18-336 United States v. Herring

UNITED STATES COURT OF APPEALS
FOR THE SECOND 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 PROCEDURE 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 APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

27 th day of February, two thousand nineteen.

Present: ROSEMARY S. POOLER, RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 18-336

JEFFREY HERRING,

Defendant-Appellant

. 1

_____________________________________________________

Appearing for Appellant: Troy A. Smith, White Plains, N.Y.

Appearing for Appellee: Maurene Comey, A ssistant United States Attorney (Michael Gerber, Lauren Schorr, Won S. Shin, Assistant United States Attorneys, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern Distri ct of New York, New York, N.Y.

Appeal from the United States Di strict Court for the Southern District of New York (Karas, J. ).

1 The Clerk of the Court is direct ed to amend the caption as above.2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Appellant Jeffrey Herring appeals from th e January 25, 2018, judgment of the United
States District Court for the Southe rn District of New York (Karas, J. ), convicting him, after a jury trial, of conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951, Hobbs Act robbery, id. §§ 2, 1951, causing the death of a person while posse ssing a firearm during and in relation to the commission of a crime of violence, id. §§ 2, 924(j), participating in a racketeering conspiracy, id. § 1962(d), and murder in aid of racketeering, id. §§ 2, 1959(a)(1). The district court sentenced Herring principally to a mandatory term of life imprisonment followed by a mandatory consecutive five-year term of imprisonment. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Herring’s primary argument is that the district court erred by declining to admit certain statements that a co-conspirator , Deanna Duncan, made during va rious proffer sessions with the government. The principal statement on which Herring focuses on appeal is, in sum and substance, that Duncan saw a co-conspirator, Jesse Hummel, pointing a gun at someone who was lying on a couch in the house in which the robb ery and murder took plac e. Herring argues that
the district court should have admitted the stat ement as a statement against Duncan’s penal interest pursuant to Ru le 804(b)(3) of the Federal Rules of Evidence.

“We review a district cour t’s decision to exclude a st atement under Rule 804(b)(3) for
abuse of discretion.” United States v. Lumpkin , 192 F.3d 280, 287 (2d Cir. 1999). “Federal Rule of Evidence 804(b)(3) permits the admission of a statement agains t an unavailabl e declarant’s penal interest” when the statement, at the time of declaration, “had so great a tendency to expose the declarant to criminal liability that a reason able person in his position would have made the statement only if he believed it to be true, and corroborating evidence clearly indicates the
trustworthiness of the statement.” United States v. Dupree , 870 F.3d 62, 80 (2d Cir. 2017).

Thus, the Rule first requires courts to c onduct “an adequately part icularized analysis,” United States v. Saget , 377 F.3d 223, 231 (2d Cir. 2004), asking “whether a reasonable person in the declarant’s shoes would perc eive the statement as detrimen tal to his or her own penal interest, a question that can be answered only in light of all the su rrounding circumstances,” United States v. Gupta , 747 F.3d 111, 127 (2d Cir. 2014) (citations omitted) (internal quotationmarks omitted). This particularized analysis requires courts to parse out and exclude “non-selfinculpatory statements, even if they are made w ithin a broader narrative that is generally selfinculpatory.” Williamson v. United States , 512 U.S. 594, 600-01 (1994). “[ T]he court must then
determine whether there are co rroborating circumstances indi cating both the declarant’s
trustworthiness and the tr uth of the statement.” Gupta , 747 F.3d at 127 (internal quotation marks omitted). “[T]he inference of trustworthiness from the proffered ‘corroborating circumstances’ must be strong, not merely allowable.” United States v. Salvador , 820 F.2d 558, 561 (2d Cir. 1987). “The burden is on the proponent of 804( b)(3) evidence to demonstrate sufficient
corroboration.” United States v. Paulino , 445 F.3d 211, 220 (2d Cir. 2006).3 Here, we need not decide whether Duncan’s statements were against her penal interest
because we find no error in the district court’s conclusion that Herring failed to meet his burden to show that the statements were sufficiently corroborated by circumstances indicating that they were true. On that score, Herring points us to no evidence in the record corroborating Duncan’s statement that Hummel possessed a firearm while in the house in which the robbery and murder took place, much less that Hummel pointed a gun at someone during the c ourse of the robbery.

Nor do we find error in the district court’ s determination that Herring did not meet his
burden to show that Duncan’s trustworthiness was sufficiently corroborated. Duncan initially proffered that, during the robbery, she remained at or near the doorway of the house. However, allegedly after having been hypnotized by a social worker while in jail, she later admitted to having entered the house and rummaged through one of the bedrooms. The court did not exceed the bounds of its discretion by rely ing on such inconsistencies in Duncan’s statements to the government and Duncan’s dubious explanation for th e inconsistencies to conclude that Duncan was not trustworthy. See United States v. Doyle , 130 F.3d 523, 544 (2d Cir. 1997) (finding no
error in district court’s exclus ions of statements by a declaran t who had offered “inconsistent stories,” suggesting a “risk of fabrication”).

Herring argues that the distri ct court erred by giving insuffici ent weight to the fact that the government had introduced the statements at issue during grand jury proceedings and that a government investigator testifie d during those proceedings that Duncan’s statements were corroborated. However, Herring overl ooks the fact that it was only after the grand jury testimony that Duncan called her credibility into que stion by changing her account of the robbery. Moreover, the district court was not required to accept the government investigator’s assertion that Duncan’s statements were corroborated; wh ether the statements were admissible under Rule 804(b)(3) was a determination for the court to make, not a government investigator.

More significantly, even if we were to identify error in th e district court’s decision to exclude Duncan’s statements, we are c onvinced that any error was harmless. See Fed. R. Crim. P. 52(a). We will “uphold a verdict in the face of an evidentiary error” when it is “highly probable that the error did not affect the verdict.” United States v. Dukagjini , 326 F.3d 45, 61 (2d Cir. 2003) (internal quotation ma rks omitted). “In conducting this inquiry, we consider factors including: (1) the importance of the unrebutted assertions to th e government’s case; (2) whether the excluded material was cumulative; (3) the pr esence or absence of evidence corroborating or contradicting the government’s case on the factual questions at issue; (4) the extent to which the defendant was otherwise permitted to advance the defense; and (5) the overall strength of the prosecution’s case.” United States v. Oluwanisola , 605 F.3d 124, 134 (2d Cir. 2010).

Here, the government presented test imony from three cooperating witness who participated in the robbery. A ll three identified Herring as the person who shot the robbery and murder victim. Moreover, even if the district court had allowed Herri ng to introduce Duncan’s hearsay statements, they would not have corroborated his defense. Herring te stified at trial that, although he initially agreed to participate in the robbery, he backed out once he and his co-conspirators arrived at the victim’s house a nd instead waited outside. Yet, in Duncan’s post-hypnosis revised version of events—that is, after she admitted to having gone into the house during the robbery—she placed Herring inside the house during the robbery. Additionally,4 Herring’s conviction for murder in aid of racket eering, for which he received a mandatory life sentence, did not depend on the jury finding that he was the shooter. Instead, the district court instructed the jury on aiding and abetting and felo ny murder theories of criminal liability. Under those theories of liability, whic h Herring does not contest on app eal, the jury still could have found Herring guilty even if it had credited D uncan’s statement that Hummel had a gun and pointed it at someone and inferred from that statement that Hummel was the one who fatally shot
the victim.

Finally, Herring argues that we wrongly deci ded that “Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” United States v. Hill , 890 F.3d 51, 53 (2d Cir. 2018).
He contends that Hobbs Act robbe ry is not a crime of violence under 18 U.S.C. § 924(c)(3)(A),
and thus his conviction for vi olating 18 U.S.C. § 924(j)—which is predicated on Hobbs Act robbery being a crime of viol ence—must be vacated. However, we “are bound by the decisions of prior panels until such time as they are overrule d either by an en banc panel of our Court or by the Supreme Court,” United States v. Wilkerson , 361 F.3d 717, 732 (2d Cir. 2004), or called into question by “an intervening Supreme Court decision,” Lotes Co. v. Hon Hai Precision Indus.

Co. , 753 F.3d 395, 405 (2d Cir. 2014) (internal quot ation marks omitted). Herring points us to no en banc panel or Suprem e Court decision overruling Hill , nor does he cite any Supreme Court
decision that calls Hill into question. We are therefore bound to follow Hill

.

We have considered the remainder of Herri ng’s arguments and find them to be without merit. Accordingly, the judgment of th e district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk