Argued: October 31, 2018
from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Malcolm J.
Howard, Senior District Judge. (2:15-cr-00009-H-9)
K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Appellant.
Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Appellant.
J. Higdon, Jr., United States Attorney, Jennifer P.
May-Parker, Acting First Assistant United States Attorney,
Barbara D. Kocher, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
NIEMEYER, AGEE and DIAZ, Circuit Judges.
being caught in a sting operation aimed at exposing corrupt
law enforcement officers, Antonio Tillmon was convicted by a
jury on multiple counts: conspiracy to commit drug
trafficking, conspiracy to use firearms while drug
trafficking, attempted possession of heroin with intent to
distribute, using or carrying a firearm while drug
trafficking, and three counts of federal programs bribery. On
appeal, Tillmon challenges the district court's denial of
his motion for a judgment of acquittal as to these offenses
and its admission of a video-recorded conversation between
Tillmon and an undercover agent. For the reasons discussed
below, we affirm the conspiracy, attempted possession and
firearms convictions, but vacate the federal programs bribery
prosecution arose from a multi-year FBI investigation into
reports of law enforcement corruption in the counties of
Northampton and Halifax, North Carolina. This
investigation, "Operation Rockfish," began in 2013
after the FBI received information that Lann Clanton, a
police officer with the Weldon, North Carolina, Police
Department, was involved in criminal activity. Operation
Rockfish consisted of undercover agents posing as members of
a transnational drug trafficking organization
("DTO") that transported kilograms of heroin and
cocaine to New York City. Part of the DTO's strategy was
"specifically tr[ying] to recruit law enforcement
officers for their ability to badge their way out of
legitimate traffic stops by other law enforcement
officers." J.A. 406.
established a "general template" for the DTO,
setting up a warehouse to prepare "cocaine" and
"heroin" for shipment by storing those drugs in
hidden compartments of vehicles. J.A. 412. No real drugs were
used, but a lookalike substance was packaged to "look
like kilograms of illegal drugs that had been seized in other
investigations." J.A. 411. Ten one-kilogram packages
were color-coded to identify the type of drug each package
purportedly contained. Once the packages were loaded into a
vehicle for transport ("the load vehicle"), team
members rode in that vehicle, a scout vehicle that drove
ahead of it, and a rear guard vehicle that drove behind it.
the ersatz DTO was operational, the FBI used a confidential
informant to let Clanton know about its existence. Clanton
then contacted the DTO, where his first assignment was to
recruit law enforcement officers to implement the DTO's
cover strategy. Clanton's first recruit was Ikeisha
Jacobs, another member of the Weldon Police Department.
Clanton and Jacobs then enlisted other current and former law
enforcement and correctional officers to join their teams.
recruited Tillmon, a former coworker, for her team. At the
time he was recruited to the DTO, Tillmon was a police
officer with the Windsor, North Carolina, Police Department.
On August 19, 2014, Jacobs invited Tillmon to join her and
other team members for a preparatory meeting. The gathering
included Jacobs, two undercover FBI agents (John and Lisa),
and four new recruits (Adrienne Moody, Alaina Sue-Kam-Lang,
Crystal Pierce, and Tillmon). During the meeting, the
undercover agents and Jacobs described the plan for the next
day's transport and explained the DTO's reason for
using law enforcement officers. They gave the team members a
cover story to use if police stopped them during the
transport: they were transporting a vehicle that had been
sold out of state. During the meeting, one undercover agent
asked whether the recruits carried guns. Tillmon indicated
that he would carry his gun. Toward the end of the meeting,
the agents told the recruits that they did not have to
participate in the operation if they wanted out.
next morning ("the August 2014 transport"), Tillmon
picked up Jacobs and Sue-Kam-Lang before driving to a
prearranged rendezvous point where they met Lisa and other
team members. They all then drove to a warehouse in Rocky
Mount, North Carolina. Upon arrival, Tillmon helped move a
large white cooler from one area of the warehouse to the back
of the load vehicle, a white GMC Acadia. One of the
undercover agents, Paul, pulled out ten packages from
underneath the ice and drinks in the cooler, counted them,
and put them on the ground. Paul handed the packages to John,
another agent, who was underneath the Acadia putting the
packages into a hidden compartment. Tillmon never touched the
packages, but he watched as they were loaded into the
compartment in plain view of him and the other team
members. While standing behind the vehicle, Lisa
explained to Tillmon that they were "starting to move
H." J.A. 591-92. Lisa testified at trial that by
"H" she meant "heroin," though she did
not clarify her meaning to the team members at the time.
the packages were stored in the Acadia, it and two other
vehicles caravanned to National Harbor in Maryland. Jacobs
drove the load vehicle, two team members drove the scout
vehicle, and Tillmon and Sue-Kam-Lang followed as the rear
guard. When they arrived at National Harbor, the team members
met "Tee," another undercover agent who was posing
as the supervisor of that portion of the route. Tee and the
team boarded an enclosed car of a Ferris wheel, where Tee
paid each member of the group. Tillmon received $2, 000 and
then returned to North Carolina.
October 2014 ("the October 2014 transport"), Jacobs
and Tillmon rode together to the Rocky Mount warehouse. While
waiting for drugs to be loaded into the hidden compartment of
the load vehicle, Tillmon was shown a fake bill of sale that
would back their cover story. This time, Tillmon drove the
load vehicle to the parking lot of an outlet mall in
Maryland. He then got into a large van, where Tee paid him
and the other team members. Tee paid Tillmon $2, 000.
March 2015 ("the March 2015 transport"), Jacobs
asked Tillmon to join her a third time. When Tillmon arrived
at the Rocky Mount warehouse, the agents had a pickup truck
staged with packages of drugs laid out in plain view on the
tailgate. The team members, including Tillmon, walked by the
back of the truck as they entered the warehouse's office.
