                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4554




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                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                             Nos. 02-4381/4554


                     UNITED STATES OF AMERICA

                                                 Appellee

                                     v.

JAMES MELTON a/k/a Jay-Mo, a/k/a JOHN MELTON, a/k/a JASON MELTON, a/k/a
                            DAVID McGHAE

                                                 Appellant No. 02-4381

                                  _______

                     UNITED STATES OF AMERICA

                                                 Appellee

                                     v.

                           PATRICK STEWART

                                                 Appellant No. 02-4554




               On Appeal from the United States District Court
                          for the District of New Jersey
                 (D.C. Nos. 00-cr-00384-07, 00-cr-00384-03)
              District Judge: The Honorable Stephen M. Orlofsky




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                       Submitted Under Third Circuit LAR 34.1(a)
                                  Date: May 13, 2005


              Before: SLOVITER, FISHER and ALDISERT, Circuit Judges

                                   (Filed: May 13, 2005)




                                OPINION OF THE COURT


ALDISERT, Circuit Judge.

       Appellants James Melton and Patrick Stewart (collectively “defendants”) appeal

their convictions and sentences for, inter alia, conspiracy to distribute and possession with

intent to distribute more than five grams of cocaine in violation of 21 U.S.C. § 846.

Defendants were members of a large-scale drug trafficking organization headed by Earl

Wynn. They were tried together and a jury returned a guilty verdict. The District Court

sentenced Melton to concurrent terms of 480 months and 48 months and Stewart to

concurrent terms of 121 months and 48 months. The defendants’ appeals were

consolidated by an order of this Court.

       We must decide whether: (1) the District Court erred in accepting the wiretap

affidavit; (2) the District Court exceeded the permissible bounds of discretion in

admitting evidence pursuant to Rule 404(b) of the Federal Rules of Evidence; (3) the

District Court exceeded the permissible bounds of discretion by not declaring a mistrial;

(4) there was sufficient evidence to support the defendants’ convictions; and (5) the

                                             2
District Court erred in sentencing the defendants. We have jurisdiction pursuant to 28

U.S.C. § 1291. We will affirm the conviction, vacate the sentences and remand for re-

sentencing in accordance with United States v. Booker, 543 U.S.—, 125 S.Ct. 738 (2005).

                                           I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                                II.

       Melton contends that the wiretap evidence should be suppressed because the

government’s affidavit for authorization failed to establish the necessity for the wiretap.

“We review de novo the question of whether a full and complete statement of necessity

for a wiretap was made in the application. Once it is determined that the statement was

made, we will review the court’s determination of necessity for an abuse of discretion.”

United States v. Phillips, 959 F.2d 1187, 1189 (3d Cir. 1992).

       In order to use a wiretap, the government must submit an application in writing

that states, inter alia, that “whether or not other investigative procedures have been tried

and failed or why they reasonably appear to be unlikely to succeed if tried or to be too

dangerous.” 18 U.S.C. § 2518(1)(c) (2000). A judge must then make a similar

determination. § 2518(3)(c). These provisions were designed to assure that wiretapping is

not employed when traditional investigative techniques would be sufficient. United States



                                                3
v. Kahn, 415 U.S. 143, 153 n. 12 (1974). We have explained that “[i]t is sufficient that

the government show that other techniques are impractical under the circumstances and

that it would be unreasonable to require pursuit of those avenues of investigation.” United

States v. Vento, 533 F.2d 838, 849 (3d Cir. 1976).

       Here, the government’s affidavit detailed how normal investigative procedures had

been tried and were unlikely to succeed again. For example, the affidavit stated that: (1)

physical surveillance had to be used sparingly because the drug traffickers could easily

identify law enforcement officers; (2) video surveillance had been detected and

vandalized; (3) Earl Wynn was adept at counter-surveillance; (4) pen registers provided

limited information; and (5) the confidential source expressed safety concerns.

