U.S. v. Parkes

• Decision Date: 15 August 2007
• Docket Number: Docket No. 05-1486-CR.
• Citation: 497 F.3d 220
• Parties: UNITED STATES of America, Appellee, v. Otis PARKES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

497 F.3d 220

UNITED STATES of America, Appellee, v. Otis PARKES, Defendant-Appellant.

Docket No. 05-1486-CR.

United States Court of Appeals, Second Circuit.

Argued: November 13, 2006.

Decided: August 15, 2007.

James M. Branden, Law Office of James M. Branden, New York, NY, for Defendant-Appellant.

Richard C. Daddario, Assistant United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: JACOBS, Chief Judge, McLAUGHLIN and CALABRESI, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Defendant-appellant Otis Parkes appeals from a judgment entered in the United States District Court for the Southern District of New York (Kaplan, J.), convicting him on multiple counts arising out of his participation in a botched robbery targeting drugs and drug proceeds, during which the victim was shot and killed by one of Parkes's two coconspirators.

Parkes argues (I) that the evidence adduced to prove a nexus with interstate commerce under the Hobbs Act, 18 U.S.C. § 1951(a), was insufficient, and that in any event the district court abused its discretion by allowing the government to reopen its case to adduce (some of) that evidence; (II) that the evidence was insufficient to support Pinkerton liability for the murder; (III) that the district court abused its discretion by refusing to grant a new trial based on newly discovered evidence that a cooperating witness had plotted to kill another witness; and (IV) that the prosecutor made prejudicial statements in summation.

We hold (contrary to the position argued by the government) that the Hobbs Act requires the jury to find that a robbery of drugs and drug proceeds affects interstate commerce; but we conclude that sufficient evidence was introduced as to the attempted robbery in this case. We reject defendant-appellant's remaining challenges, but vacate and remand in order to allow the district court to correct certain specified errors in the sentence calculation.

Background

The Robbery. Viewed in the light most favorable to the government,¹ the evidence adduced at trial (the substance of which stands unchallenged by Parkes) was as follows.

In June 2003, Steven Young proposed to Parkes and Duane Beaty that they rob a drug dealer, Ruben Medina. Beaty (who became a cooperating witness) testified that Young "explain[ed] to us how he knew a drug dealer [Medina] that had money and drugs on the table selling out of a little room, and he just had the stuff spread out on the table, and it would be easy to go in and rob him and leave with the proceeds." Trial Tr. at 265 (Oct. 25, 2004). In the early morning hours of June 17, 2003, Parkes, Beaty and Young met in Parkes's Jeep; Young confirmed that the other two were "packing" guns. Trial Tr. at 272 (Oct. 25, 2004). Parkes drove to Medina's building, waited until someone came out, and the three slipped in.

The door to Medina's apartment was unlocked; the robbers entered with guns drawn, and began binding the people who had been sleeping in the various rooms. While this was going on, Medina entered the apartment with his girlfriend, Delilah Lugo. Young ordered Lugo into Medina's room with Parkes (where a clear plastic bag was put over her head and a gun stuck in her face), but kept Medina in the hallway with himself and Beaty.

While Beaty questioned Medina in the hall about the drugs and money, Young struck one of the residents, causing his head to bleed, and then brought him to Medina's room where Parkes restrained him with duct tape. Beaty testified that he feared Young was getting "out of hand," so he called Young to stay with Medina while Beaty returned to Medina's room and broke the lock to the closet in which he suspected the drugs and proceeds were hidden. Trial Tr. at 281, 282 (Oct. 25, 2004)

As Beaty was searching the closet, he heard Young threatening to shoot Medina, followed by a gun shot. Beaty ran to the hall, saw Medina shot and lying on his side, and watched Young shoot Medina two more times in his back.

The robbers fled to the Jeep, and headed toward Beaty's apartment. Young, who was going elsewhere, got out to take a cab. The police confronted Parkes and Beaty soon after they arrived at Beaty's place. One officer searched the Jeep and alerted his partner that he found a gun; Parkes ran off and Beaty was arrested. The police search of Parkes's Jeep yielded: (1) a loaded handgun; (2) a pair of gloves with Parkes's DNA on the inside and, on the outside, the blood of the man Young had assaulted and Parkes had bound; (3) a wallet containing Parkes's identification; (4) a roll of duct tape of the type used to bind the people in the apartment; and (5) a cell phone which Medina had been carrying on the night he was shot.

