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United States v. McCoy

June 6, 2005


On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 98-cr-00005-2E) District Judge: Honorable Sean J. McLaughlin

The opinion of the court was delivered by: Sloviter, Circuit Judge


Argued February 14, 2005

Before: SLOVITER, AMBRO, and ALDISERT, Circuit Judges.


Marcresse McCoy appeals from the order of the United States District Court for the Western District of Pennsylvania denying his motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The sole substantive issue on appeal is whether the District Court abused its discretion by denying an evidentiary hearing.


A police officer in the Erie Area Gang and Law Enforcement Task Force was informed by a reliable source that a man named Joseph Barnette would be arriving in Erie, Pennsylvania, from Detroit, Michigan via Greyhound bus on March 17, 1998, at approximately 5:15 p.m. According to the source, Barnette would be traveling with friends, would be armed, and would be carrying crack cocaine. Based on this information, Task Force agents established surveillance at the bus station.

When the scheduled bus arrived, a man matching Barnette's description exited the bus with no bags and made his way to the front door of the bus terminal. Shortly thereafter, three other black males carrying garbage bags and a blue canvas duffel bag left the bus, exited the bus terminal through the front door, and set their bags on the sidewalk next to Barnette. Police Sergeants Joseph Kress and Robert Liebel observed that Marcresse McCoy carried the blue duffel bag, while two other individuals, later identified as Kendrick Grier and Michael McQueen, carried the trash bags. Once outside, the four men were observed sharing cigarettes and talking as if they knew each other.

Officers approached the group of men, identified themselves, and questioned each of the four men separately. The officers received conflicting answers in response to inquiries of whether the men knew each other, whether they had traveled together, and the purpose of their visit. Barnette, for instance, initially identified himself as "Ardell Griffen" and denied knowing the other individuals. McCoy represented that his name was "Mark Chin" and stated that he knew "Ardell Griffen," but denied knowing Grier, who was traveling under the name "Carlton Davidson." Grier, in contrast, admitted traveling with both Barnette and McCoy.

Because of these inconsistent responses, the officers inquired as to the ownership of the garbage bags and blue duffel bag. McCoy claimed ownership of two garbage bags and gave officers permission to search them; they contained shoes, shoe boxes, wet clothing, and a screwdriver. McQueen claimed ownership of the remaining garbage bag, which contained clothing. All four men denied ownership of the blue duffel bag. McCoy specifically denied carrying it from the bus. A search revealed that the duffel bag contained 270 individually packaged plastic baggies of crack cocaine, forty slightly-larger plastic baggies of crack cocaine, a large ziploc-type bag containing one pound of marijuana, a 9mm pistol wrapped in a towel, and a.380 caliber pistol hidden inside a pair of jeans.

All four men were arrested and taken into custody. Individual searches revealed that all four bus tickets, issued under fictitious names, were purchased at the same ticket counter within four minutes of each other and approximately ten minutes prior to the scheduled departure. A search incident to McCoy's arrest revealed that he had possession of Barnette's bus ticket in the fictitious name of "Ardell Griffen," along with his own ticket in the fictitious name of "Mark Shinne." McCoy also had a pager in his possession. A number retrieved from the pager matched a number written on a piece of paper found in Barnette's pocket.

On April 14, 1998, a grand jury in the Western District of Pennsylvania returned an indictment charging McCoy and Barnette with violating federal drug and gun laws. A five count superseding indictment was filed on June 16, 1998. *fn1 Count One charged that beginning on or about March 17, 1998 (the day of the arrest), the defendants had conspired to distribute and possess with intent to distribute cocaine base and marijuana in violation of 21 U.S.C. § 846. Count Two charged that the defendants possessed with the intent to distribute in excess of fifty grams of cocaine base in violation of 21 U.S.C. §§ 841(a), (b)(l)(A)(iii). Count Three charged the defendants with possession with the intent to distribute less than 500 grams of marijuana in violation of 21 U.S.C. §§ 841(a), (b)(1)(C). Counts Four and Five charged Barnette and McCoy, respectively, as convicted felons in knowing possession of firearms in violation of 18 U.S.C. § 922(g)(1).

Prior to trial, the Government provided notice of its intent to introduce Fed. R. Evid. 404(b) evidence against both Barnette and McCoy. The Government sought to introduce evidence of Barnette's prior state felony drug conviction. As for McCoy, the Government sought to introduce his 1991 felony conviction for carrying a concealed weapon. Beyond these convictions, the prosecution also intended to introduce testimony of the parties' prior bad acts; specifically, it proffered that it had testimonial evidence establishing that Barnette and McCoy had been involved in the sale of drugs in Erie on a number of occasions prior to March 1998, and that the drug transactions perpetrated by the two were unique because the drugs were distributed in small ziploc-type baggies identical to those found in the duffel bag. *fn2 The Government argued that collectively the Rule 404(b) evidence would establish that the defendants had knowledge of the contents of the bag, intended to distribute the drugs, and did not act by mistake or other innocent reason. In addition, the Government argued that the prior convictions were admissible as predicate convictions for the firearms charges that were the subject of Counts Four and Five.

Following a pretrial hearing, Barnette's attorney filed a "Jemal stipulation" seeking to prevent the introduction of his prior felony conviction for dealing cocaine and the testimonial evidence of his prior drug dealing activity. See United States v. Jemal, 26 F.3d 1267 (3d Cir. 1994) (holding that district court should ordinarily refuse to admit evidence of defendant's prior bad acts to show knowledge and intent when defendant has proffered stipulation that removes issues of knowledge and intent from jury's consideration).

The stipulation was signed by Barnette on October 19, 1998, and provided that:

(a) With regard to the two (2) charges of possession with intent to distribute cocaine and marijuana, I agree and stipulate that in the event the jury finds as a matter of fact that I possessed the blue duffel bag seized at the Greyhound Bus Station in which the drugs were found, then the jury may also find without further evidence that I would know that the substances which were contained in the bag were cocaine and marijuana and further that I intended to distribute them. My defense in this case is that I was not in possession of the bag or the drugs or guns found in it.

App. at 393-94. Notably, Barnette's Jemal stipulation did not extend to the conspiracy charged in Count One; the burden remained on the Government to prove that there was in fact an agreement between Barnette and McCoy.

In a second Notice of Intent, the Government declared its intention, notwithstanding Barnette's Jemal stipulation, to introduce the Rule 404(b) prior bad acts and signature drug packaging evidence as relevant to the agreement element of the conspiracy charged in Count One. At a pretrial hearing held on October 23, 1998, the District Court ruled that the prior bad acts evidence was inadmissible because its prejudicial effect outweighed its probative value, and because the bad acts conduct occurred too remote in time to the one-day conspiracy charged to have occurred on March 17, 1998. Although the Court stated it ...

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