United States of America v. James Flack

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1316
_____________
UNITED STATES OF AMERICA
v.
JAMES FLACK,
Appellant
_____________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 10-426-1)
District Judge: Hon. Stewart Dalzell, Jr.
_____________
Submitted Under Third Circuit L.A.R. 34.1(a),
March 26, 2012
BEFORE: FUENTES, SMITH, and JORDAN, Circuit Judges
(Opinion Filed: April 19, 2012)
_____________
OPINION OF THE COURT
_____________
FUENTES, Circuit Judge.
James Flack was convicted by a jury of possessing with intent to distribute 100
grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i), and aiding
and abetting in violation of 18 U.S.C. § 2. The District Court sentenced Flack to 180

-- 1 of 5 --

2
months’ imprisonment. Flack appeals his conviction and sentence, contending that the
District Court made a host of evidentiary and procedural errors. We will affirm.
I.
Because we write solely for the parties, we recount only those facts necessary to
our decision.
Based on information shared between Drug Enforcement Agency (“DEA”) offices
in Arizona and Pennsylvania, DEA agents in Philadelphia were aware that a truck
containing narcotics was going to arrive in Philadelphia.1 Mark Smith, John Jackson, and
Kyle Johnson were determined to be in the truck. After the truck arrived in Philadelphia,
the DEA kept it under surveillance. Smith, Jackson, and Johnson tried to sell the heroin
but were largely unsuccessful. At Flack’s trial, Smith testified that after a few
unsuccessful days, he contacted Flack, whom he knew from prior drug dealings, and
asked him to come to Philadelphia to help him sell the heroin. That day, Flack purchased
a one-way ticket from Phoenix to Philadelphia. Flack took one of the six bricks and
attempted to sell it.
While preparing to return the heroin to their supplier, Smith, Jackson, and Johnson
were pulled over by the state police and Smith consented to a search of his car. The
police discovered a box that contained five wrapped-up bricks of heroin2 and arrested
them. Smith immediately began cooperating with authorities and told the police officers
1 Initially, the agents believed the truck was carrying cocaine. It was later determined
that the truck contained six one-kilogram bricks of heroin.
2 There was approximately 4.95 kilograms of heroin in the bricks.

-- 2 of 5 --

3
that they were in Philadelphia trying to sell heroin. The police report prepared after this
conversation only referenced five kilograms and did not mention Flack’s involvement.
Based on this information, by indictment dated March 3, 2010, the government
charged Smith, Jackson, and Johnson with conspiracy to possess with intent to distribute
one kilogram or more of heroin and possession of one kilogram or more of heroin.
Smith and Jackson cooperated with federal authorities and eventually pled guilty.
Jackson testified at Flack’s trial that at a March 23, 2010 proffer session, he told the
government about the kilogram of heroin he gave to Flack. Smith testified that around
April 2010, he mentioned the extra kilogram and Flack’s involvement. After learning
about the extra kilogram, the government did not supersede the indictment against either
Smith or Jackson to reflect the presence of the additional kilogram, but it did note it in its
plea memoranda to the District Court. The government obtained an indictment against
Flack charging him with possession with intent to distribute one kilogram of heroin and
aiding and abetting.
Flack went to trial on the indictment. The first jury was unable to reach a verdict.
Flack went to trial again and was found guilty on both counts. At trial, Smith and
Jackson both testified about Flack’s involvement in the heroin sale. The government
introduced records that showed Flack purchased a last minute, one-way ticket from
Phoenix to Philadelphia on August 26, 2009, records that showed numerous phone calls
between Smith and Flack, and statements by Jackson on wiretaps indicating he had given
a kilogram of heroin to another person to sell. At the close of the government’s case-in-
chief, Flack filed a motion for acquittal pursuant to Rule 29 of the Federal Rules of

-- 3 of 5 --

4
Criminal Procedure; after the jury rendered its verdict, Flack filed a motion for a new trial
pursuant to Rule 33. The District Court denied both of these motions. Flack was
sentenced to 180 months’ imprisonment. This appeal followed.3
II.
Flack contends that the District Court erred when it admitted evidence of Flack’s
prior conviction for possession with intent to distribute cocaine and evidence of Flack’s
prior marijuana-related drug deals with Smith.4 He also contends the evidence was
insufficient to support his conviction. We disagree and affirm for substantially the
reasons stated by the District Court in its March 23, 2011 Decision and Order.
As to the introduction of improper evidence, while there is an impermissible
propensity-based theory, the evidence is also separately relevant to show why Smith
would contact Flack to aid in selling the heroin and Flack’s knowledge that the wrapped-
up brick was an illicit substance. The District Court also gave a limiting instruction. The
3 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We
have jurisdiction pursuant to 18 U.S.C. § 1291. We review a district court’s evidentiary
rulings for an abuse of discretion. Ansell v. Green Acres Contracting Co., 347 F.3d 515,
519 (3d Cir. 2003). When a party fails to object, we review such rulings for plain error.
United States v. Butch, 256 F.3d 171, 180 (3d Cir. 2001). In reviewing whether a jury
verdict is based on sufficient evidence, we apply a particularly deferential standard of
review. United States v. Soto, 539 F.3d 191, 193-94 (3d Cir. 2008). “[I]t is not for us to
weigh the evidence or to determine the credibility of witnesses.” Id. at 194 (quoting
United States v. Dent, 149 F.3d 180, 178 (3d Cir. 1998)). Rather, we “view the evidence
in the light most favorable to the government, and will sustain the verdict if any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.
4 Flack withdrew his objection to the introduction of his prior drug conviction and failed
to object when Smith testified about prior dealings with Flack. He did object when
Jackson testified about the same.

-- 4 of 5 --

5
introduction of this evidence was not plain error or an abuse of discretion. See United
States v. Green, 617 F.3d 233, 250 (3d Cir. 2010).
As to the sufficiency of the evidence, while there are inconsistencies in Smith’s
and Jackson’s testimony and reasons to doubt their veracity, those are credibility
determinations squarely within the jury’s domain. United States v. Ozcelik, 527 F.3d 88,
94 (3d Cir. 2010). Also, on key points, their testimony was consistent. Their testimony
was supported by independent evidence, such as records of phone calls between Flack
and Smith, Flack’s last minute, one-way airline ticket from Phoenix to Philadelphia, and
recorded phone conversations referencing the extra brick. Taken together, there was
sufficient evidence for a reasonable juror to find beyond a reasonable doubt that the
government had proven all the elements of the offenses. Id.
III.
We have considered Flack’s remaining arguments and find them to be without
merit. For the foregoing reasons, we will affirm.

-- 5 of 5 --