United States v. Baker, 080818 FED2, 16-2895

Docket Nº:16-2895
Opinion Judge:Debra Ann Livingston, Circuit Judge:
Party Name:United States of America Appellee, v. Raymond Baker Defendant-Appellant.
Attorney:For Appellee: Carina H. Schoenberger (Michael S. Barnett, on the brief), Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY. For Defendant-Appellant: Amy Adelson, Law Offices Of Amy Adelson LLC, New York, NY.
Judge Panel:Before: Livingston, Chin, Circuit Judges, and Koeltl, District Judge.
Case Date:August 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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United States of America Appellee,

v.

Raymond Baker Defendant-Appellant.

No. 16-2895

United States Court of Appeals, Second Circuit

August 8, 2018

Argued: November 6, 2017

For Appellee: Carina H. Schoenberger (Michael S. Barnett, on the brief), Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY.

For Defendant-Appellant: Amy Adelson, Law Offices Of Amy Adelson LLC, New York, NY.

Before: Livingston, Chin, Circuit Judges, and Koeltl, District Judge.[*]

Debra Ann Livingston, Circuit Judge:

Defendant-Appellant Raymond Baker appeals from an August 18, 2016 judgment of conviction in the United States District Court for the Northern District of New York (McAvoy, J.). Baker was convicted after a jury determined that he was guilty of participating in a conspiracy to distribute drugs. Baker raises two issues in this appeal from his judgment of conviction: First, that there was insufficient evidence to support his conviction; and second, that the district court erred in denying his request to conduct post-trial interviews of jurors. For the reasons set forth below, we conclude that Baker's arguments lack merit. Accordingly, we AFFIRM the judgment of the district court.

Defendant-Appellant Raymond Baker appeals from an August 18, 2016 judgment of conviction in the United States District Court for the Northern District of New York (McAvoy, J.). Baker was convicted after a jury determined that he was guilty of participating in a conspiracy to distribute and possess with intent to distribute more than 100 grams of heroin in violation of the Controlled Substances Act, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851. Baker raises two issues in this appeal from his judgment of conviction: First, that there was insufficient evidence to support his conviction; and second, that the district court erred in denying his request to conduct post-trial interviews of jurors. For the reasons set forth below, we conclude that Baker's arguments lack merit. Accordingly, we affirm the judgment of the district court.

BACKGROUND1

As relevant here, Baker was charged on November 5, 2015 in a single count superseding indictment with conspiring to distribute and possess with intent to distribute 100 grams or more of a mixture or substance containing heroin. The evidence presented at his trial established that between January and mid-June 2015, in Albany and Schenactady Counties, New York, Baker participated in this conspiracy with Kandi Kennedy, who testified. Over the course of the conspiracy, Kennedy sold heroin and also fentanyl to two confidential informants ("CI1" and "CI2") working for the United States Drug Enforcement Administration ("DEA") on five separate occasions; she attempted to sell heroin in a sixth transaction that ended in the arrests of both Kennedy and Baker. Kennedy testified that Baker, the father of her only child, was her supplier; that Baker personally handed the drugs over to her at her house in Schenectady; and that after each drug sale, she split the money proceeds with him, so that she kept 10% and Baker took the remaining 90%. The jury also heard evidence that the CIs purchased drugs from Kennedy for $110 or $115 per gram.

Kennedy testified that Baker often accompanied her when she sold heroin or fentanyl to CI1 and CI2. Four of the five completed transactions occurred in the parking lot of a shopping plaza with retail stores including T.J. Maxx and Target in Latham, New York ("Shopping Plaza"). When Baker accompanied her on a transaction, Baker and Kennedy would drive together in the same car from Kennedy's house to the Shopping Plaza. The drive took approximately 20 minutes. Upon arrival, Baker would exit the car first and wait inside the T.J. Maxx store. Meanwhile, Kennedy would meet CI1 and CI2 in the parking lot to complete the drug sale. After the sale, which usually lasted only five to ten minutes, Kennedy would meet Baker inside the T.J. Maxx before driving with him back to Kennedy's home.

