NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1202

____________

UNITED STATES OF AMERICA

v.

WILLIAM JOHNSON

Appellant

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No. 14-1184

____________

UNITED STATES OF AMERICA

v.

JERMAINE EDMONDS

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 12-cr-00232)

District Judge: Arthur J. Schwab

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 16, 2015

Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.

(Filed: October 5, 2015)
2

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OPINION

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CHAGARES, Circuit Judge.

William Johnson and Jermaine Edmonds appeal their convictions and sentences

for conspiracy and attempt to possess with intent to distribute 500 grams or more of 

cocaine in violation of 21 U.S.C. § 846. For the following reasons, we will affirm.

I.

Because we write solely for the benefit of the parties, we will only briefly 

summarize the facts relevant to our decision. In 2012, a grand jury in the Western 

District of Pennsylvania indicted William Johnson and Jermaine Edmonds for conspiracy 

and attempt to possess with intent to distribute 500 grams or more of cocaine. The 

uncontested evidence at trial demonstrated that the charges emanated from a sting 

operation. While Edmonds was serving time in federal prison, a fellow inmate, Dante 

Sotelo, offered to connect him with a drug dealer named Fidel Sanchez. Sanchez was in 

fact a long-serving DEA informant. Following his release, Edmonds contacted Sanchez 

in an effort to purchase narcotics. The two met in person in July 2012, and over the 

course of several more conversations, they settled on a quantity and price. Edmonds 

explained that he would raise funds from “his people” to make the purchase. Appendix 

(“App.”) 156, 494. He also told Sanchez he would have a driver with him when he made 

the deal. The deal was set for July 31, 2012. 

 

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

On July 31, Edmonds met Sanchez’s “contact” Juan — actually Special Agent 

John Walter — in a restaurant parking lot. When Agent Walter asked to see the money, 

Edmonds walked him over to a car driven by William Johnson. Johnson then introduced 

himself and directed Edmonds to show Agent Walter what he claimed was $30,000 in the 

trunk. The deal stalled for some time as Agent Walter, and Sanchez by phone, demanded 

that Edmonds show the agreed-upon $90,000. Eventually, another of Edmonds’s 

associates arrived with additional cash, and nearby DEA agents moved in and arrested the 

would-be buyers.

At trial, Johnson and Edmonds’s primary defense was that they believed they were 

purchasing marijuana rather than cocaine. The Government presented substantial

evidence on this point. First, Sanchez testified that his conversations with Edmonds, 

from the beginning, were exclusively about cocaine. App. 159-60. They used the code 

word “girls” for powder cocaine,

1

and Sanchez testified he had never used that code, or 

heard anyone else use that code, for any other drug. App. 159.

2

Second, the Government called an expert to opine on circumstantial evidence of 

the drug’s identity. With respect to price and quantity, Sanchez testified that the agreedupon price was around $30,000 per kilogram. App. 159-60.3

 The expert witness 

explained that, typically, bulk quantities of cocaine are packaged in kilos while bulk 

 

1

In one recorded conversation, for example, Sanchez asks Edmonds to confirm he is 

ready “for three girls to start working as soon as possible.” App. 497.

2 The Government’s expert witness supported Sanchez’s testimony that the code word 

“girl” refers exclusively to cocaine. App. 114.

3 Edmonds testified that the agreement was for 30 pounds of a rare marijuana that sold for 

$5,000 to $7,000 per pound. App. 312-13.
4

quantities of marijuana are packaged in pounds. App. 103-04. He further testified that

$30,000 is a slight discount from the average price of $35,000-$36,000 for a kilo of 

cocaine in western Pennsylvania, but no common quantities of marijuana sell for “three 

[units] for over $60,000.” App. 111. 

Recordings of Edmonds and Johnson captured them describing the Pittsburgh 

market as “dry,” App. 494, and prices as “sky high,” App. 532. The Government’s 

expert testified that he had never heard of a marijuana shortage in western Pennsylvania, 

while cocaine “droughts” are common, if often more marketing-ploy than fact. App. 107.

