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United States v. McCoy

February 2, 2006

UNITED STATES OF AMERICA
v.
MARCRESSE MCCOY



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter arises from a petition filed by the Defendant, Marcresse McCoy, pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence for certain drug-related offenses. On May 20, 2003, this Court entered a Memorandum Opinion and Order dismissing McCoy's petition. On June 6, 2005 the Third Circuit Court of Appeals reversed that decision and remanded the matter back to this Court with instructions that we hold an evidentiary hearing on McCoy's claim that his trial counsel, Khadija Diggs, Esq., was ineffective. The circuit court's mandate was entered on the district court docket on July 6, 2005, and an evidentiary hearing was held before the undersigned on September 16, 2005. Because this Court's ruling on McCoy's § 2255 claim must be made in the context of the entire case, we set forth below in some detail the relevant background and procedural history.

Background Facts

On the afternoon of March 17, 1998, an informant by the name of Terry Seigworth disclosed to agents of the Erie Area Gang and Law Enforcement ("EAGLE") Task Force that he had received a phone call earlier that morning from an individual named Joseph Barnette, also known to Seigworth as "Egygt." (Trial Transcript, hereinafter "Trial Tr.," Vol. 2 at pp. 41-42, 69.)*fn1 Barnette had indicated to Seigworth that he would be arriving in Erie, Pennsylvania on a Greyhound bus at 5:15 p.m. and asked Seigworth to pick him up at the bus station. (Id. at 42, 52, 56, 70.) According to Seigworth, Barnette had also indicated that he would be "bringing something" with him. Seigworth understood that "something" to mean crack cocaine. (Id. at 42, 52-53, 70.) Based on this information, Eagle Task Force agents established surveillance at the bus station. (Id. at 70-71.)

Upon his arrival, Barnette departed the bus with no bags, hurriedly made his way out the front door of the bus terminal, and began surveying the area. (Trial Tr. Vol. 2, pp. 87-88; Vol. 3, pp. 29-30, 37-38.) Shortly thereafter, three other black males carrying various bags departed the bus, exited the terminal through the front door, and set their bags on the sidewalk near Barnette. (Trial Tr. Vol. 2, pp. 104-05; 112; Vol. 3, pp. 31-34, 162.) One of the individuals, later identified as Kendrick Grier, carried two garbage bags. (Trial Tr. Vol. 3, p. 195.) Another member of the group, later identified as Michael McQueen, carried a blue plastic bag. (Trial Tr. Vol. 2, pp. 104-05, 108, 111; Vol. 3, pp. 30-33, 70.) The fourth member of the group, later identified as Defendant McCoy, was observed by two Erie police officers -- Sergeant Robert Liebel and Sergeant Joseph Kress -- carrying a blue duffel bag from the terminal and placing it on the sidewalk at his feet. (Trial Tr. Vol. 3, pp. 33-35, 195-96.) According to Sgt. Kress, McCoy -- like Barnette -- appeared to walk in a hurried manner. (Trial Tr. Vol. 3, p. 56.)

Once outside, the four men were observed sharing cigarettes and talking as if they knew each other. (Trial Tr. Vol. 2, pp. 92, 104; Vol. 3, pp. 35, 70, 82, 196-97; Vol. 4, p. 25.) They also appeared to be scanning the parking lot in a suspicious fashion. (Trial Tr. Vol. 3, p. 35, 38.) After a moment, Barnette went inside to use the pay phone and then returned outside and stood with the group. (Trial Tr. Vol. 3, p. 69; Vol. 4, pp. 27-30.) Officers then approached the four men. (Trial Tr. Vol. 2, p. 154; Vol. 3, pp. 35-38; Vol. 4, pp. 28-29, 31, 38.)

