United States v. Mark Miller

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

__________

Nos. 13-3477 and 13-4449
__________

UNITED STATES OF AMERICA

v.

MARK MILLER, a/k/a Sharkey

Mark Miller,

Appellant at No. 13-3477
__________

UNITED STATES OF AMERICA

v.

JAQUEL CREWS, a/k/a Quelly

Jaquel Crews,

Appellant at No. 13-4449
__________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-10-cr-00663-006 and 2-10-cr-00663-004)
District Judge: Honorable John R. Padova

Submitted Under Third Circuit LAR 34.1(a)
September 9, 2015

BEFORE: VANASKIE, NYGAARD, and RENDELL, Circuit Judges
 (Filed: April 1, 2016)
__________

OPINION*
__________

NYGAARD, Circuit Judge.

Introduction

Appellants Mark Miller and Jaquel Crews were convicted by a federal jury for

their participation in a multimillion dollar drug organization that distributed hundreds of

kilograms of cocaine and crack cocaine in Philadelphia’s Frankfort neighborhood for

more than 20 years. They have appealed their convictions and sentences. We will

affirm.

Background

Because we write solely for the parties, we will provide only a brief outline of the

factual background. Miller and Crews were veterans of the illegal drug trade. Testimony

revealed that Miller had been selling cocaine at least since 1986, while Crews had been

supplying drug dealers since 1996. Together, the Appellants laundered millions of

dollars in drug proceeds through the purchase of real estate and other assets. Although

neither Appellant was gainfully employed, they lived extravagantly, attending events like

the Super Bowl and the MTV Video Music Award show. They also laundered drug

proceeds through the purchase of luxury items like mink coats, Breitling watches, and

*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

2
more than $100,000 in diamond jewelry. Both Miller and Crews routinely delivered

money to a California-based cocaine supplier, flying between Philadelphia and Los

Angeles and Philadelphia and Las Vegas on numerous occasions. The supplier, in turn,

would provide Crews and other members of the conspiracy with cocaine.1

After a ten-day trial, a jury convicted Crews and Miller of one count of conspiracy

to distribute five kilograms or more of cocaine and fifty grams or more of crack cocaine

between 1986 and November of 2007, in violation of 21 U.S.C. § 846. Miller was also

convicted of seven counts of money laundering, in violation of 18 U.S.C. §

1956(a)(1)(A)(i) and 18 U.S.C. § 1956(a)(1)(B)(i). Crews was found guilty of ten counts

of money laundering in violation of the same aforementioned statutes. The Government

filed forfeiture motions, seeking personal forfeiture money judgments against both

Appellants in the amount of $5,000,000, pursuant to 21 U.S.C. § 853, which the District

Court granted. At sentencing, the District Court imposed a 212-month prison sentence on

Miller while Crews received a sentence of 240 months’ imprisonment.

We granted Miller’s motion to consolidate his appeal with Crews.’ Together, and

in some instances individually, they raise numerous challenges to their convictions,

sentences, and the District Court’s forfeiture order. We will discuss each issue in turn,

beginning with the evidentiary claims.

Exclusion of the Lofton Recordings

At trial, Crews and Miller attempted to introduce excerpts of telephone calls a

Government witness, Craig Lofton, made from prison to various individuals on the

1
App. 780-81a.
3
outside. One of several witnesses called by the Government, Lofton testified to his

knowledge and participation in Miller and Crews’ drug trafficking schemes. The

Appellants argued to the District Court that these excerpts would impeach Lofton by

revealing incentives he had to lie on behalf of the Government. The District Court

permitted Miller to use eight of the requested twelve excerpts. On appeal, Miller and

Crews argue that the District Court abused its discretion by excluding the four remaining

excerpted conversations from evidence.2

At the outset, we reject the Appellants’ overarching contention that the District

Court failed to articulate a legal basis for excluding these four excerpts from evidence.

The record clearly reveals the foundation for the District Court’s ruling: Federal Rule of

Evidence 608.3 Under this rule, “extrinsic evidence is not admissible to prove specific

instances of a witness’s conduct in order to attack or support the witness’s character for

truthfulness.”4 The District Court ruled these four excerpts to be extrinsic evidence and it

did not abuse its discretion in doing so.

For example, the excerpt taken from a telephone conversation between Lofton and

an unidentified woman during which Lofton discussed his belief that he and Crews were

2
We review the District Court’s ruling as to the admissibility of evidence and its
limitation on cross-examination for an abuse of discretion. United States v. Knight, 700
F.3d 59, 62 (3d Cir. 2012); United States v. Mussare, 405 F.3d 161, 169 (3d Cir. 2005).
3
The District Court asked counsel for Appellant Crews: “So that these conversations are
conversations that were made outside the courtroom. They were made – they involve Mr.
Lofton and other people, and the defendant Crews wants to use these conversations for
impeachment – for credibility purposes under Rule 608(b), is that a fair statement?”
Counsel for Crews responded “Fair enough.” App. at 1445a.
4
Fed. R. Evid. 608(b).

4
coming “home in two years,”5 is extrinsic because Lofton testified three years after

making that statement. By that time, he could no longer have had the expectation he was

going to be released in two years since three had already passed. Crews now argues that

this excerpt should have been admitted nonetheless because it was contrary to Lofton’s

testimony that he had not been given any promises or sentencing expectations by the

Government. This argument misses the important point that, at trial, Lofton was

questioned about his then-current sentencing expectations; not the expectations he had in

2009 when this telephone conversation was recorded. Miller attacks this exclusion from

a somewhat different angle, arguing it was admissible to prove Lofton expected to serve

two years, not twenty-five. But, this excerpt is irrelevant to Miller’s argument. As we

just noted, by the time he testified at trial, Lofton’s purported expectation of a two year

sentence was already outmoded by a year, rendering his prior conversation about that

expectation irrelevant. Therefore, the District Court did not abuse its broad discretion in

evidentiary matters by ruling this excerpt out of bounds.

