U.S. v. Simmons

Citation560 F.3d 98
Decision Date17 March 2009
Docket NumberDocket No. 07-5127-cr.,Docket No. 07-5532-cr.
PartiesUNITED STATES of America, Appellee-Cross-Appellant, v. Hasan SIMMONS, also known as Kevin Simmons, also known as Hassan Simmons, Defendant-Appellant-Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John T. Zach, Assistant United States Attorney, (Katherine Polk Failla, Assistant United States Attorney, on the brief) for Lev Dassin, Acting United States Attorney for the Southern District of New York, New York, NY, for Appellee-Cross-Appellant.

Sabrina A. Houlton, (Joseph W. Martini, on the brief), Wiggin and Dana LLP, New Haven, CT, for Defendant-Appellant-Cross-Appellee.

Before: POOLER, SOTOMAYOR and KATZMANN, Circuit Judges.

POOLER, Circuit Judge:

Hasan Simmons appeals from a judgment of conviction, following a jury trial, for the crime of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and a sentence of 175-months' imprisonment, entered by the United States District Court for the Southern District of New York (Hellerstein, J.). Simmons appeals (1) the district court's denial of his motion to suppress evidence of his possession of two firearms; (2) the district court's decision to excuse a juror during the jury's deliberations, after which the remaining eleven jurors returned a verdict of guilty; and (3) the district court's sentence. We find that the police officers, responding to a radio dispatch based on an emergency 911 call that reported an assault in progress possibly involving a firearm, had reasonable suspicion to stop and to search Simmons. We therefore affirm the district court's denial of Simmons' motion to suppress the firearms. We also affirm the district court's decision to excuse a juror pursuant to Federal Rule of Criminal Procedure 23(b)(3). In light of our decision in United States v. Darden, 539 F.3d 116 (2d Cir.2008), we remand to the district court for resentencing.

BACKGROUND
I. Factual Background

The following facts are based on the evidentiary hearing held by the district court. On November 12, 2005, at approximately 4:25 a.m., New York Police Department ("NYPD") Officer Hugh McHugh and NYPD Detective Robert DiPaola, while on patrol in a squad car, received a radio dispatch informing them that an assault, possibly with a weapon, was in progress at a nearby apartment building. The dispatch was based on a 911 call from an anonymous caller. The dispatcher stated: "Receiving a 34 with a weapon at 1410 Prospect.... There is a possible gun involved, of a male black, wearing a grey hoody, black jacket." The officers understood a "34" as code referring to an assault in progress.

The officers arrived at 1410 Prospect Avenue approximately two minutes after receiving the dispatch. Officer McHugh testified that "1410 Prospect Avenue is located in a neighborhood that has a problem with drugs, shots fired, and ... a gang presence." When the officers arrived, they saw a group of people outside the apartment building, and asked whether "anyone was being beaten up," to which the group answered "no." McHugh "did not see anyone being assaulted" and "did not see evidence" that an assault had occurred. McHugh then approached the front entrance of the building, and looked through the window. McHugh saw three individuals inside the lobby, one of whom was Simmons. Simmons, a black male, was wearing a gray, hooded sweatshirt and a black jacket. There was no indication from the officers' initial observations that Simmons was "engaged in an assault in progress."

McHugh called to DiPaolo and the two officers entered the building. As the officers entered through the vestibule separating the lobby and the front entrance of the building, Simmons began walking toward them with his hands in his jacket pockets. McHugh ordered Simmons to "hold on a second" but Simmons continued walking. McHugh again ordered Simmons to "hold on a second," and Simmons stopped. McHugh then told Simmons to remove his hands from his pockets. Simmons did not remove his hands. McHugh asked a second time that Simmons remove his hands, and Simmons again did not comply. McHugh then "grabbed over to" Simmons' right side where he "felt the butt of a gun," and told DiPaola, "he's packing." The officers searched Simmons and recovered two loaded firearms, one from each of Simmons' jacket pockets. Simmons was arrested.

II. The District Court Proceedings

Simmons was charged as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Prior to the commencement of trial, Simmons filed a motion to suppress evidence of the firearms on the ground that the officers violated his Fourth Amendment rights. The district court denied the motion, finding that Simmons was "seized" for Fourth Amendment purposes at the time he complied with McHugh's second order to stop, and that the officers had reasonable suspicion that Simmons was engaged in criminal activity when he complied with the second order to stop. The court found reasonable suspicion "[o]n the basis of the anonymous tip reporting an assault in progress, the time of night, the number of people gathered in front of the building and in the lobby at 4:25 a.m., and [Simmons'] positioning of his hands inside his jacket pockets." The court also found that, "when [Simmons] refused to remove his hands from his pockets, the officer's action—grabbing [Simmons'] pockets—was reasonably related in scope to the circumstances that justified the interference in the first place."

Simmons' trial commenced on March 12, 2007. The jury began its deliberations at 12:55 p.m. on March 14, 2007. During its deliberations, on March 14 and 15, 2007, the jury twice requested that the court repeat the reasonable doubt instruction, and submitted a note to the court that said, "[w]e cannot come to a unanimous decision," to which the court instructed the jury to continue with its deliberations. The jury did not deliberate on Friday, March 16, 2007, and returned to deliberate on Monday, March 19, 2007. When the jury returned on March 19, Juror No. 6 was not present. The district court informed the parties "that Juror No. 6 ... has reported unable to come today because her child is ill." On the record, the district court asked the clerk, "Anything more that you know?" The clerk responded, "No. I spoke to her and I told her that I would call her back to let her know what we're going to do."

The district court then had a colloquy with the parties as to whether the juror should be excused for "just cause" pursuant to Federal Rule of Criminal Procedure 23(b)(3). Simmons' counsel objected to excusing the juror due to the lack of information regarding the juror's anticipated length of absence, and because the course of deliberations suggested that there was a "split jury." The government favored dismissal due to the "shortness of the case" and the "narrow issues" presented to the jury. The district court ultimately excused Juror No. 6 "because of the quality of the trial and because of the indivisible nature of justice." The court also explained its interest in avoiding inconvenience to the other jurors, including one juror who previously indicated that protracted jury service would cause her financial hardship.

The district court informed the jury that Juror No. 6 was excused and instructed the jury to continue with deliberations. About a half-hour later, the district court was informed that the jury had reached a verdict. Given the brief period of time between the dismissal of the juror and the jury reaching its verdict, Simmons' counsel requested that the court "hold the verdict and allow Juror No. 6 to return." The court denied the request, noting that when Juror No. 6 was excused, it was unknown whether "[Juror No. 6] had come to a view or had not come to a view, ... how she was then voting, if the jury was taking votes or likely to vote. We knew nothing." The jury was called into the courtroom, and returned a verdict of "guilty."

On November 9, 2007, the district court held a sentencing hearing. The district court ruled that the Armed Career Criminal Act, 18 U.S.C. § 924(e), did not apply to Simmons, and it therefore should have applied the ten-year statutory maximum pursuant to 18 U.S.C. § 924(a)(2). However, the district court sentenced Simmons to 175-months' imprisonment. In a letter dated November 14, 2007 and received by the district court on November 20, 2007, Simmons requested that the district court reduce his sentence since 175-months' imprisonment exceeded the ten-year statutory maximum provided in 18 U.S.C. § 924(a)(2). On December 11, 2007, the district court issued an order that recognized Simmons was sentenced above the ten-year statutory maximum "in error," but found that the seven-day period for reducing a sentence had elasped. See Fed.R.Crim.P. 35(a). The district court, therefore, instructed the parties to "bring [its] order [recognizing the error] to the attention of the Court of Appeals." The parties now agree that we must remand to the district court for resentencing if the conviction is affirmed.1

DISCUSSION
I. Standard of Review

The existence of reasonable suspicion to support a stop is a mixed question of law and fact that is reviewed de novo. United States v. Singh, 415 F.3d 288, 293 (2d Cir.2005). The district court's factual findings on a motion to suppress are reviewed for clear error. Id.

II. The Terry Stop of Simmons
A. Anonymous Tips and Ongoing Emergencies

Simmons argues that the NYPD officers lacked reasonable suspicion to stop him based on an uncorroborated, anonymous 911 call. In Terry v. Ohio, the Supreme Court held

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies...

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