Opinion
No. 07-5756-cr.
March 25, 2009.
Appeal from the United States District Court for the Western District of New York (Siragusa, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in part and VACATED and REMANDED in part.
Appearing for Appellant: Maurice J. Verrillo, Rochester, N.Y.
Appearing for Appellee: Monica J. Richards, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney for the Western District of New York, Buffalo, N.Y.
A jury found defendant-appellant Daniel Carter guilty of (1) conspiring to possess with intent to distribute, and to distribute, 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine and 50 grams or more of a mixture or substance containing cocaine base in violation of 21 U.S.C. §§ 841 and 846 and (2) possessing a firearm in furtherance of a drug trafficking felony in violation of 18 U.S.C. § 924(c)(1)(A)(I). Carter was sentenced principally to a term of imprisonment of 360 months on the narcotics count and a consecutive term of imprisonment of 60 months on the firearm count, for a total of 420 months. Carter now appeals. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.
I. Jury Selection
Prior to trial, Carter objected to the process for jury selection because only 2 out of 67 jurors on the venire panel were African-American. Carter's counsel requested the opportunity to subpoena records from the Western District regarding "how they proceed with regards to sending out notices to the population, where the population is, [and] whether they send notices to areas that are predominantly white in nature as opposed to eth[n]ically diverse." After learning that the Western District selected jurors from voter registration lists and motor vehicle registration records from all nine counties in the Rochester region, without regard to race, Carter argued that the process of deriving names from voter registration lists and motor vehicle registration records was likely to exclude a significant number of African Americans. Carter argues on appeal that the district court erred in failing to allow sufficient discovery on this issue.
Carter failed to preserve this issue, because the district court requested that counsel postpone his subpoena request until after hearing testimony from the Western District staff member responsible for jury subpoenas. Carter did not object to the district court's denial of his motion on the grounds he now argues on appeal — that the district court erred in relying on the testimony of that Western District staff member and failing to request additional statistical information from the Western District. Thus, we review for plain error.United States v. Riggi, 541 F.3d 94, 102 (2d Cir. 2008). "Plain error is (1) error (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.
We have held that "absent positive evidence that some groups have been hindered in attempting to register to vote, a jury venire drawn from voter registration lists violates neither the Sixth Amendment's fair cross-section requirement nor the Fifth Amendment's guarantee of Equal Protection." United States v. Miller, 116 F.3d 641, 659 (2d Cir. 1997) (quotation marks omitted). Carter presented no evidence to establish that "members of any ethnic group had been hindered in their attempts to register to vote or to obtain driver licenses [or register motor vehicles], and did not show any other kind of systematic exclusion of ethnic minorities." Id. at 657. As a result, the record contains no evidence going to a necessary element of a violation of the Fifth or Sixth Amendments. For the same reason, Carter cannot prevail on his claim under the Jury Selection Service Act of 1968, 28 U.S.C. §§ 1861-78.United States v. Rioux, 97 F.3d 648, 660 (2d Cir. 1996).
In light of this deficiency in Carter's claim, and in light of the fact that he provided no statistical support for his contention that the African-American population was underrepresented, we do not find that the district court committed plain error in failing to order further discovery. Nor was it unreasonable for the district court to rely upon the testimony of a Western District staff member familiar with the District's jury selection procedures, rather than the specific staff member who made the request for voter registration lists and motor vehicle records in this case.
II. Wiretap Evidence
Carter moved to preclude wiretap evidence at trial on a variety of grounds. The district court (Telesca, J.) issued an order on August 15, 2006 affirming the Report and Recommendation of the Magistrate Judge (Payson, M.J.) dated June 12, 2006 denying the motion. "In reviewing a ruling on a motion to suppress wiretap evidence, we accord deference to the district court."United States v. Yannotti, 541 F.3d 112, 124 (2d Cir. 2008) (quotation marks omitted).
The case was transferred to Judge Siragusa on August 29, 2006.
First, Carter argues that the district court erred in concluding that the government had shown the necessity for a wiretap. A federal wiretap application must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c). The magistrate judge, whose findings were adopted by the district court, reviewed the affidavit submitted in support of the wiretap order and found, inter alia, that the use of informants and surveillance had not proved sufficient to gain information about the locations of narcotics, the targets were using counter-surveillance techniques, and analysis of paper phone records was insufficient to reveal the specifics of the narcotics network. Carter has not raised any argument suggesting that the district court's findings were not "minimally adequate" to support the conclusion that the wiretap application complied with 18 U.S.C. § 2518(1)(c). Yanotti, 541 F.3d at 124 (quotation marks omitted).
Second, Carter argues that the district court erred in failing to grant a hearing under Franks v. Delaware, 438 U.S. 154 (1978), on whether Officer David Simpson reasonably relied on a confidential informant, Michael Smith, who had fled, as a basis for probable cause for a warrant. But the magistrate judge and, by adoption, the district court did not err in concluding that Officer Simpson was not aware that Smith had fled when he filed his initial wiretap application and that he informed the state court responsible for issuing the relevant wiretap orders of Smith's flight in the first application filed after he became aware. Carter was not entitled to a hearing because he made no "substantial preliminary showing that a deliberate falsehood or statement made with reckless disregard for the truth was included in the warrant affidavit and the statement was necessary to the judge's finding of probable cause."United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) (quotation marks omitted).
Third, Carter argues that the government violated the wiretap orders by intercepting phone calls outside the time frames covered by the court order and collecting, by subpoena, telephone records listing information such as the dates and times of calls. The district court did not err in relying on testimony of a government witness that no audio information was collected outside the periods specified by the orders. Title III does not require law enforcement authorities to obtain court authorization to request the type of telephone records that were obtained by the government by subpoena in this case, because they did not involve interception of any oral communications.Miller, 116 F.3d at 660.
Finally, Carter argues that the government violated its obligation to notify him of the wiretap within ninety days of termination of surveillance by sending the notice to the wrong address. See 18 U.S.C. § 2518(d). However, Carter provides no basis for disturbing the district court's conclusion that the police reasonably sent the notice to the address known to the government as Carter's last residence, where a search warrant was executed, where Carter's personal items were found, and where the landlord advised that Carter resided and was paying rent.
III. Missing Witness Charge
The district court denied Carter's request that a missing witness instruction be given to the jury regarding Michael Smith, a confidential informant who allegedly engaged in a controlled drug transaction with Carter under the supervision of the Rochester Police Department. "We review a district court's refusal to provide a requested missing witness instruction for abuse of discretion and actual prejudice." United States v. Ebbers, 458 F.3d 110, 124 (2d Cir. 2006).
"[W]hen a party has it peculiarly within its power to produce witnesses and fails to do so, the jury may infer that the testimony, if produced, would be unfavorable to that party. However, when a witness is equally available to both sides, the failure to produce is open to an inference against both parties." United States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994) (citations and quotation marks omitted). A district court does not abuse its discretion in refusing to find a witness unavailable when the "defense has no real interest in calling the witness to the stand, but merely is engaged in a form of gamesmanship in an effort to obtain a missing witness charge." United States v. Torres, 845 F.2d 1165, 1170 (2d Cir. 1988).
Carter argues that Smith was uniquely available to the government as a witness because Smith was in federal custody. But Carter's counsel has not argued that he made any efforts to call Smith as a witness. Where defense counsel makes "no effort to contact the witness," we have found that a district court does not abuse its discretion in denying a defendant's missing witness charge. United States v. Gaskin, 364 F.3d 438, 463 (2d Cir. 2004). Thus, we conclude there was no abuse of discretion here.
IV. Confrontation Clause
Carter contends that the admission into evidence of testimony by a police officer who supervised the controlled drug transaction between Carter and Smith constituted a violation of his rights under the Confrontation Clause. In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that the admission of out-of-court "testimonial" statements offered for the truth of the matter asserted violates the Sixth Amendment's Confrontation Clause when the defendant has had no opportunity for cross-examination, even if the statements satisfy the requirements of the hearsay rules. See also United States v. Saget, 377 F.3d 223, 226-27 (2d Cir. 2004).
Carter's brief lists various matters on which Officer Simpson testified related to the circumstances of the controlled drug transaction, but only one portion of this testimony even arguably involves a testimonial statement by a party not subject to cross-examination — Simpson's assertion that Smith stated that he had discussed a plan to purchase cocaine during a telephone conversation with Carter. But we need not resolve whether this statements is testimonial. Carter neither objected to Officer Simpson's testimony regarding Smith's statement at trial nor raised Confrontation Clause grounds, our review is for plain error. Riggi, 541 F.3d at 102. Under plain error review, an error must affect a defendants' substantial rights. "An error affects a defendant's substantial rights if it is prejudicial and it affected the outcome of the district court proceedings." Id. (quotation marks omitted). Any purported error here did not affect the outcome of the district court proceedings. Even absent evidence of the controlled buy, the testimony of other witnesses that Carter engaged in numerous drug transactions provided overwhelming evidence of his guilt.
V. Sufficiency of the Evidence
"We review de novo a challenge to the sufficiency of the evidence and affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt."Yannotti, 541 F.3d at 120 (quotation marks omitted).
