On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. Criminal Action No. 07-00263) District Judge: Honorable Yvette Kane
The opinion of the court was delivered by: Pollak, District Judge.
Before: SLOVITER and GREENAWAY, JR., Circuit Judges, and POLLAK, District Judge*fn1
This consolidated criminal appeal arises from the conviction, in August 2008, of two brothers, Barron Walker and Barry Walker, for various federal drug trafficking, firearm, and robbery charges. The Walker brothers were each sentenced to prison terms of 47 ½ years. They now appeal their convictions on several grounds.
A. Indictment and Pre-Trial Motions
On June 27, 2007, defendants Barron Walker and Barry Walker were each charged in a four-count indictment for possession of cocaine base, in violation of 21 U.S.C. § 841(a)(1)) (Count I); criminal conspiracy, in violation of 21 U.S.C. § 846 (Count II); possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c) (Count III); and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g) (Count IV). The indictment alleged that these crimes occurred in Harrisburg, Pennsylvania, during the weeks before May 31, 2007.
In a series of superseding indictments, the government filed several additional charges against the Walkers.*fn2 Ultimately, both Walkers were charged with attempted robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (Count VI), and with using a firearm in furtherance of the robbery, in violation of 18 U.S.C. § 924(c) (Count V), for their involvement in the attempted robbery of a crack cocaine dealer at gunpoint on May 31, 2007. Barry Walker, who was ordered detained by the federal magistrate judge following the attempted robbery, was also charged with escaping from custody on July 10, 2007, in violation of 18 U.S.C. § 751(a) (Count VII). When Barry Walker was re-arrested two days later while sitting in a car, the arresting officers recovered crack cocaine from his person and the car's passenger admitted that Walker entered the vehicle to sell him crack cocaine. As a result, Barry Walker was charged with an additional count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a) (Count VIII).
On August 20, 2007, defendant Barron Walker filed a motion to sever for misjoinder based upon the escape charge and the additional drug charge against his brother Barry. The motion argued that joinder was improper under Federal Rule of Criminal Procedure 8(b), and also argued, in the alternative, that even if joinder were proper, the district court should sever the trials pursuant to Federal Rule of Criminal Procedure 14 to prevent prejudice to Barron. The district court denied the motion on May 30, 2008, finding that joinder was proper because ―the events of May 31, 2007, in which both Barron and Barry are alleged to have participated, are properly seen as a logical predicate to Barry's alleged escape, and the escape, in turn, the culminating act ‗in the same series of acts.'‖ With respect to prejudice, the court held that the jury would be able to ―compartmentalize the evidence that Barry allegedly escaped custody, and give each defendant his due.‖ The court also promised to instruct the jury to give separate consideration to each charge against each defendant, and later gave such an instruction at trial. Barron Walker renewed the motion to sever at trial, and the court denied it for the same reasons.
On August 6, 2008, five days before trial, the government disclosed to defense counsel its intention to prove the interstate commerce prong of the Hobbs Act robbery charge through the testimony of Chief John Goshert of the Dauphin County Criminal Investigation Division, a thirty-year veteran of cocaine trafficking investigations in Harrisburg and the region. The Walkers objected to the testimony based on the timing of the government's notice of its intent to call Goshert as an expert. The District Court rejected this argument on the ground that the Walkers had not requested expert notification pursuant to Rule 16 of the Federal Rules of Criminal Procedure. The Walkers also objected to Chief Goshert's testimony regarding the interstate transportation of cocaine on the ground that it is possible to manufacture cocaine synthetically. The District Court rejected this argument and permitted Chief Goshert to testify as an expert that in his experience cocaine is manufactured outside of Pennsylvania.
A joint jury trial for both Walker brothers was held from August 11 to August 14, 2008.*fn3 To prove the charges that the Walkers were engaged in drug trafficking, conspiracy, and possession of a firearm in furtherance of drug trafficking during the weeks before May 31, 2007 (Counts I, II, and III), the government presented testimony from several witnesses, including (1) Jason McNeil, who pled guilty to participating in the Hobbs Act robbery with the Walkers; (2) Carmillia King, Barry Walker's girlfriend; and (3) Skylar Rhoades, a confidential informant.
