United States v. Mouzone

• Decision Date: 26 July 2012
• Docket Number: 10–4814.,Nos. 10–4781,s. 10–4781
• Citation: 687 F.3d 207
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tavon MOUZONE, a/k/a Batman, a/k/a Bloody Batman, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Anthony Fleming, a/k/a Mo Easy, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

687 F.3d 207

UNITED STATES of America, Plaintiff–Appellee,

v.Tavon MOUZONE, a/k/a Batman, a/k/a Bloody Batman, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Anthony Fleming, a/k/a Mo Easy, Defendant–Appellant.

Nos. 10–4781, 10–4814.

United States Court of Appeals, Fourth Circuit.

Argued: May 18, 2012.

Decided: July 26, 2012.

ARGUED:Steven Kiersh, Washington, D.C.; Robert Henry Waldman, Annapolis, Maryland, for Appellants. Michael Clayton Hanlon, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Christopher Mason, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Judge KEENAN and Judge WYNN joined.

OPINION

FLOYD, Circuit Judge:

In April 2010, the government jointly tried Anthony Fleming and Tavon Mouzone, members of the gang Tree Top Piru (TTP), in an eight-day jury trial.

The grand jury charged both Fleming and Mouzone with conspiracy to participate in a racketeering enterprise (RICO conspiracy), in violation of 18 U.S.C. § 1962(d). It additionally charged Fleming with committing two drug offenses: (1) conspiracy to distribute and possession with the intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 853, and (2) distribution of and possession with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851.

The jury convicted both Fleming and Mouzone of the RICO conspiracy charge, finding that distribution of crack cocaine, distribution of cocaine, and robbery were conspiracy objectives. It declined to find that murder or conspiracy to commit murder was a conspiracy objective. The jury also convicted Fleming on both drug charges.

On July 9, 2010, the district court sentenced Mouzone to 240 months' imprisonment, running concurrent with a previous Maryland state court sentence, and it sentenced Fleming to three concurrent sentences—240 months' imprisonment on the RICO conspiracy charge and life imprisonment on each drug-related charge.

Mouzone and Fleming aver several district court errors. We find no reversible error and therefore affirm.

I.

TTP is a subset of the Bloods gang that developed in the Maryland prison system. According to evidence adduced at trial, members of the gang are expected to “put in work” to advance within the gang. “Putting in work” includes earning revenue for the gang and entails illegal activities such as robbery, distribution of drugs, and killing.

The government introduced evidence that Fleming and Mouzone were members of TTP and participated in gang activities in the Essex area of Baltimore County, Maryland. As part of their membership, they participated in the gang's drug-trafficking and other illicit activities.

Specifically, the government introduced evidence regarding their participation in two murders. Lamont Jackson was killed in his home on North Streeper Street in Baltimore on November 17, 2006. At trial, TTP members Terrence Brady and Troy Smith testified for the government as to statements by Fleming that he shot and killed Jackson in retaliation for Jackson's testimony against another TTP member, Antwoine Gross (aka Shooter). Another TTP member, Kowan Brice, provided testimony that he drove Fleming and Mouzone to an area near Streeper Street in a Dodge Durango. Brice claimed that he “split off” from Fleming and Mouzone and went to a convenience store. After hearing noises he thought to be gunshots or fireworks, he returned to the Durango, where he met Fleming and Mouzone, and drove them back to Essex.

According to testimony presented at trial, Marquel Smith, a non-TTP member, began selling marijuana in Essex. When TTP decided to “make him pay” for selling drugs in their neighborhood, Mouzone indicated to TTP members that “it was time for them to put in some work.” Shortly thereafter, in December 2006, Mouzone provided two 9mm firearms to two members, who accompanied him to Smith's house and killed Smith. Brady testified that one of the firearms Mouzone provided was the same firearm he had seen Fleming holding at TTP's headquarters in November. Baltimore police eventually recovered one of the firearms when the gang sold it, but it never recovered the other firearm.

Police arrested Fleming on April 24, 2007, after Baltimore Police Detective Zachary Wein observed a plastic baggie with a white rock substance protruding from a cell phone case on Fleming's hip. Seizure of the cell phone case revealed that it contained two plastic bags of crack cocaine.

II.

The defendants put forth several challenges to the evidence introduced at trial. First, they assert that the government presented a drug analysis report and several 911 calls in contravention of the Confrontation Clause. Second, they urge that testimony provided by a firearm expert violated the district court's pretrial order on the permissible scope of that testimony and was unduly prejudicial.

Notably, both types of evidentiary rulings are subject to harmless error review. United States v. Banks, 482 F.3d 733, 741 (4th Cir.2007) ( “Evidentiary rulings are ‘subject to harmless error review,’ [and] a Confrontation Clause violation may be found harmless on appeal.” (citation omitted) (quoting United States v. Brooks, 111 F.3d 365, 371 (4th Cir.1997))). Under this standard, “to find a district court's error harmless, we need only be able to say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Brooks, 111 F.3d at 371 (quoting United States v. Heater, 63 F.3d 311, 325 (4th Cir.1995)) (internal quotation marks omitted).

A.

We review alleged Confrontation Clause violations de novo. United States v. Lighty, 616 F.3d 321, 376 (4th Cir.2010). The Confrontation Clause permits the admission of “[t]estimonial statements of witnesses absent from trial ... only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

1.

Fleming first challenges the district court's ruling permitting the government to present a drug analysis report regarding the bags of crack cocaine seized during his April 2007 arrest.

Forensic chemist Aisha Larkins performed an initial analysis of the type and weight of drugs seized. When the government learned that Larkins would be unable to testify at trial, however, it secured another chemist, Marta Iwashko, to perform a second analysis. Because Iwashko recorded the results of her analysis on the same ledger that Larkins used, the drug analysis report submitted into evidence at trial included both Iwashko's and Larkins's findings. Notably, however, Iwashko testified only as to her own findings and clarified that she (1) “conducted a totally separate and independent test from that which Ms. Larkins conducted” and (2) did not “use any notes or anything that Ms. Larkins had left.”

Larkins reported that the first package of cocaine base weighed 55.45 grams and that the second package weighed 19.08 grams, but Iwashko reported that the first package weighed 46.26 grams and that the second package weighed 15.99 grams. When questioned at trial by the government about the discordant weight calculations, Iwashko explained that the cocaine base likely was “a clumpy substance [and] slightly wet” when initially submitted for analysis, but that “[t]wo and a half years later, when [she] analyzed it, ... it was a lot [drier],” and thus, “the net weight [was] lighter.”

Fleming contends that the district court violated the Confrontation Clause because the drug analysis report admitted into evidence included both Iwashko's and Larkins's findings. Moreover, he avers that Iwashko acted simply as a “surrogate witness” and that he was unable to “meaningfully cross-examine [ ]” her.

The Supreme Court has held that when “a forensic laboratory report containing a testimonial certification [is introduced] for the purpose of proving a particular fact,” the Confrontation Clause requires that the accused “be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular [analyst].” Bullcoming v. New Mexico, –––U.S. ––––, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011). Introducing an analyst “who did not sign the certification or perform or observe the test reported in the certification” to testify as a surrogate for the primary analyst is insufficient and cannot satisfy the Confrontation Clause. Id.

Here, we assume arguendo that admission of Larkins's findings via the drug analysis report violated the Confrontation Clause. Nevertheless, we are confident that such admission did not substantially sway the jury's final judgment regarding Fleming's drug charges. Iwashko conducted an independent analysis of the seized drugs, and her weight determinations, albeit less than Larkins's, were well above the fifty gram threshold of which Fleming was convicted. Furthermore, because she conducted an analysis free from reliance on Larkins's research, she adequately answered the government's questions regarding her research and any evident discrepancies.

We find no merit to Fleming's contention that he was unable to cross-examine Iwashko in a meaningful manner. The record reveals that defense counsel focused its cross-examination on distinguishing Larkins's findings from Iwashko's and on clarifying that the report contained data for which Iwashko was not responsible. Iwashko answered all of these questions ably, and she made clear the independence of her findings and made no attempt to vouch for those of...