The opinion
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-27-2008
USA v. Hawkins
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4279
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4279
UNITED STATES OF AMERICA,
v.
MONROE HAWKINS,
Appellant.
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 01-cr-00025-1)
District Judge: Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
December 11, 2007
Before: RENDELL and STAPLETON, Circuit Judges,
and IRENAS,* Senior District Judge.
(Filed: February 27, 2008)
__________
OPINION OF THE COURT
__________
*
Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
IRENAS, Senior United States District Judge.
A jury found Appellant, Monroe Hawkins, guilty of four counts of drug-related
offenses. Hawkins appeals the District Court’s Judgment of Conviction and Sentence,
under which Hawkins received twenty years imprisonment for two counts, and terms of
forty-eight and sixty months for the remaining counts, to run concurrently. Hawkins
contends that: (1) the verdict is against the weight of the evidence; (2) the jury charge
was misleading; (3) the District Court erred in evidentiary rulings during trial; (4) the
District Court erred in treating the sentencing guidelines as mandatory; and (5) the
District Court erred in giving Hawkins a leadership role enhancement at sentencing. We
will affirm.
I.
Because we write only for the parties, who are familiar with the factual context
and procedural history of the case, we set forth only those facts necessary to our analysis.
A four-day jury trial was held on the allegations in the Superseding Indictment, which
charged Hawkins with: unlawful distribution and possession with the intent to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count One);
unlawful use of a communication facility to facilitate the distribution of cocaine in
violation of 21 U.S.C. § 843(b) (Count Three); interstate travel in aid of drug trafficking
in violation of 18 U.S.C. § 1952(a)(3) (Count Four); and criminal conspiracy to distribute
2
five kilograms or more of cocaine (Count Six).1 A jury found Hawkins guilty of these
four counts, and determined that the quantity of cocaine involved under Counts One and
Six was five kilograms or more.
The Pre-Sentence Investigation Report was prepared, which determined that the
amount of cocaine involved was at least fifty kilograms but fewer than 150 kilograms,
resulting in a base offense level of thirty-six. The report further calculated a four-level
increase for an organizer or leader role under United States Sentencing Guideline section
3B1.1(a), making the offense a level forty. Because Hawkins had a criminal history
category of three, the Report concluded that the range of imprisonment under the
Guidelines was from 360 months to life.
At sentencing, District Court Judge Caldwell, upon the recommendation of the
government, adjusted the drug quantity to a level involving five to fifteen kilograms of
cocaine, and reduced the criminal history category from three to two. Those changes
resulted in a guideline range of 210 to 262 months. Judge Caldwell, however, noted that
the recalculations were “academic” because the United States had filed an Information
that would require the Court to impose a mandatory minimum statutory term of
imprisonment of 240 months, or twenty years, pursuant to 21 U.S.C. § 841(b)(1)(A)
1
Counts Two and Five were directed at co-defendant, Maurice Young, individually.
Count Seven, in which the government sought forfeiture of $333,000.00, was dismissed
at the government’s request.
3
(“§ 841”).2 The Court sentenced Hawkins to twenty years imprisonment for Counts One
and Six, and forty-eight and sixty months for Counts Three and Four, respectively. Judge
Caldwell ordered that the sentences be served concurrently.
Hawkins then filed a motion under 28 U.S.C. § 2255, alleging ineffective
assistance of counsel due to his attorney’s failure to appeal the judgment of conviction
and sentence. The § 2255 motion was granted, and a timely appeal followed.3
II.
Hawkins contends that the verdict is against the weight of the evidence. “When a
defendant challenges the sufficiency of the evidence supporting a verdict, we must review
the evidence in the light most favorable to the government.” See United States v. Gibbs,
190 F.3d 188, 197 (3d Cir. 1999) (noting that the appellant “bears a heavy burden, for we
must uphold his conviction if any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.”) (citing United States v. McGlory,
968 F.2d 309, 321 (3d Cir. 1992)). “It is not for us to weigh the evidence or to determine
2
Section 841 requires that the Court sentence any person who knowingly or
intentionally distributes five kilograms or more of cocaine to a minimum ten year term of
imprisonment. However, it provides the caveat that, “[i]f any person commits such a
violation after a prior conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment which may not be less than 20 years and not
more than life imprisonment and if death or serious bodily injury results from the use of
such substance shall be sentenced to life imprisonment . . . If any person commits a
violation . . . after two or more prior convictions for a felony drug offense have become
final, such person shall be sentenced to a mandatory term of life imprisonment[.]”
21 U.S.C. § 841.
3
This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
4
the credibility of the witnesses.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.
1996) (citation omitted). A court must sustain the verdict if “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Id.
First, Hawkins argues that the evidence presented at trial is insufficient to prove
beyond a reasonable doubt that he distributed five kilograms or more of cocaine. This
argument is based upon the purportedly inconsistent testimony and bias of government
witnesses due to deals they made with the government in exchange for their testimony.
The credibility of witnesses, however, is a determination exclusively within the
province of the jury. “It is not for us to weigh the evidence or to determine the credibility
of the witnesses.” Voigt, 89 F.3d at 1080. Indeed, the District Court cautioned that the
jury could consider the fact that some witnesses were accomplices, made plea agreements
with the government, and provided testimony in exchange for immunity. Judge Caldwell
told the jury that when they decide whether or not to accept testimony of such witnesses,
the testimony should be “scrutinized with great care and viewed with particular caution.”
Despite this cautionary advice, the jury found at least some of the testimony
credible. After reviewing the record, it is clear that even if the jury only relied upon some
of the testimony provided, particularly that of Christian Bennett, it would be enough to
convict Hawkins of distributing five or more kilograms of cocaine. The evidence, when
viewed in the light most favorable to the government, is sufficient for any reasonable
juror to find the essential elements of the crime – that Hawkins distributed five kilograms
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or more of cocaine – beyond a reasonable doubt.
Next, Hawkins contends that the evidence is insufficient to prove beyond a
reasonable doubt that he is guilty of involvement in a conspiracy to distribute cocaine.
To prove the existence of a conspiracy, the government is required to establish a unity of
purpose among the alleged conspirators, an intent to achieve a common goal, and an
agreement to work together toward that goal. See Gibbs, 190 F.3d at 197. “The court
must determine whether all the pieces of evidence, taken together, make a strong enough
case to let a jury find [the defendant] guilty beyond a reasonable doubt.” United States v.
Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (quotations omitted) (alteration in original).
If found credible, the testimony of Bennett alone would be sufficient for a jury to
find beyond a reasonable doubt that Hawkins engaged in a criminal conspiracy to
distribute cocaine. Bennett testified that he inquired to Hawkins about making drug runs
and soon thereafter traveled with Hawkins, and then on his own, to New York City. He
testified that he traveled with Hawkins’s money, purchased cocaine, and brought it back
to Harrisburg for distribution. Hawkins paid Bennett for these services. This testimony
reveals that Bennett and Hawkins worked in unison to achieve a common goal of
obtaining cocaine for distribution in Harrisburg.
Hawkins admits that the evidence establishes that he used two individuals,
Rosenburger and Bennet, to obtain cocaine from New York, which he would distribute to
a dealer, Heim. He also concedes that the evidence establishes that he and Heim may
6
have secured cocaine from the same source in New York, but argues that Heim was
involved in his own cocaine conspiracy with a man named Maneri. While this may be
true, “[t]o sustain a conspiracy conviction, the contention that the evidence also permits a
less sinister conclusion is immaterial. . . . The evidence need not be inconsistent with
every conclusion save that of guilt.” Brodie, 403 F.3d at 134 (citations and quotations
omitted).
While the evidence might support an inference that Hawkins was simply working
side-by-side with other individuals in procuring and distributing drugs, in viewing the
testimony in the light most favorable to the government, a rational juror could find
beyond a reasonable doubt that Hawkins conspired with other individuals, and Bennett in
particular, in purchasing cocaine for distribution.
