U.S. v. Walker

• Decision Date: 13 September 2011
• Docket Number: 10–3210.,Nos. 10–3090,s. 10–3090
• Citation: 657 F.3d 160
• Parties: UNITED STATES of Americav.Barron WALKER, Appellant.United States of Americav.Barry Walker, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

657 F.3d 160

UNITED STATES of America

v.Barron WALKER, Appellant.United States of America

v.Barry Walker, Appellant.

Nos. 10–3090

10–3210.

United States Court of Appeals, Third Circuit.

Argued April 26, 2011.Opinion filed: Sept. 13, 2011.

James J. West, Esq. (Argued), Harrisburg, PA, for Appellant Barron Walker.Jason B. Duncan, Esq. (Argued), Stone, Duncan & Associates, Dillsburg, PA, for Appellant Barry Walker.Michael A. Consiglio, Esq. (Argued), Eric Pfisterer, Esq., Office of the United States Attorney, Harrisburg, PA, for Appellee.Before: SLOVITER and GREENAWAY, JR., Circuit Judges, and POLLAK, District Judge.^*

OPINION OF THE COURT

POLLAK, District Judge.

This consolidated criminal appeal arises from the conviction, in August 2008, of two brothers, Barron Walker and Barry Walker, for various federal drug trafficking, firearm, and robbery charges. The Walker brothers were each sentenced to prison terms of 47 1/2 years. They now appeal their convictions on several grounds.

I. BackgroundA. Indictment and Pre–Trial Motions

On June 27, 2007, defendants Barron Walker and Barry Walker were each charged in a four-count indictment for possession of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count I); criminal conspiracy, in violation of 21 U.S.C. § 846 (Count II); possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c) (Count III); and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g) (Count IV). The indictment alleged that these crimes occurred in Harrisburg, Pennsylvania, during the weeks before May 31, 2007.

In a series of superseding indictments, the government filed several additional charges against the Walkers.¹ Ultimately, both Walkers were charged with attempted robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (Count VI), and with using a firearm in furtherance of the robbery, in violation of 18 U.S.C. § 924(c) (Count V), for their involvement in the attempted robbery of a crack cocaine dealer at gunpoint on May 31, 2007. Barry Walker, who was ordered detained by the federal magistrate judge following the attempted robbery, was also charged with escaping from custody on July 10, 2007, in violation of 18 U.S.C. § 751(a) (Count VII). When Barry Walker was re-arrested two days later while sitting in a car, the arresting officers recovered crack cocaine from his person and the car's passenger admitted that Walker entered the vehicle to sell him crack cocaine. As a result, Barry Walker was charged with an additional count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a) (Count VIII).

On August 20, 2007, defendant Barron Walker filed a motion to sever for misjoinder based upon the escape charge and the additional drug charge against his brother Barry. The motion argued that joinder was improper under Federal Rule of Criminal Procedure 8(b), and also argued, in the alternative, that even if joinder were proper, the district court should sever the trials pursuant to Federal Rule of Criminal Procedure 14 to prevent prejudice to Barron. The district court denied the motion on May 30, 2008, finding that joinder was proper because “the events of May 31, 2007, in which both Barron and Barry are alleged to have participated, are properly seen as a logical predicate to Barry's alleged escape, and the escape, in turn, the culminating act ‘in the same series of acts.’ ” With respect to prejudice, the court held that the jury would be able to “compartmentalize the evidence that Barry allegedly escaped custody, and give each defendant his due.” The court also promised to instruct the jury to give separate consideration to each charge against each defendant, and later gave such an instruction at trial. Barron Walker renewed the motion to sever at trial, and the court denied it for the same reasons.

On August 6, 2008, five days before trial, the government disclosed to defense counsel its intention to prove the interstate commerce prong of the Hobbs Act robbery charge through the testimony of Chief John Goshert of the Dauphin County Criminal Investigation Division, a thirty-year veteran of cocaine trafficking investigations in Harrisburg and the region. The Walkers objected to the testimony based on the timing of the government's notice of its intent to call Goshert as an expert. The District Court rejected this argument on the ground that the Walkers had not requested expert notification pursuant to Rule 16 of the Federal Rules of Criminal Procedure. The Walkers also objected to Chief Goshert's testimony regarding the interstate transportation of cocaine on the ground that it is possible to manufacture cocaine synthetically. The District Court rejected this argument and permitted Chief Goshert to testify as an expert that in his experience cocaine is manufactured outside of Pennsylvania.

