NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2012
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-0124.
Joseph E. Krakora, Public Defender, attorney for appellant Gary R. Maddox (Michael Confusione, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Jason E. McKinnon (Kevin G. Byrnes, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lisa Sarnoff Gochman, Deputy Attorney General, of counsel and on the brief).
Appellant Gary R. Maddox filed a pro se supplemental brief.
Appellant Jason E. McKinnon filed a pro se supplemental brief.
Before Judges Graves, Espinosa and Guadagno.
Defendants Gary R. Maddox and Jason E. McKinnon appeal from their convictions for first-degree leading a narcotics trafficking network, N.J.S.A. 2C:2-6 and 2C:35-3, and other offenses and their sentences. We affirm.
The evidence accumulated against defendants during the investigation conducted by the Drug Trafficking South Unit (DTSU) of the New Jersey State Police (NJSP) was overwhelming. The evidence included the testimony of Nasser Perez, a drug supplier arrested when he traveled to Arizona to obtain five kilograms of cocaine to sell to defendants; the testimony of Bennett Goodin and Jonathan Flick, two "runners" who were recruited to distribute drugs for defendants; the testimony of officers who conducted surveillance and monitored conversations between an informant and defendants that included multiple controlled purchases; transcripts of telephone conversations intercepted pursuant to court-authorized wiretaps in which defendants made numerous incriminating statements that provided extensive details about their trafficking activities; and the recovery of drugs, money, guns, and other corroborating evidence following the execution of search and arrest warrants.
Detective Frederick Hunter, assigned to the DTSU of NJSP, testified that he had been involved in over two hundred eighty drug investigations in his career. He had worked as primary investigating detective and in an undercover capacity, and became familiar with street names for drugs, their prices, packaging, and quantities sold.
In the spring of 2006, Hunter conducted surveillance of the above informant, who had been under investigation for trafficking in cocaine. After observing interactions between him and defendant Maddox, the officers approached the above informant and inquired about his relationship with Maddox. He confirmed that the relationship involved narcotics transactions and agreed to become an informant.
The informant consented to have NJSP review his telephone records and listen to his telephone calls through the following procedure: When Maddox called, the informant would let the call go to voicemail. The informant would then call the police before returning Maddox's call. By wearing an earpiece and holding the telephone in a pre-determined way, the informant allowed the police to hear both sides of the conversation and record it.
The first controlled purchase was made on May 18, 2006. The informant called Maddox and asked to buy two ounces of cocaine. Maddox agreed and instructed the informant to come to his residence on Shady Lane, in Washington Township, for the drugs.
Hunter listened in to the telephone conversation in which the purchase was arranged, and followed the customary procedure for a controlled purchase, i.e., searching the informant and his vehicle to confirm he had no drugs in his possession prior to the purchase; providing him with the agreed-upon amount of money; equipping the informant with an on-body recording device; keeping the informant under surveillance before and after the purchase; listening to the conversation between the informant and Maddox; and meeting the informant to recover the drugs after the purchase. Once the narcotics were recovered, they were taken to a secure location where they were field tested, logged into evidence, and secured. Hunter explained that the police used the same procedure each time they retrieved drugs from the informant: "[T]hey [were] secured, field tested, weighed by us . . . and then . . . [they were] secured in the Evidence Safe and taken to the state police lab." After the state lab confirmed that the substance was the drug in question, the drugs were transported to the federal Drug Enforcement Administration (DEA) Lab for further testing.
When the informant arrived at Maddox's residence on May 18, 2006, Maddox told him he was awaiting the delivery of the drugs. Hunter observed Charles Muldrow, Maddox's nephew, arrive. Muldrow and the informant drove to an address on Walnut Avenue in Lindenwold, the residence of Maddox's child's mother. Hunter maintained surveillance and observed a cream-colored Chrysler, driven by Perez,  pull up. Hunter overheard Muldrow tell the informant, "Wait, should be here momentarily." Muldrow got into the passenger side of the Chrysler, which then drove off around the corner and returned to the Walnut Avenue address. Muldrow then walked to the informant's vehicle and handed him a small object through the passenger side window. The informant met with Hunter at the pre-determined location and surrendered approximately two ounces of cocaine he had obtained from Muldrow.
