United States v. Keyes

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-17-2007
USA v. Keyes
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1684
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-1684, 05-1859, 05-1920, & 05-1938
UNITED STATES OF AMERICA
v.
ANDRE KEYES, Appellant in No. 05-1684,
FERNANDO PENA, Appellant in No. 05-1859,
CALVIN GOODRICH, Appellant in No. 05-1920, &
ANGEL CASTILLO-BIENVENIDO, JR., Appellant in No. 05-1938,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Nos. 03-cr-487-03, -09, -11, -01)
The Honorable John R. Padova, District Judge
Submitted under Third Circuit LAR 34.1(a)
March 10, 2006
Before: ALDISERT and ROTH*, Senior Circuit Judges
RODRIGUEZ**, District Judge
(Filed: January 17, 2007)
*The Honorable Jane R. Roth assumed senior status on May 31, 2006.
** The Honorable Joseph H. Rodriguez, Senior United States District Judge for the
District of New Jersey, sitting by designation.
OPINION OF THE COURT
RODRIGUEZ, District Judge.
In consolidated appeals, Appellants, Andre Keyes, Fernando Peña, Calvin Goodrich,
and Angel Castillo-Bienvenido, Jr., appeal their convictions and sentences entered in the
Eastern District of Pennsylvania after they were found guilty of conspiracy to sell crack
cocaine in Reading, Pennsylvania from January 2002 through October 2003.
Keyes based his appeal on the argument that the Government did not prove beyond
a reasonable doubt that he was part of a single conspiracy to distribute drugs; instead, he
argues, the evidence showed there were distinct and multiple conspiracies at work. He also
argues that the district court improperly allowed the Government to reopen its case and
introduce a new document never shared with defense counsel until after the Government
failed to introduce evidence sufficient to sustain three charges against Keyes.
Peña has argued that the evidence at trial showed he was a competitor, rather than a
member of the drug dealing conspiracy charged in this case. He also asserts that the
sentencing court should not have permitted the Government to call new witnesses at his
sentencing in order to enhance his guideline calculation with facts that had not been proven
to a jury; Peña was sentenced to 260 months of incarceration.
Goodrich seeks review of one issue: whether the district court abused its discretion
in admitting into evidence testimony regarding cell phone records, the identities of the
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recipients of cell phone calls, and the identities of cell phone number owners. Goodrich
argues that such evidence was hearsay.
Similarly, Castillo-Bienvenido argues that the district court erred in failing to exclude
as hearsay the testimony of, and written charts and graphs created by, law enforcement
officers regarding cell phone records because no custodian of the records or other qualified
witness authenticated the records or explained how they were compiled and kept. Castillo-
Bienvenido also contends that he was unfairly prejudiced by the admission of testimony that
he held a loaded gun to a man’s back on a public street and wrestled with the man for control
of the gun, when he was not charged with a firearms offense and the incident was not shown
to be related to the charges against him.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Because we write solely for the parties, we will only mention those facts relevant to
our analysis. On October 28, 2003, a Grand Jury in the Eastern District of Pennsylvania
returned a Superseding Indictment against Defendant-Appellants Andre Keyes, Fernando
Peña, Calvin Goodrich, Angel Castillo-Bienvenido, and nine co-defendants. Keyes, Peña,
Goodrich, and Castillo-Bienvenido were charged with conspiracy to distribute in excess of
fifty grams of cocaine base in violation of 21 U.S.C. § 846 (Count One); Keyes, Goodrich,
and Castillo-Bienvenido were charged with possession with intent to distribute in excess of
five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C.
§ 2 (Count Ten and Count Nineteen) and possession with intent to distribute in excess of five
grams of cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860(a) and
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18 U.S.C. § 2 (Count Eleven and Count Twenty). In addition, Keyes was charged with
possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1) and 18 U.S.C. § 2 and employing a juvenile to distribute crack in violation of 21
U.S.C. § 861(a)(1) and 18 U.S.C. § 2. On or about February 18, 2004, following a six-day
jury trial, Keyes, Peña, Goodrich, and Castillo-Bienvenido were convicted of all charged
counts.
