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United States v. Pryor

United States District Court, W.D. Pennsylvania

June 21, 2017

UNITED STATES OF AMERICA
v.
ANTHONY PRYOR and LANCE YARBOUGH, Defendants.

          MEMORANDUM OPINION

          REGGIE B.WALTON United States District Judge.

         On January 17, 2017, the non-jury trial in this matter commenced before this member of the Court on Count One of the Indictment, which charged defendants Anthony Pry or and Lance Yarbough with conspiracy to distribute and possess with intent to distribute heroin "[f]rom [o]n and around an uncertain date in 2008, and continuing thereafter to [o]n and around October 2012." Indictment at 1, ECF No. 1. Count One further alleges that Anthony Pryor was legally responsible for 100 grams or more of a mixture and substance containing a detectable amount of heroin and that Lance Yarbough was legally responsible for one kilogram or more of a mixture and substance containing a detectable amount of heroin. See id. at 2-3. The bench trial addressing these charges was conducted as a result of the defendants' and the government's waiver of their rights to a jury trial, see Order at 1 (Dec. 22, 2016), ECF No. 624, and the presentation of the evidence concluded on January 30, 2017. What follows are the Court's factual findings and legal conclusions. Based upon those findings and conclusions, the Court finds both defendants guilty on Count One of the Indictment.

         I. EVIDENCE PRESENTED DURING THE TRIAL

         The government presented testimony during the trial of the following witnesses: (1) the Duquesne Police Department Chief Richard Adams; (2) Detective Jason Mikelonis from the Allegheny County Police Department; (3) Federal Bureau of Investigation ("FBI") Special Agent Leonard Piccini, Jr., the lead case agent in this matter; (4) various law enforcement personnel involved in the investigation; and (5) various individuals who participated in the heroin distribution conspiracy charged in this matter, including Ashley Auston, Richard Glenn, Rodney Brown, Isaiah Grier, and Corey Thompson. The government also presented numerous exhibits, including photographs taken during surveillance or recovered pursuant to a search warrant, as well as communications (i.e., text messages and telephone calls) intercepted either pursuant to warrants or conversations with cooperating witnesses. Set forth below is a summary of the relevant testimony and documentary evidence received during the trial.

         A. The Investigation of the Alleged Heroin Distribution Conspiracy

         Special Agent Piccini testified that the investigation into this alleged heroin distribution conspiracy began in 2010 when he was assigned to the Pittsburgh division of the FBI and stemmed from his involvement with the "Manchester OG" case, which was a wiretap investigation into a "violent-based gang" in the north side of Pittsburgh that was allegedly "obtaining . . . large amounts of heroin from . . . multiple sources of supply." Jan. 23, 2017 Trial Transcript ("Tr.") 48:23-24.[1] Several intercepted communications in that case indicated the occurrence of a robbery of an individual named Corey Thompson, see iji at 49:2-3, whom Piccini came to learn "was a member of a group called Hardcore from Duquesne" that was purportedly involved in large scale heroin trafficking, id., at 49:6-7. Based on this information, and given that the robbery of Corey Thompson allegedly involved a significant amount of money, Piccini was tasked with investigating this alleged heroin distribution conspiracy. See Id. at 49:11-16.

         At the outset of his investigation, Piccini sought out law enforcement personnel familiar with the Duquesne area and came in contact with Detectives Mikelonis and Love, as well as Chief of Police Adams, all of whom provided Piccini with information about a group of individuals who called themselves Hardcore Entertainment obtained during a prior heroin trafficking investigation. See id. at 49-50. Hardcore Entertainment was a "rap [music] label, " Jan. 17, 2017 Trial Tr. 69:24-25 (Richard Glenn's testimony), comprised of "a group of gentlemen that hung together [and] put some rap videos out, " id., at 103:22-24 (Chief of Police Adams' testimony). Christopher Thompson was determined to be the leader of Hardcore Entertainment, and other individuals associated with the group included his younger brother Corey Thompson, and also Clinton Scott Jr., Jivonte Butler, Donte Yarbough, Lance Yarbough, and Taiwan Barlow. See id. at 105; see also id. at 148 (Detective Mikelonis' testimony). In all, approximately thirty to forty people were identified as affiliated with Hardcore Entertainment. Id., at 126:10-14.