We will also uphold the jury verdict finding that Hawkins traveled in interstate
commerce in aid of cocaine trafficking. Contrary to Hawkins’s assertion that a pattern of
interstate travel is required, Bennett’s testimony that he traveled from Pennsylvania to
New York on one occasion establishes a violation of 18 U.S.C. § 1952. Bennett testified
that he traveled to New York with Hawkins so that Hawkins could introduce him to the
source of the cocaine supply. He stated that Hawkins advised him on avoiding detection
when bringing money to the source of supply, and returning to Harrisburg with cocaine.
Witness Rosenberger also testified that he was an interstate drug runner for Hawkins.
That the jury found this testimony credible, and did not believe Hawkins’s testimony to
7
the contrary, is not grounds for this Court to overturn the verdict.
III.
In answering the jury’s question as to what constitutes distribution or possession of
cocaine, the District Court first provided an example illustrating the difference between
the two charges, and then explained to the jury what they could find based upon the
outcome of their fact finding.4
4
Judge Caldwell stated as follows:
“We've received your message, folks. Your question or your statement is: We, the jury,
need to have the charge of distribution or possession explained again. . . .
When the government charges - - now I'm not talking about this case, I'm talking
generally. When the government charges someone in a drug case, they charge them in
this language that's pretty legalese, and when I explain to you the elements of the offense,
I guess I explain that in language that we're used to working with all the time which may
be somewhat new to you. So what I'm going to try to do is explain it in simple everyday
language, and hopefully if I make any errors in what I say, it will be called to my
attention.
The government has charged the defendant with distributing cocaine and/or being in
possession of cocaine with intent to deliver. That's just the language. I think in this case
the proof, if you accept it, relates more to distribution than it does to possession with
intent to distribute.
If I’m stopped in my car and I have a $20 bag of cocaine, I’m probably going to get
charged with possession. If I get stopped in a car with 5 kilograms of cocaine, I’m going
to get charged with possession of cocaine with intent to deliver because you can draw the
inference that the small quantity is for personal use and 5 kilograms is possession with the
intent to deliver, and you infer the intent from the circumstances, the quantity of the drugs
just says to most people, ‘Well, that’s not for personal use.’ So they’re the difference in
the two forms of possession.
If you believe the government’s case or if you accept it in this case, I guess at one time or
another you could say the defendant was in possession, either constructive or actual, of
cocaine with the intent to deliver. You could also, if you accept the government’s case,
determine that he distributed or was responsible for distributing quantities of cocaine to
be determined. So it just depends on how far your fact finding has gotten as to whether
any of those things apply. . . .
8
Hawkins argues that the District Court’s explanation impermissibly “constituted a
mandatory presumption by directly foreclosing independent jury consideration of whether
the facts proved established certain elements of the offense with which [he] was
charged.” United States v. Korey, 472 F.3d 89 (3d Cir. 2007) (citation and quotations
omitted).
We review the trial court’s expression in charging the jury for abuse of discretion.
See United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995). We find that the
District Court’s response did not take away the jury’s function of finding each element
beyond a reasonable doubt. Rather, it explained, in context, what the jurors could find if
they believed the evidence presented at trial. When viewed in light of the evidence
presented at trial, “the charge as a whole fairly and adequately submit[ted] the issues in
the case to the jury.” Zehrbach, 47 F.3d at 1264.
IV.
Next we turn to Hawkins’s contentions regarding the purportedly erroneous
evidentiary rulings. Hawkins appeals the District Court’s admission of (1) an audiotaped
conversation and (2) a witness’s summary of that conversation for the jury prior to
(A discussion was held off the record at side bar)
In no way in my remarks did I intend to emphasize the government’s case or anything
else. I’m really not talking about the government’s case. I’m just using the phrase if you
believe, you can find. So, you know, in my mind I’m not on the jury, and I’m not
attempting to indicate in any way what your fact finding function should result in. I’m
just trying to use illustrations and language that might simplify this whole thing for you.
So hopefully that will enable you to continue your deliberations. You may retire.
