The opinion
Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-19-2005
USA v. Cummings
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3899
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3899
UNITED STATES OF AMERICA
v.
GREGORY CUMMINGS,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(Dist. Court No. 02-cr-00934)
District Court Judge: Honorable William G. Bassler
_________________________
Before: ALITO, AMBRO and LOURIE,* Circuit Judges.
Submitted pursuant to LAR 34.1(a)
September 26, 2005
(Filed: October 19, 2005)
*
Honorable Alan D. Lourie, Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.
______________________
OPINION OF THE COURT
______________________
PER CURIAM:
Gregory Cummings appeals his conviction and sentence for conspiracy to import a
controlled substance into the United States. We affirm.
I.
Gregory Cummings and Leeford Reynolds recruited Thomas Staunton and Mark
Livingstone to smuggle cocaine into the United States. Cummings had regularly sold
Staunton and Livingstone crack cocaine. Staunton was apprehended at Newark
International Airport while attempting to smuggle cocaine into the country. Staunton
agreed to cooperate with law enforcement officers, who gave him a wire and allowed him
to proceed to the airport lobby to meet Cummings and Reynolds as planned. As Staunton
delivered the cocaine he recorded his conversation with Cummings and Reynolds. Law
enforcement officers then placed Cummings and Reynolds under arrest. Both made
inculpatory post-arrest statements at the scene.
Cummings and Reynolds were indicted for conspiracy to import a controlled
substance into the United States. The District Court declined to hold a pre-trial
suppression hearing concerning the post-arrest statements made by the two defendants.
At trial, however, the District Court suppressed Reynolds’ statement only. Shortly
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thereafter, Reynolds pleaded guilty to using a lesser charge. The jury found Cummings
guilty of conspiracy to import a substance containing cocaine base into the United States
in violation of 21 U.S.C. §§ 952(a) and 963. The jury also found that the crime involved
more than 50 grams of cocaine base.
Cummings makes five arguments on appeal: first, that conviction required proof
that Cummings knew the controlled substance was cocaine base; second, that insufficient
evidence was offered to prove that the substance seized contained cocaine base; third, that
the District Court erred by allowing testimony that Cummings had sold drugs to two
witnesses; fourth, that the District Court erred by not holding a pre-trial suppression
hearing and by later informing the jury that Reynolds had pleaded guilty to a crime; and
fifth, that Cummings’ ten-year sentence was unreasonable. Cummings requests a
judgment of acquittal, a new trial, or resentencing.
II.
Cummings first argues that his conviction is invalid because the government did
not prove that he knew the controlled substance being imported was cocaine base. His
contention fails because such knowledge is not an element of conspiracy to import a
controlled substance.
Determining the mens rea element of an offense is a pure question of law over
which we exercise plenary review. See United States v. Barbosa, 271 F.3d 438, 452 (3d
Cir. 2001). Conviction for conspiracy requires proof that the defendant has “knowledge
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of the illegal objective contemplated by the conspiracy.” United States v. Mastrangelo,
172 F.3d 288, 291 (3d Cir. 1999). The illegal objective of the conspiracy in this case was
to import a controlled substance in violation of 21 U.S.C. §§ 952(a) & 963. Section
952(a) makes it unlawful to import “any controlled substance in schedule I or II of
subchapter I of this chapter”; section 963 makes “[a]ny person who attempts or conspires
to commit any offense defined in this subchapter” subject to “the same penalties as those
prescribed for the offense, the commission of which was the object of the attempt or
conspiracy.” Neither section makes knowledge of the specific identity of the controlled
substance an element of the crime. Thus, Cummings’s conspiracy conviction did not
require the government to prove that he knew the controlled substance in question was
cocaine base.
Our interpretation of sections 952(a) and 963 is confirmed by United States v.
