United States v. Barret

848 F.3d 524, 677 Fed. Appx. 21, 2017 WL 603290, 2017 U.S. App. LEXIS 2618
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 15, 2017
DocketDocket Nos. 12-4663(L), 13-3800, 14-573, 14-2014
StatusPublished
Cited by17 cases

This text of 848 F.3d 524 (United States v. Barret) 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. Barret, 848 F.3d 524, 677 Fed. Appx. 21, 2017 WL 603290, 2017 U.S. App. LEXIS 2618 (2d Cir. 2017).

Opinion

POOLER, Circuit Judge:

Appeal from the judgment of the United States District Court for the Eastern District of New York (Matsumoto, J.) convicting Christopher Barret, Omar Mitchell, and Leon Scarlett of conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana. This opinion addresses two arguments raised by appellants: whether (1) the district court erred in admitting the testimony, of Kareem Forrest, a former co-defendant who switched his plea to guilty and agreed midtrial to cooperate with the gov-[527]*527eminent, and testify against the remaining eo-defendants; and (2) the quantity of marijuana attributed to Mitchell is supported by the evidence.

We join our sister Circuits in finding the testimony of a former codefendant who pleads guilty during trial, and then agrees to testify as a government witness at that same trial, is admissible so long as the district court takes steps to avoid undue prejudice to the remaining defendants. See, e.g., United States v. Olson, 450 F.3d 655 (7th Cir. 2006). These steps include limiting testimony to events other than the witness’s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances.

We also hold that the evidence adduced at trial was sufficient to permit the jury to conclude that Mitchell knowingly joined a conspiracy to distribute more than 1,000 kilograms of marijuana, and that such an amount was reasonably foreseeable to him. Appellants’ remaining arguments are addressed in a summary order issued simultaneously with this opinion.

BACKGROUND

I. The Investigation

This case developed from a joint investigation by the United States Postal Inspection Service, the Drug Enforcement Administration (“DEA”), and the New York City and New York State Police Departments, into the activities of a large-scale marijuana distribution organization in Queens, New York known as the “Fatherless Crew.” The government alleged, and as outlined below the evidence at trial demonstrated, that the Fatherless Crew acted as wholesalers for New York-based drug dealers, with the drugs shipped from suppliers in Arizona and California via the United States Postal Service. Barret headed the Fatherless Crew; Scarlett served primarily as an enforcer for Barret; and Mitchell served as a lookout who, from time to time, also sold drugs.

The Fatherless Crew is alleged to have run its operation out of the Barret residence in Jamaica, Queens, one other residential property, and several commercial mail receiving agencies (“CMRAs”) located in Queens. Arizona police officers contacted the Postal Inspection Service in Arizona after observing a subject in a narcotics investigation mail three packages. The packages were set aside, and a drug-sniffing dog gave positive alerts to the packages, an indication that the packages contained contraband. After making inquiries, a postal inspector determined that while the addresses on the packages were valid, the names on the packages were not the names associated with those addresses. The postal inspector obtained search warrants, opened the packages and ultimately seized 17.51 kilograms3 of marijuana from the three packages. After the seizure of the boxes in Phoenix, investigators used mail records to track certain parcels from Arizona to several CMRAs in Flushing, New York. Investigators also conducted surveillance of the locations where the packages were delivered, including Bar-ret’s residence, which was monitored via a video camera mounted to a utility pole.

On July 27, 2010, investigators observed Mitchell walking back and forth between the front of the Barret residence and a nearby street corner, and then sitting in front of the house “for quite a period of time.” Gov’t App’x at 107. When a silver Chrysler arrived, Mitchell talked to the driver, and then allowed him to back the [528]*528car into the driveway. A second individual removed a cardboard box from the vehicle and brought it into the Barret residence. The cardboard box was consistent in size and appearance with boxes later seized at the Barret residence and found to contain marijuana.

On August 26, 2010, four parcels that together weighed roughly 45 kilograms were dropped off at a post office in Arizona. The packages arrived in Flushing on August 28, 2010. On August 28, 2010, co-defendant Andre Wilson backed his Cadillac into the driveway of the Barret residence and unloaded the boxes into the house. Also that same day, three parcels that together weighed roughly 34 kilograms were dropped off at a post office in Arizona. These three parcels arrived in Flushing on August 30, 2010, and Wilson again backed his Cadillac into Barret’s driveway and unloaded boxes into the house.

The pattern repeated itself multiple times throughout September: packages were tendered in Arizona to the postal service; arrived at various CMRAs in Flushing; and were delivered to the Barret residence. Altogether, during the month of September, investigators observed roughly 187 kilograms of marijuana transported in this fashion.4

On October 5, 2010, ten packages weighing roughly 120 kilograms were sent from Arizona to three CMRAs in Flushing. Investigators observed Wilson pick up nine of the boxes and deliver them to the Bar-ret residence. Investigators later discovered the tenth box at another CMRA in Flushing, and seized’ 10.63 kilograms of marijuana from the box. In addition, on August 19, September 2, and 23, 2010, investigators conducted “trash pulls” of garbage left outside the Barret residence and discovered bags containing remnants of marijuana, plastic bags with marijuana residue and rubber bands.

On October 7, 2010, a number of individuals, including Forrest, gathered at the Barret residence. Around noon, Melbert Palmer arrived at the house with $1,500 to purchase marijuana. Barret told Palmer he didn’t have the marijuana, but that the marijuana was due soon, so Palmer should wait. Barret told Scarlett, Forrest, and two other individuals to join Wilson on his trip to pick up marijuana from the CMRAs. Palmer testified that he heard Barret tell Forrest to get two guns and to give one to Scarlett and one to another individual. Investigators observed Wilson and the others leaving to go to the CMRAs to pick up boxes, return to the Barret residence, unload boxes, and then return to the CMRAs to retrieve additional boxes.

Barret instructed Forrest and Constantine Branch to cut open the boxes and remove the marijuana, while asking Palmer to “burn” the address labels. Barret then left the residence and was arrested, along with a number of codefendants. Immediately prior to his arrest, Barret called Kevin Lee, who was still at the residence, and told Lee to “[r]un, run, run.” Following Barret’s arrest, a New York Police Department SWAT team executed a search warrant at the Barret residence. The police also arrested Scarlett, Forrest and several others.

During their search of the residence, investigators discovered an open box, along with one bale of marijuana on the kitchen counter and another bale on the [529]*529floor. Investigators also opened the remaining unopened parcels and found more bales of marijuana. The total weight of the marijuana recovered from the packages exceeded 95.7 kilograms.5 Investigators recovered approximately 20.4 kilograms more of marijuana elsewhere in Barret’s house.

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Bluebook (online)
848 F.3d 524, 677 Fed. Appx. 21, 2017 WL 603290, 2017 U.S. App. LEXIS 2618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barret-ca2-2017.