     09-1725-cr
     United States v. Baldwin

                          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 FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27th day of October, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                WILFRED FEINBERG,
 9                JOSÉ A. CABRANES,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               09-1725-cr
17
18       MAURIEL GLOVER, ALSO KNOWN AS FEET,
19       ROSHAUN HOGGARD, ALSO KNOWN AS FOOT,
20       GENERO MARTE, ALSO KNOWN AS G, ROBERT
21       RAWLS, CHARLES BUNCH, ALSO KNOWN AS
22       JUNE, CHRISTOPHER LAMONT SHERMAN, ALSO
23       KNOWN AS C-L, TORRANCE MCCOWN, ALSO
24       KNOWN AS TERRANCE MCCOWN, JAKE,
25       WILLIAM HOLLY, ALSO KNOWN AS L-O,
26       JASON MARCEL DOCKERY, KENNETH THAMES,
27       ALSO KNOWN AS K-T, JOHN HOBSON, ALSO
28       KNOWN AS UNCLE JOHN, BIG JOHN, KEITH
29       WHITE, GLORIA WILLIAMS, ALSO KNOWN AS
30       GLO, DANTE COBB, CARNEL SYLVESTER
 1   EDWARDS, TERRANCE JOWERS, ALSO KNOWN
 2   AS T-NICE,
 3            Defendants,
 4
 5   WILLIAM BALDWIN,
 6            Defendant-Appellant.
 7   - - - - - - - - - - - - - - - - - - - -X
 8
 9   FOR APPELLANT:    James M. Branden, New York, New York.
10
11   FOR APPELLEE:     H. Gordon Hall, Assistant United States
12                     Attorney (Sandra S. Glover, Assistant
13                     United States Attorney, on the brief),
14                     for David B. Fein, United States Attorney
15                     for the District of Connecticut, New
16                     Haven, Connecticut.
17
18        Appeal from a judgment of the United States District
19   Court for the District of Connecticut (Hall, J.).
20
21        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22   AND DECREED that the judgment of the district court be
23   AFFIRMED.
24
25        William Baldwin appeals from his conviction, after a
26   trial by jury, of conspiracy to possess with intent to
27   distribute and to distribute fifty grams or more of cocaine
28   base. 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(iii), 846.
29   Baldwin argues that insufficient evidence supported his
30   conviction and that the district court erred in denying his
31   request for a missing witness instruction. In a letter
32   submitted after argument, see Fed. R. App. P. 28(j), Baldwin
33   also argues that his sentence should be vacated in light of
34   the passage of the Fair Sentencing Act of 2010. We assume
35   the parties’ familiarity with the underlying facts, the
36   procedural history, and the issues presented for review.
37
38   [1] It is well-established that a “defendant challenging
39   the sufficiency of the evidence underlying a criminal
40   conviction bears a heavy burden[] because this Court must
41   review the evidence in the light most favorable to the
42   government, drawing all reasonable inferences in its favor.”
43   United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2009)

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 1   (internal quotation marks omitted). We will reverse a
 2   defendant’s conviction “only if no rational factfinder could
 3   have found the crimes charged proved beyond a reasonable
 4   doubt.” Id. (internal quotation marks omitted).
 5
 6        Baldwin does not challenge the fact that a conspiracy
 7   existed; he argues only that the government adduced
 8   insufficient evidence of his knowing participation in the
 9   conspiracy. We disagree. The evidence presented at trial
10   was sufficient to allow a rational jury to conclude that
11   Baldwin shared in the purpose of a larger conspiracy, and
12   was not merely a buyer and user of drugs. See United States
13   v. Rojas, --- F.3d ---, 2010 WL 3169299, at *4 (2d Cir. Aug.
14   12, 2010). Specifically, Baldwin and the author of the
15   conspiracy, Mauriel Glover, had a relationship characterized
16   by prolonged cooperation and mutual trust, and engaged in
17   standardized transactions. See United States v. Hawkins,
18   547 F.3d 66, 74 (2d Cir. 2008). Glover and Baldwin also
19   communicated in code, which the jury could have inferred was
20   known only to members of the conspiracy. Moreover, when
21   Baldwin was arrested, he was found in possession of drugs
22   and bags typically used to package these drugs for resale.
23   The jury could have inferred from the quantities of drugs
24   Baldwin purchased from Glover that they were not all for his
25   personal use. See id.
26
27        Finally, the fact that two cooperating witnesses who
28   testified at trial, who were also members of the conspiracy,
29   were not acquainted with Baldwin does not preclude a finding
30   that Baldwin was a member of the same conspiracy. “A single
31   conspiracy may encompass members who neither know one
32   another’s identities, nor specifically know of one another’s
33   involvement.” United States v. Sureff, 15 F.3d 225, 230 (2d
34   Cir. 1994) (internal quotation marks and citation omitted).
35   This is so as long as each defendant “knew or had reason to
36   know” that others were involved in a broad narcotics
37   conspiracy. United States v. Barnes, 604 F.2d 121, 155 (2d
38   Cir. 1979) (emphasis omitted).
39
40   [2] We review the denial of a missing witness instruction
41   for abuse of discretion, and a district court’s “failure to
42   give the instruction rarely warrants reversal.” United
43   States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994). In this

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 1   case, the district court’s decision not to grant the
 2   requested instruction was a proper exercise of its
 3   discretion.
 4
 5        Baldwin failed to establish that Glover -- the missing
 6   witness in question -- was peculiarly within the power of
 7   the government to produce as a trial witness. See United
 8   States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994). Indeed,
 9   Baldwin never even sought to subpoena Glover. The record
10   reveals that Glover was effectively unavailable to the
11   government; the government had a reasonable basis to believe
12   that, if called as a witness, Glover would give perjurious
13   testimony. This Court has “suggested that where a witness
14   is equally unavailable to both sides, a missing witness
15   charge is inappropriate.” United States v. Caccia, 122 F.3d
16   136, 139 (2d Cir. 1997) (internal quotation marks omitted).
17   In light of these circumstances, we conclude the district
18   court properly declined to issue the requested instruction.
19
20   [3] Baldwin is not entitled to the benefit of the recently
21   enacted Fair Sentencing Act of 2010. The Act contains no
22   express statement that it is intended to have retroactive
23   effect nor can we infer such intent from its language. See
24   1 U.S.C. § 109 (“The repeal of any statute shall not have
25   the effect to release or extinguish any penalty . . .
26   incurred under such statute, unless the repealing Act shall
27   so expressly provide, and such statute shall be treated as
28   still remaining in force for the purpose of sustaining any
29   proper action or prosecution for the enforcement of such
30   penalty[.]”). Consequently, we must apply the mandatory
31   minimum in effect at the time Baldwin committed the offense
32   in question. See Warden, Lewisburg Penitentiary v. Marrero,
33   417 U.S. 653, 661 (1974) (noting that “the saving clause has
34   been held to bar application of ameliorative criminal
35   sentencing laws repealing harsher ones in force at the time
36   of the commission of an offense”); United States v.
37   Carradine, --- F.3d ---, 2010 WL 3619799, at *4-5 (6th Cir.
38   Sept. 20, 2010) (concluding that the Fair Sentencing Act
39   does not apply retroactively); United States v. Gomes, ---
40   F.3d ---, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010)
41   (per curiam) (“[B]ecause the [Fair Sentencing Act] took
42   effect . . . after appellant committed his crimes, 1 U.S.C.
43   § 109 bars the Act from affecting his punishment.”); see

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 1   also United States v. Smith, 354 F.3d 171, 175 (2d Cir.
 2   2003) (observing that section 109 “saves sentencing
 3   provisions in addition to substantive laws”).
 4
 5        Finding no merit in any of the arguments raised by
 6   Baldwin on appeal, we hereby AFFIRM the judgment of the
 7   district court.
 8
 9                              FOR THE COURT:
10                              CATHERINE O’HAGAN WOLFE, CLERK
11
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