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United States v. Cannady

United States Court of Appeals, Fourth Circuit

May 8, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GERMAINE CANNADY, Defendant-Appellant.

          Argued: January 29, 2019

          Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:14-cr-00389-RDB-2)

          Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge Wilkinson and Judge Diaz joined.

          ARGUED: Richard S. Stolker, UPTOWN LAW, LLC, Rockville, Maryland, for Appellant. Christopher Michael Rigali, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          ON BRIEF: Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

          Floyd, Circuit Judge.

         A jury convicted appellant Germaine Cannady of conspiracy to distribute and possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1), and attempted possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 841(b)(1)(A). Cannady appeals his conviction on several grounds. First, he claims there was a fatal variance between the single conspiracy charged in the indictment and the evidence offered against him at trial. Second, he claims the district court erred in refusing to give a jury instruction on multiple conspiracies. Third, he claims the district court erred in refusing to sever his trial from his codefendants'. Finally, he claims the district court erred in denying his motion for acquittal. For the reasons set forth below, we reject Cannady's arguments and affirm his conviction.

         I.

         In August 2014, Federal Bureau of Investigation (FBI) agents arrested Michael Barrett after a search of his recreational vehicle recovered 25 kilograms of cocaine and six kilograms of heroin in hidden compartments. Barrett told agents he purchased the drugs from a supplier in California and was preparing to sell them in Baltimore to a number of lower-level distributors, including Cannady. This account was partially confirmed when, while being interviewed by the FBI, Barrett received a call from Cannady inquiring about the incoming shipment.

         In the days following his arrest, Barrett cooperated with the FBI by participating in a reverse sting operation. In a series of recorded phone calls, Barrett spoke with Cannady and other lower-level distributors and arranged to meet them to deliver their share of the incoming shipment. On one of these calls, Cannady told Barrett to make sure the shipment contained "both," which Barrett later testified referred to both cocaine and heroin. J.A. 238. Cannady also advised Barrett how much to charge for the drugs, explaining that he was not going to let customers "get over on" Barrett because Cannady had "been out in the field" and knew the going prices for various drugs. J.A. 239. Barrett directed Cannady and several other associates to meet him on August 11. Cannady asked Barrett whether he should bring three other lower-level distributors- Dominic Parker, Cornell Brown, and Tavon Hopkins-with him to the prearranged location. Barrett replied that he preferred for the group to come in pairs of two and directed Cannady to pick up his share of the shipment with Parker. When the two arrived together, they were arrested by waiting FBI agents. A subsequent search of their car turned up four cell phones and a police scanner.

         A grand jury indicted Cannady and eight codefendants for conspiracy to distribute and possession with intent to distribute cocaine and heroin. Each defendant was also individually charged with attempting to possess with intent to distribute various quantities of controlled substances based on their recorded phone calls with Barrett. Five of the defendants pleaded guilty. The remaining four-Parker, Cannady, Brown, and Ronald Sampson-proceeded to trial.

         Barrett was the government's primary witness at trial. He testified that in the fall of 2013, he began receiving large quantities of cocaine and heroin from a supplier in California. Between November 2013 and June 2014, Barrett received five shipments of drugs, which he sold in Baltimore and Washington, D.C. through a network of confederates. According to Barrett, Cannady joined the operation around February 2014, when Barrett received his third shipment (consisting of 20 to 25 kilograms of cocaine). Barrett repeatedly supplied Cannady and others with kilogram quantities of cocaine and heroin until Barrett's arrest in August 2014.

         Barrett described at length the coordinated nature of the distribution scheme. He arranged for his team to conduct business in pairs to help avoid detection; Hopkins, who pleaded guilty before trial, typically partnered with Brown, while Cannady worked with Parker. When Barrett learned it would be difficult to obtain cocaine from his California supplier, he conferred with the group before deciding to import heroin instead. When Barrett asked the group how much each of them could sell, Cannady offered to sell three kilograms of heroin himself, but cautioned Barrett against importing more than five kilograms total for the group. Barrett also testified that he referred customers who requested quantities of drugs smaller than a kilogram to Cannady or other lower-level distributors. See J.A. 193 ("So if it's somebody that wants something under a kilo, I'll link them up ...


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