United States v. David Kirkland ( 2015 )


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  •                                                                    NOT PRECEDENTIAL
    
                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                   ________________
    
                                          No. 09-4000
                                       ________________
    
                                UNITED STATES OF AMERICA
    
                                                 v.
    
                                      DAVID KIRKLAND,
                                                Appellant
    
                                       ________________
    
                                On Appeal from the District Court
                                   for the District of New Jersey
                            (D.C. Criminal No. 2-06-cr-00911-001)
                         District Judge: Honorable Katharine S. Hayden
                                        ________________
    
                        Submitted Pursuant to Third Circuit LAR 34.1(a)
                                        March 3, 2015
    
                     Before: AMBRO, SCIRICA, and ROTH, Circuit Judges
    
                                       (Filed: June 4, 2015)
    
    
                                       ________________
    
                                           OPINION*
                                       ________________
    
    
    SCIRICA, 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.
           David Kirkland requests we vacate the jury’s verdict and grant him a new trial on
    
    the basis of alleged trial errors. We will affirm.1
    
                                                   I.
    
           While in prison for a string of burglaries, Kirkland and Terrance Lawton conspired
    
    to commit future burglaries. Once released from prison, Kirkland and Lawton carried out
    
    their jointly devised scheme. Along with additional coconspirators, they burglarized
    
    affluent homes in New Jersey and transported the stolen goods to New York City for
    
    purchase by a fence. Lawton was the government’s key witness at trial.
    
           Kirkland was charged with one count of conspiring to transport and receive goods
    
    in interstate commerce (18 U.S.C. § 371) and three counts of interstate transportation of
    
    stolen goods (18 U.S.C. §§ 2314 and 2). Count One, the conspiracy count, related to
    
    conduct from March 1999 through November 2006. Counts Two through Four, the
    
    substantive counts, charged specific acts of interstate transportation of stolen goods from
    
    late 2001 through early 2002. Each count required the value of the stolen goods
    
    transported across state lines to be at least $5,000. A jury convicted Kirkland of Counts
    
    One, Three, and Four, and acquitted him of Count Two. The trial court denied Kirkland’s
    
    motion for a new trial and Kirkland appealed.
    
                                                  II.2
    
    
       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
    under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       2
         We review the District Court’s denial of Kirkland’s motion for a new trial based
    upon the weight of the evidence for abuse of discretion. See United States v. Brennan,
    
    326 F.3d 176
    , 189 (3d Cir. 2003). Kirkland also asserts “plain error,” cumulative error,
    and ineffective assistance of counsel. We neither find plain error nor will provide a
                                                2
                                                 A.
    
             Kirkland contends the evidence failed to show he transported at least $5,000 worth
    
    of property in interstate commerce. We disagree.3 The market value of property stolen
    
    from a non-merchant is “the price a discriminating consumer would have paid for it,”
    
    United States v. Cummings, 
    798 F.2d 413
    , 416 (10th Cir. 1986) (quoting United States v.
    
    Robinson, 
    687 F.2d 359
    , 360 (11th Cir. 1982)), and the owner of property is qualified to
    
    testify to its objective market value, United States v. Laughlin, 
    804 F.2d 1336
    , 1340 (5th
    
    Cir. 1986). Here, the property owners established the market value of the transported
    
    goods, irrespective of subjective value, exceeded the $5,000 statutory threshold for each
    
    count.
    