B. Jury Trial

A joint jury trial for both Walker brothers was held from August 11 to August 14, 2008.² To prove the charges that the Walkers were engaged in drug trafficking, conspiracy, and possession of a firearm in furtherance of drug trafficking during the weeks before May 31, 2007 (Counts I, II, and III), the government presented testimony from several witnesses, including (1) Jason McNeil, who pled guilty to participating in the Hobbs Act robbery with the Walkers; (2) Carmillia King, Barry Walker's girlfriend; and (3) Skylar Rhoades, a confidential informant.

Only McNeil and Rhoades presented testimony supporting the charge of possession of a firearm in furtherance of drug trafficking in the weeks before May 31, 2007 (Count III). First, McNeil testified that the Walkers were crack cocaine dealers, and that he had ridden along with them as they drove through Harrisburg and made five to ten sales to crack cocaine customers. He also testified that one of the Walkers possessed a firearm during these deliveries. While he believed that Barron Walker possessed the firearm, he admitted that he was not “positive” which brother possessed it.

Second, Skylar Rhoades, the confidential informant, testified that about two or three weeks before the May 31, 2007 robbery, he was with Jason McNeil's brother, John McNeil, when John purchased crack cocaine from Barron and Barry Walker. According to Rhoades, when the Walkers arrived at the meeting place and got out of their vehicle, he saw crack in the possession of Barron Walker. He also saw Barry Walker deliver crack cocaine to John McNeil, and observed a pistol on Barry Walker's hip. During cross-examination, the defense extensively questioned Rhoades concerning his motives to cooperate with the government and the veracity of his testimony. At the close of trial, the District Court gave a constructive possession instruction to the jury for the gun possession charge.

To prove the Hobbs Act attempted robbery charge (Count VI) and the use of a firearm in furtherance of a crime of violence charge (Count V), the government presented evidence ³ that on May 31, 2007, the Walkers, along with three friends—Jason McNeil, John McNeil, and James Leeks—agreed to find street-level drug traffickers to rob of their drugs and money. During the planning of the robbery, the Walkers supplied a firearm to Jason McNeil to be used during the robbery. The robbers then assembled in an alleyway and watched Edward Wright, a crack cocaine dealer, make a sale to a customer. John McNeil approached Wright with his gun drawn and attempted to rob him, but Wright took out his own firearm and fired. John and his companions then opened fire on Wright. John and Wright were both hit multiple times by gun shots; Wright survived, but John died at the scene.

To satisfy the Hobbs Act's requirement that the defendants' conduct “obstruct[ed], delay[ed] or affect[ed] commerce,” see 18 U.S.C. § 1951(a), the government presented testimony from two witnesses. The first witness was the robbery victim, Edward Wright. Wright, who was 17–years–old at the time of the robbery, testified at trial that he was only on the street for five minutes and had completed his very first drug sale. He also testified that he obtained his crack cocaine for $60 from someone with the street name “Ice” whom he met outside a bar a day or two before, and that he made about $40 or $50 by selling the cocaine he obtained from Ice. Wright also didn't know anything about Ice, including whether Ice lived in Harrisburg, and never saw him before or after the purchase. In addition, Wright testified that the Walkers and their accomplices did not succeed in actually taking his crack cocaine, money, or gun from him.

The second witness was Chief John Goshert, the government's expert on the interstate aspects of cocaine trafficking. At trial, Goshert testified that, during his thirty years in the drug investigation field, he was involved with approximately 100 cocaine investigations a month, spoke with drug traffickers on a daily basis, and regularly participated in investigations involving the importation of cocaine into the Harrisburg area. Goshert rendered the expert opinion that cocaine is manufactured outside of Pennsylvania and transported into the state. Goshert identified New York City as the primary source for cocaine in the Harrisburg area. He also testified that in his thirty years of experience, he had never heard of synthetic cocaine being manufactured inside Pennsylvania.

At the conclusion of the trial, the jury returned a verdict finding both defendants guilty of distributing crack cocaine (Count I), conspiring to distribute crack cocaine (Count II), possessing a firearm in furtherance of the distribution of crack cocaine (Count III), Hobbs Act robbery (Count VI), and possessing of a firearm in furtherance of a Hobbs Act robbery (Count V). The jury also found Barry Walker guilty on the two counts arising from his escape (Counts VII–VIII).⁴

C. Motion for a New Trial and Sentencing

A few weeks after trial, Assistant United...