See 21 U.S.C. § 846. 1

See 18 U.S.C. § 924(c); 18 U.S.C. § 2. 2

See id. 3

See 18 U.S.C. § 1512(b)(1), (b)(2).

4

See 18 U.S.C. § 922(g)(1). 5

This Court liberally construes Hynson’s pro se filing. See Patterson v. GlaxoSmithKline Pharm. 6

Co., 298 Fed. Appx. 118, 119 (3d Cir. Nov. 5, 2008) (stating pro se motions must be liberally

construed) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

 :

v. : No. 05-576-2

 :

SHAMEK HYNSON :

MEMORANDUM AND ORDER

Juan R. Sánchez, J., June 11, 2009

On September 21, 2007, after a ten-day trial, a jury convicted Shamek Hynson of conspiracy

to distribute 50 grams or more of cocaine base (crack) and heroin; using and carrying, and aiding 1

and abetting the using and carrying of, a firearm, during and in relation to a drug trafficking offense,

in the shooting of Tracy Ramirez; using and carrying, and aiding and abetting the using and carrying 2

of, a firearm, during and in relation to a drug trafficking offense, in the shooting of Edward

Cameron; three counts of witness tampering; and felon in possession of a firearm.

3 4 5

Hynson moves for judgment of acquittal on the conspiracy count, arguing the evidence was

insufficient to support the verdict and this Court’s admission of certain evidence unfairly prejudiced

him. Hynson also moves for judgment of acquittal on the firearms counts, arguing there was 6

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2

insufficient evidence to support the verdicts. Hynson asserts his conviction arising from the Ramirez

shooting must be vacated because the Government improperly charged multiple firearms counts

predicated on a single underlying offense. Hynson asserts his conviction on the conspiracy and

tampering counts should be overturned because this Court erred in refusing to sever the tampering

counts from the remainder of the charges. Hynson also moves for a new trial, arguing the evidence

recovered from the search of his residence should have been suppressed. This Court will grant

Hynson’s motion in part and vacate Hynson’s conviction on the firearms count arising from the

Ramirez shooting. This Court will deny the remainder of Hynson’s motion.

FACTS

Over the course of several months from 2004 to 2005, Shamek Hynson conspired with codefendant Prince Isaac and others to distribute more than 50 grams of cocaine, and heroin, in

Lancaster, Pennsylvania. Isaac was the ringleader of the drug distribution enterprise. Hynson’s

duties in the organization included selling drugs, distributing drugs to others for sale, using violence

and encouraging others to use violence to elicit payment of drug debts, and accompanying Isaac in

various drug-related tasks. The conspiracy also involved sellers Michael Fowler, co-defendant

Steven Gonzalez, James Cuffie, Tracy Ramirez, Lindsay Colon (Isaac’s then-girlfriend), and Shanika

Wilson (Hynson’s then-girlfriend). Co-defendant Dwight Williams allowed Isaac and other

conspirators to use his home to package drugs and conduct drug sales.

During his tenure with the drug distribution enterprise, Hynson was involved in two

shootings. Both occurred on October 18, 2004. First, Hynson shot Edward Cameron after Cameron

refused to pay a drug debt owed Hynson by Cameron’s girlfriend. Second, Fowler shot Ramirez,

a crack user and occasional seller for Isaac, with a gun provided by Hynson.

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 2 of 19
3

After his arrest, Hynson wrote a series of letters to a girlfriend, Talonda Williams. Williams

pled guilty to straw purchasing firearms for Hynson and Isaac. In the letters, Hynson urged Williams

to tell authorities she had not purchased handguns on his behalf.

DISCUSSION

To decide a motion for judgment of acquittal, this Court “must review the record in the light

most favorable to the prosecution to determine whether any rational trier of fact could have found

proof of guilt beyond a reasonable doubt based on the available evidence.” United States v. Smith,

294 F.3d 473, 476 (3d Cir. 2002) (citations and internal quotation marks omitted). Upon a

defendant’s motion for a new trial, a trial court “may vacate any judgment and grant a new trial if the

interest of justice so requires.” Fed. R. Crim. P. 33(a). The decision to grant or deny a motion for

new trial is committed to a trial judge’s sound discretion. United States v. Cimera, 459 F.3d 452,

458 (3d Cir. 2006). 

Hynson moves for judgment of acquittal on the conspiracy count, arguing the evidence

presented at trial was insufficient to support his conspiracy conviction. In evaluating the sufficiency

of the evidence, this Court “must view the evidence in the light most favorable to the government and

must sustain the jury’s verdict if a reasonable jury believing the government’s evidence could find

beyond a reasonable doubt that the government proved all the elements of the offense.” United States

v. Pressler, 256 F.3d 144, 149 (3d Cir.), cert. denied, 534 U.S. 1013 (2001) (citations and internal

quotation marks omitted). Conspiracy consists of the following elements: “(1) a unity of purpose

between the alleged conspirators; (2) an intent to achieve a common goal; and (3) an agreement to

work together toward that goal.” Pressler, 256 F.3d at 149 (citations and internal quotation marks

omitted); see also United States v. Toler, 144 F.3d 1423, 1426 (3d Cir. 1998) (noting “the object of

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4

the agreement must be illegal”). “The government must show an ‘interdependence’ among the

alleged conspirators in order to prove that the indicted conspiracy was a single unified conspiracy as

opposed to a series of smaller, uncoordinated conspiracies.” Toler, 144 F.3d at 1426; see also United

States v. Coy, 19 F.3d 629, 633 (11th Cir. 1994) (“In determining whether the jury could have found

a single conspiracy, we consider the following factors: (1) whether a common goal existed; (2) the

nature of the scheme underlying the crimes charged; and (3) the overlap of participants.”) (citations

and internal quotation marks omitted).

The Government must prove “each defendant’s knowledge of the conspiracy’s purpose and

some action indicating his participation.” United States v. Watkins, 662 F.2d 1090, 1097 (3d Cir.

1981);see also United States v. Jones, 393 F.3d 107, 111 (3d Cir. 2004) (“Mere presence at the scene

of a criminal act or association with conspirators does not constitute intentional participation in a

conspiracy, even if the defendant has knowledge of the conspiracy. Evidence tending to show

knowing participation in the conspiracy is also needed . . . .”) (alterations, citations, and internal

quotation marks omitted). However, the Government “need not prove that each defendant knew all

the details, goals, or other participants.” United States v. Price, 13 F.3d 711, 728 (3d Cir. 1994)

(citations and internal quotation marks omitted). Conspiracy may be proven entirely by circumstantial

evidence. United States v. Thomas, 114 F.3d 403, 405 (3d Cir. 1997); see also Toler, 144 F.3d at

1426 (“[T]he government need not demonstrate the existence of a formal agreement, but may instead

demonstrate by circumstantial evidence a meeting of the minds to commit an unlawful act.”)

(citations and internal quotation marks omitted). 

Hynson specifically argues there was insufficient evidence to establish he knew of or

participated in the drug distribution conspiracy. Hynson concedes the evidence tended to show he

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 4 of 19
5

participated in conspiracies to straw purchase firearms and distribute drugs in Utica, New York,

however, Hynson asserts there was insufficient evidence to show he was guilty of participating in the

conspiracy charged in the indictment. Hynson argues the Government failed to show the

“interdependence” among himself and co-conspirators necessary to prove his participation in a single

conspiracy. See Toler, 144 F.3d at 1426. On the contrary, there was ample evidence to demonstrate

Hynson was a knowing, active participant in the conspiracy charged in the indictment. Several

witnesses, both participants in and victims of the conspiracy, gave testimonyregarding events placing

Hynson at the heart of the conspiracy

Lindsay Colon, Isaac’s girlfriend during the tenure of the conspiracy, gave testimony which

described Hynson’s role in the conspiracy as a seller and distributor of crack cocaine. Colon stated

she prepared and packaged crack for Isaac on numerous occasions, and, on at least one occasion,

handed the packaged product to Hynson to sell in Lancaster. Colon also testified about an occasion

where Isaac exhorted co-conspirators to work harder. Isaac gave an angry speech to several

individuals, including Hynson, in which he accused them of insufficient effort, exclaiming, “This

phone right here does ten thousand a week and you guys can’t do that?” N.T. 9/11/07 2.114:11-12.