In addition to Kennedy's testimony, the government presented other direct and circumstantial evidence of Baker's involvement in the conspiracy, including testimony from the two CIs and law enforcement agents, chemical forensic analyses of the controlled substances, recorded telephone calls and text messages between Kennedy and CI1 and also between Kennedy and Baker, and audio or video recordings of the drug transactions. Some of this corroborating evidence is described in more detail below.

I. The First Transaction

The first of the five completed drug transactions took place in January 2015. CI1 testified that on January 27, he called Kennedy and arranged to meet the next day so he could buy $500 worth of heroin from her. The next day, however, Kennedy told CI1 that she did not have the heroin ready because she fell asleep around 9:30 P.M. the night before, and missed a call from her supplier at approximately 10:30.[2] The only call that Kennedy received after 9:19 P.M. the night before was a call at 10:14 P.M. from Baker's number, which was forwarded to Kennedy's voicemail.

Although Kennedy was unable to supply the heroin on January 28, the transaction took place the next day, January 29, when Kennedy met with CI1 at approximately 12:00 P.M. or 1:00 P.M. and sold him 3.8 grams of a substance containing heroin.

II. The Second, Third, and Fourth Transactions

The next transactions followed a similar pattern and took place in February and March 2015. In a video-recorded transaction, for instance, CI1 and CI2 met with Kennedy at the Shopping Plaza on February 16 and purchased 13.9 grams of a substance containing heroin from her. CI1 then contacted Kennedy again on February 24 at about 4:37 P.M. and asked her to call her supplier to check the price of heroin: CI1: [H]ave your people see what's the best number they can do, cause after the next one it's gonna be at least 100.

. . .

Kennedy: I can check into it, but you know.

CI1: Alright, just give 'em a call real quick if they can do a little better. Hit me right back.

App. 88-90, 363-64. Eight minutes later, at 4:45 P.M., Kennedy called CI1 back to tell him that she was unable to reach her supplier: "I didn't get an answer, but . . . I'm sure that they're going to call me back as soon as possible." Id. at 90-91, 365-66. Kennedy's phone records, introduced at trial, reflect only one phone call during the eight-minute period in between her calls with CI1 at 4:37 P.M. and 4:45 P.M.-Kennedy called Baker's number at 4:39 P.M. About two weeks later, on March 6, Kennedy met with CI1 and CI2 at about 1:15 P.M. in the Shopping Plaza and sold them 26.2 grams of a substance containing heroin.

The next transaction was on March 26. Kennedy arrived at the Shopping Plaza at approximately 1:30 P.M. in a car registered to Baker. There, she met with CI1 and CI2 again and sold them 27.4 grams of a substance containing fentanyl. Less than ten minutes after Kennedy completed the sale, a law enforcement agent observed Baker and Kennedy exiting the T.J. Maxx together.

III. The Fifth Transaction

On May 11, 2015 at 11:06 A.M., CI1 called Kennedy again, this time seeking to purchase 64 grams of heroin.[3] They discussed meeting either later that day or the next day. Kennedy then texted Baker: "Call my [sic] ASAP . . . Tia called . . . Wants to see me ASAP."4 App. 541. Baker called Kennedy back six minutes later at 11:12 A.M. The jury heard a recording of this conversation, which was intercepted pursuant to court-ordered wiretap surveillance of Kennedy's telephone communications. During the conversation, Baker queried Kennedy as to when "Tia" needed "it" and affirmed that he could "make it happen." Id. at 176-79, 525-26. At 11:19 A.M., within a few minutes of this conversation, Kennedy called CI1 again to confirm when CI1 would be available to meet to buy heroin from her. CI1 explained that he was not available to meet that day.

The following Monday, May 18, CI1 and Kennedy connected by phone again, and CI1 confirmed that he wanted to meet on Wednesday "in between like 12 and 1ish," and that "the jacket is a size 56," meaning that he now wished to purchase 56 grams of heroin.5 Id. at 185, 530-31. Kennedy called CI1 the next day at 6:25 P.M. to tell him that instead of 56 grams, she would only be able to sell him 28 grams. The pair again used coded language, with Kennedy advising that "I'm only going to be able to get the pants, not the . . . jacket too, not until Friday at least," to which CI1 responded, "The pants is just a 28?"...

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