1 4

- 2641

- cr United States v. Barrett 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 FEDE RAL 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. At a stated term of the United States Court of Appeals for the Second Circuit, hel d at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10 th day of September , two thousand eighteen

. PRESENT: RALPH K. WINTER , REENA RAGGI , CHRISTOPHER F. DRONE Y, Circuit Judges

.

---------------------------------------------------------------------- UNITED STATES OF AMERICA , Appellee ,

v. No. 1 4

- 2641

- cr DWAYNE BARRETT, AKA Sealed Defendant 3, AKA T all Man , Defendant

- Appellant , FAHD HUSSAIN, AKA A li , AKA Moe , TAMESHWAR SINGH, AKA Sealed Defendant 5, SHEA DOUGLAS, JERMAINE DORE, AKA St. Kitts , AKA Blaqs , TAIJAY TODD, AKA Sealed Defendant 4 , AKA Biggs , DAMIAN CUNNINGHAM, AKA Jaba, Defendant s . *

----------------------------------------------------------------------

* The Clerk of Court is directed to amend the caption as set forth above.2 APPEARING FOR APPELLANT: KELLEY J. SHARKEY, E SQ. , Brooklyn , New York

. APPEARING FOR APPELLEE: MICHAEL D. MAIMIN , Assistant United States Attorney ( Amy R. Lester, Jessica A. Masella , Karl Metzner , Assistant United States Attorney s , on the brief ), for Geoffrey S. Berman , United States Attorney for the Southern District of New York , New York , New York

. Appeal from a judgment of the United States District Court for the Southern District of New York ( Richard J. Sullivan , Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on July 18, 2014 , is AFFIRMED

. Defendant Dwayne Barrett was convicted after a jury trial of multiple Hobbs Act robberies and related firearms offenses , and sentenced to a total prison term of 90 years. See 18 U.S.C. § § 924(c), 924 (j), 1951. On appeal, Barrett challenges (1) the constitutionality of his firearms convictions; ( 2 ) the district court’s admission of (a) data seized from his cell phone without a warrant , and (b) a music video depicting him participating in a staged armed robbery ; and ( 3 ) application of the mandatory, consecutive sentencing provisions of § 924(c) to his § 924(j) conviction. Barrett raises additional arguments in supplemental pro se brief s . In a published opinion filed today, we reject the first argument as meritless. We address all other arguments in this summary order,

assum ing the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.3 1

. Evidentiary Challenges

a. Cell P hone Data The district court denied Barrett’s motion to suppress incriminating evidence obtained from a warrantless search of his cell phone, finding the search supported by
Barrett’s volun tary consent . We review this factual determination for clear error , taking into account the totality of the circumstances and viewing the evidence in the light most favorable to the government

. See United States v. Moreno , 701 F.3d 64, 76 (2d Cir. 2012) ( stating that test is whether consent is product of “essentially free and unconstrained choice

. . . as opposed to mere acquiescence in a show of authority” ( citation and internal quotation marks omitted)) ; see also Schneckloth v. Bustamonte , 412 U.S. 218 , 225 (1973) (inquiring whether defendant’s will “has been overborne”)

. Barrett does not dispute that he twice unlocked his phone in response to requests by
NYPD Detective Kruse

. 1 Rather, Barrett asserts that his consent was rendered involuntary by “ overbearing police authority,” pointing out that when police stopped his

car, Kruse had his gun drawn , and that Barrett was then handcuffed and frisked, not read his Miranda rights, and questioned at the precinct for upwards of six hours when he unlocked h is phone

. Appellant ’s Br. 22. T he district court acknowledged these factors, but weighed them against others , specifically , that Barrett (1) was told he was not under

1 While Barrett challenges Kruse’s credibility, the district court explicitly credited the officer’s testimony, a determination to which we accord “special deference.” United States v. Bershchansky , 788 F.3d 102, 108 (2d Cir. 2015) (internal quotation marks omitted).4 arrest 2 ; (2) was not, in fact, arrested that day; (3) was not handcuffed when questioned or when he agreed to unlock his phone; (4) was offered something to eat and drink, and was “very calm” and “cooperative” ; and (5) was accommodated in making arrangements for child care. App’x 65

– 66. To the extent the cited factors point ed in d ifferent directions on the issue of voluntariness , it was the district court’ s task to decide what weight each would bear. See United States v. Isiofia , 370 F.3d 226, 232 (2d Cir. 2004)

. We cannot conclude that its preponderance finding of voluntariness was outside the realm of permissible choices so as to be clearly erroneous. See United States v. Snype , 441 F.3d 119, 131 (2d Cir. 2006) (noting that government must prove voluntariness by preponderance of evidence )

. Nor did the d istrict court clearly err in finding that Barrett ’s consent was not limited
in scope. Barrett h aving twice unlocked his phone and said “OK” in handing it to Kruse, S upp l . App’x 8, a reasonable person would not have had “cause to believe that the search [ was ] limited in some way , ” United States v. Snow , 44 F.3d 133, 135 (2d Cir. 1995); accord United States v. Isiofia , 370 F.3d at 231. Nor is a different conclusion compelled by
Barrett’s later refusal to give ATF Agent Zeppieri consent to search , given Bar rett ’s simultaneous confirmation of his earlier consent to Kruse.

