660 Fed.Appx. 8 (2nd Cir. 2016), 11-2539-cr, United States v. Lee

Docket Nº:11-2539-cr, 11-2543-cr, 11-2543-cr, 11-2834-cr
Citation:660 Fed.Appx. 8
Party Name:UNITED STATES OF AMERICA, Appellee, v. HISAN LEE, also known as Ice, also known as Devontea Clark, DELROY LEE, also known as Specs, also known as DJ, LEVAR GAYLE, also known as Train, SELBOURNE WAITE, also known as Silky, Defendants-Appellants, HIBAH LEE, MARK GABRIEL, also known as Bubbles, BOBBY MOORE, JR., also known as Pops, ANDRE DAVIDSON,...
Attorney:FOR APPELLEE: MARGARET GARNETT, Assistant United States Attorney (Jessica Fender, Won Shin, David Zhou, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY. FOR HISAN LEE: B. Alan Seidler, Esq., New York, ...
Judge Panel:PRESENT: JOSÉ A. CABRANES, ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges.
Case Date:August 24, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 8

660 Fed.Appx. 8 (2nd Cir. 2016)

UNITED STATES OF AMERICA, Appellee,

v.

HISAN LEE, also known as Ice, also known as Devontea Clark, DELROY LEE, also known as Specs, also known as DJ, LEVAR GAYLE, also known as Train, SELBOURNE WAITE, also known as Silky, Defendants-Appellants, HIBAH LEE, MARK GABRIEL, also known as Bubbles, BOBBY MOORE, JR., also known as Pops, ANDRE DAVIDSON, also known as O Dog, BOBBY SAUNDERS, also known as Bobby Moore, CARMEN MOORE, also known as Munchie, TYRONE MOORE, also known as Puss, ROBERT MORRISON, also known as Chips, DAKWAN EDWARDS, also known as Doc, MARQUISH JONES, also known as Lunchbox, MARK HART, also known as Movements, RAHEEM TUCKER, also known as Ras, DEMETRI YOUNG, also known as Walter Malone, CHRISTOPHER DIAZ, also known as X Box, ANTHONY MICHAEL DIAZ, also known as Little X, PAUL LOVE, AARON BIRCH, also known as A, KEVIN BECKFORD, also known as Carl Beckford, JERMELL FALZONE, also known as Mel, Defendants.[*]

Nos. 11-2539-cr, 11-2543-cr, 11-2543-cr, 11-2834-cr

United States Court of Appeals, Second Circuit

August 24, 2016

Editorial Note:

This case was not selected for publication in the Federal Reporter and Not to be Cited as Precedent. (See Federal Rule of Appellate Procedure Rule 32.1)

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 DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

Appeal from the United States District Court for the Southern District of New York (Barbara S. Jones, Judge).

FOR APPELLEE: MARGARET GARNETT, Assistant United States Attorney (Jessica Fender, Won Shin, David Zhou, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

FOR HISAN LEE: B. Alan Seidler, Esq., New York, NY.

FOR DELROY LEE: Winston Lee, Esq., New York, NY.

FOR LEVAR GAYLE: Ruth M. Liebesman, Esq., Paramus, NJ.

FOR SELBOURNE WAITE: Susan V. Tipograph, Esq., New York, NY.

PRESENT: JOSÉ A. CABRANES, ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges.

OPINION

SUMMARY ORDER

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and REMANDED for resentencing in part.

Hisan Lee, Delroy Lee, Selbourne Waite, and Levar Gayle appeal from judgments of conviction following a six-week jury trial. The indictment charged Hisan Lee, Delroy Lee, Waite, and Gayle, along with eighteen others, with participating in a racketeering enterprise known as the DeKalb Avenue Crew, as well as conspiring to distribute narcotics and to commit robberies, committing a number of specific robberies and murders, and using firearms in furtherance of those crimes. Gayle was charged only with robbery conspiracy, and with a single robbery, along with associated firearms and murder charges. The defendants were found guilty of all counts against them, except that Selbourne Waite was acquitted of the counts related to the murder of Bunny Campbell. Most of the issues raised on appeal are resolved in this order, and the rest in an accompanying opinion. We assume the parties' familiarity with the underlying facts and the procedural history of the case.

I. Delroy Lee's Suppression Motions

A. The Photo Identification

Delroy Lee argues that the district court erred in denying his motion to suppress a witness's photographic identification of him without an evidentiary hearing, claiming that the photo array must have been presented in a suggestive manner. We disagree.

To decide whether the introduction of an out-of-court identification at trial would deprive a defendant of due process, a district court first determines whether the police used an unnecessarily suggestive identification procedure; if a suggestive procedure was used, the court proceeds to " consider whether the improper identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible." Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 722, 181 L.Ed.2d 694 (2012). If the procedures were not unduly suggestive, the identification is generally admissible because " any question as to the reliability of the witness's identifications goes to the weight of the evidence, not its admissibility." United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990). We review the district court's factual determinations with respect to the admissibility of identification evidence for clear error. United States v. Douglas, 525 F.3d 225, 242 (2d Cir. 2008).

The challenged photo identification was made by the victim of a home-invasion robbery that occurred in January 2005. Shortly after the robbery, the witness viewed " a whole lot of photos" on a computer, Tr. 3293, and told the police that the robber " kind of look[ed] like" a person in a particular photograph. Tr. 3294, 3310-11, 3320. The identification was mistaken; the individual in the photograph was incarcerated on the day of the robbery. Five years later, however, in February 2010, the witness identified Delroy Lee from a photo array containing six photographs as " the guy with the gun," the robber who was addressed by his fellow robbers as " D." Tr. 3297. Evidence of that identification was admitted at trial, and Delroy Lee's attorney cross-examined the witness extensively regarding both the 2010 identification of Delroy Lee, and the earlier identification of someone else.

Delroy Lee argues that there must have been something suggestive about the way the photographic array was shown, because the victim saw the robber only for a short period of time, and identified him as the robber five years after the fact. But he points to no evidence, either submitted with his suppression motion or developed during the extensive cross-examination of the victim-witness, indicating anything suggestive about the manner in which the photo array was presented. Moreover, the district court's conclusion that the photo array itself was not suggestive was not clearly erroneous. See Maldonado-Rivera, 922 F.2d at 973 (stating that the relevant question for suggestiveness of a photo array is " whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to suggest to an identifying witness that that person was more likely to be the culprit." (alterations and internal quotation marks omitted)). In the six-person photo array, all of the men appear reasonably similar, and Delroy Lee's photograph does not stand out in any suggestive way. In the absence of any evidence that the photo array was suggestive, or that it was presented in a suggestive way, the district court did not err in denying the suppression motion. See

United States v. Leonardi, 623 F.2d 746, 755 (2d Cir. 1980).

We also reject Delroy Lee's contention that because he was in custody and available for an in-person lineup, a photo array should not have been used. We have long held that " a witness may testify to a prior out-of-court identification based on a photo array if that array was not tainted," and declined to " declare a per se rule requiring identification by lineup whenever a suspect is in custody." United States v. Anglin, 169 F.3d 154, 161 (2d Cir. 1999). This, and Delroy Lee's various other related arguments, go to the reliability of the identification, not its admissibility.

B. The Search at the Site of Bunny Campbell's Murder

Delroy Lee next argues that evidence seized without a warrant at the scene of the Bunny Campbell homicide should have been suppressed. The district court rejected that argument after an evidentiary hearing, holding that the initial warrantless search conducted by the New York Police Department's Emergency Services Unit (" ESU" ) was justified under both the exigent-circumstances and protective-sweep exceptions, and that the subsequent seizure of a gun, money, and drug paraphernalia was permissible as those items had been exposed to plain view by the prior, justified search.

" It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (internal quotation marks omitted). But a warrant is not required " where exigent circumstances demand that law enforcement agents act without delay," United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc), or where officers engage in a " protective sweep," during which officers making an arrest may, " as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). We have extended Buie beyond arrest situations, because " Buie 's logic . . . applies with equal force when officers are lawfully present in a home for purposes other than the in-home execution of an arrest warrant, at least where their presence may expose the officers to danger that is similar to, or greater than, that which they would face if they were carrying out an arrest warrant." United States v. Miller, 430 F.3d 93, 99 (2d Cir. 2005). Under the plain view exception, once law enforcement officers " are lawfully in a position from which they view an...

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