United States v. Kassar Chitolie , 596 F. App'x 102 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 13-3426
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UNITED STATES OF AMERICA
v.
KASSAR J. CHITOLIE,
a/k/a Fnu Lnu,
a/k/a Out Cast,
a/k/a Sealed Defendant
Kassar J. Chitolie,
Appellant
______________
APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
(D.C. No. 3-11-cr-00016-010)
District Judge: Honorable Curtis V. Gomez
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 12, 2014
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Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges.
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OPINION
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SHWARTZ, Circuit Judge.

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
Kassar Chitolie appeals his judgment of conviction and sentence. For the reasons
that follow, we will affirm.
I
This case involves a drug distribution conspiracy in which Chitolie sold marijuana
and cocaine to Herbert Ferguson, who then sold drugs to others. At trial, Ferguson
testified that he bought marijuana from Chitolie, who he also knew as “Outcast,” App.
456, two times per month in quantities “no less than a quarter pound[ and] no more than a
half a pound,” App. 544. The jury also heard wiretapped conversations between
Ferguson and Chitolie about Chitolie’s marijuana sales. In several calls, they discussed
transactions involving “one girl,” “Bob Marley,” “green hat,” “T-shirts,” “green
Christmas tree,” “Reggie,” and “Popcorn,” all of which, Ferguson explained, were code
words for marijuana. App. 650-52, 654-55. In other calls, Ferguson spoke with his son
about meeting Chitolie to complete a marijuana purchase.
Ferguson also testified about Chitolie’s cocaine sales and the jury heard
wiretapped conversations about them. On one call, Chitolie told Ferguson that Chitolie
had an “8-ball,” code for four and a half ounces of cocaine, to supply to Ferguson. App.
653. On another call, Ferguson told Chitolie that he did not want “[t]he plate of food
[Chitolie was] sending” to be “cook[ed]” and that Chitolie should “[j]ust send the food
raw.” App. 654. Ferguson explained that he was telling Chitolie that he did not want
cocaine base, but rather cocaine powder.
The jury convicted Chitolie of violating 21 U.S.C. §§ 841(a)(1), 843(b), and 846.
2
The District Court sentenced him to concurrent terms of twenty-seven months’
imprisonment for each of the counts as well as concurrent terms of supervised release.
Chitolie appeals.
II1
A
Chitolie’s assertion that there was insufficient evidence to support his convictions
for conspiracy to possess with intent to distribute and possession with intent to distribute
is without merit.2 To prove a conspiracy of the sort alleged here, the Government must
show “(1) a shared unity of purpose; (2) an intent to achieve a common illegal goal; and
(3) an agreement to work toward that goal.” United States v. Caraballo-Rodriguez, 726
F.3d 418, 425 (3d Cir. 2013) (en banc).3 It “need not prove that each defendant knew all
of the conspiracy’s details, goals, or other participants,” but must “proffer sufficient
evidence from which a jury could have concluded that each drug transaction in which
[the defendant] was involved was a step in achieving the conspiracy’s common goal of
distributing [drugs] for profit.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999)
(quotation marks and internal citations omitted).
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
Chitolie does not challenge the sufficiency of the evidence supporting his
conviction under 21 U.S.C. § 843(b).
3
We exercise plenary review over an appeal from the grant or denial of a
judgment of acquittal, reviewing the record “in the light most favorable to the prosecution
to determine whether any rational trier of fact could have found proof of guilt beyond a
reasonable doubt.” Caraballo-Rodriguez, 726 F.3d at 430 (quotation marks, alterations,
and internal citations omitted).
3
Sufficient evidence supported Chitolie’s conspiracy conviction. Ferguson testified
that he bought marijuana and cocaine from Chitolie. Furthermore, they used coded
language and Ferguson’s son as a courier to facilitate the drug transactions. This
demonstrated Chitolie’s “repeated, familiar dealings with members of [the] conspiracy”
and therefore provided sufficient evidence from which a jury could conclude that he
“comprehend[ed] fully the nature of the group with whom he [wa]s dealing . . . and [that
he was] more likely to perform drug-related acts for conspiracy members in an effort to
maintain his connection to them.” Gibbs, 190 F.3d at 199.
To prove possession with intent to distribute a controlled substance, the
Government must prove “(1) knowing or intentional (2) possession (3) with intent to
distribute (4) a controlled substance.” United States v. Lacy, 446 F.3d 448, 454 (3d Cir.
2006). Here, the conviction is supported by ample evidence of Chitolie’s sale of
marijuana to Ferguson. Ferguson testified and recordings showed that he discussed the
purchase of marijuana from Chitolie and that Ferguson’s son in fact travelled to meet
Chitolie and obtain marijuana. Therefore, sufficient evidence supports Chitolie’s
conviction for possession with intent to distribute a controlled substance and his
contention otherwise is without merit.
B
Chitolie also has not shown that the District Court erred in limiting his ability to
cross-examine Ferguson about the benefits of Ferguson’s plea agreement. The
Confrontation Clause does not provide an “unfettered right[] to cross-examine
4
witnesses.” United States v. Friedman, 658 F.3d 342, 356 (3d Cir. 2011). Instead,
district courts “retain[] wide latitude . . . to impose reasonable limits on such cross-
examination based on concerns about harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.” United
States v. John-Baptiste, 747 F.3d 186, 211 (3d Cir. 2014) (quotation marks, alterations,
and internal citations omitted).
Here, the District Court limited inquiry about the specific sentence Ferguson
would have faced absent his cooperation but permitted questions about whether Ferguson
faced a “substantial” sentence. App. 739. As Ferguson and Chitolie faced similar
charges and questions about the specific sentence Ferguson faced might therefore have
influenced the jury’s deliberations with improper considerations about Chitolie’s
potential sentence, there was no abuse of discretion. John-Baptiste, 747 F.3d at 212.
Furthermore, contrary to Chitolie’s assertions, the District Court permitted Ferguson to
be cross-examined, within the proper confines of the hearsay rule, about the extent to
which his plea agreement secured benefits for his wife and son. Indeed, Chitolie and his
codefendants thoroughly cross-examined Ferguson about the benefits he received or
hoped to receive from his testimony. Thus, there was no improper limit on his cross-
examination.
C
Chitolie also contends that the District Court erred in admitting photographs of
drugs found in Ferguson’s home. Because Chitolie did not object, we review for plain
5
error.4 A district court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. While Ferguson testified that the
drugs depicted were provided by a different conspirator, not Chitolie, the photographs
were nonetheless probative of Ferguson’s role in the drug distribution chain and tended to
make the existence of the conspiracy more probable. Thus, we cannot say that the
prejudice flowing from the admission of the photographs substantially outweighed their
probative value. Hence, there was no error, plain or otherwise, in admitting this evidence
under Rule 403.
D
Ferguson’s recorded statements were also properly admitted as co-conspirator
statements under Fed. R. Evid. 801(d)(2)(E). Under that rule, the District Court must
find by a preponderance of the evidence that “(1) a conspiracy existed; (2) the declarant
and the party against whom the statement is offered were members of the conspiracy; (3)
the statement was made in the course of the conspiracy; and (4) it was made in
4
Under the plain error standard, we will reverse only if (1) there was error; (2) the
error was clear or obvious; (3) it affected the defendant’s substantial rights; and (4) it
“seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013) (quotation marks and internal
citations omitted).
6
furtherance of the conspiracy.”5 United States v. Vega, 285 F.3d 256, 264 (3d Cir. 2002).
“To prove these elements, the Government may rely on the co-conspirator’s statements
themselves, if they are corroborated by independent evidence.” United States v. Turner,
718 F.3d 226, 231 (3d Cir. 2013).
Here, the District Court properly concluded that there was sufficient evidence of a
conspiracy between Ferguson, his son, Chitolie, and others to admit Feguson’s statements
under Rule 801(d)(2)(E).6 Moreover, any reliance on Ferguson’s statements themselves
in making that finding was not error as independent evidence corroborated the existence
of a conspiracy, including Ferguson’s in-court testimony that Chitolie sold him marijuana
and cocaine and he sent his son to retrieve drugs from Chitolie. See United States v.
Mitchell, 596 F.3d 18, 23 (1st Cir. 2010) (relying on cooperating witness’s in-court
testimony to corroborate that witness’s out-of-court statements to establish existence of a
conspiracy under Rule 801(d)(2)(E)); United States v. Console, 13 F.3d 641, 659-60 (3d
Cir. 1993) (relying on patient’s testimony to corroborate doctor’s out-of-court statements
to establish existence of a conspiracy under Rule 801(d)(2)(E)). Ferguson’s statements
5
We review the District Court’s findings for clear error. United States v. Vega,
285 F.3d 256, 264 (3d Cir. 2002).
6
Chitolie’s claim that the District Court’s ruling lacked the requisite findings also
fails to provide a basis for relief. See United States v. Cruz, 910 F.2d 1072, 1081 n.11
(3d Cir. 1990) (“[T]he failure to make the explicit finding [of conspiracy] does not render
the district court ruling reversible” where “the necessary threshold determination is
implicit in the court’s decision to send the case to the jury.” (quotation marks and internal
citation omitted)).
7
were also corroborated by admissions Chitolie made during the recorded conversations.
Thus, the recorded statements were properly admitted under Rule 801(d)(2)(E).
E
Chitolie’s assertion that his sentence violates Alleyne v. United States, 133 S. Ct.
2151 (2013), is also without merit. In Alleyne, the Supreme Court held that “‘any fact
that increases the mandatory minimum sentence is an “element” that must be submitted
to the jury’ and proved beyond a reasonable doubt.” United States v. Winkelman, 746
F.3d 134, 135 (3d Cir. 2014) (quoting Alleyne, 133 S.Ct. at 2155) (internal alteration
omitted). Therefore, where a fact, such as drug quantity, “trigger[s] a statutory
mandatory minimum sentence[, it] must . . . be submitted to a jury.” United States v.
Smith, 751 F.3d 107, 117 (3d Cir. 2014). If, however, no statutory mandatory minimum
sentence is triggered, the absence of an allegation in the indictment or a jury finding with
respect to a fact that could otherwise trigger a mandatory minimum is irrelevant.
Alleyne, 133 S. Ct. at 2159-60; United States v. Freeman, 763 F.3d 322, 336 (3d Cir.
2014). Furthermore, “factual findings made for purposes of applying the [Sentencing]
Guidelines, which influence the sentencing judge’s discretion in imposing an advisory
Guidelines sentence and do not result in imposition of a mandatory minimum sentence,
do not violate the rule in Alleyne . . . so long as the ultimate sentence imposed [is] within
the statutorily prescribed range.” Freeman, 763 F.3d at 335-36 (quotation marks and
internal citations omitted).
8
The offense for which Chitolie was convicted on Count One, conspiracy to
possess with intent to distribute, is subject to a five-year mandatory minimum because the
jury found that the conspiracy involved twenty-eight grams or more of cocaine base. 21
U.S.C. § 841(b)(1)(B)(iii). The District Court, however, did not attribute this amount to
Chitolie, explaining that it did not find evidence to support Chitolie’s involvement with
cocaine base,7 and sentenced him without a mandatory minimum, applying instead a
statutory range of zero to twenty years’ imprisonment pursuant to 21 U.S.C. §
841(b)(1)(C). Therefore, as Chitolie’s twenty-seven month sentence did not involve a
mandatory minimum and fell below the statutorily prescribed maximum, neither the
indictment nor the jury was required to specify a drug quantity.8 Freeman, 763 F.3d at
336.
F
Chitolie’s assertion that the District Court erred in denying a downward role
adjustment under U.S.S.G. § 3B1.2 also fails.9 Section 3B1.2 permits a downward
adjustment of a defendant’s offense level if the defendant was “substantially less culpable
7
Neither party challenges the District Court’s authority to decline to apply the
mandatory minimum and reject the jury’s finding based on its review of the evidence.
8
The District Court also did not err in adopting the findings in the Presentence
Report with respect to marijuana and cocaine quantities, as those findings were supported
by a preponderance of the evidence, including testimony from Ferguson about his
purchases from Chitolie. Stinson, 734 F.3d at 184 (“At sentencing, a district court must
find facts that relate to application of the Guidelines by a preponderance of the
evidence.”).
9
We review a district court’s interpretation of the Sentencing Guidelines de novo,
findings of fact for clear error, and application of the Guidelines to facts for abuse of
discretion. United States v. Kluger, 722 F.3d 549, 555 (3d Cir. 2013).
9
than the average participant.” U.S.S.G. § 3B1.2 cmt. n.3(A). In determining whether this
adjustment is warranted, district courts should consider “such factors as the nature of the
defendant’s relationship to other participants, the importance of the defendant’s actions to
the success of the venture, and the defendant’s awareness of the nature and scope of the
criminal enterprise.” United States v. Self, 681 F.3d 190, 201 (3d Cir. 2012) (quotation
marks and internal citations omitted).
Here, the factors support the District Court’s decision not to apply the adjustment.
First, “the importance of [Chitolie’s] actions to the success of the venture” is apparent.
Id. Chitolie was a supplier of marijuana and cocaine and hence he “did not indirectly
further a criminal activity or further that activity in some minor way” but “directly
engaged in the very act at the heart of the criminal enterprise—namely, the distribution of
drugs in exchange for money.” Id. (upholding decision not to apply adjustment where
defendant “merely carr[ied] out the instructions of his . . . brother” by “simply receiving
the payment for a previously negotiated transaction”). Second, the frequency with which
he supplied drugs to Ferguson, the fact that he supplied both marijuana and cocaine, and
his interactions with Ferguson’s son demonstrate his relationship to the other members of
the conspiracy and his knowledge of the nature and scope of the venture. This evidence
supports the District Court’s decision not to apply the downward adjustment. Id. (finding
factors did not support downward adjustment where defendant was entrusted with
distributing “wholesale quantities of drugs worth hundreds of dollars”).
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III
For the foregoing reasons, we will affirm.
11