             On Count Four, the victim testified that a pair of Omega watches, a yellow
    
    diamond, and other jewelry, collectively worth “[r]oughly about $30,000,” were stolen
    
    from her home. In addition, Lawton testified that he and Kirkland transported the
    
    property from New Jersey to New York City, where a fence in the Diamond District paid
    
    a “penny weight” price—i.e., the value of the metal alone—of $10,000 to $15,000 for the
    
    jewelry. Though we are not “bound to accept . . . the amount of money a convicted thief
    
    
    discussion of this unpreserved issue. See United States v. Irizarry, 
    341 F.3d 273
    , 312 n.23
    (3d Cir. 2003). In fact, because we find no error at all, we reject Kirkland’s cumulative
    error argument. Finally, given that Kirkland fails to state in his brief the basis for his
    ineffective-assistance-of-counsel claim, we will apply our traditional rule that “claims of
    ineffective assistance of counsel ordinarily are not cognizable on direct appeal.” United
    States v. Givan, 
    320 F.3d 452
    , 464 (3d Cir. 2003).
       3
         Because the jury’s verdict as to Count Three and Count Four was not against the
    weight of the evidence, we also reject Kirkland’s argument that there was “spillover
    prejudice” as to Count One.
    
                                                  3
    is willing to accept to part with his stolen goods” as the market value, United States v.
    
    Simon, 
    376 F.3d 806
    , 809 (8th Cir. 2004), that the fence paid a “penny weight” price and
    
    still paid more than $10,000 for the stolen goods is convincing evidence the $5,000
    
    statutory minimum was satisfied.
    
           On Count Three, the victim testified that the stolen items included a Piaget watch,
    
    “worth about $30,000,” and 170 rings that “[u]sually . . . cost a hundred dollars” each
    
    ($17,000). She estimated the total value of the stolen property was $100,000. In addition,
    
    Lawton testified that he and Kirkland transported the property from New Jersey to New
    
    York, where a fence paid between $2,000 and $6,000. Kirkland contends that a court may
    
    select the higher of two estimates of fair market value only if there is evidence with
    
    “sufficient indicia of reliability” to support that determination. United States v. Medford,
    
    
    194 F.3d 419
    , 424 (3d Cir. 1999) (quoting United States v. Miele, 
    989 F.2d 659
    , 668 (3d
    
    Cir. 1993)). But we do not have competing estimates of market value because we are not
    
    bound to accept the amount the fence paid as an estimate of market value. Simon, 
    376 F.3d 809
    . Instead, we have the value given by the victim, which greatly exceeds the
    
    $5,000 threshold, and the fence’s “penny weight” value range, which encompasses
    
    $5,000.
    
                                                 B.
    
                                                 1.
    
           Citing Federal Rule of Evidence 404(b) and 403, Kirkland challenges the
    
    admission of certain evidence. As noted, while Kirkland and Lawton were in prison
    
    together for participating in a racketeering enterprise involving stealing property from
    
                                                  4
    homes and transporting it across state lines (18 U.S.C. § 1962(c)), they discussed prior
    
    burglaries and planned to commit future burglaries together once released. In particular,
    
    they discussed changing the way they committed burglaries in order to avoid detection by
    
    law enforcement. The court permitted testimony that Kirkland and Lawton had
    
    committed prior burglaries together and that their conversations occurred in prison, but
    
    excluded evidence of the racketeering conviction that put Kirkland there.4 At the
    
    conclusion of trial, the court instructed the jury that the evidence was only to be used for
    
    a non-propensity purpose.
    
           Federal Rule of Evidence 404(b) is inapplicable because the prison conversations
    
    were intrinsic evidence that was probative of the charged offenses and constituted the
    
    inception of the conspiracy. See United States v. Green, 
    617 F.3d 233
    , 245 (3d Cir.
    
    2010). In addition, the location of the conversations and the reference to prior burglaries
    
    were admissible for a non-propensity purpose, see Fed. R. Evid. 404(b)(2), that is,
    
    establishing Lawton’s relationship with Kirkland and demonstrating Lawton’s credibility
    
    to testify as to the conspirators’ methods and Kirkland’s role in the conspiracy. See
    
    United States v. Dansker, 
    537 F.2d 40
    , 58 (3d Cir. 1976); United States v. Mathis, 
    264 F.3d 321
    , 329 (3d Cir. 2001). Finally, the prior burglaries showed how and why Kirkland
    
    and Lawton developed their modus operandi for their current conspiracy; demonstrated
    
    that they had the skill and knowledge to commit the charged burglaries; and explained
    
    
    
       4
         “We review a district court’s decision to admit or exclude evidence for abuse of
    discretion, and such discretion is construed especially broadly in the context of Rule
    403.” United States v. Mathis, 
    264 F.3d 321
    , 326-27 (3d Cir. 2001).
    
