United States v. Satiek Duncan , 615 F. App'x 726 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1890
_____________
UNITED STATES OF AMERICA
v.
SATIEK DUNCAN,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2:13-cr-00041-001)
District Judge: Honorable Michael M. Baylson
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Submitted Under Third Circuit L.A.R. 34.1(a)
April 14, 2015
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Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges.
(Opinion Filed: July 2, 2015)
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OPINION*
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VANASKIE, Circuit Judge.
A jury convicted Appellant Satiek Duncan of one count of conspiracy to distribute
28 grams or more of cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 846. His
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
appeal presents three issues for our consideration: (1) whether the District Court erred in
admitting testimony under Fed. R. Evid. 801(d)(2)(E) concerning the different hairstyles
of Duncan and his twin brother, Jamaal;1 (2) whether the District Court erred in admitting
testimony under Fed. R. Evid. 404(b) regarding a joint purchase of a large quantity of
cocaine by Duncan and the witness; and (3) whether the District Court plainly erred in
imposing a fine of $4,000. For the reasons that follow, we will affirm.
I.
In 2012, Duncan (also known as “Twin”) was targeted as part of a drug trafficking
investigation in South Philadelphia. As part of this investigation, James Allen, an
undercover officer, purchased crack cocaine from Cedric Green. Green procured the
crack cocaine from Duncan and other suppliers. Allen made a total of four purchases
from Green between July and September of 2012, two of which implicated Duncan.
The first exchange took place on July 16, 2012. Green accompanied Allen to a
location where Duncan arrived in a rented Chevrolet Equinox. Green approached
Duncan’s vehicle and entered through the front passenger door. Green returned to
Allen’s vehicle and gave him the crack cocaine. Officers surveilling the scene observed
that Duncan was heavy-set and had tight “cornrow” braids. After the sale, officers
followed Duncan to 634 Winton Street, a residence he shared with his twin brother,
Jamaal, and several other relatives.
For ease of reference, we will refer to Appellant Satiek Duncan as “Duncan” and,
1
where applicable, to his twin brother as “Jamaal.”
2
On August 9, 2012, Allen again arranged to purchase drugs from Green. During
this exchange, Allen wore audio and video recording equipment to document the
conversation. This transaction followed the same pattern as the first. When Allen
contacted Green, he assumed the drugs would be coming from Duncan. However, Green
told him the crack cocaine would be supplied by Duncan’s cousin, Kamal Washington.
Green assured Allen that Duncan and Washington “both get their soft, meaning powder
cocaine, from the same distributor,” (App. at 138), signifying that the quality of the crack
cocaine would be the same. During this conversation, Green told Allen that Duncan had
a twin brother, Jamaal, who also was a drug dealer. However, Green stated that he did
not work with Jamaal. Green went on to explain that the Duncan twins looked very
similar, but that Jamaal had “a low cut.” (App. at 486.)
Allen purchased drugs from Green a third time on August 15, 2012. After Green
said that he had received these drugs from an unidentified supplier, Allen insisted that
Green use Duncan for all future transactions because he was not satisfied with the quality
of the crack cocaine provided by the other suppliers.
On September 14, 2012, Allen contacted Green to arrange a purchase of crack
cocaine from Duncan. Allen told Green he was looking to buy two ounces of crack
cocaine for $2,400. As they did before, Allen and Green went to a predetermined
location to wait for Duncan. Shortly thereafter, Duncan arrived in a rented Ford F-150.
This transaction followed the same pattern as the first, with Green entering Duncan’s
truck, exchanging the money for the crack cocaine, and returning to Allen’s car with the
drugs. Officers again followed Duncan to 634 Winton Street.
3
On January 30, 2013, a grand jury in the Eastern District of Pennsylvania indicted
Duncan on five counts stemming from the aforementioned drug transactions. He was
charged with one count of conspiracy to distribute 28 grams or more of crack cocaine, in
violation of 21 U.S.C. § 846; one count of distribution of, and aiding and abetting the
distribution of, 28 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2; one count of distribution of, and aiding and abetting the distribution of
a mixture and substance containing a detectable amount of crack cocaine, in violation of
28 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and two counts of distribution of controlled
substances within 1,000 feet of a protected location, in violation of 21 U.S.C. § 860.
On April 30, 2013, Duncan was arrested by federal law enforcement in connection
with the indictment. On his person, agents found a cell phone bearing the phone number
used to facilitate the September 14th transaction and a driver’s license listing his address
as 634 Winton Street. In his driver’s license photograph, his hair was braided. Further
investigation revealed that both vehicles Duncan used during the drug deals were rented
from Budget Rent-A-Car under his name and paid for with his debit card. Cell phone
records corroborated the calls between Duncan, Allen, and Green during the course of the
sales.