The second controlled purchase occurred on May 31, 2006. Hunter listened in as the informant called Maddox and asked to buy four and one-half ounces of cocaine. Maddox told the informant he did not have that quantity but that he did have one ounce available. The same procedure for a controlled purchase was followed. With Hunter listening in, the informant went into Maddox's home and bought approximately one ounce of cocaine for $1100. The informant questioned Maddox about pricing, and asked if he could get a discount if he was able to bring Maddox multiple ounce purchases. Maddox replied that the informant was getting "the family price."
The third controlled purchase occurred on June 3, 2006. On the previous evening, Hunter listened in as the informant placed a call to Maddox. Lori Gephart, Maddox's live-in girlfriend, answered and told the informant, "We have what you are looking for[.]" The informant insisted on speaking to Maddox, who then repeated, "Yeah, we have what you're looking for, come on over." Hunter testified that he understood this to mean that Maddox had the four-and-one-half ounces of cocaine that the informant had requested. The procedure for a controlled purchase was followed once again, enabling Hunter to monitor the informant's purchase of approximately four ounces of cocaine from Maddox at his residence through surveillance and the transmitting and recording device worn by the informant.
After the third controlled purchase, Hunter applied for a court order authorizing a "Dialed Number Retrieval" for the two telephone numbers Maddox used to contact the informant and gave to him to arrange for drug purchases. Dialed Number Retrieval allowed the police to examine the telephone numbers for incoming and outgoing calls for those numbers. By obtaining subscriber information, Hunter identified people who called Maddox at the numbers he used for drug transactions, including "Jay, " defendant McKinnon; and Maddox's younger brother, Gerald Foster.
A fourth controlled purchase occurred on August 2, 2006. Monitored by Hunter, the informant called Maddox and asked to buy two ounces of cocaine. Maddox agreed and quoted the informant a price of $2200, but later called him back with a price of $2100. Because the amount purchased on June 3 weighed approximately four ounces, about one-half ounce less than the amount paid for, the informant confronted Maddox about it. Maddox told the informant he would make good on the outstanding half-ounce.
Hunter followed the informant to the location where the purchase was to occur, a McDonald's parking lot on State Highway 42. He observed a tan pickup truck pull up next to the informant and overheard the driver tell the informant to get in the truck to go to another location. Pursuant to instructions given him by NJSP, the informant refused. Hunter was able to overhear the conversation as the driver contacted Maddox and told him the situation. Hunter also heard Maddox instruct the driver to have the informant follow him to an Exxon station. Hunter followed the informant and the pickup truck to the Exxon station, where he observed Maddox arrive with a white male in a green Ford Explorer. Hunter testified there was a white Crown Victoria, unrelated to the investigation, parked to the side of the Exxon station. After Maddox and the two other males engaged in what Hunter perceived to be an attempt to create confusion, Maddox walked to the informant and completed the drug sale.
The amount purchased weighed 36.1 grams, which was almost three-quarters of an ounce less than the agreed-upon amount of two ounces. The value of the "shorted" amount was $550. At Hunter's direction and under his supervision, the informant placed a series of calls to Maddox and then went to his home to confront him about the fact that he had supplied the informant less than the agreed-upon amounts. While the informant was wearing a transmitting and recording device, Hunter was able to hear Maddox apologize to the informant and explain that he had been nervous at the last sale, concerned there were police in the area, and had mistakenly given the informant a package that was for another customer. Maddox assured the informant that it was just a mistake, that he would make good on it, and said, "My family is cocaine." Maddox then told the informant about various methods he had for getting cocaine to sell to him, and told him that he transported cocaine from Arizona by hollowing out small appliances, inserting the cocaine in place of the parts, and shipping the appliances back to New Jersey.
Maddox also offered a sample of crystal methamphetamine to the informant. He told the informant that the price would be $250 per gram and offered him a reduced price of $175 per gram. Maddox said to the informant, "Don't tell nobody where this came [from]. Listen, when this shit comes out it's like an epidemic 'cause nobody never has it." Maddox also said to informant, "Get that paper." Hunter interpreted this to mean that Maddox asked the informant to get prescriptions so he could sell prescription pills, such as Percocets and "Oxy's."