Likewise, the District Court did not abuse its discretion by excluding excerpts

from a telephone conversation in which Lofton speaks of being suicidal. Here, Lofton

was talking with another Government witness, Michael Durrant, in March of 2009.

Lofton told Durrant that a ten-year sentence was “a long time,” and that “[a]nything

underneath it, I’m extremely underneath that over it. I’m upset. I’m tore down. Suicide

5
App. at 1666a.

5
material.”6 The District Court found this particular excerpt to be extrinsic evidence of

Lofton’s motivation for testifying, and we agree. Lofton had already testified that he did

not have an expectation of a reduced sentence in exchange for his cooperation with the

Government.7 On appeal, Miller maintains that this excerpt was evidence of Lofton’s

bias and that the District Court erred by preventing him from challenging Lofton. We see

nothing in the record that supports his argument. Crews and Miller were unencumbered

in their cross-examination of Lofton and questioned him in detail about his plea

agreement and the possible sentence Lofton may have received had he not pleaded guilty.

Further, Crews and Miller could certainly have recalled Lofton to question him about the

other admitted excerpts, but elected not to do so. Therefore, we see no abuse of

discretion in the exclusion of this excerpt from evidence.

Lastly, Miller and Crews argue that two excerpts from a conversation Lofton had

with an agent from the Drug Enforcement Agency should have been admitted into

evidence. These excerpts are part of a conversation between Lofton and a DEA agent

concerning plans to take Lofton to meet with Government lawyers prior to his grand jury

testimony. In the first excerpt, after clarifying where Lofton was being held, the agent

inquired whether Lofton would like “a nice sit down dinner” when they picked him up.8

6
App. at 1668a.

7
App. at 1455a.
8
App. at 1668a.

6
Lofton thought that would be “lovely.”9 In the second excerpt, Lofton tells the agent

“Yeah man, its three people that pretty much gonna walk through this thing. You know

what I mean. You know them all. I can’t call em out, but you know who they are. One

of ‘em already walked through the water look the devil in the face. An he’s up on the

west side. Everybody can’t get a break but I make sure I protected them.”10 At trial,

counsel for Miller and Crews tried to admit these excerpted conversations as evidence of

Lofton’s inconsistent statements but acknowledged that Lofton had never been

questioned about these statements.11 The District Court sustained the Government’s

objection to the admission of this excerpt.12

Now on appeal, both Appellants maintain that the first conversation should have

been admitted as evidence of bias. Miller believes that this exclusion prevented him

“from showing . . . that Lofton received special treatment from the investigating

agents.”13 This basis for admission, however, was never argued to the District Court and,

as such, is waived.14 And, even were it not, the record does not support this claim

because Lofton was never questioned by the defense about the invitation to dinner, nor

did the defense call the DEA Agent to be questioned about his offer. Likewise, it was not

9
Id.
10
App. at 1667a.
11
App. at 1454a.

12
App. at 1454a, 1466a.
13
Miller Br. at 26.
14
United States v. Burnett, 773 F.3d 122, 130 (3d Cir. 2014).
7
an abuse of discretion for the District Court to exclude the second excerpt. Nothing in

that exchange was inconsistent with Lofton’s prior testimony and the excerpt makes no

mention of coordination with other witnesses or any other type of conversation.

In sum, it was not an abuse of discretion for the District Court to exclude the

forgoing excerpts from Lofton’s recorded telephone conversations.

Crews’ Mandatory Minimum Sentence

Next, Crews individually challenges his sentence, specifically the imposition of a

statutorily mandated minimum term. Prior to sentencing, the Government filed for a

downward variance from the advisory guidelines range on account of assistance Crews

provided in another prosecution. The Government declined to file, however, a motion

permitting a sentence below the statutory mandatory minimum of 240 months. Crews

offered several objections to his proposed sentence, including an objection based on a

perceived Alleyne error as well as an objection to an enhancement for his leadership role

in the offense. The District Court granted Crews a downward variance, rejected his other

challenges, and imposed the mandatory minimum sentence permitted by the statute—240

months. On appeal, Crews again attacks the propriety of his sentence. We start with his

claim of Alleyne error.

After the verdict was handed down, but before Crews was sentenced, the Supreme

Court announced its decision in Alleyne v. United States.15 In Alleyne, the Supreme

133 S.Ct. 2151 (2013). The jury verdict was announced on March 14, 2012. The
15

Supreme Court handed down its opinion in the Alleyne case on June 17, 2013, and Crews
was sentenced on November 5, 2013.