                                                  5
    why they were able to lead the conspiracy and recruit others. See Mathis, 264 F.3d at
    
    328-29.
    
           Because Lawton’s credibility and Kirkland’s identity as a coconspirator were
    
    critical issues, reference to Kirkland’s prior incarceration and burglaries likewise did not
    
    violate Rule 403. The District Court balanced the probative value of this evidence against
    
    any unfair prejudice and concluded that, though prejudicial, the evidence was not unfairly
    
    so because the “context of the conversations . . . [was] intrinsic to the conversations.” The
    
    court properly charged the jury on the proper purpose of such evidence. 3d Cir. Model
    
    Jury Instruction 4.29.5 Accordingly, we see no abuse of discretion by permitting
    
    reference to Kirkland’s prior incarceration and prior burglaries.6 See United States v.
    
    Caldwell, 
    760 F.3d 267
    , 277-78 (3d Cir. 2014).
    
                                                 2.
    
           Nor did the court abuse its discretion by admitting Kirkland’s federal probation
    
    officer’s testimony that during the timeframe of the charged conspiracy Kirkland lived in
    
       5
          The instruction informed the jury that it could “not consider this evidence as proof
    that [Kirkland] has a bad character or any propensity to commit crimes.” Though
    Kirkland disputes the timing of this instruction, the court instructed the jury at the
    beginning of trial to “not form any opinion until all the evidence is in [and] [k]eep an
    open mind until . . . the end of the case.” This instruction was reiterated mid-trial. The
    court made further efforts to minimize the risk of unfair prejudice by asking prospective
    jurors whether they would form an impermissible inference from knowledge that
    Kirkland had been in prison before. Accordingly, we cannot say the court abused its
    discretion by not giving the instruction sua sponte at an earlier time.
       6
          The court also did not err by admitting Kirkland’s admission under oath of his
    participation in a burglary charged as an overt act. Kirkland stipulated to the introduction
    of his state court admission of guilt. In any event, we have also examined the statement
    and find that its admission did not violate Rule 404(b) or 403 because it was intrinsic
    evidence of an overt act charged in Count One and it did not unfairly prejudice Kirkland.
    
                                                  6
    New York; was either unemployed or employed at low-wage jobs; used a New Jersey
    
    phone number; made certain false or incomplete statements regarding his address;
    
    violated his supervised release and was subsequently arrested for probation violation; and
    
    failed to report travel to New Jersey, contact with convicted felons, contact with law
    
    enforcement, and details about his car ownership. Because other evidence showed
    
    Kirkland spent almost $20,000 on rental cars during the same time period, testimony
    
    about Kirkland’s employment status and alleged homelessness was probative of whether
    
    Kirkland was getting this money from burglaries. Testimony that Kirkland was living in
    
    New York but traveling to New Jersey was probative of whether he was transporting
    
    stolen property across state lines, and testimony of his false statements showed that
    
    Kirkland was seeking to avoid supervision, which was necessary for him to continue
    
    traveling to New Jersey to commit burglaries. Though the probative value of Kirkland’s
    
    violation of his supervised release and subsequent arrest was less than that of the other
    
    testimony, the evidence demonstrated the extent of Kirkland’s evasiveness and its
    
    prejudicial effect was minimal because other highly probative evidence had already
    
    established Kirkland was violating his probation. Accordingly, we cannot say the
    
    probative value of Kirkland’s probation violation and resulting arrest was substantially
    
    outweighed by the risk of unfair prejudice.7
    
    
       7
         We also reject Kirkland’s contention that it was unfairly prejudicial for the jury to
    learn the officer was a probation officer. The District Court engaged in a careful Rule 403
    analysis and noted that “[n]obody is hiding the fact that Mr. Kirkland had a previous
    prison sentence.” Lawton had testified to his conversations with Kirkland in jail, and the
    defense had used Kirkland’s prior burglaries, imprisonment, and notoriety in an attempt
    to show that he was being framed. In addition, the officer’s identity as a probation officer
    explained why he was permitted to monitor Kirkland. Though reporting to a probation
                                                  7
                                                C.
    
