U.S. v. Carr
| Decision Date | 14 September 2005 |
| Docket Number | Docket No. 04-0546-CR. |
| Citation | 424 F.3d 213 |
| Parties | UNITED STATES of America, Appellee, v. Sean CARR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Tina Schneider, Portland, ME, for Defendant-Appellant.
Helen V. Cantwell, Assistant United States Attorney for the Southern District of New York (David N. Kelley, United States Attorney, David J. Berardinelli, Harry Sandick, Assistant United States Attorneys, of counsel), New York, NY, for Appellee.
Before: FEINBERG, SACK, and KATZMANN, Circuit Judges.
The defendant-appellant, Sean Carr, appeals from a judgment of conviction following a jury trial in the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge). The jury found Carr guilty of (1) conducting the affairs of an enterprise through a pattern of racketeering activity, (2) engaging in a racketeering conspiracy, (3) engaging in a narcotics conspiracy, (4) using and carrying a firearm during and in relation to a drug trafficking crime, and (5) distributing and possessing with intent to distribute cocaine base. The district court sentenced Carr principally to life imprisonment. On appeal, Carr asserts that the district court's instructions to the jury were erroneous and that the government inappropriately vouched for the credibility of its witnesses and bolstered their testimony in its rebuttal summation. Carr also raises several challenges to his sentence.
We conclude that the district court's instructions to the jury regarding its "duty" to convict Carr upon a finding that the government had proved a charge beyond a reasonable doubt were not in error. As for the district court's instruction that the jury must be unanimous as to each racketeering act charged, we conclude that, whether or not erroneous, the instruction was not prejudicial to Carr. We further conclude that errors, if any, in the prosecution's statements in rebuttal summation do not warrant a new trial. With respect to Carr's sentencing challenge, in light of the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and this Court's decision in United States v. Crosby, 397 F.3d 103 (2d Cir.2005), we remand the case to the district court for consideration of resentencing.
According to the evidence presented by the government at trial, during the years 1993 to 2001, Carr was a member of a street gang called "Sex Money and Murder" (SMM), which operated in the Bronx: in particular, in areas around a public housing project called the Soundview Houses. Testifying at trial, Carr admitted that he had been a drug dealer nearly all his adult life, and had sold cocaine base (or "crack") "[a]ll over" the Soundview section of the Bronx. Trial Tr., Aug. 14, 2003, at 912.
On March 4, 2003, an indictment was filed in the United States District Court for the Southern District of New York charging Carr, in five counts,1 with (1) conducting the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. §§ 1961 and 1962(c), (2) engaging in a racketeering conspiracy in violation of 18 U.S.C. § 1962(d), (3) engaging in a narcotics conspiracy in violation of 21 U.S.C. § 846, (4) using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and (5) distributing and possessing with intent to distribute cocaine base in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C).
During the course of a three-week jury trial beginning on August 4, 2003, the government elicited testimony from various witnesses, and introduced into evidence an audiotape of an SMM gang meeting at which Carr was present and videotapes of Carr selling narcotics near the Soundview Houses. The government also presented physical evidence tending to establish Carr's involvement with SMM. The witnesses — including four former SMM members testifying pursuant to cooperation agreements — testified as to Carr's participation in crack sales and robberies, acts of intimidation, and other acts of violence.
As to one element of Count One, which charges that Carr engaged in "a pattern of racketeering activity," Carr was alleged to have engaged in three separate predicate acts.
The first of those charged predicate acts was the 1994 murder of one Tony Morton. On August 18, 1994, Morton was driving with a passenger near the Soundview Houses. Gang members became suspicious when Morton's car, with its tinted windows hiding the interior from their view, slowly drove past them. After the car had driven off, the SMM members retreated to apartments nearby to retrieve firearms to defend themselves. Upon returning to the place where they had originally encountered Morton, the SMM members spotted the car again. They approached it, opened its doors, and some of the SMM members dragged Morton's passenger out of the car at gunpoint while others pulled Morton out of the car. At trial, one SMM member, Brian Boyd, testified that while he was occupied with Morton's passenger, he saw Carr ride his bike up to Morton's car and shoot Morton. Another SMM member, Emilio Romero, testified similarly. Morton died of his wounds.
As the second predicate act alleged under the racketeering count, Carr was charged with the November 5, 1996 robbery of Valerie and Lewis Flythe. Valerie Flythe testified at trial that she and her husband were robbed at gunpoint by Carr and another member of the SMM gang in the Soundview Houses building in which they lived. Valerie Flythe had identified Carr in a police line-up. Carr subsequently pleaded guilty in state court to the crime, for which he received a two — to four-year sentence.
As the third predicate act alleged under the racketeering count, Carr was charged with engaging in a narcotics conspiracy. The government provided evidence, including videotapes of Carr selling cocaine base, tending to show that Carr had sold crack for many years.
Carr testified in his own defense. He admitted to selling narcotics, but denied being a member of the SMM gang, denied killing Tony Morton, and denied ever using a gun. He further testified that he had not robbed the Flythes. He said that he had pled guilty in state court only because he was told that if he went to trial he would receive a longer sentence. He also asserted that despite the contents of the audio recording of the SMM meeting, he was not a member of SMM; that indeed he had been the only non-member present at the meeting, but had been allowed to be present because "[t]hose are my friends."
After the presentation of the evidence, the district court instructed the jury. The instructions, which are central to Carr's appeal, are described separately in the "Discussion" section of this opinion.
On August 19, 2003, on the second day of deliberations, the jury returned a guilty verdict against Carr on all five counts. On Count One, the racketeering charge, the jury concluded that the government had proved beyond a reasonable doubt each of the three underlying racketeering acts for which Carr had been charged. On January 14, 2004, the district court sentenced Carr principally to life imprisonment.
Carr appeals from the judgment of the district court. He argues that: (1) the district court erred when it instructed the jury that it had a "duty" to convict Carr if it determined that the government had proved his guilt beyond a reasonable doubt; (2) the district court erred in instructing the jury that it had to reach unanimous agreement on each underlying racketeering act in order to conclude either that an act was "proved" or that it was "not proved"; (3) the government improperly both vouched for the credibility of its witnesses and bolstered their testimony in statements the Assistant United States Attorney prosecuting the case made during rebuttal summation; and (4) Carr's sentence was enhanced based on facts not proven beyond a reasonable doubt, in violation of the rule established in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
We review a district court's jury instructions de novo, United States v. Naiman, 211 F.3d 40, 50 (2d Cir.2000), "reversing only where appellant can show that, viewing the charge as a whole, there was a prejudicial error," United States v. Tropeano, 252 F.3d 653, 658 (2d Cir.2001). "An erroneous instruction, unless harmless, requires a new trial." Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994). An error is harmless if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
Carr argues first that the district court erred in instructing the jury that if it concluded that the government had proved guilt beyond a reasonable doubt, the jury would have a "duty" to convict Carr. Carr contends that the instruction was in error because, by suggesting to the jury that it could not acquit if it found the government had met its burden, the district court's instruction erroneously and impermissibly suggested that the jury could not engage in "jury nullification." See United States v. Thomas, 116 F.3d 606, 608 (2d Cir.1997) ().
Because Carr did not raise this objection at trial, we review the district court's instruction for "plain error." See Fed.R.Crim.P. 52(b).
The framework of the analysis for plain error pursuant to Rule 52(b) is the four-pronged test set forth in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Before an appellate court can correct an error not raised at trial, there must be...
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