United States v. Davis

• Decision Date: 08 August 2012
• Docket Number: Docket Nos. 10–3424–cr (L), 10–3453–cr (CON).
• Citation: 689 F.3d 179
• Parties: UNITED STATES of America, Appellee, v. Alton DAVIS, Roderick Gunn, a/k/a Zappa, Defendants–Appellants, Derrilyn Needham, a/k/a Ingrid, Ronald Knibbs, a/k/a Birdie, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

689 F.3d 179

UNITED STATES of America, Appellee,

v. Alton DAVIS, Roderick Gunn, a/k/a Zappa, Defendants–Appellants,Derrilyn Needham, a/k/a Ingrid, Ronald Knibbs, a/k/a Birdie, Defendants.

Docket Nos. 10–3424–cr (L), 10–3453–cr (CON).

United States Court of Appeals, Second Circuit.

Argued: June 18, 2012.

Decided: Aug. 8, 2012.

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, NY, for Appellee.

Andrew M. St. Laurent, Harris, Cutler & Houghteling LLP, New York, NY, for Defendant–Appellant Alton Davis.

Howard L. Jacobs (Jeremy B. Sporn, on the brief), New York, NY, for Defendant–Appellant Roderick Gunn.

Before: LEVAL, RAGGI, and CHIN, Circuit Judges.

REENA RAGGI, Circuit Judge:

Defendants Alton Davis and Roderick Gunn appeal from judgments entered against them on August 24, 2010, in the United States District Court for the Southern District of New York (William H. Pauley III, Judge), convicting them of conspiracy to commit Hobbs Act robberies of suspected drug dealers, see18 U.S.C. § 1951 (Count One); attempting to commit such a robbery on Wickham Avenue in the Bronx (“Wickham robbery”), see id. (Count Three); two counts of using and discharging a firearm during the Wickham robbery, including causing the death of Gary Grey, see id. § 924(c)(1)(A)(iii), (j) (Counts Six and Seven); and conspiracy to distribute and possess with intent to distribute more than 100 kilograms of marijuana, see21 U.S.C. §§ 841(a)(1), (b)(1), 846 (Count Eight). Davis also appeals his convictions for attempting to commit a Hobbs Act robbery in Elmont, Long Island (“Elmont robbery”), see18 U.S.C. § 1951 (Count Two), and two counts of using and discharging a firearm during the Elmont robbery, including causing the death of Stephanie Laing, see id. § 924(c)(1)(A)(iii), (j) (Counts Four and Five).

In this opinion, we explain why we reject Davis's challenge to venue in the Southern District of New York for Counts Two, Four, and Five, the Hobbs Act and firearms counts relating to the Elmont robbery. By separate order filed today, we summarily reject defendants' remaining challenges to their convictions. Accordingly, we affirm the challenged judgments in all respects.

I. Factual BackgroundA. Defendants' Criminal Conduct

1. The Robbery Scheme

Over the course of an eight-day trial, at which approximately 40 witnesses testified, the prosecution proved that between mid–2002 and early 2003, defendants Davis and Gunn, along with others, participated in a conspiracy to rob suspected drug dealers of money and drugs. Of the six robberies or attempted robberies about which evidencewas introduced, three occurred in the Bronx, one in Queens, one on Long Island, and one in Maryland. During the Maryland robbery, in which Davis, but not Gunn, participated, approximately $1,000,000 was stolen. In committing robberies, one or more of the conspirators usually was armed with a gun, such that during the Elmont robbery, which targeted a Bronx drug dealer named Robert DeLeon, Davis shot and killed DeLeon's common-law wife, Stephanie Laing, and during the Wickham robbery, Davis shot and killed the robbery target, Gary Grey. Insofar as this opinion focuses on Davis's venue challenge to the substantive counts pertaining to the attempted Elmont robbery, we limit our further discussion of facts to those charges.

2. The Elmont Robbery

In the fall of 2002, Gunn spoke with confederate Derrilyn Needham about robbing “Bobby Sox,” whom he identified as a “big-time drug dealer.” Trial Tr. 373, 380. Gunn directed Needham to locate “Bobby Sox,” whose real name was Robert DeLeon, and to secure his license plate number.¹ Sometime thereafter, Needham spotted DeLeon in a car parked on White Plains Road in the Bronx. After Needham copied DeLeon's license plate number, she and Gunn enlisted a contact with access to records from the New York State Department of Motor Vehicles to “run” the plate. Id. at 377. The conspirators thus learned that the vehicle was registered to Stephanie Laing at 194 Locustwood Boulevard in Elmont, Long Island, within the Eastern District of New York. Together with three other persons, Gunn surveyed the Elmont address and concluded that a robbery “was doable.” Id. at 380–81. Lacking confidence in his cohort, however, Gunn asked Needham to secure Davis's participation in the robbery, which she did. At this point in the conspiracy, Davis had already participated with Gunn and Needham in one successful robbery in the Bronx, as well as in failed robbery attempts in the Bronx and Queens. He had also participated successfully with Needham in the Maryland robbery.

Testifying for the prosecution, Robert DeLeon stated that in the summer and fall of 2002, he lived with Stephanie Laing and their children at 194 Locustwood Boulevard in Elmont. During that time, he sold large quantities of marijuana in the Bronx and Manhattan. DeLeon explained that, approximately three times per month, he received 500 to 800 pounds of marijuana from California at his Elmont home. There, he would break down the shipments into smaller packages that he personally delivered in his car to customers in the Bronx and Manhattan approximately “six times a week.” Id. at 238–39. DeLeon would bring the money earned from these transactions back to Elmont. On October 31, 2002, the date of the planned robbery, DeLeon had neither drugs nor large amounts of money in his Elmont home, having received and distributed a shipment of marijuana the week before.

Early on the morning of October 31, Davis armed himself with a .45 caliber handgun and went to the targeted residence to commit the robbery. Not finding either Gunn or another confederate—each of whom was supposed to serve as a lookout—at the scene, Davis called Needham at her home in the Bronx and asked her to contact the two missing men to find out where they were. Needham did so and reported back to Davis that neither man could participate in the robbery that morning. Davis then asked Needham to come to Elmont and herself serve as lookout. She replied that she could not do so but offered to call “Tammy,” who agreed to provide the needed assistance. Thereafter, at least three persons joined Davis to carry out the Elmont robbery.

On the morning of October 31, DeLeon was home with Laing and the couple's two children. Also present in the house were DeLeon's mother and sister. As part of the morning routine, DeLeon's daughter went outside to warm up DeLeon's car. As she reentered the house, Davis came up behind her and forced his way inside. Laing screamed when she saw the intruder and ran upstairs, with Davis in pursuit. Hearing the scream, DeLeon grabbed a Glock .40 caliber handgun from his bedroom, confronted Davis, and shot him in the right shoulder. DeLeon then ran downstairs, where he chased and fired at the other robbers. Meanwhile, the wounded Davis entered the bedroom where Laing had sought refuge with DeLeon's mother, Eneta Brown. Brown saw Davis lean over to say something to Laing—which Brown could not hear—whereupon Davis shot Laing, first in the eye and then in the chest, killing the woman. Davis also tried to shoot Brown, who was trying to hide under the bed, but his gun misfired.

Together with his confederates, Davis then fled the scene, going first to a cousin's home in Brooklyn and then to a Brooklyn hospital for treatment of the gunshot wound to his shoulder. When local police detectives reported to the hospital to investigate the shooting, he falsely reported being the victim of a street dispute in Brooklyn. In fact, later that day, he would tell a group of persons, including Needham, about the events in Elmont. Needham testified that Davis sounded “almost boastful” in relaying his killing of Laing. Id. at 395. Thereafter, he would also tell Needham that he planned to kill Bobby Sox, i.e., DeLeon, for shooting him.

Although Davis never achieved that murderous objective, in the course of the January 2003 attempted Wickham robbery, in which he participated with Gunn and Needham, Davis shot and killed robbery target Gary Grey. Davis had decided the night before the robbery to murder Grey in order to prevent him from retaliating against the person who gave the robbers entry into his home.

Following his March 2007 arrest by federal and state officials, Davis admitted being present during the attempted Elmont robbery, being fired upon, and shooting back, but claimed to have done so only reflexively, not intending to kill Laing.

B. The District Court's Rejection of Davis's Venue Challenge

1. The Government's Venue Argument and the Court's Jury Charge

In its summation to the jury, the government argued that venue in the Southern District of New York for the crimes related to the attempted Elmont robbery was supported by (1) Needham's procurement in the Bronx of the target's license plate number; (2) Needham's efforts, in response to Davis's October 31, 2002 telephone call, to secure people to help Davis commit the robbery; and (3) the robbery's effect on interstate commerce in the Bronx, where the robbery target dealt drugs.

In its charge to the jury, the district court stated that venue for “robbery or attempted robbery ... is proper in any district where interstate commerce is affected or where the acts in furtherance of the robbery or attempted robbery took place.” Id. at 1826. This language was taken almost verbatim from the parties' joint proposed jury charge.

2. Davis's Rule 29 Challenge to Venue

Prior to trial, Davis moved unsuccessfully to dismiss the Hobbs Act and firearms counts relating to the attempted Elmont robbery, arguing that venue for these three crimes was lacking in the Southern District of New York. Davis renewed the venue challenge toward the close of evidence, moving for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. After the verdict, the district court denied the...