United States v. Lauria
| Docket Number | 21-2598-cr,August Term 2022 |
| Decision Date | 09 June 2023 |
| Parties | UNITED STATES of America, Appellee, v. Anthony LAURIA, Defendant, Anthony Molina, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
RICHARD W. LEVITT (Zachary Segal, on the brief), Levitt & Kaizer, New York, NY, for Defendant-Appellant.
LINDSEY KEENAN, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief) for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Before: Leval, Raggi, and Pérez, Circuit Judges.
Defendant Anthony Molina stands convicted after a jury trial in the United States District Court for the Southern District of New York (Nelson S. Román, Judge) of conspiratorial and substantive Hobbs Act robbery of a Connecticut Verizon store in 2017 (Counts I and II); the brandishment of a firearm in the commission of a crime of violence (i.e., the robbery charged in Count II) (Count III); conspiratorial and substantive Hobbs Act robbery of a New York Verizon store in 2019 (Counts IV and V); and the brandishment of a firearm in the commission of a crime of violence (i.e., the robbery charged in Count V) (Count VI). See 18 U.S.C. §§ 1951, 924(c)(1)(A)(ii) & 2. Now incarcerated, serving a total prison term of 192 months (i.e., 16 years), Molina appeals his conviction arguing that the district court erred in (1) relying on the "inevitable discovery" doctrine to deny his motion to suppress evidence obtained through warrants supported by affidavits containing conceded misstatements, and (2) charging the jury that a gun constitutes a firearm and refusing to give Molina's requested clarifying instruction that "[a] pellet gun, imitation, facsimile or toy gun does not constitute a firearm within the meaning of the statute." App'x 58-59.
For reasons stated in this opinion, we vacate the district court's denial of Molina's motion to suppress certain evidence obtained through defective warrants on the ground of inevitable discovery. That exception to the exclusionary rule does not apply here, where the government cannot show that it inevitably would have discovered the challenged evidence through independent means but, instead, shows only that it could have discovered that evidence by redressing flaws in the warrant affidavits revealed by Molina's suppression motion. In the absence of inevitable discovery, and because the conceded misstatements in the warrant affidavits were material to the issuing magistrate judges' probable cause determinations, the district court could not admit the challenged evidence without conducting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to determine the affiant's state of mind in making the misstatements at issue. Accordingly, we remand for such a hearing, with instructions that the district court maintain or vacate Molina's convictions on Counts I, II, IV, and V depending on its Franks-hearing findings.
As to the firearms counts of conviction, we conclude that the district court erred in charging the jury that "a gun is a firearm," App'x 63, in light of this court's precedent holding that "not all guns are firearms," United States v. Rosa, 507 F.3d 142, 145 n.1 (2d Cir. 2007). Because we cannot conclude that this error was harmless, we vacate Molina's convictions under Counts III and VI and remand for further proceedings consistent with this opinion, including possible retrial with a correct jury instruction.
We begin by recounting particulars of the charged crimes as supported by evidence offered at Molina's 2021 trial. Thereafter, and as necessary to resolve Molina's appeal, we discuss the more limited facts (both accurate and mistaken) submitted in affidavits to support the challenged warrants.
On August 10, 2017, defendant Anthony Molina, together with co-conspirators Anthony Lauria and Brian Rodriguez, committed the armed robbery of a Verizon Wireless store in New Milford, Connecticut ("New Milford Robbery"). Some eighteen months later, on February 15, 2019, the three men committed the armed robbery of a Verizon Wireless store in Mahopac, New York ("Mahopac Robbery"). Both robberies were captured on surveillance footage, which demonstrated many shared characteristics, including the early evening time of the robberies; two men (i.e., Molina and Rodriguez) robbing the stores, while a third (i.e., Lauria) acted as getaway driver; the use of zip-ties to restrain victims; the brandishment of a gun during each robbery; and the use of the same, or a similar, Honda Accord to flee the robbery scene.1 Because Molina and Rodriguez used a mask or a hat and sunglasses to conceal their faces during the robberies, no eyewitness identifications were obtained. Instead, the robbers' identities were established largely through forensic evidence, as detailed herein.
At 7:22 p.m. on August 10, 2017, Lauria entered the target New Milford Verizon store and asked a clerk about purchasing an iPhone. After exiting the store without making a purchase, Lauria walked toward a dark-colored Honda Accord with distinctive tire rims. Soon after, at 7:34 p.m., Rodriguez and Molina exited that Honda and entered the Verizon store. Brandishing a gun, Molina restrained two persons in the store with zip-ties and disabled many of the store's security systems. He and Rodriguez then proceeded to steal 77 Apple iPads and iPhones valued at $48,680 from the store's back room before fleeing the scene.
At 7:40 p.m. on February 15, 2019, what appeared to be the same Honda sedan seen at the New Milford Robbery pulled up to the target Mahopac Verizon store. Within minutes, Rodriguez and Molina exited the Honda and entered the store. Once again, one of the robbers disabled many of the store's security systems. Also, Molina brandished a gun and zip-tied the wrists of a store clerk. This time, he and Rodriguez stole iPhones and other electronic devices valued at $54,745 from the store's safe before fleeing the scene.
Soon after the New Milford Robbery, that town's police began an investigation to identify the robbers, inter alia, taking witness statements, reviewing video surveillance footage, and recovering a fingerprint from the door of the target Verizon store. A comparison of that fingerprint with those on file with New York State would later reveal the recovered print to match the right thumb of Anthony Lauria.
Town police also posted surveillance video of the New Milford Robbery online. On January 8, 2018, Connecticut State Police received an anonymous tip from two persons who had seen the video and identified the robbers as Lauria, Rodriguez, and Molina. The tipsters provided Instagram account and contact information for these three persons—specifically, phone numbers ending in -3972 for Lauria, -1912 for Rodriguez, and -9885 for Molina. By querying a law enforcement database, New Milford police were able to corroborate the tipsters' attribution of the -3972 number to Lauria.2 Further, by comparing a New York arrest photo of Lauria with surveillance footage of the unmasked man who entered and left the Verizon store shortly before the New Milford Robbery, town police were able to place Lauria at the scene of that crime.
On February 15, 2018, New Milford police obtained from a Connecticut Superior Court judge a warrant for toll records and historical cell-site location information ("CSLI") for Lauria's -3972 cell phone for the month of August 2017. On May 18, 2018, police obtained another state warrant for the same information and time period for Rodriguez's -1912 cell phone. Responsive records revealed that throughout August 2017 these two cell phones were used exclusively in New York State except on August 10, 2017, i.e., the date of the New Milford Robbery, when the phones were both used in New Milford. Between 3:06 p.m. and 11:47 p.m. on that date—i.e., in an approximately nine-hour span that included the time of the New Milford Robbery—Rodriguez's -1912 cell phone communicated at least six times with Lauria's -3972 cell phone and at least seven times with a then-unidentified cell phone with a call number ending in -4879.3
On March 4, 2019, approximately two weeks after the Mahopac Robbery, an FBI agent obtained from a magistrate judge in the Southern District of New York a "tower extraction" warrant directing several cell service providers to supply phone numbers that had accessed cell towers closest to the Mahopac Verizon store on February 15, 2019, between 6:30 p.m. and 8:30 p.m.—i.e., a two-hour period including the time of that store's robbery.
In response, AT&T reported that its records for the specified period showed that Rodriguez's -1912 cell phone had used a cell tower near the victimized Mahopac store to communicate with Lauria's -3972 cell phone. Meanwhile, Sprint reported that its records for the specified period showed that Lauria's -3972 cell phone had used a cell tower near the Mahopac store to communicate with both Rodriguez's -1912 cell phone and a then-unidentified cell phone with a call number ending in -2454. No records obtained pursuant to the March 4, 2019 warrant, however, revealed the location of the -2454 cell phone when it communicated with Lauria's -3972 cell phone on the date of the Mahopac Robbery.4
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