As officers questioned the individuals separately, they received conflicting information. Barnette, for example, initially identified himself as "Ardell Griffin" and denied traveling with any of the other individuals. (Trial Tr. Vol. 2, p. 109, 155; Vol. 4, pp. 33-36.) However, when Detective Daniel Spizarny questioned McCoy, McCoy represented that his name was "Mark Chin" and stated that he was traveling with the others, specifically identifying "Ardell Griffin" (meaning Barnette) and "Mike" (meaning Michael McQueen). McCoy initially stated that he did not know the name of the individual later identified as Kendrick Grier. (Trial Tr. Vol. 4, p. 32-33, 47-48.) Grier, when questioned, identified himself as "Carlton Davidson" and admitted to traveling with the others. (Trial Tr. Vol. 2, pp. 107-08, 114-15.) Michael McQueen identified himself by the name "Demetriu." (Trial Tr. Vol. 4, p. 48.)

While officers were attending to members of the group, Sgt. Kress took McCoy aside and questioned him directly as to his identification and purpose for travel. (Trial Tr. Vol. 3, pp. 41-43, 73.) McCoy produced only a bus ticket in the name of "Mark Shinne" and identified himself by that name, giving two different spellings of his name -- "Chinne" and "Shinne." (Id. at pp. 44, 59.) At this point, McCoy appeared to be extremely nervous. When asked about the purpose of his trip to Erie, he was somewhat evasive, indicating that he had heard "there were a lot of girls that he could meet here." (Id. at 44-45.) When questioned whether he was traveling with anyone else, he indicated that he knew "Ardell Griffin." (Id. at p. 45.)

Meanwhile, Barnette returned inside the terminal and attempted to place a call at a payphone, his hand visibly shaking. (Trial Tr. Vol. 4, pp. 33-34, 36.) When Detective Daniel Spizarny approached him and asked whether he was "Joseph Barnette," he appeared stunned but denied that that was his name. (Trial Tr. Vol. 4, pp. 33-34.) When Detective Spizarny confronted him with another alias that he had used in the Past (i.e., "Ramone Griffin"), Barnette finally acknowledge his true identity, but denied traveling with anyone. (Trial Tr. Vol. 4, pp. 34-36.)

The task force officers then inquired about ownership of the bags that had been carried off the bus. McCoy promptly claimed ownership of the garbage bags that Grier had carried and gave officers permission to search them. (Trial Tr. Vol. 2, pp. 110-111, 143; Vol. 3, pp. 50, 94, 161, 183.) The two garbage bags contained shoes, shoe boxes and wet clothing. (Trial Tr. Vol. 2, pp. 94, 96-97, 99; Vol. 3, pp. 50, 161; Vol. 4, pp. 15, 23-24, 48-49.) McQueen claimed the remaining garbage bag, which was found to contain clothing. (Trial Tr. Vol. 2, pp. 94-95, 97, 111.) Only the blue canvas duffel bag remained unclaimed, and all of the group members denied owning it or knowing anything about it. (Trial Tr. Vol. 2, pp. 111-13; Vol. 3, pp. 46-47, 161-62, 172-73.) Since the bag rested at McCoy's feet (Trial Tr. Vol. 2, pp. 104-05; Vol. 3, pp. 172-73), officers questioned McCoy whether he had carried the bag. He specifically denied carrying it. (Trial Tr. Vol. 2, p. 114; Vol. 3, p. 116.)

Officers then proceeded to conduct a search of the duffel bag. Inside they found a 9 mm pistol wrapped in a towel and a .380 caliber pistol covered with a white wash cloth and stuffed inside a pair of jeans. (Trial Tr. Vol. 2, p. 116; Vol. 3 at p. 164.) Officers also recovered a brown paper bag containing several empty plastic baggies and 270 tiny Ziplock baggies storing what appeared (and later proved) to be crack cocaine. (Trial Tr. Vol. 2, pp. 120-22; Vol. 3 pp. 162-63.) In addition, officers retrieved a large Ziplock baggie containing approximately one pound of marijuana. (Trial Tr. Vol. 2, p. 119; Vol. 3, p. 163.) The duffel bag also contained miscellaneous items of name-brand clothing, including a pair of FUBU jeans and a pair of Nike Penny Hardaway hightop basketball shoes. (Trial Tr. Vol. 2, pp. 117-18.)

