United States v. Henry Freeman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 09-2166
______
UNITED STATES OF AMERICA
v.
HENRY FREEMAN,
Appellant
______
On Appeal from the District Court
of the Virgin Islands
(D.C. Criminal No. 3-06-cr-00080-004)
District Judge: Honorable Curtis V. Gomez
______
Argued December 9, 2013
Before: FISHER, COWEN and NYGAARD, Circuit Judges
______
No. 10-4224
______
UNITED STATES OF AMERICA
v.
GELEAN MARK,
Appellant
______
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 3-06-cr-00080-001)
District Judge: Honorable Curtis V. Gomez
______
Argued December 9, 2013
Before: FISHER, COWEN and NYGAARD, Circuit Judges
(Filed: August 18, 2014)
2
Dale L. Smith, Esq. (ARGUED)
Suite 1600
99 Park Avenue
New York, NY 10016
Counsel for Appellant Henry Freeman
Pamela L. Colon, Esq. (ARGUED)
27 & 28 King Cross Street,
Phoenix Court Business Complex
Christiansted, VI 00820
Counsel for Appellant Gelean Mark
Nelson L. Jones, Esq. (ARGUED)
Delia L. Smith, Esq.
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802-6924
Counsel for Appellee
3
______
OPINION OF THE COURT
______
FISHER, Circuit Judge
Henry Freeman and Gelean Mark appeal from their
individual judgments of conviction and sentence entered by
the District Court of the Virgin Islands for conspiracy to
possess with intent to distribute a controlled substance. We
will resolve these unconsolidated appeals together because
they arise from a common factual background and were tried
together before the same District Court. Each defendant
alleges a series of legal and procedural errors on the part of
the District Court during trial and at sentencing. We will
affirm as to Freeman, but we will vacate and remand for
resentencing as to Mark.
I. BACKGROUND
A. Factual History
On December 19, 2006, Freeman and Mark were
charged by a federal grand jury in a fourteen-count
indictment1 for their part in a conspiracy to import substantial
quantities of cocaine throughout the United States via
commercial aircraft at the Cyril E. King Airport located in St.
Thomas, United States Virgin Islands. Count I of the
1
The indictment also charged Vernon Fagan, Walter
Ells, Kelvin Moses, Craig Claxton, Kerry Woods, Glenson
Isaac, Everette Mills and Dorian Swann. Claxton and Woods
have separately appealed, and those appeals will be separately
4
indictment charged both Freeman and Mark with conspiracy
to possess with intent to distribute a controlled substance, in
violation of 21 U.S.C. § 846. The government alleged that
both Freeman and Mark, along with four other defendants:
[D]id knowingly and
intentionally, combine, conspire .
. . and agree together . . . to
knowingly and intentionally
possess with intent to distribute a
controlled substance, namely five
(5) kilograms or more of a
mixture and substance containing
a detectable amount of cocaine, . .
. in violation of Title 21, United
States Code, Sections 841(a)(1)
and 841(b)(1)(A)(ii)(II).
Freeman App. at 24. Count II charged Mark, along with two
others, with conspiracy to import cocaine, in violation of 21
U.S.C. § 963. Counts III-XIII charged both Freeman and
Mark, along with two others, with possession of cocaine on
board an aircraft, in violation of 21 U.S.C. § 955. Mark was
charged in Count XIV with possession of cocaine with intent
to distribute, in violation of 21 U.S.C. § 841.
B. Procedural History
(1) The Trial
Freeman's and Mark's trial commenced on September
5, 2007. The government presented its evidence against the
defendants through the testimony of several cooperating
witnesses. James Springette and Elton Turnbull, established
leaders in the drug conspiracy, set forth an overview of the
5
conspiracy. Turnbull testified that he recruited Mark into the
drug trafficking organization in late 1999 because of his
connections with employees at the Cyril E. King Airport.
Turnbull testified that Mark's role in the conspiracy primarily
consisted of the movement of narcotics through the airports to
North Carolina and that he and Mark shared the responsibility
of finding the drug couriers. Turnbull testified that once the
drugs arrived in St. Thomas, Mark stored the drugs until it
was time to transport them to North Carolina.
Glenson Isaac, a fellow co-conspirator and a
cooperating witness for the government, testified against both
Mark and Freeman. He testified that after Turnbull's arrest,
he sold drugs under Mark, with Freeman acting as the middle
person, and that he used Mark's route going through
Charlotte, North Carolina, to transport the drugs from St.
Thomas. Isaac testified that Mark arranged for the trafficking
of multi-kilogram loads of cocaine from St. Thomas to North
Carolina with him on numerous occasions and that Freeman
advised him as to whom the courier would be in a number of
those deliveries. He also testified that he met with both Mark
and Freeman in St. Thomas to discuss and plan ways to
transport cocaine from the Virgin Islands to North Carolina
and, finally, presented an organizational chart of the drug
organization, identifying Mark as a key supplier of cocaine.
Following the testimony of the government's
witnesses, defense counsel was afforded an opportunity to
cross-examine each of the government's witnesses. At the
close of the government's case, the District Court dismissed
Counts III through XIII against both Freeman and Mark,
pursuant to Rule 29 motions for judgments of acquittal. The
District Court denied the motions as to the remaining counts.
(2) The Jury Instructions
6
Both Freeman and Mark presented their proposed jury
instructions to the District Court, which included an
instruction that the government must prove the existence of
"five or more kilograms of cocaine" as an essential element of
Count I. The District Court rejected this request, instead
instructing the jury, along with all of the other elements of
conspiracy, that they need only find that the conspiracy
involved a "measurable amount of the controlled substance
alleged in the indictment." Freeman and Mark also objected
to the court's "measurable amount of cocaine" instruction, but
their objection was overruled.
After five days of deliberation, the jury returned guilty
verdicts for both Mark and Freeman as to Count I, but failed
to reach a decision as to Mark's charges in Counts II and XIV.
Following the guilty verdict on Count I, the District Court
submitted to the jury the following in the form of a post-
verdict question: "[a]s to Count 1, conspiracy with intent to
distribute a controlled substance, do you find that five
kilograms or more was involved[?]" After a period of
deliberation, the jury failed to arrive at a unanimous decision.
Mark's retrial on Counts II and XIV was scheduled for a later
date.2
(3) Freeman's Sentencing
2
Mark's retrial on Counts II and XIV was scheduled to
commence on May 24, 2010. Mark was to be on trial along
with several of his co-defendants, who were arrested after the
first trial and were to be tried on different counts of the
indictment. Just before that trial, however, the government
moved to dismiss Counts II and XIV against Mark. As a
result, Mark was never retried.
7
Freeman's sentencing hearing was held on April 15,
2009. Prior to sentencing, the United States Probation Office
prepared a presentence investigation report ("PSR"), which
categorized Freeman's base offense level at 12 because "the
jury did not find an amount of controlled substances
attributable to [him]." The PSR then increased his base
offense level by four levels, pursuant to U.S.S.G. § 3B1.1(a),
due to his role in the conspiracy as "an organizer and leader
of criminal activity that involved five or more participants."
It also assigned Freeman a criminal history score of I. Based
upon these calculations, the PSR's final recommendation for
Freeman was a base offense level of 16 and a criminal history
category of I, resulting in a guidelines range of 21 to 27
months in prison.
Freeman's PSR was amended twice by the Probation
Office between the date of the initial PSR and the sentencing
hearing. During that interim period, Freeman raised a number
of objections to his base offense level and his role in the
offense. The District Court held a hearing on October 2, 2008
to allow the parties to set forth their arguments regarding
those objections. At the conclusion of the hearing, the
District Court found that there was sufficient evidence
presented at trial to support a finding that Freeman was "a
manager and a supervisor" in the conspiracy. See Transcript
of Proceedings at 26-28, United States v. Freeman, No. 3:06-
cr-00080-CVG-RM (D.V.I. Jan, 29, 2009), ECF No. 724.
The Court then found, based upon a preponderance of the
evidence, that Freeman "conspire[d] with intent to distribute .
. . at least 50 kilograms of cocaine." Id. at 28-30.
The PSR was thereafter amended to reflect the District
Court's finding that Freeman had conspired to distribute a
minimum of fifty kilograms of cocaine. His base offense
level was set to 36, and then increased by three levels for his
8
role as an organizer of criminal activity involving five or
more participants. Following these adjustments, the PSR
recommended a base offense level of 39 and a criminal
history category of I, resulting in a guidelines range of 262 to
327 months of imprisonment.
At the sentencing hearing, Freeman again raised
several objections to the final PSR. Specifically, he objected
to the District Court's findings of fact regarding the quantity
of cocaine attributable to him and the resulting sentencing
guideline range given the jury's failure to make any actual
findings as to the quantity of cocaine involved in the
conspiracy. The government argued that the Court should
find that 89.5 kilograms of cocaine were attributable to
Freeman and that, instead of a three-level increase for his role
as an organizer in the conspiracy, a two-level increase (to 38)
should be imposed, providing for a sentence range of 235 to
293 months' imprisonment. Given the statutory maximum
sentence of 20 years applicable to the offense, however, the
government asked the Court to impose a sentence between
188 and 240 months' imprisonment. After hearing argument
from both parties, the Court sentenced Freeman to 188
months' imprisonment.
(4) Mark's Sentencing Hearing
Mark's sentencing hearing was held on October 19,
2010. His initial PSR, like Freeman's, categorized his base
offense level at 12 because the jury did not find an amount of
controlled substances attributable to him. His base offense
level was then increased by four levels, pursuant to U.S.S.G.
§ 3B1.1(a), due to his role in the offense as "an organizer and
leader of criminal activity that involved five or more
participants." He had a criminal history score of I. Mark's
9
base offense level of 16 and criminal history category of I
resulted in a guidelines range of 21 to 27 months in prison.
The Probation Office amended Mark's PSR following
its receipt of reports from an investigation conducted by the
Drug Enforcement Administration. Those reports detailed
Mark's involvement with various amounts of cocaine during
the conspiracy and attributed to him a total of 96.5 kilograms
of cocaine. Following the inclusion of that information into
the PSR, Mark was assigned a new base offense level of 36.
The PSR then increased his base offense level by four levels,
pursuant to U.S.S.G. § 3B1.1(a), and arrived at an adjusted
offense level of 40. Based upon those new calculations,
Mark's guidelines range increased to 292 to 365 months in
prison.
Mark raised his objections to the amended PSR at his
sentencing hearing. He specifically objected to the quantity
of cocaine attributed to him in the PSR, given the jury's
inability to reach a conclusion regarding a specific quantity of
cocaine, and the increase in his base offense level for his role
in the conspiracy. After the Court heard argument from both
parties, the Court found that Mark was responsible for 15 to
50 kilograms of cocaine, which lowered his base offense level
to 34 instead of 36, and that there was sufficient evidence in
the record to warrant a three-level adjustment for his role in
the conspiracy. The District Court then added three levels to
his adjusted base offense level of 34, arriving at an adjusted
offense level of 37, and concluded that Mark's new guidelines
range was 210 to 262 months in prison. The Court then
sentenced Mark to a term of 210 months' imprisonment.
10
This appeal followed.3
III. DISCUSSION
Because Mark and Freeman both challenge the District
Court's jury instructions regarding Count I of the indictment,
we will address that aspect of the two appeals together in Part
III.A. We will address Mark's and Freeman's challenges to
their sentencing decisions in Part III.B. The remainder of the
issues raised in Freeman's appeal will then be addressed in
Part III.C and the remainder of the issues raised in Mark's
appeal will be addressed in Part III.D.
A. Jury Instructions
Freeman and Mark first argue that the District Court
erred when it instructed the jury on the elements of drug
conspiracy. They specifically argue that, in order for a
conviction to be obtained against them on Count I, the
government had to prove the existence of "5 kilograms or
more of cocaine" as charged in the indictment.
Our review of a trial court's jury instructions, regarding
both phrasing and omissions, is for abuse of discretion.
United States v. Bobb, 471 F.3d 491, 499 (3d Cir. 2006). "In
reviewing a refusal to give a requested jury instruction," see
id., we evaluate "whether the proffered instruction was legally
correct, whether or not it was substantially covered by other
instructions, and whether its omission prejudiced the
defendant," United States v. Pitt, 193 F.3d 751, 755-56 (3d
Cir. 1999)).
3
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a).
11
The statutory provision under which Freeman and
Mark were charged in the indictment, 21 U.S.C. § 841(a)(1),
provides: "it shall be unlawful for any person knowingly or
intentionally – to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance." We have previously stated that the
elements of the base offense therefore include: "(1) knowing
or intentional (2) possession (3) with intent to distribute (4) a
controlled substance." United States v. Lacy, 446 F.3d 448,
454 (3d Cir. 2006). The District Court's instruction to the
jury mirrored our interpretation of the elements of the base
offense. The instruction specified that:
In order to sustain its
burden of proof for the crime of
conspiracy to possess with intent
to distribute a controlled
substance . . . , the government
must prove the following essential
elements beyond a reasonable
doubt:
First, that no later than
1999, and continuing until
October 2005, a conspiracy,
agreement or understanding to
possess with intent to distribute a
controlled substance, as described
in the indictment, was formed,
reached, or entered into by two or
more persons;
12
And second, that at some
time during the existence or life of
the conspiracy, agreement, or
understanding, the defendant
knew the purpose of the
agreement, and with that
knowledge then deliberately
joined the conspiracy, agreement,
or understanding.
...
The evidence received in
this case need not prove the actual
amount of the controlled
substance alleged in the
indictment.
The government must
prove beyond a reasonable doubt,
however, that a measurable
amount of the controlled
substance alleged in the relevant
count of the indictment that you
are considering was, in fact,
involved.
Transcript of Proceedings at 24, 34 United States v. Mark,
No. 3:06-cr-00080-CVG-RM (D.V.I. Mar. 18, 2008), ECF
No. 641.
Freeman's and Mark's indictment did not just charge
the base offense, however, it specified a particular drug type
and amount, namely, "five (5) kilograms or more of cocaine,"
13
in violation of 21 U.S.C. § 841(b)(1)(A)(ii)(II). The drug
type and amount, for purposes of 21 U.S.C. § 841, serve to
increase the statutory maximum penalty allowed once a
conviction is obtained. See 21 U.S.C. § 841(b). Following
the Supreme Court's decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), those types of facts must be submitted to a
jury and proved beyond a reasonable doubt. Id. at 490
("[A]ny fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt."). This is so because
such facts are treated as the "functional equivalent[]" of an
element of a greater offense. Lacy, 446 F.3d at 454 (quoting
Apprendi, 530 U.S. at 494 n.19). The essential elements of
Freeman's and Mark's charged offense are, therefore,: (1)
knowing or intentional (2) possession (3) with intent to
distribute (4) five kilograms or more (5) of cocaine.
It is clear, here, that the District Court did not instruct
the jury as to the fourth element – the existence of "five
kilograms or more." However, this point does not prove fatal
to the jury charge. Rule 31(c) of the Federal Rules of
Criminal Procedure informs our analysis. See, e.g.,
Government of Virgin Islands v. Douglas, 812 F.2d 822, 826
(3d Cir. 1987) (noting that Rule 31(c) allowed the judge to
substitute a charge on the lesser included offense of attempted
aggravated rape for the original charge of aggravated rape);
United States v. Lucien, 61 F.3d 366, 372 (5th Cir. 1995)
(noting that Rule 31(c) allows a district court to give a lesser-
included offense instruction where certain requirements are
met).
Rule 31(c) provides, in pertinent part, that "[a]
defendant may be found guilty of . . . an offense necessarily
included in the offense charged." Fed. R. Crim. P. 31(c). An
"offense is not 'necessarily included' in another unless the
14
elements of the lesser offense are a subset of the elements of
the charged offense." Lacy, 446 F.3d at 452 (quoting
Schmuck v. United States, 489 U.S. 705, 716 (1989)). A
lesser included offense instruction would be improper,
therefore, "where the [potential lesser included offense]
requires an element not required for the greater offense." Id.
(emphasis added) (quoting Schmuck, 489 U.S. at 716). Such
a rule protects defendants' "rights by ensuring that they have
'constitutionally sufficient notice' that they face conviction on
all lesser included offenses." Id.; see also Walker v. United
States, 418 F.2d 1116, 1119 (D.C. Cir. 1969) (noting that the
indictment is sufficient notice to a defendant that he may be
called to defend a lesser included charge); accord Fransaw v.
Lynaugh, 810 F.2d 518, 529 (5th Cir. 1987); Seymour v.
Walker, 224 F.3d 542, 558 (6th Cir. 2000); United States v.
No Neck, 472 F.3d 1048, 1053 (8th Cir. 2007).
In the instant case, without the essential element of
"five kilograms or more," the District Court merely instructed
the jury on the base offense, as described above. It follows,
therefore, that in order to resolve the jury instruction issue
raised by Freeman and Mark, we must determine whether the
base offense, 21 U.S.C. § 841(a)(1), constitutes a lesser
included offense of the charged offense, 21 U.S.C.
§ 841(b)(1)(A)(ii)(II). To do so, we must compare the
elements of the charged offense with those of the base
offense.
We have addressed this exact question before. In
Lacy, we were tasked with determining, among other things,
whether the district court properly charged the defendant
with, and whether the jury properly convicted him of, two
separate lesser included offenses. 446 F.3d at 455. There, the
defendant was charged with possession with intent to
distribute five grams or more of a substance containing a
15
detectable amount of cocaine base, or crack cocaine, in
violation of 21 U.S.C. § 841(a) and (b). Id. at 450. A jury
acquitted Lacy of the offense charged in the indictment, but
convicted him of two lesser included offenses – simple
possession of more than five grams of cocaine base, in
violation of 21 U.S.C. § 844, and possession with intent to
distribute an unspecified amount of cocaine base, in violation
of 21 U.S.C. § 841(a)(1). Lacy focused his appeal on his
simple possession conviction, arguing, among other things,
that it was not a lesser included offense of possession with
intent to distribute. We disagreed with Lacy in that regard,
but also made a point to note that his conviction for
possession with intent to distribute an unspecified amount of
cocaine was a lesser included offense of his charged offense
as well:
It is also clear that the second
offense of which Lacy was
convicted – which he does not
challenge on appeal – is a lesser
included offense of the charged
offense. Possession with intent to
distribute an unspecified quantity
of cocaine base requires proof of
a 'subset' of the facts that must be
proved to sustain a conviction for
possession with intent to
distribute five grams or more of
cocaine base – everything except
for the drug amount.
Id. at 455 (emphasis added). Lacy thus makes clear that §
841(a) – possession with intent to distribute an unspecified
16
quantity of controlled substance – constitutes a lesser
included offense of § 841(b) – possession with intent to
distribute a specified quantity of a controlled substance. It
follows, then, that a conviction may be properly obtained
under § 841(a) where the indictment alleges a violation of §
841(b).
On a final note, Freeman and Mark argue that the
District Court's lesser included offense instruction (omitting
the specified amount of cocaine) was improper in the instant
case because there was no evidence to justify it. They argue
that all of the evidence presented at trial consisted of
testimony that they were involved with shipments of cocaine
in excess of five kilograms and that there was never any
dispute that the cocaine quantities at issue involved less than
five kilograms. They claim that these facts demonstrate that a
jury could not rationally find them guilty of the lesser offense
and acquit them of the greater. We disagree. On the facts of
this case, wherein multiple defendants participated at varying
levels in a grand scheme involving the importation of
cocaine, a jury could rationally conclude that the conspiracy
involved the amounts of cocaine each witness testified to, but
not attribute a specific amount (beyond a reasonable doubt) to
a particular defendant. Furthermore, as Freeman and Mark
acknowledge, the government's witnesses testified to varying
amounts of cocaine, or a "measurable amount," which
demonstrates that the District Court's lesser included offense
instruction was indeed supported by the evidence. We will
reject Freeman's and Mark's argument in this regard.
The District Court, therefore, properly charged the jury
on possession with intent to distribute a "measurable amount"
of cocaine as a lesser included offense of possession with
intent to distribute five kilograms or more of cocaine.
Freeman's and Mark's convictions will remain undisturbed.
17
Government of Virgin Islands v. Aquino, 378 F.2d 540, 554
(3d Cir. 1967) ("[T]here may be a conviction of a crime
which is necessarily included within the higher offense
charged.").
B. Sentencing Errors
We now turn to Mark's and Freeman's allegations of
error at their individual sentencing hearings. Freeman and
Mark both argue that their sentences should be reversed
because they were imposed with judicial factfinding as to
drug quantities, using a preponderance of the evidence
standard, in violation of Alleyne v. United States, 133 S. Ct.
2151 (2013). 4 Both also challenge the adequacy of the
District Court's factfinding regarding their drug quantity
determinations. Mark also argues separately that the District
Court erred at his sentencing hearing by: (1) failing to find a
specific amount of cocaine attributable to him in the
conspiracy; (2) failing to state a factual basis for imposing
aggravating role enhancements; (3) failing to address his
request for a downward departure based upon his allegations
of serial prosecution; and (4) mistakenly requiring parity of
sentence between him and his co-defendants.
4
Following the Supreme Court's decision in Alleyne,
and after the parties had already submitted their original
briefs, our Court directed the parties to submit supplemental
letter briefs regarding the impact of Alleyne on the District
Court's sentencing decision. Both defendants argued that
Alleyne counseled in favor of a remand for resentencing.
Prior to Alleyne, Freeman's and Mark's only arguments in this
regard challenged the adequacy of the District Court's factual
findings.
18
We review a district court’s sentencing decision for an
abuse of discretion, which proceeds in two stages of analysis.
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en
banc). We first review for procedural error, ensuring that the
district court: (1) correctly calculated the defendant’s
advisory Guidelines range; (2) appropriately considered any
motions for a departure under the Guidelines; and (3) gave
meaningful consideration to the sentencing factors set forth in
18 U.S.C. § 3553(a). United States v. Wright, 642 F.3d 148,
152 (3d Cir. 2011). If the district court has committed
procedural error, "'we will generally remand the case for re-
sentencing, without going any further.'" United States v.
Begin, 696 F.3d 405, 411 (3d Cir. 2012) (quoting Wright, 642
F.3d at 152). If the sentencing decision passes the first stage
of review, we then consider the substantive reasonableness of
the sentence. United States v. Levinson, 543 F.3d 190, 195
(3d Cir. 2008). We will find a sentence to be unreasonable
only where "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.
(1) Alleyne Error
Freeman and Mark both argue that the District Court
violated their Sixth Amendment rights by finding facts that
increased the amount of cocaine attributable to each of them
for purposes of their Guidelines calculations. They base their
argument on Alleyne, where the Supreme Court held that "any
fact that increases the mandatory minimum is an 'element'
that must be submitted to the jury" and found beyond a
reasonable doubt. 133 S. Ct. at 2155. Freeman and Mark
contend that, because the quantities found by the District
Court, by only a preponderance of the evidence, "exposed"
them to a statutory minimum sentence of ten years'
19
incarceration, see 21 U.S.C. § 841(b)(1)(A)(ii)(II), the
District Court's factfinding violated Alleyne. We disagree.
While the Supreme Court made clear that any fact that
increases a defendant's statutory minimum sentence must be
found by a jury beyond a reasonable doubt, this rule does not
foreclose a district court's ability to engage in some judicial
factfinding. See Alleyne, 133 S. Ct. at 2158. Indeed, the
Supreme Court made this point perfectly clear in its decision.
See id. at 2163 ("Our ruling today does not mean that any fact
that influences judicial discretion must be found by a jury.
We have long recognized that broad sentencing discretion,
informed by judicial factfinding, does not violate the Sixth
Amendment."); see also id. at 2170 ("'Nothing in this history
suggests that it is impermissible for judges to exercise
discretion – taking into consideration various factors relating
both to offense and offender – in imposing a judgment within
the range prescribed by statute.'" (emphasis omitted) (quoting
Apprendi, 530 U.S. at 481)).
In that regard, a number of courts, including our own,
have agreed that "factual findings made for purposes of
applying the Guidelines, which influence the sentencing
judge's discretion in imposing an advisory Guidelines
sentence and do not result in imposition of a mandatory
minimum sentence, do not violate the rule in Alleyne."
United States v. Ramirez-Negron, 751 F.3d 42, 48 (1st Cir.
2014) (collecting cases); see also United States v. Smith, 751
F.3d 107, 117 (3d Cir. 2014) ("Alleyne did not curtail a
sentencing court's ability to find facts relevant in selecting a
sentence within the prescribed statutory range." (emphasis in
original)); United States v. Valdez, 739 F.3d 1052, 1054 (7th
Cir. 2014) (finding no error in a district court's factual
findings regarding drug quantity, which were used solely for
purposes of determining the defendant's Guidelines range,
20
where there was "no indication . . . that the district judge
thought her sentencing discretion was cabined by a higher
statutory minimum"); United States v. Johnson, 732 F.3d 577,
584 (6th Cir. 2013) (finding no Alleyne error where district
court's factual findings did not alter the prescribed statutory
penalties). We apply the same here.
The statutory sentencing range supported by the jury's
verdict as to both Freeman and Mark ranged from a period of
no incarceration to a maximum of 20 years' incarceration.
See 21 U.S.C. § 841(b)(1)(C) (no drug quantity finding).
Following that verdict, the District Court found that Freeman
was responsible for at least 50 kilograms of cocaine and that
Mark was responsible for 15 to 50 kilograms. These findings,
made for purposes of determining their applicable Guidelines
ranges, were permissible under Alleyne, so long as the
ultimate sentence imposed was within the statutorily
prescribed range. Mark was ultimately sentenced to a term of
210 months of imprisonment and Freeman was sentenced to
188 months. Both sentences are well within the twenty-year
statutory maximum term allowed under 21 U.S.C. §
841(b)(1)(C).
We note further that there is no indication in the record
that the District Court believed that its sentencing discretion
was confined to a higher statutory minimum given its drug
quantity findings. Freeman and Mark's alleged "exposure" to
a sentencing range with a low end of ten years of
incarceration bears little on our inquiry into what the District
Court actually relied upon in imposing their respective
sentences. See Ramirez-Negron, 751 F.3d at 51 ("The fact
that [a defendant's] sentence falls above [a mandatory
minimum] is insufficient to establish that the mandatory
minimum governed or that an Alleyne error occurred."). With
that said, our review of both sentencing transcripts reveals no
21
reliance by the District Court on any sentencing minimum
other than that prescribed by § 841(b)(1)(C), which is fully
supported by the jury's verdict. See, e.g., Transcript of
Proceedings at 19, United States v. Mark, No. 3:06-cr-00080-
CVG-RM (D.V.I. Mar. 25, 2011), ECF No. 1308 ("I think
with respect to Mr. Mark, it's clear, there's no finding beyond
a reasonable doubt that would require a minimum mandatory
. . . So I don't think that's even an issue."); see also Transcript
of Proceedings at 31, United States v. Mark, No. 3:06-cr-
00080-CVG-RM (D.V.I. Feb. 18, 2010), ECF No. 903
(Government stating to the District Court: "Given, however,
that [Freeman] has a statutory limitation of 0 to 20 years, we
would ask the Court to fashion a sentence between 188 and
240 months, as provided by law."). There is no Alleyne error
in Freeman's and Mark's cases.5
(2) The District Court's Findings of Fact
Along with their claims of error under Alleyne,
Freeman and Mark also challenge the adequacy of the District
Court's factual findings regarding the quantity of drugs
attributable to each of them. We review a district court's
findings of fact regarding quantity of drugs for clear error.
United States v. Gibbs, 190 F.3d 188, 204 (3d Cir. 1999).
The Federal Rules of Evidence do not apply in
5
At oral argument, the government conceded error on
the part of the District Court and agreed that both Freeman's
and Mark's cases should be remanded for resentencing. We
decline the government's invitation as to Freeman, as the
record sufficiently demonstrates that the District Court's
factual findings were made solely for the purpose of imposing
an advisory Guidelines sentence and not for the imposition of
any mandatory minimum.
22
sentencing proceedings. Fed. R. Evid. 1101(d)(3). "This
does not mean, however, that there is no threshold
requirement for admissibility." United States v. Miele, 989
F.2d 659, 663 (3d Cir. 1993). "[I]n order to avoid
'misinformation of constitutional magnitude,'" United States
v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (quoting United
States v. Sciarrino, 884 F.2d 95, 98 (3d Cir. 1996)), "we
require that 'information used as a basis for sentencing under
the Guidelines . . . have sufficient indicia of reliability to
support its probable accuracy.'" Id. (quoting Miele, 989 F.2d
at 663); see also U.S.S.G. § 6A1.3(a); United States v.
Yeaman, 194 F.3d 442, 463 (3d Cir. 1993). "Indicia of
reliability may come from, inter alia, the provision of facts
and details, corroboration by or consistency with other
evidence, or the opportunity for cross-examination." See
United States v. Smith, 674 F.3d 722, 732 (7th Cir. 2012)
(internal quotation marks and citations omitted).
We follow a number of other circuits in applying this
standard. See, e.g., United States v. Simmons, 964 F.2d 763
(8th Cir. 1992) (vacating defendant's sentence because the
drug quantity finding was based on testimony of a drug addict
with impaired memory); United States v. Shacklette, 921 F.2d
580 (5th Cir. 1991) (vacating sentence because district court
relied solely on probation's officer's conclusory statement as
to drug quantity involved); United States v. Cammisano, 917
F.2d 1057 (8th Cir. 1990) (vacating sentence because
uncorroborated testimony of FBI agents that defendant was
member of organized crime was not sufficiently reliable);
United States v. Robison, 904 F.2d 365 (6th Cir. 1990)
(vacating sentence because drug quantity estimates provided
by witness who was heavy drug user lacked sufficient indicia
of reliability)). In doing so, we apply this standard
rigorously. Miele, 989 F.2d at 664.
23
We address Freeman's and Mark's arguments of error
with respect to the District Court's factual findings separately.
a. Freeman
In support of his argument for resentencing, Freeman
analogizes his case to Miele, a case in which a defendant's
sentence was vacated and the case remanded for resentencing
based upon the district court's failure to meet the Guidelines'
sufficient indicia of reliability standard. 989 F.2d at 660.
There, the defendant was indicted for conspiracy to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Id.
at 661. At trial, the principal government witness was an
addict-informant who provided inconsistent testimony. Id. at
662. Without explanation, and over the defendant's
objections to the court's reliance on the addict-informant's
testimony in fashioning his sentence, the court concluded that
the defendant was responsible for "in excess of five kilos,"
and sentenced him accordingly. Id.
On appeal, the defendant argued that the district court's
drug quantity finding was not supported by a preponderance
of the evidence and, thus, his base offense level was
calculated incorrectly. Id. We agreed, noting "the numerous
inconsistencies in the record, the fact that the source of most
of the critical evidence was an addict-informant with an
impaired memory, and the lack of any findings by the district
court other than a single conclusory finding as to drug
quantity." Id. at 660. We also noted that there was no
indication in the record that the district court made any
findings to resolve the defendant's challenge to the drug
quantity estimate in his PSR. Id. at 665. We observed that
this failure alone was grounds for vacating the defendant's
sentence and remanding for further proceedings. Id.
Freeman argues that, similar to Miele, the District
24
Court failed to provide an explanation as to why Isaac's
testimony was sufficient for the quantity finding. Freeman
points out that he made the court aware of all the evidence
that he believed diminished Isaac as a reliable witness,
including his contention that Isaac's testimony failed to
establish: (1) that drug proceeds should have been forfeited;
(2) that five kilograms or more of cocaine was involved in the
conspiracy; and (3) the amount of cocaine attributable to
Freeman in his individual capacity. Freeman's arguments are
unavailing. Our review of the record reveals that the District
Court provided ample explanation at Freeman's sentencing
hearing as to the basis upon which it relied in attributing at
least 50 kilograms of cocaine to Freeman and that it was
justified in doing so:
The testimony, again, of Mr. Isaac
. . . indicates that there were a
number of deliveries in which Mr.
Isaac was involved in, which he
testified that Mr. Mark and Mr.
Freeman were involved, and those
deliveries certainly exceeded 50
kilograms of cocaine. . . . [T]he
Court agrees with the defense that
the jury could not agree on an
amount . . . But for Guideline
purposes, the Court has to
determine something that the jury
doesn't, and that is determine
whether there is a preponderance
of the evidence, not beyond a
reasonable doubt . . . Looking at
all the evidence, and indeed
looking at the evidence presented
25
by Mr. Isaac, and the
corroboration offered by the
couriers, who indeed corroborated
significant portions of his
testimony, they certainly testified
that they did many of the things
that he testified about. So the
Court finds that there is a
preponderance of the evidence to
make the finding that [Freeman] .
. . did, in fact, possess with intent
to – or conspire with intent to
distribute between – at least 50
kilograms of cocaine.
Transcript of Proceedings at 28-30, United States v. Mark,
No. 3:06-cr-00080-CVG-RM (D.V.I. Feb. 18, 2010), ECF
No. 724.
The District Court correctly observed that it was
required to adhere to a preponderance of the evidence
standard in making its determination, and then assessed all of
the evidence presented while applying that standard. In doing
so, it addressed the testimony of both Isaac and other drug
couriers. While the District Court does appear to rely heavily
on Isaac's testimony, it supports this reliance by noting that
his testimony was corroborated significantly by other drug
couriers. See Smith, 674 F.3d at 732 (noting that indicia of
reliability may come from both corroboration and consistency
with other evidence). Even without corroboration, we find no
error in the District Court's reliance on Isaac's testimony. See
Gibbs, 190 F.3d at 204 (recognizing that courts have
estimated drug quantities based on testimony by a co-
26
defendant (citing United States v. Maggard, 146 F.3d 843,
848 (8th Cir. 1998))). Unlike the witness in Miele, Isaac was
not an addict-informant, nor did he present himself in any
other way that would require additional caution in relying on
his testimony. In light of the record before us, we cannot say
that the District Court committed clear error in relying on
Isaac's testimony to determine a specific quantity of cocaine
for purposes of imposing sentence. We will, therefore, affirm
the District Court's determination of the quantity of drugs in
Freeman's case.6
b. Mark
The record is not as clear in Mark's case. At his
6
Freeman also argues that he has maintained an "as
applied" Sixth Amendment challenge, basing this challenge
upon the argument that his within-Guidelines sentence of 188
months would be substantively unreasonable in the absence
of the District Court's factual findings. We are unpersuaded
by this argument, as every court to consider the issue,
including our own, has rejected it. See Grier, 475 F.3d at
564-65 (observing that the only facts a jury must determine
are those "that increase the statutory maximum punishment");
accord United States v. Hernandez, 633 F.3d 370, 373-74
(5th Cir. 2011); United States v. Treadwell, 593 F.3d 990,
1017 (9th Cir. 2010); United States v. Ashqar, 582 F.3d 819,
824-25 (7th Cir. 2009); United States v. White, 551 F.3d 381,
386 (6th Cir. 2008); United States v. Benkahla, 530 F.3d 300,
312 (4th Cir. 2008); United States v. Redcorn, 528 F.3d 727,
745-46 (10th Cir. 2008). Because the District Court imposed
its sentence within the statutory maximum, and that statutory
maximum was fully supported by the jury's verdict, the
District Court's factual findings were proper. Freeman's Sixth
Amendment as-applied challenge fails.
27
October 2010 sentencing hearing, Mark raised several
objections to his amended PSR. As relevant to the instant
appeal, Mark objected to the quantity of cocaine attributed to
him and the resulting sentencing Guidelines range, given the
jury's inability to make a specific determination as to the
amount of cocaine involved in the conspiracy. After the
District Court heard argument from both parties regarding
Mark's role in the conspiracy and specific instances of trial
testimony related to drug quantity, it stated:
[T]he Court finds by a
preponderance of the evidence
that the appropriate level should
be 15 to 50 kilograms. That's
based on the information adduced
at trial, which would put it at a
base offense level of 34, instead
of 36. . . .[T]he Court is mindful
of relevant conduct and what it
can consider, and there is an
abundance of evidence that the
Court cannot ignore.
Transcript of Proceedings at 48, United States v. Mark, No.
3:06-cr-00080-CVG-RM (D.V.I. Mar. 25, 2011), ECF No.
1308. Aside from these conclusory statements, the District
Court offered no other explanation as to the basis for its
findings.
We have previously noted that "if a defendant disputes
a fact included in the presentence investigation report, the
sentencing court must either resolve that dispute or state that
it will not rely on the disputed fact." Miele, 989 F.2d at 665;
28
see also Fed. R. Crim. P. 32(i)(3)(B). As noted above, Mark's
counsel made a number of objections to the PSR, but the
District Court's short, conclusory response left much to be
desired regarding what testimony and/or evidence it relied
upon, or did not rely upon, in reaching its drug quantity
conclusion. This was error. See, e.g., United States v.
Claybrooks, 729 F.3d 699, 707 (7th Cir. 2013) (observing that
"a district court cannot simply select a number without at
least some description of the reliable evidence used to support
the findings and the method used to calculate it."). On this
record, we cannot conclude that the District Court's factual
findings regarding drug quantity at Mark's sentencing hearing
met the Guidelines' sufficient indicia of reliability standard.
See Miele, 989 F.2d at 668 ("[W]e require that the district
court articulate more than a conclusory finding [regarding
drug quantity]."). We have previously emphasized the
"particular scrutiny" that we must apply where the District
Court fails to set forth "factual findings relating to amounts of
drugs involved in illegal operations, [because] 'the quantity of
drugs attributed to the defendant usually will be the single
most important determinant of his or her sentence.'"
Brothers, 75 F.3d at 849 (quoting United States v. Collado,
975 F.2d 985, 995 (3d Cir. 1992)). We must, therefore,
vacate Mark's sentence and remand for further development
of the record and more detailed factfinding.
Given our conclusion that Mark's case should be
remanded for resentencing, we need not address his
remaining sentencing arguments on appeal. See United States
v. Merced, 603 F.3d 203, 214 (3d Cir. 2010) ("If the district
court commits procedural error, our preferred course is to
remand the case for re-sentencing, without going any
further."). Mark will have the opportunity to reassert his
arguments before the District Court at resentencing, at which
29
time the District Court must adequately explain its decision
accepting or rejecting his arguments in accordance with its
duties under United States v. Gunter, 462 F.3d 236 (3d Cir.
2006).
(3) Substantive Reasonableness
Freeman disputes only the District Court's factual
findings at his sentencing hearing and the record is lacking in
any other procedural errors. We, therefore, conclude that the
District Court's sentencing decision was procedurally
reasonable. Because the District Court's sentencing decision
passes the first stage of review, we must now turn to the
substantive reasonableness of the decision. Levinson, 543
F.3d at 195.
Here, the District Court found, by a preponderance of
the evidence, that Freeman was responsible for at least fifty
kilograms of cocaine. Freeman's base offense level was
changed to 36 to reflect those findings. Following an increase
of two points, to 38, for his role as an organizer in the
conspiracy, and with a criminal history category of I,
Freeman's resulting Guidelines range was changed to 235 to
293 months' imprisonment. Given the statutory maximum of
20 years for Freeman's conviction, the government requested,
and the Court applied, a Guidelines range of only 188 to 240
months' imprisonment. The Court then sentenced Freeman to
188 months' imprisonment.
Because there is no procedural error, and the District
Court imposed a within-Guidelines sentence, we may
presume the substantive reasonableness of its decision. See
Gall v. United States, 552 U.S. 38, 51 (2007) ("If the sentence
is within the Guidelines range, the appellate court may . .
apply a presumption of reasonableness."). We can ascertain
no abuse of discretion in the Guidelines-range sentence
30
imposed here and we certainly cannot say that "no reasonable
sentencing court would have imposed the same sentence on
[Freeman] for the reasons the [D]istrict [C]ourt provided."
See Tomko, 562 F.3d at 568. We therefore reject Freeman's
challenge to the substantive reasonableness of his sentence.
C. Freeman's Remaining Arguments
Freeman's remaining challenges are based upon: (1) an
alleged violation of his Sixth Amendment right of
confrontation; and (2) an alleged violation of his Sixth
Amendment right to present a defense. Both challenges stem
from allegations that the District Court imposed excessive
limitations on Freeman's cross-examination of Isaac, a
witness Freeman describes as critical to his conviction.
According to Freeman, had the District Court allowed him to
pursue his chosen line of questioning, he would have
demonstrated that Isaac was a biased, corrupt, and unreliable
witness, and that Isaac's participation in the scheme and
transportation of money to the Virgin Islands was unrelated to
the charged conspiracy.
We review a district court's limitation on cross-
examination for an abuse of discretion. United States v. Lore,
430 F.3d 190, 208 (3d Cir. 2005). We will generally not
disturb a district court's discretion in this regard "'unless no
reasonable person would adopt [its] view.'" United States v.
John-Baptiste, 747 F.3d 186, 211 (3d Cir. 2014) (quoting
Ansell v. Green Acres Contracting Co., 347 F.3d 515, 519 (3d
Cir. 2003)). If we determine that there was an abuse of
discretion, we then review the error to see if it was harmless.
United States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1991).
(1) Sixth Amendment Right of Confrontation
The Sixth Amendment "guarantees the right of an
accused in a criminal prosecution 'to be confronted with the
31
witnesses against him.'" Davis v. Alaska, 415 U.S. 308, 315
(1974). "The main and essential purpose of confrontation is
to secure for the opponent the opportunity of cross-
examination." Id. at 315-16; see also Chambers v.
Mississippi, 410 U.S. 284, 295 (1973) (observing that the
right of cross-examination is implicit in the constitutional
right of confrontation). This affords an opponent the
opportunity to test the believability and truthfulness of a
witness's testimony through the "direct and personal putting
of questions and obtaining [of] immediate answers." Davis,
415 U.S. at 316. Impeachment strategies have included the
introduction of evidence of a prior criminal conviction of the
witness or exposing a witness's motivation for testifying,
"directed toward revealing possible biases, prejudices, or
ulterior motives . . . as they may relate directly to issues or
personalities in the case at hand." Id.
The use of such strategies is always subject "to the
broad discretion of a trial judge to preclude repetitive and
unduly harassing interrogation." Id.; see also Wright v.
Vaughn, 473 F.3d 85, 93 (3d Cir. 2006). We have established
a two-part test to determine whether a judge's limitation on
cross-examination violates the Confrontation Clause:
First, we must determine whether
that ruling inhibited [a
defendant's] effective exercise of
her right to inquire into [the]
witness's "motivation in
testifying"; and second, if the
District Court's ruling did
significantly inhibit [the
defendant's] exercise of that right,
whether the constraints it imposed
on the scope of [the] cross-
32
examination fell within those
"reasonable limits" which a trial
court, in due exercise of its
discretion, has authority to
establish.
United States v. Silveus, 542 F.3d 993, 1006 (3d Cir. 2008)
(quoting United States v. Chandler, 326 F.3d 210, 219 (3d
Cir. 2003)).
In the instant case, Freeman's counsel attempted to
elicit the names of other individuals Isaac had previously sold
drugs for, including individuals not involved in the instant
conspiracy. In doing so, Freeman's counsel asked: "Other
than Mr. Springette, other than Elton Turnbull, other than any
of the defendants in this courtroom, were you selling cocaine
for anyone else in the entire universe?" See Transcript of
Proceedings at 310, United States v. Mark, No. 3:06-cr-
00080-CVG-RM (D.V.I. Mar. 25, 2011), ECF No. 590. The
government objected to that line of questioning and the
District Court sustained that objection, ruling that such
questioning violated Rule 608 of the Federal Rules of
33
Evidence.7 The District Court rejected the same line of
questioning the following day, noting to counsel that he had
previously asked Isaac if he had disclosed other illegal affairs
to law enforcement and that Isaac had already replied in the
affirmative. The Court informed counsel that it was not
saying that he could not go into details of criminal conduct
for which he had a good-faith basis that Isaac failed to
disclose, but rather that counsel must "play by the rules."
Based upon our review of the record, we think it clear
that Freeman's Sixth Amendment right of confrontation was
not violated here. Given counsel's attempt at eliciting
information based upon the witness's knowledge "in the
universe," we cannot conclude that the District Court abused
its discretion in limiting that overly broad line of questioning.
More importantly, the District Court did not entirely foreclose
counsel's ability to cross-examine Isaac. It merely explained
the basis upon which it sustained objections related to the
specific line of questioning and warned counsel to be mindful
of the Federal Rules. The record demonstrates that all
defense counsel, including Freeman's counsel both before and
after the instant objections, had ample opportunity to cross-
7
Rule 608(b) of the Federal Rules of Evidence
provides that, "specific instances of conduct of a witness,
other than conviction for a crime, may not be proved at trial
through extrinsic evidence for the purpose of attacking the
witness's character for truthfulness." United States v.
Williams, 464 F.3d 443, 448 (3d Cir. 2006). A court may, "at
its discretion[,] permit questioning about specific instances of
conduct on cross-examination, but only if the conduct is
probative of the witness's character for truthfulness or
untruthfulness." Id.; see also Fed. R. Evid. 608(b).
34
examine Isaac. We conclude that there was no abuse of
discretion here and will, therefore, reject Freeman's argument
that he was not afforded his Sixth Amendment right of
confrontation.8
(2) Sixth Amendment Right to Present a Defense
Freeman's second claim alleging violation of his Sixth
Amendment right to present a defense is based upon the same
facts set forth in his confrontation claim. The Supreme Court
has observed that "[a] person's right to . . . be heard in his
defense – a right to his day in court – are basic in our system
of jurisprudence." Washington v. Texas, 388 U.S. 14, 18
(1967) (citation and internal quotation marks omitted). "The
right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendant's version of the
facts as well as the prosecution's to the jury so it may decide
where the truth lies." Id. at 19. As we concluded above,
Freeman had ample opportunity to, and did, present his
defense. Freeman's claim, therefore, fails for the same
8
To support his claim that the District Court's actions
were improper, Freeman relies on United States v. Abel, 469
U.S. 45 (1984). We are unpersuaded by that case. First, Abel
considered whether certain testimony was improperly
admitted, whereas, here, Freeman argues that the District
Court should have admitted certain testimony. Second,
Freeman ignores the overarching takeaway from Abel that
"[a] district court is accorded a wide discretion in determining
the admissibility of evidence under the Federal Rules" and
"assessing the probative value of [evidence or testimony] . . .
and weighing any factors counseling against admissibility is a
matter first for the district court's sound judgment." Id. We
believe that our decision is in accord with those principles.
35
reasons his confrontation claim failed. Freeman's Sixth
Amendment right to present a defense was properly
preserved.
D. Mark's Remaining Arguments
Mark's remaining challenges are based upon: (1) an
alleged variance between his indictment and the evidence
presented at trial; and (2) alleged Brady9 violations. We will
address each of Mark's arguments in turn.
(1) Variance
Mark argues that his indictment alleged a single
conspiracy beginning in 1999 and running through October
2005 between himself and his co-defendants, but that the
government's evidence at trial proved multiple separate
conspiracies between different individuals and failed to
establish his involvement in 1999 and 2000. Mark claims that
these variances prejudiced his right "not to be tried en masse
for the conglomeration of distinct and separate offenses
committed by others." See Kotteakos v. United States, 328
U.S. 750, 775 (1946). Based upon those allegations, Mark
argues that the District Court should have granted his Rule 29
motion for a judgment of acquittal on Count I.
"A Rule 29 motion for judgment of acquittal obliges a
district court to 'review the record in the light more favorable
to the prosecution to determine whether any rational trier of
fact could have found proof of guilt beyond a reasonable
doubt based on the available evidence.'" Bobb, 471 F.3d at
494 (quoting United States v. Smith, 294 F.3d 473, 476 (3d
Cir. 2002)). We review de novo an appeal of a district court's
9
Brady v. Maryland, 373 U.S. 83 (1963) (Brady
material refers to discovery that is material and favorable to
the defense).
36
ruling on a "Rule 29 motion and independently appl[y] the
same standard as the District Court." Id.
"The issue of whether a single conspiracy or multiple
conspiracies exist is a fact question to be decided by a jury."
Id. (citing United States v. Perez, 280 F.3d 318, 344 (3d Cir.
2002)). "Where a single conspiracy is alleged in the
indictment, there is a variance if the evidence at trial proves
only the existence of multiple conspiracies." Id.
"Although its objectives may be numerous and diverse,
a single conspiracy exists if there is one overall agreement
among the parties to carry out those objectives." Id. at 494-
95 (citing Braverman v. United States, 317 U.S. 49, 53-54
(1942)). Bearing that in mind, "a single conspiracy is proved
when there is 'evidence of a large general scheme, and of aid
given by some conspirators to others in aid of that scheme.'"
Id. at 494 (quoting United States v. Reyes, 930 F.2d 310, 312-
13 (3d Cir. 1991)). "A single drug conspiracy 'may involve
numerous suppliers and distributors operating under the aegis
of a common core group.'" Id. (quoting United States v.
Quintero, 38 F.3d 1317, 1337 (3d Cir. 1994)). Regardless of
the circumstances, "the Government must demonstrate that
the defendant 'knew that he was part of a larger drug
operation.'" Id. (quoting Quintero, 28 F.3d at 1337).
The aforementioned principles find their roots in the
notion that all defendants have a substantial right "not to be
tried en masse for the conglomeration of distinct and separate
offenses committed by others . . . ." Kotteakos, 328 U.S. at
775. This notion was set forth in Kotteakos, a multi-
defendant conspiracy case, wherein the Supreme Court
examined a discrepancy between evidence presented at trial
and the allegations set forth in the indictment. Id. at 752. In
that case, thirty-two defendants were charged with
37
participating in a single general conspiracy to obtain
fraudulent government loans. Id. At trial, the government
proved the existence of at least eight conspiracies, rather than
the unitary scheme charged in the indictment. Id. at 755. The
evidence suggested that the defendants all transacted business
with the same key figure, but no other connection was ever
established between the defendants. Id. at 754. Despite this
inconsistency, a jury convicted the defendants, and the court
of appeals affirmed. Id. at 753.
On the defendants' appeal to the Supreme Court, the
government conceded the existence of variance, but claimed
that the defendants' rights were not prejudiced. Id. at 767.
The Supreme Court disagreed and reversed, noting first that
the defendants faced a prejudicial burden in preparing for trial
as they were forced to prepare defenses to numerous separate
schemes to which they had no connection. Id. at 766-67. The
Supreme Court then noted that the trial court also gave the
jury misleading instructions, which confused the proof
necessary to establish each defendant's participation in the
single conspiracy. Id. at 767. This accumulation of errors,
the Supreme Court concluded, was highly prejudicial to the
defendants' individual cases and likely "had [a] substantial
and injurious effect or influence on determining the jury's
verdict." Id. at 776.
We faced a similar issue in United States v. Camiel,
689 F.2d 31 (3d Cir. 1982). In that case, the defendants were
charged with participating in a single political patronage
scheme, designed to defraud the Commonwealth of
Pennsylvania through the use of the United States mails. Id.
At the close of the case, the trial judge entered a judgment of
acquittal in favor of the defendants, concluding that there was
a variance between the offenses charged in the indictment and
the proof offered at trial. Id. at 33. We affirmed the
38
judgment directing a verdict of acquittal because the
government presented its evidence in a confusing manner that
complicated the jury's task of determining the guilt of each
individual defendant. Id. at 38 (emphasis added). We
concluded that the variance was prejudicial because "the
volume and manner of presentation of the evidence created
the likelihood of spillover - i.e., that the jury might have been
unable to separate offenders and offenses and easily could
have transferred the guilt from one alleged co-schemer to
another." Id.
Mark argues that his case is similar to both Camiel and
Kotteakos. He contends that the government's evidence
established separate and distinct conspiracies as follows: (1)
Springette's organizational conspiracy from the 1980's until
1999, when he was arrested; (2) Turnbull's organizational
conspiracy while Springette was in jail; (3) Springette's
organizational conspiracy after his escape from jail in 2001
until his capture in 2002; (4) Isaac's organizational conspiracy
in North Carolina until his arrest in 1999; (5) Isaac's
organizational conspiracy after his release from prison in
2003; (6) Swan's organizational conspiracy in Baltimore,
Philadelphia, and New York; (7) a conspiracy involving an
individual named Meleek Sylvester and the Sun Shine Air
offices at the airport in St. Thomas; and (8) a conspiracy-
related contact at the airport in St. Thomas that pre-dated
Mark's involvement with Springette and Turnbull. He argues
that the government deliberately exposed the jury to all of the
other defendants' crimes in hopes that the jury would transfer
Springette's, Turnbull's, Isaac's, and Sylvester's admissions of
guilt to him.
We disagree. The government presented evidence
which, construed in its favor, demonstrated Mark's
involvement and leadership role in a single, although
39
extremely complex, drug trafficking conspiracy. The
evidence to which Mark points, combined with the
overwhelming testimony against him, illustrates the
connection between the different members of the conspiracy,
the different locations involved, the objective of the
conspiracy, and Mark's connection to all of it. Contrary to
Mark's assertions, the government's evidence permitted a
reasonable inference that each act or transaction that occurred
during the drug trafficking scheme was in support of the
ultimate goal of the drug trafficking organization - to import
large quantities of drugs into the United States. See Bobb,
471 F.3d at 494 (noting that the government "may bear [its]
burden entirely through circumstantial evidence." (citation
omitted)).
Mark's claim regarding the discrepancy in the start
date of his involvement with the conspiracy fails as well. He
alleges that Turnbull could not testify with certainty whether
Mark's involvement with the organization began in 1999 or
2000. However, the record demonstrates that Turnbull
testified to two different encounters between himself and
Mark, at least one of which was in 1999. The first encounter
concerned an exchange of approximately $40,000-$50,000
and the second related to discussions of drug-trafficking
routes. In that regard, Mark claims that the government failed
to prove that the money that was exchanged between himself
and Turnbull was related to the drug conspiracy charged or
that he even knew what the money was for. We reject that
argument as well, because a jury could reasonably infer that
the conduct at issue was both related to drugs and in
furtherance of the conspiracy charged, especially given the
rest of the evidence and testimony presented at trial. See,
e.g., United States v. Claxton, 685 F.3d 300, 311 n.17 (3d Cir.
2012) ("Our task . . . is simply to determine whether the jury
40
could have rationally concluded that [a defendant] knowingly
participated in the drug conspiracy . . . ."). Given Turnbull's
testimony, there was no discrepancy between the start time of
the conspiracy as charged and the evidence presented at trial.
Mark's variance argument fails.
(2) Brady Violations
Mark's second argument, regarding Brady violations,
sets forth that three years after his conviction, during the 2010
trial of several of his co-defendants and after all of the
remaining counts against him had been dismissed, he became
aware of numerous letters written by key witnesses who
testified against him at his 2007 trial. Mark specifically
points to: (1) letters by and between Springette and Turnbull
to Federal Agents and Attorneys (the "Turnbull and
Springette Letters"); and (2) letters by and between Turnbull
and Isaac (the "Isaac Letters"). Mark alleges that the
Turnbull and Springette Letters discuss the expectations and
agreements between the government and the witnesses, and
detail the consideration they would receive in exchange for
their testimony and cooperation. The content of those letters,
according to Mark, contradicts the witnesses' trial testimony.
The Isaac Letters to which Mark refers concern testimony by
Turnbull wherein he admitted that he communicated with
Isaac about putting a case together against someone. Mark
contends that those letters were never produced to any
defense counsel.
41
Alleged Brady violations often involve mixed
questions of fact and law. United States v. Perdomo, 929
F.2d 967, 969 (3d Cir. 1991). We, therefore, review a district
court's conclusions of law de novo, and review any findings
of fact for clear error. 10 Id.
Brady provides that "the suppression by the
prosecution of evidence favorable to an accused, upon request
by the defense, violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 373 U.S. 83, 87
(1963). A valid Brady claim, therefore, consists of three
elements: (1) "the prosecution must suppress or withhold
evidence, (2) which is favorable, and (3) material to the
defense." United States v. Perdomo, 929 F.2d 967, 970 (3d
10
Mark filed a motion for a new trial shortly before his
sentencing hearing, which was premised upon the
aforementioned Brady violations. There is no indication in
the record that the District Court ever ruled on Mark's motion
for a new trial. We note, however, that "the denial of a
pending motion may be implied by the entry of final
judgment." United States v. Jasso, 634 F.3d 305, 307 n.2 (5th
Cir. 2011) (citing Norman v. Apache Corp., 19 F.3d 1017,
1021 (5th Cir. 1994) ("The denial of a motion by the district
court, although not formally expressed, may be implied by the
entry of a final judgment or of an order inconsistent with the
granting of the relief sought by the motion.")); accord United
States v. Depew, 210 F.3d 1061, 1065 (9th Cir. 2000) ("We
treat the district court's failure to rule on Depew's motion as a
denial of it."). For purposes of this appeal, we deem the
District Court's failure to rule on Mark's motion as an implicit
denial of his motion for a new trial and will, therefore, review
this conclusion de novo.
42
Cir. 1991) (citing Moore v. Illinois, 408 U.S. 786, 794-95
(1972)). Once these elements have been met, a new trial is
justified. Brady, 373 U.S. at 87.
That same rule applies where, as in the instant case,
witness testimony is at issue. See id. at 154. "[W]hen the
'reliability of a given witness may well be determinative of
guilt or innocence,' nondisclosure of evidence affecting
credibility" will provide the requisite justification for a new
trial. Id. (quoting Napue v. Illinois, 360 U.S. 264, 269
(1959)). The Supreme Court has cautioned, however, that
"[w]e do not . . . automatically require a new trial whenever 'a
combing of the prosecutors' files after the trial has disclosed
evidence possibly useful to the defense but not likely to have
changed the verdict.'" Id. at 154 (quoting United States v.
Keogh, 391 F.2d 138, 148 (2d Cir. 1968)). A new trial is
warranted only where "the false testimony could . . . in any
reasonable likelihood have affected the judgment of the jury .
. . ." Id. (quoting Napue, 360 U.S. at 271).
Applying the aforementioned principles to the instant
case, we conclude that Mark's claim regarding the Turnbull
and Springette Letters fails at the first prong of the Brady
analysis. The Court has reviewed the letters at issue in the
43
record11 of one of his co-defendants, and it is apparent from
those documents that the Turnbull and Springette Letters
post-date Mark's 2007 trial. Because there is no record
evidence that the letters even existed at the time of Mark's
trial, he cannot, therefore, establish prejudice as a result of the
government's non-disclosure. We will reject mark's Brady
claim as to the Turnbull and Springette Letters.
Mark's Brady claim regarding the Isaac Letters fails on
the first prong of the analysis as well. The record
demonstrates that Mark's counsel was both in possession of,
and had knowledge of, the Isaac Letters in 2007, see
Transcript of Proceedings at 158-68, United States v. Mark,
No. 3:06-cr-00080-CVG-RM (D.V.I. Jan. 17, 2008), ECF No.
11
Mark's Brady claim hinges on the fact that, even to
this day, the government has failed to produce the Turnbull
and Springette Letters. However, Mark makes specific
reference to the content of the letters throughout the entirety
of his argument without explaining how he knows the content
of the letters or directing our attention to specific points in the
2010 trial of his co-defendants where the issue ultimately
arose. One could infer here that this means that he has seen
the documents and/or interacted with someone who had
access to them. Mark's failure to obtain or present those
materials to this Court, despite the overwhelming public
record filed in connection to this case, appears to be an
attempt to create a Brady issue by not obtaining and
presenting the documents for our review. Nevertheless, we
have reviewed the letters that are the subject of Mark's Brady
claim, see Notice of Filing by Craig Claxton, United States v.
Mark, No. 3:06-cr-00080-CVG-RM (D.V.I. July 26, 2010),
ECF No. 1154, and will take judicial notice for purposes of
our analysis. See Fed. R. Evid. 201(b)(2).
44
593, the same letters that he claims that he never received and
did not become aware of until after his co-defendants' trial in
2010.12 In that portion of the 2007 transcript, Attorney
Colon, Mark's counsel at trial, cross-examined Turnbull
regarding certain communications between himself and Isaac:
Ms. Colon: . . . Sir, isn't it also
true that not only did Glenson
Isaac send you letters, but that
you sent Glenson Isaac letters,
after your arrest?
Turnbull: That is correct.
Ms. Colon: And, in fact, you
communicated with Glenson on a
number of occasions, correct - - . .
. by writing?
Turnbull: On only two, maybe
three occasion [sic].
***
Ms. Colon: And, in fact, didn't
you also advise Mr. Isaac that you
12
Mark also claims that he never had the opportunity
to cross-examine Turnbull and Isaac about the content of the
Isaac Letters. As this analysis demonstrates, that contention
is simply false.
45
needed some assistance so you
could put together a case against
[someone] . . . Somebody you
called Mob?
Turnbull: Okay. That's correct.
Id. at 158-161. Those questions were clearly in reference to
the Isaac Letters. The government then objected to the
defense's failure to give the letters to the government:
Counsel for Government: I
learned Friday, the Friday before
trial, I talked to this witness for an
hour. He told me that he had
given some letters to Mr. Isaac,
which he knew had been given to
the defense. I've asked for those
letters repeatedly. We have never
got them. She has them and is
reading from them. . . . And I
have a right to see the documents,
if she's going to continue cross
examination, at least for the
purposes of redirect.
Id. at 162. In response to the government's objection,
Attorney Colon confirmed her possession of the letters,
responding: "[T]his is not my case-in-chief, and I have not
decided whether or not I'm going to use these letters in my
case-in-chief. It depends on what this witness testifies to on
46
cross-examination. There may not be any need to use those
letters in my case-in-chief." Id. at 163 (emphasis added).
Based upon the record before us, it appears that Mark's
counsel, but not the government, possessed the Isaac letters.
This severely undercuts Mark's contention that the
government suppressed or withheld evidence in violation of
Brady. In addition, because the record makes clear that Mark
was in possession of some of the Isaac Letters, but he fails to
produce any record evidence of them before this Court, we
can neither determine whether any additional letters exist, nor
can we analyze their content. Without such evidence, Mark
cannot demonstrate, beyond the point of mere speculation,
that additional letters exist beyond those he already had in his
possession in 2007. The mere possibility that additional
letters may exist, without more, is insufficient to establish the
existence of a Brady violation. United States v. Ramos, 27
F.3d 65, 71 (3d Cir. 1994) ("We think it unwise to infer the
existence of Brady material based upon speculation alone.").
Because Mark had the Isaac Letters in his possession at his
2007 trial, and he has not demonstrated, beyond mere
speculation, that any additional letters exist, we cannot
conclude that that the government has suppressed or withheld
any evidence relating to the Isaac Letters from the defense.
We will reject Mark's claim that a Brady violation has
occurred.
IV. CONCLUSION
For the foregoing reasons, we will affirm the District
Court's judgments of conviction and sentence as to Freeman.
We will affirm the District Court's judgment of conviction as
to Mark, but will vacate the judgment of sentence and remand
for resentencing for further development of the record.
47