Finally, on the day they arrested Edmonds and Johnson, DEA agents found an 

unopened box of baking soda with three large Ziploc bags in Johnson’s car and a box 

cutter knife on Edmonds. App. 272, 274. The Government’s expert testified that 

distribution-weight cocaine is often wrapped in duct tape which the buyer must cut to 

open. App. 103.

In their defense, Johnson and Edmonds sought to persuade the jury that Sanchez 

lied about the drugs Edmonds agreed to purchase because he knew that the DEA cared 

more about cocaine than marijuana. Defense counsel asked Sanchez and Sanchez’s DEA 

contact if Dante Sotelo, the inmate who led Edmonds to Sanchez, had received a 

cooperation benefit for his role in the operation. Both witnesses denied any knowledge 

of a cooperation agreement. App. 178, 222-23. In fact, the United States Attorney’s 

Office in the Northern District of Georgia had already filed a Rule 35 motion requesting 
5

that Sotelo receive a one-level departure based on his cooperation in the investigation and 

arrest of Edmonds and Johnson.4 The Government never disclosed the agreement.

The Government also called DEA Agent Louis Gade to testify that during a 

meeting with Sanchez, Sanchez recounted his conversation with Edmonds without any 

reference to marijuana. Defense counsel objected to the statement as hearsay. When the 

Government offered the out-of-court statements as prior consistent statements, defense 

counsel argued that the statements were not consistent with Sanchez’s in-court 

testimony.5 The District Court overruled the objection but instructed the jury that they 

should consider the evidence only if they found it was consistent with the witness’s incourt testimony. The District Court did not mention any issues with the timing of the 

statement.

On August 23, 2013, the jury convicted Edmonds and Johnson on both counts. At 

sentencing, the Government filed a prior felony information under 21 U.S.C. § 851 for 

Johnson and Edmonds. The District Court sentenced Johnson to 120 months of 

imprisonment and Edmonds to 130 months.

Johnson and Edmonds timely appealed.

 

4 The Rule 35 submission also noted that the federal prosecutor in the Western District of 

Pennsylvania’s United States Attorney’s Office considered Sotelo’s assistance 

substantial, which suggests someone in that office was in direct contact with the Northern 

District of Georgia.

5 See App. 215 (“It is not our recollection that . . . Mr. Sanchez, testified to the same 

thing that this agent is testifying to regarding price . . . .”); see also id. at 216 (“So what 

Mr. Sanchez testified to was I met Mr. Edmonds, and we discussed a three to five-kilo 

transaction. And that was the extent of his testimony. To then add terms is not 

consistent.”).
6

II.6

We review a district court’s evidentiary rulings for abuse of discretion. United 

States v. Smith, 725 F.3d 340, 344-45 (3d Cir. 2013). To establish an abuse of discretion, 

appellants must demonstrate that the district court’s action was “arbitrary, fanciful or 

clearly unreasonable.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d 

Cir. 2002) (quotation marks omitted).

We review issues not preserved below for plain error. Puckett v. United States, 

556 U.S. 129, 135 (2009) (citing Federal Rule of Criminal Procedure 52(b)). Under plain 

error review, we will grant relief only if we conclude that (1) there was an error, (2) the 

error was “clear or obvious, rather than subject to reasonable dispute” and (3) the error 

“affected the appellant’s substantial rights.” Id.; see also United States v. Stinson, 734 

F.3d 180, 184 (3d Cir. 2013); United States v. Fumo, 655 F.3d 288, 325 (3d Cir. 2011). 

If those three prongs are satisfied, we have “the discretion to remedy the error—

discretion which ought to be exercised only if the error seriously affect[s] the fairness, 

integrity, or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135

(alteration in original) (quotation marks omitted).

