United States v. Faison

12-5006
United States v. Faison

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 TO 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 for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of February, two thousand fourteen.

PRESENT:
PIERRE N. LEVAL,
GUIDO CALABRESI ,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________

United States of America,

Appellee,

v. 12-5006

Timothy Faison,

Defendant-Appellant.

_____________________________________

FOR APPELLEE: Emily Berger, Julia Nestor, Assistant United
States Attorneys, for Loretta E. Lynch,
United States Attorney, Eastern District of
New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT: Timothy Faison, pro se, Bruceton Mills,
WV.

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Appeal from a judgment of the United States District Court for the Eastern District of

New York (Denis R. Hurley, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

Following a jury trial at which he represented himself, appellant Timothy Faison was

convicted of possessing 28 grams or more of cocaine base with intent to distribute, 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B)(iii); distributing 28 grams or more of cocaine base, §§ 841(a)(1),

841(b)(1)(B)(iii); and two counts of distributing cocaine base, §§ 841(a)(1), 841(b)(1)(C). His

conviction arose out of three events: (1) his March 2, 2010 sale of crack cocaine to an informant

working with the Glen Cove Police Department (“GCPD”); (2) his March 10, 2010 sale of crack

to that same GCPD informant; and (3) his June 15, 2010 sale of crack to an informant working

with the Drug Enforcement Agency. He was arrested by the GCPD in June 2010, but was not

tried in state court; he was subsequently placed under federal arrest while in state custody. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

1. Faison’s Indictment

On appeal, Faison renews three challenges to the indictment, none of which has merit.

First, Faison was not, as he contends, arrested pursuant to a fraudulent warrant. As the district

court noted, the federal authorities who arrested Faison at the Nassau County Correctional

Center had probable cause to take him into custody on federal charges, and did not need a

warrant to do so. United States v. Watson, 423 U.S. 411, 418 (1976) (holding that where there is

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probable cause to believe a suspect has committed a felony, that suspect may be arrested without

a warrant).

Second, the Double Jeopardy Clause did not bar Faison’s prosecution in federal court.

The Double Jeopardy Clause does not prohibit sequential prosecutions by different sovereigns,

so a prior state prosecution would not bar a later federal prosecution based on the same events.

United States v. Sewell, 252 F.3d 647, 651 (2d Cir. 2001). “An exception to the dual

sovereignty doctrine does exist for cases in which one of the sovereigns effectively controlled

the other, and the subsequent prosecution was merely a sham . . . .” United States v. Nelson, 277

F.3d 164, 212 (2d Cir. 2002) (internal quotation marks omitted). But this was not such a case; as

the district court found, far from being a case in which the state investigation or prosecution was

directed by federal authorities, neither the federal nor state authorities even knew of each other’s

activities until after Faison was arrested. Moreover, even if both charges had been brought by

the same sovereign, there would be no double jeopardy violation, because jeopardy never

attached in Faison’s state case. The Double Jeopardy Clause “does not come into play until a

proceeding begins before a trier” of fact. Serfass v. United States, 420 U.S. 377, 391 (1975).

Faison was never even indicted on the state charges.

Third, the government indicted Faison well within the time limits set by the Speedy Trial

Act. In general, only a federal arrest starts the thirty-day clock for prosecutors to file an

indictment. “[A] defendant does not become an ‘accused’ for Speedy Trial Act purposes until he

is under Federal arrest.” United States v. Lai Ming Tanu, 589 F.2d 82, 88 (2d Cir. 1978).

Although collusion between state and federal authorities can create an exception to this rule,

here, as in United States v. Jones, 129 F.3d 718, 723-24 (2d Cir. 1997) (per curiam), there was

no evidence of a “ruse” to circumvent the Speedy Trial Act.
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II. Trial Issues

Faison also challenges several of the district court’s trial rulings. We assume without

deciding that all of these challenges, many of which were raised in post-trial motions, were

properly preserved.

First, Faison argues that the district court improperly admitted testimony regarding his

conduct and statements leading up to the June 15, 2010 drug sale. We find no error, much less

an abuse of discretion, in the district court’s evidentiary rulings. See United States v. Mercado,

573 F.3d 138, 141 (2d Cir. 2009), and find none here. All of the challenged testimony was

admissible as evidence that “arose out of the same transaction or series of transactions as the

charged offense[,] . . . [was] inextricably intertwined with the evidence regarding the charged

offense[,] . . . [or was] . . . necessary to complete the story of the crime on trial.” United States v.

Kaiser, 609 F.3d 556, 570 (2d Cir. 2010) (citations and quotation marks omitted). In particular,

statements about the price of cocaine from meetings in the spring of 2010 attest to Faison’s

intent to buy and sell the drug, and conversations in early June demonstrate that Faison sought

and found a willing buyer for his drugs. Moreover, the district court allowed testimony relating

to heroin only after Faison himself opened the door to such evidence.

Second, Faison argues that several prosecution witnesses committed perjury. “Reversal

of a conviction based upon allegations of perjured testimony should be granted only with great

caution and in the most extraordinary circumstances.” United States v. Zichettello, 208 F.3d 72,

102 (2d Cir. 2000) (citations and quotation marks omitted). Faison has not established that any

witness willfully misled the jury.1 Id. Faison merely highlights various inconsistencies in the
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In particular, there is no reason to believe that chemist James DiSarno lied about examining the cocaine amount
charged in Count 2. After conducting a post-trial evidentiary hearing, the district court found that Special Agent
Scott Knox had merely misspoken in an email about his investigation. Faison does not identify any reason to
question the district court’s conclusion, nor does the record suggest one.
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testimony, which were or could have been brought to the jury’s attention on cross-examination.

Whether such inconsistencies indicated deliberate deception, or otherwise undermined the

witnesses’ credibility, was for the jury to decide.

Third, Faison challenges certain references to allegedly inadmissible evidence made by

the prosecutor during her opening and summation. But prosecutorial misconduct requires a new

trial only if “the conduct substantially prejudiced the appellants so as to deny them a fair trial.”

United States v. Russo, 74 F.3d 1383, 1396 (2d Cir. 1996). We see no prosecutorial misconduct,

but even if the prosecutor’s statements had been improper, they would not justify vacating the

conviction, as the district court cured any misunderstanding through its instructions to the jury.

Fourth, Faison attacks testimony from scientists at the Nassau Crime Lab as

untrustworthy given sub-standard testing practices at the lab. As the district court noted, any

deficiency in the lab’s testing processes could not have affected the case. The purchased drugs

were tested by a federal chemist who testified at trial that they were indeed cocaine, rather than

some other compound; the Nassau County technicians did not test the drugs, and testified about

their handling of the drugs only to prove chain of custody. To be sure, since the time of trial, a

special commission’s report has suggested lax evidence-handling procedures at the Nassau

Crime Lab. But the unavailability of this report did not prejudice Faison. As the district court

noted, the lab’s problems were well known at the time of Faison’s trial, and Faison cross-

examined state lab officials about the possibility that the evidence in his case had been confused

with evidence from another case. What’s more, because the report post-dated the trial, it was not

evidence that could have been discovered earlier and used to discredit the witnesses.

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Finally, Faison disputes the sufficiency of the evidence on each count. But the evidence

of Faison’s guilt, including testimony from several informants and video and audio evidence of

the charged transactions, was overwhelming.

We have considered all of Faison’s remaining arguments and find them to be without

merit. Accordingly we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk