United States v. Durham, 10-2315
| Decision Date | 24 June 2011 |
| Docket Number | No. 10-2315,10-2315 |
| Parties | UNITED STATES OF AMERICA v. RICKIE DURHAM, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 24, 2011
Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges.
A jury found Rickie Durham guilty of obstruction of justice, in violation of 18 U.S.C. § 1505, and providing materially false statements to law enforcement, in violation of 18 U.S.C. § 1001. Following conviction at trial, Durham filed a motion for a judgment of acquittal challenging the sufficiency of the evidence against him. The District Courtdenied his motion and Durham timely appealed. For the reasons that follow, we will affirm.
Because we write solely for the parties, we recount the facts and proceedings only to the extent required for resolution of this appeal. In the early morning hours of August 10, 2005, Durham, then a Philadelphia police officer assigned to a joint state and federal violent gang and drug task force, met with other law enforcement officers at a staging ground outside of Philadelphia. Durham was to assist in the execution of several sealed search warrants and an arrest warrant stemming from an ongoing investigation into a large-scale cocaine distribution operation headed by an individual named Alton Coles.1 Shortly after arriving at the staging ground, Durham learned that the residence of Asya Richardson ("Asya"), the sister of Durham's childhood friend Jerome Richardson, Jr. ("Jerome"), was among those locations to be searched as part of the Coles investigation. Prior to his arrival, Durham was uninvolved with the Coles investigation and unaware of the fact that Asya's home was to be searched. Durham had known for some time, however, that Asya was Coles' girlfriend and that Coles was a suspected drug dealer.
After learning that Asya could be implicated in the Coles investigation, Durham called Jerome from his mobile phone shortly before 3 a.m. Jerome later testified that during the ensuing conversation, (App. at 285-86.) Jerome understood "the dude" to be a reference to "Alton Coles." (Id. at 285.) Durham also informed Jerome that events were to take place "today or this morning" at "6 O'clock or something like that." (Id. at 286.) Immediately thereafter, Jerome made several phone calls in an effort to contact his sister Asya. When Jerome reached Asya, he informed her that "if you are around the wrong people, you need to get out of there, you need to get out right now." (Id. at 287.) A short time later, Jerome called his sister again. During this subsequent exchange, Asya activated the speaker function on her phone and a male joined the conversation. Jerome reiterated his warning, explaining "I don't know you, I don't know what's going on but my sister need to leave wherever she at if she is in your environment." (Id. at 292.)
Soon thereafter, federal law enforcement officers who were monitoring Coles' telephone line recorded a flurry of outgoing calls from Coles to his co-conspirators. During one conversation, Coles instructed a woman named Monique Pullins to throw a handgun she was storing for him down the trash chute of her building. Coles attempted numerous times to contact two other co-conspirators as well. In spite of these communications, law enforcement officers executed the search warrants and arrest warrant later that morning.
Concerned by the prospect that a leak had come from within their ranks, FBI and ATF agents proceeded with an internal investigation in the years following the raids and arrests associated with the Coles investigation.2 Based on a review of phone records, federal agents learned of the contact between Durham and Jerome during the early morning hours of August 10, 2005. Equipped with this information, agents interviewed Durham on several occasions. According to testimony of the interviewing agents, on June 27, 2008, Durham initially denied contact with Jerome on the morning of the raids. When questioned a second time he stated that he could not recall if he had spoken with Jerome on August 10, 2005. Once shown records indicating otherwise, Durham explained that he could not remember calling Jerome, but that he knew for a fact he had not discussed the raids scheduled for later that morning. Investigators spoke with Durham again several months later. In a conversation in January 2009, Durham acknowledged that he had called Jerome on the morning of the raid, but he insisted that the purpose of the call was simply to ascertain Asya's phone number in order to assist with the ongoing investigation. Durham explained that this may have been a bad judgment on his part, but that he did not leak any information or intend to interfere with the investigation.
