United States v. Baldwin , 398 F. App'x 677 ( 2010 )

09-1725-cr
United States v. Baldwin
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27th day of October, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 WILFRED FEINBERG,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 09-1725-cr
17
18 MAURIEL GLOVER, ALSO KNOWN AS FEET,
19 ROSHAUN HOGGARD, ALSO KNOWN AS FOOT,
20 GENERO MARTE, ALSO KNOWN AS G, ROBERT
21 RAWLS, CHARLES BUNCH, ALSO KNOWN AS
22 JUNE, CHRISTOPHER LAMONT SHERMAN, ALSO
23 KNOWN AS C-L, TORRANCE MCCOWN, ALSO
24 KNOWN AS TERRANCE MCCOWN, JAKE,
25 WILLIAM HOLLY, ALSO KNOWN AS L-O,
26 JASON MARCEL DOCKERY, KENNETH THAMES,
27 ALSO KNOWN AS K-T, JOHN HOBSON, ALSO
28 KNOWN AS UNCLE JOHN, BIG JOHN, KEITH
29 WHITE, GLORIA WILLIAMS, ALSO KNOWN AS
30 GLO, DANTE COBB, CARNEL SYLVESTER
1 EDWARDS, TERRANCE JOWERS, ALSO KNOWN
2 AS T-NICE,
3 Defendants,
4
5 WILLIAM BALDWIN,
6 Defendant-Appellant.
7 - - - - - - - - - - - - - - - - - - - -X
8
9 FOR APPELLANT: James M. Branden, New York, New York.
10
11 FOR APPELLEE: H. Gordon Hall, Assistant United States
12 Attorney (Sandra S. Glover, Assistant
13 United States Attorney, on the brief),
14 for David B. Fein, United States Attorney
15 for the District of Connecticut, New
16 Haven, Connecticut.
17
18 Appeal from a judgment of the United States District
19 Court for the District of Connecticut (Hall, J.).
20
21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22 AND DECREED that the judgment of the district court be
23 AFFIRMED.
24
25 William Baldwin appeals from his conviction, after a
26 trial by jury, of conspiracy to possess with intent to
27 distribute and to distribute fifty grams or more of cocaine
28 base. 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(iii), 846.
29 Baldwin argues that insufficient evidence supported his
30 conviction and that the district court erred in denying his
31 request for a missing witness instruction. In a letter
32 submitted after argument, see Fed. R. App. P. 28(j), Baldwin
33 also argues that his sentence should be vacated in light of
34 the passage of the Fair Sentencing Act of 2010. We assume
35 the parties’ familiarity with the underlying facts, the
36 procedural history, and the issues presented for review.
37
38 [1] It is well-established that a “defendant challenging
39 the sufficiency of the evidence underlying a criminal
40 conviction bears a heavy burden[] because this Court must
41 review the evidence in the light most favorable to the
42 government, drawing all reasonable inferences in its favor.”
43 United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2009)
2
1 (internal quotation marks omitted). We will reverse a
2 defendant’s conviction “only if no rational factfinder could
3 have found the crimes charged proved beyond a reasonable
4 doubt.” Id. (internal quotation marks omitted).
5
6 Baldwin does not challenge the fact that a conspiracy
7 existed; he argues only that the government adduced
8 insufficient evidence of his knowing participation in the
9 conspiracy. We disagree. The evidence presented at trial
10 was sufficient to allow a rational jury to conclude that
11 Baldwin shared in the purpose of a larger conspiracy, and
12 was not merely a buyer and user of drugs. See United States
13 v. Rojas, --- F.3d ---, 2010 WL 3169299, at *4 (2d Cir. Aug.
14 12, 2010). Specifically, Baldwin and the author of the
15 conspiracy, Mauriel Glover, had a relationship characterized
16 by prolonged cooperation and mutual trust, and engaged in
17 standardized transactions. See United States v. Hawkins,
18 547 F.3d 66, 74 (2d Cir. 2008). Glover and Baldwin also
19 communicated in code, which the jury could have inferred was
20 known only to members of the conspiracy. Moreover, when
21 Baldwin was arrested, he was found in possession of drugs
22 and bags typically used to package these drugs for resale.
23 The jury could have inferred from the quantities of drugs
24 Baldwin purchased from Glover that they were not all for his
25 personal use. See id.26
27 Finally, the fact that two cooperating witnesses who
28 testified at trial, who were also members of the conspiracy,
29 were not acquainted with Baldwin does not preclude a finding
30 that Baldwin was a member of the same conspiracy. “A single
31 conspiracy may encompass members who neither know one
32 another’s identities, nor specifically know of one another’s
33 involvement.” United States v. Sureff, 15 F.3d 225, 230 (2d
34 Cir. 1994) (internal quotation marks and citation omitted).
35 This is so as long as each defendant “knew or had reason to
36 know” that others were involved in a broad narcotics
37 conspiracy. United States v. Barnes, 604 F.2d 121, 155 (2d
38 Cir. 1979) (emphasis omitted).
39
40 [2] We review the denial of a missing witness instruction
41 for abuse of discretion, and a district court’s “failure to
42 give the instruction rarely warrants reversal.” United
43 States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994). In this
3
1 case, the district court’s decision not to grant the
2 requested instruction was a proper exercise of its
3 discretion.
4
5 Baldwin failed to establish that Glover -- the missing
6 witness in question -- was peculiarly within the power of
7 the government to produce as a trial witness. See United
8 States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994). Indeed,
9 Baldwin never even sought to subpoena Glover. The record
10 reveals that Glover was effectively unavailable to the
11 government; the government had a reasonable basis to believe
12 that, if called as a witness, Glover would give perjurious
13 testimony. This Court has “suggested that where a witness
14 is equally unavailable to both sides, a missing witness
15 charge is inappropriate.” United States v. Caccia, 122 F.3d
16 136, 139 (2d Cir. 1997) (internal quotation marks omitted).
17 In light of these circumstances, we conclude the district
18 court properly declined to issue the requested instruction.
19
20 [3] Baldwin is not entitled to the benefit of the recently
21 enacted Fair Sentencing Act of 2010. The Act contains no
22 express statement that it is intended to have retroactive
23 effect nor can we infer such intent from its language. See
24 1 U.S.C. § 109 (“The repeal of any statute shall not have
25 the effect to release or extinguish any penalty . . .
26 incurred under such statute, unless the repealing Act shall
27 so expressly provide, and such statute shall be treated as
28 still remaining in force for the purpose of sustaining any
29 proper action or prosecution for the enforcement of such
30 penalty[.]”). Consequently, we must apply the mandatory
31 minimum in effect at the time Baldwin committed the offense
32 in question. See Warden, Lewisburg Penitentiary v. Marrero,
33 417 U.S. 653, 661 (1974) (noting that “the saving clause has
34 been held to bar application of ameliorative criminal
35 sentencing laws repealing harsher ones in force at the time
36 of the commission of an offense”); United States v.
37 Carradine, --- F.3d ---, 2010 WL 3619799, at *4-5 (6th Cir.
38 Sept. 20, 2010) (concluding that the Fair Sentencing Act
39 does not apply retroactively); United States v. Gomes, ---
40 F.3d ---, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010)
41 (per curiam) (“[B]ecause the [Fair Sentencing Act] took
42 effect . . . after appellant committed his crimes, 1 U.S.C.
43 § 109 bars the Act from affecting his punishment.”); see
4
1 also United States v. Smith, 354 F.3d 171, 175 (2d Cir.
2 2003) (observing that section 109 “saves sentencing
3 provisions in addition to substantive laws”).
4
5 Finding no merit in any of the arguments raised by
6 Baldwin on appeal, we hereby AFFIRM the judgment of the
7 district court.
8
9 FOR THE COURT:
10 CATHERINE O’HAGAN WOLFE, CLERK
11
12
5