JURISDICTION
This Court has jurisdiction to review the final judgments of the district court under
28 U.S.C. § 1291; we also have jurisdiction over these appeals pursuant to 18 U.S.C. § 3742.
DISCUSSION
Single versus Multiple Conspiracies
The issue of whether a single conspiracy or multiple conspiracies exists is a fact
question to be decided by a jury. United States v. Curran, 20 F.3d 560, 572 (3d Cir. 1994).
Keyes has argued that the evidence presented at trial was insufficient to prove beyond a
reasonable doubt that he was guilty of a single conspiracy to distribute drugs. Specifically,
Keyes contends that many of the alleged drug houses run by the “Tenth Street Gang” were
actually independently operated and kept so under threat of violence. To support this
contention, Keyes points to the testimony of Miguel Acevedo-Hernandez, Andrew Anthony
Cruz, Jessica Almodovar, and Kenneth Willams. In addition, Keyes has argued that there
were multiple conspiracies because “different people were caught at different places doing
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their own different operations.”
Similarly, Peña has argued that the evidence failed to demonstrate that he was a
member of the charged conspiracy. Instead, he contends, he was a competitor. He has
appealed the denial of his motion for acquittal, but acknowledges that a reviewing court will
overturn a jury verdict only when the record contains no evidence, regardless of how it is
weighted, from which a jury could find guilt beyond a reasonable doubt. United States v.
Thayer, 210 F.3d 214, 218-19 (3d Cir. 1999).
The standard of review for sufficiency of the evidence claims is a deferential standard.
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citing United States v. Voigt, 89
F.3d 1050, 1080 (3d Cir. 1996)). This inquiry does not require a court to ask itself whether
it believes that the evidence at the trial established guilt beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979). Instead, the relevant question is whether 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. Id.
The essence of a conspiracy is an agreement. United States v. Kelly, 892 F.3d 255,
258-59 (3d Cir. 1989) (citing United States v Nolan, 718 F.2d 589, 595 (3d Cir. 1983)). The
government need only prove that the defendant agreed with at least one of the persons named
in the indictment that they or one of them would perform an unlawful act. Id. at 259. The
essential elements of conspiracy are 1) whether there was a common goal among the
conspirators, 2) whether the agreement contemplated bringing to pass a continuous result that
would not continue without the continuous cooperation of the co-conspirators, and 3) the
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extent to which the participants overlap in the various dealings. Kelly, 892 F.2d at 259; but
see United States v. Padilla, 982 F.2d 110, 115 (3d Cir. 1992) (“we note that the Kelly factors
are most useful to show the existence of a single conspiracy, but that the absence of one
factor does not necessarily defeat an inference of the existence of a single conspiracy”).
In Kelly, the defendant was convicted of conspiracy to import and distribute P2P and
to manufacture and distribute methamphetamine. Id. at 256-57. The defendant argued on
appeal that he was unfairly prejudiced by a variance between the single conspiracy charged
in the indictment and evidence at trial, which he claimed proved several conspiracies. Id. at
258. This Court affirmed the conviction and reasoned that 1) the common goal was to make
money from selling drugs, 2) the success of one group was necessary for the success of
another group because the nature of the scheme required cooperation to provide a steady
supply of P2P, and 3) the government need not prove that each defendant knew all the
details, goals, or other participants in order to find a single conspiracy. Id.
Although multiple conspiracies are “separate networks operating independently of
each other,” the relatedness of the activities of the co-conspirators in support of the overall
illegal scheme can defeat a claim of multiple conspiracies. United States v. Perez, 280 F.3d
318, 346 (3d Cir. 2002) (citing United States v. Barr, 963 F.2d 641, 648 (3d Cir. 1992)). In
Perez, the defendant was convicted of conspiring to distribute and to possess with intent to
distribute methamphetamine. Id. at 326. The defendant contended that the conviction should
be overturned because there was not specific knowledge of an interdependency among the
various factions. Id. at 347. This Court disagreed and affirmed the conviction. We reasoned
that a party did not have to know all the details and goals of all the participants to constitute
a single conspiracy, the party only had to be aware that he or she was a part of a larger drug
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operation. Id.
Further, disputes between participants do not necessarily fracture a single conspiracy.
