United States v. Willis

• Decision Date: 16 July 2021
• Docket Number: 19-1051-cr,Nos. 18-3617-cr,August Term, 2020,s. 18-3617-cr
• Citation: 5 F.4th 250
• Parties: UNITED STATES of America, Appellee, v. Larry WILLIS, Isiah Pierce, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

5 F.4th 250

UNITED STATES of America, Appellee,

v.Larry WILLIS, Isiah Pierce, Defendants-Appellants.

Nos. 18-3617-cr

19-1051-cr

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: December 7, 2020

Decided: July 16, 2021

Katherine A. Gregory, Assistant United States Attorney for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, N.Y., for Appellee.

Carla M. Sanderson Carla Sanderson Law, New York, N.Y., for Defendant-Appellant Willis.

Robert A. Culp Garrison, N.Y., for Defendant-Appellant Pierce.

Before: POOLER, PARKER, and LYNCH, Circuit Judges.

Barrington D. Parker, Circuit Judge:

Larry Willis and Isiah Pierce appeal from judgments of conviction entered following a three-day trial in the United States District Court for the Western District of New York (Vilardo, J .). The defendants, charged in a twelve-count superseding indictment, were convicted of various drug-related crimes and firearms offenses.¹ The district court denied defendants’ motions for judgments of acquittal. See Fed. R. Crim. P. 29. Pierce was sentenced to 168 months and Willis to 210 months of incarceration.

On appeal, defendants contend that the evidence was insufficient to support the jury's verdict on each of the counts of conviction. They also challenge various of the district court's evidentiary rulings and its calculation of the sentences recommended by the Sentencing Guidelines ("U.S.S.G." or "Guidelines"). For the reasons that follow, we affirm the convictions, but remand Willis's sentence.

BACKGROUND

The issues raised on appeal center on Willis's and Pierce's use of two apartments—the upper and the lower—at 70 Henrietta Avenue, Buffalo, New York ("70 Henrietta") from which they conducted a drug trafficking operation. Officers of the Erie County Sheriff's Office ("ECSO") executed search warrants at that location and seized narcotics, drug trafficking paraphernalia, firearms, and ammunition.

Testimony adduced by the government at trial established that on the morning of December 1, 2016, the ECSO had attempted to execute a warrant authorizing a search of 108 Peck Street, of Willis's person, and of his black Pontiac Grand Prix. Efforts to locate Willis led them to the two apartments at 70 Henrietta. While conducting surveillance, Detective William Granville of the ECSO saw a dark-colored Dodge Charger pull into the front of 70 Henrietta, followed closely by a blue Chevrolet Equinox (the "Equinox"). Defendant Isiah Pierce was driving the Charger, while Tanzie Fuller was driving the Equinox, which was registered to Willis. The drivers of both vehicles got out and entered the front door at 70 Henrietta.

After a short period, Pierce and Fuller exited 70 Henrietta, and both got into Willis's Equinox. Shortly thereafter, Officer Cully Ferrick stopped Pierce who was driving the Equinox for excessive tint on the glass. After a brief conversation, Detective Timothy Donovan asked him to step out of the vehicle because he "smelled the odor of marijuana." Pierce App'x at 51. The officers searched the vehicle and recovered a "violation" or non-criminal quantity of marijuana, as well as five cellphones. A search of Pierce's person turned up approximately $1,700 in cash and a set of keys. At that point, Pierce was arrested, searched, and taken to the ECSO headquarters at 45 Elm Street ("45 Elm"). Once they arrived, Pierce was left handcuffed in an interview room. Detective Donovan testified that at some later point he went back into the interview room and "found a large amount of narcotics that were underneath the desk area" that had not been in the room when he first left Pierce there. Pierce App'x at 55.

Although none of these materials had been found in the search incident to Pierce's arrest, Donovan testified that he found "a plastic bag which contained numerous knotted plastic bags that contained white rock-like substance that appeared to be cocaine, and also bundles full of what appeared to be heroin" along with "glass wax envelopes that are commonly used to package heroin." Pierce App'x at 56.

While Pierce was being detained by the ECSO, Detective Granville continued his surveillance of 70 Henrietta. Detective Granville testified that around 2:15 PM, he saw Willis leaving 70 Henrietta, appearing to lock the front door, entering a black Pontiac, and driving away. Around 2:30 PM, officers stopped Willis's car, searched and arrested him, and searched the car from which they recovered cash, keys, and two cellphones. Detective Granville testified that, after seeing Willis leave, he remained outside 70 Henrietta for two additional hours until about 4:15 PM when he was notified that other officers were coming to 70 Henrietta to execute a search warrant.

