617 Fed.Appx. 186 (3rd Cir. 2015), 13-3801, United States v. Moten

Docket Nº:13-3801
Citation:617 Fed.Appx. 186
Opinion Judge:JORDAN, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. RAMEL MOTEN, a/k/a SMIZ, a/k/a SMELLY Ramel Moten, Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Salvatore L. Astolfi, Esq., Katayoun M. Copeland, Esq., Emily McKillip, Esq., Kathy A. Stark, Esq., Office of United States Attorney, Philadelphia, PA. For RAMEL MOTEN, a/k/a SMIZ, a/k/a SMELLY, Defendant - Appellant: Thomas Bello, Esq., Valley ...
Judge Panel:Before: CHAGARES, JORDAN, and BARRY, Circuit Judges.
Case Date:May 11, 2015
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 186

617 Fed.Appx. 186 (3rd Cir. 2015)

UNITED STATES OF AMERICA

v.

RAMEL MOTEN, a/k/a SMIZ, a/k/a SMELLY Ramel Moten, Appellant

No. 13-3801

United States Court of Appeals, Third Circuit

May 11, 2015

Submitted Under Third Circuit L.A.R. 34.1(a) April 24, 2015

Page 187

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 10-cr-00620-01). District Judge: Hon. Lawrence F. Stengel.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Salvatore L. Astolfi, Esq., Katayoun M. Copeland, Esq., Emily McKillip, Esq., Kathy A. Stark, Esq., Office of United States Attorney, Philadelphia, PA.

For RAMEL MOTEN, a/k/a SMIZ, a/k/a SMELLY, Defendant - Appellant: Thomas Bello, Esq., Valley Forge, PA; Christopher G. Furlong, Esq., Media, PA.

Before: CHAGARES, JORDAN, and BARRY, Circuit Judges.

Page 188

OPINION[*]

JORDAN, Circuit Judge.

Ramel Moten appeals his conviction and sentence in the United States District Court for the Eastern District of Pennsylvania for thirty-one of the eighty-nine counts contained in a superseding indictment charging him and nineteen other defendants with various drug, firearm, racketeering, and assault offenses. The charges against Moten stemmed from his leadership of a large-scale drug trafficking enterprise. We reject the several grounds of alleged error that he raises, and we will affirm.

I. Background 1

A. The Harlem Boys Enterprise

Moten was a leader of a violent gang known as the " Harlem Boys" or " Young Hit Men" that sold narcotics for nine years in the Bartram Village Housing Development (" Bartram Village" ) located in Southwest Philadelphia. From about October 2001 through approximately October 6, 2010, the Harlem Boys controlled the illegal drug trade in Bartram Village, and, for most of that time, Terrance Hamm ran the street-level operations of the enterprise, which trafficked in crack cocaine, marijuana, and prescription drugs. Hamm would obtain bulk quantities of drugs from various sources of supply, prepare the drugs for sale, and distribute them himself and through a network of street-level drug dealers. He and his co-conspirators used their residences and other 3 houses or apartments located in or near Bartram Village to store, cook, package, and sell crack cocaine, and to store drug proceeds, firearms, and ammunition.

Around April 2007, after several search warrants were executed in Bartram Village, Hamm stepped back from his involvement in the organization's criminal activity. After that, Moten became the leader of the Harlem Boys. Hamm, however, later resumed his drug trafficking activities and continued to obtain, supply, and sell crack in and around Bartram Village.

Even before assuming a leadership role, Moten was a supplier and distributor of illegal narcotics and a gunman for the enterprise. He committed acts of violence with other members of the enterprise to protect their turf and frequently provided firearms to his co-conspirators for use in robberies, assaults, and other crimes. Merrell Hobbs, Reginald Stephens, Bryan Hill, Warren Stokes, Hikeem Torrence, Omar Roane, Damon Turner, Allen Parker, Tayale Shelton, Shyheem Davis, and Anthony Freeman, were also distributors of illegal narcotics and gunmen for the enterprise. Khalil Allen, Andre Tiller, Kareem Pittman, and Carol Miles were distributors of illegal narcotics. Terrance Hamm's brother Charles was a supplier of cocaine to the enterprise and a distributor of illegal narcotics; he also was responsible for the New Jersey drug sales of the enterprise. Kareem Pittman, Melika Parker, and Roneisha Scott maintained premises used by the enterprise to manufacture, package, store, and sell drugs, and to store guns.

Members of the enterprise committed, attempted, and threatened to commit acts of violence, including murder, assault, and robbery, to protect and expand the enterprise's

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operations. While some acts of violence occurred prior to April 2007, the violence intensified in the years following Terrance Hamm's reduced role and Moten's elevated role in the gang.

B. Procedural History

The first federal indictment was returned on September 22, 2010. It was revised in an eighty-nine-count superseding indictment returned on September 7, 2011, naming twenty defendants, including Moten. Thirteen of the defendants -- Roane, Turner, Shelton, Scott, Freeman, Miles, Tiller, Davis, Pittman, Melika Parker, Allen Parker, Charles Hamm, and Terrance Hamm -- subsequently pled guilty to numerous drug trafficking, firearms, and violent crime offenses. Additionally, some of those defendants pled guilty to conspiracy charges under the Racketeering Influenced and Corrupt Organizations Act (" RICO" ). The remaining defendants -- Moten, Hobbs, Stephens, Hill, Stokes, Torrence, and Allen -- proceeded to trial after the District Court denied several pretrial motions. On December 6, 2012, following a ten-week trial, those seven remaining defendants were convicted of many of the charges in the superseding indictment. All of the defendants, other than Allen, now appeal their convictions and sentences.2

Moten was initially charged in forty of the eighty-nine counts and was ultimately convicted on thirty-one of those counts. The District Court sentenced him to life imprisonment, plus a consecutive term of 130 years' imprisonment, and, as required by law, ten years' supervised release. The sentence also included various fines, assessments, and orders of forfeiture.

II. Discussion3

Moten raises six issues on appeal: (1) whether the District Court erred in denying his motion for a mistrial, in light of what he says was a variance between charges in the indictment and the evidence adduced at trial; (2) whether the District Court erred in allowing a case agent to testify as to the meaning of certain terms used in recorded conversations; (3) whether one of the prosecutors improperly vouched for the government's witnesses; (4) whether the District Court improperly imposed consecutive enhanced mandatory minimum sentences; (5) whether the District Court erred in refusing to suppress a firearm obtained during a warrantless search; and (6) whether the District Court was required to declare a mistrial because of the cumulative effect of the several alleged errors. We consider each issue in turn.

A. Mistrial Due to Variance4

Moten argues that, for two reasons, there was a variance between the charges in the indictment and the evidence adduced at trial. First, he says that a number of the overt acts described in count 1 were individual vendettas rather than acts

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in support of the charged RICO enterprise; and, second, he contends that, if any conspiracy was shown, it was not a single RICO conspiracy but rather a series of unrelated conspiracies. Neither claim bears scrutiny.

A variance occurs " where the charging terms of the indictment are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment." United States v. Daraio, 445 F.3d 253, 261 (3d Cir. 2006) (internal quotation marks and brackets omitted). To demonstrate reversible error from a variance, a defendant " must show (1) that there was a variance between the indictment and the proof adduced at trial and (2) that the variance prejudiced some substantial right." United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996). " A variance does not prejudice a defendant's substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, [or] (2) if the variance is not such that it will...

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