United States v. Gahagen

• Decision Date: 10 August 2022
• Docket Number: 20-778,August Term, 2021
• Parties: UNITED STATES of America, Appellee, v. Ovell GAHAGEN, aka O, Quincy Homere, aka Q, Marcus Wells, Vincent Bifolco, Jayshant Rose, aka Dred, Defendants, Anael Sainfil, aka M, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

44 F.4th 99

UNITED STATES of America, Appellee,

v.Ovell GAHAGEN, aka O, Quincy Homere, aka Q, Marcus Wells, Vincent Bifolco, Jayshant Rose, aka Dred, Defendants,Anael Sainfil, aka M, Defendant-Appellant.

No. 20-778

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: May 17, 2022

Decided: August 10, 2022

Mark Misorek (Kevin Trowel, on the brief), Assistant United States Attorneys, on behalf of Breon Peace, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.

Michael Rayfield (Nicolas E. Rodriguez, on the brief), Mayer Brown LLP, New York, NY, for Defendant-Appellant.

Before: Kearse, Jacobs, and Nardini, Circuit Judges.

Judge Jacobs concurs in part and dissents in part in a separate opinion.

William J. Nardini, Circuit Judge:

A jury convicted defendant Anael Sainfil of armed bank robbery and related offenses in connection with the November 2015 robbery of a Wells Fargo Bank in Hempstead, New York. Sainfil moved for a judgment of acquittal under Rule 29 and a new trial under Rule 33 of the Federal Rules of Criminal Procedure. The United States District Court for the Eastern District of New York (Denis R. Hurley, Judge ) denied both motions and sentenced Sainfil to 219 months in prison. On appeal, Sainfil challenges the district court's denial of his Rule 33 motion based on his trial counsel's purported ineffective assistance in (a) failing to move to suppress Sainfil's pre- Miranda statement to an agent of the Federal Bureau of Investigation ("FBI"), which effectively admitted that he was outside the bank when it was robbed, and (b) conceding that fact before the jury and arguing that his presence was merely coincidental. Sainfil also challenges the sufficiency of the evidence and argues that his sentence was procedurally and substantively unreasonable. Among other things, Sainfil argues that the district court clearly erred in finding that his co-defendant's use of body armor during the robbery was reasonably foreseeable.

For the reasons discussed below, we reject Sainfil's claims and AFFIRM the judgment of the district court.

I. Background

A. The indictment

On December 20, 2016, a grand jury returned an indictment charging Anael Sainfil, Ovell Gahagen, Quincy Homere, and Marcus Wells with robbing the Wells Fargo Bank in Hempstead, New York, on November 9, 2015, using firearms. The indictment alleged that the four defendants robbed the bank with others, and the government presented evidence at trial indicating that the defendants’ other coconspirators included Jayshant Rose, Yusuf Jackson, Andrew McCarthy, and Tasha Chance. The government also presented evidence indicating that the co-conspirators used the home of a woman named Marcy as a staging area for the robbery. As to Sainfil specifically, the indictment charged him with three counts: conspiracy to commit armed bank robbery under 18 U.S.C. § 371 ; armed bank robbery under 18 U.S.C. § 2113(a) and (d) ; and brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). In the conspiracy count, the indictment alleged that Sainfil served as a lookout outside the bank while his armed coconspirators went inside and took the money. App'x at 34. As to the armed bank robbery and firearms charges, the indictment cited 18 U.S.C. § 2, which provides for aiding and abetting liability. Sainfil pleaded not guilty and went to trial.

B. The trial evidence

Over two days, the government presented the jury with various exhibits, including footage from the bank's surveillance cameras that, the government suggested, showed Sainfil outside the bank in the moments just before the robbery. It also offered testimony from nine witnesses, including three cooperating co-conspirators who had pled guilty to their involvement in the robbery. According to this testimony, Sainfil and his co-conspirators carefully planned the robbery over a period of months, between August 2015 and November 2015; attempted to rob the bank in October 2015 but called it off at the last minute; and finally executed the robbery in November of that year. The defense case was limited to a single composite video from the bank's surveillance system, which was offered to suggest that Sainfil was not the person recorded in the government's videos.

1. The planning of the bank robbery

The government offered testimony from Chance, a former employee at the bank who became romantically involved with Homere. In July 2015, after Chance had been terminated from her job, Homere contacted her and explained that he intended to rob the bank but needed information from her about its security and operations.