After Willis was arrested, he was brought to 45 Elm where he was placed in an interview room. Detective Timothy Carney testified that he saw Willis "digging down his pants," that he and Detective Granville entered the room, and that Detective Granville located narcotics in a bag on the floor. Willis App'x at 70. In the bag, the officer claimed to find yellow bags commonly used for packaging heroin, and bags that contained crack cocaine and heroin. The drugs found on the floor at 45 Elm were the subject of Counts 10 and 11 charging Willis with possession of heroin and cocaine with intent to distribute and Count 12 charging Pierce with possession of cocaine with intent to distribute. Both defendants were acquitted on these counts.

Later that day, the officers executed a search warrant for the lower apartment at 70 Henrietta. Keys recovered from Willis at his arrest opened the front door at 70 Henrietta, as well as the door to the lower apartment. The officers recovered a cache of weapons including assault rifles, a pistol, magazines, and rounds of ammunition. The officers also recovered 10.35 grams of cocaine base and tools of the drug trade including baking soda, digital scales with traces of white powder, a metal strainer, bags, whisks, a spoon, a fork, a large quantity of small rubber bands, razors, a latex glove, and a metal weight. In addition, the officers seized a title, in Willis's name, to the Chevrolet Equinox that Fuller and Pierce had been driving earlier, insurance documents in the name of Larry Willis, a Buffalo police incident card, a traffic ticket, DMV paperwork, and photographs of Willis and Pierce together.

Later that evening, the officers executed a search warrant for the upper apartment. Keys recovered from Pierce at his arrest opened the front door of 70 Henrietta, the door to the upper apartment, and a padlocked bedroom door in that apartment.

The keys also included a Tops Friendly Markets Bonus Card on the key ring that was connected to the account of Pierce's girlfriend, Courtney Brouse.

Inside the upper apartment, officers recovered a separate cache of weapons that included handguns, a large capacity magazine, rounds of ammunition, a digital scale, packaging materials, and three bags containing 167.98 grams of butyryl fentanyl and heroin. The officers also recovered cocaine base and additional quantities of heroin, fentanyl, and butyryl fentanyl. The total weight of the additional heroin and fentanyl was approximately 50 grams. The weight of the cocaine seized was approximately 142 grams of base, and approximately 253 grams of powder. One of the main factual issues on appeal centers on whether the contraband found in the two apartments could be attributed to either or both defendants.

The arresting officers subsequently obtained warrants to search the phones seized from Willis and Pierce. One of the phones recovered from the Equinox had received texts addressing the recipient as "Zeke," Pierce's nickname, and inquiring about Pierce's girlfriend and daughter, tending to show that the phone belonged to Pierce. The phone had also received a text message saying "Yo, everyone like that tester, said it was real good, the best they seen. But I'm out of work. Got half a bun." Doc. 201 at 19.

Both defendants were subsequently indicted and proceeded to trial. The government's theory was that the two apartments were jointly used by Willis and Pierce to manufacture and distribute drugs. The government argued that Willis resided in the lower apartment, pointing to his ownership of keys to the unit and the presence of his personal effects there. Pierce, according to the government, controlled the upper unit as evidenced by his possession of keys to the unit and to the padlocked interior bedroom where the drugs and guns were found. As evidence of joint control, the government argued that after being taken to 45 Elm, Willis discarded heroin and cocaine wrapped in the same yellow packaging found in the upper unit and that the crack cocaine Pierce discarded at 45 Elm was wrapped in blue envelopes that were the same as those found in the lower unit.

The jury returned a mixed verdict. Willis was convicted of possessing less than 28 grams of cocaine base with intent to distribute (Count 2); possessing powder cocaine with intent to distribute (Count 5); maintaining a drug involved premises (Count 6); possessing a firearm in furtherance of a drug trafficking crime (Count 7); and possession of firearms and ammunition as a felon (Count 9).

Pierce was convicted of possessing 28 or more grams of cocaine base with intent to distribute (Count 2); possessing 100 grams or more of heroin and butyryl fentanyl with intent to distribute (Count 3); possessing 40 grams or more of fentanyl with intent to distribute (Count 4); possessing powder cocaine with intent to distribute (Count 5); maintaining a drug involved premises (Count 6); possessing a firearm in furtherance of drug trafficking (Count 7); and possession of firearms and ammunition as a felon (Count 8).

Both defendants were acquitted of the narcotics conspiracy charged in Count 1, and of possessing the cocaine base and heroin that two officers claimed to have found in the interview rooms at 45 Elm as charged in...