Upon the officers' recovery of the contraband, the four men were placed under arrest and brought to the Erie Police Department, where their personal effects were inventoried. (Trial Tr. Vol. 2, p. 123.) The evidence revealed that each of the four men had traveled from Detroit to Erie with bus tickets issued under an alias: Barnette's ticket was in the name of "Ardell Griffin," McCoy's ticket was in the name of "Mark Shinne," Grier's ticket was in the name of "Carlton Davidson," and McQueen's ticket was in the name of "Demetriu McQueen." (Trial Tr. Vol. 4, pp. 61-62, 70, 74.) All of the tickets had been purchased that day within four minutes of each other. (Id. at pp. 70-71.) McCoy was found to be in possession of Barnette's bus ticket along with his own ticket. (Trial Tr. Vol. 4, pp. 66-67, 74.) He was also in possession of a beeper registered to a Detroit address under the name of "Marshal Divine." (Id. at p. 68; Trial Tr. Vol. 4, pp. 93-95.) One of the numbers retrieved from the pager matched a number written on a piece of paper that was recovered from Barnette's pocket. (Trial Tr. Vol. 4, p. 73.)*fn2

At the police station, McCoy was given his Miranda rights by Pennsylvania State Trooper Anthony Bozich. After waiving those rights, McCoy was asked to sign a form acknowledging the waiver. (Trial Tr. Vol. 3, p. 166.) At that point, McCoy asked Trooper Bozich what name he should sign the form under, to which Trooper Bozich replied that McCoy should use his "true" name. (Trial Tr. Vol. 3, p. 169.) McCoy then inquired what name he had been arrested under and was again advised by Trooper Bozich to simply sign his true name. (Id.) McCoy signed the form under the name "Marcresse McCoy." (Id.) He then gave a statement to Trooper Bozich in which he denied any involvement with the drugs and indicated that he had traveled to Erie for the purpose of seeing a girl named "Chereka." (Id. at p. 169.) McCoy could not provide Trooper Bozich her last name or address, indicating only that she lived in the Franklin Terrace apartments. (Id.) When asked why he had purchased a ticket in the name of Mark Shinne, he indicated that his nickname was "Mark" and his mother's maiden name was "Chin." (Id. at p. 170.) When asked whom he was traveling with from Detroit, McCoy claimed that the only person he knew amongst the four was the individual he knew only as "Carlton" (meaning Grier). (Id.) He denied knowing Barnette or McQueen and claimed that "Carlton" had purchased both their tickets in Detroit. (Id. at pp. 170-71.) As to the bags in question, McCoy claimed that he had traveled only with the two garbage bags which he had identified at the bus station. (Id. at p. 171.)

At some point after Grier and McCoy had been placed in the same holding cell, McCoy asked to speak with F.B.I. Special Agent Shawn VanSlyke. (Trial Tr. Vol. 2, pp. 123-27.) McCoy gave Agent VanSlyke the same explanation that he had given to Trooper Bozich for using "Mark Chin" as an alias. (Id. at p. 125.) He again admitted traveling to Erie with Grier, but (contrary to his original statement to Detective Spizarny) continued to insist that he did not know Barnette or McQueen. (Trial Tr. Vol. 2, p. 125.) In fact, he claimed that he had "only met the guy in the red jacket" (meaning Barnette) on the bus when Barnette asked him for a cigarette. He was adamant in insisting that he and Grier had traveled together and that he did not know the other two individuals. (Id.) During this conversation with Special Agent VanSlyke, McCoy was looking to Grier for support. However Grier, having previously admitted to officers that all four individuals had traveled together, kept his head down and declined to make any comment. (Id. at pp. 126-27.)

