2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-2014

USA v. Haki Whaley

Precedential or Non-Precedential: Non-Precedential

Docket 13-1943

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Haki Whaley" (2014). 2014 Decisions. Paper 222.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/222
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1943

____________

UNITED STATES OF AMERICA

v.

HAKI WHALEY,

a/k/a

HAK,

 Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-11-cr-00653-001)

District Judge: Honorable Berle M. Schiller

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 10, 2014

Before: CHAGARES, SHWARTZ, and ALDISERT, Circuit Judges.

(Filed: February 24, 2014)

____________

OPINION

____________

CHAGARES, Circuit Judge.

Haki Whaley challenges his conviction for conspiracy to distribute crack cocaine 

in violation of 21 U.S.C. § 846. He argues that at his trial there was either a constructive 

amendment of the indictment or a variance between the indictment and the proofs
2

presented. For the reasons that follow, we will affirm the District Court’s judgment of 

conviction.

I.

We write exclusively for the parties and therefore set forth only those facts that are 

necessary to our disposition. On October 31, 2012, a grand jury returned an eight-count 

superseding indictment against Whaley, Edward Powell, and Shawn Wilson, charging 

them with: conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 (Count 

1); and distribution of crack cocaine in violation of §§ 841(a)(1), (b)(1)(A) (Counts 2-8).

1

 

The indictment alleged that Whaley, Powell, and Wilson – together with Michael Green, 

Braheem Green, and Endrei McFadden – conspired to distribute large quantities of crack

cocaine “[f]rom at least March 2006, until at least July 13, 2009.” Appendix (“App.”) 51.

According to the indictment, Whaley and his co-defendants were members of an

organization, run by Michael Green, that distributed crack cocaine from various locations 

in Philadelphia and Montgomery County, Pennsylvania. Members of the organization 

allegedly took turns carrying the organization’s cell phone and filling orders of crack 

cocaine for customers who called the phone. The indictment alleged that Whaley played

multiple roles in the organization, including distributing crack cocaine to customers, 

helping to supervise other members, and helping to oversee a “stash house,” where the 

organization packaged and stored drugs and proceeds from sales. App. 52-53.

 

1

 On November 2, 2011, a grand jury in the Eastern District of Pennsylvania returned a 

seventeen-count indictment against Whaley, Braheem Green, Endrei McFadden, Powell, 

and Wilson, charging them with conspiracy to distribute and distribution of crack 

cocaine. Braheem Green and McFadden entered into plea agreements before the grand 

jury returned the superseding indictment. 
3

On December 6, 2012, the District Court began a jury trial of Whaley and 

Wilson.2 At trial, the Government presented testimony from a former customer of the 

organization, Thomas Tucci, Jr., who identified Whaley and testified that he had 

purchased crack cocaine from Whaley and his co-conspirators “[h]undreds of times,” 

starting in “2006, 2007 – something like that” until his arrest in 2009. App. 698. Two of 

Whaley’s alleged co-conspirators also described the organization and Whaley’s ongoing 

role in it. Braheem Green testified that, while incarcerated from the summer of 2007 

until April 2008, he would call Whaley “to see what’s going on, and [Whaley] would tell 

me he was running around,” which Green interpreted to mean that Whaley was 

“[w]orking the crack phone.” App. 617. McFadden testified that Whaley was “the next 

most senior” to Michael Green in the organization. App. 519. 

The Government rested its case-in-chief on December 7, after which both Whaley

and Wilson moved orally for judgment of acquittal on the conspiracy count. The District 

Court denied their motions. Thereafter, the jury returned guilty verdicts against Whaley 

on all counts, including the conspiracy charge. The jury answered interrogatories stating

that it unanimously found Whaley guilty of conspiracy to distribute crack cocaine “from 

at least March 2006, until July 13, 2009.” App. 141-42.3 

On December 20, 2012, Whaley pleaded guilty to three charges contained in a 

separate federal indictment. The two cases pending against Whaley were consolidated 

for sentencing purposes. On March 27, 2013, the District Court imposed upon Whaley a 

 

2

Powell entered into a plea agreement with the Government.

3

 The jury convicted Wilson of all counts except for one count of distribution of crack 

cocaine (Count 5).
4

sentence of 262 months of imprisonment and five years of supervised release. Whaley 

timely appealed from the District Court’s judgment. On appeal, Whaley limits his 

arguments to the conspiracy conviction. 

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate 

jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review in determining 

whether there was a constructive amendment of the indictment and whether there was a 

variance between the indictment and the proofs at trial.” United States v. Daraio, 445 

F.3d 253, 259 (3d Cir. 2006). However, inasmuch as Whaley did not raise these 

arguments in the District Court, we will “consider them on a plain error basis with respect 

to granting relief if there was an error on either basis.” Id; see also United States v. 