Barbosa, which held that “a defendant who is in actual possession of a particular
controlled substance, while intending to distribute another, may be punished for the drug
with which he is found to be in possession.” 271 F.3d at 459. Although Barbosa
interpreted section 841(a)(1), its reasoning emphasized the general requirements of the
federal drug statutes and is fully applicable to our case:
The drug statutes require specific knowledge or intent as to a general
category of unlawful items. The specific unlawful items, however, are
found in the penalty section of the scheme. Thus, the structure and plain
text of § 841 affords no support for a requirement that the Government must
prove more than the defendant's knowledge that he was trafficking in a
controlled substance. ... Moreover, we see no reason, consistent with
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Congress’s overall intent in promulgating the drug laws, to extend the mens
rea requirement to the precise controlled substance at issue, even in the face
of having concluded that it may be an element of the crime. Barbosa’s
awareness that he was trafficking in what he believed was a controlled
substance, albeit a different type for which he was arrested, is all that is
required to satisfy the mens rea portion of the substantive offense.
Id. at 458. We do not consider Cummings’ claim that Barbosa was wrongly decided
because we are bound to follow the holdings of prior panels. See Third Circuit I.O.P. 9.1;
In re Continental Airlines, Inc., 134 F.3d 536, 542 (3d Cir. 1998).
Cummings’ reliance on United States v. Thomas, 114 F.3d 403 (3d Cir. 1997), and
United States v. Idowu, 157 F.3d 265 (3d Cir. 1998), is misplaced. In both cases a drug
conspiracy conviction was reversed because of insufficient evidence that the defendant
knew of a plan involving any controlled substance; neither case held that the defendant
must know the specific identity of the controlled substance. See Thomas, 114 F.3d at
405-06 (noting it was “speculative ... that Thomas knew that drugs were involved” and
finding “that the evidence presented at trial [was] insufficient to prove beyond a
reasonable doubt the essential element that [Thomas] knew that the purpose of the
agreement was the specific unlawful purpose charged in the indictment, i.e., the
possession of a controlled substance with intent to distribute.”) (emphasis added); Idowu,
157 F.3d at 267 (concluding “that the evidence that Idowu knew that heroin or some other
controlled substance was involved is lacking here.”) (emphasis added).
In sum, statutory text and our prior case law both make clear that Cummings did
not need to know the identity of the illegal drug in order to be convicted of conspiracy to
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import a controlled substance. Thus, the government’s failure to prove such knowledge
did not warrant a judgment of acquittal.
III.
Cummings next claims the jury lacked sufficient evidence to find that the
substance seized was cocaine base. We disagree.
This Court exercises plenary review over challenges to the sufficiency of the
evidence. United States v. Taftsiou, 144 F.3d 287, 290 (3d Cir. 1998). The “critical
inquiry on review of the sufficiency of the evidence to support a criminal conviction must
be ... to determine whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see also
United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001).
In this case the jury’s determination that the substance seized was cocaine base
was supported by at least three pieces of evidence. First, the government introduced a
laboratory report concluding that the seized substance was cocaine base. Second, Brian
Hall, the expert chemist who prepared the report, testified that the substance was cocaine
base and explained the methods he used to make this determination. Third, Hall’s
conclusion was reinforced by testimony from Greg Hilton, an experienced DEA agent
who testified as an expert in cocaine trafficking and the value of cocaine.
Cummings’ claim that Hall provided “ambiguous” and “confusing” testimony
finds no support in the record. Hall clearly stated and explained his belief that the
6
substance seized at the airport contained cocaine base. Cummings confuses the issue by
incorrectly suggesting that Hall’s finding of cocaine base is at odds with his detection of
L-cocaine, which Cummings wrongly asserts is “also known” as cocaine hydrochloride.
In fact, as Hall testified, L-cocaine may take either base or salt form; cocaine
hydrochloride is a salt form of L-cocaine, but not all L-cocaine is cocaine hydrochloride.
Thus, the mere fact that Hall detected the presence of L-cocaine does not imply that the
substance seized was cocaine hydrochloride. To the contrary, the tests Hall conducted
unambiguously demonstrated that the L-cocaine involved in this conspiracy was cocaine
base.