Thereafter, on June 16, 2009, a federal grand jury indicted Durham on six counts: obstruction of justice, in violation of 18 U.S.C. § 1505 (Counts One, Three, and Five), providing advance notice of a search, in violation of 18 U.S.C. § 2232(c) (Count Two),and providing materially false statements to law enforcement, in violation of 18 U.S.C. § 1001 (Counts Four and Six). On September 24, 2009, following a several day jury trial, Durham was convicted of two counts of obstruction of justice (Counts One and Five), and one count of making a materially false statement to law enforcement (Count Six). He was acquitted of the remaining charges. During trial and again following the jury's verdict, Durham moved for a judgment of acquittal pursuant to Federal Rule of Civil Procedure 29. The District Court denied his motion in both instances. A timely appeal followed.
Our review of a district court's decision to deny a motion for judgment of acquittal based on the sufficiency of the evidence is plenary, and we apply the same standard as the district court. United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009). In reviewing the jury's verdict, we "must consider the evidence in the light most favorable to the [G]overnment and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt." United States v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992) (citation omitted). Thus, we "must credit all available inferences in favor of the [G]overnment." United States v. Sparrow, 371 F.3d 851, 852 (3d Cir. 2004) (internal quotations and citation omitted). "[T]he evidence need not unequivocally point to the defendant's guilt as long as it permits a finding of guilt beyond a reasonable doubt." United States v. Davis, 183 F.3d 231, 238 (3d Cir. 1999).Moreover, "'[t]his review should be independent of the jury's determination that evidence on another count was insufficient.'" United States v. Vastola, 989 F.2d 1318, 1331 (3d Cir. 1993) (quoting United States v. Powell, 469 U.S. 57, 67 (1984)). This particularly deferential standard places a very heavy burden on a convicted defendant to demonstrate that there is legally insufficient evidence to support the jury's verdict. United States v. Rawlins, 606 F.3d 73, 80 (3d Cir. 2010).
On appeal, Durham contends that the Government presented insufficient evidence to sustain his convictions for: (Count One) obstruction of justice, in violation of 18 U.S.C. § 1505, for leaking details on August 10, 2005 of the impending raids and arrests connected with the Coles investigation; and (Counts Five and Six) for making materially false statements to federal investigators on January 16, 2009, in violation of 18 U.S.C. § 1001, and thereby also obstructing justice by interfering with a pending agency proceeding, in violation of 18 U.S.C. § 1505. Because Counts Five and Six both pertain to conduct occurring on January 16, 2009, we will address the sufficiency of the evidence with respect to those two counts together and separately from our discussion of Count One.
Durham's challenge to his conviction under Count One is limited to whether sufficient evidence was presented to prove that he acted with the requisite "intent to subvert or undermine the integrity of the federal investigative proceedings on August 10, 2005." (Durham's Br. at 11.) He argues that his intent was merely to help AsyaRichardson by informing her of a "potential legal problem" as opposed to "deliberately and willfully" obstructing the ongoing investigation. (Id. at 19.)
To prove obstruction under 18 U.S.C. § 1505, the Government must establish: "'(1) that there was an agency proceeding;4 (2) that the defendant was aware of that proceeding; and (3) that the defendant intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.'" United States v. Warshak, 631 F.3d 266, 325 (6th Cir. 2010) (quoting United States v. Bhagat, 436 F.3d 1140, 1147 (9th Cir. 2006)); see also United States v. Quattrone, 441 F.3d 153, 174 (2d Cir. 2006). The District Court's instructions to the jury, provided without objection at trial or challenge on appeal, reflected each of these elements. In addition, at the request of the Government and with Durham's permission, the District Court included in its jury instructions a fourth element requiring proof that "the natural and probable effect of the defendant's conduct was interference with the investigation . . . [and] that the defendant was aware of this effect."5 (App. at 416.)
Crediting all available inferences in favor of the Government, Sparrow, 371 F.3d at 852, we believe that the evidence was sufficient to allow a rational juror to find that Durham acted with the requisite intent. As federal agents testified, Asya was one of several subjects of the...
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