United States v. Eldridge, s. 18-3294-cr

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 2 F.4th 27
• Docket Number: Nos. 18-3294-cr,August Term, 2019,19-92-cr,s. 18-3294-cr
• Parties: UNITED STATES of America, Appellee, v. Thamud ELDRIDGE, Kevin Allen, Defendants-Appellants, Kashika Speed, Galen Rose, Defendants.
• Decision Date: 22 June 2021

2 F.4th 27

UNITED STATES of America, Appellee,
v.
Thamud ELDRIDGE, Kevin Allen, Defendants-Appellants,

Kashika Speed, Galen Rose, Defendants.¹

Nos. 18-3294-cr
19-92-cr
August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: March 10, 2020
Decided: June 22, 2021

Devin McLaughlin, Langrock Sperry & Wool, LLP, Middlebury, VT, for Defendant-Appellant Thamud Eldridge

Cheryl M. Buth, Meyers Buth Law Group, Orchard Park, NY, for Defendant-Appellant Kevin Allen

Katherine A. Gregory, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee

Before: CHIN, SULLIVAN, and Nardini, Circuit Judges.

William J. Nardini, Circuit Judge:

Defendants-Appellants Thamud Eldridge and Kevin Allen appeal from their convictions and sentences after a jury trial in the United States District Court for the Western District of New York (Richard J.

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Arcara, J. ).² In this opinion, we address three of their arguments. First, the defendants challenge the district court's decision to hang a waist-high black curtain around the defense tables—designed to prevent the jury and spectators from seeing whether the defendants were in leg-irons—arguing that the curtain prejudiced the jury against the defendants and so rendered their trial unfair. Second, Eldridge argues that his conviction on Count Seven for possessing and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c), must be vacated in light of the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), and this Court's decision in United States v. Barrett , 937 F.3d 126 (2d Cir. 2019), since none of the predicate offenses on which his § 924(c) conviction was based remains a valid crime of violence as defined by the statute. Third, Eldridge argues that he is entitled to a lower sentence on Count Seven—the second of his two § 924(c) convictions—because, after the district court pronounced sentence but while his case was pending on appeal, Congress enacted Section 403(a) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5221–22, which reduced the mandatory minimum sentence for that count to 7 years rather than 25 years.

We conclude that the presence of the curtain at trial did not infringe the defendants’ right to a fair trial and that the district court acted well within its discretion to safeguard courtroom security while minimizing prejudice to the defendants. On the second point, we agree with Eldridge that conspiracy to commit Hobbs Act robbery—one of the three possible predicates for his § 924(c) conviction—is not a crime of violence under Davis and Barrett. It was therefore error for the court to instruct the jury that all three predicates, including the conspiracy, were crimes of violence for the purposes of § 924(c). But we find that Eldridge has not shown that this error affected his substantial rights, in light of the overwhelming evidence supporting the third, valid theory—namely, that Eldridge attempted to commit Hobbs Act robbery. In reaching this conclusion, we hold that the Supreme Court's recent decision in Greer v. United States , No. 19-8709, ––– U.S. ––––, ––––, 141 S.Ct. 2090, ––– L.Ed.2d ––––, 2021 WL 2405146, at *4 (U.S. June 14, 2021), abrogated our Circuit's earlier precedent in United States v. Viola, 35 F.3d 37, 42–43 (2d Cir. 1994), and that even where an unpreserved claim of error is based on supervening precedent, the defendant bears the burden of establishing all four prongs of the plain-error standard, including that the error affected his substantial rights. On the third point, we hold that Section 403(a) of the First Step Act does not apply to Eldridge because that revised sentence provision applies only "if a sentence for the offense has not been imposed" as of the date of that law's enactment. Eldridge's sentence was imposed when the district court pronounced it, and the pendency of his appeal does not alter that fact. Finally, in a separate summary order, we find that reversal is not warranted on any of the defendants’ remaining claims. As a result, we affirm Eldridge's and Allen's convictions and sentences.