Only McNeil and Rhoades presented testimony supporting the charge of possession of a firearm in furtherance of drug trafficking in the weeks before May 31, 2007 (Count III). First, McNeil testified that the Walkers were crack cocaine dealers, and that he had ridden along with them as they drove through Harrisburg and made five to ten sales to crack cocaine customers. He also testified that one of the Walkers possessed a firearm during these deliveries. While he believed that Barron Walker possessed the firearm, he admitted that he was not ―positive‖ which brother possessed it.
Second, Skylar Rhoades, the confidential informant, testified that about two or three weeks before the May 31, 2007 robbery, he was with Jason McNeil's brother, John McNeil, when John purchased crack cocaine from Barron and Barry Walker. According to Rhoades, when the Walkers arrived at the meeting place and got out of their vehicle, he saw crack in the possession of Barron Walker. He also saw Barry Walker deliver crack cocaine to John McNeil, and observed a pistol on Barry Walker's hip. During cross- examination, the defense extensively questioned Rhoades concerning his motives to cooperate with the government and the veracity of his testimony. At the close of trial, the District Court gave a constructive possession instruction to the jury for the gun possession charge.
To prove the Hobbs Act attempted robbery charge
(Count VI) and the use of a firearm in furtherance of a crime of violence charge (Count V), the government presented evidence*fn4 that on May 31, 2007, the Walkers, along with three friends--Jason McNeil, John McNeil, and James Leeks--agreed to find street-level drug traffickers to rob of their drugs and money. During the planning of the robbery, the Walkers supplied a firearm to Jason McNeil to be used during the robbery. The robbers then assembled in an alleyway and watched Edward Wright, a crack cocaine dealer, make a sale to a customer. John McNeil approached Wright with his gun drawn and attempted to rob him, but Wright took out his own firearm and fired. John and his companions then opened fire on Wright. John and Wright were both hit multiple times by gun shots; Wright survived, but John died at the scene.
To satisfy the Hobbs Act's requirement that the defendants' conduct ―obstruct[ed], delay[ed] or affect[ed] commerce,‖ see 18 U.S.C. § 1951(a), the government presented testimony from two witnesses. The first witness was the robbery victim, Edward Wright. Wright, who was 17-years-old at the time of the robbery, testified at trial that he was only on the street for five minutes and had completed his very first drug sale. He also testified that he obtained his crack cocaine for $60 from someone with the street name ―Ice‖ whom he met outside a bar a day or two before, and that he made about $40 or $50 by selling the cocaine he obtained from Ice. Wright also didn't know anything about Ice, including whether Ice lived in Harrisburg, and never saw him before or after the purchase. In addition, Wright testified that the Walkers and their accomplices did not succeed in actually taking his crack cocaine, money, or gun from him.
The second witness was Chief John Goshert, the government's expert on the interstate aspects of cocaine trafficking. At trial, Goshert testified that, during his thirty years in the drug investigation field, he was involved with approximately 100 cocaine investigations a month, spoke with drug traffickers on a daily basis, and regularly participated in investigations involving the importation of cocaine into the Harrisburg area. Goshert rendered the expert opinion that cocaine is manufactured outside of Pennsylvania and transported into the state. Goshert identified New York City as the primary source for cocaine in the Harrisburg area. He also testified that in his thirty years of experience, he had never heard of synthetic cocaine being manufactured inside Pennsylvania.
At the conclusion of the trial, the jury returned a verdict finding both defendants guilty of distributing crack cocaine (Count I), conspiring to distribute crack cocaine
(Count II), possessing a firearm in furtherance of the distribution of crack cocaine (Count III), Hobbs Act robbery (Count VI), and possessing of a firearm in furtherance of a Hobbs Act robbery (Count V). The jury also found Barry Walker guilty on the two counts arising from his escape (Counts VII-VIII).*fn5
C. Motion for a New Trial and Sentencing
A few weeks after trial, Assistant United States
Attorney Michael Consiglio, who had tried the case, wrote to defense counsel to notify them of the following: On March 8, 2007, while Rhoades was working with the ATF as a confidential informant on an unrelated case, agents met with Rhoades for the purpose of arranging a purchase of crack cocaine from a target in quantities of an ounce (28 grams) or larger. When Rhoades arrived, the officers asked Rhoades to change coats because the coat he was wearing would interfere with audio recording they planned to conduct. One of the agents retrieved a coat from the back of Rhoades' car and searched the pockets. One of the pockets contained flakes of marijuana and two loose rocks of cocaine base weighing 0.18 grams. Rhoades told the officers that the jacket was his, but that the substances were old and that he did not know that they were in the jacket.
Rhoades was not charged with any crimes for this incident, and the agents properly notified Consiglio at the time, but Consiglio failed to remember the incident until after the trial of this case. Upon being notified of this incident by Consiglio, the defendants promptly filed a motion for a new trial alleging that impeaching Brady material relating to an important government witness was improperly withheld. The District Court denied the motion for a new trial on the ground that the defendants already effectively cross-examined Rhoades at trial, making it unlikely that the jury would reach a different result if the material had been handed over.
Thereafter, the District Court sentenced Barron Walker to a term of 47 ½ years, consisting of 210 months on Counts I, II, and VI to be served concurrently, a 60 month mandatory minimum consecutive term on Count III (the first gun charge) and a 300 month mandatory minimum consecutive term on Count V (the second gun charge). The District Court also sentenced Barry Walker to a term of 47 ½ years, consisting of 210 months on Counts I, II, VI, VII, and VIII to be served concurrently, and 60 month and 300 month consecutive terms for Counts III and V.
The Walkers now appeal on five principal grounds.*fn6 First, Barron Walker argues that the District Court should have granted his motion to sever because of the two additional escape and drug charges against his brother Barry. Second, both Walkers argue that there was insufficient evidence to support their convictions for use of a firearm in furtherance of drug distribution in the weeks before May 31, 2007 (Count III). Third, the defendants argue that the District Court erred by permitting the government's drug trafficking expert, Chief Goshert, to testify. Fourth, the defendants argue that there was insufficient evidence of an effect upon interstate commerce to support their convictions under the Hobbs Act (Count VI). Fifth, the defendants argue that the District Court should have granted their motion for a new trial in light of the fact that the prosecution withheld impeaching Brady material concerning the confidential informant Skylar Rhoades.
As noted above, while six of the eight charges in the final superseding indictment were made against both Walker brothers, the indictment charged Barry Walker alone with escaping from custody on July 10, 2007 (Count VII), and with possession with intent to distribute cocaine base on the date of his re-arrest (Count VIII). In this appeal, Barron Walker argues that the District Court erred in denying his motions to sever pursuant to Federal Rules of Criminal Procedure 8(b) and 14, which were based upon these charges against his brother.
Rule 8(b) governs the joinder of defendants in federal criminal cases.*fn7 ―The appeal of a denial of a Rule 8 motion [for improper joinder] is a claim of legal error, which we review de novo.‖ United States v. Jimenez, 513 F.3d 62, 82 (3d Cir. 2008) (citing United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991)). The ―inquiry into whether . . . defendants were properly joined focuses upon the indictment, not upon the proof that was subsequently produced at trial.‖ United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003) (citation omitted). In construing this rule, this court has followed the Supreme Court in recognizing the ―fundamental principle that the federal system prefers ‗joint trials of defendants who are indicted together [ ]' because joint trials ‗promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'‖ United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005)
The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
(quoting Zafiro v. United States, 506 U.S. 534, 537 (1993) (alteration in original)).
Rule 8(b) is ―less permissive‖ than Rule (8)(a), which governs the joinder of counts against a single defendant. Eufrasio, 935 F.2d at 570. We note, as a threshold matter, that much as in Irizarry, Walker's ―focus on Rule 8(b) at first appears misguided because Rule 8(b) authorizes joinder of defendants and [Walker] is actually challenging the joinder of allegedly unrelated offenses.‖ 341 F.3d at 287. However, we have held that Rule 8(a) ―‗applies only to prosecutions involving a single defendant‖ and that in a multi-defendant case such as this, ‗the tests for joinder of counts and defendants is merged in Rule 8(b).'‖ Id. (quoting United States v. Somers, 496 F.2d 723, 729 n.8 (3d Cir. 1974)). Accordingly, we analyze Walker's misjoinder challenge under Rule 8(b).
Under Rule 8(b), ―[i]t is not enough that defendants are involved in offenses of the same or similar character; there must exist a transactional nexus in that the defendants must have participated in ‗the same act or transaction, or in the same series of acts or transactions,' before joinder of defendants in a multiple-defendant trial is proper.‖ Jimenez, 513 F.3d at 82-83 (quoting Fed. R. Crim. P. 8(b); citing Irizarry, 341 F.3d at 287 n.4). Where charges leveled against only a single defendant ―arose directly‖ from her participation in a common illicit enterprise which led to charges against that defendant and co-defendants, we have held that all of the charges may be considered part of the same series of acts, rendering joinder proper under Rule 8(b). United States v. Riley, 621 F.3d 312, 334 (3d Cir. 2010) (―In this case, it was Riley's failure to report income earned from the land fraud scheme that led to her Tax Fraud Counts. Because the taX evasion arose directly from the land fraud proceeds, it was in the interest of judicial efficiency to join these claims.‖).