Colon stated Isaac was referencing the phone he held, which he used to conduct drug transactions.

Colon testified she knew of at least two customers to whom Hynson sold crack in Lancaster. Colon

also testified she heard Hynson tell Shanika Wilson to take Porsche Hunter’s necklace because Hunter

had failed to repay Hynson for crack he had given her to sell. Colon also testified that, after Isaac was

incarcerated, Isaac instructed her to retrieve crack and a gun from Hynson on Isaac’s behalf.

Edward Cameron testified as to Hynson’s role as a distributor and enforcer. Cameron testified

Hynson shot him in an attempt to collect a drug debt. Cameron stated his girlfriend, Hunter, received

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 5 of 19
Wilson testified she, Isaac, Hynson, Fowler, and Colon traveled to Coatesville to look for a gun 7

Hynson had discarded earlier. Colon confirmed that she, Wilson, Isaac, Fowler, and Hynson drove

to Coatesville to look for the gun Hynson discarded. Colon also testified Wilson told her Hynson

shot Cameron shortly after the shooting.

Talonda Williams, a woman with whom Hynson had a romantic relationship, testified that, in 2004, 8

Isaac and Hynson traveled to North and South Carolina, where she straw purchased guns for them.

6

crack from Hynson to sell. Cameron testified he was approached by a vehicle driven by Isaac in

which Hynson was a passenger. Cameron testified Hynson asked about Hunter’s whereabouts, the

vehicle pulled away, then returned, and Hynson got out. Hynson demanded Cameron pay him the

money Hunter owed Hynson. AfterCameron refused, Hynson shot at Cameron three times. Cameron

was struck in the arm and abdomen. Wilson testified she was also a passenger in the vehicle on this

occasion, and corroborated Cameron’s testimony regarding the details of the shooting. 

7

Wilson also testified she sold heroin and crack for Isaac and Hynson when they were out of

town. Wilson testified she gave the money from her drug sales to Hynson. Colon testified Wilson 8

also assisted her in sales of crack for Isaac. BothWilson andColon testified Hynson had no legitimate

employment during the period of time in which the conspiracy was ongoing.

Wilson testified that, after Cameron’s shooting, Hynson called her from Utica, and asked her

to retrieve a bag with guns and drugs from a storage locker in Lancaster. Wilson testified she did so,

and joined Hynson in Utica. The drugs and guns were later recovered from the apartment in Utica

in which Hynson and Wilson were residing.

James Cuffie testified Hynson and Isaac picked him up from his residence in New York and

brought him to Lancaster to sell drugs. Hynson and Isaac dropped Cuffie at co-conspirator

Gonzalez’s residence upon their arrival, and Cuffie began selling drugs for Isaac shortly thereafter.

Deborah and Michael Sherr testified they lent their Kia Sephia to Isaac and Hynson in

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 6 of 19
7

exchange for crack on several occasions. Michael Sherr testified Hynson nearly always accompanied

Isaac during these transactions.

The evidence conclusively establishes Hynson’s active participation in the drug distribution

conspiracy charged in the indictment, and orchestrated by Isaac. Colon testified she packaged crack

given to her by Isaac and gave it to Hynson for distribution. She testified Isaac exhorted Hynson and

others to work harder to sell drugs. Wilson testified she sold drugs for Hynson, and assisted Colon

in her drug sales, while Hynson and Isaac were in North and South Carolina illegally purchasing

firearms. Cuffie testified Hynson and Isaac retrieved him from New York to sell drugs for their

operation. The Sherrs testified Hynson often accompanied Isaac when they traded use of their car for

crack cocaine. The evidence was sufficient to support the verdict of guilt because a reasonable jury

could find beyond a reasonable doubt the Government proved all elements of conspiracy. 

Hynson also argues his conspiracy conviction should be vacated because this Court improperly

admitted the following evidence: Hynson’s New York felony drug conviction, taped recordings of

telephone conversations between Hynson and Talonda Williams, and guns and drugs recovered from

Hynson’s Utica residence. Hynson argues this evidence was irrelevant and prejudicial, and should

have been excluded under Federal Rule of Evidence 404(b), which prohibits use of a defendant’s prior

bad acts to show propensity to commit the crime charged in the indictment. See Fed. R. Evid. 404(b)

(“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.”).

