United States v. Canty

• Decision Date: 23 June 2022
• Docket Number: 20-2187, No. 21-1327
• Citation: 37 F.4th 775
• Parties: UNITED STATES, Appellee, v. Edward CANTY, III, a/k/a Demo, Defendant, Appellant. United States, Appellee, v. Melquan Jordan, a/k/a Squirrel, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

37 F.4th 775

UNITED STATES, Appellee,

v.Edward CANTY, III, a/k/a Demo, Defendant, Appellant.

United States, Appellee,

v.Melquan Jordan, a/k/a Squirrel, Defendant, Appellant.

No. 20-2187

No. 21-1327

United States Court of Appeals, First Circuit.

June 23, 2022

Luke Rosseel for appellant Edward Canty, III.

Julia Pamela Heit for appellant Melquan Jordan.

Benjamin M. Block, Assistant U.S. Attorney, with whom Darcie N. McElwee, U.S. Attorney, and Julia M. Lipez, Assistant U.S. Attorney, were on brief, for appellee.

Before Lynch, Selya, and Kayatta, Circuit Judges.

LYNCH, Circuit Judge.

Edward Canty, III and Melquan Jordan distributed, from their individual independent supplies, heroin to users in Portland, Maine -- Canty for around four months in 2016 and Jordan from the summer of 2015 to early 2017. They were prosecuted federally, not on distribution charges, but on charges that they had conspired with each other and several other individuals to distribute and possess with intent to distribute both heroin and cocaine base,¹ 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. Canty and Jordan maintain that they were independent drug dealers who did not conspire with one another.

At trial, the prosecutor made four types of improper comments at different points during the opening statement, at closing, and at rebuttal. Each built upon the others and introduced improper themes. The government has conceded that each of these comments was improper, though the defendants did not object at trial to the statements. At the close of the government's case, the defendants moved under Rule 29 for judgments of acquittal on the basis of insufficiency of the evidence of conspiracy. See Fed. R. Crim. P. 29(a). The trial judge took the acquittal motions under advisement, eventually denying the motions after trial. The jury returned a verdict of guilty against both Canty and Jordan.

Five months after the jury convictions, the defendants moved for a new trial based on the improper comments by the prosecutor. Applying plain error review, the trial judge held that the first three prongs of the plain error standard were met. He denied the motion, however, on the fourth prong, finding that there was no miscarriage of justice because the evidence of guilt was "overwhelming." United States v. Jordan, No. 18-cr-00143, 2020 WL 5995585, at *15-16 (D. Me. Oct. 9, 2020).

Of the many issues raised by each of the two defendants in these consolidated appeals, we reach only the appeals of the motions for acquittal on the basis of insufficiency of the evidence and the denial of the motions for a new trial. As to the insufficiency claim, we disagree with the defendants. We also conclude that the district court's denial of the new trial motions was plain error and vacate and remand for proceedings consistent with this opinion.

I

In March 2019, a superseding indictment issued against six individuals, including Canty, Jordan, Akeem Cruz, and Lamale Lawson, for conspiracy to distribute and to possess with intent to distribute controlled substances. All defendants other than Canty and Jordan pleaded guilty. A second superseding indictment then issued against Canty and Jordan for conspiracy to distribute and to possess with intent to distribute heroin and cocaine base, with 100 grams or more of a mixture or substance containing heroin involved in the conspiracy. The case proceeded to trial.

At trial, the government sought to prove that Canty and Jordan had conspired with each other and with others to sell heroin and crack cocaine from three separate locations, known as trap houses, in the Portland, Maine area between the summer of 2015 and February 2017. While Jordan was in the area for the entire period, Canty was only present for around four months in 2016. The government called eight witnesses in support of its case. One witness who the prosecution anticipated would testify, Lamale Lawson, exercised his Fifth Amendment right against self-incrimination and did not provide testimony.

In the summer of 2015, Jordan was in Portland, Maine and reconnected with old friends, siblings James Osborne and Jessica Tweedie, telling Osborne that he wanted to "see what was going on in the neighborhood," which Osborne took to mean he wanted to sell drugs there. At the time, Osborne was using heroin heavily and occasionally using crack cocaine. Osborne began recruiting customers for Jordan to sell heroin to, and in return Jordan gave Osborne heroin for his personal use.

Tweedie had a house in the Redbank housing complex at that time. Tweedie would sometimes give Jordan and Osborne rides to make drug sales, and sometimes would give Jordan rides to New York to resupply his drug stores. Jordan eventually began staying at Redbank and had a sexual relationship with Tweedie. Tweedie used crack but testified that she did not get it from Jordan, and she did not use heroin from Jordan. Jordan would also package and sell drugs at Redbank.

Akeem Cruz, a friend of Jordan's from New York, started selling drugs at Redbank in 2016. Cruz stored his drugs at Redbank. He and Jordan would sell at the same time from their individual stashes, and they did not share customers. Lawson, who was friends with Jordan, also occasionally sold drugs at Redbank, though Tweedie told him not to.

In late 2015, Osborne needed heroin but Jordan was out of town, so Jordan sent him to Lawson, and Osborne got heroin from Lawson at an apartment on Sherman Street. Osborne continued to get drugs from Lawson, thereafter at an apartment located on Oak Street which was leased by a man named Lance Lombardi. Lombardi had previously allowed multiple drug dealers to deal out of this apartment, but eventually kicked them out. Osborne testified that after the previous dealers were kicked out, Lawson was "one of the dealers I brought in" to the Oak Street trap house. Osborne testified that Jordan and Lawson came in together to take over Oak Street and that he had been a part of a conversation with both of them about taking it over. He also testified that Lawson dealt from Oak Street first, then Jordan began dealing there as well a few months later, after Lawson told Osborne to go pick up Jordan in Boston and bring him to Oak Street. Jordan and Lawson each paid Lombardi in drugs to allow them to use his apartment to deal from. Osborne recruited customers for Lawson and Jordan, and they gave him drugs in exchange. When Lawson and Jordan were both at the Oak Street apartment, they would take turns selling drugs to customers Osborne recruited, from their separate stashes. Osborne also answered the door to make sure that only people known to him could get into the apartment. Jordan was also selling from Redbank during this period.

Cruz did not deal from the Oak Street apartment, though on one occasion he gave Lombardi drugs to sell there on Cruz's behalf. Lombardi and Osborne, however, violated those instructions and used the drugs Cruz gave Lombardi instead of selling them.

In retaliation for this breach of instructions, Cruz and Canty -- who by this time had arrived in Maine -- assaulted Osborne at the Oak Street apartment; Canty held Osborne down while Cruz hit and kicked him. A juror could infer that Cruz had recruited Canty to assist him in the assault. Osborne testified that Lawson had told Cruz and Canty that they could find Osborne at Oak Street. After the assault, Canty began dealing drugs at Oak Street, around the same time Jordan began dealing there. Lombardi was eventually evicted from the apartment because of all of the foot traffic.

After Lombardi was evicted from Oak Street, Jordan began selling heroin out of Amy Santiago's Grant Street apartment. Santiago was a customer with whom Jordan had a sexual relationship. Santiago would run drugs for Jordan and allowed him to sell from her apartment, and he gave her heroin in exchange. Lawson began coming to the Grant Street apartment behind Jordan's back; when Jordan found out Lawson had been there, he became angry. They argued several times about Lawson's presence in the apartment, and Santiago told Lawson to leave, but Lawson continued to come and sell drugs at Grant Street.

Osborne and Canty also went to Grant Street when Jordan was not there, and Canty told Santiago that he would give her heroin in exchange for her making drug runs. In all, Santiago testified that Canty came to Grant Street to sell heroin four or five times. Santiago also testified that she went to Redbank, and Tweedie told Santiago that she had heroin to sell from Canty. Tweedie, however, testified that she never sold any drugs for Canty, Cruz, or Lawson.

In late 2016, Canty began selling heroin at Redbank, where Jordan had already been selling drugs. Canty and Jordan used both the Redbank and Grant Street apartments during the same time period. Osborne testified that during the time that Canty was in Maine, Canty, Cruz, and Jordan all slept at Redbank. Tweedie, however, testified that Canty was not staying at Redbank and that Jordan slept there occasionally but stayed at Grant Street. For her part, Santiago testified that Lawson, Canty, and Jordan stayed at Redbank.

A customer named Tanya Johnson testified at trial that she had come from South Carolina to Maine in September 2016. A friend of hers named Alicia took her to Grant Street to get heroin.² When Johnson went to Grant Street at first, she would wait outside and Osborne would bring what was supposed to be heroin to her, which Johnson said was "sheetrock," i.e., not heroin or very low-quality heroin. After this occurred a few times, Johnson got Jordan's phone number and began purchasing heroin from him inside Grant Street. At Grant Street, Johnson would buy either from Jordan or from the woman who lived there whose name she did not know, presumably Santiago. Johnson began giving Jordan rides around Portland, sometimes to drug transactions, in exchange for heroin. On one occasion, someone called Johnson from Jordan's phone number and asked her to give someone a ride from ...