13-359(L)

USA v. Reed, et al.

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

ELECTRONIC 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 25th 4 day of June, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 ROSEMARY S. POOLER,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 UNITED STATES OF AMERICA, 

13 Appellee,

14 13-359-cr(L)

15 -v.- 13-360(con),

16 13-380(con)

17 GREGORY REED, also known as Sharky 

18 JOHN JOHNSON, RONNIE GONZALEZ, also

19 known as Satan, 

20 Defendants-Appellants.

21 - - - - - - - - - - - - - - - - - - - -X

22

23 FOR APPELLEE: TODD W. BLANCHE, Assistant

24 United States Attorney (with

25 Brent S. Wible, Assistant United

26 States Attorney, on the brief),

27 for Preet Bharara, United States

28 Attorney for the Southern

1
1 District of New York, New York,

2 New York.

3

4 FOR APPELLANTS: JEREMY SCHNEIDER (with Lucas

5 Anderson on the brief), Rothman,

6 Schneider, Soloway & Stern, LLP,

7 New York, New York, for Gregory

8 Reed.

9

10 James E. Neuman (with David S.

11 Greenfield on the brief), New

12 York, New York, for John

13 Johnson.

14

15 Thomas H. Nooter, Freeman,

16 Nooter & Ginsberg, New York, New

17 York, for Ronnie Gonzalez.

18

19 Appeal from a judgment of the United States District

20 Court for the Southern District of New York (Sullivan, J.).

21

22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

23 AND DECREED that the judgments of the district court be

24 AFFIRMED.

25

26 Gregory Reed and John Johnson appeal from judgments of

27 conviction entered on January 17, 2013, and Ronnie Gonzalez

28 appeals from a judgment of conviction entered on January 23,

29 2013, in the United States District Court for the Southern

30 District of New York (Sullivan, J.). We decide the Sixth

31 Amendment claim raised by Reed in a separate opinion issued

32 simultaneously with this summary order. We assume the

33 parties’ familiarity with the underlying facts, the

34 procedural history, and the issues presented for review.

35

36 On June 6, 2011, a three-count federal indictment was

37 filed against Reed, Johnson, and Gonzales (collectively,

38 “Defendants”). Count One charged Defendants with conspiracy

39 to commit Hobbs Act robbery, in violation of 18 U.S.C. §

40 1951. Count Two charged Reed, Johnson, and Gonzalez with

41 attempted Hobbs Act robbery, in violation of 18 U.S.C. §

42 1951. Count Three charged Reed, Johnson, and Gonzalez with

43 causing the death of Bernardo Garcia through the use of a

44 firearm during and in furtherance of the crimes charged in

45 Counts One and Two, in violation 18 U.S.C. § 924(j). A jury

46 found each defendant guilty on each count. 

47

2
1 “Because [Defendants] appeal[] from a judgment of

2 conviction entered after a jury trial, the following facts

3 are drawn from the trial evidence and described in the light

4 most favorable to the government.” United States v. Wilson,

5 709 F.3d 84, 85 (2d Cir. 2013) (per curiam).

6

7 On December 1, 2007, Donnell Richardson, a drug dealer

8 with a long and varied criminal history, enlisted Reed and

9 Gonzalez to rob a small ring of drug dealers operating out

10 of the lobby of a residential building in the Bronx (the

11 “Building”). Reed, in turn, recruited Johnson. Richardson

12 wanted to rob the drug dealers of their guns and take over

13 the Building for himself. As payment, it was agreed that

14 Reed, Johnson, and Gonzalez would keep any drugs and money

15 they could grab. 

16

17 That same day, Gonzalez served as look-out and

18 Richardson waited in his car across the street while Reed

19 and Johnson entered the Building. When one of the dealers,

20 Luis Navarro, ran toward a stairwell, Reed fired into the

21 air. Johnson then shot and killed the other dealer, a

22 teenager named Bernardo Garcia. Reed, Johnson, and Gonzalez

23 immediately fled without taking any drugs, guns, or money. 

24 Eventually, Donnell Richardson agreed to cooperate with the

25 Government’s investigation and prosecution (but not before

26 he had established his own highly-profitable drug-dealing

27 operation in the Building). 

28

29 A. Sufficiency of the Evidence

30

31 Reed and Gonzalez challenge the evidentiary sufficiency

32 of their convictions for Hobbs Act robbery. We review

33 sufficiency challenges de novo, “view[ing] the evidence in

34 the light most favorable to the government, crediting every

35 inference that could have been drawn in the government’s

36 favor, and deferring to the jury’s assessment of witness

37 credibility, and its assessment of the weight of the

38 evidence.” United States v. Chavez, 549 F.3d 119, 124 (2d

39 Cir. 2008) (internal quotation marks, citations, and

40 alterations omitted). A “conviction must be upheld if any

41 rational trier of fact could have found the essential

42 elements of the crime beyond a reasonable doubt.” Id. at 124

43 (internal quotation marks omitted, emphasis in original).