As an initial matter, Hynson’s felony drug conviction was excluded by this Court’s

Memorandum and Order of September 11, 2007, and was never admitted at trial. The only references

to felony charges brought against Hynson were testimony elicited by Hynson’s counsel and statements

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 7 of 19
In a bench conference, Hynson’s counsel voiced a few objections to specific portions of the taped

9

conversations; however, he never objected to the admission of the recordings as a whole.

8

made by Hynson’s counsel during closing, and no evidence showing Hynson was convicted of such

charges was admitted.

Hynson did not oppose the Government’s motion in limine to admit taped conversations

between himself and Williams. See Memorandum & Order of September 11, 2007, at 1 n. 4. “In 9

the absence of plain error, matters not called to the attention of the trial judge cannot be subsequently

raised in the post trial stages of the proceeding.” United States v. Jones, 404 F. Supp. 529, 539 (E.D.

Pa. 1975); see also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.”). To show plain error, a

defendant must show “there is an actual error, i.e., a deviation from or violation of a legal rule; the

error is plain, i.e., clear and obvious under current law; and the error affects substantial rights.”

Continental Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 256 (3d Cir. 1998). “In other words,

the error must be prejudicial and must have affected the outcome of the district court proceedings.”

Id. 

Hynson argues recordings of telephone conversations should have been excluded under

Federal Rules of Evidence 402 and 403, because they had no relevance to the conspiracy or firearms

counts and prejudiced Hynson by suggesting he had a propensity to deal drugs and showing he was

incarcerated. See Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”); Fed. R.

Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .”). There was no error in admitting the taped

conversations between Hynson and Williams. The evidence was relevant because it was probative

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 8 of 19
9

of Hynson’s knowing possession of drugs transported from Lancaster to Utica, and the probative

value of the conversations outweighed any prejudicial effect. Admission of the conversations was

not prohibited by Rule 404(b) because such evidence was relevant to show motive, intent, knowledge,

and lack of mistake. See Fed. R. Evid. 404(b) (“Evidence . . . may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident . . . .”).

Hynson also argues the guns and drug evidence recovered from Hynson’s Utica residence

should have been excluded because it was prejudicial and because its admission was prohibited under

Rule 404(b). There was no error in admitting this evidence. Evidence of Hynson’s possession of

drugs and guns was relevant because it was directly probative of Hynson’s participation in the drug

distribution conspiracy alleged in this case. The testimony ofColon, Wilson,Cameron, and Williams

established Hynson’s use of firearms in furtherance of the aims of the conspiracy. The drug and gun

evidence also corroborates Wilson’s testimony that she transported such items to Hynson in Utica.

Thus, the gun and drug evidence was highly probative of Hynson’s participation in the conspiracy,

and its probative value outweighed any prejudicial effect. Rule 404(b) prohibits admission of

evidence of “other crimes, wrongs, or acts,” but does not preclude admission of the gun and drug

evidence because it is direct evidence of the conspiracy charged in the indictment. Fed. R. Evid.

404(b). See United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999) (“Rule 404(b), which proscribes

the admission of evidence of other crimes when offered to prove bad character, does not apply to

evidence of uncharged offenses committed by a defendant when those acts are intrinsic to the proof

of the charged offense.”).

The evidence was sufficient to support a verdict of guilt and the evidence Hynson challenges

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 9 of 19
10

was properly admitted. Hynson’s motion for judgment of acquittal on the conspiracy count is

therefore denied. 

Hynson argues his conviction for use of a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c) and in connection with the shooting of Tracy Ramirez, must

be vacated because the Government also charged Hynson with another § 924(c) offense, namely, the

shooting of Edward Cameron, predicated on the same underlying offense of conspiracy. In the instant

matter, the Government concedes Hynson’s § 924(c) conviction on Count 16, which charged use of

a firearm during and in relation to a drug trafficking crime, namely, the Ramirez shooting, should be

vacated because Hynson may not be convicted of multiple § 924(c) offenses based upon the same

underlying predicate offense. Though the Third Circuit has not opined on the issue, several federal

courts of appeals have held the Government may not charge multiple § 924(c) violations predicated

on the same underlying offense. See United States v. Wilson, 160 F.3d 732, 749 (D.C. Cir. 1998)

(“[O]nly one § 924(c) violation may be charged in relation to one predicate crime.”); United States

v. McManus, 23 F.3d 878, 884 (4th Cir. 1994) (“[T]he Second, Fifth, Tenth, and Eleventh Circuits

have held that use of more than one gun during a single drug trafficking offense will not support

multiple counts under § 924(c).”) (citing United States v. Lindsay, 985 F.2d 666, 674 (2d Cir.), cert.

denied, 510 U.S. 832 (1993); United States v. Moore, 958 F.2d 310, 311 (10th Cir. 1992); United

States v. Hamilton, 953 F.2d 1344, 1346 (11th Cir.), cert. denied, 506 U.S. 884 (1992); United States

v. Privette, 947 F.2d 1259, 1262-63 (5th Cir.1991), cert. denied, 503 U.S. 912 (1992)). Hynson’s

motion for judgment of acquittal as to Count 16 is therefore granted. See United States v. Hardwick,

544 F.3d 565, 574 -75 (3d Cir. 2008) (remanding for resentencing consistent with “a Justice

Department policy memorandum requiring a separate predicate offense for each § 924(c) charge”).

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 10 of 19
Hynson appears to seek a judgment of acquittal as a result of the error he alleges this Court made 10

in refusing to sever charges. The proper remedy for such error would be new, separate trials. See

United States v. Halper, 590 F.2d 422, 433 (2d Cir. 1978). This point is moot, however, because

this Court did not err in denying severance.

11

Hynson next argues his § 924(c) conviction on Count 17, for use of a firearm during and in

relation to a drug trafficking crime, namely, the Cameron shooting, should be vacated because there

was insufficient evidence to support the verdict. Hynson argues there was not sufficient proof that

the firearm used in the shooting of Cameron was used during or in relation to drug trafficking. There

was ample evidence to support the jury’s verdict on this count. Cameron identified Hynson as the

shooter and testified he was shot immediately after refusing to pay Hynson a drug debt owed by

Hunter. Wilson testified she witnessed the shooting and heard Hynson demand payment of the drug

debt. Colon testified Wilson told her, shortly after the shooting, that Hynson shot Cameron. Colon

and Wilson testified about searching for a gun Hynson had discarded in Coatesville. Police

subsequently recovered a handgun in Coatesville which was ballistically matched to the Cameron

shooting. The evidence was sufficient to support the verdict of guilt because a reasonable jury, which

believed the Government’s evidence, could find beyond a reasonable doubt the Government proved

all elements of the § 924(c) charge. 

Hynson argues his conspiracy and witness tampering convictions should be overturned

because this Court erred by refusing to sever the tampering counts from the remaining charges.10

Hynson asserts the tampering counts were improperly joined because they did not arise from the same

set of acts as the conspiracy and gun charges. Hynson also argues he was prejudiced by their trial

together. 

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12

Joinder of charges is generally favored. See United States v. Niederberger, 580 F.2d 63, 66

(3d Cir. 1978) (“The obvious purpose of Rule 8(a)’s liberal joinder provision is to promote judicial

and prosecutorial economy by the avoidance of multiple trials.”); United States v. Bullock, 71 F.3d

171, 174 (5th Cir. 1995) (“Joinder of charges is the rule rather than the exception and Rule 8 is

construed liberally in favor of initial joinder.”). An “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.” Fed. R. Crim. P. 8(b); see United States

v. Irizarry, 341 F.3d 278, 287 (3d Cir. 2003) (“[I]n a multi-defendant case such as this, the tests for

joinder of counts and defendants is merged in Rule 8(b).”) (citation and internal quotation marks

omitted). “‘Transaction’ is a word of flexible meaning. It may comprehend a series of many

occurrences, depending not so much upon the immediateness of their connection as upon their logical

relationship.” Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610 (1926). 

The charges were properly joined under Rule 8(b). Each count is part of the same “series of

acts or transactions” because the tampering counts arose from Hynson’s attempt to avoid prosecution

for his participation in the charged conspiracy. See United States v. Curry, 977 F.2d 1042, 1049 (7th

Cir. 1992) (“A conspiracy and its cover-up are considered parts of a common plan.”); United States

v. Sampson, No. 07-389, 2008 WL 5061653, at *3 (M.D. Pa. Nov. 20, 2008) (“Witness tampering

and felony drug trafficking charges may be properly joined under Rule 8(a)’s ‘common scheme or

plan’ language when it is alleged that the former offense was committed in furtherance of the latter

offense.”); United States v. Kemp, No. 04-370, 2004 WL 2757867, at *2 (E.D. Pa. Dec. 2, 2004)

(“[M]ultiple cases have held that joinder is appropriate when defendants are charged with perjury or

obstruction of justice in relation to the underlying offenses in an indictment.”); United States v. Tyler,

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 12 of 19
13

No. 01-429, 2003 WL 22016883, at *5 (E.D. Pa. June 19, 2003) (holding constitutional deprivation

and conspiracy charges arising from the beating of an inmate were “closely related” to obstruction

charges for subsequent cover-up of the beating such that joinder under Rule 8(b) was proper);

Moore’s Federal Practice § 608.02[3] (3d ed. 2004) (“[W]hen a defendant is charged with

obstruction of justice or witness tampering, it is proper to join the obstruction or tampering offense

with the underlying offense to which the obstructive conduct relates.”). Both Hynson and Isaac were

charged with tampering counts which reflected a shared scheme to intimidate and encourage

witnesses to obstruct the prosecution of the conspiracy with which Isaac and Hynson were charged.

As such, the tampering counts were properly joined with the conspiracy and related firearms counts

as part of the same “series of acts or transactions.” Fed. R. Crim. P. 8(b).

Hynson’s renewed claim that he was unfairlyprejudiced by trial of the tampering counts along

with the remaining charges is without merit. Hynson first argued, in a pretrial motion for severance

brought under Federal Rule of Criminal Procedure 14, that he would suffer prejudice from the

joinder. See Fed. R. Crim. P. 14 (“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.”). This Court denied Hynson’s severance motion. SeeMemorandum & Order of September

11, 2007. That decision was reserved to this Court’s sound discretion. See Niederberger, 580 F.2d

at 66 (“[I]t is settled that a district court’s disposition of a Rule 14 severance motion will not be

disturbed in the absence of a clear showing of an abuse of discretion.”). Even if this Court abused

its discretion in denying Hynson’s motion, to succeed on his motion for judgment of acquittal,

Hynson “must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.”

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 13 of 19
At least one federal circuit has required severance of counts when a defendant “makes a convincing 11

showing that he has both important testimony to give concerning one count and strong need to

refrain from testifying on the other.” Reicherter, 647 F.2d at 401 (quoting Baker v. United States,

401 F.2d 958, 977 (D.C. Cir. 1968), cert. denied, 400 U.S. 965 (1970)) (internal quotation marks

omitted). In this case, however, Hynson was able to make his case regarding his intentions in the

letters by cross-examination of Williams, the recipient of Hynson’s letters, and Detective Winters,

the officer who read the letters into the record. See id. (rejecting the defendant’s argument that the

trial court’s denial of his severance motion effectively eliminated his right to testify on his own

behalf as to certain counts where the defendant had the opportunity to make his case in a manner

other than by testifying). Furthermore, even if Hynson were tried separately on the tampering counts,

and he then chose to testify, he would remain subject to impeachment with evidence of his other

crimes under cross-examination. See Fed. R. Evid. 609(a). Thus, a separate trial would not eliminate

Hynson’s stated reason for declining to testify in the instant case.

14

United States v. Console, 13 F.3d 641, 655 (3d Cir. 1993) (quoting United States v. Sandini, 888 F.2d

300, 307 (3d Cir. 1989)) (emphasis in Sandini, internal quotation marks omitted); United States v.

