617 F.3d 233 (3rd Cir. 2010), 08-2330, United States v. Green

Docket Nº:08-2330.
Citation:617 F.3d 233
Opinion Judge:SMITH, Circuit Judge.
Party Name:UNITED STATES of America v. David GREEN, Appellant.
Attorney:Mark S. Greenberg (argued), LaCheen Wittels & Greenberg, Philadelphia, PA, for Appellant. Ralph J. Marra, Jr., George S. Leone, Jennifer H. Chin, Steven G. Sanders (argued), Office of United States Attorney, Newark, NJ, for Appellee.
Judge Panel:Before: AMBRO, SMITH, and ALDISERT, Circuit Judges.
Case Date:August 09, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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617 F.3d 233 (3rd Cir. 2010)

UNITED STATES of America

v.

David GREEN, Appellant.

No. 08-2330.

United States Court of Appeals, Third Circuit.

August 9, 2010

Argued March 10, 2010.

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[Copyrighted Material Omitted]

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Mark S. Greenberg (argued), LaCheen Wittels & Greenberg, Philadelphia, PA, for Appellant.

Ralph J. Marra, Jr., George S. Leone, Jennifer H. Chin, Steven G. Sanders (argued), Office of United States Attorney, Newark, NJ, for Appellee.

Before: AMBRO, SMITH, and ALDISERT, Circuit Judges.

OPINION

SMITH, Circuit Judge.

A jury convicted David Green of attempted possession with intent to distribute 500 grams or more of cocaine. Green appeals, arguing that the District Court erred by allowing the Government to introduce evidence that he threatened to kill an undercover police officer. We will affirm.

I.

In March of 2006, Green was arrested in New Jersey on state-law drug charges. This arrest came about in part through the efforts of an undercover officer identified in the record as " A.G.," " Gus," and " Gussy."

Three months later, Green and an acquaintance, Jacqueline Stahl, were in a vehicle together when they drove past A.G.'s home. Green told Stahl that he was going to blow up A.G. as retaliation for getting him arrested. He stated his desire to purchase dynamite and blasting caps, as well as cocaine. Alarmed, Stahl contacted law enforcement, reported what Green had said, and agreed to act as an informant.1 In the weeks that followed, Stahl, acting at the direction of the FBI, surreptitiously

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recorded a series of conversations with Green about the possibility of acquiring dynamite and cocaine through " Frankie," Stahl's boyfriend from Florida.

On July 1, 2006, Stahl and Green met at a convenience store in Mantua, New Jersey. Green confirmed his interest in buying dynamite and blasting caps. Stahl told Green that Frankie could get him six sticks of dynamite. The conversation then turned to the possibility of buying cocaine through a man Green knew in Miami. Stahl volunteered to drive to Florida to consummate the deal. Green agreed that Stahl should make the trip, because she was " middle class looking" and would not arouse suspicion. Later, the conversation returned to the subject of explosives. Green said, " look, serious ... let's do some dynamite." Stahl asked him what he planned to do with it, and told him he'd better not kill anyone she knew, or " go blow up that Gus's house." Green remained coy, saying only that he wanted to keep " something handy" because he intended to do " something." When Stahl pressed him, asking " who you got in mind?", Green responded, " you never know."

On July 7, Stahl and Green again discussed the possibility of buying cocaine and dynamite from Frankie. Stahl asked Green whether he needed small sticks of dynamite, such as would be used to blow up a car or a tree stump, or big sticks, to destroy a building. She again asked whether he intended to use it to blow up A.G.'s home. Green steadfastly refused to specify his target, but he did ask Stahl to tell him more about A.G. The remainder of the conversation revolved around the terms of the deal. Stahl told Green that Frankie would accept " fifteen hundred [dollars] and an ounce of coke for six little ones or 300 apiece for the small ones," or " 2 ounces of coke and a thousand cash" for " the big ones." Green told Stahl that these prices were too high. He was also skeptical that Frankie would have any use for cocaine from New Jersey, since the drug was abundant in Florida. Stahl promised to find out how much cash Frankie would require.

In the weeks that followed, Green's interest in buying dynamite appeared to wane. At one meeting, Green told Stahl that the dynamite was on the " back burner" because he was low on money. But he was still interested in cocaine, which he could sell for a hefty profit. On July 19, Stahl told Green that Frankie would sell him a kilogram of cocaine in exchange for $5,000 up front and $11,000 more within a month. She also told him that the total purchase price of $16,000 included " the sticks [of dynamite]." Green responded, " I ain't, forget the sticks. I'm talking about the powder." He also told Stahl that he did not " wanna keep talking about this thing" because he feared he was under surveillance. The next day, Green told Stahl that he would accept Frankie's terms, and described his plan to sell the cocaine through a friend in Pottstown, Pennsylvania. On July 28, Stahl told Green that Frankie's associates would be up from Florida the following weekend and that Green should have his $5,000 ready. Stahl reminded him that " the sticks are right in with the 11 grand.... Take it, book and then you can deal more with him later."

The sale was scheduled for August 3. Green had not pulled together the necessary $5,000, but he brought along $3,100 plus the title to a vehicle he intended to offer as collateral. Stahl picked up Green at his apartment and drove him to a motel, where they met " Mario," an FBI agent posing as Frankie's friend. After initial conversations inside the motel, Mario, Green, and Stahl went to Mario's vehicle.

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Mario opened the trunk and showed Green one bag containing dynamite and another containing cocaine. Green twice said, " alright," then went to retrieve Stahl's vehicle. As he walked to the car, however, he noticed police officers sitting in several of the vehicles in the parking lot. He decided to abandon the deal. He got into Stahl's car, stopped in front of Mario's car, pulled Stahl into the vehicle, and sped away. As they drove away, Green exclaimed to Stahl that there were police officers (" the man" ) in the parking lot. Stahl feigned ignorance, but Green angrily accused her of setting him up. He exclaimed: " Look, look. That's the fucking man.... bitch I ought a kill your fucking ass." Stahl denied any involvement with the police, but Green was not convinced. He ordered Stahl to stay away from him, drove her car back to his apartment, and dropped himself off. Stahl drove away unharmed.

Green was arrested four days later. He was indicted on one count of attempted possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 21 U.S.C. § 846. He was not charged in connection with his attempts to procure dynamite or his threat to kill A.G.

Before trial, the Government filed a motion in limine to admit recorded and testimonial evidence of Green's attempts to purchase dynamite and threats to kill A.G. Specifically, the Government's theory of admissibility was that Green's pursuit of dynamite constituted " intrinsic evidence" concerning the charged cocaine offense. This argument relied on United States v. Williams, 900 F.2d 823 (5th Cir.1990), and similar cases from other courts of appeals. In Williams, the Fifth Circuit stated that evidence of uncharged bad acts is " intrinsic" to the charged offense " when the evidence of the other act and the evidence of the crime charged are ‘ inextricably intertwined’ or both acts are part of a ‘ single criminal episode’ or the other acts were ‘ necessary preliminaries' to the crime charged." Id. at 825. The court distinguished such evidence from " extrinsic" evidence, which, unlike intrinsic evidence, must be analyzed under Rule 404(b). Id. The Government contended that Green's attempts to buy dynamite were inextricably intertwined with the charged cocaine offense because Green's drug crime " occurred concurrently with and arose out of [his] negotiations for explosives, and because the final price, quantity, and terms of the charged cocaine transaction were inextricably bound up in and influenced by Green's negotiations for explosives."

Green argued for exclusion of all references to the dynamite and why he wanted it. He argued that discussions about dynamite and killing A.G. were not " intrinsic" to the charged cocaine offense, and could easily be redacted from the recordings of his conversations with Stahl about cocaine. He also argued that even if the references to dynamite were intrinsic evidence, they should be excluded under Rule 403.

After a hearing, the District Court granted the Government's motion. The District Judge apparently accepted the Government's " intrinsic evidence" argument, because he did not conduct a Rule 404(b) analysis. He reasoned that " the dynamite explains how we got into a drug deal in the first place," and that " the Government certainly is entitled to give the background [and an] explanation [of] how this all came about, how they ended up together in this position to arrest [Green] under these charges." The District Judge also declined to exclude the Government's evidence under Rule 403. He recognized that the evidence was highly prejudicial,

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but offered to give a limiting instruction to the jury.

At trial, the jury heard recordings of the conversations between Stahl and Green recounted above. Stahl supplemented those recordings with testimony about the conversations and Green's attempts to procure dynamite and cocaine. She testified that she went to the FBI after she learned that " Green wanted to kill a couple officers and he was looking for ... some cocaine and dynamite." She also said that she agreed to cooperate with the subsequent investigation because " officers' lives were in danger." Shortly after that testimony, the jury heard the July 7 conversation in which Stahl questioned Green about his desire to " blow up" Gussy. The prosecutor asked who Gussy was. Stahl responded that Gussy was " an officer" and that Green " wanted to know where he lived ... because ... you know, he wanted to kill him. He wanted to murder him because he was busted."

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