Another controlled purchase occurred on September 26, 2006. Hunter applied for and obtained court-authorized wiretaps on the two telephone numbers used and supplied by Maddox for the drug transactions. Gephart was the subscriber for one of the numbers. The subscriber for the second telephone number was Keith Rich, whom Hunter described as a "criminal associate" of Maddox. The court-authorized wiretap lasted from October 2006 to January 2007.
The next controlled purchase occurred on October 18, 2006. The informant called Maddox and asked to purchase three "eight-balls, " or three-eighths of an ounce of crystal methamphetamine. Maddox asked the informant why he had been out of touch for three weeks. The informant lied and said he had a "mini-stroke." Maddox instructed the informant to come to his house for the drugs. The informant did so.
Pursuant to Hunter's direction and while equipped with a transmitting and recording device, the informant asked Maddox for a price on a kilogram of cocaine. Maddox called McKinnon. Using "bird, " street slang for one kilogram of cocaine, Maddox said he had a "bird drop for twenty-six thousand[.]" McKinnon told Maddox that "Naz" (Perez) usually charged him $22, 000 to $24, 000 per kilogram. They talked about who would deliver the kilogram to the informant. In a second call, made minutes later, McKinnon told Maddox to "go to storage, you got the storage key, all you got to do is go there and grab that shit." Maddox asked if McKinnon had anybody to use for the delivery. McKinnon said he could get "P" to do it, referring to Michael Scott, who was also known as "Powerful" or "P, " but would have "to give him a couple dollars[.]"
Hunter observed the informant go to his car and remove the on-body recording and transmitting device. He also observed Gephart leave the house, drive around the neighborhood, and return to the house. She opened up the passenger door of a gray pickup truck parked in the driveway, placed a small object on the passenger floorboard, and walked back to the house. The informant then walked to the truck, retrieved a small item from the passenger floor board and returned to his car. He surrendered 10.2 grams of crystal methamphetamine and 3.4 grams of cocaine, the drugs purchased from Maddox, to Hunter at a predetermined location.
The informant called Maddox later and told him he would purchase a kilogram of cocaine for $26, 000, the quoted price, but that he only had $20, 000. Maddox later discussed the informant's request to purchase a kilogram with Gephart. She was skeptical about the informant's stated reason for being out of touch, and said, "he's lying about this stroke thing." Maddox responded by describing the precaution he had taken to avoid being caught on a wire, saying, "In case he is lying, I wrote everything down on paper, I didn't say anything."
The informant did not complete the kilogram purchase with Maddox. Pursuant to Hunter's direction, he told Maddox in a telephone conversation on October 19, 2006 that he was "down in Cam, " talked to a friend of his, and "picked it up" for "22, 5." Maddox said, "That's what it is." When the informant asked what he meant, Maddox said, "The next one you need holler at me." Maddox subsequently had a telephone conversation with McKinnon regarding the informant's purchase. Maddox complained,
he was like I found my man North Camden 22, 500.00 if you can do that I'll deal with you all day . . . . Man we don't even need that. Ya know what I mean? You getting, you getting it, I'm doing what I'm doing you know what I mean if something passes our way and just some knuckle head that don't even need to be doing this shit then we do it like that or we just sell ounces of . . . that shit cause I know mother fuckers that buy ounces of that shit.
A call between Maddox and Foster was intercepted on October 20, 2006. Foster wanted to borrow money. Maddox said he just bought "500 fucking 80's, a whole bunch of shit today" and had sent Gephart to get a "pound from Gabe." As a result, Maddox was low on funds. Maddox and Foster also discussed a possible purchase of "30's, " which Hunter testified were thirty milligram pills, from "Cherri." Maddox said the pills were probably not real, that "[t]hey are the ones with the M on them and they [are] the . . . morphine sulfate ones." He advised Foster that he did not have to pay Cherri money for the pills, that Foster should "tell that bitch you got some crack for her[.]" When Foster said that he was "about to have one of those 30's[, ]" Maddox replied, "Well, I got pills there, everything, man." Maddox was about to leave and Foster asked him to "leave like a buck 50 in the mail box[.]" Maddox responded, "What the fuck you need money for when I just now said I got all the fucking pills you need? That bitch don't want nothin' but some fucking crack."
