1 16-163-cr United States v. Chambers 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 CI TING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 1 st day of March, two thousand seventeen. PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges

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---------------------------- ---------------------------- --------------- UNITED STATES OF AMERICA, Appellee , v. No. 16-163-cr ANTOINE CHAMBERS, AKA “Sealed Defendant 1,” AKA “Twizzie,” Defendant-Appellant , STEVEN GLISSON, AKA “D,” AKA “Sealed Defendant 1,” TYRONE BROWN, Defendants

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---------------------------- ---------------------------- --------------- APPEARING FOR APPELLANT: JOSHUA L. DRATEL (Whitney G. Schlimbach, Of Counsel, on the brief ), Joshua L. Dratel, P.C., New York, New York.

* The Clerk of Court is directed to amend the caption as set forth above.2 APPEARING FOR APPELLEE: NEGAR TE KEEI, Assistant United States Attorney (Amy Lest er, Michael Ferrara, Assistant United States Attorneys, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. Appeal from a judgment of the United Stat es District Court for the Southern District of New York (Lorna G. Schofield, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entere d on December 21, 2015, is AFFIRMED. Defendant Antoine Chambers stands convicted after a jury trial of conspiratorial and substantive Hobbs Act robbery, see 18 U.S.C. § 1951, and kidnapping, see 18 U.S.C. § 1201, for which crimes he is serving a 20- year term of incarceration. On appeal, Chambers challenges, both individually and cumulatively: (1) the sufficiency of the evidence supporting his conviction; (2) the admission of id entification testimony at trial; (3) the government’s failure to make disclosures required by Brady v. Maryland , 373 U.S. 83 (1963); (4) the admission of ce ll-site location evid ence; and (5) the constitutionality of the federal kidnapping statut e. We assume the parties’ familiarity with the facts and record of prior proceeding s, which we reference only as necessary to explain our decision to affirm. 1. Sufficiency of the Evidence Although we review a sufficiency challenge de novo , Chambers bears “a very heavy burden,” United States v. Abu-Jihaad , 630 F.3d 102, 135 (2 d Cir. 2010) (internal quotation marks omitted), because we must view the evidence as a whole and in the light3 most favorable to the jury’s verd ict, and we must affirm if “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. Virginia , 443 U.S. 307, 3 19 (1979) (emphasis in original); accord United States v. Binday , 804 F.3d 558, 572 (2d Cir. 2015). In doi ng so, we recognize that a jury may base its verdict on “inferences drawn from circumstantial evidence,” United States v. Persico , 645 F.3d 85, 104 (2d Cir. 2011) (internal quotation marks omitted), and that we must defer to its assessment of witness credibility and its resolution of conflicting testimony, see United States v. Tr iumph Capital Grp., Inc. , 544 F.3d 149, 159 (2d Cir. 2008). Chambers argues that no rational factfi nder could have found him guilty beyond a reasonable doubt of the charged crimes after, at trial, (a) robbery and kidnapping victim Emma Torruella recanted on redirect examination her id entification of Chambers on direct examination; and (b) the district cour t struck pre-trial and trial identifications by Torruella’s daughter, Demi Torres. We conclude otherwise. When we view the reco rd in the light most favorable to the jury’s verdict, we must assume that the jury found Torruella’s trial identifi cation of defendant (and her unrecanted pre-trial identification) credible and rejected her subsequent recantation. The jury was uniquely situated to assess Torruella’s credibility in light of her highly emotional state—which is evid ent even on the co ld record—and to credit parts of her testimony while rejecting others. See United States v. Mergen , 764 F.3d 199, 204 (2d Cir. 2014) (deferring to jury assessment of witness credibility); United States v. Sabhnani , 599 F.3d 215, 23 5 (2d Cir. 2010) (stating that ju ry can assess credibility based on witness demeanor); United States v. Messina , 806 F.3d 55, 64 (2 d Cir. 2015) (stating4 that factfinder can accept some portions of witness’s testimony a nd reject others); see also Webb v. United States , 789 F.3d 647, 660 (6th Cir. 20 15) (stating that, when witness makes contradictory statements, including recantations, factfinder can determine “whether one statement is more truthful than the other”). In any event, Torruella’s identification was not the only evidence supporting the jury’s verdict. Considerable circumstantial evidence also de monstrated Chambers’s guilt. For example, shortly before the charged cr imes were initiated at the home of coconspirator Tyrone Brown, Brown was in frequent cellphone communication with a number entered in his cellphone as belonging to “Twizie.” Cell-site records located the Twizie phone in the vicinity of Brown’s home at this tim e. Chambers’s identity as “Twizzie” was established through the testim ony of a schoolmate wh o knew him by that nickname, and by Chambers himself, who ad mitted to police that he had used another phone number, also listed unde r “Twizie” in Brown’s cell phone contacts, to place an unrelated earlier call. Cellphone records showed that, shortly after police contacted Brown about the crimes at issue, Brown ca lled the Twizie cellphone, after which that cellphone’s sites changed from the Bro nx to New Jersey to Pennsylvania. Other evidence indicated that the partia l license plate number that Torruella recalled for the car in which sh e was kidnapped was registered to Chambers’s girlfriend. Moreover, some months later, when that car was impounded following a traffic stop, it was found to contain a hammer, which David Barea, Torruella’s drug-dealing boyfriend, testified he believed was used to beat him throughout the robbery and kidnapping.5 Finally, when Chambers was arre sted in New Jersey, driving a rental car not registered to him, he provided false identification. Viewing the evidence in the light most favor able to the guilty ve rdict, a reasonable juror could have found, as the district court observed, “that [Chambers] is Twizzie; that he (and not merely his phone) went to Brow n’s apartment the night of the robbery; that the robbers used the dark-c olored, four-door sedan that belonged to [Chambers’s] girlfriend, with license plate number ending in 7788, precisely the numbers provided by one of the victims; that [Chambers] beat Ba rea with the hammer found in his girlfriend’s car; that Brown informed [Chambers] of the police investigation the day after the robbery causing him to flee New York for Pennsylvani a; and that [Chambers’s] arrest in New Jersey near the Pennsylvania border two months later and his false st atements post-arrest constituted evidence of fli ght and consciousness of guilt.” J.A. 1024. In sum, because a reasonable jury coul d have found from th e totality of this evidence that Chambers was guilty of the char ged crimes, his sufficiency challenge fails on the merits. 2. Eyewitness Identifications Chambers argues that the district court erred in admitting Torr uella’s and Torres’s pre-trial and trial identifications without holding a hearing as to their reliability. Due process precludes the admission of identification evidence prompted by suggestive government procedures giving rise to “a very substantial likelihood of irreparable misidentification.” Perry v. New Hampshire , 565 U.S. 228, 232 (2012) (internal quotation marks omitted). “Short of that point,” however, identification6 testimony is “for the jury to weigh,” even if marked by “some element of untrustworthiness.” Manson v. Brathwaite , 432 U.S. 98, 116 (1977). Indeed, identification evidence following unduly sugges tive procedures may still be admitted if the district court determines that the id entification was indepe ndently reliable, an assessment informed by five factors: (1) the witness’s oppo rtunity to view the perpetrator at the time of the cr ime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the perp etrator, (4) the level of witness certainty at the time of identification, and (5) the time betw een the crime and the confrontation producing identification. See id. at 114 (citing Neil v. Biggers , 409 U.S. 188, 199–200 (1972)). Whether a pre-trial hearing is necessary to assess the reliability of witness identification is a matter committ ed to the sound discretion of the district court, which we will not upset except for abuse. See United States v. Finley , 245 F.3d 199, 203 (2d Cir. 2001). We review the district court’s fact ual findings relating to identification evidence only for clear error. See id. With the benefit of hindsight, it appears that the district court would have been well advised to conduct a pre-trial hearing in this case. Nevertheless, when we consider the facts known to the district court at the time it made its decision, we identify neither abuse of discreti on nor clear error here. a. Identification by Torres Insofar as Chambers challenges the district court’s admission of Torres’s identifications, and particularly its doing so without a pre-trial h earing, we need not decide whether there was e rror because it was rendered ha rmless in any event by the7 district court’s decision to strike all eviden ce of Torres’s identifications when her trial testimony revealed previously undisclose d potentially suggestive procedures. See Wray v. Johnson , 202 F.3d 515, 525 (2d Cir. 2000) (h olding that erroneous admission of unreliable identification testimony does not warrant relief from conviction if error is harmless). In doing so, the dist rict court specifically and repe atedly charged the jury that Torres’s identification testimony must be disreg arded in its deliberations. Neither party objected to the instruct ion nor maintained that it was inadequate. We presume that juries follow limiting instructions unle ss there is an overwhelming pr obability that the jury will be unable to do so, and the evidence is devastating to the defense. See, e.g. , United States v. Becker , 502 F.3d 122, 130–31 ( 2d Cir. 2007). These concerns are not evident here where defense counsel’s skillful cross-ex amination of Torres made clear why her identifications were unreliable in light of su ggestive procedures (thereby avoiding jury speculation as