NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1321
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UNITED STATES OF AMERICA
v.
MYKAL DERRY, a/k/a/ Koose,
a/k/a Leenie, a/k/a Cannon, a/k/a Moose
Mykal Derry,
Appellant
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No. 16-3489
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UNITED STATES OF AMERICA
v.
MALIK DERRY,
a/k/a Leek, a/k/a Lik,a/k/a Mykell Watson
Malik Derry,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Nos. 1-14-cr-00050-001 & 1-14-cr-00050-005)
District Judge: Honorable Noel L. Hillman
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Submitted Under Third Circuit LAR 34.1(a)
June 11, 2018
Before: AMBRO, JORDAN, and HARDIMAN, Circuit Judges
(Opinion filed: June 22, 2018)
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OPINION*
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AMBRO, Circuit Judge
Appellants Mykal and Malik Derry, step-brothers, were convicted of conspiracy to
distribute one or more kilograms of heroin, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846, and 860, discharging a firearm in furtherance of that conspiracy, in
violation of 18 U.S.C. § 924(c)(1)(A)(iii), and multiple counts of using a telephone to
facilitate drug trafficking, in violation of 21 U.S.C. § 843(b). Mykal was also convicted
of distributing heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and operating
a drug stash house, in violation of 21 U.S.C. § 856. Nineteen defendants were charged as
part of this conspiracy. Thirteen pled guilty and the remaining defendants were separated
into two trials. We affirmed four defendants’ convictions in the first trial, see United
States v. Bailey, 840 F.3d 99 (3d Cir. 2016), and we now review Mykal and Malik’s
convictions and sentences in the second trial. They contest mainly their convictions for
discharging a firearm in furtherance of the drug conspiracy, and focus in particular on the
District Court’s decision to admit evidence tying them to the shooting death of Tyquinn
James. In doing so, they argue the District Court made a number of errors warranting
vacation of their convictions or remand for re-sentencing. We address each argument in
turn.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
I. Admission of Non-Video Evidence of the James Murder
Mykal contests the District Court’s decision to admit non-video evidence of the
James murder, arguing it was cumulative and unfairly prejudicial to him. We review the
Court’s decision to admit the evidence for abuse of discretion. United States v. Schneider,
801 F.3d 186, 197 (3d Cir. 2015). Mykal claims the evidence was cumulative because the
Government had already introduced plenty of evidence that supported using a firearm in
furtherance of the conspiracy. However, none of the evidence items he recounts go to
discharge of a firearm in furtherance of the conspiracy; rather, they show possession or
use. See 18 U.S.C. § 924(c)(1)(A)(iii). Mykal does not tell us why the evidence was
unfairly prejudicial. Hence we echo our opinion in Bailey—that the high probative value
of the non-video evidence was not substantially outweighed by unfair prejudice. 840 F.3d
at 118–20.
II. Admission of Video Evidence of the James Murder
We likewise look to Bailey to determine whether the District Court erred by
admitting video evidence of the James murder. First, we note the Government concedes
the District Court erred by admitting the video under the “law of the case” doctrine rather
than by undertaking the balancing test prescribed by Federal Rule of Evidence 403.1 We
1
Malik argues the Court’s misapplication of the “law of the case” doctrine denied him
procedural due process because he was not present in the first trial to contest that court’s
admission of the video evidence. Our case law does not support the claim that this
resulted in constitutional harm. Moreover, Malik had access to procedures available in his
own trial to contest the video’s admission, which he did. We see no denial of procedural
due process here.
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may affirm despite this error, however, either if the video would have been admissible
under the proper test or if its admission was harmless.
Both Mykal and Malik argue the video should not have been admitted under the
balancing test because it was highly prejudicial and lacked probative value in light of the
availability and admission of non-video evidence of the murder. We follow our analysis
and holding in Bailey on the balancing test: the video lacked probative value because of
the availability of abundant non-video evidence and its graphic nature made it highly
prejudicial. 840 F.3d at 121–24. Thus, for the reasons expressed in Bailey, the District
Court should not have admitted the video evidence. Id.