Cummings argues that Hilton should not have been allowed to testify on the
identity of the drugs seized because he did not participate in the arrest and had no training
in chemistry or pharmacology. As a qualified expert, Hilton did not need to participate in
the operation. Nor did he need training in chemistry or pharmacology, as his testimony
regarding the type of drug seized was based not on any asserted expertise in such areas
but on his knowledge of different cocaine forms, which was gained from his experience
as an undercover agent. We need not decide whether Hilton’s testimony was sufficient to
establish the identity of the controlled substance because the jury’s finding was amply
supported by persuasive and uncontroverted laboratory evidence.
Finally, no reasonable person would doubt Hall’s testimony simply because he
could not recite from memory the chemical formula of cocaine base. The persuasiveness
7
of Hall’s evidence rests on the reliability of the laboratory tests he conducted and on his
competence to perform them; the jury could reasonably have found that Hall’s inability to
recall the detailed chemical formula at trial had no bearing on these considerations.
In sum, Cummings’ arguments against the validity of the evidence as to the
identity of the controlled substance seized are all without merit.
IV.
Cummings next argues that the District Court erred by allowing evidence that
Cummings had dealt drugs to two testifying witnesses. His argument is based on several
distinct theories: first, that the evidence was inadmissible character evidence under Fed.
R. Evid. 404(b); second, that the probative value of such evidence was outweighed by its
prejudicial effect; and third, that the testimony was inadmissible under Rule 609. We find
Cummings’ 404(b) argument plausible, but do not decide the question because any error
was harmless.
A.
This Court reviews a district court’s decision to admit evidence for abuse of
discretion. See In re Japanese Electronic Products, 723 F.2d 238, 260 (3d Cir. 1983),
rev’d on other grounds, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
(1986). Fed. R. Evid. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
8
mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of
trial ....
Rule 404(b) “does not extend to evidence of acts which are ‘intrinsic’ to the
charged offense.” United States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002) (quoting Fed.
R. Evid. 404(b) advisory committee’s note; United States v. Williams, 900 F.2d 823 (5th
Cir. 1990)). “[A]cts are intrinsic when they directly prove the charged conspiracy.”
Cross, 308 F.3d at 320. Although other Circuits have held that evidence is intrinsic if it is
“inextricably intertwined” with or “completes the story” of the charged offense, the Third
Circuit has thus far reserved judgment on this question. See id. at 320 n.19.
If the evidence of prior bad acts does not concern acts intrinsic to the charged
offense, the district court must determine whether such evidence is admissible under Rule
404(b). “The Supreme Court gives four guidelines on the admissibility of prior bad act
evidence: (1) the evidence must have a proper purpose under Rule 404(b); (2) it must be
relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under
Rule 403; and (4) the court must charge the jury to consider the evidence only for the
limited purpose for which it is admitted.” United States v. Sampson, 980 F.2d 883, 886
(3d Cir. 1992) (interpreting Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).
B.
In our view, Cummings’ past drug sales fall under the category of evidence that
does not directly prove the charged conspiracy but that is nevertheless “inextricably
9
intertwined” with or “completes the story” of the charged offense. The District Court
thought such evidence admissible in light of the holdings of other Circuits, but, as noted
above, our Court has not yet decided whether such evidence is subject to Rule 404(b).
See Cross, 308 F.3d at 320 n.19. For the reasons stated below, we need not decide this
question here.
Assuming without deciding that the evidence of Cummings’ past drug sales should
not have been admitted, we find that any such error was harmless due to the
overwhelming evidence of Cummings’ guilt. As the government accurately notes in its
brief:
Cummings was caught and arrested at the scene of the crime, waiting for
Staunton at the airport while Staunton was smuggling drugs into the United
States. Upon his arrest, Cummings confessed to law enforcement officers.
In addition to the confession and having been caught at the scene of the
crime, the Government also introduced an inculpatory tape-recording of
Cummings’ conversation with Staunton at the airport, and telephone records
corroborating the numerous conversations between Cummings and his two
couriers. There was no viable defense theory of the case, and the jury
convicted Cummings after less than two hours of deliberations.
U.S. Br. at 23-24 n.23 (internal citations omitted).