44

45 The Hobbs Act proscribes (inter alia) robbery,

46 attempted robbery, and conspiracy to commit robbery that “in

47 any way or degree obstructs, delays, or affects” interstate

3
1 commerce. 18 U.S.C. § 1951(a). “Robbery” is “the unlawful

2 taking or obtaining of personal property from the person . .

3 . , against his will, by means of actual or threatened

4 force, or violence, or fear of injury, immediate or future,

5 to his person or property . . . .” 18 U.S.C. § 1951(b)(1). 

6 While the jurisdictional (i.e., interstate) element of the

7 Hobbs Act “must be proven beyond a reasonable doubt, just as

8 any other element, we recognize that the effect on

9 interstate commerce need only be slight or subtle.” United

10 States v. Needham, 604 F.3d 673, 681 (2d Cir. 2010);

11 see also United States v. Fabian, 312 F.3d 550, 554 (2d Cir.

12 2002) (“Our precedent requires the government make only a

13 de minimis showing to establish the necessary nexus for

14 Hobbs Act jurisdiction.”).

15

16 1. Intent to Commit Hobbs Act Robbery

17

18 Reed and Gonzalez argue that evidence was insufficient

19 evidence to conclude beyond a reasonable doubt that

20 Defendants had conspired to commit or attempted to commit a

21 robbery; they claim that the incident was a “straightforward

shooting.”1 22 Gonzalez Br. 17; see also Reed Br. 40 (“Every

23 objective item of evidence presented at trial, including

24 Navarro’s testimony, indicates that this crime was an

25 intentional murder, and not an attempted robbery.”). 

26

27 “Attempt is an inchoate offense, requiring that a

28 defendant have taken a substantial step in furtherance of

29 the intended crime to support conviction.” United States v.

30 Davis, 689 F.3d 179, 187 (2d Cir. 2012) (internal quotation

31 marks omitted). The detailed testimony of Richardson

32 sufficiently evidenced Defendants’ intent to commit robbery. 

33 Richardson testified that he hired Defendants to rob the

34 dealers at the Building so as to scare them off and replace

35 them. As payment, he told Defendants that they would keep

36 whatever money and drugs were recovered. This provided

37 Defendants with substantial pecuniary incentive to assist

38 Richardson: Luis Navarro (the surviving victim) testified

39 that he and his associates sold between $10,000 and $20,000

40 of crack cocaine and heroin every week. Trial Tr. 1055-59. 

41 And for that reason, according to Richardson, “[Defendants]

1 This challenge implicates our jurisdiction under

the Hobbs Act as well as Defendants’ guilt of the underlying

substantive offense.

4
1 agreed to do the robbery. They was [sic] getting the money

2 and drugs.” Id. at 527.

3

4 Reed asserts that Richardson was “an inherently

5 unreliable witness.” Reed Br. 39. However, “[a]ssessments

6 of witness credibility and choices between competing

7 inferences lie solely within the province of the jury,”

8 United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010), and

9 this Court must view Richardson’s testimony in the light

10 most favorable to the verdict. In that light, the jury was

11 free to credit Richardson’s testimony that this was a

12 robbery that did not go as planned. 

13

14 Reed and Gonzalez claim that, whatever their intent,

15 the evidence was insufficient because the men did not

16 actually make any demands for drugs or money, let alone take

17 any. Based on Richardson’s testimony, the jury could

18 conclude that Reed, Gonzalez, and Johnson each had the

19 requisite specific intent to rob Navarro and Garcia. By the

20 time Reed and Johnson entered the Building, with Gonzalez on

21 watch and Richardson waiting in the wings, the would-be

22 robbers had already taken a substantial step toward

23 completing that crime. See United States v. Farhane, 634

24 F.3d 127, 147 (2d Cir. 2011) (“[A] ‘substantial step’ must

25 be ‘something more than mere preparation, yet may be less

26 than the last act necessary before the actual commission of

27 the substantive crime.’” (quoting United States v. Manley,

28 632 F.2d 978, 987 (2d Cir. 1980)). 

29

30 2. Hobbs Act Jurisdiction

31

32 Reed and Gonzalez argue that the Government failed to

33 prove the jurisdictional element of its Hobbs Act claims

34 beyond a reasonable doubt. 

35

36 The Government rested federal jurisdiction on the

37 expert testimony of Special Agent Daniel Dyer of the Drug

38 Enforcement Agency that neither cocaine (crack’s predecessor

39 compound) nor heroin is produced in the United States. A

40 reasonable jury would certainly be free to disregard the

41 possibility, raised by Gonzalez on cross-examination, that

42 Navarro or his unnamed suppliers grew their own coca and

43 poppy plants and then went through the arduous process of

44 making cocaine and heroin from them--particularly in light

45 of Dyer’s testimony that hundreds of kilograms of coca leaf

46 are required to produce a single kilogram of cocaine. Cf.

47 United States v. Parkes, 497 F.3d 220, 231 (2d Cir. 2007)

5
1 (holding that testimony that marijuana was “almost

2 exclusively” imported into the United States and that “very

3 little” marijuana was grown in New York was sufficient to

4 establish interstate nexus) (alteration omitted). In any

5 event, we have held that expert testimony is unnecessary to

6 establish Hobbs Act jurisdiction because “[t]he importation

7 and interstate transportation of cocaine, as well as the

8 financial size of the cocaine trade, have been routinely and

9 copiously discussed by public officials, candidates for

10 office, and the news media for decades.” United States v.

11 Gomez, 580 F.3d 94, 102 (2d Cir. 2009). Special Agent

12 Dyer’s testimony was therefore sufficient to establish

13 beyond a reasonable doubt that a robbery of crack cocaine or

14 heroin would have at least a de minimis effect on interstate

15 commerce. 

16

17 B. Limitation of Cross-Examination of Richardson

18

19 Gonzalez argues that the district court abused its

20 discretion when it proscribed cross-examination into

21 Richardson’s “history of taking advantage of

22 minors--particularly, his conviction for the statutory rape

23 of a 14-year-old girl and his sexual conduct with a

24 16-year-old cousin who had run away from home and was

25 dependent on the witness financially and for shelter.” 

26 Gonzalez Br. 17-18.

27

28 Because “the trial court is accorded broad discretion

29 in controlling the scope and extent of cross-examination[,]”

30 United States v. Caracappa, 614 F.3d 30, 42 (2d Cir. 2010)

31 (internal quotation marks omitted), we disturb such rulings

32 only if “persuaded that the trial judge ruled in an

33 arbitrary and irrational fashion.” United States v. Pipola,

34 83 F.3d 556, 566 (2d Cir. 1996). In particular, we look to

35 whether “the jury [was] in possession of facts sufficient to

36 make a discriminating appraisal of the particular witness’s

37 credibility.” United States v. Laljie, 184 F.3d 180, 192

38 (2d Cir. 1999) (internal quotation marks omitted).

39

40 In performing the required balancing under Federal Rule

41 of Evidence 403, the district court determined that the jury

42 was likely to be “distract[ed]” by Richardson’s sexual

43 abuses, and consequently unable to assess fairly his

44 credibility. Gonzalez App’x 39. This was not an arbitrary

45 or irrational finding. Cf. United States v. Rosa, 11 F.3d

46 315, 336 (2d Cir. 1993) (“Nor was it an abuse of discretion

47 to exclude evidence of certain types of acts such as rape

6
1 and burglary as having an insufficient bearing on the

2 witness’s credibility.”). 

3

4 Moreover, Richardson testified at great length to a

5 life of violent crime and drug-dealing, including, for

6 example, many drive-by shootings and thefts from his own

7 family. He also admitted a guilty plea to assaulting his

8 wife, then only seventeen years old and six months pregnant

9 with their child. In light of this evidence, “the jury

10 [was] in possession of facts sufficient to make a

11 discriminating appraisal of . . . [Richardson’s]

12 credibility,” and the district court did not abuse its

13 discretion in excluding inquiry into two further examples of

his predatory abuse of young girls.2 14 Laljie, 184 F.3d at

15 192. 

16

17 C. John Johnson’s Appeal

18

19 1. Motion to Suppress Identification Testimony

20

21 Johnson argues that due process was violated because

22 Richardson’s trial identification of him as one of the

23 robbers was tainted by two suggestive pretrial photo arrays.

24

25 The Government concedes (as it ultimately did below)

26 that the photo arrays were unduly suggestive. Nonetheless,

27 after hearing testimony from Richardson, the district court

28 concluded from the totality of the circumstances that

29 Richardson had a sufficient independent basis for making a

30 reliable trial identification of Johnson as the third

31 robber. Accordingly, Richardson’s identification of Johnson

32 was admitted pursuant to the inquiry elaborated in Neil v.

33 Biggers, 409 U.S. 188 (1972). We review that decision only

34 for clear error. See United States v. Reilly, 76 F.3d 1271,

35 1276 (2d Cir. 1996) (explaining that the clear error

36 standard requires affirmance if the district court’s

37 findings are “plausible in light of the record viewed in its

38 entirety”). 

39

40 The factors relevant to this Biggers reliability

41 inquiry include (1) the witness’s opportunity to view the

42 criminal at the time of the crime, (2) the witness’s degree

2 Much less was the decision harmful, as the

evidence was “repetitive [and] only marginally relevant.”

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). 

7
1 of attention, (3) the accuracy of the witness’s prior

2 description of the criminal, (4) the level of certainty

3 demonstrated by the witness at confrontation, and (5) the

4 length of time between the crime and the confrontation. 

5 Biggers, 409 U.S. at 199-200 (1972). Considering these

6 factors in light of the record, we cannot say that the

7 district court’s analysis was clearly erroneous. Although

8 Richardson had not met Johnson prior to the day of the

9 robbery, Richardson had ample opportunity and incentive to

10 observe Johnson that day, both before and after the crime. 

11 Richardson also saw Johnson three more times before the

12 suggestive photo arrays, and at one of those meetings the

13 men explicitly referenced Johnson’s participation in the

14 robbery. The district court reasonably found that the

15 number and quality of these interactions (i.e., in good

16 light and at close range), as well as the level of attention

17 paid by Richardson during them, outweighed the length of

18 time that passed between the crime and the suggestive

19 confrontations. Cf. United States v. Jacobowitz, 877 F.2d

20 162, 168 (2d Cir. 1989) (long interval between witness’s

21 encounter with defendant and the identification procedure

22 outweighed by other factors). Finally, although

23 Richardson’s initial description of Johnson was vague, it

24 was not inaccurate; and his identification of Johnson as the

25 third robber--from the first photo array through the

26 conclusion of trial--was prompt and steadfast. 

27

28 The district court did not clearly err in concluding

29 that Richardson had an independent basis for making a

30 reliable trial identification of Johnson. Therefore, the

31 district court properly submitted this evidence to the jury,

32 notwithstanding the Government’s use of unduly suggestive

33 photo arrays. 

34 

35 2. Objection to Identification Instruction

36

37 At a pretrial hearing on jury instructions, Johnson

38 requested an instruction that “the use of the single-photo

39 displays was improperly suggestive” (as the court had

40 already found) and then explained the Biggers factors. See

41 Johnson Br. 43. Ultimately, the district court issued a

42 revised charge that closely tracked Johnson’s suggested

43 Biggers language without telling the jury of the prior

44 ruling on the photo arrays. 

45

46 Johnson raised no objection to the revised charge, and

47 we accordingly review only for plain error. See United

8
1 States v. Crowley, 318 F.3d 401, 412-13 (2d Cir. 2003) (“A

2 party who has requested an instruction that has not been

3 given is not relieved of the requirement that he state

4 distinctly his objection to the instruction that is given.”)

5 (citation, internal quotation marks, and alteration

6 omitted). “As a general rule, we reserve a finding of

7 plainness to situations where a trial court’s ruling

8 contravenes clearly established precedent.” United States

9 v. Brown, 352 F.3d 654, 665 n.10 (2d Cir. 2003). 

10

11 As Johnson acknowledges, the Second Circuit has

12 “declined to require particular language” for eyewitness

13 identification cautionary charges. Johnson Br. 39-40

14 (citing United States v. Evans, 484 F.2d 1178, 1188 (2d Cir.

15 1973)). Indeed, an eyewitness identification charge

16 materially indistinguishable from the one disputed here was

17 found to have “provided substantial guidance on how to

18 evaluate eyewitness identification testimony.” United

19 States v. Kwong, 69 F.3d 663, 666 (2d Cir. 1995).

20

21 When, as here, “the judge’s charge fairly and

22 accurately encompasses the theory of the defense, we have

23 affirmed a judgment of conviction.” United States v. Luis,

24 835 F.2d 37, 40 (2d Cir. 1987) (citations omitted). The

25 district court’s instruction gave an accurate assessment of

26 the law and fairly apprised the jury of their sensitive task

27 of assessing Richardson’s credibility and the reliability of

28 his identification of Johnson. Accordingly, we find no

29 plain error.

30

31 For the foregoing reasons, and finding no merit in the

32 other arguments raised by Defendants, we hereby AFFIRM the

33 judgment of the district court.

34

35 FOR THE COURT:

36 CATHERINE O’HAGAN WOLFE, CLERK

37

9