                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1632




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 04-1632
                                      ____________

                            UNITED STATES OF AMERICA

                                                  v.

                                 DERRICK BULLARD,

                                            Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 01-cr-00456-02)
                      District Judge: Honorable Petrese B. Tucker
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 9, 2005

            Before: RENDELL, FISHER and GREENBERG, Circuit Judges.

                               (Filed: December 13, 2005)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

                                             I.

       Appellant Derrick Bullard was convicted by a jury of conspiracy to possess with

intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. In
a special interrogatory, the jury found that Bullard had previously been convicted of

another felony drug offense prior to the date of the offense at bar. The District Court

sentenced Bullard to 20 years’ imprisonment, the statutory minimum under 21 U.S.C.

§ 841(b)(1)(A).

       Bullard challenges his conviction and sentence on several grounds. For the

reasons that follow, we will affirm the conviction and sentence.

                                             II.

       As we write only for the parties, who are familiar with the factual context of the

case, we will set forth only those facts necessary to our analysis. Bullard was arrested

during an investigation of one Phillip Berry, from whom agents of the Drug Enforcement

Administration (“DEA”) had previously made three purchases of crack cocaine using a

confidential informant. The informant was given marked cash with which to make the

purchases, and wore a hidden microphone during the transactions. The agents retained

the cocaine, and searched the informant before and after each purchase.

       The fourth transaction occurred on July 10, 2001. Monitored by agents of the

DEA and the Philadelphia Police Department, the informant entered Berry’s house and

was told by Berry that the cocaine was not there, but soon would be. The informant

waited with Berry for twenty minutes, then left the house and returned to the agents’

vehicle. At the direction of the agents, the informant called Berry several times over the

next hour to ask when the cocaine would be available. After an hour, a car drove up and



                                             2
parked in front of Berry’s house. Bullard got out of the car and entered Berry’s house.

As Bullard approached the house, Berry called the informant and told him that the

cocaine had just arrived. The informant then entered the house and paid Berry $1900 for

two ounces of cocaine. The transaction was monitored and recorded by the agents. The

informant then returned to the agents’ vehicle, turned over the cocaine, and reported that

the man who had just arrived in the car (Bullard) was present during the transaction, and

that after the informant gave the money to Berry, Berry had handed some of the money to

the other man.

       Bullard then returned to his car and drove away. The police immediately stopped

the car, and searched it and Bullard’s person. A gun was recovered from the car, and

Bullard was found to be carrying $1500 of the marked cash that the informant had just

paid to Berry for the cocaine.

                                             III.

                                             A.

       Bullard first contends that the District Court erred in denying his motion to

suppress introduction of the gun and the money on the ground that the government’s

confidential informant was not reliable. We review the denial of a motion to suppress for

clear error as to the underlying facts, and we exercise plenary review of the District

Court’s application of law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d

Cir. 2002).



                                              3
       The basis for Bullard’s charge of unreliability is the fact that the informant

admitted to using drugs three weeks prior to Bullard’s arrest, and was later terminated as

an informant by the DEA for attempting to keep for himself some of the cocaine he

purchased during controlled buys. We need not decide whether these facts so impugn the

informant’s reliability as to vitiate probable cause, however, because Bullard was not

arrested on the word of the informant. Bullard was arrested, rather, on the basis of a

cocaine transaction personally observed by DEA agents in which Bullard’s participation

could reasonably be inferred. The agents brought the informant to the house where the

informant sought to buy cocaine, and heard (via microphone) Bullard’s co-conspirator,

Berry, tell the informant that the cocaine was not yet available. The agents waited with

the informant while he repeatedly called Berry and asked when the cocaine would arrive.

They then witnessed Bullard drive up to the house, park his car, and go inside, and

immediately thereafter heard Berry call the informant and tell him that the cocaine had

arrived. The agents then gave the informant $2000 in marked cash, and the informant

went into the house. The agents listened to the transaction via the informant’s

microphone. The informant then left the house and delivered the cocaine to the agents.

       The probable cause that supported the search and arrest of Bullard was provided

by the agents’ firsthand observation of Bullard’s actions. This is not a situation in which

an informant had told the agents that there were drugs for sale at a particular house, and

the agents had then stopped Bullard as he was approaching that house, solely on the basis



                                              4
of the informant’s statement. In such a situation, the reliability of the informant would at

least be relevant to the suppression motion, though not necessarily dispositive. See

Illinois v. Gates, 462 U.S. 213, 230-38 (1983) (evaluating the use of confidential

informants to support probable cause and proscribing a “flexible,” “totality-of-the-

circumstances” analysis). But the case at bar differs from the hypothetical in the crucial

respect that the agents did not stop Bullard until after they, the agents, had actually

observed a completed cocaine transaction in which Bullard reasonably appeared to

participate. They did not rely on the informant to establish that Berry was offering

cocaine for sale – they had observed three prior transactions, and heard Berry discuss this

one on the telephone. They did not rely on the informant to establish the reasonable

probability that Bullard had brought the cocaine to the house – they heard Berry

repeatedly aver that the cocaine was not there yet, and then, immediately upon Bullard’s

arrival at the house, telephone the informant to report that the cocaine had arrived. This is

simply not a case in which the government’s search was based on questionable informant

testimony.1 The agents saw for themselves all that they needed to see.


       1
         We thus disagree with Bullard’s contention that “[o]ther than the Informant’s
statement [that he saw Berry give some of the buy money to Bullard] there was not one
scintilla of evidence” justifying the search of Bullard and his car. (See Appellant’s Br. at
9). It is true that because the agents had only audio surveillance of the transaction, they
did not observe Berry giving the money to Bullard. But the informant’s statement was
not the only evidence linking Bullard to the transaction, nor was it the informant’s “naked
word.” (Id. at 10.) The firsthand observation by the agents of the sequence of events
described above is sufficient to establish probable cause, and places the informant’s
statement in an objectively verifiable factual context.

                                              5
                                                B.

       Second, Bullard argues that the court erred by admitting testimony from Berry

about prior drug transactions between Berry and Bullard. Under Federal Rule of

Evidence 404(b), evidence of prior bad acts may not be introduced to show propensity to

commit further bad acts. However, the rules permit introduction of such evidence for a

number of purposes, including “to show criminal intent and the absence of innocent

association.” United States v. Butch, 256 F.3d 171, 177 n.5 (3d Cir. 2001). We review

404(b) admissibility determinations for abuse of discretion. Id. at 175.

       In this case, one of the counts was conspiracy. In a conspiracy case, the

government must prove an agreement between two or more people to commit an illegal

act. The charges necessarily involve a relationship of some sort; whether that relationship

constitutes a criminal conspiracy depends upon what the people involved said and did

with one another. Upon his arrest, Bullard explained the presence of the marked cash to

the agents who stopped him by stating that he had sold Berry some cable boxes.2 The

nature of the relationship between Bullard and Berry is thus precisely what the

government had to prove. Berry’s testimony, which detailed that relationship and negated

the possibility of innocent association, was therefore offered for a permissible purpose

under Rule 404(b).




       2
           At trial, he testified that Berry had given him the money to buy Berry a car.

                                                6
       If the purpose for its introduction is permissible, then relevant prior bad acts

evidence will be admissible if “its probative value . . . outweigh[s] its potential for unfair

prejudice,” and if “the court . . . charge[s] the jury to consider the evidence only for the

limited purposes for which it is admitted.” United States v. Givan, 320 F.3d 452 (3d Cir.

2003). Both of these requirements are met here.

       The probative value of establishing the prior relationship between Berry and

Bullard significantly outweighs any unfair prejudice to Bullard that might ensue from its

introduction. Indeed, there appears to be no unfair prejudice here at all. The relationship

between Berry and Bullard is part of the conspiracy charge, so Bullard is not unfairly

prejudiced with respect to that charge by having the relationship exposed. The relevant

prejudice is not simply the tendency to hurt the defendant’s case, but rather the tendency

to hurt the defendant’s case for reasons not relevant to the charge. Thus if Berry had

testified, for example, that his relationship with Bullard included prior bad acts having

nothing to do with drugs, but which were widely viewed with moral disapprobation, then

unfair prejudice might be in issue. But it does not arise in a case in which the testimony

goes plainly, and solely, to the existence of the relationship at the heart of the conspiracy

charge. We have repeatedly upheld prior bad acts evidence under Rule 404(b) in such

circumstances. See United States v. Givan, 320 F.3d 452 (3d Cir. 2003); United States v.

Cross, 308 F.3d 308 (3d Cir. 2002); United States v. Boone, 279 F.3d 163 (3d Cir. 2002);




                                               7
United States v. Vega, 285 F.3d 256 (3d Cir. 2002); United States v. Butch, 256 F.3d 171

(3d Cir. 2001).

       The final condition for 404(b) admissibility was met when the District Court gave

the jury a careful limiting instruction on the scope and limits of the inferences that could

be permissibly drawn from Berry’s testimony, as follows:

       I must stress to you that you may not consider this evidence [to be] any
       reflection on the defendant’s character or his propensity to commit the
       crimes charged in the indictment. The evidence that is being offered is
       evidence that the defendant engaged in prior cocaine transactions [and] may
       be considered by you only to the extent that it bears upon Mr. Bullard’s
       knowledge of selling drugs, and how it bears upon his relationship with Mr.
       Berry, and whether Mr. Bullard trusted Mr. Berry, Mr. Bullard’s knowledge
       regarding the crimes charged, his intent to commit the crimes charged, and
       to rebut any claim of lack of intent.

App. 202.

       Because Berry’s testimony was relevant to the charge, was introduced for a

permissible purpose, was accompanied by a limiting instruction, and did not entail unfair

prejudice greater than its probative value, it was admissible under 404(b).

                                               C.

       Bullard’s third issue on appeal is that there was insufficient evidence to sustain a

guilty verdict. He failed to raise this issue at trial, so we apply a plain error standard of

review. United States v. Powell, 113 F.3d 464, 466-67 (3d Cir. 1997).

       There was no plain error here. There was ample evidence upon which a

reasonable jury could base a verdict of guilty beyond a reasonable doubt. Contrary to



                                               8
Bullard’s contention, the government’s case was not based on a “mud against the wall

theory,” in which all the evidence of criminality points solely to Berry, and Bullard was

guilty only by association with Berry. The evidence against Bullard was not his

association, simpliciter, with Berry, but rather the marked cash he was carrying, the gun

in his car, the fact that his arrival at Berry’s house coincided with Berry’s call to the

informant to let him know that the cocaine had finally arrived, and detailed testimony

from Berry about the existence of the conspiracy between Bullard and Berry and the

repeated transactions in which they had been involved. At trial Bullard cross-examined

Berry, and took the stand to tell his side of the story. If the jury believed Berry and not

Bullard, that is a credibility determination which is solely for the jury to make.

                                              D.

       Finally, no remand is necessary under United States v. Booker, 125 S. Ct. 738

(2005), and United States v. Davis, 407 F.3d 162 (3d Cir. 2005). Bullard was sentenced

to the statutory minimum sentence of 240 months – the lowest possible sentence he could

receive as a convicted drug offender with a prior felony conviction. The statutory

mandatory minimum was above the Sentencing Guidelines range, which was 188-235

months. Guidelines or no guidelines, the judge simply could not go any lower pursuant to

the statute under which Bullard was convicted.3


       3
        We should note that the “substantial assistance” and “safety valve” provisions of
Title 18, 18 U.S.C. §§ 3553(e) and (f), are not applicable here. Under § 3553(e), “the
court shall have the authority to impose a sentence below the level established by statute

                                               9
       In Davis, we identified two potential sources of sentencing error following Booker.

District courts might base sentences on facts neither admitted by the defendant nor found

by the jury, or district courts might treat the guidelines as mandatory rather than advisory.

407 F.3d at 163-64. Because of the difficulty of demonstrating prejudice on appeal, we

held that defendants sentenced under the pre-Booker mandatory guidelines regime did not

need to show prejudice. Instead we decided to remand all pre-Booker guidelines

sentences for re-sentencing in the new advisory regime. Id. at 165. When there is

uncertainty as to the effect of the guidelines on the sentence, in other words, we presume

prejudice and remand.

       Davis did not, however, mandate remand where there is no such uncertainty. In

United States v. Hill, 411 F.3d 425 (3d Cir. 2005), we declined to remand under Davis

where the district court had “clearly indicate[d] that an alternative sentence would be

identical to the sentence imposed under the Guidelines.” Hill, 411 F.3d at 426.4


as a minimum sentence,” but only “upon motion of the Government,” and only “so as to
reflect a defendant’s substantial assistance in the investigation or prosecution of another
person.” Here the Government did not make such a motion, nor did Bullard provide any
assistance. Under § 3553(f), the court may also impose a sentence below the statutory
mandatory minimum, but only if the court makes several enumerated findings at
sentencing, including that “the defendant did not . . . possess a firearm . . . in connection
with the offense,” that the defendant “was not engaged in a continuing criminal
enterprise,” and that “the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense or offenses that were
part of the same course of conduct . . .” The District Court made no such findings here,
nor could it have on the facts of this case.
       4
        In Hill, there was also no question of factfinding at sentencing. The court “based
[the sentence] solely on [the defendant’s] criminal history and the factual stipulations

                                              10
       In this case, Bullard’s sentence was based entirely on his conviction by the jury of

conspiracy to distribute cocaine base. Under 21 U.S.C. § 846, “[a]ny person who

attempts or conspires to commit any offense defined in this subchapter shall be subject to

the same penalties as those proscribed for the offense, the commission of which was the

object of the attempt or conspiracy.” Here the underlying offense is given in 21 U.S.C.

§§ 841(a)(1) and (b)(iii): “[I]t shall be unlawful for any person knowingly or

intentionally to possess with intent to . . . distribute . . . 50 grams or more of a mixture or

substance . . . which contains cocaine base.” The statutorily prescribed penalty is given in

§ 841(b). For possession with intent to distribute 50 grams or more of a mixture

containing cocaine base, the minimum sentence is “not more than 10 years,” and where

the defendant has “a prior conviction for a felony drug offense, such person shall be

sentenced to a term of imprisonment which may not be less than 20 years.”

       Bullard did have a prior conviction for a felony drug offense, and the fact that he

had such a conviction was submitted to and specifically found by the jury.5 A minimum

sentence of 20 years was therefore required based solely on the facts found by the jury

and the command of the statute.




contained.” 411 F.3d at 426.
       5
         App. 615-16 (“Do you unanimously agree by proof beyond a reasonable doubt
that the defendant committed the offense of conspiracy to possess with intent to distribute
more than 50 grams of cocaine base, as charged in Count 1 of the indictment, after having
been convicted of a felony drug offense prior to July 10th, 2001? – Yes, we do.”).

                                               11
       This situation is analogous to the one we faced in Hill. In Hill, the sentence would

have been exactly the same under non-binding guidelines. In this case, though we cannot

say that a new sentence imposed in the light of Booker would be identical, it is certain

that as a matter of law it could not be any lower.6 The principle is therefore the same:

sentencing under a mandatory guidelines regime can have occasioned no possible

prejudice to Bullard.7

                                            IV.

       Because we discern no error in Bullard’s conviction or sentence, we will affirm the

judgment of the District Court.




       6
        The District Court explained the statutory requirements to Bullard at the
sentencing hearing. “Well, the Court can’t downwardly depart because there is a
mandatory minimum, and the statute says that you have to receive at least a particular
sentence. So there is no such thing as a downward departure here. . . . The statute tells
me that I have to give you at least 240 months.” App. 634. The District Court further
explained that the Sentencing Guidelines had nothing to do with determining the
sentence. “The guidelines are I think 188 to 235 months. That’s not what determines
your sentence in this case. What determines the sentence in this case is the statute. . . .
The statute is a mandatory minimum of 240 months.” Indeed, because the guidelines
range was below the statutory minimum, under a mandatory guidelines regime any
sentence above 20 years would have been an upward departure necessitating a variety of
specific factual findings. See U.S. Sentencing Guidelines Manual § 5.K.2. In the new
advisory regime, however, a sentence on remand could go as high as life, subject only to
review for “reasonableness.”
       7
        We do not need to reach the question whether Booker contemplates harmless error
analysis, because there was no error in this case. As the District Court explained at the
sentencing hearing, Bullard’s sentence was not calculated with reference to the
guidelines, because the statutory minimum was above the guidelines range. Because this
was not a guidelines sentence but a purely statutory one, Booker is not implicated.

                                             12
