and-frisk, and that, therefore, the
recordings should have been excluded as “fruit of the poisonous tree.” Id. at 15. We
disagree. Law enforcement officers lacking a warrant may “conduct a brief, investigatory
stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.”
United States v. Johnson, 592 F.3d 442, 447 (3d Cir. 2010) (quoting Illinois v. Wardlow,
528 U.S. 119, 123 (2000)). The Government searched 1700 Filmore based on months of
surveillance, including evidence from the morning of the search showing that drug sales
were taking place. J.A. 1103–07. Considering this ample evidence alongside testimony
that the Judge deemed “credible” and “corroborated,” the District Court did not err in
finding that law enforcement had an articulable and reasonable suspicion of criminal
activity on Filmore Street, and that twenty to thirty minutes was a reasonable duration for
a stop under the circumstances. J.A. 1136, 1140. See United States v. Sharpe, 470 U.S.
675, 685 (1985) (“[O]ur cases impose no rigid time limitation on Terry stops); see also
Baker v. Monroe Twp., 50 F.3d 1186, 1192 (3d Cir. 1995) (fifteen-minute detention during
5
“We review a district court’s order denying a motion to suppress under a mixed standard
of review . . . review[ing] findings of fact for clear error, but exercis[ing] plenary review
over legal determinations.” United States v. Dyer, 54 F.4th 155, 158 (3d Cir. 2022). “[W]e
view the facts in the light most favorable to the Government.” Id. (quoting United States
v. Garner, 961 F.3d 264, 269 (3d Cir. 2020)).
6
a drug raid was reasonable).
Even if Taleaf’s detention was unconstitutional, it did not taint the phone calls. J.A.
1141. See United States v. Pelullo, 173 F.3d 131, 136 (3d Cir. 1999). In the one call in
which he discusses being stopped, Taleaf voices distress over co-conspirators’ arrests, not
his own detention—which, again, was lawful. J.A. 2321. In considering the facts
surrounding Taleaf’s phone calls, then, the District Court did not commit plain error, and
in exercising plenary review over its decision to deny Taleaf’s suppression request, we
affirm.
D. Roland’s Abuse of Discretion Claims 6
Roland asserts that the District Court abused its discretion by (1) allowing the
Government to present testimony that was “unnecessarily cumulative” under Federal Rule
of Evidence 403, Roland Br. 23; (2) by declining to issue a curative instruction during the
Government’s rebuttal summation, Roland Br. 15; and (3) by denying his motion for a
new trial, Roland Br. 26. In our view, none of these rulings constitutes an abuse of
discretion.
First, Roland challenges the testimony of Joseph Eden, a K-9 officer, as cumulative
evidence that merely repeated the testimony of FBI Special Agent Dustin Poulin. Roland
Br. 25. “Evidence is ‘cumulative’ when it adds very little to the probative force of the
6
We review for abuse of discretion all three of the District Court actions that Roland
challenges. See United States v. Versaint, 849 F.2d 827, 831 (3d Cir. 1988) (admitting or
excluding evidence); Petersen, 622 F.3d at 207 n.7 (declining to give proposed jury
instructions); United States v. Jasin, 280 F.3d 355, 360 (3d Cir. 2002) (denial of motion
for new trial).
7
other evidence in the case, so that . . . its contribution to the determination of truth would
be outweighed by its contribution to the length of trial.” United States v. Cross, 308 F.3d
308, 326 (3d Cir. 2002) (quoting United States v. Williams, 81 F.3d 1434, 1443 (7th Cir.
1996)). That is not the case here, where Agent Poulin’s credibility had been impeached on
cross-examination. J.A. 593. Officer Eden’s testimony was introduced partly to bolster
Agent Poulin’s credibility, and it consumed just over twenty minutes of a multi-day trial.
J.A. 589–607. The District Court thus acted well within its especially broad discretion to
admit the testimony under Rule 403. United States v. Sussman, 709 F.3d 155, 173 (3d Cir.
2013).
Second, Roland maintains that the District Court should have given a curative
instruction because the Government’s summation rebuttal “wrongly impressed upon the
jury that counsel had intentionally attempted to deceive them as to the law governing the
case.” Roland Br. 15. In response to defense counsel’s argument that Roland was not part
of the drug conspiracy because he didn’t share “an intention to further [its] goals,” J.A.
1978, the prosecutor said: “[I]f Judge Bumb instructs you that as a matter of law, every
member of a co-conspiracy has to be best friends with everybody else, well, then, I guess
you go back there and find them all not guilty. But she’s not going to instruct you on that
because that’s not the law. [Roland’s counsel] knows that.” J.A. 2032.
Roland’s lawyer did not object. Later, after the prosecutor said that John’s attorney
“ignore[d] pretty much all of the facts in this case in a pretty amazing quantity,” the Judge
summoned counsel to a sidebar, where she admonished the Government for “attacking the
integrity of the [defense] attorneys” and urged the prosecutor to rephrase her arguments “in
8
terms of the defendant, not the attorneys.” J.A. 2033–34. Roland’s attorney then requested
a curative instruction, which the District Court declined to give. J.A. 2034.
The Court did not abuse its discretion in doing so. The Supreme Court has said that
“a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s
comments standing alone,” United States v. Young, 470 U.S. 1, 11 (1985), but only when
those comments can be said to have “so infected the trial with unfairness as to make the
resulting conviction a denial of due process,” Darden v. Wainwright, 477 U.S. 168, 180–
81 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Here, the
Government’s comment about Roland’s counsel was isolated, and however ill-phrased, it
was not gratuitous, as it was responding to the counsel’s claim that Roland was not part of
a conspiracy. In a supplemental opinion, the District Court affirmed that it was legitimate
for the government to argue that a lack of friendship among co-conspirators does not
necessarily mean there was no conspiracy and that its warning against ad hominem attacks
was “well received” and heeded by the Government, which had presented “overwhelming”
evidence against Roland. Suppl. Op. to Prior Order at 8, United States v. Roland, No. 1:17-
cr-00488-RMB-2 (D.N.J. July 13, 2022), ECF. No. 329. With these considerations in
mind, we hold that the District Court did not abuse its discretion.
Roland’s third argument is that the District Court abused its discretion in denying
his motion for a new trial because the guilty verdict was contrary to the weight of the
evidence. Roland Br. 26. A district court may grant such a motion “only if it believes
that there is a serious danger that a miscarriage of justice has occurred—that is, that an
innocent person has been convicted.” United States v. Silveus, 542 F.3d 993, 1004–05 (3d
9
Cir. 2008) (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)). We have
held that new trial motions “are not favored” and should be “granted sparingly and only in
exceptional cases.” United States v. Brennan, 326 F.3d 176, 189 (3d Cir. 2003).
This is not one of those cases. As noted above, the District Court found that
“overwhelming evidence”—including drug packaging and residue discovered at Roland’s
apartment, Roland’s drug sales to confidential sources, and his intercepted phone calls and
text messages—supported Roland’s conviction. Suppl. Op. at 8. It properly exercised its
discretion in reaching this conclusion.
E. Reasonableness of Sentences 7
Finally, Roland and the Gunthers challenge their sentences’ reasonableness. 8 “[I]f
7
We review a sentence’s procedural and substantive reasonableness for abuse of discretion.
United States v. Woronowicz, 744 F.3d 848, 851 (3d Cir. 2014).
8
John Gunther challenges the four-level leadership enhancement to his sentence. But the
District Court did not abuse its discretion in applying the leadership enhancement to him
based on the evidence presented at trial, J.A. 2156–2157, and, as a career offender, he
would be subject to the same Guidelines range of 360 months to life—even if the four-
point leadership penalty were subtracted. U.S.S.G. § 4B1.1(b) (Level 37). Therefore, we
need not consider his objection to the leadership enhancement. United States v. Abdullah,
905 F.3d 739, 749–50 (3d Cir. 2018).
Neither did the District Court abuse its discretion in applying a four-level leadership
enhancement to Taleaf Gunther’s sentence. Suppl. App. 244–46. However, it did err in
not considering him a career offender, but that error was harmless. The District Court held
that Taleaf’s prior state conviction for aggravated assault under N.J. Stat. Ann. §. 2C:12-
1(b)(1) did not qualify as a predicate under the Sentencing Guidelines. Suppl. App. 225–
27. We have since clarified that it does qualify. See United States v. Brasby, 61 F.4th 127,
142 (3d Cir. 2023). In any event, career-offender status would make no difference to
Taleaf’s sentence, because the applicable offense level for his convictions under Chapters
Two and Three of the Sentencing Guidelines was higher than the applicable career-
offender guideline, U.S.S.G. § 4B1.1(b), so Taleaf’s guidelines range would be 360 months
to life without the enhancement. See United States v. Isaac, 655 F.3d 148, 158 (3d Cir.
2011).
10
the district court’s sentence is procedurally sound, we will affirm it unless no reasonable
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d
Cir. 2009) (en banc).
All three Defendants argue that the amounts of drugs attributed to them for
sentencing purposes were insufficiently proven, J. Gunther Br. 49; T. Gunther Br. 29;
Roland Br. 29, but we disagree. We have recognized that, “in calculating the amounts
involved in drug transactions, some degree of estimation must be permitted,” although
“mere speculation” is forbidden. United States v. Collado, 975 F.2d 985, 998 (3d Cir.
1992). The evidence that a district court relies on in making its calculation need not be
admissible at trial, but it must “have sufficient indicia of reliability to support its probable
accuracy.” United States v. Freeman, 763 F.3d 322, 337 (3d Cir. 2014) (quoting United
States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996)). We review a district court’s findings
of fact regarding quantity of drugs for clear error. Id.John and Roland (and, by incorporation, Taleaf) claim that the District Court looked
only to the uncorroborated testimony of one cooperating witness in calculating the amount
of drugs involved in the transaction. J. Gunther Br. 50; Roland Br. 30; T. Gunther Br.,
29. Not so. In addition to the testimony, the Court considered intercepted calls, law
enforcement testimony, surveillance footage, the seized drugs, and lab reports. Suppl.
App. 232–36. The Court did not commit clear error in finding this evidence a sufficiently
reliable basis for 1) estimating the total amount of drugs involved in the conspiracy and 2)
concluding that as members of an established drug conspiracy, Appellants reasonably
11
could have foreseen the amounts attributed to them. See United States v. Perez, 280 F.3d
318, 353 (3d Cir. 2002) (“[A] defendant is accountable for all quantities of contraband with
which he was directly involved and, in the case of a jointly undertaken criminal activity,
all reasonably foreseeable quantities of contraband that were within the scope of the
criminal activity that he jointly undertook.”) (quoting U.S.S.G. § 1B1.3, cmt. n.2).
John Gunther also contests the substantive reasonableness of his sentence, but he
cannot cross that exceedingly high threshold. J. Gunther Br. 54–56. In reviewing for
substantive unreasonableness, we consider the totality of the circumstances, and “we will
affirm . . . unless no reasonable sentencing court would have imposed the same sentence
on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d
at 568. The District Court offered a thorough explanation of its decision, J.A. 2184–92,
that demonstrated a “rational and meaningful consideration of the factors enumerated in 18
U.S.C. § 3553(a).” United States v. Seibert, 971 F.3d 396, 399–400 (3d Cir. 2020) (quoting
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)). We therefore hold
that the District Court did not abuse its discretion in imposing John’s sentence.
II. CONCLUSION
For the foregoing reasons, we will affirm Appellants’ convictions and sentences.
12