12-2687-cr
United States v. James

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



       At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 11th day of April, two thousand thirteen.

Present:    BARRINGTON D. PARKER,
            SUSAN L. CARNEY,
                  Circuit Judges,
            JED S. RAKOFF,
                  District Judge.*
______________________________________________________
                                                      |
UNITED STATES OF AMERICA,                             |
                                                      |
                  Appellee,                           |
                                                      |
                    v.                                |                    No. 12-2687-cr
                                                      |
MICHAEL JAMES,                                        |
                                                      |
                  Defendant-Appellant,                |
                                                      |
and                                                   |
                                                      |
VINCENT LAWRENCE,                                     |
                                                      |
                  Defendant.                          |
______________________________________________________|




        *
          The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New
York, sitting by designation.
Appearing for Appellant:         Jane Fisher-Byrialsen, Fisher, Byrialsen & Kreizer
                                 PLLC, New York, NY.

Appearing for Appellee:          Kan M. Nawaday (Hadassa Waxman, Jennifer G.
                                 Rodgers, on the brief), Assistant United States
                                 Attorneys, for Preet Bharara, United States
                                 Attorney for the Southern District of New York.

      Appeal from the United States District Court for the Southern District of

New York (Robert P. Patterson, Jr., Judge). ON CONSIDERATION WHEREOF, it

is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the

District Court be and it hereby is AFFIRMED.

      Defendant-Appellant Michael James appeals from a June 28, 2012 judgment

of conviction entered by the District Court (Patterson, J.) following a four-day jury

trial. The jury convicted James of one count of conspiracy to distribute and possess

with intent to distribute 100 kilograms and more of marijuana, in violation of 21

U.S.C. §§ 846 and 841(a)(1), (b)(1)(B). We assume the parties’ familiarity with the

underlying facts, the procedural history, and the issues on appeal, to which we refer

only as necessary to explain our decision.

      The indictment alleged that from sometime in 2000 through his arrest on

December 2, 2010, James and others – including a co-conspirator later identified as

Vincent Lawrence – conspired to distribute more than 100 kilograms of marijuana

in the greater New York area. As overt acts, the indictment alleged that (1) on

August 30, 2004, Lawrence possessed approximately $650,000 in cash in the

vicinity of East Gun Hill Road in the Bronx; (2) on December 22, 2005, James

possessed approximately five pounds of marijuana in the vicinity of Edson Avenue

in the Bronx; (3) on December 2, 2010, James possessed approximately five pounds


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of marijuana in a livery cab in the Bronx; and (4) on December 2, 2010, Lawrence

possessed approximately twenty-five pounds of marijuana in the vicinity of Hicks

Avenue in the Bronx.

      Several months before trial, the Government offered James an agreement

pursuant to which he would plead guilty to the lesser included offense of conspiring

to distribute more than fifty kilograms of marijuana – a charge which, unlike the

100 kilogram conspiracy alleged in the indictment, did not carry a mandatory

minimum sentence. At a plea hearing held on January 10, 2012, James attempted

to allocute to his participation in the conspiracy referred to in the proposed plea

agreement, but after finding James’s admissions unclear and inconsistent, the

District Court refused to accept his plea and continued the hearing so that James

could consult with his attorney. The following day, James returned to court with a

new attorney and stated that he no longer wished to plead guilty and had decided to

proceed to trial. In February 2012 and again in March 2012, the Government

offered plea agreements similar to the January agreement in that they did not

include a mandatory minimum sentence, but James rejected both offers and

proceeded to trial.

      At trial, the Government adduced significant evidence showing the existence

of the conspiracy alleged in the indictment. For example, Lawrence testified that

he and James purchased large quantities of marijuana (sometimes as much as

eighty pounds, three times per week) from a rotating cast of suppliers, shared

several “stash houses” where they stored and packaged their marijuana for resale,

and referred pound-weight marijuana customers to each other for a commission. A


                                           3
witness named Andre Davidson testified about an occasion in 2005 on which he sold

to James between eight and ten pounds of marijuana that Davidson had stolen from

a drug dealer during an armed robbery in Yonkers. An agent with the Drug

Enforcement Administration testified about the August 2004 seizure of

approximately $650,000 from a vehicle in which James’s alleged co-conspirator

Vincent Lawrence was riding (the first overt act alleged in the indictment), and the

December 2005 arrest of James and seizure from his home of approximately five

pounds of marijuana (the second overt act alleged in the indictment). A detective

with the New York City Police Department testified about James’s December 2010

arrest and the simultaneous seizure of approximately five pounds of marijuana

from the knapsack of James’s twelve-year-old daughter, who was with him when he

was arrested (the third overt act alleged in the indictment). In addition, another

law enforcement agent testified that, following James’s December 2010 arrest,

James admitted that he had sold ten to twenty pounds of marijuana weekly since

2000; stated that he had recently begun referring customers to Lawrence; and

directed agents to Lawrence’s home, where James said they would find between

fifty and 100 pounds of marijuana.

      The jury convicted James of one count of conspiracy to distribute and possess

with intent to distribute 100 kilograms and more of marijuana (the crime alleged in

the indictment), and the District Court sentenced him principally to seventy-eight

months’ imprisonment.

      On appeal, James contends that the District Court erred first by refusing to

accept his attempted guilty plea in January 2012. He also contends that the


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District Court erred at trial by admitting evidence concerning: first, his possession

of sizable quantities of marijuana in December 2005 and December 2010; second,

Davidson’s participation in an armed robbery; and third, the discovery of marijuana

in his twelve-year-old daughter’s knapsack. We address – and reject – each of

James’s arguments in turn.

      A.     The District Court’s Refusal to Accept James’s Guilty Plea

      We review a district court’s decision not to accept a guilty plea for abuse of

discretion. United States v. Severino, 800 F.2d 42, 46-47 (2d Cir. 1986).

      Under Federal Rule of Criminal Procedure 11, a district court may enter

judgment on a guilty plea only if, among other things, it determines “that there is a

factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “[I]f the court has reasonable

grounds for believing that acceptance of the plea would be contrary to the sound

administration of justice, it may reject the plea.” Severino, 800 F.2d at 46. One

such ground “is the defendant’s failure to satisfy the court that there is a factual

basis for the plea.” Id. (internal quotation marks and brackets omitted). Indeed, as

we recently explained, “[i]t is error for the court to find that a factual basis exists

when the defendant actively contests a fact constituting an element of the offense in

the absence of circumstances warranting the conclusion that the defendant’s

protestations are unworthy of belief.” United States v. Culbertson, 670 F.3d 183,

190 (2d Cir. 2012) (internal quotation marks omitted).

      The transcript of the January 10, 2012 plea hearing reveals that James gave

inconsistent and unclear answers to the District Court’s questions about the nature

and scope of the charged conspiracy. For example, James answered “yes” to the


                                            5
question, “[D]id you knowingly and intentionally agree with Mr. Lawrence to

distribute and possess with intent to distribute . . . 50 kilograms and more of

marijuana?”, but when the District Court asked James what he had done in

furtherance of the conspiracy, James at first answered only that he “had five

pound[s] of marijuana in a bag.” App. 34. In addition, when it came to the sources

of his supply, James first denied that Lawrence provided him with marijuana, but

later stated that he obtained marijuana from Lawrence “[e]very other week.” App.

40. James’s statements about the quantity of marijuana involved in the conspiracy

were equally muddled. At one point, he stated that he purchased five kilograms at

a time from suppliers other than Lawrence, but when the District Court asked him

whether he “always bought at least five kilograms at a time,” James answered, “Not

really.” App. 37. As to the amount of marijuana supplied to him by Lawrence,

James stated that he “may” have received a total of “between four and ten” pounds,

but when the District Court asked, “How much did you get every other week?”,

James responded, “I don’t know what to say.” App. 40. As these examples

demonstrate, James’s allocution was confused as to several essential elements of

the charged conspiracy. Given this record, the District Court did not abuse its

discretion in declining to accept James’s guilty plea.1 See Fed. R. Crim. P. 11(b)(3);

Severino, 800 F.2d at 46.




       1
         Even were we to find an abuse of discretion, however, James still would not prevail. As
noted above, the Government’s plea offer remained open at least through January 11, 2012, when
James appeared in court with a new attorney and stated that he intended to proceed to trial. Having
affirmatively rejected the Government’s offer, James likely waived his right to claim its benefit. See
United States v. Gomez, 617 F.3d 88, 92 (2d Cir. 2010) (“Waiver is the intentional relinquishment or
abandonment of a known right.” (internal quotation marks and brackets omitted)).

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      B.     The District Court’s Evidentiary Rulings

      We review a district court’s evidentiary rulings for abuse of discretion,

United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009), and will reverse “only if

the government is unable to demonstrate that the error was harmless, that is, that

the error did not affect the defendant’s substantial rights or influence the jury’s

verdict,” United States v. Madori, 419 F.3d 159, 168 (2d Cir. 2005) (quoting United

States v. Tubol, 191 F.3d 88, 96-97 (2d Cir. 1999)).

      James’s evidentiary challenges center on Federal Rule of Evidence 404(b),

which provides that “[e]vidence of a crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” Fed. R. Evid. 404(b). Such evidence is,

however, admissible for other purposes, “such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Id. Our Court follows the “inclusionary” approach, pursuant to which we

admit “all ‘other act’ evidence that does not serve the sole purpose of showing the

defendant’s bad character and that is neither overly prejudicial under Rule 403 nor

irrelevant under Rule 402.” United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011).

      James first argues that the District Court erred in admitting evidence of his

possession of five pounds of marijuana on December 22, 2005, and five pounds of

marijuana on December 2, 2010. According to James, this evidence should have

been excluded under Rule 404(b). We disagree and discern no error here. Rule

404(b) “bars the admission of a defendant’s uncharged crimes to prove propensity to

commit the crime charged.” United States v. Concepcion, 983 F.2d 369, 392 (2d Cir.


                                           7
1992) (emphasis added); see also Curley, 639 F.3d at 56 (noting that Rule 404(b)

governs the admissibility of “‘crimes, wrongs or acts’ other than those charged in

the indictment” (emphasis added)). An act “that is alleged to have been done in

furtherance of the alleged conspiracy . . . is not an ‘other’ act within the meaning of

Rule 404(b); rather, it is part of the very act charged.” Concepcion, 983 F.2d at 392.

James’s possession of five pounds of marijuana on December 22, 2005, and

December 2, 2010, were charged as overt acts in the indictment. Accordingly,

evidence of James’s possession of marijuana on these occasions was not subject to

the strictures of Rule 404(b). Id.; see also United States v. Thai, 29 F.3d 785, 812

(2d Cir. 1994). Nor has James identified any “unfair prejudice” that would render

evidence of his possession of sizable quantities of marijuana in 2005 and 2010 –

during the pendency of the charged conspiracy – inadmissible under Federal Rule of

Evidence 403. Cf. Old Chief v. United States, 519 U.S. 172, 180-81 (1997).

      James next argues that the District Court erred in allowing Andre Davidson

to testify about his 2005 sale to James of eight to ten pounds of stolen marijuana.

We again disagree and discern no abuse of discretion in the District Court’s ruling.

Davidson’s testimony was direct evidence of the charged conspiracy because it

tended to show that James knowingly dealt in quantities of marijuana consistent

with a drug trafficking operation and served as a fence for large amounts of stolen

narcotics. Where, as here, “other-act evidence is relevant to prove a material fact

other than the defendant’s propensity,” such evidence “is not barred by Rule




                                           8
404(b).”2 Concepcion, 983 F.2d at 392. In addition, although the details of

Davidson’s acquisition of the marijuana were admittedly dramatic, any error in

admitting testimony about the robbery itself was harmless for at least two reasons.

First, Davidson testified unequivocally that James played no role whatsoever in

planning or carrying out the robbery. Indeed, Davidson explained that the first

time he met James was when he sold James the stolen drugs. Second, the evidence

against James was significant. As explained above, that evidence consisted

principally of Vincent Lawrence’s detailed (and corroborated) testimony, as well as

James’s own post-arrest statements admitting to large-scale drug dealing and

linking himself to Lawrence.

       Finally, James argues that the District Court erred in admitting testimony

that he stored five pounds of marijuana in his twelve-year-old daughter’s knapsack,

principally because evidence of his daughter’s age was unfairly prejudicial. This

argument, too, is unavailing. On the one hand, James’s placement of a large

amount of marijuana in his young daughter’s knapsack was probative of the

charged offense because it tended to show a level of secrecy and evasion consistent

with his knowing and intentional participation in a large-scale drug trafficking

conspiracy. On the other hand, at no point did the Government suggest that James

involved his daughter in his criminal activities beyond this one occasion; nor did the

Government suggest that James ever placed his daughter in danger. On balance,


       2
          We also note that at the conclusion of the Government’s direct examination of Davidson,
the District Court instructed the jury that it had “allow[ed] this testimony only insofar as it may
show that . . . the defendant had knowledge of marijuana insofar as it may show that he deals in
marijuana, not insofar as it shows that he is a member of the conspiracy that the defendant is
charged with by the government.”

                                                  9
we cannot conclude that the District Court abused its discretion in allowing

testimony about the age of James’s daughter or his use of her knapsack to store

marijuana. See Fed. R. Evid. 403.

      We have considered James’s remaining arguments and find them to be

unavailing. Accordingly, the judgment of the district court is AFFIRMED.



                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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