U.S. v. Farrell

• Decision Date: 05 April 2019
• Docket Number: No. 17-4488,17-4488
• Citation: 921 F.3d 116
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. James Michael FARRELL, Defendant – Appellant. National Association of Criminal Defense Lawyers, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

921 F.3d 116

UNITED STATES of America, Plaintiff – Appellee,

v. James Michael FARRELL, Defendant – Appellant.National Association of Criminal Defense Lawyers, Amicus Supporting Appellant.

No. 17-4488

United States Court of Appeals, Fourth Circuit.

Argued: November 1, 2018

Decided: April 5, 2019

ARGUED: Barry Coburn, COBURN & GREENBAUM, PLLC, Washington, D.C., for Appellant. Sandra Wilkinson, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, Lynn Juan, Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. David B. Smith, Vice Chairperson, Elizabeth Franklin-Best, Vice Chairperson, Amicus Curiae Committee, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Washington, D.C.; Catherine E. Creely, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Amicus Curiae.

Before KING, FLOYD, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Floyd and Judge Thacker joined. Judge Thacker wrote a separate concurring opinion.

KING, Circuit Judge:

James Michael Farrell was convicted after an early 2017 jury trial in the District of Maryland for ten offenses of money laundering conspiracy, substantive money laundering, and related charges of obstruction of justice. Farrell, a former lawyer, was prosecuted for his role as the so-called "consigliere" of an elaborate multi-state marijuana trafficking organization. On appeal, Farrell contests several rulings made by the district court concerning evidence sufficiency, evidence admissibility, and jury instructions. As explained below, we reject his contentions of error and affirm the judgment.

I.

A.

In October 2015, the federal grand jury in Maryland indicted Farrell for twelve offenses. Count One alleged that, from 2009 to 2013, Farrell was involved in a money laundering conspiracy that conducted financial transactions relating to monetary proceeds generated by the unlawful activity of marijuana trafficking, which transactions were used to conceal and disguise the illegal source of such proceeds, in violation of 18 U.S.C. § 1956(h).¹ The indictment alleged that the monetary proceeds used in the conspiracy offense came from a marijuana trafficking organization led by a man named Matt Nicka, and which maintained a primary hub in Maryland (hereinafter, the "Nicka Organization" or the "Organization"). The Nicka Organization was responsible for distributing and selling thousands of pounds of marijuana in the eastern and southern United States, and it generated millions of dollars from those illicit transactions.

Counts Two, Three, Five, Six, Seven, and Twelve of the indictment made substantive allegations of money laundering against Farrell, pursuant to 18 U.S.C. § 1956(a)(1)(B)(i).² More specifically, Counts Two, Three, Five, and Six charged Farrell with writing checks on his law firm's bank account — wherein he had deposited funds received from Nicka and the Nicka Organization — to assist several of its drug dealers, or so-called "members," in obtaining legal services. In Counts Seven and Twelve, the indictment alleged that Farrell laundered drug trafficking proceeds by securing money orders that he used to support an imprisoned member of the Organization.

Counts Four, Nine, and Eleven charged Farrell with attempting to obstruct proceedings of the Drug Enforcement Administration (the "DEA") (Count Four), and also to obstruct proceedings in the federal court in Maryland (Counts Nine and Eleven), in contravention of 18 U.S.C. § 1512(c)(2).³ Pertinent to this appeal, Count Four alleged that Farrell corruptly attempted to influence a DEA administrative forfeiture proceeding involving a Nicka Organization drug dealer by, inter alia, advising the drug dealer not to disclose the source of certain property and by forging affidavits submitted to the DEA. Count Nine charged that Farrell had corruptly attempted to influence the federal prosecution of Organization drug dealers in Maryland by meeting with one such drug dealer — who was then represented by another lawyer — to discuss ongoing federal investigations and criminal prosecutions, by agreeing to assist with the drug dealer's legal expenses, and by directing the drug dealer "to meet with federal law enforcement officers and federal prosecutors ... but to only tell them what they already knew rather than sharing all information known to [that member] about the [Organization's] drug conspiracy and money laundering conspiracy." See J.A. 33, 35.⁴

Counts Eight and Ten alleged offenses of attempted witness tampering, in violation of 18 U.S.C. § 1512(b)(3).⁵ As relevant here, Count Eight charged that Farrell contravened § 1512(b)(3) by engaging in the activities that formed the bases for Count Nine, that is, by meeting with a Nicka Organization drug dealer he did not represent to discuss the drug dealer's criminal case, by agreeing to obtain funds for the drug dealer's legal fees, and by directing the drug dealer — in his cooperation with the federal authorities — to withhold relevant information. Count Eight further alleged that Farrell's conduct was an illegal effort to corruptly persuade the Organization drug dealer to withhold relevant information from the federal authorities that related to Organization members.

