441 F.3d 119 (2nd Cir. 2006), 04-3299, United States v. Snype

Docket Nº:04-3299-cr(L), 04-3551-cr(CON), 04-4985-cr(CON).
Citation:441 F.3d 119
Party Name:UNITED STATES of America Appellee, v. Vernon SNYPE, Defendant-Appellant, Marisa Hicks, Defendant.
Case Date:March 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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441 F.3d 119 (2nd Cir. 2006)

UNITED STATES of America Appellee,


Vernon SNYPE, Defendant-Appellant,

Marisa Hicks, Defendant.

Nos. 04-3299-cr(L), 04-3551-cr(CON), 04-4985-cr(CON).

United States Court of Appeals, Second Circuit.

March 17, 2006

Argued: June 14, 2005.

Appeal from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge) convicting Vernon Snype after trial on one count of conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 371, 2113, and sentencing him, as a three-time serious violent felon, to life imprisonment pursuant to § 70001(2) of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1982-84, codified as amended at 18 U.S.C. § 3559(c). Affirmed.

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Kerry A. Lawrence (Theodore S. Green, on the brief), Briccetti, Calhoun & Lawrence, LLP, White Plains, New York, for Defendant-Appellant.

Joshua Klein, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), for David N. Kelley, United States Attorney for the Southern District of New York, New York, New York, for Appellee .

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Before: Cabranes and Raggi, Circuit Judges, and Sand, District Judge .1

Reena Raggi, Circuit Judge :

Defendant Vernon Snype appeals from a judgment of conviction entered on June 1, 2004, following a jury trial in the United States District Court for the Southern District of New York (Denny Chin, Judge), at which he was found guilty on one count of conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 371, 2113.2 Presently incarcerated, serving a term of life imprisonment, Snype challenges his conviction on the following grounds: (1) the receipt into evidence of a co-conspirator's plea allocution violated his Sixth Amendment right to confrontation as delineated in Crawford v. Washington, 541 U.S. 36 (2004); (2) the receipt into evidence of items seized during a warrantless search of the apartment where Snype was arrested violated the Fourth Amendment; (3) the receipt into evidence of Snype's marriage certificate violated due process because the jury inferred a prior felony conviction from the certificate's listing of Snype's home address as "Fishkill CF"; (4) the district court erred in failing to instruct the jury on an alternative unindicted charge of being an accessory after the fact to robbery, see 18 U.S.C. § 3; and (5) the imposition of a lifetime prison sentence pursuant to § 70001(2) of the Violent Crime Control and Law Enforcement Act of 1994 (commonly referred to as the "three-strikes" law), Pub. L. No. 103-322, 108 Stat. 1796, 1982-84, codified as amended at 18 U.S.C. § 3559(c), (a) was not supported by the record evidence, (b) violated his Sixth Amendment right to have findings of fact resulting in a higher maximum sentence made by a jury rather than the trial court, (c) was the result of an unconstitutional shifting of the burden of proof to the defendant, and (d) constituted cruel and unusual punishment in violation of the Eighth Amendment.

For the reasons discussed in this opinion, we conclude that the alleged errors are without merit or, in any event, harmless. Accordingly, we affirm the judgment of conviction.

I. Factual Background

A. The First Union Bank Robbery

Shortly after 10:00 a.m. on Saturday, July 6, 2002, two masked men entered the Tuckahoe Road branch o f First Union Bank in Yonkers, New York, and, at gunpoint, robbed the bank of approximately $20,000. Cornell McCloud, who participated in the robbery as a lookout and who would subsequently testify for the prosecution, identified the armed robbers as William Partlow and the defendant Vernon Snype.3 McCloud would also implicate Snype's wife, Marisa Hicks, and Hicks's cousin, Marlo White, as confederates in the robbery conspiracy.4

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Inside the bank, Snype and Partlow shouted at customers to get down on the floor and not to "move or else we'll shoot you." Trial Tr. 36. One of the robbers then vaulted the counter and, pointing his gun in turn at each teller, demanded that money be placed into a bag. The robber instructed one teller, who had the money at his station in a box bearing his name and address, to place the entire box in the robbers' bag.

B. The Robbers' Shootout with the Police

While the robbery was in effect, McCloud saw a police truck, which was in fact responding to a radio alert about the crime, approach the bank. As previously agreed among the confederates, McCloud promptly communicated his observation to Hicks, using a telephone programmed as a walkie-talkie.5 Moments later, McCloud saw Snype and Partlow run out of the bank, climb into the same blue SUV in which the pair had arrived, and speed away.6 The police truck and other police vehicles gave chase as the SUV entered onto the New York State Thruway, traveling at speeds in excess of 85 miles per hour. As police unsuccessfully attempted to force the SUV to the side of the road, shots were fired from that vehicle at the officers. Eventually, the SUV crashed, and the robbers fled on foot in opposite directions. The police cornered Partlow in some bushes and demanded his surrender. As Partlow stood up, he defiantly announced that he intended to "take one of you guys wit h m e," prompting the police to shoot and kill him. Trial Tr. 279.

C. Snype Reunites with the Remaining Conspirators

After Snype fled the crash scene, he contacted McCloud on the walkie-talkie and arranged to meet him at a location in the Bronx. There, Snype recounted to McCloud, Hicks, and White the events of the chase and shootout. At Snype's direction, McCloud and White drove to the crash site to look for Partlow, but upon seeing only police officers at the scene, they returned to the Bronx meeting place. From there, the four confederates drove to Tuckahoe Road, where Snype retrieved his keys and wallet from a car belonging to Partlow.

The following day, July 7, 2002, McCloud was arrested in possession of the walkie-talkie used in the robbery. Also on July 7, Hicks and White traveled to a storage facility in New Jersey, where Hicks leased storage bin number 466 with access code 7074.

D. Snype's Arrest and the Seizure of Incriminating Evidence

Soon after McCloud's arrest, agents of the Federal Bureau of Investigation ("FBI") obtained an arrest warrant for Snype on charges of armed bank robbery. At approximately 10:15 p.m. on July 11, 2002, federal and local law enforcement officers forcibly entered a Queens apartment belonging to Jennifer Bean and there arrested Snype. On the floor of the bedroom

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where Snype was found, arresting officers saw, among other things, a knapsack, a red plastic bag, and the box taken from one of the First Union Bank tellers during the robbery. The box was open and, inside, bundles of cash were plainly visible.

After removing Snype from the apartment, officers sought Bean's consent to search her residence. At a suppression hearing, Bean testified that, despite the initial forcible entry into her home, she voluntarily gave both an oral and written consent to search, although she knew she was not required to do so. She explained that she had never met Snype, whom she knew only as "Vee," before July 11, 2002, when her boyfriend asked if Snype could spend the night at her apartment.

Acting on Bean's consent, officers seized the teller's box that they had first observed at the time of Snype's arrest, finding it to contain $7,761 in cash wrapped in money bands with markings identifying both the Tuckahoe Road branch of First Union Bank and the specific tellers from whom the money had been taken. From the previously observed knapsack, they seized another $13,000, also in bundles with First Union money bands; two loaded firearms; and various documents, including legitimate and fraudulent identifications as well as a business card for a New Jersey storage facility with the number "466" written on both sides of the card. From the red plastic bag on the bedroom floor, agents seized, among other things, a lease for storage bin number 466, access code number 7074, at the New Jersey facility.

II. Discussion

A. The Admission of Marlo White's Plea Allocution to Prove the Charged Conspiracy Was Harmless Error

To prove the charged robbery conspiracy, the government offered, among other evidence, the redacted plea allocution of Marlo White as a statement against penal interest. See Fed. R. Evid. 804(b)(3).7

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Snype, who unsuccessfully objected to this evidence, contends that the admission of White's allocution violated his Sixth Amendment right to confrontation. See U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36. We agree but conclude that no new trial is warranted because the error was harmless.

1. The Crawford Error

Preliminarily, we observe that, at the time of Snype's trial, the law in this circuit permitted an un available co-conspirator's plea allocution to be offered to prove the existence of a conspiracy and conduct in furtherance thereof on the rationale that the circumstances of an allocution rendered the statement sufficiently reliable. See United States v. Dolah, 245 F.3d 98, 104-05 (2d Cir. 2001); United States v. Moskowitz, 215 F.3d 265, 269 (2d Cir. 2000) (per curiam). Consistent with this precedent, the district court carefully instructed the jury that it could consider White's allocution only on two issues: "whether there was a conspiracy to commit bank robbery and what, if anything, Ms. White did to further the objects of that conspiracy, assuming you find that...

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