On August 23, 2013, the Government filed a motion in limine to admit the
recorded testimony of Allen’s conversation with Green from the August 9, 2012, drug
transaction, on the theory that the recordings were admissible under Fed. R. Evid.
801(d)(2)(E) as a statement made by a co-conspirator in furtherance of the conspiracy.
On December 11, 2013, a jury was empaneled. Two days later, the Government filed a
4
second motion in limine under Fed. R. Evid. 404(b) to permit Washington to testify about
a joint purchase of cocaine he made with Duncan. That same day, Duncan filed a written
opposition to the Government’s 801(d)(2)(E) motion, and orally opposed the
Government’s 404(b) motion. By Orders dated December 16, 2013, the District Court
granted both motions, but, in admitting the 404(b) evidence, limited Washington’s
testimony to joint purchases of cocaine that occurred “prior to July 16, 2012.” (App. at
48, 62.)
On December 18, 2013, the jury convicted Duncan of one count of conspiracy to
distribute 28 grams or more of crack cocaine, in violation of 21 U.S.C. § 846. He was
acquitted on all other counts. On April 10, 2014, the District Court sentenced Duncan to
the mandatory minimum sentence of 120 months’ imprisonment to be followed by a five-
year term of supervised release. The District Court also imposed a $4,000 fine, well-
below the United States Sentencing Guidelines recommended minimum of $12,500.
U.S.S.G. § 5E1.2(c)(4). Duncan timely appealed.
II.
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).
III.
Duncan argues the District Court erred by: (1) admitting Green’s recorded
statements concerning Jamaal’s hairstyle because it was not “in furtherance of” the
conspiracy between Green, Duncan, and Allen, as required by Fed. R. Evid. 801(d)(2)(E),
and (2) admitting Washington’s testimony concerning Duncan’s purchase of a large
5
quantity of cocaine prior to July 16, 2012 because the Government failed to meet the
requirements of Fed. R. Evid. 404(b). We review a district court’s rulings as to the
admissibility of evidence for abuse of discretion. United States v. Serafini, 233 F.3d 758,
768 n.14 (3d Cir. 2000). However, our review is plenary to the extent that such rulings
are based on an interpretation of the Federal Rules of Evidence. Id.
A. The Recorded Conversation Between Green and Allen
Duncan first challenges the admission of Green’s recorded statements under Fed.
R. Evid. 801(d)(2)(E). The evidence consisted of an audio recording, which the
Government played for the jury, and a transcript of that same exchange that was entered
into evidence as Government Exhibit 6A. (App. at 485–86.) During that exchange,
Green described Duncan’s twin brother, Jamaal, as having “a low cut” as a way of
distinguishing him from Duncan. (App. at 486.)
Duncan challenges the admission of this statement on the ground that it was not
made in furtherance of the drug-trafficking conspiracy.2 Specifically, he contends that
Green’s physical description of Jamaal Duncan having a “low cut” was “extraneous to
the broader context of the exchange, serving only to preface an amusing, digressive
reminiscence upon how much Twin looked like his brother.” Appellant’s Reply Br. at 3.
Duncan asserts that, because Allen always bought from Green, rather than directly from
2
Duncan does not dispute that the other requirements for admission are satisfied.
That is, Duncan concedes that a conspiracy existed, that he and the declarant, Green,
were members of the conspiracy, and that Green’s recorded statements was made in the
course of the conspiracy. See United States v. Bobb, 471 F.3d 491, 498 (3d Cir. 2006))
(identifying requirements for admission of evidence under Fed. R. Evid. 801(d)(2)(E)).
6
Duncan, he had no “reason to know” what type of hair styles the twins had. Appellant’s
Br. at 29 (citing United States v. Provenzano, 620 F.2d 985, 1001 (3d Cir. 1980)).
Duncan’s reliance on Provenzano is unavailing. In that case, we held that
statements made by one conspirator to two errand runners were not made “in
furtherance” of the conspiracy because the errand runners had no reason to know of the
conspiracy. Id. Here, the statements at issue were made between co-conspirators and
were made in the course of the conspiracy to distribute crack cocaine. More specifically,
Green named his suppliers, and discussed how those suppliers were related and how to
identify which of the Duncan twins was Green’s supplier.
Although the information concerning Jamaal’s hairstyle was not necessary to
facilitate the conspiracy, the discussion identified which of two drug-dealing identical
twins was a member of Green’s chain-of-supply. This explanation ensured that Allen
would know from whom Green procured crack cocaine. Such statements are “made in
furtherance of the conspiracy because it was directed at a potentially recurring customer
([the undercover agent]) with the intention of reassuring him of [the supplier’s]
reliability[.]” United States v. Mooneyham, 473 F.3d 280, 286 (6th Cir. 2007). We have
explained that the “in furtherance” prerequisite should be given a broad interpretation,
see United States v. Weaver, 507 F.3d 178, 183 (3d Cir. 2007), and the District Court’s
admission of Green’s description of Jamaal is not inconsistent with according wide
latitude to the “in furtherance” requirement.
B. Admission of Kamal Washington’s “Other Acts” Testimony
7
Duncan next argues that the District Court committed reversible error by admitting
Washington’s testimony that he and Duncan purchased a large quantity of cocaine
together prior to July 16, 2012, which was later cooked into crack cocaine and sold to
Allen, among others. As part of this contention, he raises four errors for our review: (1)
the Government failed to afford him sufficient notice of the proffered testimony; (2) the
Government failed to show how this evidence was relevant; (3) the Government failed to
establish that the evidence was not unfairly prejudicial under Rule 403(b); and (4) the
District Court’s jury instructions permitted a conviction based on the uncharged acts of
purchasing cocaine with Washington prior to July 2012. We address each contention in
turn.
1. Lack of Pre-Trial Notice
Duncan first asserts that Government failed to give him pre-trial notice of the
evidence as required by Fed. R. Evid. 404(b)(2). Nonetheless, he concedes that at the
trial level “[t]he defense did not request a continuance or specifically object to the lack of
pretrial notice.” Appellant’s Br. at 39 n.11. Based on this failure to object, we review
this portion of Duncan’s claim only for plain error. United States v. Moore, 375 F.3d
259, 262 (3d Cir. 2004). Under this standard, Duncan must demonstrate, among other
things, that the error affected “substantial rights,” id., “which means that there must be a
reasonable probability that the error affected the outcome of the trial.” United States v.
Marcus, 560 U.S. 258, 262 (2010). His only claim of prejudice is that the defense “could
have adjusted its trial presentation to ensure the jury did not become confused by
8
Washington’s testimony.” Appellant’s Br. at 40. This conclusory and vague assertion is
insufficient to meet the high burden required under the plain error standard.3
2. The 404(b) Analysis
Duncan concedes that the Government offered the evidence of Duncan and
Washington’s joint purchase of cocaine under Fed. R. Evid. 404(b) for a non-propensity
purpose, but asserts the evidence was not relevant to that purpose.4 As to relevance, the
Government articulated that the evidence “establish[ed] Kamal Washington’s knowledge
of Cedric Green as a drug customer of himself and Satiek Duncan, setting a foundation
for the conversations between Washington and Duncan regarding providing crack
cocaine to Green during the time of this investigation.” (App. at 59.) Duncan does not
3
Even if Duncan had expressly objected to the evidence based upon the timing of
the notice, this would not have been a reason to bar the evidence in this case. The
Government promptly informed Duncan of the evidence when it received it and there is
no hint that it was withheld to provide the Government a strategic advantage. Moreover,
Duncan has not explained how his strategy would have changed had he received more
advance notice. He had access to the information before his opening statement and thus,
throughout the entire trial, including during his cross-examination of Washington.
Therefore, the District Court did not abuse its discretion in admitting the testimony.
4
As we recently explained in United States v. Caldwell, 760 F.3d 267, 277–78 (3d
Cir. 2014):
[P]rior act evidence is inadmissible unless the evidence is (1)
offered for a proper non-propensity purpose that is at issue in
the case; (2) relevant to that identified purpose; (3)
sufficiently probative under Rule 403 such that its probative
value is not outweighed by any inherent danger of unfair
prejudice; and (4) accompanied by a limiting instruction, if
requested.
9
rebut the Government’s representation, but simply argues that the evidence was wholly
irrelevant.
We have held that prior bad acts evidence is relevant insofar as it “cast[s] light . . .
on the relationship, if any, existing between . . . defendants.” United States v. Dansker,
537 F.2d 40, 58 (3d Cir. 1976). Here, Washington’s testimony framed the relationship
among himself, Green, and Duncan. Washington testified that he and Duncan purchased
large quantities of powder cocaine, which they then cooked into crack cocaine and
subsequently provided to Green to sell directly to customers, including Allen. The
District Court did not abuse its discretion in finding the evidence was relevant to show
Duncan’s relationship to Washington, a fellow drug supplier, and Green, one of Duncan’s
distributors. See United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir. 1982)
(testimony of “a co-conspirator and the key prosecution witness, could be considered as
relevant to provide necessary background information, to show an ongoing relationship
between [defendants], and to help the jury understand [the witness’s] role in the
scheme”).