Inside, Lisa asked everyone if they had guns; after
Sue-Kam-Lang indicated that she did not have a gun, Tillmon
gave her one of his extra guns.
team exited the office and went back into the main part of
the warehouse. As the drugs were being loaded into the hidden
compartment of the vehicle, Lisa said, "you guys got to
be carrying from now on . . . a million dollars of heroin,
you can't f[***] around with that." Supp. J.A. 1625
at 12:47:16-47:24. She was within three feet of Tillmon as
the drugs were loaded, the team departed, with Tillmon and
Jacobs driving the rear guard vehicle. After the team left
the load vehicle at a carport in Maryland, they met Tee at
the same outlet mall parking lot as in October. Each member
entered Tee's vehicle separately, where they were paid.
As Tillmon was paid $2, 500, Tee asked him if he was carrying
a gun, and Tillmon confirmed he was. Then Tee indicated he
was interested in getting a small firearm. Tillmon responded,
"What [do] you need?" and Tee said he wanted
"a thirty-eight (.38), something small, a revolver that
don't need no shells, know what I mean?" J.A. 1402.
Tillmon recommended a few firearms that would meet Tee's
need to "just walk right up on 'em and keep
rolling" and "boom-boom and then throw that s[***]
away and [not worry] about it no more." J.A. 1403-04.
Tee asked Tillmon to let him know if he heard of anything
available, and Tillmon replied, "Okay . . . . We'll
talk." J.A. 1404. Tillmon exited Tee's vehicle and
returned to North Carolina.
April 2015, Jacobs asked Tillmon to join her again. When they
arrived at the Rocky Mount warehouse, the undercover agents
arrested them. At the time of his arrest, Tillmon had in his
possession his badge, his Windsor police identification, four
semiautomatic pistols, a .223 caliber rifle, and ammunition
for each of the guns.
jury indicted Tillmon and fourteen others, including Clanton
and Jacobs, in a fifty-four count indictment. Tillmon was
charged in ten of the counts. All other defendants negotiated
guilty pleas, but Tillmon pleaded not guilty and invoked his
right to a jury trial on all charges: (1) one count of
conspiracy to distribute and possess with intent to
distribute controlled substances, namely heroin and cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count
1); (2) one count of conspiracy to use firearms during and in
relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(o) (Count 2); (3) three counts of attempted
possession with intent to distribute heroin, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 846, and
18 U.S.C. § 2, corresponding to the three transports
(August 2014, Count 28; October 2014, Count 33; and March
2015, Count 48); (4) two counts of use and carry of a firearm
during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. §§ 2, 924(c)(1)(A),
corresponding to two of the transports (October 2014, Count
34; and March 2015, Count 49); and (5) three counts of
federal programs bribery, in violation of 18 U.S.C. §
666(a)(1)(B), corresponding to each transport (August 2014,
Count 32; October 2014, Count 36; and March 2015, Count 54).
trial, the Government argued that Tillmon conspired with
other law enforcement officers to use their badges and
firearms to assist in transporting a substance they believed
to be heroin out of North Carolina. Because the entire DTO
was a sting operation that had been captured in video and
audio recordings, the Government introduced into evidence the
recordings of the preparatory meeting in August 2014 and the
interactions at the Rocky Mount warehouse on each transport
close of the Government's evidence, Tillmon moved for a
judgment of acquittal on all counts under Federal Rule of
Criminal Procedure 29. The district court denied the motion
on all but one count, granting the motion as to the charge of
attempted possession with intent to distribute heroin based
on the August 2014 transport. The district court reasoned
that there was insufficient evidence to support the charge
because it was based solely on Lisa's reference to
"H," and while she was "probably" talking
about heroin, there was no evidence that anyone specifically
identified the substance as heroin. J.A. 1057.
defense centered on his contention that he did not have the
requisite intent or knowledge to commit the crimes. For
example, Tillmon testified that he did not recall any
discussion of his police badge or identification card at the
preparatory meeting and that he did not realize he had a job
during the transports or that he would be paid for that job.
He further testified that he did not hear or misheard
Lisa's statements at the Rocky Mount warehouse about
transporting heroin. Tillmon stated that he did not have any
understanding of what was happening, only that others were
loading something into a vehicle to be delivered to Maryland.
Tillmon's cross-examination, the Government
introduced-over Tillmon's objection-a video recording of
the conversation between Tillmon and Tee from the March 2015
transport in which Tee requested Tillmon's assistance in
procuring a small-caliber firearm. Tillmon argued that the
recording was unfairly prejudicial because it implicated him
in uncharged violent crimes. The district court overruled the
objection, concluding that any prejudicial effect was
overridden by the fact that the video showed there was
"a clear relationship and friendship" between Tee
and Tillmon. J.A. 1001.
jury found Tillmon guilty on the remaining nine counts. After
the verdict, Tillmon renewed his motion for a judgment of
acquittal, or, in the alternative, for a new trial. The
district court denied the motions as to all but two counts,
granting the motion for a judgment of acquittal only with
respect to the attempted possession with intent to distribute
heroin and corresponding firearm conviction arising from the
October 2014 transport (Counts 33 and 34). The district
court observed that sufficient evidence supported the
jury's decision to convict on the conspiracy charges
(Counts 1 and 2), attempted possession charge (Count 48), and
firearm charge (Count 49), largely based on Lisa's
reference to the "million dollars['] worth of
heroin" that Tillmon received payment for accompanying
to Maryland during the March 2015 transport. J.A. 1527.
Further, and in relevant part, the district court concluded
sufficient evidence supported the three federal ...