U.S. v. Isaac

• Decision Date: 23 August 2011
• Docket Number: No. 08–4755.,08–4755.
• Parties: UNITED STATES of Americav.Prince ISAAC a/k/a Connect a/k/a Connetti a/k/a BooPrince Isaac, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

655 F.3d 148

UNITED STATES of America

v.Prince ISAAC a/k/a Connect a/k/a Connetti a/k/a BooPrince Isaac, Appellant.

No. 08–4755.

United States Court of Appeals, Third Circuit.

Argued April 28, 2011.Filed: Aug. 23, 2011.

Thomas A. Dreyer, Esq., (Argued), Chadds Ford, PA, for Appellant.Bernadette A. McKeon, Esq., Mark S. Miller, Esq., Robert Zauzmer, Esq., (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.Before: SLOVITER, GREENAWAY, JR. and ROTH, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Among the various issues appellant Prince Isaac raises in his challenge to his conviction and sentence is one that requires us to consider once again the parameters of a criminal defendant's right to represent himself. Prince Isaac was convicted by a jury of fifteen counts arising out of his role as the organizer of a drug trafficking ring in Lancaster, Pennsylvania. Isaac contends that he was denied the right to represent himself when he did not attend two sidebar conferences concerning jury instructions and that the District Court erroneously instructed the jury as to the continuing criminal enterprise (“CCE”) count, which carried a life sentence. Isaac also contends that the District Court made several sentencing errors. We address each argument in turn.¹

I.

On April 5, 2009, a grand jury issued a Second Superseding Indictment charging Isaac with 25 counts. At trial, the Government introduced evidence that Isaac and his half-brother Shamek Hynson founded, organized, and controlled a drug trafficking organization in Lancaster, Pennsylvania. Isaac and Hynson employed several others to help package and sell crack cocaine and heroin. As part of this organization, Isaac used straw purchasers to obtain guns, which he later sold. Guns were also used to protect the operation. The Government offered testimony of several coconspirators linking Isaac to several specific cocaine and heroin transactions. Based on this evidence, Isaac was ultimately convicted of fifteen of the charged counts.²

Each count and the corresponding sentence are as follows: life imprisonment for engaging in a CCE in violation of 21 U.S.C. § 848 (count 2), 360 months on each of four counts of distribution of heroin and/or crack in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (counts 3, 6, 9 and 11), 120 months on each of four counts of distribution of crack in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (counts 5, 7, 8, and 10), 480 months for employment of a minor to distribute drugs in violation of 21 U.S.C. § 861 (count 12), 480 months for distribution of crack within 1000 feet of a public park in violation of 21 U.S.C. § 860(a) (count 14), 240 months on each of two counts of tampering with a witness in violation of 18 U.S.C. § 1512(b)(1) & (2) (counts 23 and 24), and a 10 year mandatory minimum consecutive sentence for possession of a firearm in furtherance of drug distribution in violation of 18 U.S.C. 924(c) (count 17). All sentences were to run concurrently with the CCE life imprisonment count with the exception of count 17, possession of a firearm, which by statute must run consecutively to the life imprisonment. ³ See 18 U.S.C. § 924(c)(1)(D)(ii).

In reviewing the panoply of challenges raised by the defendant, many of which coalesce into the claim that a life sentence is a draconian penalty to impose on a young man who embarked on his criminal activity when he was 15 years old, it is necessary to keep in mind that Isaac formed and led a violent organization that spewed guns, heroin and crack onto the streets of Lancaster for years, shooting and intimidating the population as members of the organization proceeded through one criminal activity after another. We are not unaware that the sentence imposed was significant, particularly in light of Isaac's youth—Isaac was just twenty to twenty-one years old at the time of the offense conduct and twenty-four years old at sentencing.⁴ Thus, as we customarily do, we treat each of Isaac's arguments on appeal with great attention.

II.

A. Sixth Amendment Right to Self–Representation

Isaac contends that his Sixth Amendment right to self-representation was violated when, while proceeding pro se, he was not present at two sidebar conferences held during the jury charge. Isaac was represented by counsel until the close of the Government's case on the eighth day of trial when, after a lengthy colloquy with the District Judge, Isaac knowingly waived his right to counsel. Isaac's appointed trial counsel, Attorney Geoffrey Seay, was then appointed standby counsel. Isaac chose not to provide any evidence in his defense, and therefore represented himself only during closing and at sentencing. Ostensibly for security reasons, Isaac was not permitted to move about the courtroom during closing, although he was permitted to stand at his desk. Subsequently, a charging conference was held at which Isaac was permitted to and indeed did raise objections to the proposed charge, none of which are relevant on appeal. Thereafter, the Judge delivered the charge to the jury.

At the close of the instructions, the Judge asked the attorneys, including both Isaac and his standby counsel by name, whether there was anything they wanted to discuss at sidebar regarding the charge. Isaac did not indicate that he had an objection, but the prosecutor did. A sidebar was held. Attorney Seay attended, Isaac did not, but Isaac did not object to this arrangement. After the sidebar, the Judge gave a limiting instruction, directing the jury to consider testimony regarding Isaac's alleged possession of a firearm only for the purpose of determining whether the acts were in furtherance of the alleged conspiracy—and not for any other purpose. The Judge also reiterated the CCE charge. The Judge then held another brief sidebar, where nothing of substance was discussed, and then dismissed the jury for deliberations.

Based on these facts, Isaac contends that his inability to participate in the two sidebar conferences violated his right to self-representation. It is well settled that the Sixth Amendment guarantees a criminal defendant the right to proceed pro se equal to its guarantee of the right to counsel. Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In order for the right to self-representation to be effective, that “right must impose some limits on the extent of standby counsel's unsolicited participation.” McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). The Supreme Court has identified two principal limitations. “First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury.... Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself.” Id. at 178, 104 S.Ct. 944. The Supreme Court has cautioned that “[i]n measuring standby counsel's involvement against [these standards], it is important not to lose sight of the defendant's own conduct. A defendant can waive his Faretta rights. Participation by counsel with a pro se defendant's express approval is, of course, constitutionally unobjectionable.... [A] pro se defendant's solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably.” Id. at 182, 104 S.Ct. 944.

Other circuits have applied these principles in cases where standby counsel participates at sidebar in lieu of the pro se defendant. In Lefevre v. Cain, 586 F.3d 349, 355 (5th Cir.2009), the Fifth Circuit held that when a pro se defendant, who was shackled behind the desk, failed to object to standby counsel's participation in several sidebar conferences, there was no Faretta violation because the defendant acquiesced in standby counsel's participation in lieu of the defendant's own. The court reasoned that because the defendant “had the opportunity to object to his exclusion, his absence from the bench conferences was not involuntary.” Id. Similarly, in United States v. Mills, 895 F.2d 897, 904 (2d Cir.1990), the Second Circuit held that there was no substantial violation of Faretta in excluding the pro se defendant from the sidebar conferences before he voiced any objection to the procedure. We take guidance from these cases.⁵

Isaac contends that the earlier court-imposed limitation on his movement during his closing implicitly prevented or forbade him from attending the sidebar. This assertion is belied by the record. As noted, the Judge specifically asked Isaac by name if there was anything he wanted to discuss. Isaac raised no objection and acquiesced to standby counsel's participation in the conferences. Accordingly, Isaac waived his right to participate in the sidebar conferences; his constitutional right to proceed pro se was preserved.

B. CCE Jury Instruction

Isaac contends that the CCE jury instruction was erroneous. The defendant failed to object to the instruction and, thus, a new trial can only be granted if the mistake constituted plain error. See United States v. Gambone, 314 F.3d 163, 182 (3d Cir.2003). “[T]he relevant [plain error] inquiry ... is whether, in light of the evidence presented at trial, the failure to instruct had a prejudicial impact on the jury's deliberations.” United States v. Xavier, 2 F.3d 1281, 1287 (3d Cir.1993) (quotations omitted). An errant instruction constitutes plain error only if it produced a miscarriage of justice; that is, if the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. (quotations omitted).

In order to be convicted of CCE, a person must (1) be found to have violated a federal drug distribution felony, and (2) such violation must have been part of a continuing series of drug violations, which (A) was undertaken with five or more other persons whom the...