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


9-27-2006

USA v. Williams
Precedential or Non-Precedential: Precedential

Docket No. 04-4268




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                                             PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ___________

                         No. 04-4268
                         ___________

              UNITED STATES OF AMERICA,

                                         Appellee,

                               v.

                   KENNETH WILLIAMS,

                                     Appellant.
                 ________________________

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

      District Court Judge: The Honorable Stewart Dalzell
                  (Criminal No. 02-00172-27)
                         ___________


          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: September 27, 2006 )



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

                               1
                  _______________________

                  OPINION OF THE COURT
                  _______________________


FUENTES, Circuit Judge.

        Kenneth “Malik” Williams appeals from his conviction
following trial for conspiracy to distribute cocaine and cocaine
base, and possession of a firearm in furtherance of a drug
trafficking offense. Williams also appeals his sentence of 420
months in prison. Regarding his conviction, Williams argues that
the District Court erred in failing to provide adequate jury
instructions as to “multiple conspiracies” and as to the firearm
charge. Williams also argues that the evidence was insufficient
for conviction on the firearm charge, and that the District Court
should not have prohibited Williams from cross-examining a key
prosecution witness about his statement that he had never
committed murder. Lastly, Williams argues that his case should
be remanded for resentencing in accordance with the Supreme
Court’s opinion in United States v. Booker, 543 U.S. 220 (2005).
We reject Williams’ appeal of his conviction but remand for
resentencing under Booker as to his conspiracy conviction.

                        BACKGROUND

       In October 2002, Williams was indicted along with thirty-
six co-defendants for conspiracy to distribute cocaine and
cocaine base. Williams was also charged with possession of a
firearm in furtherance of a drug trafficking crime pursuant to 18
U.S.C. § 924(c)(1)(A). The firearm charge arose out of a
shootout that occurred when Williams and several co-
conspirators drove to Penrose Plaza, a shopping mall in South
Philadelphia, in search of men who had kidnapped the girlfriend
and children of one of Williams’ co-conspirators in an attempt to
extort cash and cocaine.

       The District Court severed the defendants’ cases into

                                2
several groups and conducted seven separate trials. The jury
hung at Williams’ first trial in February 2004, and the Court
declared a mistrial. Following a second trial in July 2004,
Williams was convicted on both counts.

       Williams was sentenced in October 2004, after 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. Based on this
view, the District Court concluded that the appropriate range for
the conspiracy count was 262 to 327 months, and rejected an
upward enhancement for Williams’ managerial role. Within this
range, the Court sentenced Williams to 300 months. On the
firearm possession count, the Court found that the firearm was
discharged and sentenced Williams to a 120-month consecutive
sentence, the mandatory minimum under 18 U.S.C. §
924(c)(1)(A)(iii).


                           DISCUSSION

                                  I.

        Williams argues that the District Court erred in its jury
instructions by failing to give adequate guidance on the concept
of multiple conspiracies and on the firearm charge.1 There is no
evidence that Williams objected on this basis at trial, and we
therefore review the instructions for plain error. United States v.
Guadalupe, 402 F.3d 409, 410 n.1 (3d Cir. 2005). Under the
plain error standard, “‘before an appellate court can correct an
error not raised at trial, there must be (1) error, (2) that is plain,
and (3) that affect[s] substantial rights. If all three conditions are
met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error seriously affect[s] the


       1
         The District Court had jurisdiction over this federal
criminal case pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction over Williams’ appeal of his conviction and sentence
pursuant to 28 U.S.C. § 1291.

                                  3
fairness, integrity, or public reputation of judicial proceedings.’”
United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001)
(quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).
       The District Court read the following instruction on
multiple conspiracies to the jury:

               Whether there existed a single unlawful
       agreement, or many such agreements, or indeed no
       agreement at all, is a question of fact for you, the
       jury, to determine in accordance with the
       instructions I’m about to give you. Now, when two
       or more people join together to further one
       common unlawful design or purpose, a single
       conspiracy exists. By way of contrast, multiple
       conspiracies exist when there are separate unlawful
       agreements to achieve distinct purposes. Proof of
       several separate and independent conspiracies is
       not proof of the single overall conspiracy charged
       in the indictment unless one of the conspiracies
       proved happens to be the single overall conspiracy
       described in the indictment.

               Now, you may find that there was a single
       conspiracy despite the fact that there were changes
       in either personnel, or activities, or both, so long as
       you find that some of the coconspirators continued
       to act for the entire duration of the conspiracy for
       the purposes charged in the indictment. This is so
       even if you find that some conspiracy other than
       the one charged in the indictment existed, even
       though the purposes of both conspiracies may have
       been the same and even though there may have
       been some overlap in membership. Similarly, if
       you find that the defendant was a member of
       another conspiracy and not the one charged in the
       indictment, then you must acquit him.

Williams argues that this instruction was inadequate because the
judge also should have told the jury that “even though two
individuals may enter into repeated arrangements to sell and buy
drugs, it does not necessarily establish a single conspiracy to

                                 4
distribute.” Williams also argues that the evidence suggested
two separate charged conspiracies—a conspiracy to distribute
drugs and a conspiracy to carry a weapon in response to a
kidnapping—and that the District Court therefore should have
repeated the instruction on multiple conspiracies in the context
of its instructions on the firearm charge.

        Williams provides no legal support for these assertions.
The District Court explained the difference between a single
conspiracy and multiple conspiracies in more than enough detail
under this Circuit’s case law, and provided all of the information
necessary for the jury to understand the relevant concepts. See,
e.g., United States v. Price, 13 F.3d 711, 724-25 (3d Cir. 1994)
(finding no plain error in instruction on multiple conspiracies
where the court told the jury that the “Government has to show
the single conspiracy alleged in the indictment”); United States
v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992) (finding that no
additional instruction on multiple conspiracies was necessary
where the jury was instructed that it could find the defendant
guilty only if the defendant was a member of the conspiracy
charged in the indictment and not some other conspiracy). The
District Court’s instruction on multiple conspiracies was
thorough, and there was no need to repeat it a second time. We
conclude that there was no plain error in the District Court’s
instruction on multiple conspiracies.

       Williams also argues that the District Court’s instructions
on the firearm charge were inadequate. He claims that the
evidence at trial suggested a lack of nexus between the drug
conspiracy and Williams’ use of a firearm, and that the District
Court should have stated explicitly that such a nexus was
required for conviction on the firearm charge. The judge gave
the jury the following instruction, among others, on the firearm
charge:

               Now, the Government must prove the
       following elements beyond a reasonable doubt.
       One, the defendant knowingly committed a drug
       trafficking crime; two, the defendant knowingly
       possessed at least one firearm; three, the
       possession was in furtherance of the drug

                                5
      trafficking crime. Now, the first element that the
      Government must prove beyond a reasonable
      doubt is that the defendant committed a drug
      trafficking crime. The Government alleges that the
      defendants possessed firearms in furtherance of the
      conspiracy alleged in count one. . . .

              Now, the term in furtherance of, means to
      advance, move forward, promote, or facilitate the
      drug trafficking crime. For example, if you
      determine that based upon the evidence in this
      case, that the defendant possessed the firearm and
      that he did so at least in part to protect his drugs,
      his drug proceeds, or himself, from competing
      drug dealers or the police, or that he possessed the
      firearm for some other reason, which in some way
      moved forward, advanced, promoted or facilitated
      the drug trafficking crimes listed in the indictment,
      then the defendant possessed the firearm in
      furtherance of a drug trafficking crime. If,
      however, based upon the evidence in this case, you
      find that the defendant did not possess a firearm on
      or about the date set forth in the indictment or that
      the firearm was present only for some other
      purpose, or by mere coincidence, or that the
      Government failed to prove this element of the
      offense beyond a reasonable doubt, then, you must
      find the defendant not guilty on that count.

This language unambiguously requires the jury to find a nexus
between Williams’ possession of a firearm and the charged drug
conspiracy, and Williams’ claim is therefore without merit. The
prosecution argued at trial that the required nexus existed
because the kidnapping was perpetrated by individuals
knowledgeable about the conspirators’ drug trafficking, and the
conspirators’ response to the kidnapping—including the
possession of a firearm by Williams—was a response to a threat
to the drug conspiracy. Williams was free to dispute this theory
at trial. The District Court properly instructed the jury on the
firearm possession charge, and Williams has not established
plain error on this point.

                                6
                                II.

       Relatedly, Williams argues that the evidence at trial was
insufficient as a matter of law to convict him of possession of a
weapon in furtherance of a drug trafficking crime under 18
U.S.C. § 924(c). We review this claim for plain error because
Williams did not raise the issue in the District Court. Guadalupe,
402 F.3d at 410 n.1.

       The evidence at trial supporting the firearm possession
charge was related to the Penrose Plaza incident. Williams
asserts that the connection between that incident and the drug
conspiracy was too tenuous for the jury to reasonably find that
the gun possession was in furtherance of the conspiracy.

        This Court has held that under § 924(c), the government’s
evidence “must demonstrate that possession of the firearm
advanced or helped forward a drug trafficking crime.” United
States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004). Here, the
government presented evidence that the kidnappers demanded
$30,000 and a kilogram of cocaine in exchange for the
kidnapped individuals, and that several members of the
conspiracy drove in search of the kidnappers and eventually
opened fire. It was not unreasonable for the jury to conclude that
the conspirators viewed the kidnapping as a threat to their drug
enterprise, and that they used firearms at least in part to protect
and advance the drug-trafficking conspiracy. See United States
v. Baptiste, 264 F.3d 578, 588 (5th Cir. 2001) (finding sufficient
evidence to support § 924(c) convictions where defendants
attacked a rival drug gang in retaliation for murders, because the
attacks “had at least the potential to protect the conspiracy and
intimidate competitors and witnesses”). Under a plain error
standard, the government presented sufficient evidence for the
jury to convict Williams under § 924(c).

                               III.

       Next, Williams claims that the District Court should have
allowed him to cross-examine Courtney Carter, the prosecution’s
central witness, about Carter’s assertion on direct examination
that he had never committed murder. Williams argues that the

                                 7
prohibition violated his rights under the Sixth Amendment’s
Confrontation Clause. We review this claim for abuse of
discretion. United States v. Lore, 430 F.3d 190, 208 (3d Cir.
2005).

       Following Carter’s statement on direct examination that
he had never committed murder, counsel for Williams told the
District Court that he had information indicating that this
assertion was false. Specifically, a confidential informant had
told a Special Agent of the Bureau for Alcohol, Tobacco, and
Firearms that the informant had heard from another person that
Carter had once stabbed an individual to death in Philadelphia.
The Special Agent was unable to find records of the murder, nor
could he find the person who had provided this information to
the confidential informant. Based on the statement of the
confidential informant, Williams’ counsel wished to impeach
Carter on cross-examination. The District Court denied the
request under Federal Rules of Evidence 608(b) and 403.

        Under Rule 608(b), specific instances of conduct of a
witness, other than conviction for a crime, may not be proved at
trial through extrinsic evidence for the purpose of attacking the
witness’s character for truthfulness. The court may at its
discretion permit questioning about specific instances of conduct
on cross-examination, but only if the conduct is probative of the
witness’s character for truthfulness or untruthfulness. Fed. R.
Evid. 608(b). Under Rule 403, evidence may be excluded, even
if relevant, where “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.” Here, the District Court concluded that the fact that
Carter committed murder was not probative of his truthfulness or
untruthfulness under Rule 608(b), and that even if it was, the
extreme weakness of the evidence suggesting murder and the
potential for an unnecessary mini-trial on the issue indicated that
the evidence should be excluded under Rule 403.

        We find that the District Court did not abuse its discretion
in barring cross-examination here. A district court “‘retains wide
latitude insofar as the Confrontation Clause is concerned to

                                 8
impose reasonable limits’ on cross-examination to avoid, among
other things, harassment, prejudice, confusion of issues, or
interrogation that is only marginally relevant or is repetitive.”
Lore, 430 F.3d at 208 (quoting United States v. Mussare, 405
F.3d 161, 169 (3d Cir. 2005)). Even if the evidence that Carter
committed murder had been strong, it was not clearly relevant to
Carter’s truthfulness as a witness and had a strong potential to
prejudice the jury. In fact, the evidence was exceedingly
weak—it was based on several levels of hearsay—and the
District Court’s decision to preclude cross-examination on the
issue was therefore entirely reasonable. We deny Williams’
appeal of his conviction on this basis.

                              IV.

       Lastly, Williams argues that his case should be remanded
for resentencing pursuant to Booker. As to the conspiracy
conviction, we must remand for resentencing under Booker, as
the government concedes, because Williams was sentenced
under a mandatory Federal Sentencing Guidelines scheme. See
United States v. Davis, 407 F.3d 162, 166 (3d Cir. 2005) (en
banc).

        As to the firearm possession conviction, however, the
District Court did not apply a sentence under the Sentencing
Guidelines, but instead sentenced Williams based on a statutory
mandatory minimum under 18 U.S.C. § 924(c)(1)(A). That
statute provides for a five-year minimum for possession of a
firearm in furtherance of a drug trafficking offense, which is
increased to ten years if the firearm was discharged. Here, the
District Court found that a firearm was discharged and sentenced
the defendant to the ten-year minimum. The Supreme Court has
held that a judge may make findings of facts that increase a
defendant’s mandatory minimum sentence as long as those
findings do not extend the sentence beyond the maximum
authorized by the jury’s verdict. Harris v. United States, 536
U.S. 545, 568 (2002).

       Harris remains binding law in the wake of the Booker
decision. Booker did not explicitly overrule Harris, and the
reasoning in Booker does not mandate reversal of Harris. In fact,

                                9
the majority opinion in Booker makes no reference to Harris.
Regardless of whether a Supreme Court decision sheds doubt on
an earlier decision of that Court, we may not conclude that the
earlier holding has been implicitly overruled. See United States
v. Leahy, 438 F.3d 328, 332 (3d Cir. 2006) (en banc) (“[N]or do
we possess the authority to declare that the Supreme Court has
implicitly overruled one of its own decisions”); United States v.
Ordaz, 398 F.3d 236, 241 (3d Cir. 2005) (“‘[I]f a precedent of
[the Supreme Court] has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls,
leaving to [the Supreme] Court the prerogative of overruling its
own decisions.’”) (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).

       Several other circuits have also affirmed the continuing
validity of Harris following Booker. See, e.g., United States v.
Estrada, 428 F.3d 387, 391 (2d Cir. 2005) (“[W]e are bound by
the Supreme Court’s rulings in Almendarez- Torres and
Harris”); United States v. Dare, 425 F.3d 634, 641 (9th Cir.
2005) (“We cannot question Harris’ authority as binding
precedent.”); United States v. Jones, 418 F.3d 726, 732 (7th Cir.
2005) (“Under Harris, which the Supreme Court did not disturb
in Booker, imposition of the ten-year mandatory minimum
sentence for violation of 924(c)(1)(A)(iii) did not violate the
Sixth Amendment.”).

        For the foregoing reasons, we vacate the judgment of
sentence as to Count One, for conspiracy to distribute cocaine
and cocaine base, and remand for resentencing in accordance
with Booker, but we affirm the judgment of sentence as to Count
123, for possession of a firearm in furtherance of a drug
trafficking offense.2


       2
        With permission of this Court, Williams has filed a pro
se supplemental brief in this matter. We have considered his
claims that the District Court violated his Fourteenth
Amendment rights by constructively amending the indictment,
and that the District Court lacked jurisdiction to impose the
sentence as to the firearm possession conviction. We conclude

                               10
that Williams’ arguments, to the extent not otherwise addressed
here, are without merit.

                               11
