1 14-1027-cr(L) United States v. Johnson, et al. 

### 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 AFTER JANUARY 1, 2007, IS PERMITTED 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 DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 6 th day of March, two thousand twenty.
Present: R OSEMARY S. P OOLER , D EBRA A NN L IVINGSTON , R ICHARD J. S ULLIVAN , Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 14-1027-cr (Lead) 14-1120-cr (Con) 14-1716-cr (Con) A STON J OHNSON , AKA Richard Burke, AKA Daniel Arroyo, AKA Robert Brooks, R ICHARD A NDERSON , AKA Jason Key, AKA Christopher Key, A NDREW W RIGHT , AKA Charles Rainey, Defendants-Appellants

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_____________________________________ For Appellee: M ONICA J. R ICHARDS , Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY

* The Clerk of Court is respectfully directed to amend the caption as set forth above.2 For Defendant-Appellant Johnson: V IVIAN S HEVITZ , South Salem, NY For Defendant-Appellant Anderson: J AY S. O VSIOVITCH , Assistant Federal Public Defender, Rochester, NY For Defendant-Appellant Wright: L AWRENCE D. G ERZOG , New York, NY Appeal from a judgment of the United States Di strict Court for the Wes tern District of New York (Siragusa, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendants-Appellants Aston Johnson, Richard Anderson, and Andrew Wright (together, the “Defendants”) appeal from their judgments of conviction entered on April 1, March 27, and May 9, 2014, respectively, in the United States Distri ct Court for the Western District of New York (Siragusa, J. ). Defendants, who were participants in a cross-country marijuana-distribution operation, were convicted under drug-conspiracy, firearm-possession, and murder statutes in connection with their murders of Robert Moncriffe, Mark Wisdom, and Christopher Green (together, the “Victims”) in Greece, New York. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal.
* * * I. Anderson’s Cell-Sit e Location Information At trial, the government offe red historical cell-site lo cation information (“CSLI”) associated with Anderson’s cell phone as evidence of his traveling from hi s home in Arizona to the murder scene in New York (with a stop in Co lumbus, Ohio, to obtain firearms and a rental car). The government obtained Anderson’s CSLI pursuant to a wa rrant issued on April 8, 2010 by a Monroe County judge. In the district court, Anderson move d to suppress the CSLI associated with his cell phone, but the district court deni ed the motion on the basis that Anderson had3 registered the phone with his service provider unde r the stolen identity—including the birth date and social security number—of Florida nursing-home resident named Jason Key. The district court concluded that Anderson therefore lacked a re asonable expectation of privacy in the CSLI associated with the phone. On appeal, Anders on argues that he had an objectively reasonable privacy interest in this CSLI despite having registered his phone in another’s identity. We need not address the issue, however, because even assuming arguendo that Anderson had a reasonable expectation of privacy in the r ecords at issue, investigators pr operly obtained them pursuant to a facially valid judicial warrant supported by pr obable cause, defeating Anderson’s argument that the records should have been suppressed. It is clear that law enforcement agents may properly obtain CSLI records, even assuming that an individual maintains a reasonable expectation of privacy in such records, when police act pursuant to a warrant issued on the basis of probable cause. See Carpenter v. United States , 138 S. Ct. 2206, 2221 (2018). And in issuing such a search warrant, the court is tasked with “simply mak[ing] a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it] . . . there is a fair probability that . . . evidence of a crime” will be reflected in the records at issue. Illinois v. Gates , 462 U.S. 213, 238 (1983). On appeal, we accord “substantial deference to the finding of an i ssuing judicial officer that probable cause exis ts, limiting our inquiry to whether the officer had a substantial basis for his determination.” United States v. Boles , 914 F.3d 95, 102 (2d Cir. 2019) (internal quotation marks and citation omitted). The issuing court here had such a basis. The New York State Police inve stigator’s application in cluded a detailed factual recitation from which the issuing judge could conclude that Anders on was involved in the drug conspiracy surrounding the Victims’ murders, that Anderson had traveled to the Rochester area by4 the time of the murders, and that Anderson traveled together with the other suspects to a hotel immediately after the murders took place. Even if the warrant had been defective, mo reover, Anderson would not be entitled to a suppression order in the circumstances here. Th e exclusionary rule applies only to deter “deliberate, reckless, or grossly negligent conduct.” Herring v. United States , 555 U.S. 135, 144 (2009). “When an officer genuinely believes that he has obtained a va lid warrant . . . and executes that warrant in good faith, there is no conscious violation of th e Fourth Amendment, ‘and thus nothing to deter.’” United States v. Raymonda , 780 F.3d 105, 118 (2d Cir. 2015) (quoting United
States v. Leon , 468 U.S. 897, 920–21 (1984)). As long as the officer’s reliance on the warrant was objectively reasonable, this “good faith” excepti on to the warrant requ irement insulates the evidence from exclusion. See Boles , 914 F.3d at 103. Since there is no evidence to suggest that reliance on the warrant here was anything other than reasonable, the district court did not err in declining to exclude the CSLI evidence. 1
II. The District Court’s Aiding-and-Abetting and Pinkerton Instructions Wright and Johnson next argue that the district court erred in instructing the jury that it could convict the Defendants not only as principal o ffenders under 21 U.S.C. § 848(e)(1)(A), but

