United States v. Bush
| Decision Date | 06 July 2018 |
| Docket Number | No. 16-2778,No. 16-3360,16-2778,16-3360 |
| Parties | UNITED STATES OF AMERICA, v. RICHARD BUSH, Appellant UNITED STATES OF AMERICA, v. MAYANK MISHRA, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court for the Western District of Pennsylvania
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 12, 2018 Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge.*
Richard Bush and Mayank Mishra appeal from their convictions after a joint jury trial arising out of their participation in a conspiracy to sell heroin. Mishra also appeals from his sentence. Bush was convicted of conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 849; possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g); and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). He was sentenced to 300 months of imprisonment. Mishra was convicted of conspiracy to distribute heroin in violation of 21 U.S.C. § 846, and sentenced to 151 months of imprisonment. They each raise numerous challenges. As explained below, we find their arguments without merit, and so we will affirm.
We write solely for the parties and therefore recite only the facts necessary to our disposition. Through undercover agents and wiretaps, investigators determined that Bushwas a drug maker who was part of a larger heroin distribution network of gang members in Pittsburgh. Bush procured his drug-making material (other than the heroin itself) from Mishra. Mishra owned Rock America, a store that ostensibly sold concert "swag," but whose real profit came from the sale of stamp bags, diluents (cutting agents), and other drug paraphernalia to Pittsburgh drug dealers. Mishra did not display or advertise these stamp bags or diluents in his store, but instead kept them behind the counter, in a back room, or at home. Bush placed monthly bulk orders for diluents and cases of distinctively marked and colored stamp bags with Mishra. Investigators intercepted calls between Bush and Mishra, in which they discussed Bush's heroin recipe. Mishra would extend Bush credit when he was short on cash, and permitted Bush to return unused stamp bags in exchange for other stamp bags.
Investigators obtained a wiretap of the phone of Sherron Whitehead, a mid-level street heroin distributor, who obtained his heroin from Bush. They then tapped Bush's cellphone and set up a pole camera overlooking Bush's home. In these conversations, Bush described his full-time work in his heroin-processing lab and how even breathing in the fumes there made him high. Bush also repeatedly referenced his "dude," "man," or "guy" who advanced the money to make purchases from Mishra, who warned him that he thought Mishra's shop had been raided, and with whom Bush coordinated the purchase of distinctively marked stamp bags. Investigators determined that this "dude" was Willis Wheeler. Through the pole camera footage, officers identified Wheeler, who would text Bush that he was on his way over, arrive at Bush's home carrying bags of materials, use a remote in his car to open the garage door, and often stay for seven or more hours.Conversations between Bush and his wife indicated that Wheeler was trusted to be in the basement heroin lab even when Bush was not home.
Police executed simultaneous search warrants on Bush and Wheeler (as well as their homes and cars) on March 14, 2012. Given the investigators' belief that Wheeler had in the past spotted their surveillance, they followed Wheeler's car by airplane to ascertain where he stopped before going to Bush's. Wheeler led investigators to an apartment at 500 Mills Avenue, where he stopped before continuing towards Bush's, at which point officers arrested him. The search of his car turned up 186 grams of 86% pure heroin in his glove compartment; $28,000 in cash, rubber bands, bill-wraps for thousand-dollar bills, and a loaded handgun were found at his home. After obtaining a warrant, police searched the Mills Avenue apartment and found drug paraphernalia and a locked safe containing approximately 760 grams of heroin.
During the simultaneous search of Bush's home, police discovered Bush's heroin lab, guns, drug paraphernalia, and a large amount of heroin of varying purities (that is, at different stages of the cutting or diluting process, in preparation for sale). Specifically, officers discovered 287 grams of unbagged 43% pure heroin, 761 grams of unbagged 20.5% pure heroin, and nearly 8,900 stamp bags containing between 26% and 28% pure heroin. Officers also found six unregistered firearms, including four handguns, a sawed-off shotgun, and a rifle. After being read his rights under Miranda v. Arizona, 384 U.S. 436, 440 (1966), Bush waived them and confessed to having twelve bags of heroin in his underwear, that everything in the house belonged to him, and that he kept the guns forprotection against people trying to kill him. Responding to a remark from one of the officers, Bush stated: "I'm a criminal." Appendix ("App.") 1305-06.
Nearly a year later, on February 26, 2013, officers searched Rock America and Mishra's home. Officers found $907,000 in cash, 45 cases of stamp bags, as well as diluents and other drug paraphernalia. More stamp bags, diluents, and paraphernalia were found at Rock America and at Mishra's home. These included many stamp bags containing the same distinctive marking as those Bush had ordered from Mishra over the phone, including several identical to those that had been seized from Bush's house.
A superseding indictment was issued in March 2013 against Bush, Mishra, and Wheeler. As relevant here, Count One charged all three with conspiracy to distribute one kilogram or more of heroin from August 2011 to March 2012, in violation of 21 U.S.C. § 846. Count Two charged Bush with possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Count Four charged Bush with possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). Count Five charged Bush with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Count Six charged Bush with possession of a sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). The other counts were against only Wheeler. All three defendants pleaded not guilty. Mishra was later indicted on separate felony charges which remain pending in the District Court.
Mishra moved for a severance in April 2014, but the District Court denied that motion and scheduled all three defendants to be tried jointly. Based on a numerous motions by all parties, trial was continued without issue until June 2015. Wheeler thensought a continuance of trial to December 2015, due to his counsel's medical concerns. Bush objected to this continuance, but the District Court found that it was necessary and granted it. Wheeler's counsel died suddenly in October 2015, prompting the District Court to then sever Wheeler to be tried separately.1 Bush and Mishra's joint trial began in December 2015. The jury convicted Bush and Mishra on all counts, the District Court sentenced them, and these timely appeals follow.2
Bush and Mishra each bring separate challenges to their convictions. Mishra also challenges his sentence. We will address each defendant's arguments in turn.
Bush raises the five following issues on appeal, that: (1) a six-month continuance entered to accommodate co-defense counsel's health troubles violated his speedy-trial rights; (2) the Government's use of audio-recordings in its opening statement prejudiced him; (3) the Government's description of the anti-personnel purpose of a sawed-off shotgun was prejudicial; (4) the case agent's testimony as to coded drug language was improper opinion testimony by a lay witness made without personal knowledge; and (5) he is entitled to a new trial because the evidence only supported finding him guilty of a crime that was a variance from the indictment on the conspiracy charge. We will address each in turn.
First, Bush argues that the District Court erred in denying his motion to dismiss for a violation of his right to a speedy trial, under both the Constitution and the Speedy Trial Act, 18 U.S.C. § 3161. We review the District Court's legal conclusions regarding a speedy trial claim de novo, and its factual conclusions for clear error. United States v. Rivera Const. Co., 863 F.2d 293, 295 n.3 (3d Cir. 1988). We review a continuance granted "after a proper application of the statute to established facts" for abuse of discretion. Id. The Speedy Trial Act requires that trial commence within seventy days of a defendant's initial appearance. See 18 U.S.C. § 3161(c)(1). However, certain periods of delay are excluded from the computation of this time. Id. This includes "[a]ny period of delay resulting from a continuance granted" where "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." Id. § 3161(h)(7)(A). Moreover, "after defendants are joined for trial, 'an exclusion applicable to one defendant applies to all codefendants.'" United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993) (quoting United States v. Novak, 715 F.2d 810, 815 (3d Cir. 1983)).
Bush contends that the District Court violated his speedy trial rights when it continued the trial from June 8, 2015 to December 1, 2015. The District Court granted this continuance, on the motion of then-co-defendant Wheeler and over Bush's...
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