09-1725-cr

United States v. Baldwin

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 27th 4 day of October, two thousand ten.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 WILFRED FEINBERG,

9 JOSÉ A. CABRANES,

10 Circuit Judges.

11

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 09-1725-cr

17

18 MAURIEL GLOVER, ALSO KNOWN AS FEET,

19 ROSHAUN HOGGARD, ALSO KNOWN AS FOOT,

20 GENERO MARTE, ALSO KNOWN AS G, ROBERT

21 RAWLS, CHARLES BUNCH, ALSO KNOWN AS

22 JUNE, CHRISTOPHER LAMONT SHERMAN, ALSO

23 KNOWN AS C-L, TORRANCE MCCOWN, ALSO

24 KNOWN AS TERRANCE MCCOWN, JAKE,

25 WILLIAM HOLLY, ALSO KNOWN AS L-O,

26 JASON MARCEL DOCKERY, KENNETH THAMES,

27 ALSO KNOWN AS K-T, JOHN HOBSON, ALSO

28 KNOWN AS UNCLE JOHN, BIG JOHN, KEITH

29 WHITE, GLORIA WILLIAMS, ALSO KNOWN AS

30 GLO, DANTE COBB, CARNEL SYLVESTER
2

1 EDWARDS, TERRANCE JOWERS, ALSO KNOWN

2 AS T-NICE,

3 Defendants,

4

5 WILLIAM BALDWIN,

6 Defendant-Appellant.

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8

9 FOR APPELLANT: James M. Branden, New York, New York.

10

11 FOR APPELLEE: H. Gordon Hall, Assistant United States

12 Attorney (Sandra S. Glover, Assistant

13 United States Attorney, on the brief),

14 for David B. Fein, United States Attorney

15 for the District of Connecticut, New

16 Haven, Connecticut.

17

18 Appeal from a judgment of the United States District

19 Court for the District of Connecticut (Hall, J.).

20

21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

22 AND DECREED that the judgment of the district court be

23 AFFIRMED. 

24

25 William Baldwin appeals from his conviction, after a

26 trial by jury, of conspiracy to possess with intent to

27 distribute and to distribute fifty grams or more of cocaine

28 base. 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(iii), 846. 

29 Baldwin argues that insufficient evidence supported his

30 conviction and that the district court erred in denying his

31 request for a missing witness instruction. In a letter

32 submitted after argument, see Fed. R. App. P. 28(j), Baldwin

33 also argues that his sentence should be vacated in light of

34 the passage of the Fair Sentencing Act of 2010. We assume

35 the parties’ familiarity with the underlying facts, the

36 procedural history, and the issues presented for review.

37

38 [1] It is well-established that a “defendant challenging

39 the sufficiency of the evidence underlying a criminal

40 conviction bears a heavy burden[] because this Court must

41 review the evidence in the light most favorable to the

42 government, drawing all reasonable inferences in its favor.” 

43 United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2009)
3

1 (internal quotation marks omitted). We will reverse a

2 defendant’s conviction “only if no rational factfinder could

3 have found the crimes charged proved beyond a reasonable

4 doubt.” Id. (internal quotation marks omitted). 

5

6 Baldwin does not challenge the fact that a conspiracy

7 existed; he argues only that the government adduced

8 insufficient evidence of his knowing participation in the

9 conspiracy. We disagree. The evidence presented at trial

10 was sufficient to allow a rational jury to conclude that

11 Baldwin shared in the purpose of a larger conspiracy, and

12 was not merely a buyer and user of drugs. See United States

13 v. Rojas, --- F.3d ---, 2010 WL 3169299, at *4 (2d Cir. Aug.

14 12, 2010). Specifically, Baldwin and the author of the

15 conspiracy, Mauriel Glover, had a relationship characterized

16 by prolonged cooperation and mutual trust, and engaged in

17 standardized transactions. See United States v. Hawkins,

18 547 F.3d 66, 74 (2d Cir. 2008). Glover and Baldwin also

19 communicated in code, which the jury could have inferred was

20 known only to members of the conspiracy. Moreover, when

21 Baldwin was arrested, he was found in possession of drugs

22 and bags typically used to package these drugs for resale. 

