United States v. Delva

• Decision Date: 01 June 2017
• Docket Number: Docket No. 15-683,August Term, 2015
• Citation: 858 F.3d 135
• Parties: UNITED STATES of America, Appellee, v. David DELVA, a/k/a Sealed Defendant 4, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

858 F.3d 135

UNITED STATES of America, Appellee,

v.David DELVA, a/k/a Sealed Defendant 4, Defendant-Appellant.

Docket No. 15-683

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: May 20, 2016

Decided: June 1, 2017

JUSTINA GERACI, Assistant United States Attorney, New York, New York (Preet Bharara, United States Attorney for the Southern District of New York, Margaret Garnett, Assistant United States Attorney, New York, New York, on the brief), for Appellee.

STEVEN Y. YUROWITZ, New York, New York, for Defendant-Appellant.

Before: KEARSE, WINTER, and JACOBS, Circuit Judges.

Judge Jacobs dissents in a separate opinion.

KEARSE, Circuit Judge:

Defendant David Delva appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before Katherine B. Forrest, Judge , convicting him of conspiracy to commit robbery, in violation of 18 U.S.C. § 1951 ; conspiracy to commit kidnapping, in violation of id . § 1201; conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846 ; possession of a firearm in furtherance of the drug trafficking offense, in violation of 18 U.S.C. § 924(c) ; and being a felon in possession of a firearm, in violation of id . § 922(g), and sentencing him principally to 360 months' imprisonment. On appeal, Delva contends principally that the district court erred in denying his motions for suppression of his cellphone and of letters addressed to his uncle, Gregory Accilien, seized by law enforcement agents without a search warrant, from the bedroom he shared with Accilien. The district court ruled that the seizure of those items did not violate the Fourth Amendment because they were in plain view and were seized during a protective sweep of the apartment following Accilien's arrest in the apartment pursuant to an arrest warrant in connection with the kidnapping and robbery. Although we agree with Delva that the record shows that the cellphone and letters were in fact seized after the protective sweep had been completed and the agents had left and reentered the bedroom, we conclude that the agents' warrantless reentry into that room did not violate the Fourth Amendment because it was justified by the exigencies of the circumstances, given that the agents had found four adult males in the small apartment and had seen narcotics and a gun during the protective sweep, and that that bedroom was the only unoccupied room, other than the bathroom, in which to question Accilien and the others individually in order to determine whom to arrest for possession of the narcotics and gun. As the district court's findings that the cellphone and letters were in plain view in that room and were recognizable as evidence are not clearly erroneous, we reject Delva's challenge to the denial of his suppression motions. Rejecting as well his additional evidentiary, procedural, and sentencing challenges, see Part II.B. below, we affirm the judgment.

I. BACKGROUND

The present prosecution of Delva had its origin in the kidnapping and robbery of a woman and a man in the Bronx, New York, which began on Labor Day weekend in 2012. Those crimes were investigated by a joint task force of Federal Bureau of Investigation ("FBI") agents and New York City Police Department ("NYPD") detectives and officers (collectively or in combination, the "Officers"). The evidence against Delva at trial (his codefendants had pleaded guilty) included drugs, a gun, and a cellphone, all belonging to him, and letters sent to Accilien by Accilien's brother (the "Accilien Letters"). Prior to trial, Delva initially moved to suppress only the drugs and gun, and a hearing was held; Delva thereafter sought to suppress the cellphone and, eventually, the letters.

The following description of the relevant events is taken from findings by the district court after the suppression-motion hearing, from credited evidence at that hearing which included testimony by the two law enforcement agents leading the investigation, and from evidence at Delva's ensuing trial which included testimony by those agents, Accilien, and the two victims of the kidnapping/robbery, as well as DNA evidence.

A. The Kidnapping and Robbery

Late on Sunday evening September 2, 2012, the female victim (or "FV"), who was the girlfriend of a drug dealer—the male victim (or "MV")—was accosted by codefendants Trevor Cole and Dominique Jean Philippe, brandishing guns, outside of her apartment in a building on Magenta Street. She was forced to enter the apartment with Cole and Jean Philippe, who proceeded to search unsuccessfully for drugs and money. FV was blindfolded and assaulted as Cole, Jean Philippe, and others who joined them attempted to force her to telephone MV to get him to come to her apartment. FV stalled for about a day by calling a number she knew had been disconnected; but she eventually yielded and reached MV after being raped by three of the intruders, and urinated on by one of them.

Accilien, the brother of Jean Philippe (who was the author of the Accilien Letters), became involved in the early stages of the robbery when he telephoned Jean Philippe in an attempt to borrow money. At Jean Philippe's request, Accilien purchased duct tape and latex gloves and brought them to FV's apartment, where Jean Philippe and Cole informed him that they were in the middle of a robbery. When Accilien expressed unease and decided to leave, Jean Philippe told Accilien to bring their nephew Delva to FV's apartment to assist because Delva had had more experience than Accilien in committing robberies. Accilien returned with Delva. All of the robbers donned the latex gloves brought by Accilien and waited for MV to arrive.

Accilien and Delva left FV's apartment on September 3; Delva returned early on September 4. MV arrived thereafter and was held captive by Cole, Jean Philippe, and Delva, attempting to force him to disclose where he kept his cash. MV was bound, blindfolded (albeit ineffectively), stabbed, and repeatedly beaten. Accilien, who had remained at home, attempted to call Jean Philippe, Cole, and Delva to learn whether the robbery was proceeding as planned; when none of them answered their phones, Accilien went to FV's apartment to see whether everything was all right. MV ultimately capitulated and revealed the location of his cash. Cole and Jean Philippe went to that location while Accilien and Delva remained behind to guard FV and MV. During that time, MV managed to shift his blindfold sufficiently to see Accilien, who complained to Delva about the intruders' blindfolding proficiency. Accilien testified that Delva then readjusted MV's blindfold and hit MV several times with a mop handle.

The home invasion ended on September 4, after the robbers got, inter alia , more than $40,000 in cash, jewelry, and clothing, along with six pounds of marijuana and FV's car.

B. The Early Investigation

The investigation of the kidnapping and robbery was led by FBI Special Agent John Reynolds and NYPD Detective Ellis Deloren. Deloren arrived at the kidnapping/robbery scene and spoke with FV and MV before they were taken to a hospital, and he later interviewed them at the hospital. Deloren prepared photographic arrays, each of which included one suspect. FV identified Cole from one array; MV identified Jean Philippe from another. A sealed federal indictment was filed in late October 2012; Cole and Jean Philippe were arrested about a week later, and the indictment was unsealed as to them. Pictures of several items stolen from MV were found on Cole's cellphone.

MV also identified Accilien from a photo array. Accilien had a significant criminal history, which included a charge of assault on a police officer, and Deloren found in police files Accilien's last known address, a second-floor apartment on South Oak Drive in the Bronx. Deloren went to that address under the guise of looking for someone else who was supposedly wanted for a different crime. Accilien himself answered the street-level outer door, thereby allowing Deloren to infer that Accilien still lived at and/or frequented that address. An arrest warrant for Accilien was issued.

At about 6:00 a.m. on June 4, 2013, approximately 10 Officers, led by Deloren and Reynolds, went to the South Oak Drive address, knocked on the outer door, and identified themselves as police. Deloren, through the door's window, saw a man he thought was Accilien start to descend the stairs and promptly retreat; the Officers then breached the door and entered. In the second-floor apartment they found Accilien, a woman and two children, and three other men—including Delva, who at that time was not a suspect in the kidnapping/robbery.

C. The Denial of Delva's Suppression Motions

The events following the Officers' entry into the building are recounted in the findings of the district court in denying Delva's initial suppression motion—which challenged the seizure only of the drugs and gun. See United States v. Delva , No. 12 Cr. 802, 2014 WL 465149 (S.D.N.Y. Jan. 27, 2014) (" Delva I "). The findings in that opinion—uncontested on appeal, except for a general challenge to credibility—include the following.

"The outer door entered onto a staircase that leveled off at a landing adjoining the kitchen. There was no interior door between the stairs and the kitchen." Delva I , 2014 WL 465149, at *2 (citations to the suppression hearing transcript ("H.Tr.") omitted). The apartment consisted of a kitchen, a bedroom/living room (the "living room"), a second bedroom (or "bedroom"), and a bathroom. "The apartment was about 500 square feet in total." Id .

As Reynolds was climbing the stairs, he could see Accilien at the top looking down at him. Both Reynolds and Deloren were stating: "Police, get down." Accilien complied and lay down on the floor in the kitchen. As Reynolds reached the top of the stairs, he saw two other men in the kitchen; Reynolds stepped further into the kitchen and instructed the two other men to get down. The

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