Furthermore, Duncan’s central line of defense was mistaken identity. He argued it
was actually his brother, Jamaal, who supplied crack cocaine to Green. At sidebar, the
Government explained that Washington’s testimony also “goes to the identity issue.”
(App. at 311.) We agree that Washington’s testimony supported an inference that it was
Duncan who conspired with Green to sell crack cocaine. Because the evidence was also
germane to Duncan’s identity as Green’s supplier, the District Court did not abuse its
discretion in admitting that evidence.
10
3. Unfair Prejudice Under 403(b)
Duncan also contends the District Court erred by failing to determine whether the
probative value of this evidence outweighed its prejudicial effect under Fed. R. Evid.
403. In this respect, Duncan’s argument relies wholly on “the government’s failure to
articulate a valid chain of inferences . . . [indicating] that Washington’s testimony would
have any probative value.” Appellant’s Br. at 44. As explained above, the evidence was
relevant to explain the relationship among Washington, Duncan, and Green, as well as to
identify Duncan as the source of the drugs Green sold to Allen. Because Duncan has not
articulated how this evidence is unfairly prejudicial given the proper relevant purposes
for which it was admitted, we discern no error.
4. The Jury Instructions
Duncan contends the District Court’s limiting instructions, both at the time of the
testimony and after trial, “aggravated the unfair prejudice” of Washington’s testimony.
Appellant’s Br. at 46. Because he did not contemporaneously object to those
instructions, we review them for plain error. United States v. Lee, 612 F.3d 170, 191 (3d
Cir. 2010).
Just before Washington testified, the District Court instructed the jury that it could
not consider his testimony “as evidence for bad character of Mr. Duncan, nor . . . as any
evidence showing any propensity by Mr. Duncan to commit a crime.” (App. at 234–35.)
The District Court reiterated the limited purpose for which Washington’s testimony could
be considered in the final jury instructions. Nothing about the instructions contradicted
11
the text of the Federal Rules of Evidence or our own case law. Accordingly, Duncan is
not entitled to relief on this basis.
IV.
Finally, Duncan argues that the District Court made insufficient findings
concerning his ability to pay a $4,000 fine. Because he did not raise the issue of his
ability to pay before the District Court, we review this issue for plain error. United States
v. Torres, 209 F.3d 308, 313 (3d Cir. 2000).
We have held that specific findings of ability to pay a fine are not necessary where
the Presentence Report (PSR) adopted by the District Court “contains adequate factual
findings with reference to an ability to pay such that there can be effective appellate
review.” Id. at 314. Notably, the PSR in this case, which the District Court adopted
without objection, does not indicate that Duncan was unable to pay any fine—it simply
states that he could not pay a fine within the advisory guideline range. The District Court
imposed a fine well below the advisory guideline minimum of $12,500. (PSR ¶ 89.)
Furthermore, the District Court directed that Duncan make payments at the rate of $25
per quarter while incarcerated, with the balance remaining after he is released from prison
being in monthly installments of $50 over the five-year term of his supervised release.
Duncan is a high school graduate, presents no physical or mental impairments that would
keep him from working, has maintained various jobs in the past, and owns property in
Florida worth approximately $15,000. (PSR ¶¶ 59–79.) Under these circumstances, the
District Court’s determination that Duncan should pay a $4,000 fine over the course of
his incarceration and period of supervised release was not plainly erroneous.
12
V.
For the foregoing reasons, we will affirm Duncan’s conviction and sentence.5
5
Duncan additionally argues that he was sentenced “to an increased mandatory
minimum penalty applicable where the defendant has ‘a prior conviction for a felony
drug offense [that] has become final.’” Appellant’s Br. at 56 (quoting 21 U.S.C. §
841(b)(1)(B)). Although he contends his prior conviction was “never charged in the
indictment, submitted to the jury, or found proven beyond a reasonable doubt[,]” he
concedes that “controlling precedent of this Court forecloses relief on this claim at this
time.” Appellant’s Br. at 56 (citing United States v. Coleman, 451 F.3d 154, 159–60 (3d
Cir. 2006); United States v. Ordaz, 398 F.3d 236, 240–41 (3d Cir. 2005)). Therefore,
Duncan is not entitled to relief on this basis.
13