United States v. Barrett

• Decision Date: 10 September 2018
• Docket Number: August Term 2015,No. 14-2641-cr,14-2641-cr
• Citation: 903 F.3d 166
• Parties: UNITED STATES of America, Appellee, v. Dwayne BARRETT, aka Sealed Defendant 3, aka Tall Man, Defendant-Appellant, Fahd Hussain, aka Ali, aka Moe, Tameshwar Singh, aka Sealed Defendant 5, Shea Douglas, Jermaine Dore, aka St. Kitts, aka Blaqs, Taijay Todd, aka Sealed Defendant 4, aka Biggs, Damian Cunningham, aka Jaba, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

903 F.3d 166

UNITED STATES of America, Appellee,
v.
Dwayne BARRETT, aka Sealed Defendant 3, aka Tall Man, Defendant-Appellant,

Fahd Hussain, aka Ali, aka Moe, Tameshwar Singh, aka Sealed Defendant 5, Shea Douglas, Jermaine Dore, aka St. Kitts, aka Blaqs, Taijay Todd, aka Sealed Defendant 4, aka Biggs, Damian Cunningham, aka Jaba, Defendants.^*

No. 14-2641-cr
August Term 2015

United States Court of Appeals, Second Circuit.

Argued: January 22, 2016
Decided: September 10, 2018

KELLEY J. SHARKEY, ESQ., Brooklyn, New York, for Defendant-Appellant.

MICHAEL D. MAIMIN, Assistant United States Attorney (Amy R. Lester, Jessica A. Masella, Karl Metzner, Assistant United States Attorneys, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Before: Winter, Raggi, and Droney, Circuit Judges.

Reena Raggi, Circuit Judge:

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Defendant Dwayne Barrett stands convicted after a jury trial in the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge ) of conspiracy to commit Hobbs Act robbery, see 18 U.S.C. § 1951 (Count One); using a firearm in the commission of that conspiracy, see id. §§ 924(c)(1)(A) and 2 (Count Two); two substantive Hobbs Act robberies, see id. §§ 1951 and 2 (Counts Three and Five); and using firearms in the commission of those robberies, see id. §§ 924(c)(1)(A) and 2 (Counts Four and Six); in one case causing death, see id. §§ 924(j) and 2 (Count Seven). Sentenced to a total prison term of 90 years, Barrett now challenges his conviction, arguing through counsel that (1) his Counts Two, Four, Six, and Seven firearms convictions must be vacated and those charges dismissed because the felonies in which the firearms were used—substantive and conspiratorial Hobbs Act robbery—are not "crime[s] of violence" within the meaning of § 924(c)(3), a conclusion he maintains is compelled by the Supreme Court's recent decisions in Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), and Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)¹ ; (2) his conviction must be vacated in its entirety and a new trial ordered because cell phone and videotape evidence was erroneously admitted at trial; and (3) in any event, his sentence must be vacated and new sentencing ordered because the mandatory consecutive sentencing provision of § 924(c)(1)(C) should not have been applied to his § 924(j) Count Seven conviction. In supplemental pro se briefs, Barrett raises additional evidentiary, sufficiency, charging, and prosecutorial misconduct challenges.

In a summary order filed today, we address all of Barrett's arguments except the first, i.e. , his "crime of violence" challenge to the Hobbs Act offenses underlying his §§ 924(c)(1)(A) & (j) convictions. We here conclude that Barrett's challenge to his Counts Four, Six, and Seven convictions—predicated on substantive Hobbs Act robberies—is defeated by United States v. Hill , 890 F.3d 51 (2d Cir. 2018), which, post- Dimaya , holds substantive Hobbs Act robbery to be a categorical crime of violence within the definition of § 924(c)(3)(A). Barrett's challenge to his Count Two conviction—predicated on a Hobbs Act robbery conspiracy —fails for two reasons. First, our precedent has long held that a conspiracy to commit a categorical crime of violence is itself a categorical crime of violence. See, e.g. , United States v. Patino , 962 F.2d 263, 267 (2d Cir. 1992). Dimaya and Johnson compel no different conclusion because we need look only to the elements of Hobbs Act robbery conspiracy as applied to § 924(c)(3)(A) together with § 924(c)(3)(B) in following our precedent here. Second, and in any event, a conduct-specific, rather than categorical, approach to § 924(c)(3)(B) is appropriate because the predicate offense defined by that statute is an element of the crime of pending prosecution, not a crime of prior conviction as in Dimaya and Johnson . This means that the trial jury, in deciding guilt, can determine whether the predicate offense "by its nature, involve[d] a substantial risk that physical force ... may be used" in committing the offense, 18 U.S.C. § 924(c)(3)(B), thereby avoiding both the trial-by-jury and due process vagueness concerns identified in Dimaya and Johnson . The fact that the jury was not

903 F.3d 170

charged to make such findings here is harmless error because the record of beatings, shootings, and murder in this case admits no other conclusion but that the charged robbery conspiracy was a violent crime under § 924(c)(3)(B). See, e.g. , Neder v. United States , 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

Accordingly, the judgment of conviction is affirmed.

BACKGROUND

Between August 2011 and January 2012, Barrett joined together with others (the "Crew") in a conspiracy to commit a series of frequently armed, and invariably violent, robberies. The Crew generally targeted small business operators believed to be in possession of cash or valuables. Co-conspirator Fahd Hussain, himself a Bronx storeowner, identified most of these targets for the Crew. During the robberies, Crew members wore masks and gloves to conceal their identities. They used guns, knives, baseball bats, and their fists to threaten and coerce victims, physically injuring several and killing one.

I. The Robberies

To address Barrett's § 924(c) challenge, we need only summarize certain robberies and attempted robberies supporting his Count One conviction for Hobbs Act robbery conspiracy. In doing so, we indicate the two particular robberies supporting Barrett's substantive Hobbs Act convictions on Counts Three and Five, as well as his § 924(c)(1) firearms convictions on Counts Two, Four, and Six, and his § 924(j) firearms-murder conviction on Count Seven.

1. Rauf Robbery : On August 22, 2011, Barrett and three other Crew members traveled to Matamoras, Pennsylvania, where they robbed Abdul Rauf, the owner of a local gas station and convenience store, of approximately $46,000. In the course of the robbery, one Crew member punched Rauf in the face.

2. Tawfiq Robbery : On October 5, 2011, in the Bronx, Barrett and another Crew member robbed Mubarak Tawfiq, a telephone calling cards dealer, of more than $1,000 in cash but, after physically struggling with the victim, abandoned the effort.

3. Abdulkader Attempted Robbery: On October 10, 2011, also in the Bronx, Crew members (this time, without Barrett) attempted to rob convenience store owner Youssef Abdulkader. As the robbers approached, one brandishing a knife, Abdulkader dropped his cellphone and laptop computer and ran off.

4. Goel Robbery: That same day, in New Rochelle, New York, Crew members (again without Barrett) robbed Prashant Goel, a telephone calling cards dealer, of approximately $6,000 in cash and thousands of dollars' worth of telephone calling cards. In committing this robbery, Crew members smashed the windows of Goel's car with baseball bats, slashed the car's tires with a knife, thrust the knife into the car to threaten Goel, and punched him.

5. Salahi Robbery: On October 29, 2011, in the Bronx, Barrett and other Crew members robbed poulterer Ahmed Salahi of $15,000. Crew members had followed Salahi to a mosque and, when he exited, forced him at knifepoint into his car and drove him to his home. While Salahi lay on the floor of his car, one Crew member held a knife to his head, while another took Salashi's keys and entered his home. Inside were Salahi's brother Kassim Salahi with his 8- and 10-year old sons. Brandishing guns, Barrett and fellow Crew member Jermaine Dore ordered Kassim Salahi and his children to lie on the floor and not to make a sound. Meanwhile Crew members took the money they had sought from a closet, whereupon they left the home. These events informed Barrett's Count

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Three substantive Hobbs Act conviction, as well as his Counts Two and Four firearms convictions.

6. Singh Attempted Robbery : On November 14, 2011, Barrett and another Crew member attempted to rob gas station manager Jaspal Singh of cash proceeds from that business. Upon noticing a black Mercedes Benz trailing him from Mt. Vernon, New York, to the Bronx, Singh called the police. When police stopped the vehicle, Barrett, who was driving, consented to its search, resulting in the discovery of two baseball bats, but no further police action.

7. Cornwall Robbery : On December 5, 2011, in another Bronx robbery committed without Barrett, Crew members robbed Fitzroy Cornwall, who worked at Westchester Medical Center, of jewelry, his wallet, and the money contained therein. In committing this robbery, Crew members forcibly threw Cornwall to the ground and fired a gunshot into the air.

8. Dafalla Attempted Robbery and Murder : On December 12, 2011, Barrett and Crew members Dore and Taijay Todd robbed and killed Gamar Dafalla, events that support Barrett's Count Two firearms conviction, Count Five substantive Hobbs Act conviction, Count Six firearms conviction, and Count Seven firearms-murder conviction. The three Crew members, traveling in Barrett's Mercedes, had followed Dafalla to and from the Mt....