1 Indeed, because investigators obtained Anderson ’s CSLI in 2010, prior to the Supreme Court’s decisions in Carpenter and United States v. Jones , 565 U.S. 400 (2012), this conclusion would hold even if investigators had not secured a warrant supported by pr obable cause before obtaining Anderson’s CSLI records. See United States v. Zodhiates , 901 F.3d 137, 143–44 (2d Cir. 2018). In Zodhiates , we held that government agents who obtai ned a criminal defendant’s CSLI records without a warrant before the Supreme Court decided Carpenter and Jones relied in good faith on then-applicable appellate precedent. Id. The government issued th e subpoena at issue in Zodhiates pursuant to the Stored Communications Act (“SCA” ), 18 U.S.C. § 2703. For court orders like the warrant at issue in this case, the SCA required only a showing of “specific and articulable facts showing that there are reasonable gr ounds to believe that the . . . in formation sought[] [is] relevant and material to an ongoing criminal investigation.” Id. § 2703(d). The warrant that issued here clearly met this standard.5 also for aiding and abetting pursuant to 18 U.S.C. § 2 or as coconspirators as described in Pinkerton v. United States , 328 U.S. 640 (1946). We review a dist rict court’s jury instructions de novo and reverse where, in view of the charge as a whole, there was prejudicial error. United States v. Sheehan , 838 F.3d 109, 121 (2d Cir. 2016). There was no such error here.
In United States v. Walker , 142 F.3d 103, 113–14 (2d Cir. 1998), we held that both aidingand-abetting and Pinkerton liability may attach to offenses under § 848(e). In that case, after concluding that the “district court was correct in instructing the jury th at aiding and abetting liability was available,” we upheld the conviction of a defendant w ho “aided in preparations for” a murder and “accompanied [another defendant] to [the murder victim’s] house with the shared intent of carrying out the killing.” Id. We also upheld a Pinkerton instruction in connection with a murder charged under § 848(e)(1)(A). Id. at 114. The district court di d not err in in structing the jury that it could convict the Defe ndants under an aiding-and-abetting or Pinkerton theory of liability. III. The Sufficiency of the Evidence to Convict Wright As he did in his unsuccessful Rule 29 motion be fore the district court, Wright argues that the government’s evidence was insu fficient to support th e jury’s guilty verdict under any of the instructed theories of liability, and that we should therefore vacate his conviction. Because the evidence was sufficient to support Wr ight’s conviction, we agree with the district court that Wright is not entitled to vacatur. We re view a district court’s decision on a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29 de novo

. United States v. Valle , 807 F.3d 508, 515 (2d Cir. 2015). In so doing, we view the evidence in th e light most favorable to the Government with all reasonable inferences resolved in the Government’s favor. United States v. Anderson , 747 F.3d 51, 60 (2d Cir. 2014). We will uphold the jury’s verdic t “if any rational trier of fact could have6 found the essential elements of the crim e had been proved beyond a reasonable doubt.” Valle , 807 F.3d at 515. We therefore “assum[e] th at the jury resolved all questi ons of witness credibility . . . in favor of the prosecution,” United States v. Abu-Jihaad , 630 F.3d 102, 134 (2d Cir. 2010), and “defer to the jury’s determination of the weight of the evidence and the credibility of the witnesses, and to the jury’s choice of the competing infe rences that can be drawn from the evidence,” United
States v. Best , 219 F.3d 192, 200 (2d Cir. 2000) (internal quotation marks omitted). The verdict “may be based on circumstantial evidence,” and “the Government is not re quired to preclude every reasonable hypothesis which is c onsistent with innocence.” United States v. Ogando , 547 F.3d 102, 107 (2d Cir. 2008) (interna l quotation marks omitted). Here, the evidence was plainly sufficient to fi nd Wright guilty of the charged offenses. In addition to the effectively unchall enged evidence that Wright participated in a drug-distribution conspiracy with Johnson and Anderson, the governme nt offered compelling evidence that Wright participated in the planning and execution of the murders. The governme nt presented witness testimony and CSLI record s showing that Wright booked a flight to Columbus, Ohio, rented a car, obtained two firearms, and drove to Rochester, New York, where he stayed in a Holiday Inn Express along with the ot her suspects. Ballistics evidence showed that one of the firearms Wright obtained in Columbus matched shell casings found at the murder scene. Video evidence also showed that on the day of the mu rders, Wright and Johnson left th e Holiday Inn Express together and traveled to a Comfort Inn, where Johnson rent ed a room. Further video evidence showed that Wright and Anderson thereafter left the Holiday Inn Express together , traveling in the direction of the murder scene, and that Anderson, Wright, and Johnson all returned to the Comfort Inn approximately fifteen minutes af ter the 911 call alerting police to the murders. Wright and Anderson left about ten minutes later, and dr ove back to Columbus. The government also7 presented evidence that approximately one week af ter the murders, Wright discussed a firearm he obtained in Columbus with the man who supplied it, indicating that the transaction had served its purpose and that Wright had disposed of the firearm. On this and ot her evidence in the trial record, the jury had more than a suffi cient basis to convict Wright. IV. Anderson’s Sixt h Amendment Claim Anderson argues that he is ent itled to a new trial because c ourt security officers twice removed his friend Kevin Felton from the courtr oom during the trial proceedings, allegedly violating Anderson’s Sixth Amendm ent right to a public trial. Under the circumstances here, we agree with the district court that An derson is not entitled to a new trial. The right to a public tr ial is “subject to the trial judg e’s power to keep order in the
courtroom.” Cosentino v. Kelly , 102 F.3d 71, 73 (2d Cir. 1996) (quoting United States v. Fay , 350 F.2d 967, 971 (2d Cir. 1965)). And even when imp roper exclusion does occur, not “every temporary instance of unjustifie d exclusion of the public—no matter how brief or trivial, and no matter how inconsequential the proceedings that occurred duri ng an unjustified closure—would require that a conviction be overturned.” Gibbons v. Savage , 555 F.3d 112, 120 (2d Cir. 2009). Under this “triviality” exception, an unjustified exclusion from the courtroom will not require a new trial if the closure does not “subvert[] the values the drafte rs of the Sixth Amendment sought to protect:” (1) ensuring a fair trial, (2) reminding the prosecutor and judge of their responsibility to the accused, (3) encouraging witnesses to come forward, and (4 ) discouraging perjury. Smith v. Hollins , 448 F.3d 533, 540 (2d Cir. 2006). Felton’s removal did not violate Anderson’s right to a public trial or infringe on the values listed above. At no point dur ing the alleged exclusion events did the district court close or partially close the courtroom either to the public or to the press. See Cosentino , 102 F.3d at 73 (affirming8 an order that “allowed access to most members of the public (and press) . . . and only barred those individuals who . . . posed a threat to the orde rly conduct of the second trial”). Instead, court security officers removed a single individual fo r suspicious behavior, including repeatedly attempting to communicate with a defendant and potentially attempting to intimidate the jury. Even if court security officers should not have removed Felton from the cour troom, his individual removal did not threaten the values the Sixth Am endment was fashioned to protect. The district court was therefore correct to deny Anderson’s motion for a new trial. Cf. Peterson v. Williams , 85 F.3d 39, 43–44 (2d Cir. 1996) (findi ng no basis for a new trial ev en where an administrative error resulted in the complete closure of th e courtroom during the defendant’s testimony). V. Johnson’s Ineffective Assistance of Counsel Claim On appeal, Johnson argues that he was afforded constitutionally inef fective assistance of counsel because his attorney failed to make certain procedural motions to mitigate the effect of Wright’s trial strategy of blaming his codefendants, failed to join in Anderson’s motion to suppress CSLI evidence, and failed to join in motions co ncerning the alleged Sixt h Amendment violations described above. On the record before us, we de cline to resolve Johnson’s claim of ineffective assistance of counsel, leaving hi m with the opportunity to raise it again—along with any other collateral attacks on his conviction—in a motion pursuant to 28 U.S.C. § 2255. See United States
v. Doe , 365 F.3d 150, 152 (2d Cir. 2004). Our Circuit has a “baseline aversion to resolvi ng ineffectiveness claims on direct review,” United States v. Morris , 350 F.3d 32, 39 (2d Cir. 2003) (int ernal quotation marks omitted), a position consistent with the Supreme Court’s obs ervation that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance,” Massaro v. United States , 538 U.S. 500, 504 (2003). “Among the reasons for this preference is that the9 allegedly ineffective attorney s hould generally be given the opport unity to explain the conduct at issue.” United States v. Khedr , 343 F.3d 96, 100 (2d Cir. 2003) (citation omitte d). In light of the incomplete record before us, and because “the distri ct court [is] the forum be st suited to developing the facts necessary to determining the adequacy of representation during an en tire trial,” we decline to address Johnson’s ineffective-as sistance claims at this time. Massaro , 538 U.S. at 505. We have considered Defendants’ remaining ar guments and find any error to be harmless or the claims to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk