United States of America v. Rakim Baskerville

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1411
UNITED STATES OF AMERICA
v.
RAKIM BASKERVILLE,
Appellant
(D.C. Criminal No. 2-04-cr-00280-11)
No. 07-1467
UNITED STATES OF AMERICA
v.
HAKEEM CURRY
a/k/a IBN a/k/a E.T. HAK
a/k/a MR. EDDIE a/k/a DOUGH BOY
a/k/a MT. GORE
Hakeem Curry,
Appellant
(D.C. Criminal No. 2-04-cr-00280-002)
On Appeal from the United States District Court
for the District of New Jersey
District Judge: Honorable Faith S. Hochberg

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1Footnote 2, page 8, of Appellant Baskerville’s Brief states that the correct spelling of
his first name is “Rakeem,” but that he has used the spelling “Rakim” for consistency
with the trial court record; accordingly, we have adopted this spelling herein.
2Footnote 2, page 11, of Appellant Curry’s Brief states that the correct spelling of his
last name is “Currie,” but that he has used the spelling “Curry” for consistency with the
trial court record; accordingly, we have adopted this spelling herein.
2
Submitted Under Third Circuit LAR 34.1(a)
on July 13, 2009
Before: RENDELL, FUENTES, and ROTH, Circuit Judges.
(Filed: July 30, 2009)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Appellants Rakim Baskerville 1 and Hakeem Curry2 were tried as co-defendants on
charges relating to an alleged drug conspiracy. Both were convicted of conspiracy to
distribute and possession with intent to distribute five kilograms or more of cocaine and
one kilogram or more of heroin in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A) and
21 U.S.C. § 846. Curry was also convicted of possession with intent to distribute
100 grams or more of heroin in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A) and nine
counts of money laundering in violation of 18 U.S.C. § 1956 (a)(1)(B)(I). Both Curry

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and Baskerville appeal their convictions. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
Curry argues that the District Court violated his Sixth Amendment right to counsel
by denying his request for a continuance in order to replace a member of his defense
team. This Court reviews a District Court’s denial of a continuance for abuse of
discretion. United States v. Kikumura, 947 F.2d 72, 78 (3d Cir. 1991). In determining
whether to grant a continuance, a court should consider: “the efficient administration of
criminal justice; the accused’s rights, including an adequate opportunity to prepare a
defense; and the rights of other defendants awaiting trial who may be prejudiced by a
continuance.” Id. This Court will only vacate a conviction based on a refusal to grant a
continuance if the denial was arbitrary and substantially impaired the defendant's
opportunity to receive a fair trial. United States v. Olfano, 503 F.3d 240, 246 (3d Cir.
2007). Here, it is clear from the District Court’s twenty-one page opinion, which
thoroughly balanced numerous factors, that the denial of a continuance was neither
arbitrary nor prejudicial.
Curry requested a fourth continuance so that he could replace Vincent Nuzzi, a
member of his defense team, who withdrew due to a conflict of interest. Nuzzi notified
the Court of the conflict only a week before trial. Nuzzi purportedly discovered the
conflict after listening to tapes of wiretapped recordings that the Government had
produced two years earlier, and which the Court had instructed counsel to review
carefully a year before trial. In denying the request for a continuance, the Court carefully

