United States v. Price

346 F. App'x 796
Court of Appeals for the Third Circuit·Decided September 30, 2009·No. No. 08-4294·Published·Cited by 2 cases

Opinion

OPINION OF THE COURT

JORDAN, Circuit Judge.

Foster Price, Jr. was convicted by a jury in the United States District Court for the Middle District of Pennsylvania on charges related to the possession and distribution of heroin and was sentenced to 27 years in prison. He appeals the District Court’s judgment of conviction and sentence on four grounds, arguing first that there was insufficient evidence to convict him of being part of a conspiracy to distribute heroin, second, that the District Court erred in determining at sentencing that he was [798]*798responsible for the distribution of more than one kilogram of heroin, third, that the District Court erred by applying a leadership enhancement to his offense level in calculating his Guidelines range, and fourth, that the District Court erred by denying his motion for a mistrial based on comments made by the prosecutor during closing argument. For the reasons that follow, we will affirm Price’s conviction and sentence.

I. Background

On February 9, 2006, Price, who lived in central Pennsylvania and sold heroin there, was indicted on one count of conspiring to distribute and possess with intent to distribute more than a kilogram of heroin, in violation of 21 U.S.C. § 846, and three counts of distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). A number of alleged co-conspirators, both indicted and unindicted, testified for the government at Price’s trial. We will summarize the most pertinent testimony.

Jayme Hoagland testified that she regularly bought heroin from Price — both to feed her addiction and to sell to others— while she was a minor, both before and during the early stages of a pregnancy. She also stated that Price “cut” and “bagged” heroin in her apartment1 and stashed “bricks”2 of heroin above her ceiling tiles. Furthermore, Hoagland explained that, when Price’s schedule changed so that he was frequently out of the area, he introduced her to a new dealer, Ali Patterson. She claimed that she often traveled to Newark, New Jersey to purchase heroin from Patterson. Hoagland’s boyfriend, Casey Dodson, testified that he, too, regularly obtained heroin, for his personal use and for redistribution, from Price over a period of approximately six months. According to Dodson, he would not pay for the heroin up front, but would give Price some of the proceeds that he received from his sales.

Jeremy Robinson testified that he often purchased heroin, multiple bricks at a time, from both Price and Patterson, and admitted to reselling much of what he bought.3 He also testified that Price and Patterson “pretty much mutually agreed that they knew each other.” (SuppApp. at 282.) However, he did not indicate that Price introduced him to Patterson or recommended Patterson as an alternative source. He claimed to have met Patterson independently, when he went to Newark to “cop [heroin] off the street.” (Id. at 285.)

Patterson, who pled guilty to conspiring to distribute one kilogram or more of heroin, admitted that, for approximately two years, he sold three to seven bricks of heroin per day, five days a week, on Grafton Avenue in Newark. He claimed that he did not know his customers personally; they would drive up to where he was stationed, make their purchases, and drive away. Patterson testified that he and Price grew up together and had known each other all of their lives. He denied, however, that he sold heroin to Price, that Price introduced him to customers, or that customers expressed that they had come [799]*799on Price’s behalf or recommendation. He testified that he still had family in the violent neighborhood where he and Price grew up, but when the prosecutor asked him whether he would fear repercussions if he gave testimony that incriminated Price, Patterson responded that he would not.

Tony Dunka testified that he was introduced to Price by Hoagland and Dodson and that he regularly purchased heroin from Price. In June 2003, Dunka was arrested by Pennsylvania State Trooper Nicholas Madigan for a drug offense. Dunka ultimately agreed to work as a confidential informant and arranged for Madigan to purchase a brick of heroin from Price on February 10, 2004, at the Susquehanna Mall in Selinsgrove, Pennsylvania. Madigan and Dunka arrived at the mall and were met there by one of Price’s associates, a man that Dunka identified as “Chachi.” During the meeting, Madigan purchased a brick of heroin from Chachi. Following the purchase, Dunka spoke to Price, who indicated that he was pleased with how things had gone, and set up a second meeting for February 27 at the same location. This time, Price came to meet Madigan and sold him another brick of heroin. Dunka also testified that he saw Price with eight-to-ten bricks of heroin on six or seven other occasions.

Testifying on Price’s behalf, James Giardina admitted that he had purchased heroin for redistribution from Patterson and Hoagland but claimed that he had never met or even heard of Price before the instant proceedings. However, Tracy Bur-gos, a government witness who bought heroin from Giardina, testified that Giardina had mentioned Price’s name to her and that she understood that Giardina got his heroin from Price.

The parties stipulated that if an expert witness for the government, Ann Wagner, had testified, she would have established that the bricks that Price sold to Madigan contained heroin and that they weighed 1.2 and 1.4 grams respectively. Pennsylvania State Trooper Russell Burcher testified that he estimated, based on that stipulation and witness testimony, that Price and Patterson collectively sold between 815 and 1,674 grams of heroin. That range did not include the heroin that Patterson may have sold to other individuals who are not named in this opinion.

During closing argument, the prosecutor questioned Patterson’s testimony that he and Price had not conspired to sell heroin by stating that Patterson may not have wanted to testify against Price because the two were close and Patterson feared repercussions in his neighborhood. Price objected to the prosecutor’s remarks and moved for a mistrial, but the District Court denied his motion. The jury found Price guilty of one count of conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin (the “conspiracy count”)4 and two counts of distribution and possession with intent to distribute heroin (the “distribution counts”).5 In response to a special interrogatory, the jury also found, beyond a reasonable doubt, that one kilogram or more of heroin was distributed or intended to be distributed as part of the conspiracy.

[800]*800In its Presentence Report (“PSR”), the United States Probation Office concluded that Price was responsible for conspiring to distribute 2.393 kilograms of heroin. That figure included the heroin sold both by Price and by Patterson during the two years that Patterson admitted to selling heroin on Grafton Avenue, and, under United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(c), resulted in a base offense level of 32. Pursuant to U.S.S.G.

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United States v. Price, 346 F. App'x 796 (3d Cir. 2009).

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