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


3-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3380




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     Nos. 04-3380


                           UNITED STATES OF AMERICA

                                           v.

                                JAMES PATTERSON,
                                       a/k/a
                                    GIOVANNI,
                                       a/k/a
                                 GIOVANNI LOVE,
                                       a/k/a
                                        GL

                                    James Patterson,

                                                Appellant



  ON APPEAL FROM FINAL JUDGMENT OF THE UNITED STATES DISTRICT
        COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                        (D.C. No. 02-172-02)

                     District Judge: The Honorable Stewart Dalzell


                               Argued on March 2, 2006.

       Before: SLOVITER and FUENTES, Circuit Judges, and RESTANI, Judge*



   *
    Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
                                 (Filed: March 14, 2006)

Christian J. Hoey (Argued)
Rubino & Hoey, LLC
50 Darby Road
Paoli, PA 19301


Richard A. Lloret (Argued)
Patrick L. Meehan
Robert A. Zaumer
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

                                  ____________________

                                OPINION OF THE COURT
                                 _____________________

Fuentes, Circuit Judge.

       James Patterson (“Patterson”) appeals his conviction in a multi-defendant drug

conspiracy case. He argues that there is insufficient evidence to support the jury’s finding

that he was one of the “principal administrators, organizers, or leaders” of the continuing

criminal enterprise under 21 U.S.C. § 848(b). He also argues that there was an error in

the indictment, that the Government did not prove all necessary elements of the charge,

that the District Court improperly dismissed his challenge under Batson v. Kentucky, 476

U.S. 79 (1986) to the Government’s striking of two jurors, that the District Court abused

its discretion in allowing an FBI agent to testify as an expert, and that Patterson’s

conviction under 21 U.S.C. §§ 846 and 848 constitutes double jeopardy. For the reasons

stated below, we affirm Patterson’s conviction under Count Eighty-nine, 21 U.S.C. §

                                              2
848(b), but remand the case to the District Court to vacate his conviction under Count

One, 21 U.S.C. § 846.

                                              I.

       As we write solely for the parties, our recitation of the facts will be limited to those

necessary to our determination. Patterson was indicted, along with thirty-six co-

defendants in a 135-count third superseding indictment (the “Indictment”). Patterson was

charged in thirty-two counts, including Count Eighty-nine, which charged him with

involvement in a continuing criminal enterprise in violation of 21 U.S.C. § 848(b), and

Count One, which charged him with conspiracy to distribute cocaine and cocaine base in

violation of 21 U.S.C. § 846.

       The Government alleges that from Spring 1997 through February 26, 2002,

Patterson and his co-defendants operated a cocaine distribution enterprise in violation of

21 U.S.C. § 848. Courtney Carter (“Carter”) stood at the head of the conspiracy. Carter

would obtain drugs from a supplier, and would immediately call Patterson and Jamal

Morris (“Morris”) and direct them to meet him at his apartment. (Supplemental

Appendix (“Supp. App.”) at 265.) Carter would supply cocaine without requiring full

reimbursement, or “front” it, to a few trusted co-conspirators, including Patterson.

Patterson, in turn, would distribute the cocaine to other sellers. (Id. at 316.) Carter

testified that he and Patterson “always had a close relationship.” (Id. at 713.)

       Patterson would front drugs to people who handled drug operations on street

corners and blocks for him. (Id. at 216-17.) Patterson had at least four people who

                                              3
received drugs directly from him: Christopher Williams (“Williams”), Malik Williams,

Anton Tyler, and Shannon Myrick. (Id. at 246-54.) Williams would then supply a large

number of people with cocaine, and had people who sold cocaine for him. Id. Patterson

also supplied drugs to sellers in Pittsburgh. (Id. at 232-33.)

       Patterson raised Williams as his favorite “young boy” - a protege in the drug

business. (Id. at 218, 221.) When Williams began to expand his reach, Patterson fronted

him drugs because Williams “didn’t have no money . . . . [Patterson] was starting him out.

Helping him out.” (Id. at 225.) Patterson arranged for a Mercedes Benz lease for

Williams, only eighteen years-old at the time, from a luxury car dealer who supplied

many cars for conspirators in the Carter organization. (Id. at 573-78.)

       Patterson supplied another corner at 56th Street and Catharine Street in

Philadelphia, which was also allegedly under his control. According to the testimony of a

Government witness and alleged co-conspirator, although it was Anton Tyler’s corner,

the workers on the block were “Giovanni’s worker[s],” – “Giovanni” being a nickname

for Patterson. (Id. at 560.) When one of the corner’s hustlers was arrested, Patterson and

Williams provided his bail money because he was “Giovanni’s worker.” (Id. at 538.)

       Patterson was tried before Judge Stewart Dalzell in the Eastern District of

Pennsylvania beginning April 14, 2004. During jury selection, Patterson challenged the

Government’s striking of two African American jurors. Patterson’s Batson challenges

were denied.

       At trial, the Government called Special Agent Anthony Tropea (“Tropea”) as a

                                              4
witness and qualified him as an expert in the area of telecommunication data/pen register

information. Patterson objected to the qualification but was overruled. Tropea testified

as to the telecommunications patterns between the various defendants, and testified that

the patterns were consistent with a drug operation.

                                             II.

       Patterson argues that there is insufficient evidence to support the jury’s finding that

he served as a principal administrator, organizer, or leader in the continuing criminal

enterprise pursuant to 21 U.S.C. § 848(b). In order to be a principal administrator,

organizer, or leader, Patterson need not be a “kingpin” or “ringleader.” United States v.

Johnson, 54 F.3d 1150, 1155 (4th Cir. 1995). He need only have provided “help, guidance

and advice” and wholesale drugs on consignment to fall within § 848(b). See United

States v. Becker, 892 F.2d 265, 267 (3d Cir. 1989).

       In order to determine whether evidence is sufficient to support a conviction, “we

must determine whether, viewing the evidence most favorably to the government, there is

substantial evidence to support the jury’s guilty verdict.” United States v. Wexler, 838

F.2d 88, 90 (3d Cir. 1988) (citing Glasser v. United States, 315 U.S. 60, 80 (1942)). The

“strict principles of deference to a jury’s findings” compel us “to draw all reasonable

inferences . . . in the government’s favor.” United States v. Ashfield, 735 F.2d 101, 106

(3d Cir. 1984). We must 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. Voigt, 89

F.3d 1050, 1080 (3d Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

                                              5
A claim of insufficiency of the evidence therefore places “a very heavy burden” on

Patterson. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation

omitted). Patterson has not met this burden.

       The jury’s finding that Patterson played a leadership role in the Carter organization

was supported by the testimony of numerous Government witnesses, who gave detailed

testimony as to Patterson’s activities in the conspiracy. As described above, these

witnesses testified that Patterson exercised a degree of control over certain corners where

the sellers worked, providing his “young boys” with drugs and guidance, posting bail for

sellers, and even supplying one with a car. When Patterson and “people . . . that had to do

with” Patterson were robbed by a rival dealer, he organized retaliation. (Supp. App. at

612-16.) Patterson also provided drugs to numerous sellers on consignment. Taken

together, this evidence could lead a reasonable juror to conclude that Patterson provided

the necessary guidance to qualify as an administrator, organizer, or leader in the

continuing criminal enterprise under 21 U.S.C. § 848(b).

       Patterson next argues that, because § 848 was cited in the Indictment rather than §

848(b) specifically, he was not given notice he would be tried as a principal administrator,

organizer, or leader under § 848(b). Where, as here, an alleged defect in the indictment

was not objected to, the indictment is subject to plain error review. United States v.

Cotton, 237 F.3d 625, 631-32 (2002). The omission of the “(b)” after “§ 848" was not

plain error. Although § 848(b) was not specifically cited, the Indictment did state that

Patterson was a “principal administrator, organizer, or leader” in the continuing criminal

                                               6
enterprise, which is the subject of § 848(b). Therefore, it is simply without merit for

Patterson to argue that he was not on notice that the Government would be trying him as a

“principal administrators, organizers, or leader” in the continuing criminal enterprise

pursuant to § 848(b).

       Patterson’s argument that the conviction must be overturned because the

Government also failed to prove the amount of money in the enterprise exceeded $10

million in any twelve-month period must also fail. Patterson ignores the fact that the

Government need not prove the amount generated by the conspiracy – it may also prove,

in the alternative, that the conspiracy involved at least 300 times the quantity of substance

described in subsection § 841(b)(1)(b). United States v. Jackson, 345 F.3d 638, 646 (8th

Cir. 2003).   The Government chose to indict under this prong, not the revenue prong,

and it was this prong it chose to prove to the jury. There was therefore no error in the

District Court not requiring the Government to prove the amount of money the conspiracy

generated exceeded $10 million.

       Patterson also argues that the District Court improperly dismissed his Batson

challenge when the prosecutor struck two African American potential jurors. A Batson

challenge is a procedure by which a party challenges the other party’s use of a

peremptory strike on the basis that it violates the Equal Protection clause of the

Constitution, such as on the basis of race. See United States v. DeJesus, 347 F.3d 500,

502 n.2 (3d Cir. 2003). We evaluate a Batson claim using a three-part test: 1) has the

objector established a prima facie case of purposeful discrimination in the exercise of

                                              7
peremptory challenges against jurors of, for example, a particular race?; 2) if yes, did the

party defending the challenges rebut the prima facie case by tendering a race-neutral

explanation for the strikes?; 3) if so, has the objector carried his or her burden of proving

purposeful discrimination, such as showing that the proffered explanation is pretextual.

See United States v. Milan, 304 F.3d 273, 281 (3d Cir. 2002).       A trial court’s finding as

to the lack of intentional discrimination is a finding of fact reviewed for clear error.

United States v. Casper, 956 F.2d 416, 419 (3d Cir. 1992) (citing United States v.

Celmons, 892 F.2d 1153, 1157 (3d Cir. 1989)).

       Here, the District Court accepted the prosecutor’s race-neutral explanations for

striking the jurors. The prosecutor noted that one of the stricken jurors “appeared to be

confused,” like a “deer in headlights,” and “perhaps afraid.” (App. at 101.) Given the

level of violence in the case, the prosecutor did not “want to have those types of issues

even remotely at the back of the juror’s mind.” (Id.) With regard to the other juror, the

prosecutor observed her “making eye contact with the defendants” which, while perhaps

not the result of “attraction” indicated to the prosecutor “some degree of happiness about

being [there] to see [the] defendants.” (App. at 102.) The prosecutor was also concerned

with the fact that, when the District Court asked potential jurors about any “grave

concern[s]” they might have about serving, the potential juror discussed an appointment

for her son for kindergarten and modeling. (Id.)

       The District Court did not commit clear error in accepting these explanations. The



                                              8
prosecutor’s “[c]redibility can be measured by, among other factors, the prosecutor's

demeanor; by how reasonable, or how improbable, the explanations are; and by whether

the proffered rationale has some basis in accepted trial strategy.” Miller-El v. Cockrell,

537 U.S. 322, (2003). The District Court considered the prosecutor’s demeanor and

behavior throughout the trials involving this conspiracy. (App. at 106.) The explanations

also have a basis in trial strategy and are credible; indeed, the District Court shared the

prosecutor’s concerns about the juror who was concerned about her child’s appointments.

(App. at 103.) Therefore, Patterson has not met his burden of demonstrating clear error

on the part of the District Court in failing to accept these explanations as pretext for racial

discrimination.

       Patterson also argues that the District Court abused its discretion in allowing

Special Agent Anthony Tropea to testify as an expert in the use of telephones in a drug

trafficking organization based on his experience in collecting and using telephone

information to investigate large drug organizations.1 The two-step inquiry into


   1
   Testimony by experts in criminal trials is governed by Federal Rule of Evidence 702,
which sets forth:
       If scientific, technical, or other specialized knowledge will assist the trier of fact to
       understand the evidence or to determine a fact in issue, a witness qualified as an
       expert by knowledge, skill, experience, training, or education, may testify thereto
       in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
       facts or data, (2) the testimony is the product of reliable principles and methods,
       and (3) the witness has applied the principles and methods reliably to the facts of
       the case.


       Fed.R.Evid. 702.

                                               9
admissibility of expert testimony requires the trial judge to assess the relevance and

reliability of the expert’s testimony. The relevance requirement mandates a “fit” between

testimony and the issue to be resolved by trial, while the reliability requirement contends

with the methodology and principles underlying the testimony. Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).

       Here, Tropea testified as to how a large quantity of telephone contact data was

collected from pen registers and telephone records, stored in a database, and then

analyzed. (App. 110-17.) He testified to Patterson’s use of cellular telephones,

Patterson’s common contacts, and the patterns of telephone contacts surrounding certain

incidents, such as a shooting at Penrose Plaza that co-conspirators testified to. (Id.)

Based on his fourteen years of experience, Tropea opined that a certain phone was used

by Patterson based on these patterns and the use of a “known phone” seized from

Patterson. (Id. at 110-26.) He testified to the practice of drug dealers “dropping” phones

while warrants are attained, and using another phone. (App. At 139-40.) Tropea also

explained numerous charts that summarized the phone use patterns. (App. At 110-20,

127, 134, 146-48.)

       The District Court did not abuse its discretion in finding that Tropea’s testimony

was admissible as expert testimony. Courts have routinely permitted law enforcement

agents to testify as experts on the practices and habits of drug dealers, including phone

use. See United States v. Perez, 280 F.3d 318, 341-42 (3d Cir. 2000) (finding district

court properly exercised its discretion in drug conspiracy trial to admit expert's testimony

                                             10
with respect to drug traffickers' use of cell phones and pagers to evade location by police

investigators; witness, thirty-two year law enforcement veteran, qualified as expert, and

his testimony was helpful and relevant); United States v. Brewer, 1 F.3d 1430, 1436 (4th

Cir. 1993) (phone use by drugs dealers); see also United States v. Theodoropoulos, 866

F.2d 587, 590-91 (3d Cir. 1989) (jargon used by drug dealers). Moreover, police

investigative techniques are also often the subject of expert testimony. See United States

v. Mitchell, 365 F.3d 215, 234 (3d Cir. 2004) (fingerprint analysis). Given the expert’s

experience, the topic, and the technical information at issue, the District Court did not

abuse its discretion in allowing Tropea to testify as an expert.

       Finally, Patterson and the Government both argue that Patterson’s conviction on

Count One, under 21 U.S.C. § 846, was a lesser offense included in 21 U.S.C. § 848,

charged in Count Eighty-nine, and thus his conviction on Count One constitutes double

jeopardy and clear error. We agree. Under Rutledge v. United States, 517 U.S. 292, 300,

307 (1996), 21 U.S.C. § 846 is a lesser included offense in 21 U.S.C. § 848. Because we

affirm the conviction under 21 U.S.C. § 848, we remand the case to permit the District

Court to dismiss the conviction under 21 U.S.C. § 846. Id. at 307.

                                             III.

       For the reasons stated above, we affirm Patterson’s conviction and sentence but

remand the case for the dismissal of Count One of the Indictment and the amendment of

the judgment of conviction accordingly.



                                             11
