United States v. Bailey
| Citation | 840 F.3d 99 |
| Decision Date | 18 October 2016 |
| Docket Number | No. 15-2275,No. 15-2128, No. 15-2276, No. 15-2246,15-2128 |
| Parties | United States of America v. Kareem Bailey, a/k/a Baby Boy Kareem Bailey, Appellant. United States of America v. Terry Davis, a/k/a Mace Terry Davis, Appellant. United States of America v. Lamar Macon, a/k/a Gunner, a/k/a Gunna, a/k/a Mar Lamar Macon, Appellant. United States of America v. Dominique Venable, a/k/a Poppi–What–You–Need Dominique Venable, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
John M. Holliday [Argued], Golden Crest Corporate Center, 2273 State Highway 33, Suite 207, Trenton, New Jersey 08690, Counsel for Appellant Kareem Bailey in No. 15–2128.
Gina A. Capuano [Argued], 200 Haddon Ave., Westmont, NJ 08180, Counsel for Appellant Terry Davis in No. 15–2246.
William R. Spade, Jr. [Argued], 1525 Locust Street, Suite 1400, Philadelphia, PA 19102, Counsel for Appellant Lamar Macon in No. 15–2275.
James R. Murphy [Argued], 947 Sate Road, Suite 205, Princeton, New Jersey 08540, Counsel for Appellant Dominique Venable in No. 15–2276.
Mark E. Coyne, Norman Gross [Argued], Office of United States Attorney, Camden Federal Building & Courthouse, 401 Market Street, Camden, NJ 08101, Counsel for Appellee.
Before: McKEE, Chief Judge,1 JORDAN and ROTH, Circuit Judges
This appeal arises from the convictions of four men belonging to a violent heroin trafficking organization that operated out of Atlantic City, New Jersey. Over the course of two and a half years, law enforcement officials documented the extensive reach of this organization and the crimes its members committed. Thirty-four people were charged with drug-trafficking related offenses as a result of the investigation. They include the four defendant/appellants here: Kareem Bailey, Terry Davis, Lamar Macon, and Dominique Venable.2 A jury convicted them of conspiracy to distribute and possess with intent to distribute heroin within 1,000 feet of a public housing complex, in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) & (b)(1)(A), and 21 U.S.C. § 860, use or possession of a firearm in furtherance of that drug trafficking offense, in violation of 21 U.S.C. § 924(c)(1)(A)(i), (ii), (iii) and 18 U.S.C. § 2, and use of a communication facility to further a drug conspiracy, in violation of 21 U.S.C. § 843(b). The jury also convicted Terry Davis of possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
On appeal, Bailey, Davis, Macon, and Venable make four principal arguments for reversal. They contend that: (1) the evidence presented at trial was insufficient to support their convictions; (2) the district court should have suppressed the government's wiretapping evidence; (3) the district court violated Federal Rules of Evidence 404(b) and 403 when it admitted certain evidence regarding a drug-trafficking-related murder and a drug-trafficking-related assault; and (4) the district court abused its discretion when it declined to order a mistrial on two different grounds. Bailey further contends that the district court abused its discretion in admitting evidence of his past convictions for possession of cocaine with intent to distribute and possession of a firearm. The defendants' first, second, and fourth arguments are entirely without merit. However, their Rule 403 claim merits serious consideration. As we will explain, we agree that the district court violated Rule 403 when it admitted certain evidence. Nonetheless, given the overwhelming amount of other evidence of guilt, we hold that the error was harmless. Accordingly, we will affirm the convictions.
Bailey, Davis, Macon, and Venable were associates in a violent heroin-trafficking organization that operated out of the Stanley Holmes Public Housing Village in Atlantic City, New Jersey. This organization was led by Mykal Derry and known as the Derry Drug Trafficking Organization (DDTO). Derry purchased large quantities of heroin from three New Jersey suppliers and distributed the heroin in “bundles” (ten wax envelopes of heroin) and “bricks” (five bundles) to members of the DDTO. These DDTO associates then sold the heroin in and around the public housing complex. Investigators estimated that Derry received 717 bricks of heroin for distribution from October 2012 to February 2013. The DDTO maintained control of its drug-trafficking turf by assaulting, robbing, and killing rival drug dealers.