Perez testified that Maddox's "main hustle" was selling pills, such as Xanax, Percocet and OxyContin, and that selling cocaine was "a side thing that he did." Maddox always had a "bag full" of pills. He told Perez that he trafficked in crystal methamphetamine as well, obtaining it from sources in Arizona and Mexico.
In a conversation intercepted on October 31, 2006, Maddox instructed an unidentified male on what to say to a doctor in Trenton to get prescription pills:
[J]ust tell him your back is fucked up and you been taking OxyContin and your doctor ain't around and you ran out of your prescription and you heard about him and he'll write you out . . . some more Oxys and you also have panic attacks and you want Xanax and he'll give you 90 poles.
The unidentified male asked, "That's it just like that?" Maddox replied, "Yeah, and I'll give you the buck and a half for doing that for me." They then arranged to meet. In a telephone conversation later that day, Maddox told Foster that he went to Trenton that morning, only to "find out the damn doctor was closed on Halloween." He said he would now have to go back the following day.
The evidence showed that, in addition to knowing how to obtain prescriptions from doctors, Maddox had knowledge of certain pharmacies' practices for filling out prescriptions. In a conversation with Scott, Maddox referred to "the Eckerd, " saying, "that's a good place and . . . you ain't gotta worry about them calling[.]" In an intercepted conversation with "Maurice, " a pharmacist at the Farmacia San Antonio in Camden, Maddox said he just came back from the doctor and asked Maurice about his statement "that [he] couldn't take no more prescriptions from him[.]" Maurice replied, "No, it's alright. Ah, once in a while I take. What happens is too many people will call me and I'm trying to stay away from that. But if you have one, yeah, I can take it."
There were a number of intercepted conversations in which Maddox arranged to purchase or sell prescription pills. By way of example, on October 26, 2006, an unidentified male called him and said, "I got the OxyContin 40's." Maddox asked how much the caller wanted for them, tried to negotiate a price lower than "9, " and asked how many there were. Told "90, " Maddox said he wanted them, but when the unidentified male said the pills were "footballs, " Maddox said,
Hell, no, I can't do any generic . . . them generic football shaped ones, they ain't the real shits because they can't flip them yo. They want the real ones they can wipe the coating off and sniff. . . . I know this shit yo. This is my bread and meat, you know what I mean?
An order authorizing a wiretap of the telephone number McKinnon used to call Maddox was entered in mid-November 2006. A call intercepted on November 25, 2006, between McKinnon and a male identified as "Eric" revealed that McKinnon had been in Amsterdam. Eric complained about a transaction he had in McKinnon's absence with a male who was later referred to as "Kill Bill" in the conversation. Eric stated, "he gave me all your coke dude, every bit of it[, ]" and later said, "he gave me the bag a hundred piece and said split it . . . ." Eric said he told Kill Bill that he had "no money to pay for this" and said, "if there's gonna be a problem you need to take this back right now because I don't need it." According to Eric, Kill Bill refused and he later got a call from "P, " who told him "next time you need something on the front, you just call me or call Jay." Eric said he told "P" that he was trying to do that but that this "n__ 's too sweet." Eric assured McKinnon that he was "not beating no one." In two other conversations between McKinnon and unidentified callers on that date and the following day, the callers discussed drug transactions they had with McKinnon's "boys" while he was away.
On November 26, 2006, McKinnon placed a call to James Giacomucci and said he "might have a job" for Giacomucci. McKinnon said, "I need you to break somebody's legs." McKinnon said, "[t]he dude . . . got beat" and "wants to know how much you goin' to charge him." Giacomucci said he did not want to meet the "dude" but wanted to know where the person lived before he gave a price. On the following day, McKinnon told Giacomucci, "[t]he boy's from Berlin" and that he "beat [McKinnon's associate] for a lot of Oxy's[.]" McKinnon said the price for "Oxy's" was "like . . . forty or fifty dollars." Giacomucci said, "Tell him to give me a grand, I'll make sure he don't walk." When Giacomucci said, "I can hit him anywhere I'll split his shit right there on the spot[, ]" McKinnon said he did not want him "to kill nobody." Giacomucci clarified that he meant he would "take his knees out" and leave him "laid out like prone right on the fuckin' ground crying[.]" Giacomucci asked for additional information, including whether the intended victim was "packing, " and stated he could use the money because he had $2500 bail.