         As evidence of the individuals affiliated with Hardcore Entertainment who were charged as defendants as a result of the investigation that preceded the filing of this case, the government offered photographs depicting Donte Yarbough, Edward Joseph, Jivonte Butler, Christopher Thompson, Corey Thompson, Clinton Scott, and Lance Yarbough together. One of the photographs was a promotional flyer depicting Donte Yarbough, Christopher Thompson, Clinton Scott, Jivonte Butler, Lance Yarbough, and Taiwan Barlow, advertising the rap music Hardcore Entertainment created. See Gov't Exhibit ("Ex.") 167; see also Jan. 17, 2017 Trial Tr. 105:6-25. Another exhibit was a photograph of these same individuals, among others, standing outside of the home of Bobby Rogers, which law enforcement and co-conspirators testified was a location frequented by members of Hardcore Entertainment. See Gov't Ex. 174. In this photograph, Donte Yarbough and Christopher Thompson are depicted flashing a "312" signal, see ii, which according to testimony represents the house number of a residence where multiple members of Hardcore Entertainment lived when they were younger, see Jan. 17, 2017 Trial Tr. 107:1910S:2. Other photographs included images of large sums of cash, see e.g., Gov't Exs. 321, 324, 327, 328, 330, and screen shots of rap videos depicting Christopher Thompson, Corey Thompson, Jivonte Butler, Taiwan Barlow, Clinton Scott, Lawrence Short, Lance Yarbough and Raheem Brown with large amounts of cash and numerous cellular phones, see e.g.. Gov't Exs. 933-50.

         According to other testimony presented during the trial, Christopher Thompson established a heroin distribution organization, wherein Khayri Battle, an individual based in Fort Lee, New Jersey, supplied heroin to Christopher Thompson and various members of Hardcore Entertainment for distribution in the Pittsburgh area. See Jan. 20, 2017 Trial Tr. 33:2-13. Rodney Brown, a co-conspirator who pleaded guilty to the charged conspiracy in this case, testified that he assisted Khayri Battle in obtaining the heroin supplied to Christopher Thompson and his organization. See id. at 26:6-15. Rodney Brown also confirmed that Shane Brooks, Taiwan Barlow, and Isaiah Grier, were enlisted as drivers who would travel from the Pittsburgh area to New Jersey, purchase or obtain the heroin, and then transport the heroin back to the Pittsburgh area for distribution. See id. at 26:6-15. According to Rodney Brown, these individuals transported about 1, 000 bricks of heroin[2] per week between 2008 and 2012. See id. at 33-34. Corey Thompson testified that, between 2008 and 2012, the Pittsburgh area organization was moving "anywhere from probably 500 to 1, 000, [to] 2, 000 bricks [of heroin] . . . weekly." Jan. 26, 2017 Trial Tr. 100:8-24. Additionally, Richard Glenn, a co-conspirator, testified that he frequently purchased heroin from Christopher Thompson between 2009 and 2011 and that he would generally purchase "around 200" bricks of heroin "probably twice a month, [or] once [per] month, depending[]" on his need. Jan. 17, 2017 Trial Tr. 73.

         Special Agent Piccini also "developed an informant-base that was familiar with the activities of the individuals in [Hardcore Entertainment]." Jan. 23, 2017 Trial Tr. 51-52. The first enlisted confidential informant was Richard Jones, a party and rap promoter who developed a relationship with Clinton Scott and was aware that Scott was involved with heroin distribution. See iji at 51:21-52:12. Through Jones, Piccini was able to arrange a controlled purchase[3] of heroin in February 2011 from Scott. See id. at 52. Piccini was also able to arrange a controlled purchase of heroin in July 2011 from Donte Yarbough, see ii at 53-54, the brother of Lance Yarbough and the cousin of Anthony Pry or, see Jan. 17, 2017 Trial Tr. 24:5; see also id. at 28:7-9. The controlled purchase from Donte Yarbough "occurred at a hospital . . . because Jivonte Butler had been shot due to a robbery, something related to drug trafficking[, ] and was in the hospital." Jan. 23, 2017 Trial Tr. 53-54. This controlled purchase resulted in the acquisition of 5 bricks of heroin, which upon forensic testing, amounted to 249 stamped bags containing 7 grams of a substance with a detectable amount of heroin. See Gov't Exs. 463, 464.

         The next phase of Piccini's investigation involved preparing Title III affidavits for the purpose of obtaining subscriber information for the various telephones used by Clinton Scott, Corey Thompson, and Donte Yarbough, as well as to intercept their communications. Jan. 23, 2017 Trial Tr. 66-67. Piccini and Corey Thompson testified that it was common for individuals involved in large-scale drug trafficking either to change their telephone numbers frequently or to carry multiple cells phones as a means "to thwart law enforcement." Id. at 67:13; see also id. at 67-68; Jan. 26, 2017 Trial Tr. 102:11-16. They also testified that it was common for drug traffickers to use language related to marijuana instead of heroin when using telephones to arrange heroin transactions. See Jan. 17, 2017 Trial Tr. 84:1-15; see also Jan. 26, 2017 Trial Tr. 101:11-21. According to Piccini, these tactical maneuvers were also used in this case. See Jan. 23, 2017 Trial Tr. 67-68. Nonetheless, the FBI was able to intercept heroin-related communications of Clinton Scott, Corey Thompson, and Donte Yarbough for over a period of 30 days. See id. at 67-68.

         From these intercepted communications, Piccini testified, at times as an expert, about several key components of the organization and their efforts to distribute heroin. See Jan. 23, 2017 Trial Tr. 25-46 (qualifying Piccini as an expert in heroin trafficking). Piccini testified that members of the organization sold bricks of heroin that were comprised of individual stamped bags labeled with "unique names." See id. at 84:7-12; see also id. at 55:19-56:21. Corey Thompson testified that the labels for the bags were stamped with the names of movies. See Jan. 26, 2017 Trial Tr. (Part II) 36:19-22. For instance, some of the stamped bags were labeled Transformer, Avatar, Lucky 7, and Breightling. See Jan. 26, 2017 Trial Tr. (Part I) at 114-115. According to Piccini, the labeling of the stamped bag was critical, as the labeling was often tied to the quality of the heroin, and the quality of the heroin was always important because that is how a distributor determined which heroin to purchase. See id. at 55-56. Piccini also testified about the price members of the organization sold bricks of heroin, see ii at 86:19-24, and that at times, members would "front" heroin by allowing customers to purchase the heroin on credit similar to a loan, see ii at 87:13-17. Raheem Brown and Corey Thompson corroborated Piccini's testimony regarding the fronting aspect of the conspiracy. See Jan. 17, 2017 Trial Tr. 80:3-6; see also Jan. 26, 2017 Trial Tr. 100:1-7.

         As noted earlier, the government offered as evidence numerous intercepted phone calls, recordings, and text messages. Part of these intercepted communications included telephone calls on August 12, 2011, between Donte Yarbough and Jeffdyn Rushton, who at the time of the call held a higher position in the conspiracy than Donte Yarbough. See Jan. 23, 2017 Trial Tr. 90:1-3. During these conversations, Donte Yarbough expressed his concerns about the price Jeffdyn Rushton and Christopher Thompson were seeking for the purchase of bricks of heroin. See Jan. 24 Trial Tr. 19-23. Also intercepted were a series of text messages between Donte Yarbough and several customers or lower-level re-distributors. For example, Donte Yarbough exchanged text messages with Marlon Robinson regarding a transaction for the purchase of 3 bricks of Transformer stamped bags of heroin. See id. at 25-28. Another set of intercepted communications involved Donte Yarbough facilitating a sale to Stevie Woods of 7 bricks of Avatar stamped bags of heroin. See id. at 29-34. Other intercepted communications also exposed Donte Yarbough negotiating another transaction with Anthony Coles for the sale of bricks of Breightling stamped bags of heroin. See id. at 36-37.

         Additional intercepted communications concerned Corey Thompson arranging for a transaction with Jarrell Spring for the purchase of bricks of Breightling stamped bags of heroin. See id. at 38-39. Also, some of the intercepted communications consisted of a set of text messages between Corey Thompson and Marlon Robinson regarding another transaction for bricks of both Lucky 7 and Breightling stamped bags of heroin, as well as a telephone call between Corey Thompson and Marlon Robinson regarding the quality of the heroin Marlon Robinson had purchased from Corey Thompson. See id. at 39-42.

         Thereafter, between December 2011 and January 2012, FBI agents and local law enforcement officials conducted surveillance of a black Jeep Cherokee that was registered to Shane Brooks. See Jan. 23, 2017 Trial Tr. 100-102. The surveillance revealed Isaiah Grier meeting with Christopher Thompson at Thompson's home, and GPS tracking disclosed that this Jeep Cherokee made approximately five round trips between Pittsburgh and New Jersey during this approximate one-month period of time. See Jan. 23, 2017 Trial Tr. 101. On January 20, 2012, FBI agents and local Allegheny County law enforcement officials conducted a traffic stop of the Jeep Cherokee, which at the time was being driven by Isaiah Grier and was traveling from the New Jersey area into the Pittsburgh/Duquesne area. See Jan. 17, 2017 Trial Tr. 112-113 (Chief of Police Adams' testimony); see also id. at 127:6-12. Isaiah Grier, who was working on behalf of Khayri Battle, testified that he was transporting heroin that was to be delivered to Christopher Thompson. See Jan. 20, 2017 Trial Tr. 124:1-2. A search of the Jeep Cherokee, which contained a concealed trap for storing money or drugs, see Jan. 23, 2017 Trial Tr. 103:5- 15, resulted in the seizure of 226 bricks of heroin, see Jan. 17, 2017 Trial Tr. 113-14, and forensic testing of the recovered heroin confirmed the presence of heroin with a total weight of 339 grams, see Jan. 23, 2017 Trial Tr. 13-20. Isaiah Grier estimated that he made approximately five other trips during which he transported heroin from New Jersey to the Pittsburgh area, and from his observations, these trips involved a greater amount of heroin than the amount of heroin recovered after he was stopped and the Jeep Cherokee was searched by the authorities. See Jan. 20, 2017 Trial Tr. 124-25. Neither defendant was present at the time of this event. See Jan. 17, 2017 Trial Tr. 127:6-12.

         On February 22, 2012, both Christopher Thompson and Corey Thompson were arrested. See Jan. 23, 2017 Trial Tr. 105. Christopher Thompson was detained following his arrest, and Corey Thompson began cooperating with law enforcement with respect to this investigation. See id. at 105-06. After Christopher Thompson's detention, Donte Yarbough assumed the leadership role for "the Pittsburgh portion of the heroin distribution" operation. Jan. 20, 2017 Trial Tr. 39:1-5. To discuss and formalize the new hierarchy of the Pittsburgh component of the operation, Khayri Battle, Rodney Brown, Donte Yarbough, Lance Yarbough, Jivonte Butler, and Lawrence Short met at a Dave & Buster's restaurant and arcade in the Pittsburgh area. See id. at 41:16-24. Another point of discussion at this meeting was Khayri Battle providing heroin to Donte Yarbough in return for the money Khayri Battle owed Christopher Thompson that was not paid before Christopher Thompson's detention and for any additional money that Donte Yarbough would provide. See id. at 42:8-18. Rodney Brown recalled another meeting that was held at a Renaissance Hotel in Newark, New Jersey, where he and Khayri Battle met with Donte Yarbough, Lance Yarbough, Jivonte Butler, and several other individuals. See id. at 45-47. At this meeting, Donte Yarbough gave Khayri Battle $40, 000 in exchange for heroin. See id. at 46. Once Donte Yarbough assumed control over the Pittsburgh component of the heroin distribution operation, Rodney Brown testified that he supplied Khayri Battle with approximately 200 to 300 bricks of heroin per week that was in turn provided to the Pittsburgh component of the organization. See id. at 48-49.