Kelly, 892 F.2d at 260 (citing United States v. DeVarona, 872 F.2d 114, 120 (5th Cir. 1989)).
In Kelly, the common catalyst of the disputes between defendants was greed; no party
wanted to be left out of the operation. Id. Therefore, the court reasoned that there were not
multiple conspiracies operating against one another solely because there were disputes
between the defendants. Id.
Finally, this Court has recognized, “even an occasional supplier (and by implication
an occasional buyer for redistribution) can be shown to be a member of the conspiracy by
evidence, direct or inferential, of knowledge that she or he was part of a larger operation.”
United States v. Price, 13 F.3d 711, 728 (3d Cir. 1994).
The government’s theory in this case was that the members of the Tenth Street Gang
conspired to maintain control over their area with guns, threatening and using violence, and
wearing bullet-proof vests. The evidence showed that Miguel Acevedo-Hernandez and
Manuel Perez controlled the drug trafficking in the area of 10th and Franklin Streets and
dictated who was permitted to sell in that area.
We find that a trier of fact could have concluded beyond a reasonable doubt that
Keyes was a part of a single conspiracy because he was a seller for the drug network of
distributor Acevedo-Hernandez. For example, Andrew Cruz testified that in approximately
November 2002, he began delivering crack for Miguel Acevedo-Hernandez in the vicinity
of 10th and Frankin Streets. Keyes App. IV 934-38. He further testified that he delivered
crack from Miguel Acevedo-Hernandez to Keyes at 280 South 9th Street on two separate
occasions. Keyes App. IV 936-37. Miguel Acevedo-Hernandez admitted supplying Cruz
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with drugs which Cruz distributed to sellers in the area, including Keyes. Keyes App. V
1040-42. He also stated that the drug business was limited to certain approved dealers and
that if someone else tried to sell in the neighborhood, “they would have problems.” Keyes
App. V 1053. Among the people permitted to sell in the area were Keyes, Goodrich, Mustafa
Sheriff, and Castillo-Bienviedo. Keyes App. V 1055.
In addition, on two occasions, Reading police discovered Keyes wearing a bulletproof
vest in houses where drug deals occurred. Officer Edwin Santiago testified that on February
18, 2003, he found Keyes sitting next to a firearm at 280 South 9th Street, where police
discovered crack cocaine. Keyes App. I 101-07. Officer Jose Colon confirmed Officer
Santiago’s testimony, and reported that Keyes was wearing a bulletproof vest at the time of
the search. Keyes App. I 130-31. Officer Edward Heim testified that on April 29, 2003, he
and other officers served a search warrant at the first floor apartment of 37 South 9th Street.
Inside the apartment the officers found Keyes, Goodrich, Wilfredo Ortiz, Lydia
Carrera-Aponte, and a juvenile. Keyes App. II 385. The police recovered 73 packets of
crack cocaine, three bulletproof vests, and $340 from the room. Once again, Keyes was
wearing a bulletproof vest. Keyes App. II 390.
Keyes’s and Peña’s relationships with other sellers were corroborated by cell phone
records. Tiffany Stambaugh, an intelligence analyst with the Reading Area Violent Crimes
Task Force (“RAVCTF”), testified with regard to the telephone records of co-defendants
Mustafa Sheriff, Calvin Goodrich, and Andrew Cruz. These records showed that Sheriff
placed 856 calls to Keyes during the three-month period from February 1, 2003 to April 30,
2003. Keyes App. V 1170. During the same period, Sheriff made 556 calls to Cruz, 234
calls to Castillo-Bienvenido, 217 calls to Peña, 190 calls to Acevedo-Hernandez, and 165
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calls to Goodrich. Keyes App. V 1170-71.
In spite of the argument that multiple conspiracies existed because “different people
were caught at different places,” Keyes was found at 280 South 9th Street, 37 South 9th
Street, and 22 Orange Street during Reading police raids. In light of the testimony presented,
we find that a trier of fact could have concluded that the 10th and Franklin Street gangs
benefitted from exclusively selling drugs in the 10th Street area and were therefore
committed to a single, common objective. A reasonable jury could infer that the constant
communication, in just a three-month period, was representative of individuals with a
common objective.
Further, a trier of fact could have concluded that Keyes and Peña and their co-
defendants had an overlap in participation. Officer Gesh introduced a videotape of a
surveillance he conducted on March 31, 2003 at 50th South 10th Street and identified Keyes,
Goodrich, Castillo-Bienvenido, Sheriff, and Kenneth Williams standing together at that
location. Keyes App. I 184. Kenneth Williams admitted he was arrested on April 16, 2003,
in possession of 9.6 grams of crack cocaine and a .45 caliber handgun. He testified that
drugs could be sold in the South 10th Street location only if they came from one of the
defendants. Keyes App. II 331. He identified the sellers at this location as Peña, Goodrich,
Castillo, Ortiz, and himself. Peña J.A. 259. Ortiz sold at that location for Peña. Peña J.A.
264. Williams sold for Sheriff and Cruz. Peña J.A. 261-63. He described how the sellers
cooperated by taking turns making sales or pooling their drugs to fill larger orders. Peña J.A.
361. He also testified that he observed Keyes, Castillo-Bienvenido, Goodrich, and Peña
working together packaging drugs at 37 South 9th Street. Keyes App. II 284-87, 320-21.
Jessica Almodovar, a juvenile, testified that Keyes, Goodrich, Sheriff, Peña, and
9
Castillo-Bienvenido sold drugs from 22 Orange Street and stated that Keyes, Sheriff, and
Castillo-Bienvenido had given her drugs to sell. Keyes App. III 642-47. Jasmine Lawson
admitted selling drugs in the area of 10th and Franklin Streets in the summer of 2002 and
identified Keyes, Goodrich, Sheriff, Peña, Castillo-Bienvenido, and Acevedo-Hernandez as
individuals involved in the drug trafficking in the area during the summer of 2002. Keyes
App. IV 744, 754-61. Lawson also testified to seeing Castillo-Bienvenido and Sheriff
“pistol-whip” another person who was attempting to sell drugs in the 10th Street area without
permission. Keyes App. IV 761-64. Only sellers working for a member of the conspiracy
were permitted to sell drugs at 10th and Franklin Streets. Keyes App. IV 767.
Lydia Carrera-Aponte testified that Goodrich, Sheriff, and Castillo-Bienvenido sold
crack cocaine in front of her residence at 37 South 10th Street in June 2002. Keyes App. IV
829-32. In March 2003, she lived at 50 South 10th Street and again observed Goodrich,
Sheriff, Peña, and Castillo-Bienvenido selling crack cocaine in her apartment building. Keyes
App. IV 834-35. Later, while living at 37 South 9th Street, she observed Keyes, Goodrich,
Sheriff, Ortiz, and Castillo-Bienvenido selling crack cocaine in that apartment building.
Keyes App. IV 840-42. While “hanging out” at 22 Orange Street, Carrera-Aponte observed
Keyes, Goodrich, Sheriff, and Castillo-Bienvenido selling crack cocaine. Keyes App. IV
847-49.
A trier of fact could have concluded that Keyes and Peña and the other defendants had
an overlap in participation in the charged conspiracy. The evidence showed that the essential
feature of this conspiracy was that its members cooperatively maintained control of the drug
trafficking in the area of 10th and Franklin Streets, and dictated who was permitted to sell
in that area. A reasonable jury could have found that Keyes and Peña participated in and
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took advantage of this arrangement, and thus joined the conspiracy.
In so deciding, the jury in this case rejected the notion that squabbles among the
organization’s members, subdivided into separate territories, rendered them “competitors,”
taking them outside the conspiracy. This Court has stated that:
If it is shown that an organized gang controls drug distribution in the defendant’s
neighborhood and that the gang has divided the neighborhood into zones in which
only a single dealer may operate, then the fact that the defendant consistently sells his
or her drugs only within certain geographical parameters would provide evidence that
the defendant both knew of the existence of the conspiracy and was a participant in
it.
United States v. Pressler, 256 F.3d 144, 151 (3d Cir. 2001). Viewing the evidence in the
light most favorable to the government, as we must, we find a reasonable jury could have
concluded beyond a reasonable doubt that the Appellants were supplied with drugs for
distribution by Perez and Acevedo-Hernandez and knew of, and intended to benefit from, the
mutual control of the area. Accordingly, the conspiracy convictions will be sustained.
Reopening of Government’s Case against Keyes
Keyes argues that the district court improperly allowed the government to reopen its
case. At the conclusion of the government’s case-in-chief, defense counsel moved for
judgment of acquittal as to Counts 2, 3, and 4 because the government failed to introduce
evidence that the drugs seized on February 18, 2003 were crack. Keyes contends that
introducing this evidence prejudiced him because without it the district court would have
sustained his motion for judgment of acquittal as to Counts 2, 3, and 4. He further contends
that he was prejudiced because the lab report entered into evidence after reopening was never
previously shared with the defense counsel. In addition, Keyes argues that the government
11
did not provide the district court with an explanation for its failure to provide the required
evidence.
The government contends that the district court did not abuse its discretion in allowing
the prosecution to reopen its case. On the last day of the government’s case-in-chief, the
prosecution presented the testimony of several chemists employed by the Pennsylvania State
Police Bureau of Forensic Services who had prepared lab reports on the drug evidence
entered at trial. Chemist Erin Luck prepared two lab reports, but was mistakenly only asked
about one report during the government’s case-in-chief. The government contends that its
explanation of ‘inadvertent mistake’ was sufficient. The government further contends that
Keyes was not prejudiced because defense counsel had an opportunity to rebut this additional
evidence.
The district court’s decision on a motion to reopen is reviewed for abuse of discretion.
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331 (1971). When deciding
whether to permit reopening, the court’s focus is on whether the party opposing the
reopening would be prejudiced if reopening is permitted. United States v. Kithcart, 218 F.2d
213, 220 (3d Cir. 2000). A critical factor in evaluating prejudice is the timing of the motion
to reopen. United States v. Coward, 296 F.3d 176, 181 (3d Cir. 2002). In Coward, this Court
reasoned that
If [the motion to reopen] comes at a stage in the proceedings where the opposing party
will have an opportunity to respond and attempt to rebut the evidence introduced after
reopening, it is not nearly as likely to be prejudicial as when reopening is granted after
all parties have rested, or even after the case has been submitted to the jury.
Id. at 181. In exercising its discretion, the court must also consider the character of the
12
testimony and the effect of the granting of the motion. Id. The evidence proffered should be
relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or
innocence of the accused. Id.
Further, “[t]he party moving to reopen should provide a reasonable explanation for
failure to present the evidence [initially].” Kithcart, 218 F.2d 220; see also United States v.
Blankenship, 775 F.2d 735, 740 (6th Cir. 1985) (“reopening is often permitted to supply
some technical requirement such as the location of a crime – needed to establish venue – or
to supply some detail overlooked by inadvertence”). In Kithcart, we reasoned that in order
to properly exercise its discretion, the district court must evaluate the offered explanation and
determine if it is both reasonable and adequate to explain why the government initially failed
to introduce evidence that may have been essential to meeting its burden of proof. Id.
Here, the district court had the discretion to rule that the reopening would not
prejudice Keyes because the motion to reopen was made in a timely fashion. The
Government made its motion to reopen soon after resting its case-in-chief, the defense had
not yet presented any evidence, and the case had not been submitted to the jury yet. Keyes
App. V 1208. Therefore, the timing of the motion did not prejudice Keyes because there was
an opportunity to respond and rebut the evidence during the defense case.
Despite Keyes’s argument that permitting the Government to reopen its case was
prejudicial because without the omitted testimony he would have been acquitted on three
counts of the indictment, prejudice means more than the denial of an unearned windfall; it
requires unfairness. The only claim of unfairness is based on the prosecution’s failure to turn
over a copy of the lab report on a timely basis, not that the timing of the production impaired
13
or prejudiced his defense. Keyes App. V 1207-08. Indeed, the defense did not ask questions
regarding the conclusions reached by the chemists’ testimony. Keyes App. IV 1226-27.
In addition, the prosecution provided a reasonable and adequate explanation when it
admitted inadvertence:
Yes, Your Honor, the Pennsylvania State Police routinely describe cocaine base or
powder as just cocaine. Sometimes it is necessary in a federal case to go back and ask
them to do a supplemental report that distinguishes between cocaine and cocaine base.
