12-4663(L)
United States v. Barret

                               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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
15th day of February, two thousand seventeen.

Present:    ROSEMARY S. POOLER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                        Appellee,                                  12-46631
                                                                                   13-3800
                                                                                   14-573
                          v.                                                       14-2014

CHRISTOPHER BARRET, D/B/A Derrick Brown, A/K/A Sean
Brown, A/K/A Mouthy, A/K/A The General, A/K/A Chris, A/K/A
Solo, OMAR MITCHELL, A/K/A Sox, LEON SCARLETT,
A/K/A Agony, A/K/A Piggy,

                        Defendants-Appellants.2
_____________________________________________________

Appearing for Appellants:        James M. Branden, New York, NY, for Defendant-Appellant
                                 Christopher Barret.



1    12‐4663 was determined by an order filed on April 18, 2014. 
2
    The Clerk of Court is respectfully directed to amend the caption as above.
                               Michael H. Sporn, New York, NY, for Defendant-Appellant Omar
                               Mitchell.

                               Peter J. Tomao, Garden City, NY, for Defendant-Appellant Leon
                               Scarlett.

Appearing for Appellee:        Tyler J. Smith, Assistant United States Attorney (Amy Busa, Peter
                               A. Norling, Assistant United States Attorneys, on the brief), for
                               Robert L. Capers, United States Attorney for the Eastern District of
                               New York, New York, NY.

      Appeal from the United States District Court for the Eastern District of New York
(Matsumoto, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of said District Court be and they hereby are AFFIRMED.

         Appellants Christopher Barret, Leon Scarlett, and Omar Mitchell appeal from the
judgments of May 29, 2014, October 2, 2013, and February 10, 2014, respectively, in the United
States District Court for the Eastern District of New York (Matsumoto, J.). After jury trial,
Barret was convicted of being the leader of a continuing criminal enterprise, in violation of 21
U.S.C. § 848(a), conspiring to distribute and possess with intent to distribute more than 1,000
kilograms of marijuana, in violation of 21 U.S.C. § 846, maintaining a stash house and
conspiring to do the same, in violation of 21 U.S.C. §§ 856(a) and 846, distribution and
possession with intent to distribute at least 100 kilograms of marijuana on or about October 7,
2010, in violation of 21 U.S.C. § 841(a)(1), and brandishing firearms in furtherance of drug
trafficking crimes, in violation of 18 U.S.C. § 924(c). Scarlett was convicted of the drug
conspiracy count and the distribution count. Mitchell was convicted of the conspiracy count.

        In this summary order, we address the bulk of Barret’s, Scarlett’s, and Mitchell’s
arguments on appeal. In a separate opinion issued concurrently with this summary order, we
address the district court’s admission of testimony by a former co-defendant who pled guilty
mid-trial, and whether there was sufficient evidence produced at trial to attribute to Mitchell the
drug quantity stated in the conspiracy charge and convict Mitchell of conspiracy to distribute and
possess with intent to distribute. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        We first consider whether the evidence is sufficient to support a conviction on Count
Two of the indictment, that Barret and Scarlett conspired to distribute and possess with intent to
distribute more than 1,000 kilograms of marijuana. A jury’s verdict must be upheld if “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “In cases of conspiracy, deference to the
jury’s findings 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.” United States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004)
(internal quotation marks and citation omitted).


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        To affirm a conviction for conspiracy to distribute under Section 846, the record must
support a rational jury’s finding of “(1) the existence of the conspiracy charged; (2) [] the
defendant had knowledge of the conspiracy; and (3) [] the defendant intentionally joined the
conspiracy.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (citations omitted). As
relevant here, a “[c]onviction of a Section 841(b)(1)(A) conspiracy also requires that a jury find,
or the defendant himself admit to, the drug-quantity element. Additionally, we require proof that
this drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant.”
United States v. Adams, 448 F.3d 492, 499 (2d Cir. 2006) (citations omitted).

        We have no trouble concluding that the evidence was sufficient with respect to Barret and
Scarlett. We believe that a rational trier of fact could have found the essential elements of the
conspiracy charge against Barret. At trial, cooperating witnesses who had been involved in a
conspiracy to distribute marijuana identified Barret as the leader of the operation. The results of
the government’s surveillance and search of Barret’s residence in Jamaica, Queens, were also
incriminating. Over the course of many weeks, suspicious parcels from Arizona were repeatedly
delivered to Barret’s residence. Law enforcement found remnants of marijuana in garbage left
outside Barret’s residence and, during a search of the residence, discovered opened and
unopened parcels containing large quantities of marijuana.