Ultimately, Grier decided to cooperate with the law enforcement agents and later testified at the Defendants' trial concerning his account of the day in question. Following his arrest, Grier disclosed his true identity and informed the agents that he had escaped from a half-way house in Detroit and was on the run when Barnette, an old friend, offered to take him to Erie. (Trial Tr. Vol. 3, pp. 88-91, 95, 117-18, 127.) Grier and Barnette had made plans a couple days prior to March 17, 1998 to meet at the home of Barnette's Aunt Lee-Lee. (Id. at p. 98.) When Grier arrived at her home on the morning of March 17, 1998, he observed a blue canvas duffel bag already packed and lying on the floor. (Id. at 98-99.) Grier denied having any luggage of his own, explaining that he resisted returning to his own home for clothes because he knew that "bounty hunters" were looking for him. (Id. at 90-91, 94-95.) Grier's claim that he had traveled without any baggage was consistent with his bus ticket, which did not account for baggage.

After Grier arrived at the home of Barnette's aunt on the morning of March 17, he and Barnette left, without the blue duffel bag, to pick up McQueen and McCoy. (Trial Tr. Vol. 3, p. 99.) McCoy brought two garbage bags with him, while McQueen brought a blue garbage bag. (Trial Tr. Vol. 3, p. 99.) The four men then stopped back at Barnette's aunt's house to pick up the duffel bag before traveling to the bus station. (Trial Tr. Vol. 3, pp. 99, 103.) According to Grier, Barnette carried the duffel bag into the terminal and provided cash for each person's ticket. (Id. at pp. 95, 103.) Barnette gave McCoy money with which to purchase tickets for himself and Grier, while Barnette purchased tickets for himself and McQueen. (Id. at p. 95.) The tickets were purchased from the same ticket counter within four minutes of each other and within seven minutes of the bus's scheduled departure. (Trial Tr. Vol. 4, pp. 70-71, 84.)

From Detroit, the group traveled to Cleveland, where they changed buses en route to Erie. (Trial Tr. Vol. 3, pp. 103-04.) According to Grier, the blue duffel had been placed in the luggage compartment during the trip from Detroit to Cleveland but was claimed in Cleveland. (Trial Tr. Vol. 3, pp. 132-33.) While Grier believed that McQueen might have handled the duffel bag for a period of time in Cleveland, he recalled that McQueen turned the bag over to Barnette during the changeover in Cleveland and that Barnette had carried the bag during the Cleveland portion of the trip. (Id. at 105, 129, 133-34, 137.) Based on his observations of the origination and handling of the blue duffel bag, Grier concluded that it belonged to Barnette. (Id. at 104-05.)

Grier further disclosed that, during the bus trip, Barnette made several noteworthy statements. At one point, while addressing McQueen and McCoy, Barnette made a comment about "fixing to get paid" or "we're going to get some money," apparently referring to the fact that a white male in Erie owed Barnette money. (Trial Tr. Vol. 3, p. 105-06, 134-35.) Barnette also advised Grier that he (Barnette) had "a couple of joints," but he never disclosed to Grier the full extent of the contraband in the bag. (Id. at p. 104.) In addition, Barnette commented that the black Penny Hardaway basketball shoes Grier was wearing on the day in question were "just like" a pair that Barnette owned. (Id. at 119.) This latter remark was particularly significant because one of the items recovered from the blue duffel bag was a pair of black Penny Hardaway high-tops which were roughly Barnette's size and uniquely similar to those worn by Grier on March 17, 1998. (Trial Tr. Vol. 2, pp. 161-62, 169-72.)

Upon arriving in Erie, McCoy asked Grier to carry his two plastic garbage bags off the bus, and McCoy carried the blue duffel bag. (Trial Tr. Vol. 3, pp. 106-07, 132, 136.) Grier observed not only that McCoy carried the blue duffel bag upon the group's arrival in Erie, but that he stood closest to the bag while the group gathered in front of the bus terminal. (Id. at 106-07, 130-31.) While they were standing out in front of the bus terminal, Grier noticed a couple of the officers (still, at this point, undercover) and suggested to McCoy that they might be law enforcement. In reply, McCoy make a remark to the effect that "all the police down here wear uniforms." (Id. at 110.) Shortly thereafter, the police approached. (Id.) While they were questioned by the officers, Grier observed that McCoy specifically denied having carried the blue duffel bag and Barnette specifically denied owning it. (Id. at 116.)

The Indictment

On April 14, 1998 Barnette and McCoy were charged in a three-count indictment with federal drug offenses. [See Doc. # 1.] A superseding indictment was filed in June of 1998, adding additional firearms-related charges. [See Doc. # 34.] At Count 1, Barnette and McCoy were charged with conspiring to distribute and possess with the intent to distribute crack cocaine and marijuana. At Count 2 both Defendants were charged with possession with the intent to distribute in excess of 50 grams of crack cocaine. At Count 3, the Defendants were charged with possession with the intent to distribute less than 500 grams of marijuana. At Counts 4 and 5, Barnette and McCoy were respectively charged with being convicted felons in possession of a firearm.

Pre-Trial Proceedings

i. The Government's Notice of Intent to Use Rule 404(b) Evidence

On October 14, 1998, the government filed its notice of intent to use certain evidence under Fed.R.Evid. 403 and 404(b) relative to the Defendants' prior bad acts. [See Doc. # 63.] Specifically, the government sought to introduce evidence:

1. that Barnette sold crack cocaine in Erie, Pennsylvania on a number of occasions prior to March 17, 1998, that he had distributed this crack cocaine in small, zip-lock type baggies, similar to the ones found in the blue canvas bag at issue in the present case, that Barnette was obtaining his crack cocaine for distribution in the Erie area from Detroit, Michigan, that Barnette possessed large quantities of cocaine and marihuana with the intent to resell it on these prior occasions, and that during these occasions he always carried a handgun;

2. that McCoy was an associate of Barnette's who sold cocaine for Barnette on previous occasions in Erie in the months preceding the March 17, 1998 arrest date;

3. that Barnette has a 1993 felony drug conviction for dealing in cocaine in the State of Indiana;

4. that McCoy has a 1991 felony conviction for carrying a concealed weapon (handgun) in Michigan under the name of Jerron McCoy; and

5. that the guns in the blue duffel bag, which were the subject of Counts 4 and 5, were not registered to either Barnette or McCoy and had been reported stolen. (Id. at pp. 1-3.) In support of its theory, the government argued that the charges against the Defendants involved "specific intent crimes," that the Defendants had squarely put the issues of their knowledge and intent into contention by virtue of their "not guilty" pleas, and that the 404(b) evidence would be probative as to these issues. (Id. at pp. 6-7.)

ii. The October 15, 1998 Pretrial Conference

The following day, the court held a pretrial conference during which the parties addressed the government's 404(b) notice. The government asserted that evidence of prior drug-dealing by Barnette and McCoy would demonstrate a prior relationship between the two men which would be important to the context of the conspiracy charge and help establish the Defendants' knowledge and intent. (Pretrial Hrg. Tr. (10/15/98 [Doc. # 175]) at pp. 15, 17.) Similarly, the government sought to introduce Barnette's prior conviction for dealing in cocaine as proof of his knowledge, intent, and lack of mistake relative to the drug charges at issue. (Id. at 11-12.) The government argued that McCoy's prior firearm conviction would be relevant to show his lack of mistake, as well as his knowledge and intent, in possessing the concealed firearms recovered from the duffel bag. (Id. at 14-15.)

In response to these arguments, counsel for Barnette, Robert Sambroak, Jr., Esq., indicated that he would "very likely" be entering a stipulation pursuant to U.S. v. Jemal,*fn3 that could make the issues of knowledge and intent irrelevant to the prosecution's case. (Id. at 18-19.) The government acknowledged that such a stipulation might "dramatically" change its theory as to the 404(b) evidence. (Id. at 18.)

The following discussion then ensued between the Court and Ms. Diggs:

THE COURT: ... [Y]ou have just heard Mr. Sambroak indicate a possibility that his client would enter into a Jemal stipulation with respect to intent. Without holding you to any decision one way or the other, is there some possibility we may see the same thing from your client?

MS. DIGGS: There's always a possibility, so I don't want to say no, and I'm certainly willing to try to look at that and consider it. I appreciate what Mr. Sambroak said, however, in Mr. McCoy's case, I think it's a little different. Mr. McCoy doesn't have a prior conviction for drug trafficking. Mr. McCoy has a prior conviction for carrying a concealed weapon. So I would need to look at how a stipulation would affect him since there's a little variation on how the prior bad acts that the government proposes to put on with reference to some evidence of drug dealing involving these two people before March 17th would impact, but I'm perfectly willing to look at the possibility of that. And that was my first thing I wanted to address to the court is Mr. McCoy doesn't have a prior conviction that could be set forth to say here's an indication of knowledge and intent. So to allow the government to put forth evidence which we know means Mr. McCoy has previously in the Erie area been involved in drug trafficking with Mr. Barnette, does exactly what the rules prohibit, it allows the jury to then say, well, if he's done it before, then surely he's doing it again. That really is the only legitimate effect that is directed against Mr. McCoy. With reference to carrying a concealed weapon conviction, which Mr. McCoy does have, and the government desires to put that forward as a prior bad act, I think potentially that results in a trial. Because then we would need the opportunity to say this prior conviction was extremely different circumstances then [sic] this gun related matter that the government is putting forth now. The government argues that Mr. McCoy was charged with the firearms, pled and was convicted of one. And they want to compare that to the firearms being found in the duffel bag. However, the prior conviction involved the firearms on Mr. McCoy's person. Not something wrapped in the bag or wrapped in the towel in the duffel bag and some carry on luggage.

I think the circumstances are very different and, once again, it's clear that the government's purpose here is to tell the jury this person has been in possession of guns before, therefore, you should believe that they're in possession of guns now. I don't quite understand under what circumstances or by what means the government would attempt to put on this evidence of some prior drug trafficking.

I think in the interest of fairness and due process, we should be told, well, where is this evidence or who is this evidence coming from of prior drug trafficking because, frankly, if it's as clear as that, it shouldn't be a prior bad act, it should be part of the conspiracy that the government is alleging involving these two same parties. So to me this is just a very blatant attempt to do what would I [sic] generally call smear the defendants. It's an opportunity for the government to say, look, they've been bad before, so you should believe they're being bad now. ... THE COURT: Let me make sure I understand the thrust of the defense insofar as the duffel bag is concerned. I gather [the defense is] it's not my bag, I don't know anything about that bag, is that right?

MS. DIGGS: Correct.

THE COURT: I'm going to let you pursue that with your client, see what you want to do.

MS. DIGGS: Thank you. ***

THE COURT: .... Ms. Diggs, ... let someone on my staff know by Monday [October 19, 1998] whether or not your client is going to pursue a Jemal stipulation.

MS. DIGGS: Yes, I will.

THE COURT: Because it's going to be important on how I rule on this 404(b) material. ... (Id. at pp. 21-23, 25.)

iii. The Government's Supplemental Notice

On Friday, October 16, 1998, the government filed a supplemental notice of intent to use Rule 404(b) evidence. [See Doc. # 74.] In that notice, the government advised that, notwithstanding the Defendants' possible entry of a Jemal stipulation, [t]he government would still seek to admit the prior drug transactions engaged in by Barnette and McCoy and their prior relationship with one another to establish the parameters and circumstances surrounding proof required to show the conspiracy and that these two had acted in concert with an unlawful purpose.

