United States v. Malik Martin ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-3431
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UNITED STATES OF AMERICA
v.
MALIK MARTIN,
a/k/a Leek,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2:16-cr-00218-12)
Honorable R. Barclay Surrick, United States District Judge
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Submitted under Third Circuit L.A.R. 34.1(a)
February 7, 2022
BEFORE: GREENAWAY, JR., SCIRICA, and COWEN, Circuit Judges
(Filed: March 4, 2022)
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OPINION*
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GREENAWAY, JR., Circuit Judge.
Defendant Malik Martin appeals from the judgment of conviction entered by the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
United States District Court for the Eastern District of Pennsylvania. We will affirm.
I. Background
Martin was involved in a large-scale drug trafficking organization that transported
bulk amounts of marijuana from the west coast to the east coast. In connection with that
operation, Martin was charged with: (1) conspiracy to distribute 1000 kilograms or more
of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A) (Count 1); (2)
conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i)
(Count 9); and (3) conspiracy to commit money laundering, in violation of 18 U.S.C. §§
1956(a)(1)(B)(i), (h) (Count 10).
The organization operated from 2005 to 2016 with Jerome Woods as its leader. At
trial, Martin conceded that he was part of the organization. He testified that he was
responsible for collecting money to purchase marijuana and for finding the marijuana.
He also testified to “situating” and “[p]reparing” the marijuana for travel to Philadelphia.
J.A. 198.
Martin asserted that he affirmatively withdrew from the conspiracy in early 2012
by informing Woods that he “wanted to be done with it basically.” J.A. 209-10. Given
that the applicable statute of limitations was August 9, 2012, withdrawal by that time
would insulate Martin from prosecution. See 18 U.S.C. § 3282. However, aside from his
own testimony, Martin offered no other evidence to support his defense of withdrawal.
To the contrary, the government produced substantial evidence of Martin’s
continued involvement in the conspiracy in 2013 and 2014. For instance, a government
witness testified that he drove Martin and Woods from Philadelphia to Houston to
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purchase marijuana in 2013. Martin denounced this testimony as a lie, and testified
instead that he flew to Houston to see his girlfriend. Although Martin claimed that he
and Woods had not arranged their trips together, the government presented evidence that
Martin and Woods rented a vehicle together in Houston and departed Houston for
Philadelphia within one day of each other.
The government also produced evidence that Martin was involved in the
conspiracy’s receipt of marijuana on July 17, 2014. Special Agent Desiree Maxwell, a
law enforcement officer who was surveilling a parking lot at the Philadelphia Days Inn
on that date, testified that she observed Martin meeting with Woods and other co-
conspirators there. At trial, she identified Martin in several photographs taken at the
scene. She testified that she watched members of the organization unload boxes from a
tractor-trailer into a Honda minivan, which was parked near a Mitsubishi registered to
Martin. Then, she observed both the minivan and Mitsubishi drive away. Ultimately,
law enforcement located the minivan, which was unoccupied but did contain the boxes.
They concluded that the conspirators had abandoned the car in order to evade arrest in
connection with the marijuana.
Martin acknowledged that he was present at the scene, but explained that he was
casually meeting with an allegedly former co-conspirator, Joseph Akers, there. Martin
testified that he remained friends with Akers even after his alleged withdrawal from the
conspiracy, and that Akers had called him that day to let him know he would be “in the
area” near Martin. J.A. 215. Martin insisted that, while one could “assume what[] [was]
going on” “from being around marijuana before,” he did not “know[]” what was
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occurring at the scene. J.A. 215.
Martin also testified that he left the scene in his own car, separate from the co-
conspirators. He explained that it was not until after he left that his co-conspirators called
him to let him know that they had left the van out of concern that they were being
surveilled. Officer Maxwell confirmed that there were no photos of Martin leaving in the
minivan. The crux of this appeal involves Martin’s assertion that a question posed by the
government, followed by a timely objection, sustained by the Court and not answered by
the witness, is a sufficient basis to disturb the jury’s verdict. The government asked
Officer Maxwell, “And how did you learn that Malik Martin did, in fact, drive away in
that silver minivan?” J.A. 193. Before she answered, defense counsel objected, which
the Court sustained. Defense counsel did not move for the jury to disregard the question,
for a cautionary instruction, or for a mistrial. The government switched topics
immediately.
After the evidence was presented, the Court gave its instructions to the jury,
including instructions on the defense of withdrawal from a conspiracy that were
consistent with the Third Circuit Criminal Model Jury Instructions (“Third Circuit model
instructions”). Martin was ultimately convicted of the drug conspiracy (Count 1) and one
count of the money laundering conspiracy (Count 9). He was sentenced to 144 months’
imprisonment, five years’ supervised release, and a special assessment of $200. Martin
timely appealed.
II. Discussion
On appeal, Martin argued that the District Court plainly erred when it did not, sua
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sponte, issue a limiting instruction in connection with the government’s question to
Officer Maxwell or when it presented Third Circuit model instructions regarding the
defense to conspiracy.1 We reject these claims and agree with the District Court’s
judgment against Martin.
a. Limiting Instruction
Martin argues that he was denied a fair trial because the government improperly
vouched for Officer Maxwell when it asked her how she learned that Martin drove away
in the minivan in July 2014. In his view, this question suggested that the government
possessed extra-record evidence. This argument fails. Vouching requires: (1) that the
prosecutor “assure the jury that the testimony of a [g]overnment witness is credible”; and
that (2) “this assurance is based on either the prosecutor’s personal knowledge, or other
information not contained in the record.” United States v. Walker, 155 F.3d 180, 187 (3d
Cir. 1998). That the defendant claims that the “prosecutor assured the jury that a
witness’[s] testimony was credible” is insufficient. Id. Martin has not satisfied the
criteria for vouching. The Court sustained the objection before Officer Maxwell could
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
Where there is no contemporaneous objection at trial, a claim is reviewed for plain error.
United States v. Shannon, 766 F.3d 346, 355 n.12 (3d Cir. 2014). To establish plain
error, the defendant must prove: (1) the Court erred; (2) the error was obvious under the
law at the time of review; and (3) the error affected the defendant’s substantial rights,
meaning the outcome of the proceedings. Johnson v. United States, 520 U.S. 461, 467
(1997). The plain error exception should be “‘used sparingly, solely in those
circumstances in which a miscarriage of justice would otherwise result.’” United States
v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14
(1982)).
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respond. Accordingly, the government could not assure the jury of the credibility of her
response—there was none—much less make this assurance based on extra-record
evidence.
Further, Martin asserts that the District Court committed plain error when it did
not, sua sponte, issue a limiting instruction after the Court sustained defense counsel’s
objection to that question. However, “[t]rial counsel is not constitutionally required to
request a limiting instruction any time one could be given.” Albrecht v. Horn, 485 F.3d
103, 127 (3d Cir. 2007) (recognizing that the decision not to request a limiting instruction
could be a strategic one). The absence of one here also did not affect Martin’s substantial
rights. See Johnson, 520 U.S. at 467. The ample evidence showing that Martin was
present at the scene in July 2014 belies any contention that the jury would have found
Martin not guilty but for this single, unanswered question. Further, defense counsel
objected to the question, which the Court sustained, and the government immediately
switched topics.
Then, in its jury instructions, the Court explained that when it sustained an
objection to an unanswered question, the jury was required to disregard it entirely without
positing what the witness may have answered. Pursuant to the general presumption that
“juries follow instructions” and with no evidence to the contrary, we will assume that the
jury disregarded the question. United States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003).
b. Jury Instructions Regarding Defense to Conspiracy
Martin further argues that the District Court erred in presenting the Third Circuit
model instructions regarding the defense to conspiracy charges instead of instructing the
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jury that his specific behavior could constitute withdrawal. To make out the defense of
withdrawal from a conspiracy, “‘[t]he defendant must present evidence of some
affirmative act of withdrawal on his part, typically either a full confession to the
authorities or communication to his co-conspirators that he has abandoned the enterprise
and its goals.’” United States v. Kushner, 305 F.3d 194, 198 (3d Cir. 2002) (quoting
United States v. Steele, 685 F.2d 793, 803-04 (3d Cir. 1982)). Accordingly, a proper
instruction on withdrawal must advise the jury that the defendant has abandoned the
conspiracy by an affirmative act. United States v. Boone, 279 F.3d 163, 192-93 (3d Cir.
2002) (upholding jury instruction that withdrawal may be accomplished only by “an
affirmative act of termination . . . withdrawal or disassociation”).
Consistent with this requirement, the Third Circuit model instructions provide: “to
withdraw from a conspiracy [a defendant] must have taken some clear, definite and
affirmative action to terminate [his] participation, to abandon the illegal objective, and to
dissociate [himself] from the agreement.” Third Circuit Crim. Model Jury Instruction
(2018) 6.18.371J-1.
Here, the District Court used the Third Circuit model instructions, instructing that
an “affirmative action to terminate his participation” was sufficient for withdrawal,
without specifying that communicating one’s withdrawal to the leader of the conspiracy
is a qualifying affirmative act. J.A. 451. It was not an error for the District Court to use
these instructions verbatim. See United States v. Petersen, 622 F.3d 196, 208 (3d Cir.
2010) (“[w]e have a hard time concluding that the use of our own model jury instruction
can constitute error”). Nor was the Court required to tailor the instructions to the specific
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contours of Martin’s actions by specifying that Martin’s conduct established the
defense—especially where Martin’s alleged communication to Woods was a highly
disputed fact at trial and the only evidence supporting it was Martin’s own testimony.
See United States v. Carter, 756 F.2d 310, 313-14 (3d Cir. 1885) (holding that failure to
give a requested instruction was not reversible error because jury instructions are “left to
the discretion of the court”).
III.
For the foregoing reasons, we will affirm the judgment of conviction of the
District Court.
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