United States v. Cummings, 060617 FED2, 15-2035-cr (L)

Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
Attorney:MARSHALL ARON MINTZ, Mintz & Oppenheim LLP, New York, NY, for Defendant-Appellant Armani Cummings. MALVINA NATHANSON, New York, NY, for Defendant-Appellant Christopher Nwanko. MICHAEL GERBER, Assistant United States Attorney (Hadassa Waxman, Margaret Garnett, Assistant United States Attorneys, on...
Judge Panel:Before: JACOBS, POOLER, and HALL, Circuit Judges.
Opinion Judge:POOLER, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Appellee, v. ARMANI CUMMINGS, AKA A1, CHRISTOPHER NWANKO, AKA Big Boi, Defendants-Appellants. [1]
Case Date:June 06, 2017
Docket Nº:15-2035-cr (L), 16-322 (Con)
 
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UNITED STATES OF AMERICA, Appellee,

v.

ARMANI CUMMINGS, AKA A1, CHRISTOPHER NWANKO, AKA Big Boi, Defendants-Appellants.
1

Nos. 15-2035-cr (L), 16-322 (Con)

United States Court of Appeals, Second Circuit

June 6, 2017

          Argued: December 14, 2016

         Appeal from a judgment of conviction of the United States District Court for the Southern District of New York (Marrero, J.) following a jury verdict convicting Defendant-Appellant Armani Cummings of one count of conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; one count of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § ; 924(c); two counts of killing a person during and in relation to a conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. § 848(e)(1)(A); two counts of brandishing and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and two counts of causing the death of a person through the use of a firearm during and in relation to the crack cocaine conspiracy in violation of 18 U.S.C. § ; 924(j). Following Cummings's conviction, the district court sentenced Cummings principally to 75 years' imprisonment. Cummings argues, among other things, that the district court erred by admitting hearsay evidence of a death threat he allegedly made against a government witness. We agree and hold that such error was not harmless. The hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings's murderous propensity. That risk was heightened by the lack of a limiting instruction, the similarity between the death threat and the underlying charges, the government's argument on summation suggesting that the threat was substantive proof of Cummings's guilt, and Cummings's inability to cross-examine the third-party declarant who heard his alleged threat. We therefore vacate Cummings's convictions and remand for a new trial.

         On January 25, 2016, the United States District Court for the Southern District of New York (Marrero, J.) entered judgment against Defendant- Appellant Christopher Nwanko, convicting him, following a guilty plea, of one count of participation in a conspiracy to distribute 280 grams or more of cocaine base. On appeal, this Court appointed Nwanko new counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. Nwanko's counsel later filed a motion seeking permission to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). We grant the Anders motion and issue an order simultaneously with this Opinion.

         Vacated and remanded as to Cummings; Anders motion granted as to Nwanko.

          MARSHALL ARON MINTZ, Mintz & Oppenheim LLP, New York, NY, for Defendant-Appellant Armani Cummings.

          MALVINA NATHANSON, New York, NY, for Defendant-Appellant Christopher Nwanko.

          MICHAEL GERBER, Assistant United States Attorney (Hadassa Waxman, Margaret Garnett, Assistant United States Attorneys, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY, for Appellee.

          Before: JACOBS, POOLER, and HALL, Circuit Judges.

          POOLER, Circuit Judge:

         BACKGROUND

         Defendant-Appellant Armani Cummings appeals from a judgment of conviction of the United States District Court for the Southern District of New York (Marrero, J.) following a jury verdict. Cummings was convicted of one count of conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; one count of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); two counts of killing a person during and in relation to a conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. § 848(e)(1)(A); two counts of brandishing and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § ; 924(c); and two counts of causing the death of a person through the use of a firearm during and in relation to the crack cocaine conspiracy in violation of 18 U.S.C. § ; 924(j). Following Cummings's conviction, the district court sentenced Cummings principally to 75 years' imprisonment.

         Cummings argues, among other things, that the district court erred by admitting hearsay evidence of a death threat he allegedly made against a government witness. We agree and hold that such error was not harmless. The hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings's murderous propensity. That risk was heightened by the lack of a limiting instruction, the similarity between the death threat and the underlying charges, the government's argument on summation suggesting that the threat was substantive proof of Cummings's guilt, and Cummings's inability to cross-examine the third-party declarant who heard his alleged threat. We therefore vacate Cummings's convictions and remand for a new trial.

         On January 25, 2016, the United States District Court for the Southern District of New York (Marrero, J.) entered judgment against Defendant- Appellant Christopher Nwanko, convicting him, following a guilty plea, of one count of participation in a conspiracy to distribute 280 grams or more of cocaine base. On appeal, this Court appointed Nwanko new counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. Nwanko's counsel later filed a motion seeking permission to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). We grant the Anders motion and issue an order simultaneously with this Opinion.

         I. The Underlying Conduct

         The evidence presented at trial showed that, from 2006 to 2012, Cummings was a leader of a drug trafficking organization that sold crack cocaine in the Bronx. In that role, Cummings provided crack to street-level dealers, collected proceeds from their sales, and sold crack directly to end users on the street. Cummings and other members of his organization carried firearms in order to secure their drugs, proceeds, and territory.

         By 2009, a building known as the Carter became a lucrative location for selling crack. Although a rival drug trafficking organization dominated the Carter's drug trade, Cummings and his organization competed for greater access to its spoils. In short order, that competition bred violence.

         In particular, violence erupted between Cummings and Laquan Jones, a former member of Cummings's organization who, after a falling out, joined the rival organization and sold crack in the Carter. After several incidents between the feuding organizations-including one when Cummings chased Jones with a firearm, and another when Jones shot at Cummings while Cummings's mother was present-the competition over the Carter's drug trade turned deadly.

         On January 14, 2010, Cummings shot and killed Jones. In retaliation, members of the rival organization shot and killed Travis Geathers, Cummings's close friend and a member of Cummings's organization. According to a member of the rival organization, Geathers's death was "a body for a body, nothing personal." Tr. at 477. Nevertheless, the violence persisted. On June 9, 2010, Cummings shot and killed Carl Copeland, a member of the rival organization who was allegedly tied to Geathers's murder.

         II. Indictments and Arraignment

         On January 12, 2012, Cummings and thirty-four co-defendants were indicted for knowingly conspiring to violate federal narcotics laws and for related federal firearms violations.

         On November 7, 2014, a superseding indictment was filed which charged Cummings with the following: one count of conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; one count of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); two counts of killing a person during and in relation to a conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. § 848(e)(1)(A); two counts of brandishing and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § ; 924(c); and two counts of causing the death of a person through the use of a firearm during and in relation to the crack cocaine conspiracy in violation of 18 U.S.C. § ; 924(j).

         Cummings pled not guilty to all of the counts charged.

         III. Motions in Limine

         On October 27, 2014, prior to Cummings's trial, the government filed a motion in limine regarding the admissibility of certain testimony from a cooperating witness, Jim Volcy. Volcy was a former crack dealer in the Bronx who claimed to have observed Cummings's participation in the...

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