In a conversation between Scott and McKinnon on the same date, they discussed doing "onions." Scott asked McKinnon, "You want to do more then [sic] an onion at a time on that?" McKinnon asked Scott how much he had sold and Scott replied that he could do with an "onion or two at a time[.]" McKinnon said, "Alright, we'll, do like 2 onions." They agreed that they had to "get workers." Scott said that a "young boy" talked to him and needed $300 for a warrant. Scott reported that he told him, "we'll pay for your warrant to get fix [sic] and you'll work it off."
The "young boy" referred to was Flick, who testified that in 2006, Scott, whom he also knew as "P" or "Powerful, " approached him and his friend, Goodin, to sell drugs. At the time, he had no criminal record and was unemployed. However, he had a warrant outstanding for unpaid traffic fines. He testified that "Power and Jason said they would pay [his] fines off if he [sold drugs for them] for a little while and pay [him] for doing that, also." Flick was promised $1000 per week to sell "50-bags" and "100-bags, " quantities of cocaine and crack cocaine worth fifty dollars and one hundred dollars, respectively. He met McKinnon a week or two after he agreed. Flick was given a cell phone to receive calls from customers and worked from noon to 1:00 a.m., furnishing drugs to ten to twenty customers per day. Although promised $1000 per week, he was paid $500 per week and stopped working for McKinnon and Scott after approximately one-and-one-half months.
Goodin also testified that he had been recruited by Scott to sell drugs for McKinnon. Like Flick, he had no criminal record when Scott approached him. Goodin stated that Scott told him and Flick they would work every day, with Sundays off, and make $1000 per week. He received cocaine and crack cocaine packaged in 50-bags and 100-bags from either Scott or McKinnon and sold them to purchasers who contacted him on a telephone supplied by McKinnon. Goodin testified that he sold drugs for McKinnon and Scott for approximately one-and-one-half months, working from "[e]ight, nine o'clock in the morning till [sic] three, four o'clock at night, all day." He made sales to twenty to thirty customers per day. They were never paid $1000 per week. Instead, they were paid $500 and sometimes less. Goodin identified his voice and that of McKinnon in a taped telephone conversation in which he asked McKinnon for assistance regarding a drug sale.
In a telephone call between defendants intercepted on November 28, 2006, McKinnon asked Maddox if a price of $10, 000 was worth it for five "500 OC 80s." Maddox advised against it. Maddox also told McKinnon he had "some hard" that he had "to get rid of" and asked, "You can do that for me, yo?" McKinnon asked how much he had and how much it weighed. Maddox said he did not know, that "it's all like 20's, bagged up, bro. Then I got like one that's 8 grams." McKinnon said they would weigh it out and he would see what he could do.
On November 30, 2006, McKinnon placed an intercepted call to Perez and told him that he thought he had "like nine stacks" for Perez but that he could "wait until after the weekend, to see how much [McKinnon gets.]" Perez said he would "get it now" because he would be away after the weekend. McKinnon asked Perez, "you give Riz my number, like just in case if I need something or what ever?" Perez replied, "Yep . . . he here with me, he'll have this phone, actually."
Perez testified about his November 30 conversation with McKinnon. He explained that "nine stacks" meant $9000, and that this referred to money McKinnon owed him for drugs he had given to him previously. He testified further that "Riz" was his "right-hand man" and that he "was going to have [Perez's] phone so any of the customers that [Perez] had for weight or any of the other users that would call . . . he would make sure that the workers had the phones and made sure that they deliver the drugs."
In conversations intercepted on December 2, 2006, McKinnon discussed an impending drug transaction near an Auto Zone store and said he was about to leave his "storage spot." NJSP officers conducting surveillance observed McKinnon at Mini-U Storage in Berlin, where a storage unit was rented in McKinnon's name. McKinnon was seen going into the facility, leaving approximately ten minutes later, and driving to the Auto Zone parking lot where he met with Foster.
