                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3183




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                                      NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ___________

          No. 04-3183
          ___________


  UNITED STATES OF AMERICA,

                v.

     RAABITAH REYNOLDS,
            a/k/a
      ROBERT JOHNSON,
            a/k/a
      ROBERT REYNOLDS,
            a/k/a
       RAABITAH GRAY

              Raabitah Reynolds,

                         Appellant.

       __________________

          No. 04-4264
          ___________


  UNITED STATES OF AMERICA,

               v.

       TYREIK GOLDEN,

                         Appellant.

       __________________

               1
     ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                EASTERN DISTRICT OF PENNSYLVANIA

                   District Court Judge: The Honorable Stewart Dalzell
                      (Criminal Nos. 02-00172-33 & 02-00172-34)
                                      ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    March 2, 2006

     BEFORE: SLOVITER and FUENTES, Circuit Judges, and RESTANI,* Chief
      International Trade Judge.

                                 (Filed: March 27, 2006)
                               _______________________

                               OPINION OF THE COURT
                               _______________________


FUENTES, Circuit Judge.

       Raabitah Reynolds and Tyreik Golden appeal from their convictions at trial for

conspiracy to distribute cocaine and cocaine base, and Golden also appeals from his

conviction for possession of cocaine base. In addition, Golden appeals his sentence of 140

months in prison. As to their convictions, Reynolds and Golden argue that the evidence

was insufficient to sustain a conviction on the conspiracy count and that the District Court

admitted impermissible hearsay testimony at trial. Reynolds also argues that the District

Court erred in permitting an expert to testify about shootings and the use of firearms



       *
        Honorable Jane A. Restani, Chief International Trade Judge, sitting by
designation.

                                             2
within a drug conspiracy. As to his sentence, Golden contends both that the District Court

attributed inappropriately large quantities of drugs to him under the Federal Sentencing

Guidelines, and that his case should be remanded for resentencing under United States v.

Booker, 543 U.S. 220 (2005). We reject the defendants’ appeals of their convictions but

remand Golden’s case for resentencing in accordance with Booker.

                                     BACKGROUND

       Because we write only for the parties, our summary of the facts is abbreviated. In

October 2002, Reynolds and Golden were indicted along with thirty-five co-defendants

for conspiracy to distribute cocaine and cocaine base. Reynolds was also charged with

distribution of cocaine base, and Golden was charged with possession of cocaine base.

The District Court severed the defendants and conducted seven separate trials. Golden

and Reynolds were tried with one other defendant in March 2004.1 Both Reynolds and

Golden were convicted of the conspiracy charge, and Golden was convicted on the

possession charge, but the jury failed to reach a verdict as to Reynolds’ distribution

charge.

       Reynolds and Golden were sentenced in July and October 2004, respectively,

following the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004), but prior to Booker. The District Court interpreted Blakely to bar enhancements

under the Federal Sentencing Guidelines based on facts not found by the jury, and


       1
       A fourth defendant was scheduled to be tried with them, but he pled guilty on the
morning of the trial.

                                             3
therefore calculated the defendants’ Guidelines sentencing ranges in the absence of any

such enhancements. Based on these ranges, the District Court sentenced Reynolds to 200

months in prison and Golden to 140 months in prison. The two cases were joined for this

appeal.

                                      DISCUSSION

                                              I.

       Reynolds and Golden contend that the prosecution’s evidence at trial was

insufficient to support their convictions for conspiracy to distribute cocaine and cocaine

base, and that the District Court should have granted their motions for acquittal.2 In

considering a challenge based on sufficiency of the evidence, we view the evidence in the

light most favorable to the government and “will sustain the verdict if any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal quotation marks and

citations omitted). Thus, a “‘claim of insufficiency of the evidence places a very heavy

burden on an appellant.’” United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990)

(citation omitted).

       The defendants make two distinct but related claims of insufficiency – first, that

the government proved, at most, the existence of multiple distinct conspiracies rather than



       2
        The District Court had jurisdiction over these federal criminal cases pursuant to
18 U.S.C. § 3231. This Court has jurisdiction over the appeals of conviction and sentence
pursuant to 28 U.S.C. § 1291.

                                              4
the single conspiracy alleged in the indictment; and second, that regardless of whether the

conspiracy alleged in the indictment was established, the government did not prove that

the defendants participated in the conspiracy.

       To establish the existence of a conspiracy, the government must prove “a unity of

purpose between the alleged conspirators, an intent to achieve a common goal, and an

agreement to work together toward that goal.” United States v. Gibbs, 190 F.3d 188, 197

(3d Cir. 1999). These elements may be proved entirely through circumstantial evidence.