to the reason for the district court’s decision to strike); the district court carefully redacted Torres’s te stimony before responding to a jury request and reiterated its instruction to disregard the stricken identification ev idence; and other evidence, already discussed, convincingly linked Chambe rs to the crimes charged. b. Identification by Torruella Chambers also faults the district cour t for admitting Torruella ’s identifications without a reliability hearing b ecause (1) he was the only pers on depicted in both photo arrays shown to her, albeit in different pi ctures; and (2) Detective Deloren instructed Torruella, in looking at the second photo a rray from which she identified Chambers, to8 “forget about the teardrop” tattoo she remember ed on the robber’s face. Appellant’s Br. 56. As to the first argument, this court has ru led that inclusion of a suspect’s picture “in a second [photo] array after a witness ha[d ] failed to select anyone [including the suspect] from the first” does not “automa tically make the second array unduly suggestive.” United States v. Concepcion , 983 F.2d 369, 37 9 (2d Cir. 1992); accord McKinnon v. Superintendent , 422 F. App’x 69, 74–75 (2d Cir. 2011). This case is not to the contrary, particularly as tw o different pictures of Chambe rs were used and the arrays were not composed to highlight either. As to the second argument, Chambers fa ils to indicate how Detective Deloren’s comment rendered the identification procedure suggestive. The reco rd is ambiguous as to whether the challeng ed comment came before or after Torruella had made a tentative initial identification. If made after Torrue lla had picked out Chambers’s photo, the concern would be bolstering. If made before the picture selection, the comment, at most, may have encouraged an iden tification from the second photo array, but it would not have focused particular attention on Chambe rs. In either case , the comment did not create “a very substantial likelihood of irrepa rable misidentification” by a witness who had had ample opportunity to view Chambe rs after he removed his mask and whose attention was evident from her ability to recall a partial license plate number. Perry v. New Hampshire , 565 U.S. at 232 (internal quotation marks omitted); see Raheem v. Kelly , 257 F.3d 122, 134 (2d Cir. 2001) (observing that suggestiveness finding depends on “whether procedure was ‘so . . . conducive to irreparable mistaken identification that9 [defendant] was denied due process of law’” (quoting Stovall v. Denno , 388 U.S. 293, 301–02 (1967))). On this record, we conclude that the dist rict court did not ab use its discretion in first deciding that it could rule on the admissi bility of Torruella’s id entification evidence without a pre-trial evidentiary hearing. Nor can we identify error in the district court’s determination that the record weighed in favor of admitting Torruella’s identifications. The fact that Torruella, after making an identification on dir ect examination, recanted on redirect was a matter for the jury to weigh. Accordingly, Chambers’s challenges to identification testimony present no error warranting relief from judgment.
3. Brady Challenge A defendant arguing Brady error must show (1) the existence of exculpatory or impeachment evidence favorable to the defense, (2) the government’s suppression of such evidence, and (3 ) ensuing prejudice. See Strickler v. Greene , 527 U.S. 263, 281–82 (1999); accord United States v. Madori , 419 F.3d 159, 169 (2d Ci r. 2005). A defendant cannot carry his second-step bu rden where the prosecution di scloses the information at issue “in sufficient time to afford th e defense an opportunity for use.” Leka v. Portuondo , 257 F.3d 89, 103 (2d Cir. 2001). To carry th e third-step burden, a defendant must show that the eviden ce was material, i.e. , that “there is a reasonabl e probability that, had [it] been disclosed to the defense, the result of the proceeding would have been different,” which itself occurs where the failure to disc lose “undermines confidence in the outcome of the trial.” United States v. Spinelli , 551 F.3d 159, 164–65 (2d Cir. 2008) (quoting10 Kyles v. Whitley , 514 U.S. 419, 433–34 (1995)). To meet its Brady obligations, the prosecution is obligated to “‘learn of any favorable evidence known to the others acting on the government’s behalf in the case, includi ng the police,’” and is thus “presumed . . . to have knowledge of all information gathered in co nnection with [the] office’s investigation of the case.” United States v. Avellino , 136 F.3d 249, 255 (2d Cir. 1998) (quoting Kyles v. Whitley , 514 U.S. at 437). Applying these principles here, we identify no Brady concern as to interview notes revealing that, after Detective Deloren showed Torres a newspaper photograph of Chambers, she conducted a Google search of his name. Those notes were concededly provided to Chambers pursuant to 18 U.S.C. § 3500 and cannot be deemed “suppressed” because Chambers was able to move to excl ude Torres’s identification testimony prior to trial based on the notes. Indeed, defense couns el even referenced th e Google search in his opening statement. Chambers next points to a thumbnail-sized photograph of himself, also produced in the prosecution’s § 3500 disc losure. Chambers surmises th at this is one of the single photos shown to Torres on multiple occasi ons by Deloren, the revelation of which procedure at trial prompted the district cour t to strike Torres’s identification testimony. Assuming the truth of this su rmise, this evidence was cl early within the detective’s knowledge and, therefore, imputed to the prosecution. See United States v. Stewart , 433 F.3d 273, 298 (2d Cir. 2006). Nevertheless, any failure of pre-trial disc losure regarding use of the photo affords Chambers no relief from judgment because he cannot show prejudice in light of the11 action taken by the district c ourt. By striking Torres’s id entification evidence in its entirety and repeatedly instructin g the jury to disreg ard such evidence in its deliberations, the district court satisfactorily ensured th at the outcome of the proceeding was not affected by that evidence or by undisclosed procedures used in connection with those identifications. In these circumstances, the alleged Brady violation does not undermine confidence in the outcom e of the trial. In urging otherwise, Chambers argues that the prosecution here violated its “fundamental duty to ensure that testimony el icited from government witnesses is true.” Appellant’s Br. 74. We do not understand Cham bers to be charging the prosecution with knowingly proffering false or misleading testimony in this ca se. Rather, we understand him to be arguing prosecutorial negligence in failing to elic it from its witnesses prior to trial facts casting doubt on the reliability of Torres’s identifications. To be sure, the prosecution is obliged diligently to ascertain the ci rcumstances attending pre-trial identifications. But whether or not there was diligence here, the district court’s striking of Torres’s identifications and its instructi ons to disregard that evidence adequately safeguarded against prejudice. Accordingly, we reject Chambers’s Brady claim on the merits. 4. Cell-Site Location Information Challenge Chambers argues that cell-site locati on information for the Twizie cellphone, obtained pursuant to the Stor ed Communications Act (“SCA”), see 18 U.S.C. § 2703(c), should have been suppressed be cause the government’s author ization application failed to satisfy the statute’s “specific and articulable” facts standard, id. § 2703(d), and because12 the SCA, to the extent it aut horizes disclosure on less than probable cause, violates the Fourth Amendment. Both ar guments fail on the merits and, thus, we need not decide whether Chambers demonstrated a reasonable expectation of privacy in the Twizie cellphone, whether a suppression remedy is available under the SCA, or whether the third-party disclosure or go od-faith doctrines apply here. To secure a § 2703(c)(1) disclosure orde r, the government must offer “specific and articulable facts showing that there are reasona ble grounds to believe that the contents of a wire or electronic communica tion, or the records or ot her information sought, are relevant and material to an ongoing crimin al investigation.” 18 U.S.C. § 2703(d); see United States v. Bayless , 201 F.3d 116, 132–33 (2d Cir. 2 000) (recognizing that “specific and articulable” showing is lower than prob able cause standard required for search warrant). The government convincingly carr ied its specific-and-articulable-facts burden by stating that (1) it was then investigating Chambers’s possible in volvement in a Hobbs Act robbery occurring on March 25, 2013, in an apartment at 1338 Croes Avenue in the Bronx; (2) a consent search of another suspec t’s cellphone (identified at trial as Brown) revealed two phone numbers asso ciated with the name “Twizi e”; (3) “the only calls of duration made or received by” the suspect (Bro wn) on the night of the robbery were to one of the Twizie cellphones; (4) the other Tw izie phone had been used some time earlier to make a 911 call by a man who provided the name “Antoine” and who placed the call from 4782 Barnes Avenue in the Bronx; (5) the landlord of that Barnes Avenue address identified Antoine Chambers as the resident; and (6) a vehicle parked outside 4782 Barnes Avenue registered to Chambers’s girlfriend bore a li cense plate, six of the seven13 digits/letters of which matched those provid ed by one of the robbery victims as on the license plate of the car driven by the robbers. J.A. 59–65. These facts are sufficiently specific and articulable not only to demonstr ate that the sought information would be relevant and material to the ongoing investiga tion, but also to demo nstrate probable cause to think that the sought informati on would be evidence of a crime. See Illinois v. Gates , 462 U.S. 213, 231–32, 238–39 (1983); accord Zalaski v. City of Hartford , 723 F.3d 382, 389 (2d Cir. 2013) (recognizing that probable cause is flexible standard dealing in probabilities rather than certainties). 5. Kidnapping Statute Challenge a. Facial Challenge Chambers asserts that the federal ki dnapping statute, 18 U.S.C. § 1201, is unconstitutional on its face as exceeding Congress’s powe r to legislate under the Commerce Clause. See U.S. Const. art. I, § 8, cl. 3. In reviewing that challenge de novo , see United States v. Pettus , 303 F.3d 480, 483 ( 2d Cir. 2002), we are mindful that facial challenges to a legislative en actment are “the most difficu lt . . . to mount successfully” because the challenger “must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno , 481 U.S. 739, 745 (1987); accord New York State Rifle & Pistol Ass’n, Inc. v. Cuomo , 804 F.3d 242, 265 (2d Cir. 2015). That is not this case. The Supreme Court has recognized Cong ress’s authority under the Commerce Clause to regulate: (1) “the use of the ch annels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce,14 even though the threat may co me only from intrastate activ ities”; and (3) “those activities having a substantial relation to interstate commerce, i.e. , those activities that substantially affect interstate commerce.” United States v. Lopez , 514 U.S. 549, 558–59 (1995) (citation omitted). In invalidating the statute at issue in Lopez , the Supreme Court observed that it contained “no jurisdictional element which would ensure, through caseby-case inquiry, that the [a ctivity] in question affects interstate commerce.” Id. at 561. Chambers argues that the federal kidnapping st atute suffers from this same defect under the third Lopez category. The argument fails because the challenged law here is properly evaluated under the second, not third, category, i.e. , “instrumentalities of interstate commerce.” See United States v. Gil , 297 F.3d 93, 100 (2d Cir. 2000 ) (“A showing that a regulated activity substantially affects in terstate commerce (as require d for the third category) is not needed when Congress regul ates activity in the first tw o categories.”). The express language of § 1201 makes it a federal crime to use “the mail or any means, facility, or instrumentality of interstate or foreign co mmerce” in committing ki dnapping. 18 U.S.C. § 1201. In short, b ecause the use of an instrumentality of interstate commerce is an element that must be proved in every § 1201 case, Congress’s enactment of that statute did not exceed its Comme rce Clause authority. See United States v. Giordano , 442 F.3d 30, 38, 41 (2d Cir. 2006) (reje cting constitutional challenge to law prohibiting use of “the mail or any facility or means of interstate or foreign commerce” to entice a minor to engage in sexual activity, 18 U.S.C. § 2425, because statute was “clearly founded on the second type of Commerce Clause power categorized in Lopez, ” which allowed Congress15 “to regulate and protect the instrumentalities of intersta te commerce even though the threat may only come from intrastate activitie s” (internal quotation marks omitted)). Accordingly, Chambers’s facial challenge to § 1201 fails on the merits. b. As Applied Challenge Chambers argues that, even if § 1201 is not unconstitu tional on its face, the law was unconstitutionally applied in his case because the use of instrumentalities of interstate commerce, specifically, cellphones, was too attenuated from the kidnapping to fall within Congress’ s Commerce Clause authority. We are not persuaded. Evidence showed the conspi rators’ frequent use of cellphones throughout the robbery and kidnapping at i ssue. Brown used a cellphone to communicate with victim Barea shortly before the crimes, which took place when Barea arrived at Brown’s home. In the hour before th e crimes, Brown communicated a num ber of times with Chambers, using one of the Twizie phones. Even if we were to conclude that at the time of these cellphone uses, the plan was to commit only ro bbery, Barea testifie d that coconspirator Glisson made multiple phone calls during the ki dnapping. Thus, the jury could conclude that cellphone use was not “cas ual and incidental” to the kidnapping, but an important tool for the conspirators to coordinate th eir activities during the commission of that crime as well as the related robbery. United States v. Archer , 486 F.2d 670, 68 2 (2d Cir. 1973) (Friendly, J.) (internal quotation marks omitted). Accordingl y, we identify no unconstitutional application here of Congress’ s authority to regulat e instrumentalities of interstate commerce when used in other criminal activity. See generally United States v. Holston , 343 F.3d 83, 90–91 (2d Cir. 2003) (stating that “nexus to interstate commerce is16 determined by the class of activities regulated by the statute as a whol e, not by the simple act for which an individual defendant is co nvicted” (alterations and internal quotation marks omitted)). 6. Conclusion The errors argued by Cham bers were either harmless or not errors. Thus, considered individually or cumulatively, they afford no re lief from judgment. See In re Terrorist Bombings of U.S. Embassies in E. Africa , 552 F.3d 93, 147 (2d Cir. 2008) (observing that “cumulative erro r doctrine comes into play onl y where the total effect of the errors found casts su ch a serious doubt on the fairness of the tria l that the conviction[] must be reversed” (alterations and intern al quotation marks omitted)). We have considered Chambers’s remaining arguments a nd conclude that they are without merit. Accordingly, we AFFIRM the judgment of the distri ct court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court