        As to Scarlett, Melbert Palmer, a cooperating witness, testified that Scarlett sold
marijuana for Barret, that when Scarlett was released on parole in 2008 he began providing
protection for Barret, that Scarlett picked up packages for Barret and also distributed marijuana
(often referring to Barret as “General”), and that Scarlett gave Barret money so that Barret could
buy marijuana from Arizona for Scarlett. Palmer also testified that he frequently saw Scarlett at
Barret’s “stash house” in 2010, observed Scarlett pick up marijuana from the back yard of the
stash house on several occasions, and that Scarlett sometimes accompanied Barret to collect
payments. Another cooperating witness, Kareem Forrest, testified that he would see Scarlett at
the “stash house” three or four times per week, that Scarlett would pick up marijuana from
Barret’s residence about every two weeks, that Scarlett usually received approximately one to
two kilograms of marijuana each time he picked up drugs at Barret’s residence, and that Scarlett
sold to various drug dealers in Queens. Finally, Scarlett was present at Barret’s residence on the
day of the government’s October 7, 2010 raid of the home. Following the raid, investigators
recovered evidence that nearly 100 kilograms of marijuana had been delivered to the residence
on that one day. Given the amount of marijuana that was found during the raid, the frequency of
the shipments, Scarlett’s involvement in Barret’s operation from at least 2008 to 2010, and other
evidence produced at trial, a jury could have found the requisite elements of the conspiracy
charge against Scarlett, including that he could have reasonably foreseen that the conspiracy
involved in excess of 1,000 kilograms of marijuana.

        All three Appellants also argue the district court erred by admitting particular evidence of
prior crimes, wrongs or other acts under Rule 404(b) of the Federal Rules of Evidence. This
court reviews a district court’s admission of evidence permitted by Fed. R. Evid. 404(b) “under
an ‘inclusionary approach’ and allows evidence ‘for any purpose other than to show a
defendant’s criminal propensity.’” United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)
(citing United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir. 1992). Courts may admit evidence of


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prior bad acts if the evidence “is relevant to an issue at trial other than the defendant’s character,
and if the probative value of the evidence is not substantially outweighed by the risk of unfair
prejudice.” United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998). To determine if the court
properly admitted prior act evidence pursuant to Rule 404(b), this court considers whether: (1)
the prior act evidence was offered for a proper purpose; (2) the evidence was relevant to a
disputed issue; (3) the probative value of the prior act evidence substantially outweighed the
danger of its unfair prejudice; and (4) the court, upon request, administered an appropriate
limiting instruction. See Huddleston v. United States, 485 U.S. 681, 691-92 (1988).

        In particular, Barret challenges the district court’s admission of evidence regarding (1)
his leadership in the so-called “Fatherless Crew,” (2) his 2003 conviction for attempted criminal
possession of a loaded firearm, and (3) text messages threatening a person who Barret believed
was a witness against him. Scarlett challenges the district court’s admission of evidence of a
2004 weapons conviction. Mitchell argues the court should not have admitted text messages
relating to his receipt of narcotics from Barret’s Arizona supplier of marijuana, Clifton Williams,
following Barret’s arrest. All of these arguments fail. The evidence admitted against Barret was
indicative of Barret’s relationships with co-conspirators, and the specific evidence of his
knowledge of firearms belies the defense’s claim that Barret had no knowledge of or intent to
participate in the charged crimes. See, e.g., United States v. Mercado, 573 F.3d 138, 141 (2d Cir.
2009) (finding that evidence of prior firearm sales was admissible under Rule 404(b) and highly
probative as to knowledge and intent, as well as the development of the relationship between co-
conspirators). Further, Scarlett’s and Barret’s firearm convictions were relevant to issues of
absence of mistake and access to firearms. See United States v. Brown, 961 F.2d 1039, 1042 (2d
Cir. 1992) (permitting the introduction of other weapons seized as probative of knowledge,
absence of mistake or accident); United States v. Zappola, 677 F.2d 264, 270 (2d Cir. 1982)
(access to firearms). Finally, given that Mitchell’s primary defense was that he was not a
member of the conspiracy, the evidence of text messages between Mitchell and Williams was
admissible because they were relevant to show Mitchell’s intent and knowledge regarding the
charged conspiracy.

        We have considered the remainder of Appellants’ arguments and find them to be without
merit. Accordingly, the three judgments of the district court hereby are AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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