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United States v. Tillmon

United States Court of Appeals, Fourth Circuit

February 26, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
ANTONIO TILLMON, Defendant-Appellant.

          Argued: October 31, 2018

          Appeal 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)


          Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant.

          Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant.

          Robert 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 Appellee.

          Before NIEMEYER, AGEE and DIAZ, Circuit Judges.


         After 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 convictions.


         Tillmon's prosecution arose from a multi-year FBI investigation into reports of law enforcement corruption in the counties of Northampton and Halifax, North Carolina.[1] 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.

         The FBI 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.

         Once 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.

         Jacobs 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.

         The 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.[2] 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.

         After 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.

         In 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.

         In 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.

         The 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 she spoke.

         After 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.

         In 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.[3]

         A grand 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).

         At 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 day.

         At the 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.

         Tillmon's 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.

         During 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.

         The 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).[4] 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 ...

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