That was done in this case. I did not receive a copy of that revised program until I
had gone to Reading on Friday of last week. I have not provided a copy to counsel,
and it was through inadvertence. The only difference, though, between this document
and the one they had before is instead of calling it [cocaine, it is called cocaine base.]
Keyes App. V 1207-08. The district court accepted this as an adequate explanation of the
prosecution’s failure to introduce the evidence during its case-in-chief, stating, “All right.
They can reopen. It’s a minor matter, it won’t take that long. Everybody makes mistakes.
We had a mistake on the verdict sheet.” Keyes App. V 1208.
The district court did not abuse its discretion when it determined that the prosecution
could reopen its case because the defense was not prejudiced and the prosecution’s
explanation of its failure to introduce evidence was reasonable and adequate.
Peña’s Sentence
Peña has objected to the sentence imposed, arguing that the sentencing court erred in
considering factors not proven to a jury beyond a reasonable doubt – that he assumed a
leadership role, his use of a weapon, and his prior criminal record.
Peña was convicted before but sentenced after the Supreme Court decided United
States v. Booker, 543 U.S. 220, 244 (2005), holding that a defendant’s Sixth Amendment
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right to trial by jury is violated when his or her sentence is increased beyond the statutory
maximum based on the sentencing judge’s findings of fact beyond facts established by a plea
of guilty, a jury verdict proved beyond a reasonable doubt, or those admitted by the
defendant under a mandatory application of the United States Sentencing Guidelines. As we
have explained, in light of that holding and the “remedial” opinion which rendered the
Guidelines “effectively advisory,” id. at 245, “district courts may fact-find to increase
sentences beyond the Guidelines range provided they are within the statutory minimum and
maximum dictated by the United States Code, take into account the relevant sentencing
factors set out in 18 U.S.C. § 3553(a), and ultimately are ‘reasonable.’” United States v.
Gunter, 462 F.3d 237, 233-34 (3d Cir. 2006) (citing Booker, 543 U.S. at 244). Moreover,
we have held that the ex post facto principles are not violated when the defendant has fair
warning that the crime he committed is punishable up to the statutory maximum of the crime.
United States v. Pennavaria, 445 F.3d 720, 723 (3d Cir. 2006). A defendant has fair warning
that his sentence could be enhanced on judge-found facts as long as the sentence does not
exceed the statutory maximum. Id. at 723-24. Thus, a defendant may be sentenced up to the
statutory maximum of the crime committed without violating the defendant’s due process
rights. Id.
We have reviewed the record in this case to determine whether the district court erred
in relying upon judge-found facts to enhance Peña’s sentence beyond the statutory maximum
for his crime. Peña was convicted of conspiracy to distribute cocaine base of 50 grams under
21 U.S.C. § 846. Peña J.A. 1397. The maximum penalty under the statute is life
15
imprisonment. 21 U.S.C. § 841(b)(1)(A). Peña was sentenced to 260 months in prison,
below the statutory maximum. Peña J.A. 1461.
At the sentencing hearing held on March 14, 2005, over Peña’s objection, the
Government called Mustafa Sheriff and Manuel Perez to testify to the quantity of crack
cocaine Peña distributed during the course of the conspiracy, his role in the conspiracy, and
his possession of a gun. Peña J.A. 1426-52. Based on this testimony, the district court
found, by a preponderance of the evidence, that he was responsible for the distribution of 1.5
kilograms of crack cocaine, was a leader/supervisor of the organization, and had possessed
a firearm in connection with the offense. Peña J.A. 1454-57. Those findings, to which Peña
has presented no factual rebuttal, made his offense level 42 and, with his criminal history of
VI, his guideline sentencing range was determined to be 360 months to life. After
considering the advisory Sentencing Guidelines and all relevant “3553(a) factors,” including
the seriousness of the offense and Peña’s extensive criminal history, the court sentenced Peña
to 260 months incarceration and five years supervised release. Peña J.A. 1457, 1459-61.
