U.S.A v. Whitten
| Citation | 610 F.3d 168 |
| Decision Date | 30 June 2010 |
| Docket Number | Docket No. 07-1320-cr. |
| Parties | UNITED STATES of America, Appellee,v.Michael WHITTEN, Paris Bullock, Angel Rodriguez, also known as Ice, Jamal Brown, also known as Mal, Defendants,Ronell Wilson, also known as Rated R, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
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Beverly Van Ness, New York, New York; Barry J. Fisher, Saratoga Springs, for Defendant-Appellant.
Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn; Morris J. Fodeman, David Bitkower (Peter A. Norling, Jason A. Jones, Zainab Ahmad, on the brief), Assistant United States Attorneys, Eastern District of New York, Brooklyn; Jeffrey B. Kahan (on the brief), United States Department of Justice Capital Case Unit, Washington, D.C., for Appellee.
Before: JACOBS, Chief Judge, MINER, and LIVINGSTON, Circuit Judges.
Ronell Wilson murdered two undercover police detectives who were posing as gun buyers. Wilson appeals from a judgment of conviction and a sentence of death entered on March 29, 2007, in the United States District Court for the Eastern District of New York (Garaufis, J.). Wilson appeals on twelve grounds (some with subparts), among them that: the evidence was insufficient to support a finding under the Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18 U.S.C. § 1959, that Wilson acted to maintain or increase his position in a racketeering enterprise; and the district court abused its discretion in cutting off recross-examination that had bearing on whether Wilson shot in perceived self-defense because he thought his victims were about to rob him. We affirm as to those claims and therefore affirm the convictions.
We likewise affirm the district court's rejection of Wilson's arguments that: voir dire was unfairly biased and constitutionally inadequate; testimony in the penalty phase exceeded what is permissible under the Constitution and the Federal Death Penalty Act, and required an additional corrective charge; and a fellow inmate was acting as a government agent in eliciting admissions from Wilson.
However, we vacate the death sentences, and remand, because two arguments made to the jury by the prosecution-both bearing on the critical issues of remorse, acceptance of responsibility, and future dangerousness-impaired Wilson's constitutional rights. The government argued: [i] that Wilson put the government to its proof of guilt rather than plead guilty; and [ii] that Wilson's allocution of remorse should be discredited because he failed to testify notwithstanding the fact that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” As to the first argument, although a guilty plea may properly be considered to support a sentence mitigation for acceptance of responsibility, the Sixth Amendment is violated when failure to plead guilty is treated as an aggravating circumstance. As to the second, it is a fair argument for the prosecution to say that an allocution of remorse is unsworn and uncrossed, but the Fifth Amendment is violated when the defendant is denied a charge that limits the Fifth Amendment waiver to that which is said in the allocution and the jury is invited to consider more generally that the defendant declined to testify. These constitutional violations were not harmless beyond a reasonable doubt.
Accordingly, we vacate the death sentences and remand for further proceedings. 1
Wilson was convicted on five capital counts: two counts of murder in aid of racketeering under VICAR (18 U.S.C. § 1959(a)(1)), two counts of causing a death through the use of a firearm (18 U.S.C. § 924(j)), and one count of carjacking with death resulting (18 U.S.C. § 2119(3)). He was also convicted on five non-capital counts. At a separate penalty phase, the same jury unanimously voted to sentence Wilson to death on all five capital counts.
Eight of the convictions (including all five capital counts) stem from a March 10, 2003 robbery and murder of New York Police Department detectives James Nemorin and Rodney Andrews. The other two counts (a robbery conspiracy and the use of a firearm) stem from a May 2, 2002 aborted robbery. Wilson was arrested on March 12, 2003, two days after the murders.
At trial, the defense contended that the triggerman was Jesse Jacobus, a fellow gang member who was with Wilson during the murders and who testified against him at trial; but Wilson does not appeal the jury's finding that he, Wilson (and not Jacobus), fired the shots.
The district court had jurisdiction to hear the case under 18 U.S.C. § 3231. This Court has jurisdiction over an appeal from a final order of the district court under 28 U.S.C. § 1291.
