14-3872-cr United States v. Hill 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Co urthouse, 40 Foley Square, in the City of New York, on the 3 rd day of August, two thousand sixteen.
Present: D ENNIS J ACOBS D EBRA A NN L IVINGSTON , C HRISTOPHER F. D RONEY , Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 14-3872-cr
E LVIN H ILL , A / K / A E LTON , Defendant-Appellant

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_____________________________________ For Appellee: D ANIEL S. S ILVER , Amy Busa, Seth D. DuCharme, Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York. For Defendant-Appellant: Y UANCHUNG L EE , Federal Defenders of New York, New York, N.Y.2 UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of conviction is AFFIRMED

. Defendant-Appellant Elvin Hill appeals from his judgment of conviction in the United States District Court for the Easter n District of New York (Matsumoto, J. ), entered on October 3, 2014. This appeal stems from the murder of Fredy Cuenca on June 29, 1997. Hill was convicted pursuant to 18 U.S.C. § 924(j)(1) for mu rder in the course of a crime of violence under 18 U.S.C. § 924(c), in this case, Hobbs Act robbery, 18 U.S.C. § 1951. Hill challenges the district court’s decision to preclude an out-of-court witness statement offered for its truth. He also challenges ruli ngs concerning alleged pr opensity evidence, the admissibility of his own statements during reco rded prison phone calls, and testimony regarding a lineup identification of Hill as the assailant. We assume familiarity with the facts, procedural history, and the issues on appeal , which we describe only as n ecessary to explain our decision. 1
I. Preclusion of Franklyn Abreu’s Statement Hill challenges the district court’s decisi on to preclude a statement by Franklyn Abreu, a ten- or eleven-year-old ch ild who witnessed the crime. 2 On July 1, 1997, two days after the murder, Abreu was interviewed by law enforcem ent. A report prepared two days after the interview represents that Abreu told law enforcement officials that the robber sitting directly behind the cab driver pointed a gun at the driver’s head; after hearing a s hot, Abreu saw the same man exiting the vehicle from the rear driver’s side and carrying a gun. 3 When interviewed by

1 In a concurrently published opinion, we consider one of Hill’s claims on appeal – whether Hobbs Act robbery qualifies as a “crime of violence” under 18 U.S.C. § 924(c)(3) – and we conclude that it does.
2 The record inconsistently refers to Abreu as ten or eleven years old.
3 The report states: This witness, the 11 year old son of Tanya Givens, is outside his home on his bicycle when he sees a male black with a dew rag [sic] on his head point a gun at cab driver who3 the police again in March 2012, Abreu stated that he could remember little about the incident. He ultimately did not testify at trial. 4 Hill understood Abreu’s statement to be relevant because Rhan Powell, the Government’s cooperating witness, testified that the pers on who sat in the rear passenger’s side (Hill) shot Cuenca, and the person who sat in the rear driver’s side (Powell) did not. Other witnesses also testified that of th e two men who exited the vehicle, only one carried a gun, and it was the person who exited from the rear passenger’s side seat. In two separate opinions, the district court denied Hill’s motion to admit Abreu’s statement, as represented in the police report, under Rule 807’s residual hearsay exception. 5 The court reasoned that “[a]lthough there [was] no indication that Abreu was motivated by bias or an improper motive, the record [was] also be reft of any evidence that corroborate[d] Abreu’s account of what transpired in the cab or establish[ed] that it [was] reliable hearsay.” Special App’x 12. Instead, Abreu’s account was that of a child witnessing a crime, and it was “not only uncorroborated,” but also in fact “ contradicted by the contemporaneous accounts provided by two other eyewitnesses.” Id. With those considerations in mi nd, the district court concluded that Abreu’s statement was not a “particularly tr ustworthy” statement and that Hill had failed to establish its admissibility pursuant to the residual exception. See id. at 11.

has his cab parked across the street. The w itness hears a sound like a fire cracker, then sees the front driver’s side window shatter. The black male with the dew rag gets out of the driver’s side rear passenger seat. Another black male jumps out of the opposite side of the cab. This second black male has waves in his hair and is holding a gun. The black male with a dew rag on his head is al so holding a gun and a paper bag. Both individuals run towards the school. Joint App’x 136.
4 Hill explains that “[d]espite their best efforts, defense lawyers and investigators were unable to find Abreu. There is no dispute that the defense made subs tantial good-faith efforts to find Abreu, or that he was ‘unavailable’ for trial.” Hill Br. 20.
5 The district court’s second opinion denied Hill’s motion for reconsideration on the issue.4 We review a district court’s evidentiary rulings for abus e of discretion. To that end, we will reverse a district court’s evidentiary determ ination only if the court “acted arbitrarily or irrationally.” United States v. Jackson , 335 F.3d 170, 176 (2d Cir. 2003) (quoting United States v. SKW Metals & Alloys, Inc. , 195 F.3d 83, 88 (2d Cir. 1999)). The residual hearsay exception provides that “a hearsay statemen t is not excluded by the rule against hearsay even if the statement is not specifically covered by a hear say exception in Rule 803 or 804” under certain conditions. Fed. R. Evid. 807(a). Those cond itions arise when “(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for whic h it is offered than any other evidence that the proponent can obtain through reasonab le efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.” Id. A hearsay statement admitted under the residual exception, then, must satisfy all of these requirements, and we have explained that it must be “particularly trustworthy.” United States v. Morgan , 385 F.3d 196, 208 (2d Cir. 2004) (quoting United States v. Bryce , 208 F.3d 346, 350-51 (2d Cir. 1999)). The district court did not a buse its discretion in precludi ng Abreu’s statement under the residual hearsay rule because, inter alia , the statement did not m eet the trustworthiness requirement. The statement is recorded in a report prepared by law enforcement as an after-the-fact summary of Abreu’s interview, and the exact circumstances by which the report was prepared are unclear. The statement itself, ma de late at night and two days after the crime, is a child’s recollection of a traumatic event. In considering whether hearsay evidence is admissible under Rule 807, we have explained that district courts “should view the evidence in
context.” Schering Corp. v. Pfizer Inc. , 189 F.3d 218, 236 (2d Cir. 1999) (Sotomayor, J.); see also United States v. Bortnovsky , 879 F.2d 30, 35 (2d Cir. 1989) . We discern no abuse of5 discretion in the district court’s evaluation of that context here , nor in its conclusion that Abreu’s statement was not sufficiently trustworthy to be admitted pursuant to the residual exception. Hill argues that the district court’s preclusion of Abreu’s statement violated his due process right to present a defense. Other evidence in the record, however, supported Hill’s theory that Powell was the shooter. The district court di d not exceed its discretion in concluding that Abreu’s statement was not admissibl e pursuant to the residual exception.
II. Other Rulings Alleged propensity evidence . Hill also argues that three witnesses each made statements at trial suggesting his propensity for violence and that their statements were prejudicial. The challenged statements include: (1) testimony by one witness that he and others used “gun man” as Hill’s nickname, Joint App’x 668; (2) testimony by another witness that he felt “jittery” when meeting Hill, id. at 766-67, and that Hill gave him “the creeps,” id. at 770; and (3) testimony by a third witness—Powell—that on the day of the murder, “[w]e talked about, you know, other individuals in the neighborhood. I believe he had an altercation—,” id. at 285-86. Propensity evidence is not admissible to prove that on a particular occasion a defendant acted in accordance with a character trai t. Fed. R. Evid. 404(a). But none of these statements rise to the level of improper propensity evidence. As to the potential for prejudice of the brief comments about being “ jittery” around Hill, getting “the creeps” about Hill, and Hill possibly having an altercation on the day of the crim e, we conclude that, even if the statements did constitute improper propensity evidence, Hill has fallen far short of establishing prejudice from these fleeting remarks sufficient to warrant a reversal. As to the testimony that Hill was known by the nickname “gun man,” we have noted that if a “nickname [is] strongly ‘suggestive of a cr iminal disposition,’ and a propensity to commit6 particularly heinous crimes, including the very offe nses charged in the indictment,” then such a nickname might viol ate Rule 404(a). United States v. Farmer , 583 F.3d 131, 146 (2d Cir. 2009) (quoting United States v. Dean , 59 F.3d 1479, 1492 (5th Cir. 199 5)). But we have also explained that the “main problem” with the use of a potentially prejudicial nickname arises from “prosecutors’ frequently repeated, gratuitous invocation of [the] nic kname in . . . address[ing] . . . the jury, uttered in a context that , in effect, invite[s] the jurors to infer that the defendant . . . earned his nickname among his . . . colleagues as a result of his proclivity to commit” the charged crime. Id. at 146-47. Even then, the “misuse a nd overuse of [a] nickname” does not “lead us to vacate a conviction unless the defendant suffered ‘substantial prejudice, by so infecting the trial with unfairness as to make the resulting conviction a denial of due process.’” Id. at 147 (quoting United States v. Shareef , 190 F.3d 71, 78 (2d Cir. 1999)). The concerns we articulated in Farmer are not present in this case. Here, the Government did not solicit or invoke the cha llenged nickname at all, much less use it gratuitously or repeatedly. Ra ther, a witness uttered Hill’s nickname once. Further, the district court immediately sought to mitigate an y potential prejudice. Ruling on Hill’s motion for a mistrial on this ground, the district court denied the motion, but stru ck the statement from the record and directed the Government to in struct the witness to refrain from using the nickname. It also agreed to defense counsel’s request that the Governme nt lead the witness so as to avoid the nickname’s use. The court also instructed the jury: “The jury should disregard [the statement], put it out of your mind.” Joint App’x 672; see Farmer , 583 F.3d at 147; cf. Kogut v. Cty. of Nassau , 789 F.3d 36, 48 (2d Cir. 2015) (“[I]t is ‘normal[ to] presume that a jury will follow an instruction to disregard inadmissibl e evidence inadvertently presented to it, unless there is an overwhelming proba bility that the jury will be unable to follow the court’s7 instructions.’” (second altera tion in original) (quoting Greer v. Miller , 483 U.S. 756, 766 n.8 (1987))). Based on the record here, we conclude that the district court took adequate measures to mitigate any concern that the single reference to Hill’s nickna me “gun man” might have been prejudicial. Statements in recorded prison phone calls. Next, Hill contends that the district court erred in granting the Government’s motion: (1) to introduce portions of two of Hill’s recorded phone calls from prison; and (2) to preclude the admission of other portions of those calls that contained Hill’s assertions of innocence. Specifically, the district court permitted the Government to play portions of two calls in wh ich Hill urged an associate to locate Powell and expressed hope that Powell w ould “stay free.” Joint App’ x 115, 118-28, 497-98. The district court precluded the admission of Hill’s remark: “I’m innocent.” Id. at 91, 120. In advancing his argument, Hill relies on the rule of completeness, which provides that “even though a statement may be hearsay, an ‘omitted portion of [t he] statement must be placed in evidence if necessary to explain the admitted portion, to place the admitted portion in context, to avoid misleading the jury, or to ensure fair and im partial understanding of the admitted portion.’” United States v. Johnson , 507 F.3d 793, 796 (2d Cir. 2007) (a lteration in orig inal) (quoting United States v. Castro , 813 F.2d 571, 575-76 (2d Cir. 1987)); see Fed. R. Evid. 106. We review a district court’s app lication of the rule of comple teness for abuse of discretion. United States v. Jackson , 180 F.3d 55, 73 (2d Cir. 1999). Here, the district court did not abuse its di scretion in admitting the portion of the call pertaining to Powell but excluding the statem ent proclaiming innocence. The rule of completeness does not require a dist rict court to admit “portions of a statement that are neither explanatory of nor relevant to the admitted passages.” Id. The remark “I am innocent” does8 not explain Hill’s statement about locating Powe ll. Nor does it contextualize the statement about Powell. We conclude that the district court was not oblig ated to admit it, and we cannot identify any abuse of discretion in the district co urt’s ruling. Lineup. Hill argues, finally, that the district court erred in admitting testimony by a detective that established that a witness had id entified Hill in a lineup two months after the murder. Hill contends that the lineup was impr operly suggestive. The district court held a hearing on this claim and determ ined, in a memorandum and orde r, that the record did not support Hill’s claim of suggestiveness. We re view a district court’ s decision to admit identification evidence for clear error. United States v. Salameh , 152 F.3d 88, 125 (2d Cir. 1998) (per curiam). The question is whether th e identification procedur e was “so unnecessarily suggestive and conducive to irreparable mistaken identification that [Hill] was denied due process of law.” United States v. Jakobetz , 955 F.2d 786, 803 (2d Cir. 1992) (quoting Stovall v.
Denno , 388 U.S. 293, 302 (1967)). An improperly “s uggestive” lineup is one in which the accused “so stood out from all of the other[s] . . . as to ‘suggest to an identifying witness that [that person] was more likely to be the culprit.’” United States v. Wong , 40 F.3d 1347, 1359-60 (2d Cir. 1994) (alterations in original) (quoting Jarrett v. Headley , 802 F.2d 34, 41 (2d Cir. 1986)). In this case, the district court did not e rr in finding that the procedures were not unnecessarily suggestive: all of the participants we re within five years of Hill’s age, only a few inches shorter or taller, and all had body we ights within the same fifty-pound range. In evaluating the facial likeness of the lineup particip ants, the district court did not clearly err in concluding upon a “review of the photographs and the description of the lineup subjects” that there were “no significant disparities in appear ance between . . . Hill and the other subjects.”9 Special App’x 92. Hill did not stand out from the other lineup participants such that the witness would be more likely to identify him as the culp rit. We conclude, then, that the district court did not clearly err in determ ining that Hill’s lineup was not improperly suggestive.
III. Conclusion We have considered Hill’s remaining argumen ts and find them to be without merit. Accordingly, for the reasons stated herein and in the opinion issued concurrently with this summary order, we AFFIRM the judgment of conviction.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk