19-189-cr

United States v. Griffin

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 ASUMMARY ORDER@). A PARTY CITING TO 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 30th day of April, two thousand twenty.

PRESENT: GUIDO CALABRESI,

RICHARD C. WESLEY,

RICHARD J. SULLIVAN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

 

v. No. 19-189-cr

JUNIOR GRIFFIN,

Defendant-Appellant,

MARC BENVENUTTI, VERDELL PICKNEY, 

AKA VERDELL DAVIS, AKA V-12, PAUL GIST, 

AKA PEEWEE, AKA SWEET PEA, ROBERT GIST,
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AKA G-BABY, CICERO WILLIAMS, AKA TUBES, 

JOSEPH ENCARNACION, AKA CABEZA, 

KELVIN POLANCO, AKA PSYCHO, AKA FRESH,

JABARI ADAMS, AKA FLEA, AKA BARI, BRANDON

SMITH, AKA SKILLZ, JOSEPH RIVERA, AKA JOJO, 

CYNTHIA WOODS, AKA BROOKLYN, KEITH 

NESBITT, AKA BALDY, GREGORY HERNANDEZ, 

AKA KANE, EDUARDO ROSA, AKA LIL BRO ED, 

LUIS CABAN, AKA JAY, DANIEL RENVIL, AMANDA 

LOPEZ, MADELINE OLIVARES, LANCE WRIGHT, 

KENNETH LACEN, AKA MONTANA, JONATHAN 

PEREZ, MALIK ABDUL,

Defendants.

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FOR APPELLANT: JAMES E. NEUMAN, Law Office 

of James E. Neuman, New 

York, NY. 

FOR APPELLEE: DANIELLE R. SASSOON, 

Assistant United States 

Attorney (Michael K. Krouse, 

Jacob Warren, Won S. Shin, 

Assistant United States 

Attorneys, on the brief), for

Geoffrey S. Berman, United 

States Attorney for the 

Southern District of New York, 

New York, NY.
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Appeal from a judgment of the United States District Court for the

Southern District of New York (Gregory H. Woods, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED. 

Junior Griffin appeals from a judgment of the district court (Woods, J.) 

following a jury trial in which Griffin was convicted of one count of conspiracy to 

distribute or possess with intent to distribute 280 grams or more of cocaine base 

and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846, and one count of

distribution or possession with intent to distribute a quantity of cocaine in 

violation of 21 U.S.C. § 841(b)(1)(C). On appeal, Griffin argues that the district 

court erred in denying his motion to sever Counts One and Two under Federal 

Rules of Criminal Procedure 8(a) and 14(a), and in excluding certain recorded 

communications under Federal Rule of Evidence 807’s residual hearsay exception. 

We assume the parties’ familiarity with the underlying facts and the record of 

prior proceedings, to which we refer only as necessary to explain our decision to 

affirm.
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1. Severance of Counts

“We review the District Court’s denial of a Rule 8(a) motion to sever counts 

de novo, and conduct a twofold inquiry: whether joinder of the counts was 

proper, and if not, whether misjoinder was prejudicial to the defendant.” United 

States v. Litwok, 678 F.3d 208, 216 (2d Cir. 2012) (internal quotation marks and 

citations omitted). As relevant here, joinder under Rule 8(a) is appropriate where 

counts “are of the same or similar character.” Fed. R. Crim. P. 8(a). “‘Similar’ 

charges include those that are ‘somewhat alike,’ or those ‘having a general 

likeness’ to each other.” United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008). 

We find no error in joining the two counts at issue here. Counts One and Two 

are clearly “somewhat alike,” as they both involved the sale and purchase of the 

same narcotic, in the same city, within the same approximately one-year period. 

Id. Although the counts involved sales to different individuals, and Count One 

charges a conspiracy while Count Two charges a single substantive sale, they share 

a “general likeness,” making joinder appropriate. Id. 

Notwithstanding proper joinder, a court may sever counts to prevent 

prejudice to a party pursuant to Rule 14. “The denial of a motion to sever under 
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Rule 14 is reviewed for abuse of discretion.” United States v. Sampson, 385 F.3d 

183, 190 (2d Cir. 2004). To succeed on appeal, Griffin must demonstrate that 

joinder caused “substantial prejudice in the form of a miscarriage of justice.” 

United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (internal quotation marks 

omitted). Griffin cannot show such prejudice. Notably, evidence of the 

substantive sale would likely have been admissible in a separate trial for Count 

One – and similarly, evidence of his participation in the narcotics conspiracy 

would likely have been admissible in a separate trial for Count Two – under

Federal Rule of Evidence 404(b) as evidence of intent, knowledge, or opportunity. 

See, e.g., United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (finding that where 

the government was required to prove that defendants “knowingly or 

intentionally conspired to distribute [a narcotic], or to possess it with intent to 

distribute,” “the intent or knowledge of [defendants] were clearly at issue, and 

evidence of their involvement in prior narcotics transactions was probative of their 

intent or knowledge in connection with the crime charged”); see also United States 

v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (noting that under the Second 

Circuit’s “inclusionary approach,” evidence of other crimes or acts “is admissible 
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for any purpose other than to show a defendant’s criminal propensity” (internal 

quotation marks omitted)). Given the likelihood of admissibility, the district 

court’s limiting instructions to the jury to consider the counts separately, and the 

fact that the court adjourned the trial by a week to enable Griffin to prepare for the 

added count, we cannot say that the district court abused its discretion in denying 

the Rule 14 motion. 

2. Exclusion of Recordings

At trial, the government introduced text messages and calls between Griffin 

and his co-conspirator, Jonathan Perez, to establish that Griffin supplied cocaine 

to Perez as part of the conspiracy charged in Count One. Griffin unsuccessfully 

sought to introduce additional call recordings and text messages between Perez 

and other suppliers in order to rebut the government’s position that Griffin had 

supplied Perez with cocaine on specific occasions. On appeal, Griffin challenges 

the district court’s exclusion of the evidence as inadmissible hearsay, arguing that 

the communications should have been admitted under Federal Rule of Evidence 

807, the so-called “residual” exception to the rule against hearsay. We review the 
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district court’s evidentiary ruling for abuse of discretion subject to harmless error 

analysis. United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001). 

“To be admissible pursuant to the residual exception, the evidence must 

fulfill five requirements: trustworthiness, materiality, probative importance, the 

interests of justice[,] and notice.” Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d 

Cir. 1991). “Congress intended that the residual hearsay exceptions will be used 

very rarely, and only in exceptional circumstances.” Id. (internal quotation 

marks omitted). We find no abuse of discretion in the district court’s 

determination that Rule 807’s requirements were not met, including but not 

limited to its findings that Griffin failed to satisfy the notice and probative 

importance requirements. Since Griffin first requested to introduce the evidence 

after the court impaneled the jury and after the government had prepared and 

provided its exhibits for trial, the district court reasonably found that Griffin failed 

to give sufficient notice to the government of his intent to admit the evidence. 

The court also had reason to conclude that Griffin lacked good cause for the delay, 

given the extended discovery period and additional time Griffin was afforded to 

prepare the case. Nor did the district court abuse its discretion in finding that the 
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evidence was not more probative on the point for which it was offered than other 

evidence the defense might have introduced. Because Griffin did not establish 

that all five requirements were met, the court permissibly excluded the evidence 

under Rule 807. 

We have considered Griffin’s remaining arguments and conclude that they 

are without merit. For the foregoing reasons, the judgment of the District Court 

is AFFIRMED. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court