2 The district court made no finding as to whether Barrett was , in fact , free to leave, see generally United States v. New ton , 369 F.3d 659 , 675

– 77 (2d Cir. 2004 ), and that question is not before us on this appeal, see United States v. Moreno , 701 F.3d at 77 (“We have repeatedly observed that neither the fact that a person is in custody nor that [] he has been subjected to a display of force rules out a finding of voluntariness.”).5 Because the district court’s finding of consent to search was not clearly erroneous , we reject Barrett’s evidentiary challenge on the merits

. 3
b

. Music Video
Barrett challenges admission of a music video , arguing that its probative value was substantially outweighed by the clear danger that the jury would conflate its “ story ” with the charged robberies, Appellant ’s Br. 30; and that its “intentionally inflammatory” nature would cause unfair pr ejudice , id. at 32. See Fed. R. Evid. 403. “ We accord a district court’s evidentiary rulings deference, and reverse only for abuse of discretion, ” United
States v. Cuti , 720 F.3d 453, 457 (2d Cir. 2013), which is not evident here.
W e review a Rule 403 determination by maximizing the probative value of the evidence and minimizing its prejudicial effect. See United States v. Abu

- Jihaad , 630 F.3d 102, 132 (2d Cir. 2010). In this case, the video was probative of Barrett’s (1) association with two of his c o - conspirators, (2) use of the same Mercedes driven in the charged robberies, and (3) co - conspirators’ possessio n of guns, which was relevant to Barrett ’s alleged aiding and abetting of the charged firearms crimes

. See United States v. Pierce , 785 F.3d 832, 841 (2d Cir. 2015) ( holding that rap video was properly admitted under Rule
403 to show defendant’s animosity toward rival gang and association with co

conspirators). Barrett insists this evidence was cumulative because his association with

3 Insofar as Barrett argu es that his cellphone was seized incident to an unlawful arrest , see Appellant ’s Br. 26; Pro Se Supp l . Br

. 6

– 9 , or other illegal action , see Pro Se Supp l . Br. 10

– 12 , we decl ine to review these arguments because Barrett (1) failed to move for suppression on these grounds before trial, see Fed. R. Crim. P. 12(b)(3)(C) ; and (2) has not demonstrate d cause to excuse such failure, see Fed. R. Crim. P. 12(c)(3)

.6 co - conspi rators and use of the Mercedes were “uncontested

. ” Appellant ’s Br. 33 . The district court, however, ruled that he failed to make sufficiently clear at the appropriate time that these facts were not in dispute, s ee App’x 89

– 90 ; United States v. McCallum , 584 F.3d 471, 475

– 76 (2d Cir. 2009) , and Barrett identifies no error in this conclusion

. Further, the district court acted within its discretion in concluding that the danger of unfair prejudice or confusion from the video did not s ubstantially outweigh its probative value

. No different conclusion is warranted even if, as Barrett insists , the video’s admission was governed by Rule 404(b)

. As the district court observed, the video was admissible for reasons other than propensity, notably, (1) Barrett’s op portunity to commit the charged crimes because of his access to firearms and his possession and control over the Mercedes ; (2) Barrett’s identity , as revealed by the robbery crew’s modus operandi , whereby Barrett used the Mercedes to serve as getaway driver for arme d robberies involving masks and guns , see United States v. Sampson , 385 F.3d 183, 192 n.7 (2d Cir. 2004) ; and (3) Barrett’s k nowledge of robbery crew members and their modus operandi

. See Fed. R. Evid. 404(b)(2). Further, Barrett did not request any limiting instruction regarding the video , and he cannot demonstrate that the district court’s failure to, sua sponte , give such a charge constituted plain error affecting his substantial rights. See United States v. Paulino , 445 F.3d 211, 216 n.1 (2d Cir. 2006).7 Accordingly , we discern no abuse of discretion in the admission of the video under either Rule 403 or Rule 404(b). 4
2

