09-1725-cr United States v. Baldwin



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A** 
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 27 th** **day of October, two thousand ten.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **WILFRED FEINBERG,** 8 **JOSÉ A. CABRANES,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **UNITED STATES OF AMERICA,** 13 **Appellee ,**  14 15 **-v.- 09-1725-cr** 16 17 **MAURIEL GLOVER, ALSO KNOWN AS FEET,** 18 **ROSHAUN HOGGARD, ALSO KNOWN AS FOOT,** 19 **GENERO MARTE, ALSO KNOWN AS G, ROBERT** 20 **RAWLS, CHARLES BUNCH, ALSO KNOWN AS** 21 **JUNE, CHRISTOPHER LAMONT SHERMAN, ALSO** 22 **KNOWN AS C-L, TORRANCE MCCOWN, ALSO** 23 **KNOWN AS TERRANCE MCCOWN, JAKE,** 24 **WILLIAM HOLLY, ALSO KNOWN AS L-O,** 25 **JASON MARCEL DOCKERY, KENNETH THAMES,** 26 **ALSO KNOWN AS K-T, JOHN HOBSON, ALSO** 27 **KNOWN AS UNCLE JOHN, BIG JOHN, KEITH** 28 **WHITE, GLORIA WILLIAMS, ALSO KNOWN AS** 29 **GLO, DANTE COBB, CARNEL SYLVESTER** 302 **EDWARDS, TERRANCE JOWERS, ALSO KNOWN** 1 **AS T-NICE,** 2 **Defendants ,**  3 4 **WILLIAM BALDWIN,** 5 **Defendant-Appellant**

**.** 6 - - - - - - - - - - - - - - - - - - - -X 7 8 **FOR APPELLANT:** James M. Branden, New York, New York. 9 10 **FOR APPELLEE:** H. Gordon Hall, Assistant United States 11 Attorney (Sandra S. Glover, Assistant 12 United States Attorney, on the brief ), 13 forDavid B. Fein, United States Attorney 14 for the District of Connecticut, New 15 Haven, Connecticut. 16 17 Appeal from a judgment of the United States District 18 Court for the District of Connecticut (Hall, J. ). 19 20 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 21 **AND DECREED**that the judgment of the district court be 22
**AFFIRMED**

. 23 24 William Baldwin appeals from his conviction, after a 25 trial by jury, of conspiracy to possess with intent to 26 distribute and to distribute fifty grams or more of cocaine 27 base. 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(iii), 846. 28 Baldwin argues that insufficient evidence supported his 29 conviction and that the district court erred in denying his 30 request for a missing witness instruction. In a letter 31 submitted after argument, seeFed. R. App. P. 28(j), Baldwin 32 also argues that his sentence should be vacated in light of 33 the passage of the Fair Sentencing Act of 2010. We assume 34 the parties’ familiarity with the underlying facts, the 35 procedural history, and the issues presented for review. 36 37 **[1]** It is well-established that a “defendant challenging 38 the sufficiency of the evidence underlying a criminal 39 conviction bears a heavy burden[] because this Court must 40 review the evidence in the light most favorable to the 41 government, drawing all reasonable inferences in its favor.” 42 United States v. Mercado , 573 F.3d 138, 140 (2d Cir. 2009) 433 (internal quotation marks omitted). We will reverse a 1 defendant’s conviction “only if no rational factfinder could 2 have found the crimes charged proved beyond a reasonable 3 doubt.” Id. (internal quotation marks omitted). 4 5 Baldwin does not challenge the fact that a conspiracy 6 existed; he argues only that the government adduced 7 insufficient evidence of his knowing participation in the 8 conspiracy. We disagree. The evidence presented at trial 9 was sufficient to allow a rational jury to conclude that 10 Baldwin shared in the purpose of a larger conspiracy, and 11 was not merely a buyer and user of drugs. SeeUnited States 12 v. Rojas , --- F.3d ---, 2010 WL 3169299, at *4 (2d Cir. Aug. 13 12, 2010). Specifically, Baldwin and the author of the 14 conspiracy, Mauriel Glover, had a relationship characterized 15 by prolonged cooperation and mutual trust, and engaged in 16 standardized transactions. SeeUnited States v. Hawkins

, 17 547 F.3d 66, 74 (2d Cir. 2008). Glover and Baldwin also 18 communicated in code, which the jury could have inferred was 19 known only to members of the conspiracy. Moreover, when 20 Baldwin was arrested, he was found in possession of drugs 21 and bags typically used to package these drugs for resale. 22 The jury could have inferred from the quantities of drugs 23 Baldwin purchased from Glover that they were not all for his 24 personal use. Seeid. 25 26 Finally, the fact that two cooperating witnesses who 27 testified at trial, who were also members of the conspiracy, 28 were not acquainted with Baldwin does not preclude a finding 29 that Baldwin was a member of the same conspiracy. “A single 30 conspiracy may encompass members who neither know one 31 another’s identities, nor specifically know of one another’s 32 involvement.” United States v. Sureff , 15 F.3d 225, 230 (2d 33 Cir. 1994) (internal quotation marks and citation omitted). 34 This is so as long as each defendant “knew or had reason to 35 know” that others were involved in a broad narcotics 36 conspiracy. United States v. Barnes , 604 F.2d 121, 155 (2d 37 Cir. 1979) (emphasis omitted). 38 39 **[2]** We review the denial of a missing witness instruction 40 for abuse of discretion, and a district court’s “failure to 41 give the instruction rarely warrants reversal.” United 42 States v. Adeniji , 31 F.3d 58, 65 (2d Cir. 1994). In this 434 case, the district court’s decision not to grant the 1 requested instruction was a proper exercise of its 2 discretion. 3 4 Baldwin failed to establish that Glover -- the missing 5 witness in question -- was peculiarly within the power of 6 the government to produce as a trial witness. See United 7 States v. Myerson , 18 F.3d 153, 158 (2d Cir. 1994). Indeed, 8 Baldwin never even sought to subpoena Glover. The record 9 reveals that Glover was effectively unavailable to the 10 government; the government had a reasonable basis to believe 11 that, if called as a witness, Glover would give perjurious 12 testimony. This Court has “suggested that where a witness 13 is equally unavailable to both sides, a missing witness 14 charge is inappropriate.” United States v. Caccia , 122 F.3d 15 136, 139 (2d Cir. 1997) (internal quotation marks omitted). 16 In light of these circumstances, we conclude the district 17 court properly declined to issue the requested instruction. 18 19 **[3]** Baldwin is not entitled to the benefit of the recently 20 enacted Fair Sentencing Act of 2010. The Act contains no 21 express statement that it is intended to have retroactive 22 effect nor can we infer such intent from its language. See 23 1 U.S.C. § 109 (“The repeal of any statute shall not have 24 the effect to release or extinguish any penalty . . . 25 incurred under such statute, unless the repealing Act shall 26 so expressly provide, and such statute shall be treated as 27 still remaining in force for the purpose of sustaining any 28 proper action or prosecution for the enforcement of such 29 penalty[.]”). Consequently, we must apply the mandatory 30 minimum in effect at the time Baldwin committed the offense 31 in question. SeeWarden, Lewisburg Penitentiary v. Marrero

, 32 417 U.S. 653, 661 (1974) (noting that “the saving clause has 33 been held to bar application of ameliorative criminal 34 sentencing laws repealing harsher ones in force at the time 35 of the commission of an offense”); United States v. 36 Carradine , --- F.3d ---, 2010 WL 3619799, at *4-5 (6th Cir. 37 Sept. 20, 2010) (concluding that the Fair Sentencing Act 38 does not apply retroactively); United States v. Gomes , --- 39 F.3d ---, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010) 40 (per curiam) (“[B]ecause the [Fair Sentencing Act] took 41 effect . . . after appellant committed his crimes, 1 U.S.C. 42 § 109 bars the Act from affecting his punishment.”); see 435 alsoUnited States v. Smith , 354 F.3d 171, 175 (2d Cir. 1 2003) (observing that section 109 “saves sentencing 2 provisions in addition to substantive laws”). 3 4 Finding no merit in any of the arguments raised by 5 Baldwin on appeal, we hereby **AFFIRM** the judgment of the 6 district court. 7 8 FOR THE COURT: 9 CATHERINE O’HAGAN WOLFE, CLERK 10 11 12