13-359(L) USA v. Reed, et al.



### UNITED STATES COURT OF APPEALS
**FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**

**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**

**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 25 th** **day of June, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **ROSEMARY S. POOLER,** 8 **Circuit Judges**

**.** 9 10

- - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 **13-359-cr(L)** 14 **-v.- 13-360(con),** 15 **13-380(con)** 16 **GREGORY REED, also known as Sharky** 17 **JOHN JOHNSON, RONNIE GONZALEZ, also** 18 **known as Satan,** 19 **Defendants-Appellants**

**.** 20

- - - - - - - - - - - - - - - - - - - -X 21 22

**FOR APPELLEE:** TODD W. BLANCHE, Assistant 23 United States Attorney (with 24 Brent S. Wible, Assistant United 25 States Attorney, on the brief ), 26 forPreet Bharara, United States 27 Attorney for the Southern 28

1District of New York, New York, 1 New York. 2 3
**FOR APPELLANTS:** JEREMY SCHNEIDER (withLucas 4 Anderson on the brief ), Rothman, 5 Schneider, Soloway & Stern, LLP, 6 New York, New York, forGregory 7 Reed. 8 9 James E. Neuman (withDavid S. 10 Greenfield on the brief ), New 11 York, New York, forJohn 12 Johnson. 13 14 Thomas H. Nooter, Freeman, 15 Nooter & Ginsberg, New York, New 16 York, forRonnie Gonzalez. 17 18 Appeal from a judgment of the United States District 19 Court for the Southern District of New York (Sullivan, J. ). 20 21 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 22

**AND DECREED**that the judgments of the district court be 23

**AFFIRMED.** 24 25 Gregory Reed and John Johnson appeal from judgments of 26 conviction entered on January 17, 2013, and Ronnie Gonzalez 27 appeals from a judgment of conviction entered on January 23, 28 2013, in the United States District Court for the Southern 29 District of New York (Sullivan, J. ). We decide the Sixth 30 Amendment claim raised by Reed in a separate opinion issued 31 simultaneously with this summary order. We assume the 32 parties’ familiarity with the underlying facts, the 33 procedural history, and the issues presented for review. 34 35 On June 6, 2011, a three-count federal indictment was 36 filed against Reed, Johnson, and Gonzales (collectively, 37 “Defendants”). Count One charged Defendants with conspiracy 38 to commit Hobbs Act robbery, in violation of 18 U.S.C. § 39 1951. Count Two charged Reed, Johnson, and Gonzalez with 40 attempted Hobbs Act robbery, in violation of 18 U.S.C. § 41 1951. Count Three charged Reed, Johnson, and Gonzalez with 42 causing the death of Bernardo Garcia through the use of a 43 firearm during and in furtherance of the crimes charged in 44 Counts One and Two, in violation 18 U.S.C. § 924(j). A jury 45 found each defendant guilty on each count. 46 47

2“Because [Defendants] appeal[] from a judgment of 1 conviction entered after a jury trial, the following facts 2 are drawn from the trial evidence and described in the light 3 most favorable to the government.” United States v. Wilson

, 4 709 F.3d 84, 85 (2d Cir. 2013) (per curiam)

. 5 6 On December 1, 2007, Donnell Richardson, a drug dealer 7 with a long and varied criminal history, enlisted Reed and 8 Gonzalez to rob a small ring of drug dealers operating out 9 of the lobby of a residential building in the Bronx (the 10 “Building”). Reed, in turn, recruited Johnson. Richardson 11 wanted to rob the drug dealers of their guns and take over 12 the Building for himself. As payment, it was agreed that 13 Reed, Johnson, and Gonzalez would keep any drugs and money 14 they could grab. 15 16 That same day, Gonzalez served as look-out and 17 Richardson waited in his car across the street while Reed 18 and Johnson entered the Building. When one of the dealers, 19 Luis Navarro, ran toward a stairwell, Reed fired into the 20 air. Johnson then shot and killed the other dealer, a 21 teenager named Bernardo Garcia. Reed, Johnson, and Gonzalez 22 immediately fled without taking any drugs, guns, or money. 23 Eventually, Donnell Richardson agreed to cooperate with the 24 Government’s investigation and prosecution (but not before 25 he had established his own highly-profitable drug-dealing 26 operation in the Building). 27 28 **A. Sufficiency of the Evidence** 29 30 Reed and Gonzalez challenge the evidentiary sufficiency 31 of their convictions for Hobbs Act robbery. We review 32 sufficiency challenges de novo , “view[ing] the evidence in 33 the light most favorable to the government, crediting every 34 inference that could have been drawn in the government’s 35 favor, and deferring to the jury’s assessment of witness 36 credibility, and its assessment of the weight of the 37 evidence.” United States v. Chavez , 549 F.3d 119, 124 (2d 38 Cir. 2008) (internal quotation marks, citations, and 39 alterations omitted). A “conviction must be upheld if any 40 rational trier of fact could have found the essential 41 elements of the crime beyond a reasonable doubt.” Id. at 124 42 (internal quotation marks omitted, emphasis in original). 43 44 The Hobbs Act proscribes (inter alia ) robbery, 45 attempted robbery, and conspiracy to commit robbery that “in 46 any way or degree obstructs, delays, or affects” interstate 47

3commerce. 18 U.S.C. § 1951(a). “Robbery” is “the unlawful 1 taking or obtaining of personal property from the person . . 2 . , against his will, by means of actual or threatened 3 force, or violence, or fear of injury, immediate or future, 4 to his person or property . . . .” 18 U.S.C. § 1951(b)(1). 5 While the jurisdictional (i.e. , interstate) element of the 6 Hobbs Act “must be proven beyond a reasonable doubt, just as 7 any other element, we recognize that the effect on 8 interstate commerce need only be slight or subtle.” United 9 States v. Needham , 604 F.3d 673, 681 (2d Cir. 2010); 10 see alsoUnited States v. Fabian , 312 F.3d 550, 554 (2d Cir. 11 2002) (“Our precedent requires the government make only a 12 de minimisshowing to establish the necessary nexus for 13 Hobbs Act jurisdiction.”). 14 15 **1. Intent to Commit Hobbs Act Robbery** 16 17 Reed and Gonzalez argue that evidence was insufficient 18 evidence to conclude beyond a reasonable doubt that 19 Defendants had conspired to commit or attempted to commit a 20 robbery; they claim that the incident was a “straightforward 21 shooting.” 1Gonzalez Br. 17; see alsoReed Br. 40 **(“** Every 22 objective item of evidence presented at trial, including 23 Navarro’s testimony, indicates that this crime was an 24 intentional murder, and not an attempted robbery.”). 25 26 “Attempt is an inchoate offense, requiring that a 27 defendant have taken a substantial step in furtherance of 28 the intended crime to support conviction.” United States v. 29 Davis , 689 F.3d 179, 187 (2d Cir. 2012) (internal quotation 30 marks omitted). The detailed testimony of Richardson 31 sufficiently evidenced Defendants’ intent to commit robbery. 32 Richardson testified that he hired Defendants to rob the 33 dealers at the Building so as to scare them off and replace 34 them. As payment, he told Defendants that they would keep 35 whatever money and drugs were recovered. This provided 36 Defendants with substantial pecuniary incentive to assist 37 Richardson: Luis Navarro (the surviving victim) testified 38 that he and his associates sold between $10,000 and $20,000 39 of crack cocaine and heroin every week. Trial Tr. 1055-59. 40 And for that reason, according to Richardson, “[Defendants] 41

1 This challenge implicates our jurisdiction under the Hobbs Act as well as Defendants’ guilt of the underlying substantive offense.

4agreed to do the robbery. They was [sic] getting the money 1 and drugs.” Id. at 527. 2 3 Reed asserts that Richardson was “an inherently 4 unreliable witness.” Reed Br. 39. However, “[a]ssessments 5 of witness credibility and choices between competing 6 inferences lie solely within the province of the jury,” 7 United States v. Payne , 591 F.3d 46, 60 (2d Cir. 2010), and 8 this Court must view Richardson’s testimony in the light 9 most favorable to the verdict. In that light, the jury was 10 free to credit Richardson’s testimony that this was a 11 robbery that did not go as planned. 12 13 Reed and Gonzalez claim that, whatever their intent, 14 the evidence was insufficient because the men did not 15 actually make any demands for drugs or money, let alone take 16

any. Based on Richardson’s testimony, the jury could 17 conclude that Reed, Gonzalez, and Johnson each had the 18 requisite specific intent to rob Navarro and Garcia. By the 19 time Reed and Johnson entered the Building, with Gonzalez on 20 watch and Richardson waiting in the wings, the would-be 21 robbers had already taken a substantial step toward 22 completing that crime. SeeUnited States v. Farhane , 634 23 F.3d 127, 147 (2d Cir. 2011) (“[A] ‘substantial step’ must 24 be ‘something more than mere preparation, yet may be less 25 than the last act necessary before the actual commission of 26 the substantive crime.’” (quoting United States v. Manley

, 27 632 F.2d 978, 987 (2d Cir. 1980)). 28 29 **2. Hobbs Act Jurisdiction** 30 31 Reed and Gonzalez argue that the Government failed to 32 prove the jurisdictional element of its Hobbs Act claims 33 beyond a reasonable doubt. 34 35 The Government rested federal jurisdiction on the 36 expert testimony of Special Agent Daniel Dyer of the Drug 37 Enforcement Agency that neither cocaine (crack’s predecessor 38 compound) nor heroin is produced in the United States. A 39 reasonable jury would certainly be free to disregard the 40 possibility, raised by Gonzalez on cross-examination, that 41 Navarro or his unnamed suppliers grew their own coca and 42 poppy plants and then went through the arduous process of 43 making cocaine and heroin from them--particularly in light 44 of Dyer’s testimony that hundreds of kilograms of coca leaf 45 are required to produce a single kilogram of cocaine. Cf. 46 United States v. Parkes , 497 F.3d 220, 231 (2d Cir. 2007) 47

5(holding that testimony that marijuana was “almost 1 exclusively” imported into the United States and that “very 2 little” marijuana was grown in New York was sufficient to 3 establish interstate nexus) (alteration omitted). In any 4 event, we have held that expert testimony is unnecessary to 5 establish Hobbs Act jurisdiction because “[t]he importation 6 and interstate transportation of cocaine, as well as the 7 financial size of the cocaine trade, have been routinely and 8 copiously discussed by public officials, candidates for 9 office, and the news media for decades.” United States v. 10 Gomez , 580 F.3d 94, 102 (2d Cir. 2009). Special Agent 11 Dyer’s testimony was therefore sufficient to establish 12 beyond a reasonable doubt that a robbery of crack cocaine or 13 heroin would have at least a de minimiseffect on interstate 14

commerce. 15 16 **B. Limitation of Cross-Examination of Richardson**  17 18 Gonzalez argues that the district court abused its 19 discretion when it proscribed cross-examination into 20 Richardson’s “history of taking advantage of 21 minors--particularly, his conviction for the statutory rape 22 of a 14-year-old girl and his sexual conduct with a 23 16-year-old cousin who had run away from home and was 24 dependent on the witness financially and for shelter.” 25 Gonzalez Br. 17-18. 26 27 Because “the trial court is accorded broad discretion 28 in controlling the scope and extent of cross-examination[,]” 29 United States v. Caracappa , 614 F.3d 30, 42 (2d Cir. 2010) 30 (internal quotation marks omitted), we disturb such rulings 31 only if “persuaded that the trial judge ruled in an 32 arbitrary and irrational fashion.” United States v. Pipola

, 33 83 F.3d 556, 566 (2d Cir. 1996). In particular, we look to 34 whether “the jury [was] in possession of facts sufficient to 35 make a discriminating appraisal of the particular witness’s 36 credibility.” United States v. Laljie , 184 F.3d 180, 192 37 (2d Cir. 1999) (internal quotation marks omitted). 38 39 In performing the required balancing under Federal Rule 40 of Evidence 403, the district court determined that the jury 41 was likely to be “distract[ed]” by Richardson’s sexual 42 abuses, and consequently unable to assess fairly his 43 credibility. Gonzalez App’x 39. This was not an arbitrary 44 or irrational finding. Cf. United States v. Rosa , 11 F.3d 45 315, 336 (2d Cir. 1993) (“Nor was it an abuse of discretion 46 to exclude evidence of certain types of acts such as rape 47

6and burglary as having an insufficient bearing on the 1 witness’s credibility.”). 2 3 Moreover, Richardson testified at great length to a 4 life of violent crime and drug-dealing, including, for 5 example, many drive-by shootings and thefts from his own 6 family. He also admitted a guilty plea to assaulting his 7 wife, then only seventeen years old and six months pregnant 8 with their child. In light of this evidence, “the jury 9 [was] in possession of facts sufficient to make a 10 discriminating appraisal of . . . [Richardson’s] 11 credibility,” and the district court did not abuse its 12 discretion in excluding inquiry into two further examples of 13 his predatory abuse of young girls. 2Laljie , 184 F.3d at 14 192. 15 16 **C. John Johnson’s Appeal** 17 18 **1. Motion to Suppress Identification Testimony**  19 20 Johnson argues that due process was violated because 21 Richardson’s trial identification of him as one of the 22 robbers was tainted by two suggestive pretrial photo arrays. 23 24 The Government concedes (as it ultimately did below) 25 that the photo arrays were unduly suggestive. Nonetheless, 26 after hearing testimony from Richardson, the district court 27 concluded from the totality of the circumstances that 28 Richardson had a sufficient independent basis for making a 29 reliable trial identification of Johnson as the third 30 robber. Accordingly, Richardson’s identification of Johnson 31 was admitted pursuant to the inquiry elaborated in Neil v. 32 Biggers , 409 U.S. 188 (1972). We review that decision only 33 for clear error. SeeUnited States v. Reilly , 76 F.3d 1271, 34 1276 (2d Cir. 1996) (explaining that the clear error 35 standard requires affirmance if the district court’s 36 findings are “plausible in light of the record viewed in its 37 entirety”). 38 39 The factors relevant to this Biggersreliability 40 inquiry include (1) the witness’s opportunity to view the 41 criminal at the time of the crime, (2) the witness’s degree 42

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).

7of attention, (3) the accuracy of the witness’s prior 1 description of the criminal, (4) the level of certainty 2 demonstrated by the witness at confrontation, and (5) the 3 length of time between the crime and the confrontation. 4 Biggers , 409 U.S. at 199-200 (1972). Considering these 5 factors in light of the record, we cannot say that the 6 district court’s analysis was clearly erroneous. Although 7 Richardson had not met Johnson prior to the day of the 8 robbery, Richardson had ample opportunity and incentive to 9 observe Johnson that day, both before and after the crime. 10 Richardson also saw Johnson three more times before the 11 suggestive photo arrays, and at one of those meetings the 12 men explicitly referenced Johnson’s participation in the 13 robbery. The district court reasonably found that the 14 number and quality of these interactions (i.e. , in good 15 light and at close range), as well as the level of attention 16 paid by Richardson during them, outweighed the length of 17 time that passed between the crime and the suggestive 18 confrontations. Cf. United States v. Jacobowitz , 877 F.2d 19 162, 168 (2d Cir. 1989) (long interval between witness’s 20 encounter with defendant and the identification procedure 21 outweighed by other factors). Finally, although 22 Richardson’s initial description of Johnson was vague, it 23 was not inaccurate; and his identification of Johnson as the 24 third robber--from the first photo array through the 25 conclusion of trial--was prompt and steadfast. 26 27 The district court did not clearly err in concluding 28 that Richardson had an independent basis for making a 29 reliable trial identification of Johnson. Therefore, the 30 district court properly submitted this evidence to the jury, 31 notwithstanding the Government’s use of unduly suggestive 32 photo arrays. 33 34 **2. Objection to Identification Instruction** 35 36 At a pretrial hearing on jury instructions, Johnson 37 requested an instruction that “the use of the single-photo 38 displays was improperly suggestive” (as the court had 39 already found) and then explained the Biggersfactors. See 40 Johnson Br. 43. Ultimately, the district court issued a 41 revised charge that closely tracked Johnson’s suggested 42 Biggerslanguage without telling the jury of the prior 43 ruling on the photo arrays. 44 45 Johnson raised no objection to the revised charge, and 46 we accordingly review only for plain error. SeeUnited 47

8States v. Crowley , 318 F.3d 401, 412-13 (2d Cir. 2003) (“A 1 party who has requested an instruction that has not been 2 given is not relieved of the requirement that he state 3 distinctly his objection to the instruction that is given.”) 4 (citation, internal quotation marks, and alteration 5 omitted). “As a general rule, we reserve a finding of 6 plainness to situations where a trial court’s ruling 7 contravenes clearly established precedent.” United States 8

v. Brown , 352 F.3d 654, 665 n.10 (2d Cir. 2003). 9 10 As Johnson acknowledges, the Second Circuit has 11 “declined to require particular language” for eyewitness 12 identification cautionary charges. Johnson Br. 39-40 13 (citing United States v. Evans , 484 F.2d 1178, 1188 (2d Cir. 14 1973)). Indeed, an eyewitness identification charge 15 materially indistinguishable from the one disputed here was 16 found to have “provided substantial guidance on how to 17 evaluate eyewitness identification testimony.” United 18 States v. Kwong , 69 F.3d 663, 666 (2d Cir. 1995). 19 20 When, as here, “the judge’s charge fairly and 21 accurately encompasses the theory of the defense, we have 22 affirmed a judgment of conviction.” United States v. Luis

, 23 835 F.2d 37, 40 (2d Cir. 1987) (citations omitted). The 24 district court’s instruction gave an accurate assessment of 25 the law and fairly apprised the jury of their sensitive task 26 of assessing Richardson’s credibility and the reliability of 27 his identification of Johnson. Accordingly, we find no 28 plain error. 29 30 For the foregoing reasons, and finding no merit in the 31 other arguments raised by Defendants, we hereby **AFFIRM** the 32 judgment of the district court. 33 34 FOR THE COURT: 35 CATHERINE O’HAGAN WOLFE, CLERK 36 37

9