         On August 15, 2012, FBI agents and local law enforcement officials conducted a controlled purchase of 22 bricks of heroin from Raheem Brown and Courtney Washington with the assistance of Corey Thompson. See Jan. 24, 2017 Trial Tr. 62. Forensic testing revealed that the purchase consisted of 38.2 grams of a substance with a detectable amount of heroin. See Id. at 111-12. Two days later, pursuant to information received from Corey Thompson that Raheem Brown was storing heroin in Brown's house, see Jan. 26, 2017 Trial Tr. 127:20-24, FBI agents and local Allegheny County law enforcement officials executed a search warrant at Raheem Brown's residence, see Jan. 17, 2017 Trial Tr. 114:13-20, who had been known to "loaf with" individuals associated with Hardcore Entertainment, Id. at 115:1. This search warrant resulted in the recovery of three firearms, "$8, 700 in cash, [and] approximately 58 bricks of heroin." Id. at 115-16. Forensic testing of the suspected drugs revealed that the drugs amounted to 65.2 grams of a substance containing a detectable amount of heroin. See Jan. 20, 2017 Trial Tr. 102-04. Also recovered during the execution of the search warrant were three cellular phones, and a search of the cellular phones revealed multiple photographs of Lance Yarbough, Donte Yarbough, Clinton Scott, Christopher Thompson, and Taiwan Barlow, among other individuals, pictured either with Raheem Brown or individually, that were taken during the life of the charged conspiracy. See Jan. 18, 2017 Trial Tr. 107. Other photographs stored on the phones included an image of Raheem Brown in possession of large sums of money, and images of unidentified individuals with the tattoo of "312" on their bodies. See Gov't Ex. 277. Neither defendant was present when Raheem Brown's residence was searched. See Jan. 17, 2017 Trial Tr. 129:16-21.

         On August 31, 2012, FBI agents and local law enforcement officials arranged another controlled purchase of 6 bricks of heroin by Donte Yarbough through Corey Thompson. See Jan. 24, 2017 Trial Tr. 69-70. Piccini testified that the manner in which the 6 bricks of heroin was packaged indicated that the source must have been a "wholesale source" as opposed to a source that was "selling individual doses to addict-level purchasers." Id. at 71:12-16. Forensic testing revealed that this packaged material had a weight of 6.6 grams and contained a detectable amount of heroin. See Jan. 24, 2017 Trial Tr. 113. On September 6, 2012, FBI agents and local law enforcement officials arranged another controlled purchase of heroin from Donte Yarbough by Corey Thompson, resulting in Donte Yarbough sending Cortez Demery and Willie Means to deliver 30 bricks of heroin. See id. at 75:1-9; Jan. 18, 2017 Trial Tr. 138-139. Forensic testing revealed that the 30 bricks amounted to 21.7 grams of a substance that contained a detectable amount of heroin. See Jan. 24, 2017 Trial Tr. 113-14.

         B. Proof of the Defendants' Involvement With the Alleged Heroin Distribution Conspiracy

         1. Defendant Lance Yarbough

         Corey Thompson testified that he "grew up" with Lance Yarbough, who "was one of the main persons in the organization." Jan. 26, 2017 Trial Tr. 104:5-10. According to Corey Thompson, Lance Yarbough was "a trusted member of the organization, " who sold and stored heroin for the organization. Id. at 104:11-20.

         On January 4, 2008, Piccini and local law enforcement officials conducted a traffic stop of a vehicle that was driven by Willie Means and that was occupied by Jivonte Butler, Clinton Scott, and Lance Yarbough as passengers. See Jan. 17, 2017 Trial Tr. 133:14-23. During the search of Lance Yarbough's person, law enforcement recovered "a Glock .9 millimeter pistol" that was loaded with "[fifteen] rounds in the magazine and one live round in the chamber." Id. at 134. Piccini testified that "guns were a part of protecting individuals' drugs . . . and [used for] taking money from other individuals during heroin transactions." Jan 26, 2017 Trial Tr. 83:21- 23.

         On May 1, 2008, Ashley Auston was stopped for speeding while driving back to the Pittsburgh area after visiting her husband Michael Milton in New York. See Jan. 18, 2017 Trial Tr. 10. A search of the vehicle driven by Auston recovered "in excess of 600 grams of heroin." Id. at 10:17-18. Similar to this trip, Auston testified that she had made several trips to New Jersey to transport heroin to the Pittsburgh area on behalf of Michael Milton, a "top dog" in Hardcore Entertainment and a good friend Christopher Thompson. Id. at 5. She testified that she made "[p]robably like [twelve] trips" between 2007 and 2008 and that each trip involved transporting approximately the same amount of heroin. Id. at 11:3-7. Auston further testified that she would bring the drugs to two primary locations, depending on to whom she was instructed to deliver the drugs. See id. at 6:4-20. When Christopher Thompson took over the operation after Milton was incarcerated in 2007, Auston would bring the heroin to the "dog pound" where other members of Hardcore Entertainment, including Corey Thompson, Donte Yarbough, Jivonte Butler, and Lance Yarbough, would divide and distribute the heroin among themselves. See id. at 7-9, 14. Although Auston did not go to the "dog pound" after her wedding in December 2007, she testified that at the time of her arrest on May 1, 2008, she was in route to deliver drugs to Christopher Thompson for his organization. See Id. at 13. Auston did not indicate the location where the drugs would be delivered to on that date.

         The government submitted as evidence several telephone calls between August 19, 2011 and September 3, 2011, between Lance Yarbough and Clinton Scott, wherein they voiced their concerns regarding the organization. See Jan. 24, 2017 Trial Tr. 143-47. Scott was "angry about putting money in for heroin coming back from New Jersey to Pittsburgh and not receiving what was owed to him." Jan. 26, 2017 Trial Tr. 84:8-10. Attempting to pacify Scott, Lance Yarbough responded by stating that he too was waiting on his allocation. See Id. 84:10-14. The government also presented as evidence text messages and telephone calls between Corey Thompson and Lance Yarbough on August 24, 2011, and August 25, 2011, which were intercepted on Corey Thompson's telephone. See Jan. 24, 2017 Trial Tr. 133-39. On the first call, Corey Thompson asked Lance Yarbough to inquire about the availability of heroin to supply one his customers. Id. Lance Yarbough told Corey Thompson that "miracle mix, " a combination of wet heroin and dry heroin, was available for delivery, and Thompson agreed to take the mixture. Id. at 138. Also during this call, Thompson informed Lance Yarbough that he had two customers, Marlon Robinson who wanted 7 bricks of heroin, and Clarence Carpenter who wanted 50 bricks of heroin. Id. at 131-33, 138-39. Piccini testified that the call indicated that Lance Yarbough was acting as a middle man between Corey Thompson and someone higher up in the organization, presumably his brother Christopher Thompson. See id. at 138:3-8. On the second intercepted call, Lance Yarbough told Thompson to bring Robinson and Carpenter so that the transactions could be completed, because the organization was able to supply heroin to them. See id. at 139:3-5. Piccini testified, however, that it did not appear that these two transactions were completed. See Jan. 25 Trial Tr. 40:13-18; id 41:8-10.

         On October 4, 2012, Piccini enlisted Richard Jones as a confidential informant to arrange a purchase of heroin from Lance Yarbough. See Jan. 24, 2017 Trial Tr. 82-89. In a recorded conversation, Jones informed Lance Yarbough that he was seeking to purchase between 40 and 50 bricks of heroin. See id. at 87. However, this controlled purchase never occurred. See Id. Then, on October 10, 2012, Lance Yarbough told Jones that he wanted to meet before executing the transaction. See id. at 88. Shortly thereafter, FBI agents and local law enforcement officials conducted surveillance of the apartment building where Lance Yarbough was residing. See id. at 89. Video surveillance showed Donte Yarbough entering the apartment building, see Gov't Ex. 389, and subsequently leaving the apartment building with Lance Yarbough and Jivonte Butler, see Gov't Ex. 391. That same day, FBI agents and Allegheny County law enforcement authorities conducted a traffic stop of a vehicle occupied by Donte Yarbough, Lance Yarbough, and Jivonte Butler, but no drugs were discovered. See Jan. 18, 2017 Trial Tr. 50-51; 77-78.

         On October 18, 2012, further video surveillance resulted in Lance Yarbough being observed returning to his apartment building carrying an H&M store shopping bag. See Jan. 24, 2017 Trial Tr. 93. Later that day, FBI agents and Allegheny County law enforcement officials executed a search warrant at Lance Yarbough's residence. See Jan. 17, 2017 Trial Tr. 121:16-20. From this search, 125 bricks of heroin were recovered, see Jan. 24, 2017 Trial Tr. 99:7-8, which forensic testing identified as 132.9 grams of a substance containing a detectable amount of heroin, see iji at 115:18-116:3. Based on ...


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