           Kirkland contends his indictment was fatally defective.8 But consistent with our
    
    case law, Counts Three and Four “(1) contain[ed] the elements of the offense intended to
    
    be charged, (2) sufficiently apprise[d Kirkland] of what he must be prepared to meet, and
    
    (3) allow[ed him] to show with accuracy to what extent he may plead a former acquittal
    
    or conviction in the event of a subsequent prosecution.” United States v. Kemp, 
    500 F.3d 257
    , 280 (3d Cir. 2007) (citations and internal quotation marks omitted). Counts Three
    
    and Four provided specific allegations regarding the “jewelry” Kirkland stole from
    
    particular homes, identified by address, town, and date of burglary. In addition, both
    
    counts incorporated Count One’s allegation that Kirkland and his coconspirators stole
    
    “approximately $250,000 in cash” and “in excess of $500,000” in jewelry from the
    
    homes. Likewise, Count One was sufficient because it “set forth the agreement and
    
    specific intent to commit an unlawful act” and the relevant overt acts. United States v.
    
    Werme, 
    939 F.2d 108
    , 112 (3d Cir. 1991) (citations and internal quotation marks
    
    omitted). Count One identified the burglarized homes constituting overt acts by address,
    
    town, and date of burglary. Accordingly, we cannot say that the indictment was legally
    
    defective.
    
                                                D.
    
    
    
    officer permitted the inference that Kirkland was once convicted of something, this had
    long been established in a permissible way.
       8
         We exercise plenary review over the legal sufficiency of an indictment. United
    States v. Yusuf, 
    536 F.3d 178
    , 184 (3d Cir. 2008).
    
                                                 8
            Kirkland contends the government violated his due process rights by using false
    
    testimony.9 But Kirkland must show, among other things, that the false statement went
    
    uncorrected and that there is a reasonable likelihood it could have affected the verdict.
    
    United States v. Hoffecker, 
    530 F.3d 137
    , 183 (3d Cir. 2008). He cannot show either. In
    
    both cases, the government corrected the misstatement at trial.10 Moreover, the other
    
    evidence of Kirkland’s guilt was overwhelming. Accordingly, Kirkland cannot establish a
    
    due process violation based on these misstatements.
    
                                                 E.
    
            Kirkland contends the District Court committed sentencing errors with regard to
    
    role enhancement, amount of loss, number of victims, and calculation of his criminal
    
    history. In addition, he claims the court’s imposition of a consecutive sentence on Counts
    
    Three and Four violates grouping rules and that his sentence was substantively
    
    unreasonable. We find these claims meritless.11
    
    
       9
         Because Kirkland did not raise this claim at trial or in his post-trial motions, we
    review it for plain error. Brennan, 326 F.3d at 182.
       10
           Kirkland identifies two misstatements by government witnesses that allegedly
    deprived him of due process: Detective Condon’s affidavit that Lawton had told Condon
    that he and Kirkland committed a burglary together on March 17, 1999, and Lawton’s
    testimony that he visited Kirkland at a halfway house in 1999, where they discussed
    committing future burglaries. Both statements were impossible because Kirkland was in
    federal prison until 2000, but, as noted, both misstatements were corrected at trial—the
    first by the government’s cross-examination and the second by stipulation.
       11
          “We review a district court’s sentencing decision for an abuse of discretion.”
    United States v. Freeman, 
    763 F.3d 322
    , 335 (3d Cir. 2014). Kirkland also claims the
    District Court abused its discretion by denying his motion for a downward departure, but
    “we lack jurisdiction to review such a denial unless the District Court was unaware of its
    discretion to grant the motion.” United States v. King, 
    604 F.3d 125
    , 141 n.9 (3d Cir.
    2010). Kirkland does not argue that the court lacked such awareness.
                                                  9
            An enhancement for leadership role is proper, as here, where the defendant “was
    
    an organizer or leader of a criminal activity that involved five or more participants or was
    
    otherwise extensive.” U.S.S.G. § 3B1.1(a). All the factors we consider were present here.
    