This sentence was within the range allowed by statute, which imposed a mandatory minimum
sentence of 10 years imprisonment and a maximum term of life imprisonment.1
We find the sentencing judge correctly applied the Guidelines in an advisory capacity
in Peña’s case, establishing that the applicable guideline range under the Sentencing
1
The jury found that the conspiracy involved more than 50 grams of cocaine, and
thus the statutory range was ten years to life. See 21 U.S.C. §§ 841(b)(1)(A), 846.
16
Guidelines would be 360 months to life. In sentencing Peña to 260 months in prison, the
judge explicitly acknowledged that the Sentencing Guidelines were advisory. We find the
sentence imposed to be reasonable, and we therefore affirm.
Cell Phone Records
Goodrich argues that the testimony of the Government’s expert witness, an
intelligence analyst, regarding cell phone calls among the alleged co-conspirators should
have been excluded as hearsay. Counsel objected to testimony that Goodrich possessed a
particular cell phone number because, when he was arrested, he was not in possession of a
cell phone. Although the expert witness testified as to the names or initials or nicknames
contained in the internal phone books of various cell phones seized, implicating Goodrich,
the phones themselves were not brought into court, nor were the records from the cell phone
companies brought in as business records. Specifically, the expert witness testified that she
reached the conclusion that a telephone number at issue belonged to Goodrich through
“various proffer statements, and the number was listed under his known moniker, CJ, in
various cell phones.” Goodrich Supp. App. 1126. Goodrich argues that the witness should
not have been allowed to rely solely upon information furnished to her by other investigators,
who relied upon what was found in the cell phones seized from others. His objection is that
this testimony that a particular cell phone number belonged to him was hearsay and also
deprived him of his right to confrontation. Goodrich also argues that a chart listing calls
allegedly made in furtherance of the conspiracy and a list of numbers from cell phones seized
17
by the FBI in this matter were not properly authenticated because the witness did not have
personal knowledge that Goodrich possessed the phone number attributed to him.
The Government contends that its witness attributed a cell phone number to Goodrich
based upon evidence previously admitted at the trial. For example, Kenneth Williams
identified Goodrich as “CJ,” referred to him by that nickname throughout his testimony, and
identified the telephone number assigned to Goodrich. Goodrich Supp. App. 211-12, 219,
221, 235, 240, 245, 237-39. Five other cooperating witnesses also identified Goodrich as
“CJ.” Goodrich Supp. App. 211-12, 470, 603, 722, 793, 1018. Police Officer Edward Heim
testified that he examined the cell phones seized during the investigation and he prepared a
report listing the numbers programmed into the phones; the report was entered into evidence
without objection. Goodrich Supp. App. 1089-90, 1154-55. Finally, FBI Special Agent
Gregory Banis testified that he subpoenaed telephone records for three cell phones and
provided the records to Government witness Tiffany Stambaugh of the National Guard
Counter Drug Program. Goodrich Supp. App. 1103.
At trial, Stambaugh explained the analysis she performed on the phone records to
identify the number of times each of the three phones called or had been called by phones
allegedly belonging to other members of the conspiracy; she introduced charts she had
prepared to illustrate her data. Goodrich App. 33-36; Goodrich Supp. App. 1122-24, 1127-
39.
Castillo-Bienvenido has advanced the same argument, and has added that the records
18
received by Banis and analyzed by Stambaugh were in the form of a computer spreadsheet,
rather than on paper. Accordingly, Stambaugh’s analysis was based on a computer search
through the records. Castillo-Bienvenido objected to the admission of testimony and exhibits
regarding the phone records because no authenticating evidence was presented to establish
how the wireless carrier compiled and maintained the phone records.
The standard of review for admissibility of evidence is abuse of discretion. United
States v. Serafini, 233 F.3d 758, 768 (3d Cir. 2000). The district court did not abuse its
discretion in allowing Stambaugh to describe a certain telephone number as belonging to
Goodrich. She explained that the number was attributed to him due to proffer statements and
the fact that it was listed under his known moniker, CJ, in various cell phones, including that
of Kenneth Williams. Goodrich Supp. App. 1126-27. Such evidence was already in the
record; Stambaugh’s testimony can be viewed as summary testimony of evidence properly
received.
Regarding the argument that no foundation was established to admit the phone
company data as business records, Castillo-Bienvenido contends that Stambaugh’s testimony
failed to establish the authenticity and reliability of the data she received. The Government
points out, however, that there was no objection to Stambaugh’s testimony regarding her
analysis of the phone records, which all parties accepted at trial. Because Castillo-
Bienvenido’s attorney never objected to the business records foundation of the phone records
during Stambaugh’s testimony, Appellant must establish plain error to prevail. See United
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States v. Olano, 507 U.S. 725, 734-35 (1993). Although a proper foundation should have
been laid for the phone records analyzed by Stambaugh, such an error did not affect the
substantial rights of Castillo-Bienvenido. See Johnson v. United States, 520 U.S. 461, 467
(1997) (to establish plain error, an appellant must show that the error affected the outcome
of the proceedings). The evidence provided regarding his phone records, that is, the
frequency of calls between his number and three co-defendants, was of minimal significance
in light of the other overwhelming evidence of Castillo-Bienvenido’s guilt.
Therefore, we accept the Government’s alternative argument that even if Stambaugh’s
testimony was improperly admitted, the error was harmless given the overwhelming evidence
of Goodrich’s and Castillo-Bienvenido’s guilt. The record is replete with testimony
implicating the Appellants in the conspiracy. Though corroborative of the witness testimony
regarding the co-defendants’ association with each other, the telephone records did not
“make the case”; it was obviously the credibility of numerous cooperating witnesses offered
at trial that convicted the Appellants.
Testimony regarding Castillo-Bienvenido and a Firearm
Finally, Castillo-Bienvenido has argues that he was unduly prejudiced by prior bad
act testimony from a cooperating witness to the effect that he held a loaded gun to a man’s
back on a public street and wrestled with the man for control of the gun. Federal Rule of
Evidence 404(b) prohibits the admission of other acts evidence for the purpose of showing
that an individual has a propensity or disposition to act in a particular manner. Fed. R. Evid.
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404(b). The Court realizes that “the Government has broad latitude to use ‘other acts’
evidence to prove a conspiracy.” United States v. Cross, 308 F.3d 308, 324 (3d Cir. 2002).
To be admitted under Fed. R. Evid. 404(b), “(1) the evidence must have a proper purpose
under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must
outweigh its potential for unfair prejudicial effect under Rule 403; and (4) the Court must
charge the jury to consider the evidence only for the limited purpose for which it is
admitted.” United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (citing Huddleston v.
United States, 485 U.S. 681, 691-92 (1988)).
Castillo-Bienvenido was not charged with a firearms offense and the incident was not
shown to be related to the charges against him. Therefore, although represented to be
probative of the allegations in the conspiracy indictment, the testimony should have been
excluded, as it only served to show a tendency to do bad acts. See United States v. Davis,
183 F.3d 231 (3d Cir. 1999). Moreover, once the testimony was admitted, the district court
should have charged the jury to consider the evidence only for the limited purposes for which
it was offered. It did not, although during discussion of this issue at trial, the court indicated
that it would give a cautionary instruction.
Some errors are so unimportant and insignificant in the setting of a particular case
“that they may, consistent with the Federal Constitution, be deemed harmless, not requiring
the automatic reversal of the conviction.” United States v. Hasting, 461 U.S. 499, 508
(1983). The Supreme Court has made it clear that a reviewing court must consider the trial
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record as a whole, ignoring errors that are harmless. Id. at 509. The Court reasoned that
“given the myriad of safeguards provided to assure a fair trial, and taking into account the
reality of the human fallibility of the participants, there can be no such thing as an error-free,
prefect trial, and that the Constitution does not guarantee such a trial.” Id. at 508-09 (citing
Brown v. United States, 391 U.S. 123, 135 (1968)).
Considering the trial record as a whole, the district court’s failure to give a limiting
instruction concerning the testimony of Castillo-Bienvenido’s use of and struggle with a gun
was harmless error. As the Government noted, testimony was properly admitted that
Castillo-Bienvenido and a co-defendant pistol-whipped an individual for selling drugs
without permission in the vicinity of the conspiracy’s drug locations. Castillo App. III, 859-
60. We cannot say, therefore, that the disputed testimony combined with the court’s failure
to give a limiting instruction warrants reversal.
CONCLUSION
For the forgoing reasons, the judgments entered by the district court is affirmed.
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