Id. Here, the government alleged a conspiracy headed by Courtney Carter, who obtained

cocaine in kilogram quantities and distributed it to two men, James Patterson and Jamal

Morris. Patterson and Morris broke down and cooked the cocaine and in turn distributed

it to individuals who managed particular drug corners. These managers supervised

workers who sold the cocaine on the street. The government alleged at trial that Golden

and Reynolds were among these workers.

       If a “variance” exists “between the indictment and the proof at trial, to the

prejudice of the defendant’s substantial rights,” the Court must vacate the conviction.

United States v. Barr, 963 F.2d 641, 648 (3d Cir. 1992). Under the law of this Circuit, if

“‘a single conspiracy has been alleged, a variance of proof occurs if the evidence shows

merely multiple conspiracies.’” Id. (citation omitted). Here, the defendants assert that a

variance occurred because the government did not establish a sufficient connection

between lower level workers at different drug corners, and therefore the evidence did not

establish a single large conspiracy.

                                              5
       This claim cannot succeed. The government laid out in detail the organized

operation of the conspiracy, in which drugs were obtained by Carter and moved down an

orderly chain to various workers at drug corners for sale. The government clearly

established a common goal among the conspirators and the necessity of continuous

cooperation for the success of the conspiracy. Moreover, the government presented

evidence that members of the conspiracy worked together in numerous ways in sales, acts

of violence, and other operations of the conspiracy. This overlap extended to the street

sellers – the government presented evidence that various street sellers obtained drugs

from each other, discussed drug operations, and occasionally attended parties together

and otherwise socialized. (See, e.g., App. 320, 322, 548-56). The fact that the conspiracy

included certain sub-operations does not disprove the existence of the larger conspiracy.

See United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). Thus, viewing the evidence

in the light most favorable to the government, a rational trier of fact could have concluded

that the single conspiracy alleged in the indictment was proved at trial.

       Reynolds and Golden also argue that even if a single conspiracy was established,

the government did not prove that they were members of the conspiracy. Where a

conspiracy has been proved, factors relevant to determining whether a defendant was a

member of the conspiracy include “the length of affiliation between the defendant and the

conspiracy; whether there is an established method of payment; the extent to which

transactions are standardized; and whether there is a demonstrated level of mutual trust.”

Gibbs, 190 F.3d at 199. In this case, the government presented evidence that both

                                              6
Reynolds and Golden had a long-term affiliation with the conspiracy, regularly sold drugs

at one of the conspiracy’s drug corners, and were considered to be working for a higher

level member of the conspiracy. (See, e.g. App. 540, 219-20, 639.) There was also

evidence that both defendants participated in discussions relevant to the conspiracy with

other members of the conspiracy, see App. 570-76, and that Reynolds was present during

a shooting by a member of the conspiracy, see App. 572. Under the strict standard of

review that we apply to a sufficiency of the evidence claim, we conclude that the

evidence was adequate to support the conviction of both Golden and Reynolds for

conspiracy to distribute cocaine and cocaine base.

                                              II.

       Next, the defendants contend that much of the evidence presented against them at

trial was inadmissible hearsay. Defendants make two distinct arguments in this regard –

first, that the District Court erred in its preliminary finding that certain hearsay statements

were admissible because they were made in furtherance of the conspiracy; and second,

that certain hearsay statements were inadmissible under the Supreme Court’s decision in

Crawford v. Washington, 541 U.S. 36 (2004). We review the District Court’s preliminary

admissibility determination for clear error. United States v. Vega, 285 F.3d 256, 264 (3d

Cir. 2002). The defendants’ claim under Crawford raises a legal issue, which we consider

de novo. See United States v. Hendricks, 395 F.3d 173, 176 (3d Cir. 2005).

       Under Federal Rule of Evidence 801(d)(2)(E), a statement is not hearsay if it is

offered against a party and is made “by a coconspirator of a party during the course and in

                                               7
furtherance of the conspiracy.” Before a court may admit a statement under this rule, it

must make a preliminary determination that the statement qualifies – i.e., “that there was

a conspiracy involving the declarant and the nonoffering party, and that the statement was

made ‘during the course and in furtherance of the conspiracy.’” Bourjaily v. United

States, 483 U.S. 171, 175 (1987) (quoting Fed. R. Evid. 801(d)(2)(E)). This determination

should be made under a preponderance of the evidence standard. Id. at 176.

       We find no clear error in the District Court’s admission of statements under Rule

801(d)(2)(E) in this case. As described above, the government presented solid evidence of

the existence of a conspiracy and of the participation of Reynolds and Golden in the

conspiracy. There was also evidence that the declarants of the alleged hearsay were

members of the conspiracy. Golden does not point to any particular statements that were

improperly admitted under Rule 801(d)(2)(E). Reynolds suggests that testimony by

Kareem Clouden, a cooperating co-conspirator who testified for the government, should

not have been admitted. Clouden testified about various discussions he had with other

members of the conspiracy, including discussions about retaliating for the robbery of a

co-conspirator’s girlfriend’s home, and about several shooting incidents. The government

provided evidence indicating that this testimony involved members of the conspiracy

making statements during the course of and in furtherance of the conspiracy, and we find

no clear error in the District Court’s admission of the statements under Rule 801(d)(2)(E).

       The defendants’ second claim is that certain hearsay statements testified to at trial

were testimonial, and should have been excluded under Crawford v. Washington, 541

                                              8
U.S. 36 (2004). In Crawford, the Supreme Court held that under the Sixth Amendment’s

Confrontation Clause, testimonial hearsay is inadmissible at trial unless the declarant is

unavailable and the defendant was previously able to cross-examine the declarant. Id. at

68. The Crawford Court did not explicitly define testimonial hearsay, but provided

several examples, including “prior testimony [given] at a preliminary hearing, before a

grand jury, or at a former trial; and . . . police interrogations.” Id.

       Many of the hearsay statements admitted at trial in this case were statements made

by one co-conspirator to another without law enforcement present. These statements do

not fall under the Crawford exclusion. See Crawford, 541 U.S. at 51. The defendants

object specifically to only one statement admitted at trial that was not between two co-

conspirators: Officer Von Williams testified that an individual in a car told him about a

shooting incident involving members of the conspiracy. (App. 655-56.)

       We need not determine whether Williams’ testimony falls under Crawford because

any error in admitting the testimony was harmless. See Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986) (stating that errors under the Confrontation Clause are subject to

harmless error analysis); United States. v. Al-Sadawi, 432 F.3d 419, 426 (2d Cir. 2005)

(noting that Crawford errors are subject to harmless error analysis). Williams’ testimony

about the shooting was a very minor element of the evidence against the defendants and

would not have affected the outcome at trial. Thus, we reject the defendants’ appeal on

this basis.

                                               III.

                                                9
       Reynolds also argues that the testimony of an expert witness, Agent Ken Bellis,

should not have been admitted at trial. We review a District Court’s decision to admit

expert testimony for abuse of discretion. Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d

Cir. 2000).

       Under the Federal Rules of Evidence, a qualified expert may provide expert

testimony that will “assist the trier of fact to understand the evidence or to determine a

fact in issue.” Fed. R. Evid. 702. Here, Officer Bellis testified as an expert on the

operation of drug traffickers in the Philadelphia area, and discussed various aspects of

drug organizations, including how they obtain drugs, how they are structured, and how

law enforcement investigations of such organizations proceed. This type of testimony is

permitted in this Circuit. See United States v. McGlory, 968 F.2d 309, 345 (3d Cir. 1992).

Reynolds does not challenge Agent Bellis’ qualifications to testify, but argues instead that

Bellis’ testimony about shootings and the use of firearms in drug conspiracies did not

“assist the trier of fact” under Rule 702, and was in fact prejudicial because there was no

evidence connecting Reynolds to any firearms or violence. We reject this claim. Bellis’

statements about firearms and shootings were not central to his testimony, and in the

context of a general discussion of the operation of drug organizations, they did not

prejudice Reynolds’ case. The District Court reasonably concluded that Agent Bellis’

testimony would assist the jury in understanding the nature of the conspiracy alleged by

the government. Thus, we hold that the District Court did not abuse its discretion in

permitting the testimony of Agent Bellis.

                                              10
                                            IV.

       Lastly, Golden appeals his sentence of 140 months in prison. He argues, first, that

under United States v. Collado, 975 F.2d 985 (3d Cir. 1992), the District Court attributed

inappropriately large quantities of drugs to him at sentencing, and second, that his

sentence was invalid under Booker. We need not consider Golden’s Collado claim

because we conclude, and the government concedes, that a remand is necessary pursuant

to Booker. Although the District Court did not apply enhancements under the Federal

Sentencing Guidelines, the record suggests that the Court sentenced Golden under a

mandatory Guidelines regime. We therefore vacate the sentence and remand for

resentencing in accordance with Booker. See United States v. Davis, 407 F.3d 162, 165

(3d Cir. 2005) (en banc).

                                            V.

       For the foregoing reasons, we affirm the convictions of Golden and Reynolds. We

also vacate Golden’s sentence and remand for resentencing pursuant to Booker.




                                             11
