United States v. Savage

• Decision Date: 11 August 2020
• Docket Number: No. 14-9003,14-9003
• Citation: 970 F.3d 217
• Parties: UNITED STATES of America v. Kaboni SAVAGE, a/k/a Joseph Amill, a/k/a Bonnie, a/k/a Yusef Billa, agent of Dirt, agent of Bighead, Appellant
• Court: U.S. Court of Appeals — Third Circuit

970 F.3d 217

UNITED STATES of America

v.Kaboni SAVAGE, a/k/a Joseph Amill, a/k/a Bonnie, a/k/a Yusef Billa, agent of Dirt, agent of Bighead, Appellant

No. 14-9003

United States Court of Appeals, Third Circuit.

Argued January 7, 2020

Filed: August 11, 2020

David E. Troyer, Robert A. Zauzmer [ARGUED], Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Madeline S. Cohen, 1942 Broadway, Suite 314, Boulder, CO 80302, Barry J. Fisher, Office of Federal Public Defender, 39 North Pearl Street, 5^th Floor, Albany, NY 12207, Lawrence S. Lustberg [ARGUED], Gibbons, One Gateway Center, Newark, NJ 07102, Counsel for Appellant

Geoffrey M. Wyatt, Skadden Arps Slate Meagher & Flom, 1440 New York Avenue, N.W., Washington, DC 20005. Counsel for Amicus Appellant

Before: SMITH, Chief Judge, JORDAN, and FUENTES, Circuit Judges

OPINION OF THE COURT

SMITH, Chief Judge.

TABLE OF CONTENTS

I. Introduction...232

II. Factual Background...232

III. Procedural History...235

IV. Gaps in the Record...237

V. Substitution of Counsel...242

VI. Vicinage Challenge...250

VII. Fair-Cross-Section Challenge...252

VIII. Batson Objection...262

IX. Transferred Intent Instruction...272

X. Lay Opinion Instruction...283

XI. Penalty-Phase Proceedings...288

A. Background...288

B. The Government permissibly argued that Savage posed a risk of future dangerousness...290

C. The District Court did not plainly err by admitting victim-impact statements...298

D. The District Court's admission of autopsy photographs offered to support the "especially heinous, cruel, or depraved" aggravator was not improper...303

E. The Government's argument against the "equally culpable" mitigator did not violate the Fifth or Sixth Amendments...306

F. The Government properly rebutted the mitigators relating to Savage's relationship with his family...309

G. The verdict sheet's format did not violate the Eighth Amendment...314

XII. Conclusion...316

I. INTRODUCTION

Kaboni Savage led a regional drug trafficking operation in North Philadelphia referred to at trial as the Kaboni Savage Organization (KSO). The KSO distributed large quantities of controlled substances and, not surprisingly, fiercely protected its network and territory through the use of guns and violence. Threats to the organization, whether perceived or real, were quickly tamped down or extinguished. Early in the KSO's operation, Savage took care of such threats himself, but as his power grew, his enforcers did his bidding without question.

Even while detained on criminal charges, Savage continued to manage the affairs of the KSO from his prison cell. He led by retaliating against those who dared to cooperate with government agents and prosecutors. What makes this case stand out is that Savage not only arranged for the murder of the prosecution's main witness in a murder case; in a later case, he orchestrated the firebombing of the family home of another cooperating witness in a fashion that ensured no one would survive. Eventually, Savage was charged with, inter alia , a dozen counts of murder in aid of racketeering, among other serious offenses. The Government sought the death penalty.

This appeal follows the jury's guilty verdict on all charges and the imposition of a sentence of death. For the reasons that follow, we will affirm.

II. FACTUAL BACKGROUND

Savage began his career in illegal drug trafficking by selling for others. By the early 1990s, he was peddling phencyclidine (PCP) on his own, operating predominantly out of his mother's house on Darien Street in North Philadelphia. Before long, he was a distributor selling PCP in various forms, as well as marijuana. He utilized numerous dealers who controlled drug corners in the vicinity of Erie Avenue in North Philadelphia. For a time, he was in a partnership distributing crack cocaine. But by the late 1990s, Savage had come into his own. He was "running everything," A17:8749,¹ dealing in "more than five, six, seven kilos" of cocaine at a time. A17:8759.

As his cocaine sales increased, Savage began to dilute the drug and then recompress it to increase the quantity. His profit margin rose accordingly. In the early 2000s, Savage's "right-hand man" was Eugene Coleman. A21:10960–61. Coleman helped distribute cocaine to various individuals in the "family"—Savage's distribution network—and also handled proceeds from the drug sales. A17:8728, 8764. Savage's inner circle included "enforcers" who carried out Savage's commands without hesitation. Among the enforcers were Kareem Bluntly and Lamont Lewis. Although loyal to Savage for a time, Coleman and Lewis eventually cooperated with the Government prior to their respective guilty pleas in February 2004 and April 2011. Both testified at Savage's trial about the operations of the KSO and its use of violence.

And that violence was often deadly. For example, in March 1998, when Savage was in the vicinity of competitor Tybius Flowers's drug corner, a driver by the name of Kenneth Lassiter accidentally bumped into Savage's car. A confrontation ensued and Savage demanded that Lassiter pay for the damage. Despite Lassiter's apology, Savage "pulled a gun out ... and shot him once." A13:6461. Lassiter died from the gunshot wound

. Flowers witnessed the murder.

More violence followed. Mansur Abdullah belonged to the Savage "family," and he and Savage would supply each other with cocaine. It was Savage who first taught Abdullah how to dilute and recompress cocaine, which eventually raised the suspicion in Savage's mind that Abdullah was overcharging him. In September 2000, Abdullah visited Savage to collect a debt. Savage paid him with cash placed in a red sneaker box. He then directed Kareem Bluntly to accompany Abdullah back to his home, ostensibly to provide protection because of robberies that had recently taken place. Bluntly was armed. Coleman was directed to pick up Bluntly soon afterward. When Coleman and Bluntly returned a half-hour later, Bluntly handed Savage the red sneaker box with the cash still inside. Although Bluntly had carried out the instruction to shoot Abdullah, he was unsure if Abdullah was actually dead. Savage instructed Coleman to find out. Coleman followed orders and later confirmed that he saw Abdullah "keeled over" in his car. A17:8823. Philadelphia's assistant medical examiner determined that the cause of death was multiple gunshot wounds

to the head, chest and abdomen.

Carlton Brown was another victim of multiple gunshot wounds

to the head and chest. Although Brown was a member of the Savage family, Savage suspected Brown of killing Savage's good friend Ronald Walston. Savage instructed Lewis that "he ha[d] to do it," which Lewis understood to mean he had to kill Brown. A21:10923. Lewis obeyed, and Brown died.

Lewis also killed Barry Parker at Savage's direction. It appeared Parker was attempting to take over Steven Northington's drug corner, so Northington complained to Savage, his supplier. Savage replied to Northington that "[n]obody come and take nothing. You have to handle your business. This is what we do." A17:8850. On February 26, 2003, at Savage's command, Lewis left Savage's house with Northington, who identified Parker at the drug corner. Lewis then eliminated Northington's competition by shooting Parker several times in the chest. Clearly Savage did not hesitate to protect his organization by killing those who threatened to interfere with his distribution network.

He also had no qualms about murdering those he believed were cooperating with law enforcement. In March of 2003, Savage suspected that Tyrone Toliver, Coleman's friend, was a "snitch." A17:8873. When Toliver had difficulty filling a cocaine order, he looked to Savage to supply him. Although Savage did not have cocaine available, he agreed to help and directed Coleman to take Toliver to Coleman's apartment where the organization regularly recompressed cocaine. Bluntly arrived at the apartment shortly thereafter. To Coleman's surprise, Bluntly shot Toliver in the head. At Savage's direction, Bluntly and Coleman disposed of the body.

In addition to the benefit of eliminating someone Savage thought was a snitch, the Toliver murder allowed Savage "to put some dirt on" Coleman. A21:10959. Coleman knew a lot about the KSO's operations, and "everybody thought [Coleman] was weak and if he got into some trouble, he would tell." A21:10960.

Around this same time, in a further effort to assure the loyalty of those closest to him and to thwart any thoughts his allies might have of cooperating with law enforcement, Savage, along with Lewis and two other high-ranking members of the KSO, made a pact. In short, the men agreed that if any one of them cooperated with law enforcement, "our mothers’ lives would be in danger." A21:10960. Although Coleman was not present when the deadly pact was made, Savage made sure that Coleman learned of it.

In 2004, Savage was prosecuted for Lassiter's murder. While jailed awaiting trial, Savage continued to intimidate and threaten others with retaliation if he suspected they were working with the Government. First, Savage set his sights on eyewitness Tybius Flowers, the prosecution's main witness. Savage told Lewis, who was also in jail, that he was not worried because Flowers "would never make it to court." A21:10915. Savage made similar remarks to another prisoner. Savage's prophecy came true when Flowers was killed in a shower of bullets as he sat in his car outside of his aunt's house the night before trial. While there were no eyewitnesses, Northington later told a fellow prisoner of his disdain for snitches and disclosed that "he [had] slumped [Flowers] and sent him to rat heaven." A23:11738–40. Savage, too, revealed he had played a part in Flowers's murder, advising the same fellow prisoner that he had "spanked the case" and would be released soon. A23:11831.

Savage's brutal efforts paid off. Lacking Flowers's testimony, the prosecution foundered and Savage was acquitted of Lassiter's...