2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-20-2012

USA v. Jamal Anthony

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2222

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Recommended Citation

"USA v. Jamal Anthony" (2012). 2012 Decisions. Paper 1561.

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1

aidin NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 11-2222

_____________

UNITED STATES OF AMERICA

v.

JAMAL ANTHONY,

 Appellant

_____________

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania 

District Court No. 1-09-cr-00179-002

District Judge: The Honorable Sylvia H. Rambo 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 12, 2012

Before: SCIRICA, RENDELL, and SMITH, Circuit Judges

(Filed: January 20, 2012)

 

_____________________

 OPINION

_____________________ 

SMITH, Circuit Judge.

On or about April 2, 2009, Jamal Anthony, at the request of his friend 

Brandon Wallace, distributed 13.3 grams of crack cocaine to Corey Dickerson, an 
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undercover officer with the Dauphin County Criminal Investigation Division. 

Thereafter, a two-count indictment charged Brandon and Anthony with distributing 

and possessing with the intent to distribute 50 grams of cocaine base and marijuana 

in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting the same in violation 

of 18 U.S.C. § 2 (Count I), and conspiracy to distribute five grams and more of 

cocaine base in violation of 21 U.S.C. § 846 (Count II). 

Anthony maintained his innocence and proceeded to trial. The government 

presented, inter alia, the testimony of Officer Dickerson, who identified Anthony 

as the person from whom he purchased the crack cocaine, Detective Jason Paul, 

who conducted the surveillance video, and Anthony’s co-conspirator Wallace. 

Near the end of the government’s case-in-chief, the defense moved for a judgment 

of acquittal on Count I because the government had not adduced any evidence to 

show that Anthony had distributed 50 grams or more of cocaine. The Court noted 

that the “jury could find less than that.” Defense counsel acknowledged as much, 

but urged the Court to dismiss the charge to the extent it alleged that 50 grams or 

more had been distributed. The government acceded to that request, but asked for 

a finding of five grams or more. The Court granted the motion. Thereafter, the

defense presented two witnesses. No rebuttal was offered. The jury found 

Anthony guilty on Count I with respect to the distribution of cocaine base of five 

grams or more, and the conspiracy offense charged in Count II. At sentencing, the 

Court granted a one-level downward variance in recognition of the disparity 
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between crack and powder cocaine, yielding a guidelines range of 84 to 105 

months, and sentenced him to 105 months of imprisonment. This timely appeal

followed, challenging Anthony’s conviction on several grounds and seeking to set 

aside his sentence.

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Anthony submits that his conviction should be set aside because of a Batson

violation. See Batson v. Kentucky, 467 U.S. 79, 98-99 (1986). The record 

demonstrates that while the parties were exercising their peremptory challenges, 

the defense asked the government to state its race-neutral reason for striking one of 

the two African-American venirepersons. Before the District Court could even 

address whether Anthony had established a prima facie case of purposeful 

discrimination, the government cited the individual’s employment and its inability 

to determine whether he had any connection with activity that had been the subject 

of both state and federal investigations over the past two years. Although the 

defendant bears the burden of demonstrating that the government’s action 

constituted purposeful discrimination, id. at 93, defense counsel neither challenged

the government’s reason nor presented to the District Court any argument that it 

should reject the government’s strike. 

 

Before us Anthony submits that the government’s reason was insufficient 

and pretextual. But he offers no discussion of the circumstances that would 

 1

 The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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support a finding that the government exercised its strike on account of the 

individual’s race. Accordingly, we review for plain error and will set aside 

Anthony’s conviction only if we conclude that the error affected his substantial 

rights. United States v. Olano, 507 U.S. 725, 734 (1993). 

In light of the race-neutral reason offered without hesitation by the 

government and Anthony’s failure to offer any argument to demonstrate that the 

reason was pretextual, we are not convinced that Anthony actually raised a Batson

challenge that required the Court to proceed to the third step in the Batson analysis. 

Nonetheless, assuming that the Court erred by failing to engage in Batson’s third 

step, we conclude that the error did not affect Anthony’s substantial rights given 

the circumstances before us. 

Anthony contends that the District Court also erred by denying his motion to 

suppress the police officer’s identification. “Where a motion to suppress has been 

denied, we review the order ‘for clear error as to the underlying facts, but exercise 

plenary review as to its legality in the light of the court’s properly found facts.’” 

United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006) (citation omitted).