The prior drug transaction of Barnette and McCoy, and their prior relationship would also be utilized to demonstrate defendant McCoy's consciousness of guilt. If the court will recollect, McCoy denied even knowing who Barnette was and having any association with him whatsoever. If the government can establish that McCoy had a prior association with Barnette, particularly one involving the sale of cocaine, this would demonstrate McCoy's consciousness of guilt in his denial of knowing co-defendant Barnette. The obvious and logical inference and one the government would be entitled to utilize, would be that McCoy's denial of knowing Barnette was only done because of McCoy's knowledge of the conspiratorial relationship he (McCoy) was seeking to protect. (Id.)

iv. Barnette's Jemal Stipulation

On Monday, October 19, 1998 -- the deadline which the Court had set for the Defendants' entry of a Jemal stipulation -- Barnette and his counsel, Mr. Sambroak, signed a written stipulation. The stipulation read as follows:

(a) With regard to the two (2) charges of possession with intent to distribute cocaine and marijuana, I agree and stipulate that in the event the jury finds as a matter of fact that I possessed the blue duffel bag seized at the Greyhound Bus Station in which the drugs were found, then the jury may also find without further evidence that I would know that the substances which were contained in the bag were cocaine and marijuana and further that I intended to distribute them. My defense in this case is that I was not in possession of the bag or the drugs or guns found in it.

By its terms, the stipulation did not extend to the conspiracy charged in Count One of the Superseding Indictment. v. The October 23, 1998 Pretrial Conference Another pretrial conference was held on October 23, 1998, the Friday prior to the scheduled trial date. (See Pretrial Hrg. Tr. (10/23/98 [Doc. # 176]).) At this conference, the government articulated its theory for introducing "signature packaging" evidence -- i.e., evidence that, in prior drug transactions, Barnette had packaged his cocaine in a manner uniquely similar to the manner in which the drugs in the blue duffel bag were packaged. (Id. at 3.) The government represented that one witness could also implicate McCoy with prior dealing involving this "signature" type packaging. (Id. at p. 9.)

The prosecution asserted that this "signature packaging evidence" was relevant to the conspiracy charge and that it ought to be admitted, notwithstanding Barnette's entry of a Jemal stipulation, because the stipulation did not go far enough: to wit, the stipulation did not address "the [Defendants] common plan to distribute the drugs or [the] signature type aspect of the bag" which, in the government's view, tied Barnette to the baggies of crack in the blue duffel bag and thereby helped establish his possession and ownership of it. (Id. at 8.) The government viewed this "signature" evidence as so essential to its case that, without it, the prosecution would be "cut off at the knees." (Id. at 8.) Apart from this "signature packaging" evidence, the government wanted to introduce evidence -- notwithstanding Barnette's Jemal stipulation -- of the Defendants' drug dealing activities in order to buttress the criminal conspiracy charge at Count One. (Id. at 36.)

Ms. Diggs, for her part, indicated that the Jemal stipulation was still "a problem" from her client's perspective because she still did not know precisely what the intended 404(b) evidence against McCoy consisted of:

I have a feeling I should be addressing this signature crime information, however, the government has yet to provide us a sufficient proffer.... That's sort of this whole 404(b), takes this whole Jemal stipulation problem, we have yet to be told what the evidence is. It goes back and forth, as far as I can tell, what connects McCoy to these bags, other than the government's witnesses who say he was carrying the duffel bag. I don't know whether to participate in the signature crime business or not because the only thing I heard was something to the effect of some witness is going to relate McCoy to the tiny baggies, what is that? (Id. at 22.)

In response, the Assistant U.S. Attorney proffered that he was "prepared to tell them everything" about the government's 404(b) evidence except for the witnesses' names, which would be revealed later in the day when the ...


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