Barron Walker argues that joinder was improper because the first four counts of the indictment, including the conspiracy count, only covered conduct occurring before May 31, 2007, while the escape and additional drug charges against Barry Walker were both based on conduct occurring in July 2007. While a conspiracy count may serve as a link justifying the joinder of various substantive offenses, see Eufrasio, 935 F.2d at 567, joinder may still be proper in the absence of a conspiracy count covering the time period for every substantive offense if those substantive offenses were part of the same series of transactions. In this case, the two escape-related charges against Barry Walker were properly joined because they arose directly from the earlier drug, conspiracy, and gun charges. In so holding, we agree with the analysis of Rule 8(b) by the district court in United States v. Avila:
[T]he government may charge escape-related crimes alongside underlying offenses if the two are closely related to one another. This nexus depends upon the temporal proximity between the offenses, whether the defendant escaped to evade prosecution for the underlying offense, and whether the defendant was in custody for the underlying offense at the time of the flight.
Barry Walker's evident purpose in escaping from pretrial detention was to evade prosecution for the offenses charged in the first four counts of the indictment. If it were not for the underlying offenses, Walker would not have been arrested and then able to escape from custody. Similarly, the additional drug charge arose directly from the initial charges, because at the time of Walker's re-arrest and the discovery of cocaine on his person the police were searching for him in an effort to return him to custody so that he could be tried for the four charges then pending against him. We note, in addition, that the short span of time between the initial offenses and the two charges against Barry Walker--a period of a little over a month--further suggests that the various charges were part of the same series of transactions. Accordingly, we conclude that the defendants were properly joined pursuant to Rule 8(b).
We review whether a motion for severance to prevent prejudice should have been granted pursuant to Rule 14 under an abuse of discretion standard. Riley, 621 F.3d at 334; United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005). While Rule 8 requires severance where defendants were improperly joined, Rule 14 permits a district court ―to sever properly joined defendants and order a separate trial where a consolidated trial appears to prejudice the defendant.‖ Id. at 82 n.7; see also Fed. R. Crim. P. 14(a) (―If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.‖). The district court may order severance to prevent the ―serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.‖ United States v. Reyeros, 537 F.3d 270, 287 (3d Cir. 2008).
To prevail on a Rule 14 motion, a defendant must
―‗pinpoint clear and substantial prejudice resulting in an unfair trial.'‖ Riley, 621 F.3d at 335 (quoting United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992)). As a result, ―a defendant is not entitled to a severance merely because evidence against a co-defendant is more damaging than the evidence against the moving party.‖ United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (internal quotation marks omitted). Instead, the question of prejudice hinges upon ―whether the jury will be able to compartmentalize the evidence as it relates to separate defendants in view of its volume and limited admissibility.‖ Davis, 397 F.3d at 182. Where additional charges against a single defendant are ―relatively straightforward and discrete,‖ we have ―not doubt[ed] that the jury reasonably could have been expected to compartmentalize the evidence . . . and actually did so.‖ Lore, 430 F.3d at 205. By contrast, ―[w]hen many defendants are tried together in a complex case and they have markedly different degrees of culpability, the risk of prejudice is heightened.‖ Zafiro, 506 U.S. at 539.
We hold that the District Court did not abuse its discretion by declining to grant Barron Walker's Rule 14 motion to sever. We reach this conclusion for two primary reasons. First, although the defendants were brothers, they were the only two defendants in a trial that lasted a total of four days and that featured charges arising from only three distinct episodes of criminal conduct. See Davis, 397 F.3d at 182 (―In this case, the facts are relatively simple; all the events occurred in a single evening; there are only three defendants; and there are no overly technical or scientific issues. Therefore, we conclude that the jury could reasonably have been expected to compartmentalize the evidence as it related to each individual defendant.‖). With respect to the escape-related counts, the evidence presented at trial concerning Barry's escape and subsequent arrest was relatively uncomplicated, suggesting that the jury would have little trouble keeping it separate from the evidence against Barron. Accordingly, the District Court did not abuse its discretion in concluding that the jury would have been able to ...