In July of 2010, the FBI began investigating the DDTO in conjunction with state and local law enforcement agencies. At first, confidential informants and undercover police officers made a series of controlled buys that were captured on audio and video recordings. By October, officers had identified Mykal Derry as the leader of the organization. For the next two years, police relied on confidential informants, controlled buys, physical surveillance, phone records, pen registers, and intercepted prison phone calls placed from the Atlantic County Jail to map the scope of the DDTO's operations.
However, the investigators eventually found these techniques inadequate to uncover the full reach of the conspiracy. In an attempt to remedy this, the government secured authorization for a wiretap from the United States District Court for the District of New Jersey in October 2012. Wiretaps on the phones of Mykal Derry and one of his suppliers, Tyrone Ellis, revealed many DDTO co-conspirators that police had previously been unaware of as well as new evidence regarding the organization's criminal activities. Overall, law enforcement intercepted and recorded approximately 6,700 pertinent calls over the course of their investigation.
In addition to these wiretaps, investigators obtained critical information from Kareem Young, a member of the DDTO. He eventually “flipped” and became a government informant. Prior to cooperating with the government, Young sold drugs for Derry, obtaining them directly from him. Young explained the inner workings of the DDTO to investigators, and he described the defendants' roles in the organization.
A federal grand jury returned a fifteen-count indictment against fifteen defendants, including the four in this consolidated appeal. Thereafter, the grand jury returned a 125–count superseding indictment against nineteen defendants, including these four defendants. The issues raised in this appeal pertain to the following charges in that indictment: (1) Conspiracy to Distribute and Possess with Intent to Distribute Heroin within 1000 Feet of a Public Housing Complex, in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) & (b)(1)(A), and 21 U.S.C. § 860 (drug conspiracy count); (2) Use or Possession of a Firearm in Furtherance of a Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (firearm count); (3) Use of a Communication Facility to Further a Drug Conspiracy, in violation of 21 U.S.C. § 843(b) (phone count); and (4) Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (). While all four defendants were charged in the first three of those counts, only Terry Davis was charged in the fourth. The indictment alleged that the charged conspiracy lasted “[f]rom in or about October 2010 through in or about March 2013.”3
Given logistical hurdles arising from the number of individuals indicted, the district court established three groups of defendants who would be tried separately. The four defendants here were among those joined in the first group to be tried. All four were subsequently convicted on all counts charged against them, except one phone count on which Bailey was acquitted. Davis received an aggregate sentence of 240 months' imprisonment in accordance with the applicable mandatory minimums. Venable was sentenced to 240 months; Bailey to 241 months; and Macon to 240 months.
Defendants now raise overlapping and individual challenges to their convictions. They raise four principal arguments. First, they contend that the government did not present sufficient evidence to support the jury's verdict. Second, Bailey, Venable, and Macon argue that the district court should have suppressed the evidence obtained through the wiretaps. Third, they claim that the district court violated Federal Rules of Evidence 404(b) and 403 when it permitted the government to present evidence of a murder committed by Mykal Derry's brother, Malik Derry. Bailey and Macon also argue that the district court violated Rule 403 when it permitted the government to present evidence of another drug-trafficking-related assault that DDTO members carried out. Bailey further appeals the district court's admission of his prior convictions under Rules 404(b) and 403. Fourth and finally, Venable, Bailey, and Macon claim there are three different grounds for a mistrial that were erroneously denied. For the reasons that follow, we hold that only one of the defendants' evidentiary challenges has any merit. Nonetheless, the resulting error was harmless.4
All four defendants contend that the evidence presented at trial was insufficient to support their convictions for membership in a heroin-trafficking conspiracy and use (or possession) of a firearm in furtherance of that drug trafficking conspiracy.5 To prove they were members of a drug-trafficking conspiracy in violation of 21 U.S.C. § 846, the government must establish: (1) a shared unity of purpose between the alleged conspirators, (2) an intent to achieve a common goal, and (3) an agreement to work together toward that goal.6 We can infer such a conspiracy when evidence of related facts and circumstances make clear that the defendants could not have carried out their activities “ ‘except as the result of a preconceived scheme or common understanding.’ ”7 The government “need not...
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