United States v. Praddy

• Decision Date: 30 July 2013
• Docket Number: Docket No. 11–4711–cr.
• Citation: 725 F.3d 147
• Parties: UNITED STATES of America, Appellee, v. Anthony PRADDY, aka Birdman, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

725 F.3d 147

UNITED STATES of America, Appellee,

v.Anthony PRADDY, aka Birdman, Defendant–Appellant.

Docket No. 11–4711–cr.

United States Court of Appeals,Second Circuit.

Argued: Nov. 15, 2012.

Decided: July 30, 2013.

Kenji Price, Assistant United States Attorney, Brooklyn, N.Y. (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Jo Ann M. Navickas, Seth D. DuCharme, Assistant United States Attorneys, Brooklyn, NY, on the brief), for Appellee.

Mitchell J. Dinnerstein, New York, N.Y. (Thomas Eddy, New York, NY, on the brief), for Defendant–Appellant.

Before: KEARSE, STRAUB, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Anthony Praddy appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Frederic Block, Judge, convicting him of conducting or participating in the conduct of the affairs of a drug-distribution racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) (Count One); conspiring to do so, in violation of 18 U.S.C. § 1962(d) (Count Two); conspiring to possess and distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (Count Four); four counts of distributing marijuana, in violation of 21 U.S.C. § 841(a)(1) (Counts Five, Six, Seven, and Eight); and possession of a firearm in connection with the narcotics conspiracy offense, in violation of 18 U.S.C. § 924(c)(1) (Count Fourteen). Praddy was sentenced to, inter alia, 120 months' imprisonment on the racketeering and narcotics charges, to be followed by a 60 months' term of imprisonment on the firearm charge. On appeal, he principally (1) challenges the sufficiency of the evidence to support his convictions on Counts One, Two, and Four, and (2) contends that his conviction on Count Fourteen should be reversed because there was no evidence that he possessed a firearm within the five-year statute-of-limitations period. Praddy also challenges his sentence on the RICO and narcotics counts, contending principally that the district court gave inappropriate weight to various aspects of his conduct. We find merit only in Praddy's challenge to his conviction on the firearm count. As to that count we reverse; and we remand for resentencing de novo on the affirmed counts.

I. BACKGROUND

The present prosecution grew out of state and federal investigations of narcotics trafficking in the East Flatbush area of Brooklyn, New York, in the 1990s and 2000s. A group that sold marijuana in that area, principally on Raleigh Place and on Church Avenue between Raleigh Place and Fairview Place, called the Raleigh Place Crew (or the “Crew”), was led by Raymond Edgar Dowdie. At trial, the government's evidence against Praddy, who was also called “Birdman” or “Bird,” chiefly included the testimonies of Dowdie and of Hayden McQuilkin, one of Praddy's marijuana customers, along with audio- and video-taped recordings of Praddy selling marijuana to McQuilkin on several occasions.

Dowdie testified that he had begun selling marijuana with others in the Raleigh Place area (also referred to as “the block”) in the 1990s. ( See Trial Transcript (“Tr.”), at 450–53.) In the mid–1990s a person with whom he had been selling passed away; Dowdie testified, “[on] the day he passed away I just took over the block and appointed certain individuals to work with me.” ( Id. at 327.) Dowdie identified about a dozen persons who worked with him in selling marijuana, including Praddy's codefendant Kiond Jones (“Kiond”), someone named “Joe,” Praddy's cousin Lindsey Breeden (“Lindsey”), and “ ‘Bird’ for a period of time.” ( Id.)

Dowdie described the Raleigh Place operation as one run by a loosely-knit group that was not rigidly hierarchical. There were some street-sellers who were simply considered workers; but all of the other Crew members were considered to be “bosses.” (Tr. 460–62.) Kiond and “Joe” served as Dowdie's lieutenants ( see id. at 77, 700–01, 709–10) and were bosses ( see id. at 461). In general, the members of the Raleigh Place Crew were persons who lived or had grown up on the block, and most of them were considered bosses. ( See id.) As bosses, the Crew members had discretion to choose the sources for the marijuana they sold; they were not required to buy from Dowdie. ( See id. at 460–64.)

