                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-5-2008

USA v. Paulk
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1083




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"USA v. Paulk" (2008). 2008 Decisions. Paper 266.
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                                                      NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                             No. 06-1083



                  UNITED STATES OF AMERICA

                                   v.

                         LEONARD PAULK,
                           A/K/A “Pooh”

                              Leonard Paulk,
                                      Appellant


            On Appeal from the United States District Court
                     for the District of New Jersey
                        (D.C. No. 03-cr-00228-2)
               District Judge: Honorable Freda Wolfson




              Submitted Under Third Circuit LAR 34.1(a)
                          October 30, 2008

 Before: SLOVITER, STAPLETON, and TASHIMA,* Circuit Judges

                      (Filed: November 5, 2008)


                              OPINION




        *
           Honorable A. Wallace Tashima, Senior Judge of the
  United States Court of Appeals for the Ninth Circuit, sitting by
  designation.
SLOVITER, Circuit Judge.

       Leonard Paulk was convicted, following a jury trial, of one count of conspiracy to

distribute narcotics, in violation of 21 U.S.C. § 846 (count 1), and one count of

distribution of crack cocaine, or cocaine base, in violation of 21 U.S.C. § 841(a) and 18

U.S.C. § 2 (count 3). On appeal, Paulk argues that there was insufficient evidence to

support his conviction on count 3. Paulk also argues that the District Court’s jury

instructions on aiding and abetting were erroneous; that the District Court improperly

admitted certain evidence; and that the District Court erred in its conclusion that a life

sentence was mandatory under 21 U.S.C. § 841(b). We will affirm.

                                              I.

       Underlying this appeal is a long history of widespread drug dealing on the streets

of Camden, New Jersey. Because we write primarily for the parties, we do not review the

facts in detail. In sum, the government charged, and the jury convicted, Paulk of

conspiracy to distribute crack cocaine as well as aiding and abetting a specific crack

cocaine transaction. After his conviction, the District Court denied Paulk’s motion for a

judgment of acquittal. The Court found that the record contained “overwhelming

evidence,” App. at 18, of Paulk’s participation in the drug conspiracy charged in the

indictment, and we see no reason to disturb that conclusion. The District Court also

found that there was sufficient evidence to show that Paulk was a culpable participant in

the specific transaction underlying count 3. Paulk was sentenced to two concurrent terms



                                              2
of life imprisonment and required to pay a $15,000 fine and $200 special assessment.

       We turn to Paulk’s principal contention on appeal regarding the insufficiency of

evidence on count 3. The essence of the government’s case on count 3 was that Paulk

aided and abetted a transaction in which Jose Perez (a cooperating witness) purchased

four and one-half ounces of crack cocaine from Darnell Tuten on March 26, 2002. Paulk

had long relationships of drug dealing with both Tuten and Perez, and it was Perez’s

evidence that formed the basis of the government’s case against Paulk on count 3.

       Paulk concedes that the jury could have believed that Paulk referred Perez to Tuten

as a potential contact for drugs and vouched for Tuten’s integrity and reliability to Perez.

Appellant’s Br. at 26. Perez had a conversation with Paulk which Perez testified meant

that Paulk “wants me to hook up with [Tuten], and set it up, and he’s telling me the guy is

good.” Supp. App. at 135. In light of the record, we reject Paulk’s contention that the

District Court clearly erred in reading that sentence to suggest that Paulk in fact set it up

for Perez to deal with Tuten.

       It was up to the jury to decide whether Paulk aided and abetted the subsequent

transaction on March 26, 2002. The jury’s determination could well have been confirmed

by the conversation three days later in which Perez informed Paulk that he had purchased

drugs from Tuten, after which Paulk assured Perez that Tuten was “good people” and

that Paulk would not recommend anyone to Perez “that’s not right.” App. at 175.2.

Moreover, the jury heard Perez’s testimony that Paulk was “trying to hook us up. I didn’t



                                               3
want to mess with [Tuten], but [Paulk’s] trying to set us up,” App. at 161, and that Paulk

was the “one who set the whole thing up.” App. at 209. Indeed, Perez testified that Tuten

told him that Paulk had “talked to [Tuten] about me, and that we should hook up,” App. at

175, and that before this, Tuten “wouldn’t even speak to me.” App. at 209. Finally, even

excluding evidence related to cocaine and heroin transactions implicitly rejected by the

jury’s special verdict on count 1, the jury heard sufficient evidence to conclude that Tuten

and Paulk had an on-going drug dealing relationship such that Paulk could reasonably

expect to benefit from facilitating the Perez-Tuten transaction. Cf. United States v.

Frorup, 963 F.2d 41, 43-44 (3d Cir. 1992) (“[T]he jury had evidence to find that Frorup

abetted Williams’s possession by procuring the customers and maintaining the market in

which the possession is profitable . . . .”) (quotation omitted). In sum, there was

sufficient evidence for a rational jury to conclude that Paulk had attempted to facilitate

the subsequent Perez-Tuten drug transaction.

       Similarly, we also reject Paulk’s remaining arguments. As to Paulk’s contention

that the District Court’s jury instructions on aiding and abetting were erroneous, given

that Paulk failed to object at trial, we review the instructions only for plain error. Reading

them as a whole, we cannot say that the District Court’s instructions were plainly

erroneous because the District Court correctly recited the black letter elements of aiding

and abetting liability and advised the jury that Paulk could not be deemed guilty of aiding

and abetting solely by vouching for Tuten to Perez, but rather that the government had to



                                              4
prove something more, such as an on-going personal or financial relationship between

Paulk and Tuten. Next, we cannot agree with Paulk’s contention that the District Court

erred by admitting evidence that a trained drug-sniffing dog reacted positively to money

contained in Paulk’s minivan. The District Court found that the government

demonstrated that the dog and his handler were well-trained in the field, had successfully

completed drug searches in the past, and that the evidence would be helpful to the jury as

circumstantial evidence that the money resulted from unlawful activity. Moreover, the

District Court did not abuse its discretion in rejecting Paulk’s expert testimony of the

unreliability of such dog sniffing evidence in light of the manifest shortcomings of that

testimony. Finally, we reject Paulk’s challenge to his sentence because the District Court

properly concluded that it was not free to disregard the statutory minimum sentence

imposed by 21 U.S.C. § 841(b). United States v. Kellum, 356 F.3d 285, 289 (3d Cir.

2004).

                                             II.

         For the above-stated reasons, we will affirm the judgment of conviction and

sentence.




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