Reicherter, 647 F.2d 397, 400 (3d Cir. 1981) (“Mere allegations of prejudice are not enough; and it

is not sufficient simply to establish that severance would improve the defendant’s chance of

acquittal.”).

Hynson now argues this Court’s refusal to sever the charges deprived him of his ability to

testify regarding his intentions in the letters he wrote to Talonda Williams, upon which the tampering

charges were based. Joinder of the charges, however, did not eliminate Hynson’s right to testify. See

United States v. Leggett, 162 F.3d 237, 251 (3d Cir. 1998) (“It is well settled that a criminal defendant

has a constitutional right to testify in his or her own behalf.”). This was a right he maintained

throughout trial. Moreover, Hynson’s failure to testify was a strategic decision, designed to avoid

questions regarding other criminal behavior. 

11

Hynson also argues admission of the letters as to the tampering counts prejudiced him as to

the conspiracy count because the contents of the letters suggested he was guilty of conspiracy.

Hynson made a similar argument in his pretrial motion, asserting “it would be impossible for the jury

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 14 of 19
15

to avoid the ‘spill over’ effect between their evaluation of these witnesses on the separate and distinct

criminal allegations.” Mem. in Support of Def.’s Mot. for Severance, at 3 (Aug. 8, 2007).

Speculation regarding a possible evidentiary spill-over effect among counts or defendants does not

rise to the level of “ clear and substantial prejudice” required to grant Hynson’s motion for judgment

of acquittal. Console, 13 F.3d at 655 (emphasis omitted); see id. (“Prejudice should not be found in

a joint trial just because all evidence adduced is not germane to all counts against each defendant .

. . .”) (alteration, citation, and internal quotation marks omitted); Reicherter, 647 F.2d at 400

(affirming denial of motion for severance where the defendant “pinpoints no specific instances of

prejudice. He merely speculates that the jury must have interchangeably applied the evidence

presented on various counts.”) 

Furthermore, evidence of witness tampering is admissible to show a defendant’s

consciousness of guilt. See United States v. Gatto, 995 F.2d 449, 454 (3d Cir. 1993) (“It is wellestablished that evidence of threats or intimidation is admissible under Rule 404(b) to show a

defendant’s consciousness of guilt . . . .”); United States v. Monahan, 633 F.2d 984, 985 (1st Cir.

1980) (stating “[e]vidence of threats to witnesses can be relevant to show consciousness of guilt,”

particularly where a defendant’s conduct “implies a knowledge and fear of particular and damaging

testimony intimately related to the prosecution at hand”). Courts of appeals have applied this

principle in affirming denials of motions for severance. See, e.g., United States v. Rock, 282 F.3d

548, 552 (8th Cir. 2002) (affirming denial of the defendant’s motion to sever felon-in-possession

charge from witness tampering charge; stating “[w]here evidence that a defendant had committed one

crime would be probative and thus admissible at the defendant’s separate trial for another crime, the

defendant does not suffer any additional prejudice if the two crimes are tried together”); United States

Case 2:05-cr-00576-JS Document 342 Filed 06/12/09 Page 15 of 19
Because this Court concludes any consideration by the jury of Hynson’s witness tampering as 12

probative of his guilt on the other counts was proper, there was no need for a limiting instruction

charging the jury to segregate and analyze evidence per count. In any event, Hynson did not request

such an instruction at the charging conference.

16

v. Balzano, 916 F.2d 1273, 1281 (7th Cir. 1990) (“[E]vidence of a defendant’s attempts at

intimidation of a witness or of a person cooperating with a government investigation is admissible

to demonstrate a defendant’s ‘consciousness of guilt’ of the charges which were the subject of the

witness’ testimony or cooperation. In those instances where evidence of one crime is admissible at

a separate trial for another, it follows that a defendant will not suffer any additional prejudice if the

two offenses are tried together. Thus, the court did not err in declining to sever the witness

intimidation count from the extortion and RICO counts, because the evidence relevant to the witness

intimidation count could have been admitted at a trial on any of the remaining counts or a

combination of the countsto demonstrate consciousness of guilt.”); United States v. Fagan, 821 F.2d

