1 9

- 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 NO TATION A SUMMARY 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 Courth ouse, 40 Foley Square, in the City of New York, on the 30 th day of April , two thousand twenty

. PRESENT: GUIDO CALABRESI , R ICHARD C. WESLEY, RICHARD J. SULLIVAN , Circuit Judges

.

------------------------------------------------------------------ UNITED STATES OF AMERICA , A ppellee ,

v. No. 1 9

- 189

- cr J UNIOR GRIFFIN , Defendant

- Appell ant ,

MARC BENVENUTTI, VER DELL PICKNEY, AKA VERDELL DAVIS, A KA V

- 12, PAUL GIST, AKA PEEWEE, AKA SWEE T PEA, ROBERT GIST,2 AKA G

- BABY, CICERO W ILLIAMS, AKA TUBES, JOSEPH ENCARNACION, AKA CABEZA, KELVIN POLANCO, AKA PSYCHO, AKA FRESH, JABARI ADAMS, AKA FL EA, AKA B ARI, BRANDON SMITH, AKA SKILLZ, J OSEPH RIVERA, AKA JO JO, CYNTHIA WOODS, AKA B ROOKLYN, KEITH NESBITT, AKA BALDY, GREGORY HERNANDEZ, AKA KANE, EDUARDO RO SA, AKA LIL BRO ED, LUIS CABAN, AKA JAY, DANIEL RENVIL, AMAN DA LOPEZ, MADELINE OLIV ARES, LANCE WRIGHT, KE NNETH LACEN, AKA MON TANA, JONATHAN PEREZ, MALIK ABDUL, Defendants

.

------------------------------------------------------------------
FOR APPELLANT : J AMES E. N EUMAN , Law Office of James E. Neuman, New York, NY.

FOR APPELLEE : D ANIELLE R. S ASSOON , 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.3 Appeal from a judgment of the United States District Court for the

Southern District of New York ( Gregory H. Woods , J udge ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the d istrict c ourt is

AFFIRMED

. Junior Griffin appeal s from a judgment of the d istrict c ourt ( 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

distri buti on or possessi on 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 Proced ure 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

.4 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.” U nited

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 su bstantive sale, the y 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 under5 Rule 14 is reviewed for abuse of discretion

. ” U nited 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

sub stantive 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 Evide nc e 40 4( 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 n a rcotic s 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 , ” e v idence of other crimes or acts “ is admissible6 for any purpose other than to show a defendant’s criminal propensity” (internal quotation marks omitted) )

. Given the likelihoo d 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 R ecordings 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 i n 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 c ourt’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 the7 district court’s evidenti ary ruling for abuse of discretion subject to harmless error analysis. United States v. Dhinsa , 243 F.3d 635, 649 (2d Cir. 2001)

.

“ T o be admissible pursuant to the residual exception, the evidence must fulfill five requirements: trustworthiness, mater iality, 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 80 7 ’s requirements were not met , including but not limited to its findings that Griffin failed to satisfy the notice an d 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 fai led 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 the8 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 AFFIR MED

. FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court