Syme, 276 F.3d 131, 148 (3d Cir. 2002). We will grant relief only if we conclude that: 

(1) there was an error; (2) the error was clear or obvious; and (3) the error affected the 

appellant’s substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009); see 

also United States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013). 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 (emphasis and quotation marks omitted). 

III.

Whaley argues, first, that the Government constructively amended the superseding 

indictment through the evidence presented at his trial, in violation of his Fifth 

Amendment rights. In the alternative, he argues that there was a prejudicial variance in 
5

the evidence presented at his trial from the terms of the superseding indictment. We will 

address each argument in turn.

A.

“An indictment is constructively amended when evidence, arguments, or the 

district court’s jury instructions effectively ‘amend[s] the indictment by broadening the 

possible bases for conviction from that which appeared in the indictment.’” United States 

v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quoting United States v. Lee, 359 F.3d 194, 

208 (3d Cir. 2004)). A constructive amendment constitutes a per se violation of a 

defendant’s Fifth Amendment right to a grand jury, because it “deprives the defendant of 

his/her substantial right to be tried only on charges presented in an indictment returned by 

a grand jury.” Id. (quotation marks omitted). 

While the superseding indictment returned by the grand jury charged him with

participating in a conspiracy “from at least March 2006, until July 13, 2009,” Whaley 

argues, “[t]he government proved [at trial] at best two conspiracies of considerably 

shorter duration.” Whaley Br. 17. He asserts, specifically, that “the government only 

presented evidence of a conspiracy that existed until March of 2006 . . . and a later 

conspiracy operated . . . from late 2008 until July 13, 2009,” but “[t]here is no 

demonstrative evidence to support the allegation that the conspiracy continued until late 

summer/early fall of 2008.” Id. at 16. Thus, in finding Whaley guilty for participating in 

a conspiracy from at least March 2006 until July 13, 2009, “the jury may have convicted 

Mr. Whaley for an offense substantially different from the offense in the superseding 

indictment returned by the grand jury.” Id. at 17.
6

We disagree. The Government offered evidence – including testimony from 

Whaley’s former customer and his alleged co-conspirators – from which the jury could 

have concluded that Whaley participated in one ongoing conspiracy lasting from 2006 

until 2009. The evidence presented at trial did not “broaden[] the possible bases for 

conviction from that which appeared in the” superseding indictment. McKee, 506 F.3d at 

229. Indeed, the Government intended to prove exactly that Whaley committed the 

crimes with which he was charged, and, based on this evidence, the jury found Whaley 

guilty for the crimes listed in the superseding indictment. There was no constructive 

amendment at Whaley’s trial, and thus, there was no plain error.

B.

A variance occurs when the terms of the indictment “are unchanged, but the 

evidence at trial proves facts materially different from those alleged in the indictment.” 

United States v. Daraio, 445 F.3d 253, 261 (3d Cir. 2006).4 “Unlike a constructive 

amendment, a variance can result in a reversible error only if it is likely to have surprised 

or otherwise has prejudiced the defense.” Id. at 262. A variance does not prejudice a 

defendant’s substantial rights if: (1) the indictment sufficiently informs the defendant of 

the charges against him so that he may prepare his defense and not be surprised at trial; or

(2) the variance is not such that it will present a danger that the defendant may be 

prosecuted a second time for the same offense. Id.

 

4

 Whereas a constructive amendment implicates the Fifth Amendment grand jury right, 

“the concerns raised by a variance argument are the fairness of the trial and the protection 

of the defendant’s right to notice of the charges against her and her opportunity to be 

heard.” Daraio, 445 F.3d at 261. Accordingly, we have recognized that the variance rule 

“is more of a due process rule.” Id. (quotation marks omitted).
7

Whaley asserts that, based on the evidence offered at trial, “there is a substantial 

danger that [he] was convicted of the one greater conspiracy, as charged in the 

indictment, based upon the conduct of others.” Whaley Br. 19. He argues, again, that 

“the evidence identifies at best two separate conspiracies,” id., and that any evidence of a 

conspiracy for the period between March 2006 and the fall of 2008 “pertain[ed] solely to 

his co-defendant Shawn Wilson,” id. at 18. 

Although we have recognized that in certain cases “[t]here is a variance if the 

indictment charges a single conspiracy while the evidence presented at trial proves only 

the existence of multiple conspiracies,” United States v. Kemp, 500 F.3d 257, 287 (3d 

Cir. 2007), in Whaley’s case there was sufficient evidence, as described supra, from 

which the jury could have concluded that the Government proved the single conspiracy 

alleged in the superseding indictment. The superseding indictment put Whaley on notice 

of the charges he faced at trial, and there is no danger that he will be prosecuted again for 

the same offense. No variance occurred in Whaley’s case. Accordingly, there was no 

plain error by the District Court.

IV.

For the foregoing reasons, we will affirm the District Court’s judgment of 

conviction.