8
Court held that any fact that increases the mandatory minimum sentence is an element

which must be determined by the jury.16 Therefore, where a factual determination such

as a drug quantity “trigger[s] a statutory mandatory minimum sentence, [it] must . . . be

submitted to a jury.”17 Crews was charged, at Count Five of the indictment, with

responsibility for distributing “five kilograms or more, that is hundreds of kilograms, of

mixture and substance containing a detectable amount of cocaine, and 50 grams or more,

that is multiple kilograms, of a mixture and substance containing a detectable amount of

cocaine base (“crack”).”18 Concerning Count Five, the District Court instructed the jury

that, to find Crews guilty, it must “be satisfied that the Government proved the weight or

quantity beyond a reasonable doubt.”19 Further, the District Court noted that the jury had

received “evidence during the course of this trial as to how much—what the weight was

with respect to what was recovered and what was involved.”20 The jury was also

specifically told that it must “determine the weight of the cocaine and cocaine base crack

which was involved in the conspiracy,” and that “in making this decision, you should

consider all the controlled substances that the members of the conspiracy actually

distributed.”21 Finally, the District Court told the jury that they must “unanimously find

16
Id. at 2155, 2163.
17
United States v. Smith, 751 F.3d 107, 117 (3d Cir. 2014) (interpreting Alleyne).
18
App. at 111a. These were alleged violations of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

19
App. at 1504a.
20
App. at 1505a.
21
App. at 1505a.
9
beyond a reasonable doubt that the weight or quantity of cocaine that was involved in the

conspiracy was five kilograms or more.”22 In finding Crews guilty of conspiracy, the

jury unanimously determined that the conspiracy involved five or more kilograms of

cocaine and 280 grams or more of cocaine base.23 But, as Crews submits, and the

Government concedes, the jury did not determine an exact amount of cocaine and cocaine

base directly attributable to Crews himself. This lack of an individualized determination,

the parties maintain, was error in light of Alleyne. We agree. However, such a lapse was

harmless.

Alleyne errors can certainly be reviewed for harmlessness. Recently, in United

States v. Lewis,24 we applied a harmless error analysis to an Alleyne error, noting that,

while the Supreme Court had not discussed such a review in Alleyne, the Court has “. . .

adopted the general rule that a constitutional error does not automatically require reversal

App. at 1505a. Similar instructions were given to the jury on the amount of cocaine
22

base they needed to find (280 grams). See App. at 1506a.

23
App. at 1652a. We note that after Crews and Miller were indicted, the Fair Sentencing
Act of 2010 (FSA) was enacted. It increased the amount of crack cocaine that triggers
the ten-year mandatory minimum sentence from 50 grams to 280 grams. On June 21,
2012, the United States Supreme Court held that the more lenient penalties of the FSA
apply to those offenders whose crimes occurred before the effective date of the Act
(August 3, 2010), but who were sentenced after that date. See Dorsey v. United States,
132 S.Ct. 2321, 2335 (2012). Here, the offenses being prosecuted occurred well before
August of 2010 and the Appellees were sentenced well after that date. Therefore, while
the indictment charged them only with conspiracy to distribute 50 grams of crack
cocaine, the District Court correctly instructed the jury that it had to find the conspiracy
involved 280 grams of crack cocaine.

24
802 F.3d 449 (3d Cir. 2015).

10
of a conviction,” and that the Supreme Court has “applied harmless error analysis to a

wide range of errors and has recognized that most constitutional errors can be

harmless.”25 Lewis provides an important template for our analysis in this case. As a

prerequisite, Lewis instructs that harmless error review may only be undertaken “when

the defendant has made a timely objection to an error.”26 That was done here. Crews’

objections to his sentence contained specific reference and argument to Alleyne, sufficient

to satisfy this requirement.27 Lewis additionally reminds us that the Government has a

heavy burden “to demonstrate that reversal is not warranted.”28 And lastly, Lewis notes

the important distinction between trial errors and sentencing errors.29

Both types of errors are subject to harmless-error review, though our standard of

review differs markedly for each one. “Harmless-error review for a sentencing error

turns on whether the error did or did not ‘contribute to the [sentence] obtained.’”30 By

contrast, harmless-error review for a trial error “turns on whether it is ‘clear beyond a

25
802 F.3d at 454 (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).
26
Id. (quoting United States v. Adams, 252 F.3d 276, 281 (3d Cir. 2001)).
27
See, e.g., App. at 1807a, 1874a.

Lewis, 802 F.3d at 454 (quoting United States v. Waller, 654 F.3d 430, 438 (3d Cir.
28

2011)).
29
Id. 455 (citing United States v. Brennan, 326 F.3d 176, 180 (3d Cir. 2003)).
30
Id. at 456.

11
reasonable doubt that a rational jury would have found the defendant guilty absent the

error.’”31

In Lewis, we categorized the Alleyne error as “a pure sentencing error.”32 There,

Lewis’s indictment charged him with the offense of using or carrying a firearm during

and in relation to a crime of violence. And at trial, the jury was properly instructed for

that offense and found him guilty. Yet the District Court sentenced him for brandishing a

firearm during a crime of violence, which is a “‘separate, aggravated offense that must be

found by a jury.’”33 We held that this was a “pure sentencing error,” as the jury was

properly instructed at trial as to each element of the crime for which Lewis was indicted

and found him guilty of that crime, but then the District Court sentenced him for a crime

for which he was neither indicted nor tried. As a result, applying harmless-error review,

we considered whether the Alleyne error contributed to Lewis’s sentence, concluded that

it did, and vacated the sentence and remanded.

Importantly, we also recognized in Lewis that “not . . . all Alleyne or Apprendi

errors are pure sentencing errors.”34 For example, in United States v. Vasquez,35 we were

confronted with “both a trial error and a resulting sentencing error.”36 There, Vasquez

31
Id. (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).

32
Id. at 455.
33
Id. at 454 (quoting Alleyne v. United States, 133 S. Ct. 2151, 2162 (2013)).
34
Id. at 455.
35
271 F.3d 93 (3d Cir. 2001).
36
Id.

12
was indicted and tried for conspiring to possess and distribute more than five kilograms

of cocaine. But the District Court never properly instructed the jury at trial on drug

quantity, which was an element of the offense for which he was indicted and tried. As a

result, Vasquez’s prescribed statutory maximum was 240 months, but the District Court,

in violation of Apprendi, sentenced him to 288 months after finding at sentencing that he

had possessed a certain quantity of drugs. So, even though the District Court erred at

sentencing, that error was caused by a trial error—i.e., its failure to submit to the jury an

element of the offense for which he was indicted and tried. And because this trial error

was “comparable to the errors in both Neder [v. United States, 527 U.S. 1 (1999)], and

Johnson [v. United States, 520 U.S. 461 (1997)],” we considered whether the evidence at

trial established beyond a reasonable doubt that Vasquez had possessed the quantity of

drugs found by the District Court and held that it did.37 In other words, we were

“confident that Vazquez’s sentence would have been the same had the jury made the drug

quantity finding.”38

The error in this case is akin to the trial error in Vasquez rather than the pure

sentencing error in Lewis. Like Vasquez’s indictment, Crews’ indictment charged him

with conspiring to possess and distribute five or more kilograms of cocaine. Yet the

District Court never properly instructed the jury at trial that they had to determine the

quantity of drugs specifically attributable to Crews and instead instructed it to determine

the quantity of drugs attributable to the conspiracy as a whole. Then, at sentencing, the

37
Id. at 102.
38
Id. at 104.
13
District Court, in violation of Alleyne, sentenced Crews to 240 months, which was the

mandatory minimum for an offense involving five or more kilograms of cocaine.

Accordingly, because the District Court’s Alleyne error was caused by a trial error, we

can look to the trial record and conclude that the error was harmless because of the

overwhelming evidence in support of the drug quantity.

For example, Crews supplied Vincent Graham with 4.5 to 9 ounce quantities of

cocaine every five to seven days throughout 2003.39 And, evidence also established that

Crews supplied Graham with 4.5 to 13 ounces of cocaine every five to seven days

between May, 2005 and May, 2006.40 The trial record also reveals that Michael Durant

sold Crews 20 to 25 kilograms of cocaine between 2004 and 2005.41 Before that,

Emmanuel Moore supplied Crews with approximately 25 kilograms of cocaine between

the fall of 2002 and early 2003.42 Evidence also established that Moore traveled to

California two times per week between May 2003 and October 2004 and purchased “no

less than 5” kilograms of cocaine per week for Crews.43 Indeed, Crews admits in his

brief that “[i]n 2004, Moore purchased at least 20 kilos of cocaine on each trip to

California; Crews would receive between five and eight of the kilos.”44 And, the record

39
App. at 909a-15a.
40
App. at 916a-17a.
41
App. at 634a-38a.
42
App. at 983a-84a, 988a-93a.
43
App. at 998a-1003a.
44
Crews Br. at 5 (citing App. at 1011a).

14
also establishes Crews received 20 kilograms of cocaine from a source Lofton had in

North Carolina.45 Given all of this, including Crews’ admission on appeal, we have little

difficulty concluding that the trial record contained overwhelming evidence of drug

quantity attributable to Crews. Therefore, we also have little difficulty concluding the

District Court’s Alleyne error was harmless.

Crews next argues that the post-conviction assistance he gave the Government in

other investigations required the Government to file a motion pursuant to 18 U.S.C. §

3553(e).46 This argument is meritless as well.

At sentencing, the Government filed a motion for a downward variance from the

applicable Guideline range pursuant to U.S.S.G. § 5K1.1, based on Crews’ post-

conviction cooperation, but elected not to file a motion pursuant to 18 U.S.C. § 3553(e),

which would have permitted the District Court to sentence Crews below the mandatory

minimum sentence of 20 years. Crews first attempts to connect this refusal to file a §

3553(e) motion to the Government’s filing of a motion under §5K1.1.47 He tells us that,

because these provisions operate under the “same principles,” the District Court

mistakenly concluded that it lacked the authority to depart below the mandatory

minimum sentence, the absence of a §3553(e) motion notwithstanding. Crews is

45
App. at 727a.
46
18 U.S.C. § 3553(e) provides: “Upon motion of the Government, the court shall have
the authority to impose a sentence below a level established by statute as minimum
sentence so as to reflect a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.”
47
Crews Br. at 27.

15
incorrect. The Supreme Court has rejected the notion that § 5K1.1 and § 3553(e)

somehow connect to form a unitary downward departure system whereby a § 5K1.1

motion authorizes a district court to sentence below the mandatory minimum under §

3553(e).48

Crews could possibly have received a sentence below the statutory minimum if the

Government filed a motion pursuant to 18 U.S.C. § 3553(e).49 It did not do so here and

stated its reasons to the District Court in detail at the sentencing hearing.50 This makes

the Government’s decision unreviewable unless the parties agreed that the Government

would file such a motion and then did not do so, or that the Government’s reasons for not

filing the motion were based on an unconstitutional motive, like a defendant’s race or

religion.51 Crews had no agreement with the Government which would have required the

filing of such a motion. So, Crews is left to argue that the reasons provided by the

48
Melendez v. United States, 518 U.S. 120 (1996).
49
See United States v. Kellum, 356 F.3d 285, 289 (3d Cir. 2004) (holding that a district
court only has authority to depart below mandatory minimum sentence pursuant to 18
U.S.C. § 3553(e), (f)); Melendez v. United States, 518 U.S. 120, 130 (1996) (a district
court has no authority to impose a sentence below a statutory mandatory minimum when
the government has not made a motion pursuant to § 3553(e)). There are two other
avenues whereby a district court might impose a sentence less than the statutory
mandatory minimum—Federal Rule of Criminal Procedure 35(b) and the safety value set
out in 18 U.S.C. § 3553(f)(7)—which are inapplicable here.