Homere arranged with Chance to meet him at his studio. When she arrived, Sainfil met her and brought her upstairs to a bedroom where they met with Homere. The three spent an hour discussing the robbery. Sainfil did most of the talking, asking Chance about the bank's day-to-day operations, the specific locations where cash was stored in the bank, and how to access the vault. Sainfil said to Chance, "If we're going to do this you got to do this right. We can't have any mistakes. Now I need you to walk me through who is working there, who has keys, who has codes." App'x at 368–69. Sainfil and Homere talked about certain bank employees, including a certain teller. Homere suggested that the co-conspirators could fake a car accident and kidnap that teller the night before the bank robbery, and Sainfil added that a person could be "at the house with [the teller's] dad" because "[the teller] is close with [the teller's] dad and ... wouldn't want anything to happen to [him]." Id. at 371. The next day, at another meeting at the studio, Sainfil questioned Chance closely about a new security guard at the bank and said to her: "We cannot miss a beat. We have to stay on track of who's there, how long it takes them to come in, and who is the new people that worked at the bank." Id. at 372.

Other co-conspirators corroborated that Sainfil met with Chance and Homere in the months before the bank robbery. McCarthy testified that on two or three occasions in 2015 he saw Chance, Homere, and Sainfil meeting behind closed doors for about 15 minutes each time. Gahagen testified that he saw Chance come to meet Homere three to six times during the summer of 2015 and saw Chance, Homere, and Sainfil meet for about 15 minutes at least once.

McCarthy testified that, during the planning phase, he and Sainfil said they were not willing to go into the bank during the robbery. Instead, McCarthy agreed to serve as a driver, while Sainfil agreed to be a lookout. Sainfil explained, "If anything goes wrong like being pulled over by the police, I'm only looking [at] spending a small amount of time, two or three years. I'm not going into the bank." App'x at 164. McCarthy also testified that Sainfil was present at a meeting with Homere during which Homere detailed the drop-off and pick-up locations of the co-conspirators after the robbery to McCarthy.

2. The aborted attempt

In October 2015, Homere told Sainfil, McCarthy, and Gahagen that he was ready to rob the bank. McCarthy picked up Jackson and Wells and drove them to a staging area at Marcy's house. McCarthy saw Sainfil and others at Marcy's house preparing for the robbery by putting on black gear, masks, and gloves, and getting an AK-47 and three pistols. After an hour, Homere told Sainfil to "go look in the parking lot and see if you see anybody walking, parking, sitting in their cars" and to call Homere to report what he saw. App'x at 172. Sainfil left Marcy's house and called Homere fifteen minutes later; Homere then announced that "[Sainfil] says it's clear." Id. at 172–73. The co-conspirators left Marcy's house and went to the bank with the guns. However, after arriving at the bank but before entering to rob it, Homere saw someone in a car and announced that it "doesn't feel right," App'x at 175, and so they all left the bank. McCarthy did not see Sainfil at the bank.¹

3. The robbery

McCarthy testified that on November 9, 2015, Homere told him that they were again ready to rob the bank. After dressing in black, McCarthy left his house and met Sainfil, Homere, and Gahagen. Homere, McCarthy, and Gahagen picked up Jackson and Wells. These five co-conspirators went to Marcy's house where they found Sainfil and Rose. Gahagen testified that Sainfil and others were in the garage, where guns and zip ties were getting wiped of fingerprints, and Wells was putting on his bulletproof vest. After everyone was ready, Homere sent Sainfil to the bank and told him to make sure no one was in the parking lot and to call to report what he saw.

McCarthy then drove Homere, Jackson, Rose, and Wells to the bank's parking lot. Five minutes later, McCarthy saw Sainfil walk from the rear of the bank through the drive-through side wearing a hoodie and possibly an ear piece. At the same time, McCarthy saw Homere on the phone and overheard him directing Sainfil to look into specific cars; McCarthy recalled seeing Sainfil look into the same cars described by Homere as he was talking about them. After Sainfil looked into four or five cars and walked past McCarthy's car, Homere told McCarthy to pull up in front of the bank. Homere, Jackson, Rose, and Wells then got out of the car and went into the bank.

Once inside, the co-conspirators announced that they were robbing the bank. Homere brandished an AK-47 rifle. Jackson displayed a .357 revolver. Rose and Wells displayed BB guns. They told bank employees to open safes and the ATM inside the vault. One conspirator told a teller that they knew who she was and where she lived. Rose and Wells zip-tied employees and customers, including an eight-year-old boy. A bank employee grabbed a bag of money with more than $375,000, placed a wireless GPS tracker in the bag, and handed it over. They left through the back of the bank, where McCarthy picked them up and they sped away.

4. Post-robbery events

After leaving the bank, the co-conspirators split...