McKinnon had conversations with Scott, Maddox, and an unidentified male that were intercepted on December 2 and 3, 2006, in which complaints were conveyed to McKinnon about cocaine he had supplied. The unidentified male complained that the cocaine was "rounded" and that he wanted a cheaper price if it was being "retouched." Maddox told McKinnon of a complaint made by an unidentified white male at the Golden Nugget Bar. Scott also told him, "You know when you sell weight, you can't have it all broken up. You don't know how to do it, man. You crushed it all up, a little too much." Scott instructed him that he had to have it "chunky monkey[, ]" that "you put three gram of cut, all you need is a gram, from off the rock to crush up wit[h] it."
Perez testified that he initially obtained his drugs from Maddox's older brother, Jerald Green, who was known as "Stef." Perez began selling cocaine and crack cocaine to McKinnon and Maddox in 2001. Initially, he sold McKinnon drugs in "8-ball" quantities, which is one-quarter ounce or 3.5 grams. Perez was arrested in 2002 for selling drugs and released from prison in 2003. He resumed selling drugs a few months later and started selling to both defendants as well as to Green. Perez was now able to sell larger quantities, selling McKinnon kilograms of cocaine and selling Maddox up to four-and-one-half ounce quantities. At first, Perez sold drugs directly to Maddox. However, at Maddox's request, Perez agreed to sell drugs to "Chuck, " whom Maddox introduced as his nephew. In the fall of 2006 into January 2007, Perez typically supplied McKinnon with one kilogram of cocaine per week, charging him from $21, 500 to $24, 000 per kilogram. The sales were arranged on the telephone or in person.
Perez identified his own voice and that of both McKinnon and Maddox on several intercepted telephone conversations and testified about each of the conversations. One of the conversations concerned Perez's request to collect some of the $24, 000 McKinnon owed him. In another, McKinnon stated he got a job, delivering auto parts, that made it easy for him to do "drizzy drops, " which Perez explained meant dropping off drugs to customers. In the same conversation, McKinnon advised Perez that he had twelve or thirteen "stacks" for him, which Perez explained was twelve or thirteen thousand dollars that McKinnon owed him. Perez knew that McKinnon also had people who helped him sell drugs, including Scott, whom he introduced as "P, " and someone called "Kill Bill."
On December 19, 2006, Perez asked McKinnon in an intercepted conversation if he "still had a lot of work left?" McKinnon replied, "not really" but said he "might have almost all that money that [he] owe[d]" Perez, that he was in Pennsauken "collecting a couple dollars." McKinnon stated further, "I'm definitely gonna need to get up with you, cause I'm almost running out[.]"
NJSP Detective David Lawyer conducted surveillance of McKinnon on December 26, 2006. He described McKinnon's actions, which, Lawyer stated, appeared to be narcotics transactions, in a McDonald's parking lot, and then at a laundromat, the Echelon Mall, a liquor store, a Rite Aid, and other places. Lawyer based his beliefs on "past experience, " explaining that he had "seen hundreds [of narcotics transactions] done just that way in the past."
In a conversation intercepted on January 20, 2007, Perez told McKinnon that "things are looking bad, meaning [he did not] have a lot of coke to give him." He told McKinnon that he needed to collect money from him because he was "looking to make a move[.]" Perez testified that this meant he needed money to buy more drugs. Perez testified, "I was selling him weight as far as the kilograms of cocaine and he would break the kilogram down. Sometimes he would sell weight and sometimes he would sell bags." He cautioned McKinnon that if he sold "all his cocaine in weight then he won't have any bags for his customers, for bag customers, which is the main source of income." Perez explained that selling bags was more profitable than "selling weight":
Weight is just a quick flip. If I bought a kilogram for 19, 000 I could sell it for 21, 000, you know. And that's $2, 000 that I would make. However, if I took that same kilogram of cocaine for 19, 000 and bagged it up into small bags I'll make like 40, 000. So that's a big difference.
Perez testified that he sold weight to a lot of different people, but McKinnon was his "main, best customer[.]"
Shortly after this conversation, Perez traveled to Arizona to buy drugs, financed in part by $4000 he had received from McKinnon. Perez wanted to get a new source and McKinnon's brother, Green, was going to introduce him to a new connection, Blackstone. Such an introduction was necessary when operating on "that level . . . buying multiple kilograms of cocaine." Their arrangement was for Stef to fly out and Perez to drive in his pick-up truck, which had a secret compartment on the side railings to conceal money en route to Arizona and the cocaine after purchase. Although Perez had ordered five kilograms from the new source, the supplier became suspicious and brought only three kilograms to the sale to avoid the higher penalties for a five-kilogram sale.
