United States v. Davis
| Decision Date | 08 August 2012 |
| Docket Number | No. 10-3453-cr (CON),No. 10-3424-cr (L),10-3424-cr (L),10-3453-cr (CON) |
| Parties | UNITED STATES OF AMERICA, Appellee, v. ALTON DAVIS, RODERICK GUNN, AKA ZAPPA, Defendants-Appellants, DERRILYN NEEDHAM, AKA INGRID, RONALD KNIBBS, AKA BIRDIE, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 8th day of August, two thousand twelve.
Circuit Judges.
APPEARING FOR APPELLANTS: ANDREW M. ST. LAURENT, Harris, Cutler & Houghteling LLP, New York, New York, for Alton Davis
HOWARD JACOBS (Jeremy B. Sporn, on the brief), New York, New York, for Roderick GunnAPPEARING FOR APPELLEE: JOHN J. O'DONNELL (Jennifer E. Burns, Iris Lan, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York
Appeal from judgments of the United States District Court for the Southern District of New York (William H. Pauley III, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of conviction entered on August 24, 2010, are AFFIRMED.
Alton Davis and Roderick Gunn appeal from judgments entered after jury trial convicting them of conspiring and attempting to violate the Hobbs Act, see 18 U.S.C. § 1951; related firearms offenses causing death, see id. § 924(c), (j)(1); and conspiring to possess with intent to distribute marijuana, see 21 U.S.C. §§ 841(a)(1), 846. This order addresses all of defendants' claims except challenges by Davis to venue, which we address in an opinion issued simultaneously with this order. We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision with respect to the claims addressed herein.
In challenging the sufficiency of the evidence supporting the interstate commerce element of their Hobbs Act convictions, defendants assume a heavy burden, see Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord United States v. Abu-Jihaad, 630 F.3d 102, 134-35 (2d Cir. 2010), cert. denied, 131 S. Ct. 3062 (2011), which is made all the more soby the well-established principle that even a "potential or subtle effect" on interstate commerce will satisfy this element, United States v. Wilkerson, 361 F.3d 717, 726 (2d Cir. 2004) (internal quotation marks omitted).
With regard to the attempted Elmont robbery, this potential effect was established by the victim's testimony that, six times per week, he traveled to Manhattan and the Bronx to deal marijuana that came from California. See, e.g., United States v. Elias, 285 F.3d 183, 189 (2d Cir. 2002). With regard to the attempted Wickham robbery, the potential effect was established by evidence that the victim was a marijuana dealer, whose money had recently "gone to market" to purchase more drugs, Trial Tr. 758-59, coupled with expert testimony that trafficking quantities of marijuana are commonly produced outside New York State. See United States v. Parkes, 497 F.3d 220, 231 (2d Cir. 2007).
Insofar as defendants further challenge the district court's interstate commerce charge in light of United States v. Gomez, 580 F.3d 94, 100 (2d Cir. 2009), because defendant did not object to the charge, the plain-error test applies. See United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (). Here, the government concedes that the district court erred in including within the jury charge a reference to congressional findings that even local narcotics activity has a substantial effecton interstate commerce. Nevertheless, in view of the evidence supporting the effect on interstate commerce of the robberies of dealers in marijuana, any such error was harmless and did not affect the defendants' substantial rights or the fairness of the proceeding. See Fed. R. Crim. P. 52(b); United States v. Needham, 604 F.3d 673, 683 n.5 (2d Cir. 2010) ().
Defendants contend that the evidence was insufficient to demonstrate that (1) they conspired to distribute marijuana and (2) the quantity involved exceeded 100 kilograms. In fact, co-conspirator Derrilyn Needham provided evidence of defendants' membership in a common scheme to rob drug dealers of money or drugs, the latter of which would be sold. Moreover, a jury could infer that the conspiracy intended to distribute at least 100 kilograms of marijuana, or approximately 220 pounds, from evidence that the conspirators targeted at least five different drug dealers; one target's testimony that he shipped 500-800 pounds of marijuana a month; Needham's testimony that she had previously sold 1,000 pounds for one of the targets whom she described to Davis and Gunn as a "big-time drug dealer," Trial Tr. 484; and the conspirators' discussion that yet another target was a "large scale drug dealer that dealt in weight in marijuana," id. at 464.
Davis challenges the introduction of expert DNA evidence linking him to the murder of Stephanie Laing on the ground that his counsel should have been notified before the testing process depleted the entire blood sample. While expressly disclaiming any argument that the government acted in bad faith, Davis contends that its actions violated due process and Fed. R. Crim. P. 16(a) and that he was prejudiced by the inability to test the sample independently.
Davis' due process claim is foreclosed by Arizona v. Youngblood, 488 U.S. 51, 58 (1988), which held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Nor can Davis distinguish this case from Youngblood on the ground that the government here sought to use the unpreserved evidence at trial. As the Supreme Court has explained, "the applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecution's case or the defendant's defense, but on the distinction between 'material exculpatory' and 'potentially useful' evidence." Illinois v. Fisher, 540 U.S. 544, 549 (2004) (quoting Arizona v. Youngblood, 488 U.S. at 57-58). There is no showing that the unavailable DNA evidence would have been exculpatory. It was merely potentially useful. To the extent Davis contends that the government's actions here were more suspect than in Youngblood or Fisher, he provides only potential evidence of bad faith, not a reason to discard the bad-faith requirement. Because Davis has not shown bad faith, his due process claim fails.
Davis's Rule 16(a) claim fares no better. Even assuming that any such claim was properly preserved, see United States v. Maniktala, 934 F.2d 25, 27-28 (2d Cir. 1991), and that the government's action constituted error under the rule, Davis has not shown the substantial prejudice necessary to warrant retrial, see United States v. Miller, 116 F.3d 641, 681 (2d Cir. 1997). Davis does not dispute that he had ample opportunity to review the expert report, cross-examine the government's expert, and argue to the jury that the evidence should be discounted because he had no opportunity to retest the sample. Moreover, he provides no basis to think that a retest would have led to a different result, and significant other evidence linked Davis to the murder, including the testimony of multiple witnesses and his own post-arrest statements. Under these circumstances, we cannot conclude that Davis was substantially prejudiced by admission of the DNA evidence.
Davis contends that the district court abused its discretion by denying his motion for severance. In light of the strong federal preference for joint trials, see Zafiro v. United States, 506 U.S. 534, 537 (1993), we will identify abuse of discretion only where denial of a severance caused "substantial prejudice amounting to a miscarriage of justice," United States v. O'Connor, 650 F.3d 839, 859 (2d Cir. 2011) (internal quotation marks and alterations omitted). That is not this case. Although Davis contends that he and Gunn intended to mount mutually antagonistic defenses, such defenses "are not prejudicial per se," Zafiro v. United States, 506 U.S. at 538, and Davis has not shown that "less drastic measures" than severance were insufficient to cure any prejudice, id. at 539.
No different conclusion is warranted by limitations the district court placed on Davis's cross-examination of Ronald Knibbs regarding Gunn's participation in uncharged robberies. Because such evidence hardly constitutes "essential exculpatory evidence" regarding Davis's role in the murder of Grey, id., the...
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