    See United States v. Hunter, 
    52 F.3d 489
    , 492 (3d Cir. 1995). The evidence established
    
    that Kirkland exercised decision-making authority and played a significant role in the
    
    commission of the offense; recruited accomplices; claimed a larger share of the profits;
    
    engaged in planning and organizing the offense; exercised a high degree of control and
    
    authority over others throughout the conspiracy; and involved more than five other
    
    individuals in furtherance of the conspiracy.
    
            Second, the court did not abuse its discretion by applying an enhancement for
    
    amount of loss and number of victims. Losses caused by coconspirators are attributable to
    
    the defendant where they are reasonably foreseeable and in furtherance of the conspiracy,
    
    U.S.S.G. § 1B1.3(a)(1)(B); United States v. Duliga, 
    204 F.3d 97
    , 100 (3d Cir. 2000), as
    
    the evidence showed here.12
    
            Finally, we affirm a sentence unless “no reasonable sentencing court would have
    
    imposed the same sentence on that particular defendant for the reasons the district court
    
    provided.” United States v. Tomko, 
    562 F.3d 558
    , 568 (3d Cir. 2009). Finding the
    
    Guidelines range did not adequately capture the victims’ harm and Kirkland’s culpability,
    
    the court granted an upward variance of 28 months. The court’s explanation for the
    
    
       12
           Kirkland also claims the court’s use of judicially found facts to impose
    enhancements for amount of loss and number of victims violates his Sixth Amendment
    right to a jury. This claim is meritless because the court did not impose a mandatory
    minimum. See Freeman, 763 F.3d at 335-36.
    
                                                10
    upward variance demonstrates that it adequately considered the factors in 18 U.S.C.
    
    § 3553(a). The court considered the seriousness of the offense, including the harm to
    
    victims, and observed that “[i]t’s the sheer volume and the sheer perniciousness of this
    
    offense that is staggering,” and that there “is such a lot of human misery and such a lot of
    
    pure greedy theft [and] pure piracy.” The court considered that Kirkland had conceived of
    
    the conspiracy while incarcerated for burglary and that he emerged from his prior
    
    imprisonment “undeterred, unstopped, [and] unstoppable.” The court viewed this prior
    
    conduct as relevant to the history and characteristics of the defendant, the need for
    
    deterrence, and the need to protect the public from the defendant. We thus cannot say the
    
    court failed to meaningfully consider the § 3553(a) factors or that its upward variance
    
    constituted an abuse of discretion.13
    
                                                III.
    
            For the foregoing reasons, we will affirm the denial of Kirkland’s motion for a
    
    new trial and the judgment of conviction and sentence.
    
    
    
    
       13
          We also reject Kirkland’s other challenges to his sentence. The court properly
    treated Kirkland’s 1997 burglary conviction as criminal history because it was “for
    conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1); see United States v.
    Oser, 
    107 F.3d 1080
    , 1089 (3d Cir. 1997). The evidence showed the present conspiracy
    was conceived after his 1997 conviction, and the present conspiracy involved a different
    modus operandi from that giving rise to the 1997 conviction. The court also properly
    made the sentences consecutive because Kirkland’s Guidelines range was 151 to 188
    months and the count carrying the highest statutory maximum was less than that at 10
    years. See U.S.S.G. § 5G1.2(d) (“If the sentence imposed on the count carrying the
    highest statutory maximum is less than the total punishment, then the sentence imposed
    on one or more of the other counts shall run consecutively . . . .”).
    
                                                 11