Dowdie organized the Crew members into teams to work in three shifts, usually manned by two persons, although sometimes a Crew member would work alone. ( See Tr. 327–28, 703–04.) The first shift was roughly from 6 a.m. to noon, the second was in the afternoon, and the third ran from the evening until late at night. ( See id.) Shanell James, one of the Crew's customers who lived on Raleigh Place, testified that the Crew generally did not sell from about 2 p.m. to 4 p.m. ( see id. at 80–81), because “a lot of kids were getting out of school” around then “and ... more patrols of cops [were] in the area” ( id. at 81).

For the periods when Crew shifts were selling, the Crew was protective of its control over the Raleigh Place area. Dowdie testified, “we ... consider[ed] it was our block”; “[w]e all controlled the block.” (Tr. 460–61.) Although people who lived on the block were allowed to sell marijuana there even if they were not members of the Raleigh Place Crew ( see, e.g., id. at 347–48), and others ( i.e., interlopers) were allowed to sell there during the Crew's off hours ( see, e.g., id. at 347–48, 365), Crew members exchanged information as to who was selling on the block ( see id. at 374), and interlopers were “run ... off the block” ( id. at 712; see id. at 711–14). Some interlopers who attempted to sell on the block during the Crew's selling hours were dealt with more harshly. Dowdie testified, for example, that he, with the assistance of “Joe” and others, had kidnaped such an interloper, and Dowdie pistol-whipped him as punishment for selling on the block. ( See id. at 354–58.) McQuilkintestified that he heard Praddy and Lindsey tell an interloper named Kevon Simon, who was called “Belize,” to stop selling on the block and that shortly thereafter McQuilkin saw Lindsey summon Belize out of a store to the sidewalk and saw Praddy shoot Belize. ( See id. at 716–20.)

Dowdie testified that from the mid–1990s until mid–2009, he and the others working with him—who included Praddy, as described in greater detail in Part II below—sold “thousands of pounds” of marijuana. ( Id. at 316, 326–27.)

Praddy admitted at trial that he had sold marijuana from 2003—when he was 16 years old—until he was arrested in June 2009 ( see Tr. 1103, 1124), and that he had made the marijuana sales to McQuilkin that were captured on audiotape and videotape ( see id. at 1119, 1131–32). Praddy testified, however, that he was only an occasional seller, responding to calls he received from would-be buyers. ( See, e.g., id. at 1121, 1132–33, 1135.) He testified that he bought marijuana from Dowdie some five or six times, and never more than three or four ounces at a time ( see id. at 1109); that he bought marijuana from his codefendant Kiond Jones “[m]aybe once or twice” ( id. at 1107); that he had bought marijuana from “Joe” ( see id. at 1128); and that he bought from other suppliers beyond the Raleigh Place area ( see id. at 1128–29, 1131–32). Praddy testified that his marijuana sales over the years totaled no more than some five or six pounds. ( See id. at 1124.) He testified that he worked alone and did not sell marijuana “with” anyone. ( See id. at 1107–17.) Praddy also essentially denied that he had shot Belize. ( See id. at 1105, 1138.)

II. THE NARCOTICS AND RICO CONVICTIONS

As indicated above, the jury found Praddy guilty not only of distributing marijuana but also of conspiring to distribute and to possess with intent to distribute marijuana (Count Four), and of conducting or participating in the conduct of a RICO drug distribution enterprise, and of conspiring to do so (Counts One and Two, respectively). Praddy challenges the sufficiency of the evidence to support those convictions.

The standard of review with respect to sufficiency challenges is well established. The defendant bears the heavy burden of “show[ing] that no rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt.” United States v. Caracappa, 614 F.3d 30, 43 (2d Cir.2010) (internal quotation marks omitted). This Court must view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor. See id. “[C]hoices between competing inferences” and “[a]ssessments of witness credibility ... lie solely within the province of the jury.” United States v. Payne, 591 F.3d 46, 60 (2d Cir.2010). The jury is free to believe part, and to disbelieve part, of any given witness's testimony. See, e.g., United States v. Gleason, 616 F.2d 2, 15 (2d Cir.1979) (jury is entitled to believe a witness “in whole or in part”), cert. denied,444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767 (1980). “[W]here there are conflicts in the testimony, we must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses.” United States v. Miller, 116 F.3d 641, 676 (2d Cir.1997), cert. denied,524 U.S. 905, 118 S.Ct. 2063, 141 L.Ed.2d 140 (1998). We must affirm so long as “the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt.” United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986) (internal quotation marks omitted). These principles apply whether the evidence being reviewed is direct or circumstantial. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), overruled on other grounds by Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

A. Praddy's Membership in the Marijuana...