United States of America v. Kaleel Wilson, a/k/a Kahlil Wilson a/k/a Khalil Wilson a/k/a Kahlio Wilson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3184
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UNITED STATES OF AMERICA
v.
KALEEL WILSON,
a/k/a Kahlil Wilson
a/k/a Khalil Wilson
a/k/a Kahlio Wilson
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cr-00732-001)
District Judge: Honorable Harvey Bartle, III
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 22, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges.
(Filed: October 9, 2009)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Kaleel Wilson appeals from the District Court’s conviction by a jury and sentence,
arguing that the District Court (1) abused its discretion in refusing to give an accomplice
witness jury instruction requested by the defendant and (2) committed plain error in
imposing a five-year mandatory minimum term of imprisonment under 18 U.S.C.
§ 924(c), to run consecutively with a ten-year mandatory minimum term of imprisonment
under 21 U.S.C. § 841(b)(1)(B). We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Kaleel Wilson was stopped by Philadelphia Police while speeding on the night of
July 5, 2007. Officers Jared Netzer and Ryan Murphy observed three men in the van:
Wilson in the driver’s seat, Baba Tunkara in the front passenger seat, and co-defendant
Nafice Fields in the backseat. After seeing a fully loaded nine-millimeter semi-automatic
handgun under the seat near Fields, Officer Murphy ordered him out of the van and
placed him under arrest. Officer Murphy ordered both Wilson and Tunkara out of the
vehicle, and Officer Murphy subsequently found a loaded .357 magnum handgun in
Tunkara’s left front pocket. Tunkara told police that just before the police stopped the
van, Wilson demanded that Tunkara hold the gun. Officer Netzer searched Wilson and

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found $1,388 in Wilson’s right front pocket. Police then searched the van and found 16.4
grams of crack cocaine in 115 small baggies in the roof liner above the driver’s sun visor.
Police arrested and charged Wilson, Fields, and Tunkara with state drug and
weapons offenses. Subsequently, a federal grand jury indicted Wilson and charged him
with possession with intent to distribute five or more grams of cocaine base, in violation
of 21 U.S.C. § 841(a)(1); possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1); and possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c). The same federal indictment also charged Fields with
one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). The federal indictment did not charge Tunkara.
At trial, Tunkara testified consistent with his earlier statement to police that
Wilson had demanded that Tunkara hold the gun. At the time of his testimony, Tunkara
still faced state drug and weapons charges stemming from the incident and also had an
application pending for United States citizenship. Wilson explored these points
extensively on cross-examination. Two months after his testimony against Wilson,
Tunkara pled guilty to a state count of possession of an unlicensed firearm and received a
sentence of five-years probation pursuant to a negotiated plea. At the plea hearing, the
United States informed the state court judge of Tunkara’s cooperation with federal
authorities.
At the District Court’s charging conference, Wilson did not ask the District Court
to give an accomplice witness instruction and never provided a written request for the

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instruction. Rather, Wilson’s attorney called the Judge’s chambers the morning after the
charging conference and requested an accomplice witness instruction. The District Court
refused to give the instruction, citing the lack of a written proposed instruction, the fact
that Tunkara was not charged federally, and stating that Wilson could challenge
Tunkara’s credibility before the jury.
Following conviction on all counts, the District Court sentenced Wilson to a
mandatory minimum term of imprisonment of ten-years for possession of cocaine base
with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and a
consecutive mandatory minimum term of imprisonment of five-years for carrying a
firearm in relation to the drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Wilson filed a timely appeal challenging his conviction on the grounds that the
District Court abused its discretion in failing to give the accomplice witness instruction
and challenging his sentence on the grounds that the District Court committed plain error
in imposing consecutive mandatory minimum terms of imprisonment under 18 U.S.C.
§ 924(c) and 21 U.S.C. § 841(b)(1)(B).
II.
The District Court properly exercised jurisdiction over this matter pursuant to 18
U.S.C. § 3231. We have appellate jurisdiction based upon the timely filing of a notice of
appeal from the July 16, 2008 order of judgment in the criminal case under 28 U.S.C.
§ 1291. We review the District Court’s refusal to give an accomplice witness instruction
under an abuse of discretion standard. United States v. Leahy, 445 F.3d 634, 642 (3d Cir.