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weighed various factors, including: 1) the length of the delay that defendant requested;
2) the actual length of delay that would be needed for a third attorney to familiarize
himself with the complexity of the case and the two-year history of pretrial proceedings;
3) whether the Court had granted other continuances; 4) inconvenience to the other
litigants, witnesses, counsel and the court; 5) efficient judicial administration; 6) whether
there had been veiled attempts to delay the trial; 7) whether defendant had counsel who
were highly knowledgeable of his case; 8) whether there would be a Sixth Amendment
violation if the trial proceeded with two attorneys who defendant retained rather than
delaying the requisite time for a third attorney to get “up to speed”; 9) the complexity of
the case; and other factors unique to this case.
In discussing these factors, the Court noted that Curry still retained James Plaisted
and Lin Solomon, and that Plaisted had acted as lead counsel for over two years, while
Nuzzi had been absent trying a different case. The Court further recognized that Plaisted
and Solomon had written hundreds of pages of motions, scrutinized all of the evidence
that the Government produced and demonstrated an extraordinary command of every
aspect of the case. In addition, the Court stressed that Curry never demonstrated any
dissatisfaction with Plaisted and Solomon, but that Curry stated that he did not want
Plaisted to do “all” of the trial by himself. Given these facts and the nine months that the
District Court estimated it would take for a new lawyer to get up to speed in the case, we
find that the District Court’s decision to only grant a limited continuance to allow Plaisted
and Solomon to prepare for opening statements was neither arbitrary nor prejudicial.

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Both Curry and Baskerville argue that the District Court erred in refusing to hold a
taint hearing regarding evidence that the Government derived from calls that were not
properly sealed and that were intercepted after the wiretapping order expired. This Court
reviews the denial of a taint hearing for abuse of discretion. United States v. Bissell, 634
F.2d 1228, 1232-33 (9th Cir. 1981).
The Government produced and identified evidence that it admittedly collected
outside the scope of its warrants (“Unused Calls”). It brought the error to the attention of
the District Court, stated that it would not use any of the Unused Calls for any purpose,
and was ordered by the District Court not to use any of the Unused Calls. The
Government also explained that it did not use any evidence from the Unused Calls during
its investigation. Although the Government has the ultimate burden of proof to
demonstrate that its evidence is untainted, the defendant “has the initial burden of
establishing a factual nexus between the illegality and the challenged evidence.” United
States v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980).
The Government produced all of the Unused Calls, the affidavits that it submitted
in support of wiretapping applications and search/arrest warrants and its trial exhibits, yet
the Appellants point to no specific evidence that they believe was tainted. Rather, they
claim that an evidentiary hearing was necessary to review all of the Government’s
evidence to ensure that none of it was tainted. Such a request is parallel to that in Kandik,
in which the Court of Appeals for the Ninth Circuit held that, “[i]n the instant case, the
illegally seized evidence is known to all parties, and any connection between it and the

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challenged testimony would be readily traceable. A hearing in this case is unnecessary,
and would not help Kandik establish the taint.” Kandik, 633 F.2d at 1336. Similarly, in
United States v. Williams, 580 F.2d 578, 586-87 (D.C. Cir. 1978), the court denied an
evidentiary hearing because the appellants did not point to any taint from the illegal
wiretap. The court noted that “aside from the general assertion that some information
sources may have been developed through the use of the prior illegal wiretaps, appellants
have based no arguments specifically on the transcripts in their possession.” Williams,
580 F.2d at 587 n.48. The court found this failure sufficient to deny an evidentiary
hearing.
Here, as noted, the Defendants possessed all of the evidence that the Government
obtained illegally, but they never objected to any specific evidence as tainted and failed to
identify any evidence as tainted in their briefs. Thus, we find that the District Court did
not abuse its discretion in denying a taint hearing after the Government identified the
Unused Calls and assured the Court that no evidence derived from those calls was to be
used at trial.
Curry and Baskerville raise several other issues on appeal. Curry argues that the
District Court erred in allowing the government to impeach a defense witness and in
declining to permit redirect examination of a defense witness. Baskerville argues that
there was insufficient evidence to establish his involvement in a conspiracy, and that the
District Court erred by joining him with the other defendants, denying his motion for a
Rule 14 severance, failing to grant a mid-trial severance sua sponte, and denying an

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evidentiary hearing regarding the evidence seized from his house and his minivan.
Baskerville further argues that the Government engaged in prosecutorial misconduct.
Both Curry and Baskerville also argue that the District Court erred by admitting evidence
of uncharged drug dealing prior to the date specified in the indictment. We have
reviewed the record and conclude that none of these additional arguments have merit.
Accordingly, we will AFFIRM the Orders of the District Court.

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