Finally, “[w]hen reviewing the sentencing decisions of the district courts, we 

exercise plenary review over legal questions about the meaning of the [S]entencing 

[G]uidelines, but apply the deferential clearly erroneous standard to factual 

 

6 The District Court had subject-matter jurisdiction under 18 U.S.C. § 3231. This Court 

has jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
7

determinations underlying their application.” United States v. Collado, 975 F.2d 985, 

990 (3d Cir. 1992) (quotation marks omitted).

III.

A.

Johnson and Edmonds argue that prosecutors committed misconduct warranting a 

new trial when they failed to disclose that Dante Sotelo received a cooperation benefit.7 

“In Brady v. Maryland, the Supreme Court held ‘that the suppression by the prosecution 

of evidence favorable to the accused upon request violates due process where the 

evidence is material either to guilt or to punishment, irrespective of the good faith or bad 

faith of the prosecution.’” Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir. 2004) 

(quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). “[T]o establish a Brady violation 

requiring relief, a defendant must show that (1) the government withheld evidence, either 

willfully or inadvertently; (2) the evidence was favorable, either because it was 

exculpatory or of impeachment value; and (3) the withheld evidence was material.” Id. 

Evidence is material “if there is a ‘reasonable probability’ that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different.” Kyles 

v. Whitley, 514 U.S. 419, 433 (1995). This “does not require a demonstration by a 

preponderance that disclosure . . . would have resulted ultimately in the defendant’s

acquittal.” Id. at 434. Rather, “the materiality standard for Brady claims is met when 

‘the favorable evidence could reasonably be taken to put the whole case in such a 

 

7 Because they raise this issue for the first time on appeal, our review is for plain error. 

Puckett v. United States, 556 U.S. 129, 135 (2009).
8

different light as to undermine confidence in the verdict.’” Banks v. Dretke, 540 U.S. 

668, 698 (2004) (quoting Kyles, 514 U.S. at 435).

We have previously declined to consider a Brady claim not formally raised and 

litigated before the District Court. See United States v. Green, 556 F.3d 151, 154 n.2 (3d 

Cir. 2009). In this case, however, the record contains sufficient evidence for us to 

evaluate the claim. The allegedly withheld information about Sotelo’s cooperation 

benefit was arguably not material in the Brady sense. Its ostensible purpose was to 

impeach Sanchez’s motive for testifying that Edmonds agreed to purchase cocaine. At 

trial, defense counsel elicited testimony that Sanchez had assisted the DEA in 

approximately one hundred cases, App. 175, that he makes his living, in part, as a 

confidential source, App. 192, that his compensation sometimes takes the form of 

cooperation benefits for third parties, App. 222, and that he is friends with Sotelo, App. 

178.8 Sanchez testified he had not asked the DEA about Sotelo receiving a cooperation 

benefit and was not aware of him receiving such a benefit. App. 178. Evidence of a Rule 

35 motion filed on Sotelo’s behalf would not directly have contradicted Sanchez’s 

statement that he did not know about it. And even if the jury believed that Sanchez did 

know about the benefit for Sotelo, it would merely add this to the already-established 

tally of benefits Sanchez expected to receive for his cooperation. There was no question 

Sanchez expected to benefit from assisting the DEA. Whatever slight impeachment 

 

8 Q: [Sotelo is] your friend?

A: Yes.

Q: Is he a close friend?

A: Not a friend. It’s someone that I know through my job.

App. 178.
9

value the Rule 35 motion might have had, in the context of the other benefits Sanchez 

received for his cooperation, we are not persuaded it would have “put the whole case in 

such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435.

9

 

Because the existence of a Brady violation in this case is subject to reasonable dispute, 

the alleged non-disclosure does not amount to plain error.

B.

Edmonds and Johnson argue that the District Court improperly admitted Agent 

Gade’s testimony regarding Sanchez’s debriefing as a prior consistent statement when the 

out-of-court statements were not clearly prior to Sanchez’s motive to lie. The 

Government argues that the defendants made the wrong hearsay objection and therefore 

failed to preserve the issue for appeal. 

We have held that “a party fails to preserve an evidentiary issue for appeal not 

only by failing to make a specific objection, . . . but also by making the wrong specific 

objection.” United States v. Iglesias, 535 F.3d 150, 158 (3d Cir. 2008) (quotation marks 

omitted). This rule ensures that the trial court had an opportunity to “take testimony, 

receive argument, or otherwise explore the issue raised.” United States v. Williams, 264 

F.3d, 561, 575 (5th Cir. 2001) (quotation marks omitted). Here, although Edmonds and 

Johnson made a hearsay objection and addressed their argument to Federal Rule of

 

9 Nor would evidence of Sotelo’s cooperation benefit impeach Sanchez’s credibility 

generally. It would be too speculative to assume that jurors, informed that Sotelo 

received a benefit, would believe that Sanchez lied that he didn’t know about the benefit 

– particularly when he had freely testified as to the benefits he personally received. That 

said, we do not condone the Government’s failure to disclose the information about the 

cooperation benefit Sotelo received. Disclosure certainly would have been the better 

course.
10

Evidence 801(d)(1)(B), the same rule they invoke on appeal, their exclusive focus on the 

consistency of the out-of-court statements and their failure to object to the trial court’s 

jury instructions, which mentioned only the consistency question, deprived the trial court 

of an opportunity to develop fully argument on the timing issue they raise on appeal.10 

The preservation question is a close one. We need not decide the issue, however, because 

even under the stricter abuse of discretion standard for preserved objections to 

evidentiary rulings, Edmonds and Johnson fail to demonstrate error.

“[F]our requirements must be met in order for prior consistent statements to be 

admitted into evidence under Rule 801(d)(1)(B): (1) the declarant must testify at trial and 

be subject to cross-examination; (2) there must be an express or implied charge of recent 

fabrication or improper influence or motive of the declarant’s testimony; (3) the 

proponent must offer a prior consistent statement that is consistent with the declarant’s 

challenged in-court testimony; and, (4) the prior consistent statement must be made prior 

to the time that the supposed motive to falsify arose.” United States v. Frazier, 469 F.3d 

85, 88 (3d Cir. 2006). There is little record evidence on the timing of the alleged hearsay 

statement with respect to Sanchez’s motive to fabricate. The Government suggested the 

motive would have arisen either when the defendants first argued that they believed they 

were purchasing marijuana or, at the very earliest, when the Government first charged the 

defendants with a cocaine crime. App. 217. The defendants did not respond. They did 

 

10 It is worth noting that the Government did make an argument about the timing of the 

alleged motive to fabricate. App. 217. Defense counsel did not respond to this argument. 

Put simply, defense counsel passed up its opportunity to argue the timing or at least alert 

the District Court that they considered it an element of the objection worth exploring. 
11

seek, through witness examination, to suggest that Sanchez might lie because he believed

that the DEA cared much more about cocaine than marijuana, see, e.g., App. 221 

(“Marijuana is not . . . as interesting as the cocaine and the heroin cases? Is that fair to 

say?”), but absent evidence of when that belief originated, the District Court would have 

been hard-pressed to settle the timing issue in their favor. Perhaps if defense counsel had 

addressed the timing issue before the District Court, the ensuing argument would have 

clarified the timing question and showed their objection to be meritorious. Based on the 

record below, however, we cannot say the District Court’s implicit acceptance of the 

Government’s view of the timing was unreasonable. Therefore, the District Court did not 

abuse its discretion in admitting Sanchez’s out-of-court statement as a prior consistent 

statement.

C.

Johnson argues that because there was no evidence that he joined the conspiracy 

before July 31, 2012, the District Court erred in admitting recordings of Sanchez and 

Edmonds’s pre-July 31 discussions against him.11 Such out-of-court statements made by 

a party’s co-conspirator are admissible non-hearsay only when made during and in 

furtherance of a conspiracy. United States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992) 

(discussing Federal Rule of Evidence 801(d)(2)(E)). Here, the Government charged 

Johnson with participating in a conspiracy beginning “[o]n or about July 31, 2012.” App. 

30. The Government presented no evidence — beyond Edmond’s vague references to his 

 

11 Because Johnson did not preserve this issue, our review is for plain error. Puckett, 556 

U.S. at 135.
12

“people” or “guys,” App. 494-95 — that Johnson was involved before July 31. However, 

the District Court instructed the jury to consider pre-conspiracy acts or statements only 

against the person who performed the act or made the statement. App. 457-58. We 

ordinarily presume that jurors follow a court’s instructions. Greer v. Miller, 483 U.S. 

756, 766 n.8 (1987). 

While Johnson may wish the District Court’s instruction had emphasized the 

timing of the conspiracy, the instruction was not deficient in any way that would plainly 

compromise the admission of the recording. Moreover, even if the District Court’s 

instruction were ineffective, Johnson would not be able to show that the admission of the 

recordings likely affected the outcome of the proceeding, because there was substantially 

more evidence — including direct testimony regarding the recordings and the price of the 

drugs — tending to show that Johnson believed he was purchasing cocaine. The District 

Court did not plainly err in its admission of the recordings.

D.

Johnson also argues that the Government’s decision to file for a prior felony 

enhancement under 21 U.S.C. § 851 was “arbitrary and capricious” given controversy

over the enhancement and the fact that on August 12, 2013, the United States Attorney 

General issued a memorandum advising prosecutors to limit their use of § 851. It is not 

clear what right Johnson believes the District Court violated by applying the 

enhancement. The Attorney General’s memorandum explicitly did not “create or confer 

any rights, privileges or benefits,” App. 596, and such memoranda do not bind the courts. 

See United States v. Canori, 737 F.3d 181, 184-85 (2d Cir. 2013) (holding a Department 
13

of Justice memorandum on prosecution of marijuana usage was an act of prosecutorial 

discretion that did not give defendants enforceable rights). Whatever Johnson’s policy 

argument against application of the prior felony enhancement, he does not have a legal 

argument for why this court should override the decision of a prosecutor acting within the 

bounds set by Congress. We discern no error in the District Court’s sentence.

E.

Finally, Edmonds argues the District Court erred in applying a two-level 

“organizer-leader” enhancement under U.S.S.G. § 3B1.1(c) when the evidence at trial 

emphasized that Johnson supplied the money for the deal on July 31 and took over the 

conversation with the undercover agent. We review a district court’s finding as to a 

defendant’s role in a crime for clear error. United States v. Richards, 674 F.3d 215, 221 

(3d Cir. 2012).

Under U.S.S.G. § 3B1.1(c), a defendant may receive a two-level sentence 

enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any 

criminal activity.” We have held that this enhancement “is only appropriate if the 

defendant directed and controlled at least one individual.” United States v. Bethancourt, 

65 F.3d 1074, 1081 (3d Cir. 1995). Recruitment of accomplices and participation in 

planning are both factors to be considered in applying the enhancement. U.S.S.G. § 

3B1.1 cmt. n.4; see also United States v. Garcia, 413 F.3d 201, 223 (2d Cir. 2005) (“A 

defendant may properly be considered a manager or supervisor if he . . . played a 

significant role in the decision to recruit or to supervise lower-level participants.” 

(quotation marks and alteration omitted)).
14

Here, the evidence at trial showed that Johnson brought the money on July 31 and 

took control of the conversation with Agent Walter. But the evidence also showed that 

Edmonds was the one who approached Sanchez, recruited Johnson, and set up the deal. 

In light of Edmonds’s primary role in initiating and arranging the crime, we cannot say 

the District Court’s finding that he was an organizer-leader was implausible. Therefore, 

the District Court did not clearly err in applying the organizer-leader enhancement under 

U.S.S.G. 3B1.1(c). See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) 

(“Where there are two permissible views of the evidence, the factfinder’s choice between 

them cannot be clearly erroneous.”).

IV.

For the foregoing reasons, we will affirm the judgments of the District Court.