Finally, while our harmless error analysis is sufficient to dispose of Cummings’
Rule 609 claim, we note that Rule 609 does not apply to the evidentiary issue raised here,
as the statements regarding Cummings’ past drug sales were not offered to impeach his
testimony and in any case did not involve “evidence that any witness has been convicted
of a crime,” Fed. R. Evid. 609(a)(2) (emphasis added). We thus reject Cummings’
10
argument that the prejudice engendered by testimony of his prior drug dealing entitles
him to new trial.
V.
Prior to trial the District Court declined to hold a pre-trial suppression hearing to
determine the admissibility of the co-defendants’ post-arrest statements. After the trial
had commenced the District Court ruled that Cummings’ statement was voluntary but that
Reynolds’ confession was inadmissible. Reynolds subsequently pleaded guilty to using a
communications facility to facilitate the commission of a drug offense. When trial
resumed, the District Court informed the jury that Reynolds had pleaded guilty to “a
crime,” and instructed them not to consider that fact in determining whether Cummings
was guilty. Cummings claims that the District Court committed two errors that denied
him the right to a fair trial: not holding a pre-trial suppression hearing and informing the
jury of Reynolds’ plea. We address each claim in turn.
A.
We review the District Court’s decision not to hold a pre-trial suppression hearing
for abuse of discretion. See In re Japanese Electronic Products, 723 F.2d at 260. Fed. R.
Crim. P. 12(b)(3)(C) requires a motion to suppress evidence to be raised before trial.
“Although Rule 12 does not by its terms specify when such a motion entitles a defendant
to a pretrial evidentiary hearing, ... a defendant’s moving papers must demonstrate a
‘colorable claim’ for relief. In order to be ‘colorable,’ a defendant’s motion must consist
11
of more than mere bald-faced allegations of misconduct. There must be issues of fact
material to the resolution of defendant’s constitutional claim.” United States v. Voigt, 89
F.3d 1050, 1067 (3d Cir. 1996) (internal citations omitted); see also United States v.
Richardson, 764 F.2d 1514, 1526-27 (11th Cir. 1985) (“[A] trial court may refuse a
defendant’s request for a suppression hearing and motion to suppress if the defendant
fails to allege facts that, if proved, would require the grant of relief.”).
The District Court’s decision not to hold a pre-trial suppression hearing was
reasonable because co-defendants Cummings and Reynolds failed to allege facts
warranting relief when they submitted their pre-trial motions. Cummings argued that the
failure to audio-tape his post-arrest statements was troubling because recording
equipment was present at the time and place of his arrest. Neither Cummings nor
Reynolds alleged any other facts favoring suppression. On appeal, Cummings does not
even dispute the District Court’s conclusion that the failure to audio-tape Cummings’
confession did not cast doubt upon the voluntariness of his statement. Given the absence
of any other factual basis for challenging the validity of Cummings’ confession, the
court’s decision not to hold a pre-trial hearing was not an abuse of discretion.
Moreover, Cummings suffered no harm from the failure to hold a pre-trial hearing.
Cummings does not deny that his post-arrest statement was knowing, voluntary and
admissible. Although Reynolds’ statement was deemed otherwise, Cummings lacks
standing to challenge the District Court’s failure to hold a pre-trial suppression hearing
12
concerning Reynolds’ statement. Cf. Alderman v. United States, 394 U.S. 165, 174
(1969) (“No rights of the victim of an illegal search are at stake when the evidence is
offered against some other party.”).
B.
Cummings next argues that the District Court erred in informing the jury that
Reynolds pleaded guilty to a crime. The practical result of this error, Cummings claims,
was to deny his right to a fair trial. We reject both arguments.
An objection to a jury charge raised for the first time on appeal is reviewed for
plain error. See United States v. Olano, 507 U.S. 725, 731 (1993); United States v.
Restaino, 369 F.2d 544, 545 (3d Cir. 1966). A defendant is not entitled to a mistrial
because a co-defendant pleads guilty during trial. See United States v. Panepinto, 430
F.2d 613, 615 (3d Cir. 1970). “Unless undue emphasis is placed upon the fact that such
pleas have been made, informing the jury that such pleas have been entered is not
ordinarily erroneous.” Restaino, 369 F.2d at 545 (internal citation omitted). “Such
information or evidence has been held to be proper ... where the pleas are taken during
trial.” Id. “However, cautionary instructions should be given.” Id. (citing United States
v. Aronson, 319 F.2d 48, 52 (2d Cir. 1963)).
Applying these principles to the facts of this case, we find no error. The District
Court advised the jury as follows:
You’ll notice that Mr. Reynolds is not sitting at the table. This morning Mr.
Reynolds has pleaded guilty to a crime. I want to caution you that his guilty
13
plea is not evidence, cannot be evidence in any way against Mr. Cummings,
the defendant, who is on trial. And we’ll proceed with that caution in mind.
App. 14. This short and solitary explanation of Reynolds’ absence did not “unduly
emphasize” the fact of his guilty plea. Its disclosure was accompanied by a clear
cautionary instruction, which was reemphasized at the close of trial. Moreover, the
District Court stated only that Reynolds had pleaded guilty to “a crime”; thus, the jury had
no reason to infer the existence of a drug conspiracy, much less Cummings’ involvement
in such a conspiracy, from the mere fact of Reynolds’ plea.
Cummings’ contention that “curative instructions are useless” is contrary to this
Court’s teaching in Restaino, which expressly instructed district courts to give cautionary
instructions when informing juries that a co-defendant had pleaded guilty. See 369 F.2d
at 545; see also Zafiro v. United States, 506 U.S. 534, 540 (1993) (noting that juries are
presumed to follow cautionary instructions). Our directive to provide such instructions
presupposes their potential effectiveness as a means of dispelling prejudice, and we find
no evidence that the instruction offered here was inadequate. In any case, the
overwhelming evidence of Cummings’ guilt rendered any error harmless.
In sum, the District Court did not abuse its discretion in refusing to hold a pre-trial
suppression hearing; nor did it violate Cummings’ right to a fair trial by apprising the jury
of Reynolds’ plea. Given the absence of error, the District Court did not abuse its
discretion in denying Cummings’ motion for a new trial.
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VI.
Finally, Cummings challenges his sentence on two grounds. First, he argues that
his ten-year sentence is unreasonable because it is three times the length of the sentence
imposed on Reynolds, who allegedly engaged in virtually identical and arguably worse
conduct than Cummings. Second, Cummings contends that the District Court violated the
principles of United States v. Booker, 125 S. Ct. 738 (2005), by imposing a four-point
enhancement based on leadership role in the offense without submitting this issue to the
jury. Given that Cummings received the minimum sentence required by statute, the first
argument fails and the second argument need not be considered.
The jury found Cummings guilty of conspiring to import more than 50 grams of
cocaine base into the United States. 21 U.S.C. § 960(b)(1)(C) provides that a person who
knowingly imports “50 grams or more of a mixture or substance described in
subparagraph (B) which contains cocaine base ... shall be sentenced to a term of
imprisonment of not less than 10 years ....” Cummings was sentenced to 10 years, the
minimum sentence required by law.
Cummings’ sentence cannot be deemed unreasonable because the District Court
did not have discretion to impose a lower sentence. Reynolds’ less severe sentence is
irrelevant because he was not convicted of the same crime; instead, he pleaded guilty to a
separate offense. Given that the “enhancement for leadership role” guideline did not have
any effect on Cummings’ sentence, this Court need not consider Cummings’ Booker
15
argument. See United States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005) (noting
that “any error in the guidelines calculations is harmless” because “the district court
correctly imposed the statutory mandatory minimum sentence”; and concluding “there is
no merit to Raad’s claim that his sentence is unconstitutional in light of United States v.
Booker ... [because] Raad was sentenced to the mandatory minimum sentence based on
the facts to which he pleaded guilty.”); United States v. Painter, 400 F.3d 1111, 1111 (8th
Cir. 2005) (“[B]ecause the sentence is mandated by statute, it is free of error under the
Supreme Court’s recent decision in Booker v. United States”).
VII.
For the above reasons, we affirm.
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