United States v. Felder

• Decision Date: 31 March 2021
• Docket Number: August Term 2020,No. 19-897-cr,19-897-cr
• Citation: 993 F.3d 57
• Parties: UNITED STATES of America, Appellee, v. Tyrone FELDER, aka Man Man, Defendant-Appellant, Kareem Martin, aka Jamal Walker, Takiem Ewing, aka Mulla, Tommy Smalls, aka Tommy Guns, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

993 F.3d 57

UNITED STATES of America, Appellee,

v. Tyrone FELDER, aka Man Man, Defendant-Appellant,Kareem Martin, aka Jamal Walker, Takiem Ewing, aka Mulla, Tommy Smalls, aka Tommy Guns, Defendants.^*

No. 19-897-cr

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: October 21, 2020

Decided: March 31, 2021

Celia V. Cohen, Assistant United States Attorney (Danielle R. Sassoon, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Benjamin A. Silverman (Andrew G. Patel, Esq., New York, New York, on the brief), Law Office of Benjamin Silverman, New York, New York, for Defendant-Appellant.

Before: Raggi, Sullivan, and Bianco, Circuit Judges.

Reena Raggi, Circuit Judge:

Within the span of eight days in August 2014, defendant Tyrone Felder killed two livery cab drivers by shooting each in the head while stealing their cabs for use in armed robberies. Based on this conduct, Felder now stands convicted after a jury trial of nine crimes: two counts of carjacking resulting in death, see 18 U.S.C. § 2119(3) ; two counts of substantive and one count of conspiratorial Hobbs Act robbery, see id. § 1951; two counts of discharging a firearm in connection with crimes of violence (the fatal carjackings), see id. § 924(c)(1)(A)(iii); and two counts of brandishing a firearm in connection with crimes of violence (the substantive Hobbs Act robberies), see id. § 924(c)(1)(A)(ii). The judgment of conviction, entered on April 5, 2019, in the United States District Court for the Southern District of New York (Vincent J. Briccetti, Judge) , sentenced Felder to a total of life imprisonment plus 34 years for these crimes.

In appealing this conviction, Felder argues that the district court erred in (1) instructing the jury as to the elements of carjacking resulting in death, (2) allowing the government to elicit expert opinion testimony that an object shown in Felder's hand on surveillance video was a firearm, (3) relying on the good-faith exception to the exclusionary rule to admit historical cell-site location information obtained with a warrant not supported by probable cause, and (4) admitting unduly prejudicial photographic and testimonial evidence of Felder's relationship with co-conspirators in the charged crimes. Felder further maintains (5) that carjacking resulting in death and substantive Hobbs Act robbery cannot categorically satisfy the crime-of-violence element of the firearms offenses for which he stands convicted. For the reasons explained in this opinion, we reject these arguments and, accordingly, affirm the judgment of conviction on all counts.

BACKGROUND

Because Felder "appeals a judgment of conviction following a jury trial, we summarize the evidence adduced in the light most favorable to the prosecution." United States v. Ng Lap Seng , 934 F.3d 110, 116 (2d Cir. 2019). That evidence was extensive, including hours of surveillance video from dozens of different private and public surveillance cameras, historical cell-site location records, various forensics reports, and testimony from numerous witnesses. One of these witnesses, Tommy Smalls, participated directly in the charged crimes with Felder, Kareem Martin, and Takiem Ewing. These four conspirators had known each other since childhood, having grown up together in the same Bronx apartment complex.

I. The August 5, 2014 Crimes

Smalls testified that, in early August 2014, Felder proposed robbing a McDonald's restaurant in the Bronx. On the evening of August 4, the four conspirators met to finalize their plan, agreeing to carry guns and to carjack a vehicle for use in the robbery. A few hours later, in the early morning of August 5, Smalls, Martin, and Ewing met at Ewing's Bronx apartment, where, after changing clothes and donning latex gloves, they hailed a black livery cab operated by Maodo Kane and directed Kane to drive them to Felder's home. After picking up Felder, the men instructed Kane to drive to a deserted, dead-end block on Hunter Avenue in the Eastchester section of the Bronx. There, Felder pointed a gun at Kane and ordered him out of the car. When Kane failed to comply, Smalls pulled the livery driver out of the car, whereupon Felder shot Kane once in the back of the head, killing him.

