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United States v. Mitchell

United States Court of Appeals, Third Circuit

December 5, 2019

UNITED STATES OF AMERICA
v.
TYRONE MITCHELL, a/k/a Fox Tyrone Mitchell, Appellant

          Argued March 14, 2019

          Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-12-cr-00172-001) District Judge: Hon. Paul S. Diamond

          Lisa Van Hoeck Counsel for Appellant

          Robert A. Zauzmer, Randall Hsia Office of the United States Attorney Counsel for Appellee

          Before: McKEE, ROTH, and FUENTES, Circuit Judges.

          OPINION

          FUENTES, CIRCUIT JUDGE.

         A jury found Tyrone Mitchell guilty of seventeen drug distribution and firearms offenses. Mitchell appeals his judgment of conviction and sentence of 1, 020 months' imprisonment, raising eight arguments nearly all of which are unavailing. We do, however, agree with Mitchell as to one sentencing-related argument-that the District Court plainly erred by relying on Mitchell's bare arrest record to determine his sentence. We therefore affirm Mitchell's judgment of conviction, vacate the judgment of sentence, and remand for resentencing.

         I.

         A.

         In May and July 2010, a confidential informant working with agents of the Pennsylvania Attorney General's Office, Bureau of Narcotics Investigation, made three controlled purchases of phencyclidine ("PCP") from Mitchell. Before making each purchase, the informant would arrange to meet Mitchell at a specific location in Philadelphia, and agents would conduct surveillance of both the meeting location and Mitchell. During this surveillance, agents observed Mitchell or one of his associates traveling between the meeting location and properties located at 3153 North Carlisle Street ("Carlisle Street") and 3248 Goodman Street ("Goodman Street").[1] They also observed Mitchell using keys to enter and exit those properties. Based on the controlled purchases and surveillance, agents obtained and executed search warrants for the properties at Carlisle Street and Goodman Street.

         i. Search of Carlisle Street Property

         Before executing the warrant at the Carlisle Street property, agents saw Mitchell leave the property and enter a blue Dodge minivan. Agents blocked the minivan and then placed Mitchell under arrest.[2] During a search incident to arrest, agents found keys to the Carlisle Street property, keys to the Goodman Street property, and $2, 947 in cash on Mitchell's person.

         Inside the Carlisle Street property, agents recovered, among other things, a loaded .357 caliber handgun hidden in a lazy boy recliner, a box of .357 caliber bullets, a photograph of Mitchell and an unidentified male, $350 in cash, 95 grams of crack cocaine, 6.9 grams of marijuana, and drug paraphernalia. At trial, Alfred Jenkins testified that he purchased powder cocaine from Mitchell on a weekly basis between 2009 and May 2011 at different locations including the Carlisle Street property. Jenkins further testified that on occasion, Mitchell would instruct him to go to Carlisle Street and purchase cocaine there from Warren Lawson, an individual who agents found sitting on the lazy boy recliner when they executed the search warrant.[3]

         ii. Search of Goodman Street Property

         On that same day, agents executed a search warrant at the Goodman Street property, another property from which Jenkins had purchased cocaine from Mitchell. Once inside, the agents found, among other things, a .44 caliber loaded handgun beneath a pile of clothes and blankets, a photograph of Mitchell, a billing statement addressed to Mitchell at that address, keys with a tag labelled 2447 Firth Street, drug paraphernalia, and six small glass jars containing about 131 grams of PCP.

         B.

         Over a year later, based on information learned from Jenkins, agents conducted surveillance of 2447 West Firth Street ("Firth Street"), another property where Jenkins had purchased cocaine from Mitchell.[4] On October 11, 2011, agents saw an individual named Dante Black enter and exit the Firth Street property with the use of a key. Two days later, agents saw Black allow an individual later identified as Curtis Williams inside the house. Williams left the house about fifteen minutes later. Agents subsequently stopped Williams and confiscated about five grams of cocaine from him. They also stopped Black after he left the house and detained him while they obtained a search warrant. Agents searched Black and recovered a cell phone, keys to the Firth Street property, and money.

         i. Search of Firth Street Property

         After obtaining the search warrant, agents entered the Firth Street property, which was owned by TSM Property Group, the company owned by Mitchell's wife. In the property, agents found, among other things, a loaded .40 caliber semi-automatic Glock handgun in a couch cushion, a spare magazine for the Glock pistol, numerous photographs of Mitchell, cocaine, crack, oxycodone tablets, marijuana drug paraphernalia, a notepad containing drug tally work with Mitchell's alias on the back, and cash.

         At trial, Black testified that he had been living in the Firth Street house with Mitchell since late August, early September 2011. Black stayed in the second-floor back room and Mitchell stayed in the second-floor front room-the room where agents had found the spare magazine for the gun and photographs of Mitchell including one which had a note on the back addressed to one of Mitchell's aliases. Black recalled that he and Mitchell stored drugs in the house including cocaine, crack cocaine, marijuana, and Percocet pills, and they would each sell drugs on a daily basis. According to Black, prior to moving in with Mitchell, he would purchase cocaine powder and crack cocaine from Mitchell and would resell them to his customers. Black acknowledged that (1) he continued to do so when he was living in the Firth Street house, and (2) on Mitchell's instructions, he also sold drugs to Mitchell's customers when Mitchell was away from the house.

         Black testified that there was a Glock .40 pistol in a couch in the living room-the same gun that police found during the execution of the search warrant.[5] According to Black, Mitchell placed the gun in the couch. Black also stated that it was Mitchell's idea to get a gun for the purpose of protecting themselves and the drugs in the house, and Mitchell reimbursed him for the cost of the gun.

         II.

         In December 2013, Mitchell was indicted on seventeen counts: one count of conspiracy to distribute 500 grams or more of cocaine[6] (Count 1); four counts of distribution of cocaine[7] (Counts 2-5); three counts of maintaining a house for drug distribution[8] (Counts 6, 10, and 14); one count of possession of 28 grams or more of cocaine base ("crack") with intent to distribute, and aiding and abetting such possession[9] (Count 7); two counts of possession of a firearm in furtherance of a drug trafficking crime, and aiding and abetting such possession[10] (Counts 8 and 16); three counts of possession of a firearm by a convicted felon[11] (Counts 9, 13, and 17); one count of possession of 100 grams or more of PCP with intent to distribute[12] (Count 11); one count of possession of a firearm in furtherance of a drug trafficking crime[13] (Count 12); and one count of possession of at least 28 grams of crack and 500 grams of cocaine with intent to distribute, and aiding and abetting such possession[14] (Count 15).

         After a seven-day trial in October 2015, a jury found Mitchell guilty of all seventeen counts. Mitchell then filed a motion for a judgment of acquittal, or in the alternative, for a new trial, which the District Court denied. The District Court ultimately sentenced Mitchell to 1, 020 months' (85 years') imprisonment followed by 8 years of supervised release.[15] Defendant now appeals the judgment of conviction and sentence.

         III.[16]

         In this appeal, Mitchell challenges both his conviction and sentence of 1, 020 months' imprisonment. He presents four arguments as to why his conviction should be vacated, and four arguments as to why his sentence should be vacated.

         Regarding his conviction, Mitchell maintains that: (1) the District Court violated his Sixth Amendment right to a fair trial before an impartial jury by failing to investigate possible juror bias; (2) the District Court's admission of certain statements violated the rule against hearsay and his rights under the Confrontation Clause; (3) the District Court plainly erred by failing to instruct the jury that aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime requires that the accomplice have advance knowledge that the principal would possess a gun, as required by Rosemond v. United States;[17] and (4) the Government presented insufficient evidence that he aided and abetted Lawson's possession of a loaded .357 caliber firearm in furtherance of distribution of crack at Carlisle ...


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