09-4675-cr(L)
United States v. Deas


                               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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 30th day
of September, two thousand eleven.

Present:
            PIERRE N. LEVAL,
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.
                              Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                   Appellee,

                   v.                                              Nos.    09-4675-cr(L)
                                                                           09-5295-cr(Con)

VIDA DEAS, a/k/a V,

            Defendant-Appellant.
________________________________________________

FOR APPELLANT:                   JAMES M. BRANDEN, ESQ., New York, New York.

FOR APPELLEE:           CHRISTOPHER M. MATTEI, Assistant United States Attorney
                        (Robert M. Spector, Assistant United States Attorney, of counsel),
                        for David B. Fein, United States Attorney, District of Connecticut.
________________________________________________
       Appeal from the United States District Court for District of Connecticut (Droney, J.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the District Court be and hereby is AFFIRMED.

       Defendant-Appellant Vida Deas appeals from a judgment entered by the district court

(Droney, J.), convicting him, following a jury trial, of one count of conspiracy to possess with

intent to distribute 50 grams or more of cocaine base under 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846 and two counts of possession with intent to distribute an unspecified

quantity of cocaine base under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and sentencing him in

principal part to 240 months’ imprisonment on each count, to run concurrently. Deas argues that

the trial evidence was insufficient to show that he knowingly joined and participated in the

charged conspiracy; that the district court erred by allowing into evidence prejudicial testimony

concerning his relationship with Bobby Turner, the brother of one of the co-conspirators; and

that he should receive the benefit of the reduced mandatory minimum sentences applicable to

crack cocaine offenses under the Fair Sentencing Act of 2010. In a supplemental pro se brief,

Deas argues further that the superseding indictment on which he was tried was untimely under

the Speedy Trial Act, 18 U.S.C. § 3161(b); that cocaine base is not a Schedule II controlled

substance; and that his prior state court felony drug conviction, for which he received a

sentencing enhancement under 21 U.S.C. § 851, was invalid. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal, and

discuss these only where necessary to explain our decision.

       In reviewing a sufficiency challenge, we view the evidence in the light most favorable to

the Government and assume that the jury resolved all questions of witness credibility and


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competing inferences in favor of the prosecution. See United States v. Payne, 591 F.3d 46, 59-

60 (2d Cir. 2010). A defendant challenging the sufficiency of the evidence thus “bears a very

heavy burden,” United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002), because we must

uphold the verdict provided that “‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt,’” United States v. Stewart, 590 F.3d 93, 109

(2d Cir. 2009) (internal quotation marks and emphasis omitted); see also United States v.

Morgan, 385 F.3d 196, 204 (2d Cir. 2004) (“In cases of conspiracy, deference to the jury’s

finding is especially important . . . because a conspiracy by its very nature is a secretive

operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the

precision of a surgeon’s scalpel.”) (internal quotation marks omitted).

       For a conspiracy conviction to stand, there must be evidence upon which a reasonable

jury could find “both the existence of the conspiracy alleged and the defendant’s membership in

it.” United States v. Chavez, 549 F.3d 119, 125 (2d Cir. 2008). Deas challenges only this

second element, painting himself as a “one-man, small-time crack distributor” who was

incidentally caught up in the Government’s investigation of a wide-reaching drug conspiracy.

Ample evidence shows, however, that this characterization is inaccurate. Byron Turner, Deas’s

co-conspirator, testified at length about how he and Deas would drive around conducting crack

cocaine transactions and how Deas would frequently convert powder cocaine into crack cocaine

for Turner. In addition, other evidence—including intercepted phone calls—showed that Deas

introduced Turner to a powder cocaine supplier and that the two of them purchased cocaine from

the supplier that was later converted into crack cocaine for distribution. Based on this evidence,




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a reasonable jury could have easily concluded that Deas “knowingly joined and participated in”

the charged conspiracy. United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006).

       Deas also challenges the propriety of the testimony the government elicited from Byron

Turner regarding Deas’s relationship with Turner’s brother, Bobby, who was arrested for drug

dealing. The Assistant United States Attorney represented to the trial judge that he was “not

going to be asking [Byron] anything about Mr. Bobby Turner and Mr. Deas’s relationship about

selling narcotics. It’s simply going to be whether [Byron] knew that . . . Bobby Turner and Mr.

Deas were friends.” After making that representation, the Government elicited testimony which

communicated an inference that Deas had processed crack for Bobby Turner. We need not

determine whether the receipt of this evidence was an abuse of the district court’s discretion

because we conclude that any error was harmless. This testimony came from Byron Turner, who

testified to Deas’s extensive participation in Byron’s own drug dealing, which was the offense

charged. If the jury found Byron to be truthful in spite of the defendant’s efforts to impeach him,

it would convict Deas on the basis of Byron’s testimony about the defendant’s commission of the

crime charged. Byron’s additional implication that Deas processed crack for Bobby would add

no prejudice. And if the jury doubted Byron’s veracity, it would acquit Deas regardless of

whether Byron accused the defendant of working in drugs with Bobby as well as with Byron. In

the present circumstances, the challenged testimony had little or no capacity to prejudice the

defendant.

       Deas also argues that the Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124

Stat. 2372 (amending 21 U.S.C. § 841) (“FSA”), which reduced sentences for certain crack

cocaine offenses, should apply retroactively and that he should be resentenced under those


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reduced sentences. As we recently reiterated, however, “‘because the FSA took effect . . . after

[the defendant] committed his crimes 1 U.S.C. § 109 [the general savings statute] bars the Act

from affecting his punishment.’” United States v. Acoff, 634 F.3d 200, 202 (2d Cir. 2011)

(quoting United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010) (alteration in Acoff)). Indeed,

even assuming the Act applies to sentences imposed on or after its enactment on August 3, 2010,

cf. United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011) (holding that the FSA applies to post-

August 3, 2010 sentencings), Deas’s sentence would be unaffected because he was sentenced in

December 2009.

       Finally, having fully considered Deas’s pro se arguments, we reject them as lacking

merit. See, e.g., United States v. Gaskin, 364 F.3d 438, 451 (2d Cir. 2004) (holding that an

untimely indictment will not be dismissed under 18 U.S.C. § 3162(b) so long as it pleads charges

different from the original complaint, even if the indictment arises from the same criminal

episode charged in the complaint); Sanders v. United States, 237 F.3d 184, 185 (2d Cir. 2001)

(per curiam) (“[Defendant’s] argument that cocaine base and crack cocaine are not scheduled

controlled substances because they are not listed by name in the schedule is without merit.”); 21

U.S.C. § 851(e) (barring a defendant from challenging the validity of any prior conviction used

to enhance a sentence under § 851 if that conviction occurred more than five years before the

date of the information alleging the conviction).

        The judgment of the district court is AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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