“An identification procedure that is both (1) unnecessarily suggestive and 

(2) creates a substantial risk of misidentification violates due process.” Id. (citing 

Manson v. Brathwaite, 432 U.S. 98, 107 (1977)). In Brathwaite, the Court 

acknowledged that “identifications arising from single-photograph displays may be 

viewed in general with suspicion.” 432 U.S. at 116 (citing Simmons v. United 
5

States, 390 U.S. 377, 383 (1968)). The Court instructed, however, that the inquiry 

does not end there as “reliability is the linchpin in determining the admissibility of 

identification testimony . . . The factors to be considered . . . include the 

opportunity of the witness to view the criminal at the time of the crime, the 

witness’ degree of attention, the accuracy of his prior description of the criminal, 

the level of certainty demonstrated at the confrontation, and the time between the 

crime and the confrontation. Against these factors is to be weighed the corrupting 

effect of the suggestive identification itself.” Id. at 114 (citing Neil v. Biggers, 409 

U.S. 188, 199-200 (1972)).

Here, after hearing the testimony of Officer Dickerson, who purchased the 

crack cocaine, and Officer Paul, who conducted the surveillance video, the Court 

determined that Officer Dickerson’s identification was sufficiently reliable given 

the circumstances surrounding his observations and the subsequent identification. 

The Court specifically noted Officer Dickerson’s close attention to Anthony’s 

physical appearance, his certainty that he had identified the correct individual, and 

the fact that he cited specific details regarding Anthony’s features. Our review of 

the record provides no basis for disturbing the District Court’s determination that 

Officer’s Dickerson’s identification was admissible at trial. 

According to Anthony, the District Court also erred by refusing to limit the 

government’s cross-examination of a defense witness, Glenn Walker, who testified 

that Brandon had informed him while in prison that Anthony had not been 
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involved. Anthony sought to exclude reference to the fact that the conversation 

occurred while both were incarcerated. We review a District Court’s ruling on the 

admissibility of evidence under Federal Rule of Evidence 403 for an abuse of 

discretion. United States v. Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010). After 

consideration of the record, we conclude that the District Court did not abuse its 

discretion in concluding that the context of the conversation, which was relevant to 

Walker’s motive and credibility, was admissible.

Additionally, Anthony challenges his conviction for knowingly distributing 

and possessing with the intent to distribute cocaine under Count I on the basis that 

the Court improperly amended the indictment by changing the alleged 50 grams of 

cocaine to 5 grams or more. The government asserts that the Court permissibly 

instructed the jury on the lesser included offense of distributing and possessing 

with the intent to distribute five grams of cocaine. We review de novo a claim that 

there was a constructive amendment of the indictment. Id. at 531. We agree with 

the government that the District Court’s instruction on the lesser included offense 

did not constitute a constructive amendment. United States v. Martinez, 430 F.3d 

317, 340 (6th Cir. 2005); see also United States v. Vazquez, 271 F.3d 93, 105 (3d 

Cir. 2001) (en banc); Fed. R. Crim. P. 31(c). 

Finally, Anthony argues that the District Court erred at sentencing by 

attributing to him an additional ten grams of cocaine based on Brandon’s 

testimony. Anthony asserts that Brandon’s testimony failed to establish that he 
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gave this additional quantity of cocaine during the period of the conspiracy 

charged in the indictment. For that reason, Anthony submits that the District Court 

erred by including the ten grams of cocaine base in the computation of the drug 

quantity for purposes of sentencing. 

Anthony’s argument challenges the District Court’s calculation of his 

sentencing guidelines range. Because this raises a contention of procedural error, 

we review for an abuse of discretion. United States v. Tomko, 562 F.3d 558, 567-

68 (3d Cir. 2009) (en banc). In Tomko, we noted that “an abuse of discretion has 

occurred if a district court based its decision on a clearly erroneous factual 

conclusion or an erroneous legal conclusion.” Id. at 568. We have carefully 

reviewed the record before us and we reject Anthony’s contention of error. After 

considering Brandon’s trial testimony and the testimony of the agent from the 

Federal Bureau of Investigation about his meeting with Brandon, the District Court 

concluded that the ten grams Anthony received was not for personal use, but “was 

going to be used for sale or distribution.” Thus, it was appropriately included in 

the drug quantity calculation as uncharged conduct that was part of the same 

course of conduct as the offense of conviction. See Jansen v. United States, 369 

F.3d 237, 249-50 (3d Cir. 2004) (concluding that drugs possessed for personal use 

should not be included in computation of drug quantity for offense of possessing 

with the intent to distribute). The fact that Anthony’s receipt of the cocaine 

preceded the timeframe alleged in the indictment did not preclude the Court from 
8

considering it. United States v. Stephens, 198 F.3d 389, 390-91 (3d Cir. 1999) 

(noting that Sentencing Reform Act does not place any limitations on the 

information a sentencing court may consider (citing 18 U.S.C. § 3661)), see also 

Witte v. United States, 515 U.S. 389, 399, 403 (1995) (concluding that 

consideration at sentencing of uncharged criminal conduct did not offend the 

Double Jeopardy Clause and was permissible under the sentencing guidelines).

For the above reasons, we will affirm the judgment of the District Court.