Leaving Kane's dead body on Hunter Avenue, Felder took the wheel of the livery cab and drove his three confederates to the targeted McDonald's. Upon seeing a nearby police station and passing police car, however, the men abandoned their original plan and, instead, drove to Yonkers. There, as Felder waited in the cab, Smalls, Martin, and Ewing entered a convenience store and, at gunpoint, forced occupants to the floor, emptied the cash register, and stole cash and bottles of bleach. Surveillance video captured the entire robbery, including Felder at one point opening the targeted store's front door and exhorting his confederates to hurry up.

As the conspirators drove away from the first robbery scene, they spotted a Dunkin’ Donuts store and decided to rob it too. Again, Felder waited in the cab while Smalls, Martin, and Ewing entered the store armed with guns. Once again, surveillance video captured the crime, showing terrified employees fleeing into a back room while Martin and Ewing emptied the cash register.

Following the second robbery, the conspirators drove to the vicinity of Yankee Stadium, where they abandoned the stolen livery cab after wiping it down with the stolen bleach to eliminate any incriminating evidence. Surveillance video from the surrounding streets shows the men walking several blocks before catching a cab back to Ewing's apartment. There, the conspirators threw the clothes and gloves worn during the night's crimes down a garbage chute and divided the money taken in the two robberies.

II. The August 12, 2014 Crimes

Felder and his confederates soon planned another armed robbery, again to be preceded by a carjacking. Surveillance video, recorded on August 12, 2014, shows Felder, Smalls, Martin, and Ewing exiting Ewing's apartment building and entering a livery cab driven by Aboubacar Bah. The conspirators directed Bah to drive to the Hunts Point section of the Bronx. There, on a quiet block, Felder pointed his gun at Bah's head and instructed him to exit the vehicle. Instead, Bah quickly accelerated the cab, whereupon Felder shot him once in the head, killing him. Surveillance video shows the livery cab—with Bah dead behind the wheel and Felder and his co-conspirators in pursuit on foot—rolling down the street and crashing into parked cars before coming to a halt. The video shows Felder and his confederates then pulling Bah's dead body out of the vehicle and leaving it in the street before driving off in the cab.

The men soon grew concerned that police were following them, and so they abandoned their robbery plan and left the carjacked livery cab on a residential street in the Bronx. Surveillance video captures all four men exiting the vehicle and fleeing on foot, Felder with a dark object in his hand. At trial, a police firearms expert identified this object as a gun. Still other surveillance videos show the conspirators throwing their clothes and gloves into a nearby dumpster and then returning to Ewing's apartment building.

There, the men decided they needed to return to the abandoned vehicle to ensure that it contained no incriminating evidence. When Felder, Smalls, and Martin did so, they saw police already at the scene. Street surveillance videos show the conspirators retrieving their clothing and gloves from the dumpster where they had earlier placed them. The men failed, however, to retrieve gloves worn by Martin, thereby allowing authorities to recover the gloves and obtain incriminating DNA evidence.

Within days, authorities arrested all four conspirators. Smalls, Ewing, and Martin would eventually plead guilty, with Felder alone opting to stand trial.¹ After the jury found Felder guilty of all nine crimes charged in this case, the district court imposed a total prison sentence of life plus 34 years.² This timely appeal followed.

DISCUSSION

I. Jury Instructions as to Carjacking Resulting in Death

Felder stands convicted on two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119(3). The statute states, in relevant part, as follows:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall— ...

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.

18 U.S.C. § 2119.

Felder argues that the jury was erroneously instructed as to the mens rea and causation elements of this crime. Because "[t]he propriety of a jury instruction is a question of law," we review Felder's claim de novo. United States v. Wilkerson , 361 F.3d 717, 732 (2d Cir. 2004) (internal quotation marks omitted). To secure reversal, Felder must demonstrate that the instruction given was erroneous, i.e. , that when viewed as a whole, the instruction misled or inadequately informed the jury "as to the correct legal standard." Id. (internal quotation marks omitted). Felder must also show that the instruction he requested was correct in all respects, and that he suffered ensuing prejudice. See United States v. Fazio , 770 F.3d 160, 166 (2d Cir. 2014). Here, Felder cannot demonstrate either error or prejudice.

A. The Mens Rea Instruction

In charging the mens rea element of federal carjacking, the district court instructed the jury as follows:

The third element the Government must prove beyond a reasonable doubt is that the Defendant acted with intent to cause death or serious bodily harm. To establish this element, the Government must prove that at the moment the Defendant,

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