United States v. Scales
| Decision Date | 30 August 2021 |
| Docket Number | 20-2678 |
| Parties | UNITED STATES OF AMERICA v. VONTEZ SCALES, a/ka/ TEZ, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Submitted Under Third Circuit LAR 34.1(a) on June 25, 2021
On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2:18-cr-00576-005) District Judge: Hon. Mark A. Kearney
Before: CHAGARES, PORTER, and ROTH, Circuit Judges
Vontez Scales was convicted of conspiring to distribute controlled substances, including 500 or more grams of methamphetamine and possessing heroin and fentanyl [*] This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. with intent to distribute. At sentencing, he was designated a career offender and sentenced to 320 months in prison. On appeal, Scales challenges the sufficiency of the evidence supporting his convictions as well as the District Court's admission of certain opinion testimony by the case agent. He also argues that his sentence was tainted by the treatment of an inchoate offense as a controlled substance offense and career offender predicate, and that he should thus be resentenced in light of United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (en banc), abrogated in part on other grounds by Greer v. United States, 141 S.Ct. 2090, 2098 (2021). We will affirm Scales' convictions but vacate his sentence and remand for resentencing.
Bucks County detectives arrested Scott Martin in March 2018 for methamphetamine distribution. Martin became a cooperator and told investigators that he regularly purchased large quantities of methamphetamine (at times referred to herein as "meth") from Damir Skipworth. The Bucks County Detectives Bureau and the Drug Enforcement Agency began investigating Skipworth and his drug trafficking organization. Law enforcement had Martin make controlled purchases of meth from Skipworth, and later tapped several of Skipworth and his associates' phone lines and set up a pole camera outside Skipworth's primary residence in Philadelphia. Investigators determined that one of Skipworth's associates was the defendant here, Vontez Scales. As discussed in more detail below, law enforcement agents reviewed calls and read messages between Scales and Skipworth, and observed them meeting at Skipworth's residence.
Scales, Skipworth, and six other co-defendants were indicted in March 2019 for conspiring to distribute narcotics. Following his indictment, law enforcement sought to arrest Scales at his apartment. Scales was not present when agents arrived, but came out of the elevator while agents were at his door. Agents arrested him and recovered $10, 000+ in cash and the keys to an Acura SUV from his person. Agents located the Acura in the apartment building's parking lot; it had not been present when they arrived. The vehicle was impounded, and attempts were made to return it to its registered owner, a woman. Agents eventually searched the vehicle pursuant to a warrant. They recovered a plastic bag from the driver's door pocket that enclosed 295 smaller green wax bags containing a heroin/fentanyl mixture with a total weight of 9.28 grams, as well as clear plastic bags containing .92 grams of cocaine. Agents also found receipts and papers with Scales' name and phone number on them and a package addressed to him.
The Government filed a seven-count superseding indictment against Scales and four co-defendants in November 2019. All defendants pleaded guilty except Scales, who proceeded to trial on two counts: (1) conspiracy to distribute controlled substances, including 500 or more grams of methamphetamine, in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute heroin, fentanyl, and cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
At trial, the Government introduced its wiretap and surveillance evidence primarily through the case agent, Bucks County Detective Jarrod Eisenhauer. This evidence centered on two drug transactions. The first occurred on September 14, 2018. Pole camera footage showed Scales leaving Skipworth's house on that date carrying a bag. Shortly after Scales left, he texted[1] Skipworth, "Yo bro this sh[o]rt by 40" and "Cal[l] me." Supplemental Appendix ("Supp. App.") 5-6. Skipworth then received a text message from another phone number that contained a photograph of two bags containing a substance resembling meth[2] sitting on a digital scale reading 409.9 grams. Skipworth called Scales on the phone; Scales told him "That shit short" and "This one you gave me is short by 40 [grams]." Supp. App. 7.[3] Skipworth asked Scales if he was going to "bring it back around"; Scales replied that he was "bout to pull up." Supp. App. 7. A few minutes later, Scales called from the number that had sent the photo of the meth to tell Skipworth he was outside Skipworth's residence. The pole camera captured footage of a vehicle rented by Scales backing into Skipworth's driveway. Skipworth came outside and handed something into the vehicle.
Later that month, Scales and Skipworth discussed the status of their accounts. Scales asked Skipworth, "what I owe you anyway?" Skipworth replied, "I'm a give you the 40 I owe you just to make it even, just to make it right." Supp. App. 9. The two then argued over how much Scales still owed, as well as the price for a pound of methamphetamine. Scales asked if he had given Skipworth "two bucks." Id. Skipworth replied, "No bitch you gave me 2250." Scales responded, "It's only three bucks." Id. Skipworth replied that, no, "it's two, it's 3250 bro." Id. Scales then said "bro you been giving it to me for three bucks all this time." Id. Skipworth responded, Id. The next day, the two had a short phone conversation and then met briefly in Skipworth's residence.
In the second drug transaction, which occurred on October 5, 2018, Skipworth served as a middleman for the sale of 50 grams of heroin/fentanyl from Scales to a trafficker from Allegheny County. In a call that day, Skipworth complained to Scales about the delay in getting the deal done and Scales vouched for the quality of the drugs. Pole camera footage showed Skipworth, the Allegheny trafficker, and another man meeting at Skipworth's residence. When Scales' vehicle arrived, Skipworth twice left his residence and went into the vehicle and then went back inside. The vehicle drove off after Skipworth got out the second time; the Allegheny trafficker and the other man left shortly thereafter to return to the Pittsburgh area. The next day, Skipworth and the trafficker had a ten-minute phone conversation in which they discussed the quality of the drugs the latter had purchased, his use of an adulterant in repackaging the drugs, his profit margin, and the effect of the drugs on his companion the previous day, who was so affected after testing the drugs that the trafficker had to take over driving when they reached Harrisburg.
In addition to the transactions just discussed, Eisenhauer testified to other meetings and drug-related communications between Scales and Skipworth, and between Skipworth and another Philadelphia trafficker. This evidence suggested that the other trafficker supplied ten pounds of methamphetamine to Skipworth, who in turn supplied "half a pop," or half a pound, to Scales. Supp. App. 25. Detective Eisenhauer also testified to the events surrounding Scales' arrest.[4]
The jury acquitted Scales of the cocaine offense but convicted him of the others. Scales moved post-trial for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or alternatively for a new trial pursuant to Rule 33, arguing that the evidence was insufficient to support the jury's verdict. The District Court denied the motions in a thorough opinion and ultimately sentenced Scales to 320 months in prison. Scales timely appealed.
Scales argues that there was insufficient evidence to support his conspiracy and possession convictions and that the District Court erred in admitting some of Detective Eisenhauer's opinion testimony without qualifying him as an expert.[6] We consider these arguments in turn.
To obtain a conspiracy conviction under 21 U.S.C. § 846 the Government must prove "(1) a unity of purpose, (2) an intent to achieve a common goal, and (3) an agreement to work toward the goal." United States v. Bansal, 663 F.3d 634, 665 (3d Cir. 2011). The existence of a criminal conspiracy can be proved by circumstantial evidence and "can be inferred from evidence of related facts and circumstances from which it appears as a reasonable and logical inference that the activities of the participants could not have been carried on except as the result of a preconceived scheme or common understanding." United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999) (cleaned up).
Scales argues that there was "no evidence" of any of the elements of a § 846 conspiracy between Scales and Skipworth, or indeed that Scales "was involved with methamphetamine" at all. Scales Br. 18. He argues that, at most, the evidence "might somehow be stretched to support the existence of a buyer-seller relationship," rather than a conspiracy, between Skipworth and Scales. Scales Br. 18-19.
Where a defendant's primary involvement in a conspiracy consists of buying or selling drugs, factors considered by this Court to differentiate between conspiratorial and non-conspiratorial buyer-seller relationships include "the length of affiliation between the defendant and the conspiracy; whether there is an established method of payment; the extent to which transactions are standardized; and whether there is a...
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