1002, 1007 (5th Cir. 1987) (affirming denial of the defendant’s motion to sever mail fraud counts

from witness tampering counts, in part because “[e]vidence of the witness tampering would have been

admissible in a separate mail fraud trial to show [the defendant’s] guilty knowledge”); United States

v. Foreman, 87 Fed. Appx. 107, 110 (10th Cir. Jan. 21, 2004) (affirming denial of the defendant’s

motion to sever obstruction charges from robbery charges where “evidence relating to both sets of

charges would be admissible in separate trials to prove motive and consciousness of guilt”). In this

case, admission of Hynson’s letters to Williams was not prejudicial to Hynson on the conspiracy

count because such evidence was also probative of his consciousness he was guilty of conspiracy.12

Because Hynson failed to show he would be prejudiced by failure to sever the witness tampering

counts from the remaining counts, this Court properly denied his motion for severance and his motion

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for judgment of acquittal will also be denied on this ground.

Hynson argues he is entitled to a new trial because this Court erred in denying his pretrial

motion to suppress gun and drug evidence recovered from the December 8, 2004 search of his Utica

residence. Hynson argues the search violated his Fourth Amendment rights because Shanika

Wilson’s consent to search the apartment was not voluntary.

Law enforcement officers may conduct a search, without a warrant or probable cause, if an

individual validly and voluntarily consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973). Co-tenants to an apartment can provide valid consent to search the apartment. Georgia

v. Randolph, 547 U.S. 103, 106 (2006). Wilson told officers at the scene she lived in and made rental

payments for the apartment she shared with Hynson. Thus, she was capable of providing valid

consent to search as a co-tenant. See id. (“The Fourth Amendment recognizes a valid warrantless

entry and search of premises when police obtain the voluntary consent of an occupant who shares,

or is reasonably believed to share, authority over the area in common with a co-occupant who later

objects to the use of evidence so obtained.”).

Valid consent must “not be coerced, by explicit or implicit means, by implied threat or covert

force.” Schneckloth, 412 U.S. at 228. “[T]he question whether a consent to a search was in fact

‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances.” Id. at 227. In assessing whether an

individual’s consent was voluntary, courts examine “the characteristics ofthe accused and the details

of the interrogation.” Id. at 226. Relevant characteristics of an interrogated individual include his

age, education, intelligence, and knowledge of his constitutional rights. Id. Relevant characteristics

of an interrogation include the length of detention, whether questioning was repeated or prolonged,

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and whether the individual was deprived of food or sleep or was otherwise subjected to physically

taxing circumstances. Id.

This Court did not err in denying Hynson’s suppression motion. Wilson’s consent to search

Hynson’s residence was voluntary. Wilson, who was 21 years old at the time of the search, permitted

law enforcement officers to enter her residence and ask her questions. Deputy Amoia asked for

Wilson’s consent to search the apartment and provided her with the U.S. Marshals’ standard consent

to search form. This form contained three short paragraphs which described the consent requested,

including information regarding Wilson’s constitutional right to refuse consent to search. Wilson

consented and signed the Marshals’ consent form. There was no evidence any officer coerced her

to do so, and there was no evidence Wilson’s age, education, intelligence, or physical or mental

condition might have prevented her from providing voluntary consent under these circumstances.

Therefore, the initial search which took place pursuant to Wilson’s consent did not violate Hynson’s

Fourth Amendment rights.

During execution of this initial search, officers discovered a chunky white substance in the

bedroom shared by Hynson and Wilson. This discovery provided the probable cause necessary to

procure a search warrant for Hynson’s apartment, and a warrant was obtained. As a result of a

subsequent search pursuant to the search warrant, drugs, drug distribution paraphernalia, guns,

ammunition, receipts, and money were seized. Evidence recovered from a search executed pursuant

to a valid search warrant is admissible. United States v. Barr, 454 F. Supp. 2d 229, 253 (E.D. Pa.

2006). The second search of Hynson’s apartment was executed pursuant to a valid search warrant.

Thus, all evidence seized from the search of Hynson’s apartment was admissible at trial. This Court

therefore properly denied Hynson’s pretrial motion to suppress, and Hynson’s instant motion for new

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trial is denied.

An appropriate order follows.

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