Carter argues that the government failed to provide sufficient evidence as to both counts of conviction. With regard to the conspiracy count, two witnesses, Bernard Barr and Jose Albarran, testified directly that they sold drugs to Carter, and several witnesses, including Geoffrey King and Jerry Smith, testified that they bought cocaine from Carter. Carter argues that their testimony was incredible because they had incentives to testify against him due to their plea agreements. But it is well established that "the credibility of witnesses is the province of the jury and we simply cannot replace the jury's credibility determinations with our own." United States v. James, 239 F.3d 120, 124 (2d Cir. 2000) (quotation marks omitted). Moreover, "a federal conviction may be supported by the uncorroborated testimony of even a single accomplice witness if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt."United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006) (quotation marks omitted). The testimony of the cooperating witnesses in this case was not patently incredible.
In order to convict under 18 U.S.C. § 924(c)(1)(A), the government must prove that the defendant (1) possessed a firearm (2) in furtherance of a drug trafficking crime. See United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001). Possession of a firearm may be established by direct or circumstantial evidence. United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998).
Albarran testified that at times when he was either picking up money or delivering cocaine to Carter, he observed something under Carter's shirt that resembled a handgun. Further, Albarran testified that Carter showed him a safe in the basement of King's business and opened it to reveal two guns. King also testified that he stored and transported guns at Carter's behest. We conclude that a rational fact-finder could find both elements of the Section 924(c) violation satisfied here.
VI. Verdict Sheet
Carter argues that a new trial is required because "the Special Verdict Sheet failed to set forth the particular weapon that Mr. Carter allegedly possessed." The district court instructed the jury that "to find the defendant guilty, you must unanimously agree on which firearm or firearms, the Government has proven beyond a reasonable doubt that the defendant possessed in furtherance [of] the drug trafficking crime . . ." In light of this charge, even assuming, without deciding, that the jury had to be unanimous as to the specific firearm possessed, the district court did not err in failing to set forth the weapon on the verdict sheet, as there was no risk of jury confusion due to lack thereof. Cf. United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir. 1986) (indicating that a general unanimity instruction is sufficient to satisfy the unanimity requirement "except in cases where the complexity of the evidence or other factors create a genuine danger of jury confusion").
VII. Habeas Challenge
While represented by counsel and before the entry of the judgment and sentence, Carter filed a pro se motion pursuant to 28 U.S.C. § 2255 arguing ineffective assistance of counsel. Carter argues that the district court erred in failing to address the motion and instead relieving Carter's trial attorney and assigning new counsel. Carter's new counsel did not renew his habeas petition or raise any ineffectiveness claims. Thus, we do not find that the district court committed any error in failing to consider Carter's petition filed prematurely before Carter was "under sentence of a court." 28 U.S.C. § 2255(a).
VIII. Sentence
On the narcotics count, the district court sentenced Carter to imprisonment for 360 months, which falls at the high end of the applicable United States Sentencing Guidelines range of 292 to 365 months. Carter argues that the district court committed both procedural and substantive errors. We review a sentence under an abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).
The district court applied a sentencing enhancement in calculating the Guidelines range based on its finding of a drug quantity of 50 kilos or more of cocaine. Carter argues that the district court's drug quantity finding was not established by a preponderance of the evidence. According to Albarran's testimony alone, Albarran sold Carter between 50 and 100 kilograms of cocaine between 2002 and the end of March 2004. The district court did not err in relying on the testimony of cooperating witnesses Albarran, King, and others as to the amount of cocaine.
Carter argues that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 (2000), by failing to seek a special jury interrogatory as to the drug quantity. Because Carter's sentence was not beyond the statutory maximum,Apprendi is inapplicable. See id. at 490.
We reject Carter's argument that his sentence on the narcotics count was substantively unreasonable as meritless. The record reflects that the district court considered all of the issues raised by Carter on appeal at sentencing and took into account the factors under 18 U.S.C. § 3553(a).
However, there is one issue that requires remand. At sentencing, the district court concluded that "whatever you receive on [the narcotics count], five additional years consecutive must be added on [the Section 924(c)(1)(A) count]." This reasoning is inconsistent with the rationale of our recent holding in United States v. Williams, ___ F.3d ___, 2009 WL 563644 (2d Cir. Mar. 5, 2009). Thus, we vacate the district court's sentence and remand for resentencing, consistent with Williams.
We have considered all of Carter's remaining contentions on this appeal and have found them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part and VACATED and REMANDED in part for further proceedings consistent with this order.