United States v. Adams

316 F. App'x 60
CourtCourt of Appeals for the Second Circuit
DecidedMarch 23, 2009
DocketNos. 06-1714-cr(L)-Closed *, 06-1900-cr(CON), 06-1909-cr(CON), 06-1914-cr(CON)-Closed, 06-1932-cr(CON), 06-1953-cr(CON), 06-1962-cr(CON), 06-2221-cr(CON)-Closed, 06-2518-cr(CON)
StatusPublished
Cited by1 cases

This text of 316 F. App'x 60 (United States v. Adams) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Adams, 316 F. App'x 60 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Defendants-Appellants appeal from judgments of conviction following two separate jury trials in the United States District Court for the Eastern District of New York (Ross, J.). Both trials resulted from the investigation of drug smuggling at John F. Kennedy International Airport. In the first trial, Defendants-Appellants Michael Erskine, Priestly Green, and En-glan Younge were charged with conspiring to import five kilograms or more of cocaine and 1,000 kilograms or more of marijuana, and conspiring to possess those drugs with intent to distribute them. Erskine and Green were found guilty on all counts. By a special verdict form, Younge was found guilty of the charged offenses related to cocaine, but not guilty of the charges as they related to marijuana. The district court sentenced Erskine to thirty-six months imprisonment, Green to forty-eight months imprisonment, and Younge to 210 months imprisonment.

In the second trial, Defendants-Appellants Gary Lall and Richard Pitcher were convicted for conspiring to import five or more kilograms of cocaine and conspiring to possess with intent to distribute five kilograms or more of cocaine. Lall was also convicted of two conspiracies: conspiring to import and conspiring to possess with intent to distribute fifty kilograms or more of marijuana. The district court sentenced Lall to concurrent sentences of 210 months imprisonment. Pitcher received concurrent sentences of 120 months imprisonment. We assume the parties’ fa[62]*62miliarity with the underlying facts and the procedural history of this case.

On appeal, the defendants challenge their convictions and sentencing on numerous grounds.

Variance, Misjoinder, and Prejudicial Spillover Challenges

Erskine and Lall argue that there was a fatal variance between the conspiracies with which they were charged and the conspiracies proven at trial. When a defendant argues, as these two defendants do here, that he is prejudiced by the variance “between the indictment, which alleged a single conspiracy, and the proof at trial, which, at best tended to prove several independent conspiracies,” this Court undertakes a two-part inquiry. United States v. Johansen, 56 F.3d 347, 350 (2d Cir.1995). First, we “must determine whether the government sufficiently proved the conspiracy alleged in the indictment, and that the defendant was a member of that conspiracy.” Id. “Second, if the evidence fails to support such a finding, we must then determine whether the defendant was substantially prejudiced by the variance between the indictment and the proof.” Id. To determine if substantial prejudice occurred under the second prong of the analysis, the court looks to “whether the jury convicted the defendant on evidence unrelated to his own alleged activity.” United States v. Geibel, 369 F.3d 682, 693 (2d Cir.2004) (internal quotations omitted); Johansen, 56 F.3d at 351 (“Even where such a variance exists, however, we reverse a conviction only upon a showing of substantial prejudice, i.e. [,] that the evidence proving the conspiracies in which the defendant did not participate prejudiced the case against him in the conspiracy to which he was a party.” (emphasis in original)). In determining prejudice, this court will consider:

(1) whether the court gave a Pinkerton charge; (2) whether statements of persons not in the conspiracy were used against the defendant; (3) whether there was prejudicial spillover due to a large number of joined defendants; and (4) whether any inflammatory or shocking evidence came in against the defendant.

United States v. McDermott, 245 F.3d 133, 139 (2d Cir.2001). When a defendant is “involved in all the conspiratorial conduct proved at trial, there [is] no prejudicial spillover evidence likely to confuse the jury.” United States v. Williams, 205 F.3d 23, 33 (2d Cir.2000).

As for his specific argument, Erskine contests the district court’s finding that the Barbados scheme developed out of the Guyana scheme. He further contends that the Barbados scheme never developed into a conspiracy. Erskine cannot show that he was prejudiced by any variance stemming from proof of an unrelated conspiracy because he was involved in each of the potentially distinct conspiracies proven at trial. See Williams, 205 F.3d at 33.

The district court’s finding that the two schemes were sufficiently similar to be part of the same importation conspiracy was correct. “[A] single conspiracy is not transposed into a multiple one simply by lapse of time, change in membership, or a shifting emphasis in its locale of operations.” United States v. Cambindo Valencia, 609 F.2d 603, 625 (2d Cir.1979). The introduction into evidence of the cocaine from the Guyana portion of the scheme could not have prejudiced Erskine because he was involved in that conspiracy by way of his role in the importations from Barbados. Therefore, as to the first prong of the variance inquiry, the requirement to prove a conspiracy and Erskine’s membership in it is satisfied. Even if we were to reach the second step and examine wheth[63]*63er Erskine was prejudiced by a variance, based on a review of the factors set out in McDermott, there is no prejudice. The district court did not give a Pinkerton charge; the trial involved only four defendants; there was no shocking or inflammatory evidence; and the evidence against Erskine consisted largely of his own statements in intercepted phone calls. See McDermott, 245 F.3d at 139.

For his part, Lall asserts he was prejudiced as a result of: variance between the indictment and the evidence presented at his trial; the joinder of the multiple conspiracies in the indictment; and the introduction of testimony relating to the Adams importation conspiracy that was the focus of the other trial involving Erskine, Green, and Younge. With respect to his variance claim, Lall argues that his right to a fair trial was prejudiced by the evidence of multiple conspiracies introduced at trial that he claims varied from the conspiracies charged in the indictment. The Government charged and proved at trial that Lall was involved with and formed the link between the various conspiracies charged in the indictment. Lall cannot successfully argue prejudice due to evidence introduced pertaining to those different conspiracies. See Williams, 205 F.3d at 33.

Although not specifically presented as a misjoinder argument, Lall also argues that he was prejudiced at trial by the joinder of multiple discrete conspiracies because of the prejudicial spillover of evidence from one charged conspiracy to another. Because Lall did not make a pretrial motion for severance with respect to the superseding indictment, he has not preserved a claim for prejudicial misjoinder of the two main conspiracies charged. See United States v. Green, 561 F.2d 423, 426 (2d Cir.1977) (“[I]t is clear that the failure to move for a severance before trial ... constitutes a waiver.”).

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Cite This Page — Counsel Stack

Bluebook (online)
316 F. App'x 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-adams-ca2-2009.