23 The jury could have inferred from the quantities of drugs

24 Baldwin purchased from Glover that they were not all for his

25 personal use. See id.

26 

27 Finally, the fact that two cooperating witnesses who

28 testified at trial, who were also members of the conspiracy,

29 were not acquainted with Baldwin does not preclude a finding

30 that Baldwin was a member of the same conspiracy. “A single

31 conspiracy may encompass members who neither know one

32 another’s identities, nor specifically know of one another’s

33 involvement.” United States v. Sureff, 15 F.3d 225, 230 (2d

34 Cir. 1994) (internal quotation marks and citation omitted). 

35 This is so as long as each defendant “knew or had reason to

36 know” that others were involved in a broad narcotics

37 conspiracy. United States v. Barnes, 604 F.2d 121, 155 (2d

38 Cir. 1979) (emphasis omitted).

39

40 [2] We review the denial of a missing witness instruction

41 for abuse of discretion, and a district court’s “failure to

42 give the instruction rarely warrants reversal.” United

43 States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994). In this
4

1 case, the district court’s decision not to grant the

2 requested instruction was a proper exercise of its

3 discretion.

4

5 Baldwin failed to establish that Glover -- the missing

6 witness in question -- was peculiarly within the power of

7 the government to produce as a trial witness. See United

8 States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994). Indeed,

9 Baldwin never even sought to subpoena Glover. The record

10 reveals that Glover was effectively unavailable to the

11 government; the government had a reasonable basis to believe

12 that, if called as a witness, Glover would give perjurious

13 testimony. This Court has “suggested that where a witness

14 is equally unavailable to both sides, a missing witness

15 charge is inappropriate.” United States v. Caccia, 122 F.3d

16 136, 139 (2d Cir. 1997) (internal quotation marks omitted). 

17 In light of these circumstances, we conclude the district

18 court properly declined to issue the requested instruction.

19

20 [3] Baldwin is not entitled to the benefit of the recently

21 enacted Fair Sentencing Act of 2010. The Act contains no

22 express statement that it is intended to have retroactive

23 effect nor can we infer such intent from its language. See

24 1 U.S.C. § 109 (“The repeal of any statute shall not have

25 the effect to release or extinguish any penalty . . .

26 incurred under such statute, unless the repealing Act shall

27 so expressly provide, and such statute shall be treated as

28 still remaining in force for the purpose of sustaining any

29 proper action or prosecution for the enforcement of such

30 penalty[.]”). Consequently, we must apply the mandatory

31 minimum in effect at the time Baldwin committed the offense

32 in question. See Warden, Lewisburg Penitentiary v. Marrero,

33 417 U.S. 653, 661 (1974) (noting that “the saving clause has

34 been held to bar application of ameliorative criminal

35 sentencing laws repealing harsher ones in force at the time

36 of the commission of an offense”); United States v.

37 Carradine, --- F.3d ---, 2010 WL 3619799, at *4-5 (6th Cir.

38 Sept. 20, 2010) (concluding that the Fair Sentencing Act

39 does not apply retroactively); United States v. Gomes, ---

40 F.3d ---, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010)

41 (per curiam) (“[B]ecause the [Fair Sentencing Act] took

42 effect . . . after appellant committed his crimes, 1 U.S.C.

43 § 109 bars the Act from affecting his punishment.”); see
5

1 also United States v. Smith, 354 F.3d 171, 175 (2d Cir.

2 2003) (observing that section 109 “saves sentencing

3 provisions in addition to substantive laws”).

4

5 Finding no merit in any of the arguments raised by

6 Baldwin on appeal, we hereby AFFIRM the judgment of the

7 district court.

8

9 FOR THE COURT:

10 CATHERINE O’HAGAN WOLFE, CLERK

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