9
playing the tape. Testimony regarding the tape was first given in response to a question
posed by Hawkins’s counsel, Thornton, on cross-examination. Tillman, a Narcotics agent
for the Pennsylvania Office of the Attorney General, Bureau of Narcotics Investigation
and Drug Control, was called as a government witness, and was cross-examined by
Thornton about his investigation of Hawkins. The questioning went as follows:
Thornton: And in fact throughout this investigation, even to the very end,
you were never able to have anyone actually receive any cocaine from Mr.
Hawkins, were you?
Tillman: There were people that received cocaine.
Thornton: No one that you saw, you didn’t see any cocaine that came from
Mr. Hawkins, you didn’t send anybody to his house that brought out cocaine,
you didn’t videotape him, audiotape him selling cocaine, did you?
Tillman: There was an audiotape made of a drug transaction, potential drug
transaction, with Mr. Hawkins that I’m aware of. . . .
Thornton: Now the audiotape that you just described, you said somebody
tried, you had somebody call Mr. Hawkins and try to set up a cocaine buy
from him. Right?
Tillman: Actually I did not, the Drug Enforcement Administration did.
Thornton: Were any drugs ever delivered as a result of that conversation?
Tillman: No sir, they were not.
On re-direct examination, the government followed-up on this line of questioning.
Behe, on behalf of the government, asked Tillman if he had listened to the tape to which
he referred. Tillman stated that he listened to the tape and recognized one of the voices as
that of Hawkins. Thornton then objected on the grounds that Tillman’s testimony
violated the Best Evidence Rule, and constituted hearsay. On the Court’s prompting,
Thornton requested that the Court play the tape for the jury, which it did. (Id. At 542-43).
First, however, the Court allowed Tillman to summarize the tape.
10
Hawkins now argues that his Best Evidence objection was fundamentally an
objection to the authentication of the conversation. Because, he argues, no foundation
was given to determine whether the tape contained what Tillman said it contained, it
should not have been admitted into evidence. Furthermore, he states that he was
prejudiced because he was unable to cross-examine the other person whose voice was
purportedly on the tape.5
The record reveals, however, that Thornton never objected to the Court playing the
tape during trial. His only objection was to Tillman’s summary of the contents of the
tape. Indeed, he requested that the court play the tape. Thus, we review the District
Court’s admission of the tape for plain error because no objection to the admission was
made below. See United States v. Jake, 281 F.3d 123, 132 (3d Cir. 2002) (“A plain error
is one which is clear or obvious . . . In plain error cases, the defendant bears the burden
of persuasion that a plain error has occurred.” (internal citations and quotations
omitted)).6
5
Hawkins also notes several times that the tape was inaudible. However, he did not
make any such objection during trial, and does not appear to include this as a basis of
appeal.
6
A court can grant relief under plain error review if: “(1) the District Court committed
an ‘error,’ (2) the error is ‘plain,’ and (3) the error ‘affect[s] substantial rights.’. . . An
error is ‘[a] deviation from a legal rule.’. . . It is ‘plain’ when it is ‘clear under current
law.’. . . And, it ‘affect[s] substantial rights’ when it is ‘prejudicial,’ i.e., it ‘affect[s] the
outcome of the district court proceedings.’ . . . Even if these requirements are satisfied,
the court should only exercise discretion to grant relief ‘in those circumstances in which a
miscarriage of justice would otherwise result.’” United States v. Harris, 471 F.3d 507,
511 (3d Cir. 2006) (internal citations omitted) (alterations in original).
11
As noted by Yohn v. Love, 76 F.3d 508, 517 n.15 (3d Cir. 1996), “the issue of [a]
tape's admissibility is left to the sound discretion of the trial judge, who is in the best
position to ‘determine the audibility of [a] tape and its trustworthiness as evidence.’”
Defendant has not satisfied his burden of showing that a plain error occurred; he has cited
no rule from which the District Court deviated, and has not shown that but for the error,
the jury would not have found him guilty. Indeed, the evidence at trial of Hawkins’s guilt
was overwhelming. The decision to admit the tape was within the reasonable discretion
of the District Court, and thus its decision was not plain error.
We review the decision to overrule the objection and allow Tillman to testify as to
the contents of the tape for abuse of discretion. See United States v. Serafini, 233 F.3d
758, 768 (3d Cir. 2000). The District Court permitted Tillman to summarize the contents
of the tape, and provided Hawkins with the opportunity to cross-examine Tillman on his
testimony. Additionally, Hawkins himself testified to having the conversation on the
tape, but offered the explanation that he did not use the word “brick,” as Tillman stated,
but rather said “ric,” a purportedly short-hand version for discussing receivers and
converters. When viewing the totality of the District Court’s actions, its decision to allow
Tillman to testify was not an abuse of discretion, particularly because it allowed the jury
to hear the tape about which Tillman testified.
Finally, Hawkins argues that the District Court erred in restricting the cross-
examination of Joseph Heim. He claims that when the District Court limited Heim’s
12
testimony about his conspiracies with other individuals, the jurors were prevented from
seeing that Heim was confusing the individuals with whom he was acting. We review the
District Court’s decision limiting Hawkins’s ability to cross-examine a government
witness for abuse of discretion. See Serafini, 233 F.3d at 768 n.14.
Hawkins was permitted to extensively cross-examine Heim about his drug
trafficking activities with individuals other than Hawkins. Indeed, the Court
acknowledged that Heim had multiple sources for cocaine. Although Hawkins contends
that the District Court refused to allow counsel to inquire into the quantities of cocaine
involved between Heim and Maneri, the record reveals that Heim testified that while he
was dealing with Hawkins, he was also receiving approximately 4-1/2 to 9 ounces of
cocaine per week from Mineri.
In sum, because the District Court permitted inquiry about other conspiracies, and
Hawkins fails to elucidate upon the information he sought to obtain from Heim beyond
his involvement with other individuals, we cannot say that the District Court abused its
discretion in limiting cross-examination.
V.
Lastly, Hawkins appeals the District Court’s sentencing determinations. His
appeal is primarily premised on his contention that the District Court committed
13
reversible error by treating the Sentencing Guidelines as mandatory.7 He argues that his
Sixth Amendment rights were violated because the District Court did not state on the
record that the Guidelines were advisory, and because the Pre-Sentence Report calculated
his sentence and applied mandatory enhancements under the Sentencing Guidelines.8
Because Hawkins’s sentence was statutorily mandated, his Booker argument necessarily
fails.
Hawkins’s twenty-year term of imprisonment was the minimum sentence required
under § 841 for any person who unlawfully distributes five kilograms or more of cocaine
and has a prior conviction for a felony drug offense. We have already held that the
evidence supports the jury’s finding beyond a reasonable doubt that Hawkins distributed
five kilograms or more of cocaine. Moreover, the United States filed an Information
prior to trial, pursuant to 21 U.S.C. § 851, which advised Hawkins that the government
would seek an enhancement sentence based upon his prior conviction if he were
7
Booker v. United States, 543 U.S. 220 (2005), was decided after Hawkins’s sentence,
but prior to his appeal.
8
Hawkins does not appeal the District Court’s determinations that he was involved in
the distribution of at least five kilograms of cocaine, or that he obstructed justice by
taking the stand in his defense and committing perjury, even though he objected to these
determinations at sentencing. He does, however, appeal the District Court’s denial of a
right to a hearing under Federal Rule of Criminal Procedure 32 (i)(2) and (3)(b) based
upon those objections. He also appeals the Court’s determination, over his objection, that
an organizer or leader enhancement applied. Finally, he argues that the evidence does not
support a leader or organizer enhancement. We have not considered these issues because
our holding is not based upon a Guidelines determination, but rather upon our review of
the District Court’s imposition of the minimum sentence required by statute.
14
convicted. Consequently, upon conviction, the District Court sentenced Hawkins to a
twenty-year term of imprisonment, as required by § 841. Therefore, despite any
Guidelines determination, the District Court imposed the minimum sentence allowed
pursuant to statute, and its statutory determination was not clearly erroneous.
VI.
For the reasons set forth above, the Order of the District Court dismissing the
Complaint will be AFFIRMED.
___________________
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