United States v. Walker, 062613 FED3, 11-2727

Docket Nº:11-2727, 11-2845, 11-3087, 11-3088
Opinion Judge:NYGAARD, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. EDDIE LEE WALKER, a/k/a MO, a/k/a MIKE UNITED STATES OF AMERICA v. BRENT LAMAR HULL, UNITED STATES OF AMERICA v. CLYDE THOMAS HULL, a/k/a CLYDE HALL, a/k/a MS BANKS UNITED STATES OF AMERICA v. MATHIS MCMICKLE, a/k/a MATHIS AVERY, a/k/a C/O MAC
Judge Panel:BEFORE: JORDAN, GREENBERG, and NYGAARD, Circuit Judges
Case Date:June 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

EDDIE LEE WALKER, a/k/a MO, a/k/a MIKE

UNITED STATES OF AMERICA

v.

BRENT LAMAR HULL,

UNITED STATES OF AMERICA

v.

CLYDE THOMAS HULL, a/k/a CLYDE HALL, a/k/a MS BANKS

UNITED STATES OF AMERICA

v.

MATHIS MCMICKLE, a/k/a MATHIS AVERY, a/k/a C/O MAC

Nos. 11-2727, 11-2845, 11-3087, 11-3088

United States Court of Appeals, Third Circuit

June 26, 2013

NOT PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) APRIL 26, 2013.

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Nos. 2-07-cr-00038-002, 2-07-cr-00038-015, 2-07-cr-00038-016, and 2-07-cr-00038-018) District Judge: Honorable Michael M. Baylson.

BEFORE: JORDAN, GREENBERG, and NYGAARD, Circuit Judges

OPINION

NYGAARD, Circuit Judge.

I.

The Cut-Off drug organization operated within the Highland Gardens housing development in Chester, Pennsylvania from 2003 until 2009. The organization allegedly distributed more than five kilos of cocaine during that time period. As members of the Cut-Off drug organization, Appellants Eddie Lee Walker, Brent Hull, Clyde Hull and Mathis McMickle were charged together in a superseding indictment which alleged conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, and individually or together in more than thirty other drug-related substantive offenses. They were tried together before a jury in the Eastern District of Pennsylvania. All of the Appellants were acquitted of the conspiracy charge, but found guilty on the applicable substantive charges.

We consolidated the Appellants' individual appeals for disposition. Appellants challenge the sufficiency of the evidence used to convict them, the reasonableness of their sentences and various other issues. As discussed in more detail below, we find no merit in any of their arguments. Accordingly, we will affirm the criminal judgments entered against all Appellants.

II.

Having consolidated the appeals of these four Appellants, we review the issues raised by each of them individually.

A. Appellant Eddie Lee Walker.

Appellant Walker, identified by the indictment as the leader of the Cut-Off organization, was charged with, among other crimes, distribution and possession with intent to distribute cocaine base within one thousand feet of a playground, a violation of 21 U.S.C. § 860(a). Prior to trial, Walker moved to dismiss these charges, but the District Court denied the motion.

On appeal, Walker argues that there was insufficient evidence to convict him on any of the counts relating to the playground. Before we consider the merits of his claims, we need to take up the issue of Walker's preservation of these issues and our standard of review. The Government contends that Walker's motion made pursuant to Fed. R. Crim. P. 29(a) was particularly vague and, as such, did not preserve the playground issue for appeal. We disagree. Walker's counsel made his Rule 29(a) motion at the close of the Government's case and did not renew that motion at the close of all of the evidence. While defense counsel's oral motion ("On behalf of Mr. Walker, I'd move for Rule 29 on all counts") was not specific, we find it sufficient to preserve the challenge Walker now raises.

Rule 29 only requires that a defendant "move for judgment of acquittal, or renew such motion within seven days after a guilty verdict." Fed. R. Crim. P. 29(c)(1). The Rule does not indicate that a defendant's motion must be specific. Indeed, in most circuits, the rule is that a general challenge to the adequacy of the evidence preserves for de novo review "the full range of challenges, whether stated or unstated." United States v. Hammoude, 51 F.3d 288, 291 (D.C. Cir.), cert. denied, 515 U.S. 1128 (1995). Indeed, the District Court in this case acknowledged as much. In following-up on the Rule 29 motion, the District Court indicated to Walker's counsel that ". . . today's not the day for argument but, I . . . if you want to state the grounds for your [Rule 29] motion, you may do so. I'm not saying you have to . . . to preserve your client's rights in the event there's a conviction."1 We recognize that while the law requires counsel to make specific objections to evidence or instructions, the practice of allowing general Rule 29 objections is now well accepted. See United States v. Marston, 694 F.3d 131, 135 (1st Cir. 2012). Walker's challenge to the sufficiency of the evidence used to convict him of the playground counts was preserved. We will therefore apply a de novo review to the denial of his Rule 29 motion. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006).

When we review a jury verdict for sufficiency of the evidence, we consider the evidence in the light most favorable to the Government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt. United States v. Benjamin, 711 F.3d 371, 376 (3d Cir. 2013). 21 U.S.C. §§ 841(a) & 860(a) proscribe distributing or possessing with intent to distribute controlled substances within 1000 feet of a "playground." Similarly, §§ 856(a)(1) & 860(a) proscribe maintaining a place within 1000 feet of a "playground" for the purpose of distributing controlled substances. Subsection 860(e)(1) defines "playground" as an outdoor public facility "containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swing sets, and teeterboards."

The parties stipulated that Walker possessed and distributed cocaine base on the charged dates within 1000 feet of the Highland Gardens location. Walker and the Government agreed to leave the question of whether or not this location constituted a playground within the meaning of 21 U.S.C. § 860(e) to the jury. The jury determined that Highland Gardens was a playground within the meaning of the statute.

On appeal, Walker does not directly challenge the jury's determination. Instead, he indirectly attacks the finding by arguing that the testimony offered by the Government did not establish that the playground was in existence on the dates he allegedly distributed cocaine base. Walker labels the relevant testimony "too uncertain and vague."

As to the possession counts, Walker argues that the record fails to prove that the playground equipment was present when the Government took pictures of the location. We disagree on both counts. The record contains ample evidence to establish the existence of the playground at the time of the charged offenses and at the time the Government took the photographs.

(IMAGE OMITTED)

The Government introduced photographs of the Highland Gardens playground which clearly show the existence of qualifying recreational equipment. These photographs were backed-up by the testimony of a co-defendant, James Jones, who indicated that when Walker taught him how to cook cocaine base, he could see the playground through Walker's kitchen window. This is the same view depicted in Government Exhibit 62, above. Jones further testified that Walker's distribution of cocaine base continued up and until the time he was arrested.

Further, Special Agent Randy Updegraff testified that cocaine base was first sold in the area of the Highland Gardens playground in 2007 and that Walker "left the area" sometime in December of 2008. Police corporal John Gretsky also identified Government Exhibit 63, below, as a photograph that was a "fair and accurate representation of that playground prior to it being torn down in August or September of 2008." The testimony of Pennsylvania State Trooper John Cargan further supported the (Image Omitted) existence of the playground at the time of the charged offenses. Trooper Cargan had not only seen children using the playground during the time of Walker's drug activities, but also testified that it was located directly behind Walker's residence and that it existed as depicted in the photographs as recently as seven days prior to Walker's arrest. Lastly, a Chester Police lieutenant testified that the playground was in existence on July 17, 2007 when he recovered more than fifteen grams of cocaine base that was in Walker's possession from Walker's house.

We find ample evidence, given this testimony, for the jury to reasonably infer that the Highland Gardens playground was in existence at the time of the charged playground distribution and possession offenses. We will affirm Walker's conviction. He does not challenge his sentence.

B. Appellant Brent Lamar Hull

Appellant Brent Hull was a street-level drug dealer who got his product from Walker. He raises several issues on appeal, and we will begin with his suppression claims. Incident to his arrest, the Government seized 147.8 grams of cocaine base. Hull sought to suppress this evidence before trial, arguing that two separate seizures of the cocaine base violated his Fourth Amendment rights. The District Court held an evidentiary hearing, at which the seizing officer, Trooper Cargan, testified. Trooper Cargan's testimony, which the District Court found credible, can be quickly summarized. Trooper Cargan went to Brent Hull's residence to execute an arrest warrant. After knocking and hearing sounds inside, Cargan and accompanying officers forcibly entered the house. A naked female was apprehended and temporarily detained on the house's first floor. Hull was located on the...

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