We review separately whether this error was harmless, i.e., if “it is highly probable
that the error did not contribute to the judgment.” United States v. Zehrbach, 47 F.3d
1252, 1265 (3d Cir. 1995) (en banc) (emphasis omitted) (citation omitted). “High
probability” requires us to “possess a sure conviction that the error did not prejudice the
defendant.” Id. (internal quotation marks omitted) (citation omitted). Malik asserts that
the error here was not harmless because the jury chose to review the video multiple times
and relied on it to acquit him of brandishing a firearm. He believes this also signals that
jurors relied on the video to convict him of discharging a firearm in furtherance of the
drug conspiracy.
First, Malik’s acquittal of a charge based on the jury’s review of the video no
doubt did not prejudice him. Second, it is highly probable the video evidence did not
contribute to either defendant’s conviction for discharging a firearm in furtherance of a
drug conspiracy in light of the substantial non-video evidence that supported that
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conviction. Mykal and Malik’s intercepted conversation in which Mykal instructs Malik
to murder James, as well as evidence of other co-conspirators’ prior failed attempts to
murder him, are particularly compelling. Hence admission of the video in these
circumstances was harmless.2
III. Suppression of Witness Statements
Malik contends the District Court erred by denying his motion under Brady v.
Maryland, 373 U.S. 83 (1963), and holding the Government did not violate due process
by withholding three witness statements. We review de novo the Court’s conclusions of
law and its findings of fact for clear error. United States v. Perdomo, 929 F.2d 967, 969
(3d Cir. 1991).
On appeal, Malik challenges the Court’s factual findings of each witness’s role in
the conspiracy and knowledge base. He claims the Court’s reliance on these erroneous
factual findings led to legal error in holding there was no Brady violation. We cannot say
the District Court’s factual findings were clearly erroneous; the Court laid out myriad
reasons to support its conclusion that each witness’s role was circumscribed and none
would not have knowledge of Malik or Mykal’s violent acts. Moreover, each witness
stated he or she did not know of the reason for the James murder.
Malik’s claim of legal error is similarly unavailing. Under Brady the Government
violates due process if it suppresses evidence favorable to an accused that is material to
either guilt or punishment. 373 U.S. at 87. Evidence is favorable if it is either exculpatory
2
We reiterate our admonition in Bailey that “the doctrine of harmless error is not a
license to engage in whatever prejudicial practices an attorney might feel he or she can
get away with because the harmless error analysis will inoculate the end result against
reversal on appeal.” 840 F.3d at 124.
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or impeaching, and it is material if there is a reasonable probability that its disclosure
would have led to a different result in the proceeding. Strickler v. Greene, 527 U.S. 263,
280–81 (1999). We agree with the District Court’s thorough and well-reasoned holding,
and we adopt its reasoning as our own, that the statements were not favorable and were
not material.3 Contrary to Malik’s assertion, the witnesses’ lack of knowledge was not
itself favorable evidence; even if they had extensive knowledge of the conspiracy’s inner
workings in general, that does not overcome the Court’s finding that none would have
had knowledge of violent acts committed by Malik or Mykal. Finally, given the strength
of the Government’s case that James was murdered in furtherance of the charged
conspiracy, neither individually nor cumulatively would the statements’ admission have
been reasonably likely to change the trial outcome.
IV. Mark Frye’s Fifth Amendment Privilege
Mykal argues the District Court committed reversible error by finding Mark Frye
(a heroin dealer who supplied Mykal) did not waive his Fifth Amendment privilege
against self-incrimination because Frye answered a question by defense counsel before
claiming the privilege. We review this claim of legal error de novo, United States v.
Chabot, 793 F.3d 338, 342 (3d Cir. 2015), but accept the Court’s factual findings unless
they are clearly erroneous, United States v. Ins. Consultants of Knox, Inc., 187 F.3d 755,
759 (7th Cir. 1999).
The Court found that Frye was confused about when to assert the privilege, and,
due to his confusion, he did not knowingly and voluntarily waive it when he answered
3
We affirm on these grounds and thus do not address the Government’s argument that
Jodi Brown’s statement was not suppressed.
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defense counsel’s question. His counsel failed timely to question him about his
understanding of the privilege, and the Court did not remedy that error by asking those
questions itself. Further, when his counsel subsequently asked the proper foundation
questions, Frye immediately asserted the privilege in response to defense counsel’s
question.
We do not disturb the Court’s factual finding that Frye was confused. The
transcript of his testimony shows that he intended to assert his Fifth Amendment
privilege but was unsure of when to do so. The Court’s legal conclusion, however,
presumes confusion about when to assert one’s privilege precludes finding the privilege
waived. Of course, waiver of a Fifth Amendment privilege against self-incrimination
must be voluntary, knowing, and intelligent. Colorado v. Spring, 479 U.S. 564, 573
(1987). But today we need not resolve the question of whether confusion about when to
assert one’s Fifth Amendment privilege renders a subsequent waiver involuntary or
unknowing.
Even assuming the District Court erred by reaching this legal conclusion, any error
was harmless. Mykal does not explain what evidence or information he would have
derived from Frye’s testimony. Based on our review of the record, Frye’s testimony
likely would have pertained to the drug conspiracy charge and not the firearm offense.
Mykal subpoenaed Frye to contradict another witness’s testimony corroborating wiretap
and surveillance evidence of Mykal’s heroin purchases. Even if Frye’s testimony would
have made that witness’s testimony incredible, the jury still had considerable evidence—
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particularly from the wiretaps and Mykal’s admissions—to convict him of the conspiracy
charge.
V. Mykal’s Sentencing
Mykal argues the Court at sentencing erred by applying the United States
Sentencing Guidelines § 2D1.1(d)(1) cross-reference4 based on the James murder,
thereby increasing his base offense level to 43 and suggested minimum sentence to life
imprisonment. He contends the Government did not show by a preponderance of the
evidence that the murder was committed in furtherance of the drug conspiracy. He further
argues the Court’s application of the cross-reference violated the Sixth Amendment
because the issue of whether the murder was “in furtherance of” the conspiracy was not
submitted to the jury to find beyond a reasonable doubt. He cites to Alleyne v. United
States, 570 U.S. 99 (2013), for the proposition that “any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.” Id. at 102. We review for
clear error the Court’s factual findings in applying the Sentencing Guidelines. United
States v. Knight, 700 F.3d 59, 62 (3d Cir. 2012). Mykal’s Sixth Amendment claim gets de
novo review. United States v. Pavulak, 700 F.3d 651, 671 (3d Cir. 2012).
4
This provision states:
[I]f a victim was killed under circumstances that would constitute murder under 18
U.S.C. § 1111 had such killing taken place within the territorial or maritime
jurisdiction of the United States, apply § 2A1.1 (First Degree Murder) or § 2A1.2
(Second Degree Murder), as appropriate, if the resulting offense level is greater
than that determined under this guideline.
U.S.S.G. § 2D1.1(d)(1).
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The Court at sentencing had to find “that murder was . . . in furtherance of the
drug-related conspiracy.” United States v. Gamez, 301 F.3d 1138, 1148 (9th Cir. 2002).
And it did, as it found by a preponderance of the evidence that the James murder was in
furtherance of the drug trafficking conspiracy. Given the abundance of evidence the
Court recounted in support of its finding, we cannot say it clearly erred by finding that
the murder was “in furtherance of” the conspiracy.
Neither did the Court violate the Sixth Amendment by not submitting to the jury
the question of whether the murder was in furtherance of the conspiracy. Contrary to
Mykal’s suggestion, “Alleyne did not curtail a sentencing court’s ability to find facts
relevant in selecting a sentence within the prescribed statutory range.” United States v.
Smith, 751 F.3d 107, 117 (3d Cir. 2014) (emphasis omitted). That is what the Court did
here—it found a fact to determine the advisory (i.e., not mandatory) Guidelines range for
Mykal’s sentence within the statutorily prescribed range. See 21 U.S.C. § 841(b)(1)(A).
* * * * *
In sum, we hold the District Court did not err by admitting the non-video evidence
of the James murder, and its error in admitting the video evidence of that murder was
harmless. Neither did it err by holding the suppression of certain witness statements did
not violate Brady. We do not decide whether the Court erred by finding Frye did not
waive his Fifth Amendment privilege against self-incrimination, but even assuming it
did, any error was harmless. Finally, we hold the Court at sentencing properly applied the
cross-reference based on the James murder. We thus affirm.
9