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2006). As Wilson did not object to the imposition of consecutive mandatory minimum
sentences at the sentencing hearing before the District Court, we review the sentence for
plain error. United States v. Couch, 291 F.3d 251, 252 (3d Cir. 2002).
III.
Wilson first argues that the District Court abused its discretion in refusing to give
the accomplice witness instruction requested with regard to the testimony of Baba
Tunkara.
A District Court’s refusal to give an instruction will be reversed “only when the
requested instruction was correct, not substantially covered by the instructions given, and
was so consequential that the refusal to give the instruction was prejudicial to the
defendant.” Leahy, 445 F.3d at 651.
We considered the use of accomplice witness instructions in United States v. Isaac
and wrote:
“We recognize that a witness who has been given a reward for cooperation
has also been given an incentive to shade the truth or to lie. It may well be
the better practice to give an instruction if requested. However, such an
instruction is not required, especially when, as here, it has been made clear
to the jury that it is permitted to disbelieve testimony to the extent it finds
that the testimony was driven more by a self-serving desire for leniency
than a sense of duty to tell the truth. We have repeatedly approved the
practice of counseling jurors to view the testimony of accomplices and
immunized witnesses with skepticism and caution, particularly when it is
uncorroborated and material to establishing the defendant's guilt.”
134 F.3d 199, 204 (3d Cir. 1998).

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Isaac establishes that providing an accomplice witness instruction is not
mandatory; rather the decision to give the instruction is left to the discretion of the district
court. Other Courts of Appeals concur that there is “no absolute and mandatory duty to
instruct a jury to consider even the testimony of an uncorroborated accomplice with
caution.” United States v. Rockelman, 49 F.3d 418, 423 (8th Cir. 1995) (internal citation
omitted).
Here, the District Court largely covered the substance of the accomplice witness
instruction in its general charge to the jury. The District Court instructed the jury to
“carefully scrutinize all the testimony given, [and] the circumstances under which each
witness has testified . . . .” (App. 217) The Court also instructed jurors to consider each
witness’s “motive to falsify.” Id. The Court did not, however, instruct the jury to
perform a more thorough examination of Tunkara’s motivations for testifying because
Tunkara was an accomplice. The jurors, nonetheless, were properly informed of their
duty to scrutinize the credibility of all witnesses and evidence.
At trial, Wilson’s attorney had the opportunity to cross-examine Tunkara and
demonstrate to the jury any potential motivation the witness had to falsify his testimony.
Wilson’s attorney did indeed ask Tunkara about the impact that a criminal conviction
would have on his pending application for United States citizenship, and during closing

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1Further, the District Court’s record reveals two additional arguments for refusing
to give the instruction. First, Wilson did not request, nor put into writing, the instruction
at the charging conference as required by Rule 30 of the Federal Rules of Criminal
Procedure. We have held in United States v. Davis, however, that an instruction request
need only be sufficiently clear for the trial judge to fairly consider it. 183 F.3d 231, 252
(3d Cir. 1999). Wilson’s failure to comply with Rule 30, therefore, is not dispositive in
this case. Second, the government argued that since Tunkara was not formally charged in
the federal indictment against Wilson, he is not an accomplice for purpose of a jury
instruction. While the Court acknowledged that Tunkara was not charged in the instant
case, it did not elaborate as to the weight it gave to this issue. (App. 161) Neither of
these arguments is dispositive for the purpose of our appellate review. We, therefore,
focus our review on the necessity of providing the instruction and we need not further
elaborate on these two arguments.
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argument urged the jury to evaluate Tunkara’s credibility and consider whether his
motive to testify was to avoid a firearm possession charge.1
The District Court, therefore, did not abuse its discretion in this case by refusing to
give the accomplice witness instruction.
IV.
Wilson next argues that the District Court committed plain error by sentencing him
to consecutive mandatory minimums under both 18 U.S.C. § 924(c) and 21 U.S.C.
§ 841(b)(1)(B). 18 U.S.C. § 924(c)(1)(A) provides:
“Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any person
who, during and in relation to any crime of violence or drug trafficking
crime (including a crime of violence or drug trafficking crime that provides
for an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;”

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Wilson was sentenced under this provision to five years for possession of a
firearm. Wilson’s conviction for possession with intent to distribute more than five grams
of cocaine base after having previously been convicted of a drug felony, subjects him to a
ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B).
Wilson argues that the five-year mandatory minimum under § 924(c)(1)(A) should
not be applied to him because § 841(b)(1)(B) subjects him to a longer mandatory
minimum sentence, and the prefatory clause of § 924(c)(1)(A) does not allow for the
application of a mandatory minimum to be imposed under that statute in cases where a
greater minimum sentence is imposed “by this subsection or by any other provision of
law.”
While Wilson’s argument is supported by the Second Circuit’s holding in United
States v. Whitley, 529 F.3d 150, 151 (2d Cir. 2008), this Court recently held in United
States v. Abbott, 574 F.3d 203, 206-07 (3d Cir. 2009), that the mandatory sentence set
forth in 18 U.S.C. § 924(c) must run consecutively with any mandatory sentence currently
provided by statute. We must follow this precedent.
In Abbott, we joined the majority of other Courts of Appeals in holding that the
prefatory clause in § 924(c)(1)(A) does not foreclose consecutive mandatory minimum
sentences where the predicate offense includes a mandatory minimum term of
imprisonment that is longer than the sentence required by § 924(c). See United States v.
Easter, 553 F.3d 519 (7th Cir. 2009); United States v. Parker, 549 F.3d 5, 10-12 (1st Cir.
2008); United States v. Jolivette, 257 F.3d 581 (6th Cir. 2001); United States v. Studfin,

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240 F.3d 415 (4th Cir. 2001); United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000).
While we noted in Abbott that reading the prefatory clause in isolation may lead to the
conclusion that § 924(c) mandatory minimums do not apply when a predicate offense
carries a greater mandatory minimum, we found that reading “suspect on its face.” 574
F.3d at 209. The prefatory clause, we explained, applies to “greater minimum sentences
provided by this subsection, not for predicate offenses.” Id. We held in Abbott that “the
minimum sentences specified by § 924(c)(1) apply in addition to the punishment
provided for a predicate offense. Thus, the prefatory clause requires a comparison
between the minimum sentences specified in §§ 924(c)(1)(A)(i)-(iii) and (B)-(C), and, at
a minimum, others associated with using, carrying, or possessing a firearm – not the
predicate offense itself.” Id.
Finally, we noted in Abbott that interpreting the prefatory clause in § 924 in the
manner suggested by Wilson would run counter to the clear intent of Congress to increase
the sentences of those who possess, brandish, or discharge a firearm in the course of
committing a drug felony. Id. Using a hypothetical, we illustrated the bizarre sentencing
results that would undoubtedly occur if the prefatory clause were found to apply to the
predicate offense. See id. at 209 (The hypothetical demonstrated that those charged with
a lesser drug felony and an offense under § 924(c) would actually face longer mandatory
minimum sentences than those convicted of a greater drug felony and the same violation
of § 924(c) because those charged with the greater drug felony would see their mandatory

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minimum under § 924(c) wiped out.) Abbott makes it clear that we will not apply the
prefatory clause to the predicate offense.
Here, Wilson was convicted on a felony drug charge under 21 U.S.C.
§ 841(b)(1)(B) as the predicate offense to his conviction under § 924(c)(1)(A)(i) for
possession of a firearm. Because the prefatory clause in § 924(c)(1)(A) does not apply
when a greater mandatory minimum is found in the predicate offense, Wilson was
properly sentenced. We therefore hold that the District Court did not err in sentencing
Wilson to consecutive mandatory minimum sentences under 18 U.S.C. § 924(c)(1)(A)
and 21 U.S.C. § 841(b)(1)(B).
V.
For the foregoing reasons, we will affirm the judgment of the District Court.

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