United States v. Freeman

• Decision Date: 18 August 2014
• Docket Number: Nos. 09–2166,10–4224.,s. 09–2166
• Citation: 763 F.3d 322
• Parties: UNITED STATES of America v. Henry FREEMAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

763 F.3d 322

UNITED STATES of America

v.Henry FREEMAN, Appellant.

Nos. 09–2166, 10–4224.

United States Court of Appeals,Third Circuit.

Argued Dec. 9, 2013.

Filed: Aug. 18, 2014.

Dale L. Smith, Esq., (Argued), New York, N.Y., for Appellant Henry Freeman.

Pamela L. Colon, Esq., (Argued), Christiansted, VI, for Appellant Gelean Mark.

Nelson L. Jones, Esq., (Argued), Delia L. Smith, Esq., Office of United States Attorney St. Thomas, VI, for Appellee.

Before: FISHER, COWEN and NYGAARD, Circuit Judges.

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 indictment ¹ 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 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 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

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

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 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 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...