17-536-cr United States v. Wade UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held 1 at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 2 York, on the 5 th day of March, tw o thousand nineteen. 3 4 PRESENT: ROBERT A. KATZMANN 5 Chief Judge , 6 ROBERT D. SACK, 7 REENA RAGGI, 8 Circuit Judges

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---------------------------- ---------------------------- -------------- 10 UNITED STATES OF AMERICA, 11 Appellee , 12 v. No. 17-536-cr 13 14 WHETSEL WADE, 15 Defendant-Appellant , 16 17 LARONE GRAHAM, AKA ABGOD GRAHAM, JAMEL 18 THOMPSON, AKA MEL, B OY BOY, QURAN HOLLIS, 19 KAREEM DAVIS, AKA TONY ELLIS, AKA K.I., 20 KORY TURNER, WYNETTE BELL, AKA WYNETTE 21 HAYNES, NAQUON ARMSTEAD, AKA N.A., SHARIF 22 OWENS, SEAN HIGHTOWER, AKA HOP, MISHAEL 23 BENYEHUDAH, DARRYL S. SINGLETON, AKA D, 24 VENCENT HARRISTON, MICHAEL HARRISTON, 25 EARL HARRISTON, CARL POLLARD, AKA BLUE, 26 CHRISTHIAN GALARZA, JAMES GANT, AKA 27 ROOSTER, DARNELL FOSKEY, AKA D, FRANK 28 MOREA, AKA FAT FRANK 29 Defendants

. 302 ---------------------------- ---------------------------- -------------- 1 2 FOR DEFENDANT-APPELLANT: CHRISTOPHER VOLPE (Kenneth Caruso, on 3 the brief ) White & Case LLP, New York, 4 New York. 5 6 FOR APPELLEE: JONATHAN E. ALGOR, Assistant United 7 States Attorney (David C. James, Assistant 8 United States Attorney, on the brief ), for Richard 9 P. Donoghue, United Stat es Attorney for the 10 Eastern District of New York, Brooklyn, New 11 York. 12 13 On appeal from the United States District Court for the Eastern District of New 14 York (Seybert, J. ). 15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 16 AND DECREED that the appeal is dismissed in pa rt, and the judgment of the district 17 court is affirmed. 18 Defendant Whetsel Wade was convicted in 20 09 in the United States District Court 19 for the Eastern District of New York (Joanna Seybert, J. ) of conspiring to commit Hobbs 20 Act robbery and of brandishing a fi rearm during a crime of violence, see 18 U.S.C. 21 §§ 924(c), 1951(a), for which crimes he was sent enced to a total prison term of 75 months, 22 to be followed by 60 months’ supervised rele ase. Wade now appeal s from a judgment of 23 that same court, entered on February 15, 20 17, which revoked his supervised release and 24 sentenced him to an additional 36 months’ incarceration based on Wade’s commission of 25 another crime while on supervision, specifi cally, promoting prostitu tion in violation of 26 New York law. Wade argues that the districtcourt’s revocation decision, made after an 27 evidentiary hearing, is infected by four errors: (1) reliance on inculpatory hearsay 283 statements from an anonymou s minor, who reported that sh e engaged in prostitution at 1 Wade’s direction, which st atements were admitted with out the interest-of-justice 2 determination required by Fed. R. Crim. P. 32.1(b)(2)(C); (2) reliance on uncorroborated 3 allegations in Wade’s state court indictment for promoting prostitution; (3) the denial of 4 discovery pertaining to the anonymous he arsay declarant; and (4) the denial of a 5 continuance pending the conclusion of Wade’s state prosecution. 6 Subsequent to briefing and argument, the court learned that a judgment of 7 conviction may have been ente red against Wade for the prom otion of prostitution that was 8 the subject of his violation hearing. Acco rdingly, on December 14, 2018, the court 9 entered an order directing the parties “to (1) advise whether a state judgment of conviction 10 has now been entered against Wade for one or more of the prostitution crimes at issue in 11 his revocation hearing and, if so , (2) [to] provide the Panel with a copy of that judgment.” 12 Order, ECF No. 95 (Dec. 14, 2018). The court further ordered that, if Wade had been so 13 convicted, the parties brief the issue of whether such conviction “render[ed] Wade’s 14 challenges to revocation eith er harmless or moot.” Id. The parties have now answered 15 these questions, confirming Wade ’s state conviction and acknow ledging that conviction to 16 make it unnecessary for this court to address th e merits of Wade’s challenges on this appeal, 17 with Wade relying on mootness and the governme nt relying on harmless error to support 18 that conclusion. 19 Specifically, on January 11, 2019, Wade’s counsel provided this court with a New 20 York State certificate of disposition indicating th at on June 21, 2018, Wade was convicted, 21 based on his own guilty plea, of second-degree promotion of prostitution in violation of 224 N.Y. Penal Law § 230.30(2), for which crime he was sentenced to a prison term of five-to1 ten years. See Declaration of Christopher D. Vo lpe, ECF No. 96 (Jan. 11, 2019). 1 2 Granted a 30-day extension to a ddress the effect of that conv iction on Wade’s appeal in 3 this case, counsel advised this court by letter dated February 14, 2019 , that after consulting 4 with Wade and research ing applicable law, counsel “belie ve that there ar e no non-frivolous 5 arguments that Mr. Wade’s a ppeal has not been rendered moot by hi s state court guilty 6 plea.” White & Case Letter at 1, ECF No . 101 (Feb. 14, 2019). Rephrased in the 7 affirmative, defense counsel effectively concede that Wade ’s state prostitution conviction 8 renders his arguments on this appeal moot. 9 In its simultaneously filed letter of Februa ry 14, the government submitted that even 10 if Wade’s state conviction do es not render his appeal moot , it compels a conclusion that 11 the errors of which he compla ins on this appeal are harmless beyond a reasonable doubt. 12
See Gov’t Letter at 5-9, ECF No . 102 (Feb. 14, 2019). 13 In sum, no party any longer as ks this court to address the merits of Wade’s appeal. 14 The only question remaining is whether we dismis s the appeal as moot, or affirm the district 15 court’s judgment because, if any errors were committed in finding Wa de to have violated 16 supervision by committing the state crime of promoting prostitutio n, Wade’s state 17 conviction for that crime rende rs those errors harmless. We conclude that precedent 18

1 It appears undisputed that this conviction pertains to th e same prostitution operation at issue on this appeal.5 warrants dismissal of the appeal in part, in sofar as it rests on the moot argument, and 1 affirmance of judgment. 2 An appeal is rendered moot “if an event occurs while a case is pending on appeal 3 that makes it impossible for the court to grant any effectual re lief whatever to a prevailing 4 party.” Church of Scientology v. United States , 506 U.S. 9, 12 (1992) (internal quotation 5 marks omitted). To the exte nt Wade’s state prosecution for promoting prostitution has 6 now concluded, no further acti on by this court is required to grant him the relief sought in 7 his fourth claim, i.e. , an extension of federal proceedi ngs pending the outcome of the state 8 case. That part of this appeal is moot and, therefore, dismissed. 9 As to Wade’s other complaints, however—th e district court’s failure to make the 10 interest-of-justice determination required by Fed. Rule Crim P. 32.1(b)(2)(C) before 11 relying on the hearsay statemen ts of an anonymous non-tes tifying minor, its failure to 12 afford Wade discovery about that hearsay declarant, and its reliance on uncorroborated 13 allegations in his state indictment—were we to identify merit in these claims, we could 14 certainly grant Wade the relief of vacatur and remand for a new violati on hearing. But as 15 the parties recognize, on such remand, the district court would not have to make Rule 16 32.1(b)(2)(C) findings, or correct any of the other alleged errors because the government 17 would not need to rely on a hearsay declarant or indictment allegations to demonstrate 18 Wade’s promotion of pr ostitution. It would si mply offer the state ju dgment of conviction 19 to prove his commission of that crime. Thus , Wade’s state conviction does not make it 20 impossible for this court to gr ant relief on this appeal. But it does compel us to conclude 21 that, even if any errors informed the district court’s initial determination that Wade violated 226 his supervision by promoting prostitution, those errors are harmless beyond a reasonable 1 doubt in light of his conviction. See generally United States v. Aspinall , 389 F.3d 332, 2 346 (2d Cir. 2004) (holding failure to comply with interest-of-justic e requirement of Rule 3 32.1(b)(1)(C) subject to harmless-error review), abrogated on other gr ounds by United 4 States v. Booker , 543 U.S. 220 (2005); United States v. Morrison , 153 F.3d 34, 55 (2d 5 Cir. 1998) (holding that jury ’s guilty verdict rendered harm less any evidentiary error in 6 procurement of indictment). A criminal conviction, after all, represents a guilt 7 determination beyond a reasonabl e doubt, a higher standard of proof than the government 8 must satisfy to establish a viol ation of supervised release. See United States v. Carthen , 9 681 F.3d 94, 99–100 (2d Cir. 2012); 18 U.S.C. § 3583(e)(3) (requiring violation to be 10 demonstrated by preponde rance of evidence); see also Menna v. New York , 423 U.S. 61, 11 62 n.2 (1975) (observing that coun seled guilty plea is “admission of factual guilt so reliable 12 that, where voluntary and intellig ent, it quite validly removes the issue of factual guilt from 13 the case”). 14 Accordingly, in light of Wade’s state conviction for promoting prostitution, we 15 hereby DISMISS his appeal in part as moot and otherwise AFFIRM the district court’s 16 judgment. 17
FOR THE COURT: 18 CATHERINE O’HAGAN WOLF E, Clerk of Court 19 20