United States v. Bostick

Citation791 F.3d 127
Decision Date26 June 2015
Docket Number05–3013.,05–3012,05–3011,05–3010,Nos. 04–3074,s. 04–3074
PartiesUNITED STATES of America, Appellee v. Bryan BOSTICK, Tommy Edelin, Earl Edelin, Shelton Marbury, and Henry Johnson, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Tony Axam, Jr., Assistant Federal Public Defender, Sebastian K.D. Graber, Joseph Virgilio, Jenifer Wicks, and Ernest W. McIntosh, Jr., all appointed by the court, argued the causes for appellants. With them on the joint briefs was A.J. Kramer, Federal Public Defender.

Suzanne C. Nyland, Special Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys.

Before: KAVANAUGH and WILKINS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge:

From 1985 to 1998, Tommy Edelin ran a massive drug distribution organization in Southeast Washington, D.C. The organization sold crack cocaine and other drugs, and committed numerous murders and other violent crimes. After an intensive law enforcement investigation of the organization, six defendants were indicted for violations of federal and D.C. law. After a lengthy and complicated trial, five of those defendantsTommy Edelin, Earl Edelin, Bryan Bostick, Henry Johnson, and Shelton Marbury—were convicted by a jury and sentenced to life imprisonment. They now appeal. (The sixth defendant was also convicted but died after trial.)

On appeal, the defendants contest their convictions by challenging, among other things, the sufficiency of the evidence, the jury instructions, various evidentiary rulings, and alleged juror misconduct. We affirm the judgments of conviction.

The defendants also challenge their sentences. They were sentenced to life imprisonment under the mandatory Sentencing Guidelines that were in effect before the Supreme Court's landmark Sixth Amendment decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Under Booker, the Guidelines are now advisory. Two of the defendants (Earl Edelin and Henry Johnson) raised Sixth Amendment objections in the District Court. Under Booker, they are entitled to vacatur of their sentences and resentencing under the advisory Sentencing Guidelines. Two of the defendants (Bryan Bostick and Shelton Marbury) did not raise the Sixth Amendment issue in the District Court. But on plain error review, they are still entitled to what our cases have termed a Booker remand of the record to determine whether the District Court would impose different sentences, more favorable to the defendants, under the advisory Guidelines. See United States v. Coles, 403 F.3d 764, 770 (D.C.Cir.2005). The sentence of the remaining defendant, Tommy Edelin, is affirmed. Based on his conviction for continuing criminal enterprise, which we affirm, Tommy Edelin received a statutorily mandated life sentence, which did not depend on the Sentencing Guidelines.Booker does not affect his sentence, as he has expressly conceded on appeal.

In their appeal, the defendants have raised a great number and variety of arguments. Those arguments are not amenable to easy categorization, so we will just address them one after the other.

I

We first provide the factual and procedural background. Because we are reviewing a jury verdict of guilt, we recount the evidence in the light most favorable to the Government.

In 1996, the Federal Bureau of Investigation and the D.C. Metropolitan Police Department started a joint investigation into the activities of Tommy Edelin's drug distribution organization. By that time, Tommy Edelin was leading a large-scale drug ring that distributed massive quantities of crack cocaine, powder cocaine, and heroin in the Washington, D.C., area.

During the 1980s and 1990s, Tommy Edelin purchased large quantities of drugs from wholesale suppliers in New York. In Washington, D.C., he provided the drugs to a group of mid-level distributors. Those mid-level distributors in turn sold the drugs to street-level dealers, who then sold to retail customers primarily in the Stanton Dwellings and Congress Park neighborhoods of Southeast Washington, D.C. Edelin distributed drugs through a credit arrangement called “fronting,” whereby Edelin fronted the drugs to his dealers, who paid him only after making their sales. Edelin used his profits to finance larger drug purchases and expand his distribution network.

In the course of their activities, Tommy Edelin and his associates committed numerous murders and shootings, often during clashes with rival drug crews. Those conflicts frequently followed a pattern: A dealer from a rival group would rob or attack one of Edelin's associates. Edelin would respond by ordering his associates to kill the attacker as well as members of the attacker's crew. Throughout the 1990s, several of Edelin's distributors and dealers, including the defendants here, participated in such violence.

Tommy Edelin's father is Earl Edelin. Earl Edelin served as a top lieutenant in his son's drug distribution network. The elder Edelin worked as a mid-level distributor, supplying his son's drugs to other mid-level and street-level dealers. In the 1990s, Earl Edelin worked at the Stanton Dwellings community recreation center. He gave members of the organization access to the recreation center, where they could cook cocaine powder into crack, sell drugs, and store guns, money, and drugs. He also taught his son's associates how to shoot to kill, and he provided weapons to them. Finally, Earl Edelin warned others in the organization about planned police raids and suspected confidential informants.

In the early 1990s, Bryan Bostick worked for Tommy Edelin as a mid-level distributor and hitman. Although Tommy Edelin initially declined to supply Bostick with drugs, he changed his mind after witnessing Bostick murder two people at a traffic light. Acting on Tommy Edelin's orders, Bostick also attacked several individuals in the course of a dispute with a rival drug crew.

Like Bostick, Henry Johnson was a mid-level distributor of crack cocaine and a hitman in Tommy Edelin's organization. During the 1990s, he purchased crack cocaine from other mid-level distributors, including Earl Edelin, and resold it to street-level dealers. In addition, Johnson committed at least one murder during a conflict with the Stanton Terrace Crew, a rival drug group, in 1996.

Shelton Marbury was a street-level dealer of crack cocaine. He operated at the lowest level of Tommy Edelin's distribution network. He committed two murders and participated in several shootings during the conflict with the Stanton Terrace Crew in 1996.

In 1996, the Stanton Terrace violence caught the attention of law enforcement and prompted the investigation into Tommy Edelin's organization. Two years later, Tommy Edelin was arrested after purchasing wholesale quantities of cocaine and heroin in a government sting operation.

Six defendants were later indicted in a 90–count indictment that charged offenses under federal law and the D.C.Code. The charges included conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (Count One), conspiracy to participate in a racketeer-influenced corrupt organization in violation of 18 U.S.C. § 1962(d) (Count Three), and numerous counts of murder, assault with intent to murder while armed, violent crime in aid of racketeering activity, and various firearm offenses. Tommy Edelin was also charged with engaging in a continuing criminal enterprise in violation of 21 U.S.C. §§ 848(a) and (b) (Count Two), unlawful use of a communication facility (Counts 86–88), and possession with intent to distribute one kilogram or more of heroin and five kilograms or more of cocaine (Counts 89–90). The prosecution's case featured extensive testimony from many cooperating witnesses who had been involved in Tommy Edelin's organization. The jury found the defendants guilty on numerous counts. Applying the then-mandatory Sentencing Guidelines, the District Court sentenced the defendants to life imprisonment. One of the defendants, Marwin Mosley, was convicted, but he died in 2006 and his appeal was subsequently dismissed.

II

The defendants raise several sufficiency of the evidence arguments. When considering a challenge to the sufficiency of the evidence, we uphold a guilty verdict where, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Gaskins, 690 F.3d 569, 576 (D.C.Cir.2012) (internal quotation marks omitted). We do not distinguish between direct and circumstantial evidence in making that assessment. Id. at 577. The “evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” United States v. Kwong–Wah, 924 F.2d 298, 302 (D.C.Cir.1991) (internal quotation marks omitted). Under that deferential standard of review, the evidence in this case easily suffices to sustain the guilty verdicts.

A

Count One of the indictment alleged that the defendants participated in a single drug conspiracy led by Tommy Edelin. All five defendants contend that the evidence at trial showed multiple conspiracies rather than the single drug conspiracy charged in Count One.

Whether the evidence proved a single conspiracy “is primarily a question of fact for the jury.” United States v. Childress, 58 F.3d 693, 709 (D.C.Cir.1995) (internal quotation marks omitted). On appellate review, the relevant question is therefore “whether there is sufficient evidence—when viewed in the light most favorable to the government—to support a jury finding of a single conspiracy agreed to” by all of the defendants. Id.

The Government's theory at trial was that Tommy Edelin...

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