Accordingly, the information provided by the government’s affidavit was more than

sufficient to demonstrate the need for a wiretap under the applicable case law.

                                          III.

       Melton contends also that the District Court exceeded the permissible bounds of

discretion in admitting evidence pursuant to Rule 404(b). We review a district court’s

decision to admit evidence for an abuse of discretion, which “may be reversed only when

clearly contrary to reason and not justified by the evidence.” United States v. Butch, 256

F.3d 171, 175 (3d Cir. 2001) (internal citations omitted). Rule 404(b) prohibits the use of

evidence of “other crimes, wrongs, or acts” to prove the character of a person. In Butch,

we said:



                                             4
       The “threshold inquiry a court must make before admitting similar acts
       evidence under Rule 404(b) is whether that evidence is probative of a
       material issue other than character.” This Court recently set out a
       four-factor standard governing the admissibility of evidence pursuant to
       Rule 404(b), which requires: (1) a proper evidentiary purpose; (2) relevance
       under Rule 402; (3) a weighing of the probative value of the evidence
       against its prejudicial effect under Rule 403; and (4) a limiting instruction
       concerning the purpose for which the evidence may be used.


Id. at 175 (internal citations omitted).

       Here, the District Court noted that the testimony of a co-conspirator could be

considered relevant to provide necessary background information, to show an ongoing

relationship between Melton and his co-conspirators and to help the jury understand the

co-conspirator’s role in the scheme. The court also concluded that the probative value of

the evidence outweighed the prejudicial value and gave the jury limiting instructions.

Accordingly, it did not exceed the permissible bounds of discretion.

                                             IV.

       Further, Melton argues that the District Court erred in not declaring a mistrial. In

its case-in-chief, the government may not adduce testimony of a defendant’s

imprisonment. United States v. Gray, 468 F.2d 257, 260 (3d Cir. 1972). We review a

district court’s denial of a mistrial for abuse of discretion. United States v. Xavier, 2 F.3d

1281, 1285-1286 (3d Cir. 1993).

       Melton seizes upon two brief and ambiguous remarks to show that the government

presented evidence that he was imprisoned. As to the first statement, Melton’s counsel



                                              5
admitted that it was not sufficient to ask for a mistrial because the witness’s statement

was ambiguous. The second statement, ambiguous at best, was stricken from the record.

We have held that courts must “normally presume that a jury will follow an instruction to

disregard inadmissible evidence inadvertently presented to it . . . . ” United States v.

Fisher, 10 F.3d 115, 119 (3d Cir. 1993). Accordingly, the District Court did not exceed

the permissible bounds of discretion in denying a mistrial.

                                              V.

       Both defendants raise sufficiency of the evidence questions. We exercise plenary

review over challenges to the sufficiency of the evidence, United States v. Taftsiou, 144

F.3d 287, 290 (3d Cir. 1998), to determine whether the trial evidence, when viewed in the

light most favorable to the government, would allow a rational trier of fact to convict,

United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001).

       Wynn’s testimony was sufficient to establish guilt on all counts and his statements

were corroborated by other witnesses. Both defendants attack Wynn’s credibility and

Stewart contends that Wynn “admitted” lying to the jury. It is not our role to assess the

credibility of witnesses. United States v. Carr, 25 F.3d 1194, 1202-1203 n. 3 (3d Cir.

1994). Accordingly, there is sufficient evidence for the jury’s verdict.

                                             VI.

       Both defendants challenge their sentences. Having concluded that the sentencing

issues raised here are best determined by the District Court in the first instance, we will



                                              6
vacate the sentence and remand for re-sentencing in accordance with United States v.

Booker, 543 U.S.—, 125 S.Ct. 738 (2005).

                                        *****

       We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary.

       The judgment of the District Court relating to the defendants’ convictions will be

affirmed. We will vacate the sentences and remand for re-sentencing in accordance with

Booker.




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