The Trial. The events of the robbery were recounted at trial by Beaty, Medina's girlfriend Lugo, police officers, and residents of the apartment. Additionally, a friend of Parkes testified he came to her place early in the morning of June 17 and made a series of phone calls; in one call, Parkes told someone to report the Jeep stolen. She also testified that, weeks later, Parkes told her that he had been involved in a shooting, had his Jeep searched by police, and ran away when the police found a gun. A detective testified that his search of Medina's room yielded $4,000 in a jacket pocket hanging in Medina's closet, one large bag of marijuana, and 58 smaller "nickel bags."

After the government rested, Parkes moved for acquittal under Federal Rule of Criminal Procedure 29 on the grounds that the government had failed to satisfy the Hobbs Act's interstate commerce element, and had not, for the purpose of Pinkerton liability, adduced evidence that Medina's murder was reasonably foreseeable. The district court denied Parkes's motion.

The issue of interstate commerce arose again during the charge conference. Initially, the court's proposed Hobbs Act charge required the jury to find that the attempted robbery "potentially affected interstate commerce." Trial Tr. at 480 (Oct. 26, 2004). But during the charge conference, the district judge briefly changed course: he said that he intended to remove that language from the charge and substitute language instructing that "if the object of the robbery is to obtain illegal drugs or money earned from the sale of drugs, the requirement of an effect on interstate commerce is satisfied." Trial Tr. at 392 (Oct. 26, 2004). Such an instruction, if delivered, would have obviated proof that the robbery affected interstate commerce, and instead required only a finding that the object of the robbery was drugs or their proceeds, on the theory that such a robbery affects interstate commerce ipso facto. But on the next morning, the court distributed a redlined charge which retained the original language requiring the jury to find that the robbery affected interstate commerce, and not simply that the object of the robbery was drugs or drug proceeds. The government, objecting, argued that its presentation of evidence was premised on the assumption that the jury would not need to affirmatively find that the robbery affected interstate commerce, but rather would only have to find that the target of the robbery was drugs or proceeds. The judge overruled the objection, but allowed the government to reopen its case (over defense objection) to supplement the record.

The government called an experienced government investigator who testified (inter alia) that: marijuana "is almost exclusively trucked into the United States, predominantly through Mexico"; "[v]ery little" marijuana is grown in New York; and approximately five percent of the arrests the investigator made in the Bronx were of out-of-state purchasers of marijuana. Trial Tr. at 408-16 (Oct. 26, 2004). On cross examination, the investigator conceded that he did not know the origin of the marijuana in Medina's room, and that marijuana can be grown indoors and outdoors in New York State.

Consistent with the court's final ruling, the jury was instructed that it had to find that the robbery affected interstate commerce. Parkes was convicted on all counts. The district court denied Parkes's post-verdict Rule 29 motion for acquittal on the ground that the evidence was insufficient to satisfy the interstate commerce element of the Hobbs Act. The court also denied Parkes's Rule 33 motion for a new trial, which was premised on his assertion that the prosecutor had misstated the law to the jury in summation by stating that "[d]rug dealing affects interstate commerce" and "robberies that seek drugs and drug money do so as well." Trial Tr. at 439-40 (Oct. 25, 2004). On February 25, 2005, the district court sentenced Parkes to life imprisonment.

Nearly seven months later, the government notified Parkes that it had recently learned that, before Duane Beaty cooperated with the government, he had taken steps to have a witness in this case killed. Parkes promptly filed a second Rule 33 motion, which was also denied by the district court.

I

Parkes challenges the sufficiency of the evidence to prove the Hobbs Act's interstate commerce element. "A defendant challenging the sufficiency of the evidence bears a heavy burden...." United States v. Pipola, 83 F.3d 556, 564 (2d Cir.1996) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)); see also United States v. Giovanelli, 464 F.3d 346, 349 (2d Cir.2006) (per curiam). On a sufficiency challenge, "we view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility." United States v. Arena, 180 F.3d 380, 391 (2d Cir.1999) (internal quotation marks omitted). We will sustain the jury's verdict so long as "any rational trier of fact could have found the essential elements of the crime beyond a...