B.

During the post-indictment period leading to Farrell's trial, he moved the district court for suppression of his inculpatory recorded conversations with two Nicka Organization drug dealers: Jacob Harryman and Ryan Forman (hereinafter, the "Tapes"). In cooperating with federal agents, Harryman and Forman met separately with Farrell on several undercover occasions and taped their conversations with him. Farrell asserted in his suppression motion that the Tapes should be suppressed because they constituted attorney-client communications intercepted by the government in violation of the Sixth Amendment.⁶

On January 10, 2017 — the first day of trial — the district court orally denied Farrell's suppression motion. In explaining its bench ruling, the court questioned whether either Harryman or Forman — who were then cooperating witnesses of the government — had attorney-client relationships with Farrell when the Tapes were made. Assuming one or both of such relationships existed, however, the court recognized that the asserted privilege belongs to the clients, who could waive it and divulge otherwise privileged statements. The court then ruled that the federal agents were entitled to direct Harryman and Forman — in their cooperation with the federal authorities — to meet in undercover settings with Farrell and record their conversations without running afoul of the Sixth Amendment. After the court's denial of the suppression motion, the trial began.

C.

During Farrell's fourteen-day trial, the prosecution called more than thirty witnesses, and the defense called several of its own. The prosecution witnesses included state and federal law enforcement officers who had investigated the Nicka Organization, former Organization drug dealers who were cooperating with the government, lawyers who represented cooperating witnesses, and federal agents who had examined and analyzed Farrell's records.

The trial evidence established the sophisticated nature of the Nicka Organization, which involved at least fifteen coconspirators and collected millions of dollars — over a period of at least six years — from marijuana sales in multiple states. The evidence showed that Farrell functioned as an illegal "consigliere" of the Organization and as a "fixer" and adviser to its organizer and drug kingpin, Matt Nicka.⁷ From Farrell's role in the Organization, he received more than $ 100,000 from marijuana sales made by the Organization's drug dealers. He then utilized those drug proceeds to fund legal fees for the members and drug dealers and to support an incarcerated Organization member. In the course of receiving and distributing those unlawful proceeds, Farrell falsified his client transaction records and misrepresented the source of those funds. Although Farrell was involved in assisting Nicka and the Organization by seeking to maintain what he called a "collapsed defense," he was never a lawyer of record for Nicka or any Organization drug dealer in the Maryland prosecutions. See J.A. 756.

Farrell's statements on the Tapes constituted the most compelling and damning trial evidence against him.⁸ The Tapes established beyond peradventure that Farrell knew the details of the illicit drug trafficking business of the Nicka Organization. In fact, the Tapes revealed Farrell's specific knowledge and recognition that he was "at risk" because he was the consigliere of the Organization. See J.A. 3041-42. The Tapes also proved that Farrell sought to obstruct the federal investigations and prosecutions of Organization drug dealers by forging and filing affidavits, and by attempting to persuade the Organization's members and drug dealers to withhold relevant information from the federal authorities.⁹ We will summarize with some specificity the trial evidence, reciting it — as we must — in the light most favorable to the prosecution. See United States v. Hassan , 742 F.3d 104, 115 (4th Cir. 2014).

1.

In the initial aspect of the trial, the government called several law enforcement officers who had been involved in investigating the Nicka Organization and its illicit conduct over the years. The evidence revealed, inter alia, that a search warrant was executed in March 2009 at a suspected stash house in Baltimore that was being used by a major marijuana trafficking conspiracy. The stash house contained several large cardboard boxes of marijuana, ledgers reflecting more than fourteen million dollars in marijuana sales, thousands of dollars in cash, and approximately thirty cell phones, one of which listed Farrell as a contact. This drug trafficking evidence was seized, and the investigation confirmed that the stash house was used by...