The Stapleton Crew was a violent gang that operated in Staten Island from approximately 1999 until it was disbanded by the arrest of the principals following the murders committed by Wilson. The gang was involved in robberies and the sale of drugs. The core members of this gang were Michael Whitten, Paris Bullock, Omar Green, Hason Taylor, and Rashun Cann; associated gang members included Mitchell Diaz, Jacobus, and the appellant, Wilson.2
The Stapleton Crew collectively owned several guns that were available for the members' use. One week before the murders, on March 3, 2003, Whitten and Green sold one of these guns, a .357 caliber revolver, for $780. The buyer in that transaction was actually Detective Nemorin working undercover. He made no arrest at that time because he wanted to further infiltrate the gun-sale operation and make additional arrests later. Accordingly, he arranged to purchase another of the Stapleton Crew's guns the following week.
Detective Andrews volunteered to accompany Detective Nemorin as backup at the second transaction. They were accompanied at a distance by officers on foot and in nearby cars; one of the putative gun buyers wore a fake beeper that would broadcast audio to officers conducting surveillance.
In advance of the March 10 meeting, members of the Stapleton Crew decided to rob the buyer of the $1,200 price rather than deliver the gun. The discussion among Wilson, Diaz, Bullock, Whitten, and Green in Green's apartment was as follows: Jacobus would assist Wilson; Wilson would be armed with one of the communal guns, which (Wilson was told) he might have to use; Green or Whitten raised the possibility that Detective Nemorin might be a police officer or a thief attempting to rob the Stapleton Crew; Wilson committed to go through with the robbery anyway if Green and Whitten wanted him to do so; Green and Whitten then approved of the planned robbery.
On the night of March 10, 2003, Wilson and Jacobus got into the back seat of the undercovers' car (Wilson sat behind the driver, Detective Nemorin). Wilson directed the driver to another neighborhood in Staten Island, where Wilson got out, met Diaz, and picked up the .44 caliber pistol ultimately used in the murders. Wilson and Diaz discussed what both recognized to be an undercover police presence in the area, although Diaz stated that he told Wilson he did not believe the police were deployed on their account. Wilson, now armed, rejoined the others in the car, and directed the driver to another neighborhood (where the planned robbery would take place).
When they arrived, Wilson briefly stepped out of the car. When he got back in, Wilson shot Detective Andrews in the head. Wilson then pointed the gun at Detective Nemorin and said, Jacobus testified that Detective Nemorin “was pleading for his life” before Wilson shot him in the head.
Wilson and Jacobus left the car with the victims' bodies inside, walked quickly to the nearby apartment of Wilson's stepfather, entered with Wilson's key, and stashed the murder weapon in a closet. Wilson and Jacobus then returned to the car and pulled the bodies out to search them for money. Leaving the bodies in the street, they drove off in the bloodstained car. As they drove away from the crime scene, Jacobus asked Wilson why he shot the men; Wilson responded, “I don't give a fuck about nobody.”
Wilson and Jacobus parked the car near the Stapleton Projects and began to search it for money. Wilson found a gun under the front passenger seat and said, “[t]hey was going to get us before we got them.” Jacobus testified that Wilson had not previously suggested that the killings were preemptive. Wilson kept the gun he took from the car.
As Wilson and Jacobus walked back to the projects, Wilson yelled something to a passing police car. The police car stopped and the officers got out; Wilson and Jacobus ran, and the officers pursued; Jacobus was arrested a short distance away.
Wilson escaped into the Stapleton Projects, and went to Green's apartment, where Green was with Diaz. Diaz testified that Wilson was asked what happened, and Wilson responded that he, Wilson, had “popped” the buyers. Diaz recalled that Wilson said other things as well, but in a ruling contested on this appeal, questioning of Diaz on that issue was terminated. Wilson left the apartment with Green and Diaz.
Wilson was arrested two days later in Brooklyn. In his pocket the arresting officers found (among other things) rap lyrics he had written that arguably describe the murders.
In March 2003, Wilson was indicted in state court for first-degree murder, and the district attorney filed notice of intent to seek the death penalty. In June 2004, the New York Court of Appeals ruled that the state's death penalty statute violated the New York Constitution.
The federal government then took up the prosecution. On November 17, 2004, a federal grand jury indicted Wilson, Bullock, Whitten, and two other members of the Stapleton Crew. Wilson's four co-defendants each pled guilty to...
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