I. BACKGROUND

A. The Superseding Indictment

In 2009, a federal grand jury indicted Eldridge and Allen, along with co-defendants

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Kashika Speed and Galen Rose, for offenses arising from their participation in a drug-dealing enterprise that operated in Buffalo, New York, from 2003 to 2005. After many pre-trial motions, the severing of two counts as to Eldridge, and Speed's guilty plea, the defendants went to trial in 2016 on a fifteen-count superseding indictment. As relevant here, Eldridge and Allen were charged as follows:

• Count One (Eldridge and Allen): substantive RICO violation;³

• Count Two (Eldridge and Allen): RICO conspiracy;

• Count Three (Eldridge and Allen): narcotics conspiracy;

• Count Four (Eldridge and Allen): possession of firearms in furtherance of the drug trafficking crime described in Count Three;

• Count Five (Eldridge and Allen): kidnapping in aid of racketeering;

• Count Six (Eldridge and Allen): conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery;

• Count Seven (Eldridge and Allen): possessing and brandishing a firearm in furtherance of the crimes of violence charged in Counts Five and Six;

• Count Ten (Eldridge): murder in aid of racketeering;

• Count Eleven (Eldridge and Rose): conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery;

• Count Twelve (Eldridge and Rose): discharge of a firearm causing death in furtherance of the crimes of violence charged in Counts Ten and Eleven;

• Count Thirteen (Eldridge and Allen): murder in aid of racketeering;

• Count Fourteen (Eldridge and Allen): conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery; and

• Count Fifteen (Eldridge and Allen): discharge of a firearm causing death in furtherance of the crimes of violence charged in Counts Thirteen and Fourteen.⁴

B. Installation of the Curtain

During pretrial proceedings, in keeping with the recommendation of the United States Marshals Service, the defendants appeared in court wearing leg shackles, fastened at the ankle. The Marshals Service was concerned about the defendants’ criminal histories, as well as the nature of the charges.

In anticipation of the possibility that the defendants would be shackled during trial, the district court ordered the placement of a waist-high black curtain that ran down the center of the courtroom from the Judge's bench to about three feet from the spectators’ gallery, then wrapped around the defense tables to the wall farthest from the jury box. In this way, neither jurors nor spectators would be able to see the defendants’ shackled legs.

The defendants moved to be unshackled during trial, arguing that such restrictions were unnecessary and prejudicial. On the morning of jury selection, the district court heard argument from the parties as well as the views of the Marshals Service, which reiterated its security concerns, particularly in light of the sensitive and potentially provocative nature of the testimony

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expected at trial. After considering the matter, the district court granted the defendants’ motion but also acknowledged the validity of the Marshals’ concerns. The court noted that it was possible that one or more defendants would need to be shackled at some point during trial, but in that event the court stated that it would "have it all covered up here." D. Ct. Dkt. 837 at 6.

When the members of the venire panel first entered the courtroom for jury selection, the curtain was in place. At some point during the first day of jury selection, the defense requested removal of the curtain, and the district court denied that request. The defendants then moved for a mistrial after opening statements, based in part on the presence of the curtain. The district court denied this motion by written order after oral argument.

In its ruling, the district court identified several case-specific security considerations. The court cited the defendants’ violent criminal histories, including that Allen was already serving a sentence for murder and that Eldridge had previous manslaughter and robbery convictions. The court further noted that the Marshals had identified Rose as a flight risk. Lastly, the court observed that prosecution witnesses had already been threatened, prompting the court to impose a protective order over the witness list and other discovery materials. In light of these circumstances, as well as the nature of the charged offenses, the court concluded it was "certainly not wholly unforeseeable" that shackles would need to be imposed at some point during trial. Allen App'x at 146. The court then held that the continued presence of the curtain in the courtroom was the "least restrictive means" to accomplish the competing goals of ensuring a secure courtroom and minimizing the prejudice faced by the defendants in the event that shackles became necessary later in the trial. Id. at 147.

C. Eldridge's Conviction...