U.S. v. Williams
| Decision Date | 30 April 1996 |
| Docket Number | 94-1284,94-1351,94-1352,Nos. 94-1247,s. 94-1247 |
| Parties | NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. UNITED STATES of America, Appellee, v. Craig WILLIAMS, Darryl Board, Anderson King, aka Hasan Abdul-Malik, and Idris Cox, Defendants-Appellants, Najimah Abdul and Jerome Tolden, aka Wadoud, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
APPEARING FOR APPELLANTS: John Burke, Brooklyn, New York, for Craig Williams.
Joyce David, Brooklyn, New York, for Darryl Board.
Fern H. Schwaber, New York, New York, for Idris Cox.
David G. Secular, New York, New York, for Anderson King.
APPEARING FOR APPELLEE: Charles W. Gerber, Assistant United States Attorney for the Eastern District of New York, Brooklyn, New York.
Before VAN GRAAFEILAND, MAHONEY and WALKER, JJ.
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was argued by counsel.
ON CONSIDERATION WHEREOF, IT IS ORDERED, ADJUDGED AND DECREED that the judgments of the district court be and they hereby are AFFIRMED.
1. Defendants-appellants Craig Williams, Darryl Board, Anderson King, and Idris Cox appeal from judgments entered May 16, 1994, May 2, 1994, June 21, 1994, and June 22, 1994, respectively, in the United States District Court for the Eastern District of New York that convicted them of conspiring to commit armed robberies in violation of 18 U.S.C. § 371, substantive counts of armed robbery in violation of 18 U.S.C. §§ 2113 and 2114, and counts of using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). In addition, Williams was convicted of assault and attempted murder of a member of the New York City Police Department/Federal Bureau of Investigation Joint Armed Bank Robbery Task Force in violation of 18 U.S.C. §§ 111 and 1114. On appeal, defendants-appellants raise various challenges to their convictions and to the calculation of their sentences, all of which are without merit.
2. Williams and Board argue that 18 U.S.C. § 924(c), as applied in this case, violates the Eighth Amendment's prohibition against cruel and unusual punishment. Williams was sentenced to more than 160 years incarceration (145 years for violating § 924(c)), and Board was sentenced to more than 56 years imprisonment (45 years for violating § 924(c)). In view of the extremely violent criminal conduct of which Williams and Board were convicted and the range and extent of their violent criminal activity, we conclude that their sentences for such conduct do not violate the Eight Amendment. See United States v. Santos, 64 F.3d 41, 46 (2d Cir.1995) (), cert. denied, 116 S.Ct. 1038 (1996); see also Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991) ().
3. Williams and King contend that the district court abused its discretion by permitting the introduction of similar act evidence in violation of Rule 404(b) of the Federal Rules of Evidence. Specifically, Williams claims that co-conspirator Marcus Robertson's testimony that proceeds from robberies committed during the charged conspiracy were used to bail Williams out of jail in Nassau County violated Rule 404(b). King contends that the district court erred by admitting proof of robberies committed prior to the charged conspiracy by him and his subsequent coconspirators. We conclude that this testimony served to explain the relationship between the conspirators, see United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir.1992) (), and to depict for the jury how the conspiracy relationship developed, see United States v. Brennan, 798 F.2d 581, 590 (2d Cir.1986) (). Accordingly, the district court did not abuse its discretion in admitting this evidence. See United States v. Sappe, 898 F.2d 878, 880 (2d Cir.1990) ().
4. Williams challenges his convictions for the attempted murder of a United States Deputy Marshal, 18 U.S.C. § 1114, using a deadly weapon to impede a deputy marshal, 18 U.S.C. § 111, and carrying a firearm in connection with these charges, 18 U.S.C. § 924(c). These charges arose from Williams' shooting of New York City Police Department Detective Charles Jardines on October 10, 1991. Sections 111 and 1114 criminalize, respectively, assaults and the murder or attempted murder of individuals listed in § 1114. Williams claims that because Detective Jardines was not a Deputy United States Marshal within the meaning of 18 U.S.C. § 1114, his convictions arising out of the shooting of Detective Jardines must be vacated. The § 1114 listing includes "any United States marshal or deputy marshall or person employed to assist such marshal or deputy marshal, [and] any officer or employee of the [FBI]." Because Detective Jardines was acting in his capacity as a sworn Special Deputy United States Marshal at the time Williams shot him, we conclude that Williams was properly convicted under 18 U.S.C. §§ 111, 1114, and 924(c) for his conduct. See United States v. Heliczer, 373 F.2d 241, 249 (2d Cir.) ( that assault on state detective "acting in cooperation with and in aid of federal officers" constituted a violation of § 111), cert. denied, 388 U.S. 917 (1967).
5. Williams, Board, and Cox claim that their convictions under 18 U.S.C. § 924(c) must be vacated because the indictment failed specifically to allege that they acted with knowledge, an essential element of the § 924(c) offense. We have held, however, that "scienter need not be expressly alleged in a section 924(c) count." United States v. Santeramo, 45 F.3d 622, 624 (2d Cir.1995). Because this indictment charged the defendants with carrying or using a firearm "during and in relation to" substantive offenses, it sufficiently comports with the rule we articulated in Santeramo. See id.; see also United States v. Gelzer, 50 F.3d 1133, 1138 (2d Cir.1995). Additionally, we reject Board's contention, asserted pro se, that the district court impermissibly amended the indictment in instructing the jury on the elements of a § 924(c) offense. See United States v. Clemente, 22 F.3d 477, 482 (2d Cir.) (indictment constructively amended only when "there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged by the grand jury"), cert. denied, 115 S.Ct. 258 (1994). Finally, Board's claim that his § 924(c) conviction for the Anchor Savings Bank robbery was based upon insufficient evidence is also without merit. See Gelzer, 50 F.3d at 1142 ().
6. Williams and Board argue that the district court denied them due process of law and their right to confront the witnesses against them by limiting the scope of their cross-examination of coconspirator Marcus Robertson and Postal Inspector Stephen Korinko. The district court's restriction on cross-examination related to Robertson's alleged involvement in the robbery of the Spring Creek Post Office, a crime in which defendants-appellants were not involved. Because "the scope and extent of cross-examination are generally within the sound discretion of the trial court," United States v. Pedroza, 750 F.2d 187, 195 (2d Cir.1984), and the issues about which testimony was limited were collateral to the main proceedings, we conclude that the district court did not abuse its discretion when it limited the cross-examination that Williams and Board sought concerning this matter.
7. Board argues that the district court erred by increasing his offense level pursuant to USSG § 2B3.1(b)(4)(B) after finding that persons were "physically restrained" during the commission of a robbery in which he participated. The Sentencing Guidelines define "physically restrained" as "the forcible restraint of the victim such as by being tied, bound, or locked up." USSG § 1B1.1, comment. (n. 1(i)). "The use of the modifier 'such as' in the definition indicates that the illustrations of physical restraint 'are listed by way of example rather than limitation.' " United States v. Rosario, 7 F.3d 319, 320-21 (2d Cir.1993) (per curiam) (quoting United States v. Stokley, 881 F.2d 114, 116 (4th Cir.1989)). We conclude that the district court's findings that the defendants-appellants ushered their victims into a dark room, instructed the victims that they were not to leave the room, and closed the door are not clearly erroneous. Furthermore, we agree with the district court that these circumstances constituted the sort of "forcible restraint of a victim's mobility," Rosario, 7 F.3d at 321, that justifies an increase under § 2B3.1(b)(4)(B). See United States v. Doubet, 969 F.2d 341, 345-48 (7th Cir.1992) ().
8. We find no error in the district court's decision to allow a witness, Joanne DeMaria, to make an in-court identification of Cox. Even if we were to assume that DeMaria's opportunity to view Cox during the trial was unduly suggestive, we would nevertheless...
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