U.S. v. Stewart

• Decision Date: 08 May 2007
• Docket Number: Docket No. 05-1989-cr.
• Parties: UNITED STATES of America, Appellee, v. Humphrey STEWART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

485 F.3d 666

UNITED STATES of America, Appellee, v. Humphrey STEWART, Defendant-Appellant.

Docket No. 05-1989-cr.

United States Court of Appeals, Second Circuit.

Argued: January 26, 2007.

Decided: May 8, 2007.

Jeffrey Goldberg, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New

York, Peter A. Norling, Alyssa A. Qualls, Assistant United States Attorneys, Brooklyn, New York, on the brief), for Appellee.

Edward D. Wilford, New York, New York (Anthony L. Ricco, Steven Z. Legon, New York, New York, on the brief), for Defendant-Appellant.

Before: KEARSE and SOTOMAYOR, Circuit Judges, and KOELTL, District Judge^*.

KEARSE, Circuit Judge:

Defendant Humphrey Stewart appeals from a judgment entered in the United States District Court for the Eastern District of New York on April 22, 2005, following a jury trial before Raymond J. Dearie, Judge (now Chief Judge), convicting Stewart of racketeering and racketeering conspiracy, in violation of 18 U.S.C. §§ 1962(c) and (d); conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846; distribution and possession of five or more kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1); attempted murder and conspiracy to commit murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5); possession, as a convicted felon, of a firearm in violation of 18 U.S.C. § 922(g)(1); and discharge of a firearm during a violent crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Stewart was sentenced principally to life imprisonment on each of the racketeering and narcotics counts and 10 years each on the attempted murder, conspiracy to murder, and § 922(g) firearm counts, with all of those prison terms to be served concurrently, and to a five-year term of imprisonment on the § 924(c) firearm count to be served consecutively to the other prison terms. All of these prison terms were to run consecutively to a state-court sentence Stewart was then serving. On appeal, Stewart contends, inter alia, that the district court violated his rights under the Confrontation Clause of the Sixth Amendment when it allowed certain trial witnesses to describe statements that had been made by a declarant whose murder the court found Stewart had procured. Finding no merit in this or any of Stewart's other contentions, we affirm the judgment.

I. BACKGROUND

The present prosecution arose out of investigations into the narcotics trafficking activities in Brooklyn, New York, and elsewhere in the United States, of a group of men known as the "Patio Crew." The evidence at Stewart's 2004 trial included testimony from law enforcement officers, cooperating members of the Patio Crew (or "Crew"), and others.

Briefly summarized in the light most favorable to the government, the trial evidence included the following. Stewart and Emile Dixon were members of the Patio Crew, a gang that had controlled narcotics trafficking in the Flatbush section of Brooklyn for more than a decade. The Crew distributed powder cocaine and crack cocaine and was vigilant in protecting its Flatbush territory through the use of threats, assaults, robberies, and murder. Stewart and Dixon were regarded by other Crew members as particularly inclined towards violence. The Crew had a code of vengeance against anyone who cooperated with law enforcement authorities; in the vernacular of the Crew members, who were Jamaican nationals, the "rule" was "informer for dead," meaning that if an informer "cooperated with the police," the "[i]nformer must die." (Trial Transcript ("Tr.") at 110; see also id. at 312 ("[i]nformers must dead"); Stewart brief on appeal at 4 ("[T]he credo of the streets" included the rule "keep your mouth shut! Never become an informant! Never snitch! There was even a popular saying on the street, `snitches for dead', which was a warning that meant death to informants.").)

In the summer of 1999, Stewart became aware that marijuana was being sold at one of the Crew's locations by Robert Thompson (a/k/a "Ragga"), who was not a member of the Crew. On July 29, 1999, complaining of Ragga's competition in front of Stewart's building (see Tr. 137), Stewart approached other Patio Crew members and asked if anyone had a "fire stick," meaning a gun (Tr. 136, 341). Later that day, Ragga was shot several times. He was seriously injured, but recovered.

Ragga at first refused to reveal the identity of his assailant to the police (see, e.g., Tr. 727-28); he would say only that he had been in his jeep stopped at a red light when a man ran up, opened the door, and started firing a gun at him (see id. at 739-40). Eventually, however, Ragga informed the police that the shooter had been Stewart; Ragga so testified before a grand jury in March 2000. In the meantime, Ragga had told several others, including his girlfriend, his brother Steven, and the mother of two of his children, that he had been shot by Stewart.

Immediately after the shooting of Ragga, Stewart had fled Brooklyn for Buffalo, New York, where he continued to participate in the Crew's narcotics distributions. In January 2000, Stewart was arrested in Buffalo on New York State drug charges; he was eventually returned to Brooklyn to face outstanding charges with respect to an unrelated 1995 shooting in Brooklyn. As discussed in greater detail in Part II.A. below, Stewart, while being detained first in Buffalo and then in Brooklyn, sent several messages to Ragga urging him not to identify Stewart in a lineup and not to testify against him with respect to the 1999 shooting of Ragga. Ragga was undeterred, and in late March 2000 he informed a police detective that Stewart was the person who had shot him. Thereafter, Stewart had several telephone conversations with Dixon, who urged Ragga not to testify against Stewart. Ragga refused to agree not to testify. On July 26, 2000, in a drive-by shooting, Ragga was killed by Dixon.

Dixon and Stewart were eventually indicted on federal charges, including several relating to the murder of Ragga. Stewart was charged with conspiring between July 1999 and July 2000 to murder Ragga and with attempting to murder Ragga on July 29, 1999, for the purpose of maintaining and increasing his position in the Patio Crew, a racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(5). Because the government sought the death penalty against Dixon for the actual murder, the two defendants were tried separately. At Stewart's trial, the government was allowed to introduce evidence from a police detective and several other witnesses that Ragga had told them that the man who shot him on July 29, 1999, was Stewart. (See, e.g., Tr. 739-40, 991, 1098, 1309.) Stewart was convicted on the § 1959 counts, as well as the other counts described above.

II. DISCUSSION

On appeal, Stewart contends, inter alia, that the admission of testimony that Ragga had identified him as the July 29, 1999 shooter violated his rights under the Confrontation Clause. His other contentions include a challenge to the sufficiency of the evidence to support his conviction on one count and a contention that the district court failed to consider the appropriate factors in imposing sentence. Finding no merit in his contentions, we affirm the judgment.

A. The Confrontation Clause: Forfeiture of the Right

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Nonetheless, "`the law [will not] allow a person to take advantage of his own wrong,'" United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir.1982) ("Mastrangelo") (quoting Diaz v. United States, 223 U.S. 442, 458, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (other internal quotation marks omitted)) (brackets ours), and it is thus well established, as a matter of "[s]imple equity" and "common sense," that the right to confrontation is forfeited if the defendant has "wrongfully procured the witnesses' silence through threats, actual violence or murder," United States v. Dhinsa, 243 F.3d 635, 651 (2d Cir.) ("Dhinsa") (internal quotation marks omitted), cert. denied, 534 U.S. 897, 122 S.Ct. 219, 151 L.Ed.2d 156 (2001). See, e.g., id. at 652 ("`It is hard to imagine a form of misconduct more extreme than the murder of a potential witness.... We have no hesitation in finding, in league with all circuits to have considered the matter, that a defendant who wrongfully procures the absence of a witness or potential witness may not assert confrontation rights as to that witness.'" (quoting United States v. White, 116 F.3d 903, 911 (D.C.Cir.), cert. denied, 522 U.S. 960, 118 S.Ct. 390, 139 L.Ed.2d 305 (1997))); United States v. Miller, 116 F.3d 641, 667-68 (2d Cir.1997), cert. denied, 524 U.S. 905, 118 S.Ct. 2063, 141 L.Ed.2d 140 (1998); United States v. Thai, 29 F.3d 785, 814 (2d Cir.), cert. denied, 513 U.S. 977, 115 S.Ct. 456, 130 L.Ed.2d 364 (1994); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir.1992); Mastrangelo, 693 F.2d at 272-73; United States v. Cherry, 217 F.3d 811, 814-15 (10th Cir.2000); Steele v. Taylor, 684 F.2d 1193, 1201-02 (6th Cir.1982), cert. denied, 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932 (1983); United States v. Carlson, 547 F.2d 1346, 1358-60 (8th Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). See also Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ("the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds").

In 1997, the Federal Rules of Evidence were amended to "recognize[] the need for a prophylactic rule to deal with [this type of] abhorrent behavior `which strikes at the heart of the system of justice itself.'" Fed.R.Evid. 804 Advisory Committee Note (1997) (quoting Mastrangelo, ...