50
App. at 1876a-1882a.

51
See Wade v. United States, 504 U.S. 181, 185-86 (1992).

16
Government for not filing the § 3553(e) motion are “not rationally related to any

legitimate Government end.”52 He bears the burden on this point and has not met it.53

The Government set out numerous reasons in support of its decision not to file a §

3553(e) motion: the extent and breadth of Crews’ drug trafficking and money laundering

activities, the decades-long duration of the conspiracy, Crews’ leadership role, the

massive amounts of drugs put onto the streets of Philadelphia through Crews’ actions, the

large number of individuals involved in Crews’ activities, Crews’ continuation of drug

trafficking activities despite his conviction and supervised release for the same activities

in 1995, the timing of his cooperation with the Government—which he gave only after

being convicted—his post-conviction offer of information on the criminal activities of

witnesses who testified against him, Crews’ failure to accept responsibility for his crimes,

the sentences imposed on his co-defendants and the level of departure granted to

witnesses who cooperated, and the level of intimidation those witnesses faced as a result

of their trial testimony against Crews.54 The District Court found no arbitrariness among

these reasons nor do we. Crews maintains that several of the Government’s reasons were

indeed arbitrary, yet he offers us very few specifics or support for his contentions. Mere

claims that Crews provided substantial assistance and generalized allegations of the

Government’s improper motive do not “entitle a defendant to a remedy . . ..”55

52
Id.
53
Id. at 186.
54
App. at 1879a-1883a.
55
Wade, 504 U.S. at 186.
17
 He argues, for example, that some defendants “more deeply involved in the same

conspiracy as Crews testified at trial and received lesser sentences.”56 But, Crews’ scant

paragraph of conclusory argument on this point lacks supporting facts from which a

viable claim of arbitrariness can spring. Additionally, Crews suggests that the

Government’s decision not to file the § 3553(e) motion amounted to an impermissible

attempt by the Government to control the exercise of judicial authority.57 This is a

separation of powers argument. He characterizes the Government’s concern with

avoiding sentencing disparities as representative of a “[d]isagreement with and distrust of

judicial authority.”58 However, Crews ignores the fact that a statute—§ 3553(e)—gives

the Government authority to make the decision whether to file the motion and that this

statutory mandate is not a usurpation of judicial power. We have noted that, “[w]hen

Congress establishes a minimum sentence for a particular crime, district courts are

required to sentence defendants guilty of that crime to a term of imprisonment no less

than the Congressionally prescribed minimum, unless an explicit exception to the

minimum sentence applies.”59 Indeed, the Supreme Court has “consistently recognized

56
Crews Br. at 30.

57
Id.

58
Id.

59
United States v. Winebarger, 664 F.3d 388, 392 (3d Cir. 2011).

18
that Congress has plenary authority over the designation of appropriate punishment for

federal crimes.”60

Lastly, Crews charges that the Government arbitrarily took the timing of his

cooperation into account when deciding not to file the § 3553(e) motion. He argues,

more specifically, that he was penalized for exercising his right to trial. That did not

happen here. At sentencing the Government acknowledged distinctions between Crews

and his co-defendants, recognizing that the co-defendants who pleaded guilty and offered

meaningful assistance to the Government received lesser sentences.61 Further, the

Government acknowledged that Crews had the right to proceed to trial and that the

Government was not penalizing him for exercising that right.62 There is no evidence,

however, of unconstitutional conduct by the Government. Instead, the Government made

the decision not to file the § 3553(e) motion after weighing the quantity and quality of

Crews’ assistance; assistance it did not find substantial enough to warrant the filing of the

motion. For example, while Crews did provide information on unsolved murders

allegedly committed by his co-conspirators, the information was decades old and, as the

Government noted, it does not typically prosecute murder cases.63 Crews also gave the

Government information concerning a cell phone that another co-conspirator used,

United States v. Frank, 864 F.2d 992, 1010 (3d Cir. 1988) (citing United States v.
60

Grayson, 438 U.S. 41 (1978).
61
See App. at 1879a.

62
Id.

63
Id.

19
information that the Government acknowledged as useful during the penalty phase of that

co-conspirator’s trial.64 However, since Crews was by then a convicted felon, thereby

diminishing the reliability of his testimony in the eyes of a jury, the Government elected

not to call him to testify in that case. The foregoing reasons do not reflect a motivation to

punish Crews for exercising his right to a trial. Instead, they reflect the Government’s

rational consideration of the value of Crews’ assistance as compared to that offered by

other conspirators. We agree, therefore, with the District Court that the Government did

not act arbitrarily in declining to file a § 3553(e) motion.

Crews next argues that § 841(b)(1)(A)’s mandatory minimum sentence “conflicts”

with the parsimony provision of 18 U.S.C. § 3553(a), which provides that a district court

“shall impose a sentence sufficient, but not greater than necessary” to accomplish the

goals of sentencing.65 Specifically, Crews maintains that the District Court was unable to

carry out its judicial function, as set forth in the mandates of 18 U.S.C. § 3553(a),

because it had to comply with the mandatory 20 year sentence. We have previously

rejected such challenges to mandatory minimum sentences.66 These decisions are

64
Id.
65
18 U.S.C. § 3553(a).
66
See United States v. Grober, 624 F.3d 592 (3d Cir. 2010); United States v. Walker, 473
F.3d 71, 85 (3d Cir. 2007) (holding that there is no conflict between § 3553 and a
mandatory minimum sentence provision because “ § 3553(a) must be read in conjunction
with § 3553(e), which prohibits the court from sentencing a defendant below the statutory
mandatory minimum sentence unless the Government files a motion permitting such
departure”); United States v. MacEwan, 445 F.3d 237, 251–52 (3d Cir. 2006) (“Congress
has the power to define criminal punishments without giving the courts any sentencing
discretion.” (quoting Chapman v. United States, 500 U.S. 453, 467 (1991)).

20
binding precedent, and consequently resolve Crews’ argument in favor of the

Government. Therefore, we need not discuss this particular issue in any greater detail.

We likewise need not discuss Crews’ next issue in any great depth. Crews

challenges the enhancement of his sentence due to his prior criminal conviction. Title 21

U.S.C. § 841(b)(1)(A) contains a proviso whereby a mandatory minimum sentence can

be doubled because of a prior criminal conviction. Crews argues that the existence of his

prior conviction was an element of his offense and, as such, had to be alleged in the

indictment and proven to the jury beyond a reasonable doubt. This argument has been

rejected.67 The District Court was thus fully empowered to make the necessary findings

to double Crews’ mandatory minimum sentence based on a prior conviction.

Lastly on the question of his sentence, Crews attacks the information filed by the

Government pursuant to 21 U.S.C. § 851, which doubled Crews’ mandatory minimum

sentence. Specifically, he claims the notice he received of this enhancement was

deficient. We disagree. Section 851 provides:

No person who stands convicted of an offense under this part
shall be sentenced to increased punishment by reason of one
or more prior convictions, unless before trial, or before entry
of a plea of guilty, the United States attorney files an
information with the court (and serves a copy of such
information on the person or counsel for the person) stating in
writing the previous convictions to be relied upon....68

67
Almendarez–Torres v. United States, 523 U.S. 224, 246–47 (1998) (prior conviction
that increases maximum penalty need not be treated as element of offense and proven to a
jury); United States v. Blair, 734 F.3d 218, 227 (3d Cir. 2013) (“Alleyne do[es] nothing to
restrict the established exception under Almendarez–Torres that allows judges to consider
prior convictions.”).
68
21 U.S.C. § 851(a)(1).
21
We review the sufficiency of the Government’s notice de novo and agree with the

District Court that Crews was provided with sufficient notice of the Government’s

intention to rely on his prior felony conviction to enhance his sentence.69

The Government’s information stated the following:

On or about February 21, 1996, defendant Jaquel Crews was
sentenced in the United States District Court for the Eastern
District of Pennsylvania on his guilty plea to the felony drug
offenses of conspiracy to distribute cocaine and distribution
of cocaine base, at Criminal Number 95-0391, to a term of 56
months, and 4 year supervised release. Jaquel Crews is
charged in the Second Superseding Indictment, Criminal No.
10-663-2, with, in Count Five, conspiracy to possess with
intent to distribute 5 kilograms or more of cocaine, in
violation of 21 U.S.C. § 846. Jaquel Crews’ prior felony drug
conviction serves as the basis for increased punishment
pursuant to 21 U.S.C. § 841(B)(1)(b).70

Crews asserts that this notice was faulty because it omits the date his prior trafficking

conviction became final and did not specifically mention that this conviction became

final before the offense dates in the instant prosecution. We have never required such

specificity, however. Instead, all that is required is that the § 851 notice provide a

defendant with reasonable notice of the Government’s intention to rely on a previous

conviction and an opportunity to be heard on the issue.71 The notice in this case satisfies

these basic requirements.

69
United States v. Weaver, 267 F.3d 231, 246 (3d Cir. 2001).

70
App. at 1671a-72a.
71
See Weaver, 267 F.3d at 247.

22
 In sum, we see no error in the application of the mandatory minimum sentence to

Appellant Crews.

Enhancement for Leadership Role

Crews complains that the District Court incorrectly determined that he was a

leader of the drug conspiracy and, therefore, erroneously enhanced his sentence by four

levels.72 We review a district court’s ruling on a sentencing enhancement that requires a

predominately factual inquiry for clear error.73 The leadership enhancement is such an

inquiry and it is appropriately activated if the evidence shows that Crews exercised some

degree of control over at least one other person involved in the offense.74 We find no

clear error in the District Court’s determination that Crews bore a leadership or

organizational role in the offense. The evidence established, for example, that Crews

supervised Donielle Fletcher in the production, packaging, storage, and delivery of

cocaine from her residence.75 Further, evidence also established that Crews directed

Craig Lofton and others to purchase large amounts of cocaine on buying trips to

California. Crews paid for these trips from his own funds and answered to no one for

these excursions.76 As the District Court aptly summarized, “[t]hose deals were his

72
See U.S.S.G. § 3B1.1(a).

73
United States v. Richards, 674 F.3d 215, 221-22 (3d Cir. 2012).

United States v. Helbling, 209 F.3d 226, 243-44 (3d Cir. 2010); see also U.S.S.G. §
74

3B1.1 app. note 2.
75
App. at 262a-269a.

76
See App. 1859a-69a.
23
deals.”77 Accordingly, the District Court did not clearly err in determining that the four-

level leadership enhancement applied.

Issues Related to the Forfeiture Determination

Both Miller and Crews challenge the forfeiture judgments entered against them,

raising different points of attack.78 The Government sought forfeiture pursuant to 21

U.S.C. §853, which limits forfeiture to “any property constituting, or derived from any

proceeds the person obtained, directly or indirectly, as a result of such violation; or any of

the person’s property used, or intended to be used, in any manner or part, to commit, or to

facilitate the commission of, such violations.”79 The standard of proof is preponderance

of the evidence.80 The District Court granted the forfeiture motion in the amount of $5

million, and in doing so, indicated that its decision was supported by both a proceeds

theory and a facilitating property theory of forfeiture.81

We will start with a challenge to the forfeiture raised by Appellant Miller. Miller

asserts that the District Court, as opposed to the jury, unconstitutionally made certain

factual findings in ordering the forfeiture. Our decision in United States v. Leahy, and the

77
App. at 1867a.

As these issues present questions of law, we exercise plenary review. United States v.
78

Vampire Nation, 451 F.3d 189, 198 (3d Cir. 2006) (citing United States v. Ledesma–
Cuesta, 347 F.3d 527, 530 (3d Cir. 2003)).

79
21 U.S.C. § 853(a)(1), (2).

80
United States v. Leahy, 438 F.3d 328, 333 (3d Cir. 2006).
81
App. at 11.

24
Supreme Court’s decision in Libretti v. United States preclude Miller’s argument.82

Those decisions clearly hold that the right to a jury is not implicated in criminal forfeiture

proceedings.83 In light of this controlling precedent, Miller’s claim is untenable.84

For his part, Crews contends that the District Court lacked statutory authority to

impose a $5 million money judgment against him personally under 21 U.S.C. §

853(a)(1). This argument likewise fails when confronted with our prior precedent. In

United States v. Vampire Nation, we specifically held that “in personam forfeiture

judgments are appropriate under 21 U.S.C. § 853, even where the amount of the

judgment exceeds the defendant’s available assets at the time of conviction.”85 Crews

makes several attempts to distinguish our decision in Vampire Nation from his case, all of

which are unavailing. For example, he believes Vampire Nation is inapplicable because

the forfeiture there was rooted in 18 U.S.C. § 981(a)(1)(C), a civil forfeiture provision

that was made enforceable in criminal prosecutions by 28 U.S.C. § 2461(c), whereas his

82
438 F.3d 328, 331 (3d Cir. 2006)(en banc); 516 U.S. 29, 48-49 (1995).
83
See, e.g., Libretti, 516 U.S. at 49.
84
The Appellants call our attention to the Supreme Court’s decision in Southern Union
Co. v. United States, 132 S.Ct. 2344 (2014), arguing that opinion casts serious doubt on
the continued validity of Libretti. In Southern Union, the Supreme Court applied
Apprendi to the imposition of criminal fines, thereby requiring a jury determination
before fines can be imposed. The Appellants urge us to view Libretti as effectively
overruled, and ask us to now require a jury determination in the context of criminal
forfeitures, just as Southern Union required it for criminal fines. This, we cannot do.
Libretti has not been overruled, and we are obligated to follow its clear holding that “the
right to a jury verdict on forfeitability does not fall within the Sixth Amendment’s
constitutional protection.” 516 U.S. at 49.

85
451 F.3d 189, 203 (3d Cir. 2006).

25
forfeiture was imposed directly under § 853. This argument is meritless. Our decision in

Vampire Nation specifically addresses § 853 forfeitures.86

Next, Crews pivots and argues that Vampire Nation does not apply because that

case concerned § 853’s procedural provisions, while his forfeiture was premised on that

section’s substantive authority. Yet, Crews offers us no supporting authority to validate

this distinction, nor does he attempt to explain the importance of such a difference. The

Government, however, did find case law rejecting Crews’ argument. The Court of

Appeals for the Second Circuit looked at this issue and found “no meaningful difference”

between an in personam forfeiture judgment arising directly from § 853, and an in

personam forfeiture that might arise from § 853 by way of another statute, 28 U.S.C. §

2461(c), for example.87 We agree. Lastly, Crews tries to get out from our holding in

Vampire Nation by arguing that that opinion never addressed the point he advances here:

in personam money judgments are not available under § 853. This is not the case. We

did address this argument in Vampire Nation, specifically holding that “an in personam

forfeiture judgment may be entered for the full amount of the criminal proceeds.”88 This

holding precludes Crews’ argument.

86
Id. at 203.

87
United States v. Kalish, 626 F.3d 165, 169 (2d Cir. 2010).
88
451 F.3d at 202-03.

26
 To conclude, the Appellants’ claims that in personam forfeiture money judgments

are unavailable in the context of their drug trafficking sentences are erroneous. We find

no error in the District Court’s imposition of such a judgment.

As a parallel argument, Crews contends the District Court lacked the authority to

enter an in personam money judgment against him based on a facilitating property theory.

Here, he finds fault with the indictment. Pursuant to Federal Rule of Criminal Procedure

Rule 32, “[a] court must not enter a judgment of forfeiture in a criminal proceeding

unless the indictment or information contains notice to the defendant that the Government

will seek the forfeiture of property as part of any sentence in accordance with the

applicable statute.”89 Crews argues that the forfeiture judgment was invalid because

while the phrase “the sum of $5,000,000” was indicated in the proceeds section of the

indictment, it was not repeated in the forfeiture property section.90 This reading of the

rule is too restrictive. Rule 32 and due process only require that notice of the possible

forfeiture be given to a defendant and that a defendant have an opportunity to be heard.91

An indictment is sufficiently specific as long as it “puts the defendant on notice that the

government seeks forfeiture and identifies the assets with sufficient specificity to permit

the defendant to marshal evidence in their defense.”92 Here, the indictment gave Crews

89
Fed. R. Crim. P. 32.2(a).

90
Appellant Miller joins in this argument.
91
See United States v. James Daniel Good Real Property, 510 U.S. 43, 48–50 (1993).
92
See, e.g., United States v. Loe, 248 F.3d 449, 464 (5th Cir. 2001).

27
ample notice that the Government intended to seek a $5 million forfeiture money

judgment and the fact that this request was not repeated in separate sections of the

indictment is not an error.

Crews also argues that the District Court erred by imposing joint and several

liability based on the forfeited property. Here, we share the Government’s belief that this

argument is largely academic, given that joint and several liability was also imposed by

the District Court based on the proceeds of the conspiracy, an action which our prior

precedent clearly endorses.93 Crews claims that the language of 21 U.S.C. § 853(a)(2)

limits the scope of a forfeiture under the facilitating property theory to that property

belonging only to him. We do not agree. Section 853(a)(2) permits the forfeiture of “any

of the person’s property used, or intended to be used, in any manner or part, to commit,

or to facilitate the commission of” the crime. Crews keys-in on the words “any person”

and “the person’s” as language, he says, that limits the extent of the forfeiture to property

that belongs solely to him. Crews neglects to mention, however, that the proceeds

section of § 853 contains the same language and we have held that language to take in all

the property possessed by any member of the conspiracy.94 In United States v. Pitts, we

noted that § 853(a)(1) “does not say that each conspirator shall forfeit only such property

involved in the offense which is or has even been in that conspirator’s possession.

93
See, e.g., United States v. Pitts, 193 F.3d 751, 765 (3d Cir. 1999); see also United States
v. Van Nguyen, 602 F.3d 886, 904 (8th Cir. 2010) (imposing joint and several liability
with respect to forfeiture of proceeds of a drug conspiracy).

94
193 F.3d 751, 765 (3d Cir. 1999).

28
Rather, the statute recognizes that the amount of property involved in a . . . conspiracy

cannot be different for different conspirators.”95 Given the identical language in §

853(a)(2), we see no reason not to apply this holding to that section. And, Crews has

offered us none. We therefore see no error in the District Court’s order of forfeiture.

Lastly, Appellant Miller argues that the District Court should have made a

foreseeability determination before imposing joint and several forfeiture liability. He

acknowledges, however, that he failed to “object on this basis below.”96 We, therefore,

apply a plain error review to his claims.97 Miller insists that we should apply plenary

review to this claim nonetheless because he did not have an opportunity to object to the

lack of a foreseeability finding.98 Specifically, he says that he could not have known the

District Court would impose joint and several liability on him without a foreseeability

determination until the District Court issued its order and memorandum.99 By that time,

he maintains, it was too late for him to object. We disagree. Miller had plenty of time

and opportunity to object. Indeed, almost a year would pass between the entry of the

District Court’s forfeiture order and Miller’s sentencing.100 Nothing prevented Miller

95
Id.
96
Miller Br. at 40.

97
United States v. Berger, 689 F.3d 297, 299 (3d Cir. 2012).

98
Miller Brief at 40.

99
Id.

The forfeiture order and accompanying memorandum were filed on August 14, 2012
100

and Miller was sentenced on July 24, 2013.
29
from filing an objection to the forfeiture based on a lack of foreseeability during that

time. This is because a forfeiture order only becomes final at the time of sentencing.101

Therefore, given this omission, we review Miller’s claim for plain error.102

Under the plain error standard, we may reverse the District Court's ruling only if

there was “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) which

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”103

There was no error here, much less a plain one. We have held that a District Court may

impose joint and several liability on co-defendants as part of a forfeiture money

judgment.104 And, while other courts may have done so, we have not held that a

foreseeability finding is required prior to the imposition of joint and several liability on

co-defendants. Therefore, we see no error. Even were we to find error, it certainly would

not be plain, given that a foreseeability requirement is not uniformly required. Miller

calls our attention to decisions from other circuits that have required a foreseeability

finding—United States v. Elder,105 for example. He also points out that we have issued a

See Fed. R. Crim. P. 32.2(b)(1)(A); United States v. Pelullo, 178 F.3d 196, 202 (3d Cir.
101

1999).
102
See United States v. Flores, 454 F.3d 149, 156 (3d Cir. 2006) (citing Fed.R.Crim.P.
30; Gov’t of the Virgin Islands v. Knight, 989 F.2d 619, 631 (3d Cir. 1993)).

103
United States v. Paladino, 769 F.3d 197, 201 (3d Cir. 2014).

104
United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999).

105
682 F.3d 1065 (8th Cir. 2012).

30
non-precedential opinion requiring such a determination.106 However, courts are not

harmonized in their view that a foreseeability requirement is necessary. The Court of

Appeals for the Eleventh Circuit, for example, has specifically rejected a foreseeability

requirement, relying on Supreme Court precedent.107 And, our decision in Plaskett, as

the parties recognize, was a non-precedential opinion issued under our I.O.P. 5.7, and as

such lacks precedential authority and is non-binding on any subsequent case or panel.

Given these contrary opinions, we cannot say that the District Court’s lack of a

foreseeability determination was obvious error.108

Conclusion

In light of the foregoing, we will affirm the convictions of Appellants Crews and

Miller, the sentence of Appellant Crews, and the forfeiture money judgments entered

against both Appellants in the District Court.

106
United States v. Plaskett, 355 F. App’x 639 (3d Cir. 2009).
107
See, e.g., United States v. Browne, 505 F.3d 1229, 1279 (11th Cir. 2007).

United States v. Olano, 507 U.S. 725, 733-35 (1993) (“To demonstrate “plain error,” a
108

defendant must prove that the Court erred, that the error was “clear” or “obvious,” and
that the error “affect[ed] substantial rights” of the defendant.).
31