. Sentencing Challenge Barrett argues that imposition of a 25

- year consecutive sentence for the firearms offense resulting in death (Count Seven) manifests procedural error because 18 U.S.C. § 924(j) does not incorporate § 924( c ) ’s penalty enhancements, see id. § 924(c)(1)(C)(i),

or mandatory consecutive sentencing, see id. § 924(c)(1)(D)(ii). Although we review

c hallenges to the district court’ s statutory interpretation de novo , s ee United States v.
Cassesse , 685 F.3d 186, 188 (2d Cir. 2012), Barrett’s claim does not merit extensive discussion. In sentencing Barrett under § 924(j) , the district court cited United States v. Young , 561 F. App’x 85, 93

– 94 (2d Cir. 2014) , a non - precedential summary order construing § 924(j) to inco rporate the § 924(c) penalty enhancements

. Other panel s of this court recently reached the sam e conclusio n, again summarily. See United States v. Ventura , No. 15

- 2675, 2018 WL 3814729, at *2 (2d Cir. Aug. 10, 2018); United States v. Nina , 734 F. App’x 27, 36 (2d Cir. 2018). While Barrett urges us to reject Young ’s , Ventura ’s, and
Nina ’s reasoning , we are not persuaded

. In any event , i f, as Barrett urges, § 924(j) establishes a separate offense not subject to § 924(c) ’ s enhancements, Count Six

— which charged a § 924(c) violation for the same death

- resulting firearms use

— would not be a

4 Whether the video is entitled to First Amendment protection as artistic expression is irrelevant because “the speech is not itself the proscribed conduct.” United States v. Pierce , 785 F.3d at 841 (internal quotation marks omitted).8 lesser

- included offense of Count Seven and , thus , would itself have required impos ition of a consecutive sentence of at least 25 years on Count Six. See 18 U.S.C. § 924(c) (1)(C)(i), (D)(ii). Consequently , because the district court was obliged to impose a consecutive sentence of at least 25 years on Count Six if not Count Seven , Barrett’s urged procedural

error was necessarily harmless. See United States v. Jass , 569 F.3d 47, 68 (2d Cir. 2009). 5
3

. Pro Se Arguments Barrett advances additional argu ments in his pro se brief s . Each is meritless.

a. Cell

- Site Evidence Barrett argues that FBI Agent Magnuson should not have been permitted to testify as an expert regarding cell

- site evidence because he never personally measured the coverage radius of the cell towers at issue. This argument fails because th e record shows
that Magnuson did not testify as an expert under Fed. R. Evid. 702 but, rather, as a lay witness under Rule 701. Nor did the district court abuse its discretion in determining that Magnuson ’s testimony , offered to e xplain the maps he prepared from data provided by Barrett’s cell

- service providers, would not implicate “ scientific, technical, or other specialized knowledge ” so as to fall within the scope of Rule 702. Fed. R. Evi d. 701(c); see United States v. Rigas , 490 F.3d 208, 222 (2d Cir. 2007). Barrett’s qualitative challenge to Magnuson’s lay testimony is unavailing because he “had ample opportunity

5 Thus, w e also need not address Barrett’s argument that the consecutive 25

- year sentence imposed on Count Seven created an unwarranted sentencing disparity with his cod efendant.9 to challenge [its] factual accuracy ” at trial, United States v. Cuti , 720 F.3d at 461, and, in any event, offered the same summary testimony himself. b. Disclosure Obligations Barrett claim s the government failed to comply with its disclosure obligations under
18 U.S.C. § 3500, Giglio v. United States , 405 U.S. 15 0 (1972), and Brady v. Maryland , 373 U.S. 83 (1963), in not disclosing that witness Abdullah had served as a confidential informant for more than a decade, or that Abdullah was testifying pursuant to an agreement with the government . The argument is defeated by the rec ord, which reveals both the government’s disclosure of information about Abdullah’s informant status and the parties’ elicitation of such information on both direct and cross

- examination.

c. License Plate Evidence
Barrett contends that certain evidence generated by license

- plate

- recognition technology was “extremely unreliable , ” and, therefore, should not have been admitted.
Pro Se Suppl. Br. 26. H is specific claim

— that the government failed to authenticate a commercial database print out locating his Mercedes at the site of the charged firearms death

— is contradicted by testimony from which the district court properly authenticated the document as a business record

. See United States v. Gagliardi , 506 F.3d 140, 151 (2d Cir. 2007) ( iden tifying authentication standard as one of “reasonable likelihood” ( quoting United States v. Pluta , 176 F.3d 43, 49 (2d Cir. 1999) ) (citing Fed. R. Evid. 901(a)) )

. Nor , in the absence of evidence of database overlap , is there any support for Barret t’s argument10 that the privately

- owned database was un reliable because the NYPD’s database did not independently record Barrett’s car at that same time and location. d. Government Summation
Barrett ’s summation challenge relies on an argument already rejected by this court
in the appeal of his co defendant. See United States v. Dore , 586 F. App’x 42, 45

– 46 (2d Cir. 2014). For the same reasons stated in that order, we conclude that , to whatever extent the prosecutor’s remark

— asking “whether [defendants’ counsel ’s ] attempt to have any explanation whatsoever for some of the most devastating evidence in this case”

— i mpermissibly shifted the burden of proof from the government to the defense , see Tr. 1802

– 03 , the district court’s subsequent instru ction s , to which Barrett did not object, adequately mitigated any error, plain or otherwise. See United States v. Dore , 586 F. App’x at 45 n.1; see also United States v. Farhane , 634 F.3d 127, 167 (2d Cir. 2011) ( discussing legal standard).

e. Aiding and Abetting Liability Barrett’s sufficiency challenge to his § 924(c) and § 924(j) convictions (Counts Two, Four, Six, and Seven)

— resting in part on a claim of deficient aiding and abetting jury instructions in light of Rosemond v. United States , 572 U.S. 65 (2014)

— fails on the merits. To sustain these convictions, the evidence had to permit a reasonable jury to find that Barrett (1) personally violated § 924(c) (1)(A) ; (2) aided and abetted another’s § 924(c)(1)(A) violation; or (3) was liable u nder Pinkerton v. United States , 328 U.S. 640 (1946), for his co

- conspirator’s reasonably foreseeable use of firearms. See United States11 v. Masotto , 73 F.3d 1233, 1240

– 41 (2d Cir. 1996) (identifying aiding and abetting and Pinkerton as distinct theories f or § 924(c) liability). Here, the district court instructed the jury, consistent with the law at the time, that, as to aiding and abetting, it “must find that the defendant performed some act that facilitated or encouraged the actual using, carrying of, or possession of the firearm in relation to the underlying crime.” Dist. Ct. Dkt. #183, Trial Tr. 1929; see United States v. Medina , 32 F.3d 40, 45 (2d Cir. 1994). Trial evidence supported such a jury finding . Specifically,
Barrett brandished a gun during the October 29, 2011 Ahmed and Kassim Salahi robbery that is the basis for his Count Three substantive Hobbs Act conviction and Count Four firearms conviction. Further, he drove himself, as well as two confederates armed with guns, to the site of t he December 12, 2011 Gamar Dafalla robbery

- murder that is the basis for his Count Five substantive Hobbs Act conviction, Count Six firearms conviction, and Count Seven firearms

- murder conviction . This supported aiding and abetting culpability as detailed in Rosemond v. United States , 572 U.S. at 67 (holding aiding and abetting of § 924(c) crime proved where defendant (1) actively assisted underlying offense , or use,
carry or possession of firearm; (2) with advance knowledge of that firearm

- related conduct) ; United States v. Prado , 815 F.3d 93, 105 (2d Cir. 2016) (holding Rosemond requirements satisfied where evidence showed that “after the gun appeared, [defendant] continued to play an active role in the crime”); United States v. Cain , 671 F.3d 271, 302

–12 03 (2d Cir. 2012) (requiring “review [of] the evidence in the light most favorable to the government” in ass essing sufficiency challenge). In any event, even if evidence of Barrett’s foreknowledge of the gun in the felony murder robbery were insufficient to d emonstrate aiding and abetting, it was sufficient to show that firearms use was reasonably foreseeable to Barrett to establish culpability under Pinkerton

. See United States v. Masotto , 73 F.3d at 1239 ( holding that “[u]nder the Pinkerton theory of liability, a conspirator can be held responsible for the substantive crimes committed by his co

- conspirators to the extent those offenses were reasonably foreseeable consequences of acts furthering the unlawful agreement” (internal quotation

mar ks omitted)). After all, when Barrett brandished a firearm in the October 29, 2011 Salahi robbery, Dore had done likewise. Barrett’s challenge to the district court’s § 924(c) instructions

— that the jury could convict Barrett even if he did not “use[]” or “carr[y]” a firearm, see 18 U.S.C. § 924(c )

— fails for the same reason, s ee generally Hedgpeth v. Pulido , 555 U.S. 57, 61 (2008) (applying harmless error standard where jury returned guilty verdict after being instructed on alternative theories of guilt, o ne of which was erroneous). 5

. Conclusion We have considered Barrett’s remaining counseled and pro se arguments , and we conclude that they are without merit. Accordingly, the judgment of the district court is
AFFIRMED.
FOR THE COURT: C atherine O ’ H agan W olfe , Clerk of Court