However, DEA had placed tracking devices on Perez's vehicles, and followed him to Arizona. Perez was arrested, along with Green and Blackstone, in Arizona on January 24, 2007 as the transaction was completed. Perez immediately admitted he went to Arizona to purchase drugs and to meet a new source. Perez pled guilty in federal court pursuant to a plea agreement to distribution of over five kilograms of cocaine, a charge that carried a possible sentence of ten years to life imprisonment.
On January 25, 2007, search warrants were issued for a number of locations, including Maddox's residence and McKinnon's storage unit. Among the items seized at Maddox's residence were: (1) 0.52 grams of cocaine and 15.2 grams of marijuana; (2) cell phones; (3) money orders and receipts totaling $10, 000; and (4) eight vehicles. From McKinnon's storage unit, the police recovered: (1) baggies used to package narcotics; (2) scales with white residue on them; (3) a strainer; (4) a control weight; (5) several bags and a safe containing what appeared to be marijuana; and (6) a Smith and Wesson .357 magnum revolver.
McKinnon was arrested at a Best Western hotel in Berlin, New Jersey, in possession of almost $5000, two bags of marijuana, four cell phones, a clear pipe used to smoke crack, and white pills believed to be Percocets. In McKinnon's wallet, the police found the title to a 2000 red Cadillac Escalade, which previously belonged to Perez. McKinnon also "had a bag of crack cocaine underneath his boxers, pretty much tucked underneath his genitalia." On the same day the warrants were executed, Maddox, McKinnon, Green, Gephart, Foster, Muldrow, Scott, Goodin, and Flick were arrested.
Daniel Brown, a special agent with DEA, was qualified as an expert in the methods, practices, and terminology used in trafficking and distributing narcotics. He testified that Arizona is a gateway for cocaine to enter the United States. Cocaine is cheaper in Arizona than in New Jersey since, due to security and transportation costs, the price increases as the drug moves further from its source. Because Arizona has a long growing season and many remote areas for hiding farms, it is also a source state for marijuana. In response to a hypothetical question, Brown testified that the assortment of drugs and paraphernalia found in McKinnon's storage locker was indicative of distribution rather than personal use. Brown also explained that the items found with McKinnon when he was arrested were indicative of possession with intent to distribute.
On September 6, 2007, the grand jury returned an indictment against defendants (nine counts against Maddox and seven against McKinnon), and their associates, Gephart, Scott, Foster, and Muldrow. Maddox and McKinnon were both charged with: first-degree racketeering, contrary to N.J.S.A. 2C:41-2(c) or 2C:41-2(d) (count one); and second-degree conspiracy, contrary to N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and (b)(1), and 2C:35-10(a)(1) (count two).
Maddox was charged with seven additional counts: (1) first-degree being a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:2-6 and 2C:35-3 (count three); (2) first-degree distribution of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:2-6 and 2C:35-5(a)(1), (b)(1), and (c) (count seven); (3) second-degree distribution of CDS (methamphetamine), contrary to N.J.S.A. 2C:2-6 and 2C:35-5(a)(1), (b)(9)(a), and (c) (count nine); (4) third-degree distribution of CDS (cocaine) within 1000 feet of school property, contrary to N.J.S.A. 2C:2-6, 2C:35-5, and 2C:35-7 (count twelve); (5) third-degree possession of CDS (cocaine), contrary to N.J.S.A. 2C:2-6 and 2C:35-10(a)(1) (count thirteen); (6) second-degree money laundering, contrary to N.J.S.A. 2C:21-25(a) (count fourteen); and (7) second-degree endangering the welfare of a child, contrary to N.J.S.A. 9:6-1, 9:6-3, and 9:6-8.21, and N.J.S.A. 2C:24-4(a) (count fifteen).
Separate from Maddox, McKinnon was charged with five additional counts: (1) first-degree being a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:2-6 and 2C:35-3 (count four); (2) first-degree possession with intent to distribute CDS (cocaine), contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count five); (3) second-degree possession with intent to distribute CDS (cocaine), contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count six); (4) second-degree possession of a weapon (pistol) during commission of certain crimes (possession with intent to distribute), contrary to N.J.S.A. 2C:35-5 and 2C:39-4.1(a) (count sixteen); and (5) second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b) (count seventeen).
Following a jury trial, Maddox was convicted of all charges, except second-degree endangering the welfare of a child. McKinnon was convicted of all seven charges against him.
Defendants were sentenced on August 7, 2009. Both defendants received life sentences (seventy-five years with thirty years of parole ineligibility) for first-degree being a leader of a narcotics trafficking network (counts three and four), consecutive to a fifteen-year term for first-degree racketeering (count one). Both defendants also were sentenced to concurrent seven-year terms for second-degree conspiracy (count two).
Separately, Maddox was sentenced to concurrent terms of: (1) fifteen years plus five years of parole ineligibility for first-degree distribution of CDS (count seven); (2) seven years for second-degree distribution of CDS (count nine); (3) three years for third-degree distribution of CDS within 1000 feet of school property (count twelve); and (4) three years for third-degree possession of CDS (count thirteen). Maddox also received a sentence of three years for third-degree money laundering (count fourteen), which was consecutive to count three. Maddox's aggregate term was life (seventy-five years), with thirty years of parole ineligibility, plus fifteen years.
McKinnon was separately sentenced to terms of: (1) fifteen years plus five years of parole ineligibility for first-degree possession with intent to distribute CDS (count five), consecutive to count sixteen; (2) seven years for second-degree possession with intent to distribute CDS (count six); (3) seven years for second-degree possession of a weapon during the commission of certain crimes (count sixteen), consecutive to count five; and (4) seven years for second-degree persons not to have weapons (count seventeen). McKinnon's aggregate term mirrored Maddox's: life (seventy-five years), with thirty years of parole ineligibility, plus fifteen years.
Maddox raises the following arguments:
THE DRUG KINGPIN INSTRUCTIONS WERE ERRONEOUS AND PREJUDICIAL.
THE ADMISSION OF HEARSAY EVIDENCE VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AT TRIAL.
THE TRIAL COURT PERMITTED IMPROPER OPINION TESTIMONY AT TRIAL.
IMPROPER IDENTIFICATION EVIDENCE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS.
FAILURE TO INSTRUCT THE JURY ON THE LAW OF ACCOMPLICE LIABILITY WAS HARMFUL ERROR (PLAIN ERROR).
COMMENTS BY THE PROSECUTOR WERE PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.
IMPROPER TESTIMONY ABOUT DEFENDANT'S LACK OF EMPLOYMENT CAUSED AN UNFAIR TRIAL.
THE TRIAL COURT ERRED IN PERMITTING EVIDENCE REGARDING CONTROLLED DANGEROUS SUBSTANCES ALLEGEDLY TESTED BY FEDERAL AUTHORITIES.
DEFENDANT ADOPTS AND INCORPORATES BY REFERENCE ALL ARGUMENTS ADVANCED IN THE BRIEF SUBMITTED BY CO-DEFENDANT JASON MCKINNON.
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
McKinnon raises the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE CONTRADICTORY, CONFUSING, AMBIGUOUS, AND ERRONEOUS INSTRUCTION ON THE LAW OF A LEADER OF A NARCOTICS TRAFFICKING NETWORK. (Not Raised Below)
A. THE INSTRUCTION WAS CONTRADICTORY AND CONFUSING.
B. THE INSTRUCTION OMITTED AN ESSENTIAL ELEMENT OF THE CRIME.
C. THE TRIAL COURT FAILED TO MOLD THE LAW TO THE FACTS OF THIS VERY COMPLICATED CASE IN WHICH THE MODEL JURY CHARGE INCLUDES INNUMERABLE PERMUTATIONS THAT COULD RESULT IN A GUILTY VERDICT.
D. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE DEFENDANT COULD AGREE TO PARTICIPATE IN THE CRIME BUT BE CONVICTED OF A LESSER OFFENSE BASED ON HIS OWN CRIMINAL INTENT AND PARTICIPATION IN THE CRIME.
E. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT THEY HAD TO BE UNANIMOUS WITH RESPECT TO THE PREDICATE ...