United States v. Reed

• Decision Date: 25 June 2014
• Docket Number: Docket Nos. 13–359(L), 13–361(con), 13–380(con).
• Citation: 756 F.3d 184
• Parties: UNITED STATES of America, Appellee, v. Gregory REED, also known as Sharky, John Johnson, Ronnie Gonzalez, also known as Satan, Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

756 F.3d 184

UNITED STATES of America, Appellee,

v.Gregory REED, also known as Sharky, John Johnson, Ronnie Gonzalez, also known as Satan, Defendants–Appellants.

Docket Nos. 13–359(L), 13–361(con), 13–380(con).

United States Court of Appeals,Second Circuit.

Argued: Feb. 6, 2014.

Decided: June 25, 2014.

Todd W. Blanche, Assistant United States Attorney (with Brent S. Wible, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

Jeremy Schneider (with Lucas Anderson on the brief), Rothman, Schneider, Soloway & Stern, LLP, New York, NY, for Appellant Gregory Reed.

James E. Neuman (with David S. Greenfield on the brief), New York, NY, for Appellant John Johnson.

Thomas H. Nooter, Freeman, Nooter & Ginsberg, New York, NY, for Appellant Ronnie Gonzalez.

Before: JACOBS, CALABRESI, and POOLER, Circuit Judges.

DENNIS JACOBS, Circuit Judge:

Gregory Reed, John Johnson, and Ronnie Gonzalez (collectively, “Defendants”) appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Sullivan, J.).¹ We affirm. This opinion decides one issue presented by Reed. Other issues raised by Reed and the other defendants are considered in a summary order issued simultaneously with this opinion.

Reed contends that his Sixth Amendment right to counsel was violated when he was placed in a lineup on April 8, 2010, without the benefit of counsel, notwithstanding that (according to Reed) his right to counsel had attached because a Kings County Grand Jury had voted a true bill on April 5, 2010. The district court concluded that Reed's Sixth Amendment right to counsel had not yet attached because no “accusatory instrument” had been filed in any court, and, accordingly, “adversary judicial criminal proceedings” had not commenced under New York law. United States v. Reed, No. 11 Cr. 487(RJS), 2012 WL 2053758, at *2, 2012 U.S. Dist. LEXIS 79552, at *8, *9 (S.D.N.Y. June 6, 2012) (internal quotation marks omitted, emphasis in original). Accordingly, Judge Sullivan denied Reed's motion to suppress.

We decline to follow the district court's analysis. Under Rothgery v. Gillespie County, 554 U.S. 191, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008), Reed's Sixth Amendment right to counsel may well have attached when the Grand Jury voted a true bill of indictment against him. We need not decide that question, however, because any error in admitting at trial the lineup identification of Reed was harmless beyond a reasonable doubt.

I

A drug dealer named Donnell Richardson wanted to oust and replace competitors who were doing business in the lobby of an apartment building. He used the three defendants to frighten away his rivals, with the inducement that they could keep whatever drugs or money they could lay hands on. On December 1, 2007, defendant Reed and a second member of the ad hoc crew entered the lobby armed, fired one shot each, and killed Bernardo Garcia. The other dealer, Luis Navarro, escaped unhurt up a staircase. The third defendant stood watch outside. Richardson waited in his car nearby.

On April 5, 2010, a Grand Jury sitting in Bronx County Supreme Court voted a true bill in connection with the December 1, 2007 shooting, charging Reed with murder in the second degree, attempted murder in the second degree, manslaughter in the first degree, and two counts of criminal possession of a weapon in the second degree.

No indictment was filed and no arrest warrant was issued at that time. Nevertheless, in the early morning hours of April 8, 2010, state law enforcement officers “detained” Reed. Reed, No. 11 Cr. 487(RJS), 2012 WL 2053758, at *1–2, 2012 U.S. Dist. LEXIS 79552, at *4. (The stated and actual legal grounds for this detention are unclear.) When Reed was told, later that afternoon, that he would be placed in a lineup, he explicitly requested that counsel be appointed to observe the lineup. That request was denied. At the lineup, the surviving victim, Navarro, identified Reed as his assailant. Reed was thereafter charged pursuant to a criminal complaint filed by the District Attorney's Office. The next day, Reed was presented before a judge and arraigned on the complaint. An indictment was filed in Bronx County Supreme Court on April 28, 2010, twenty-three days after the return of the true bill.

The bulk of the information leading to the conviction of Reed and his co-defendants was provided by Richardson, a drug dealer with a long and varied criminal history. Richardson recounted to Special Agent Daniel Dyer of the Drug Enforcement Agency (as Richardson later testified at trial) that he enlisted Reed and defendant Ronnie Gonzalez to rob the rival drug dealers of their drugs, guns, and money and take over the building for himself, and that Reed in turn recruited defendant John Johnson. As payment for their services, the men agreed that Defendants would keep any drugs and money that they stole.

In light of Richardson's disclosure that the shooting resulted from a failed robbery of crack cocaine and heroin, federal criminal proceedings were initiated against Defendants. On June 6, 2011, Indictment 11 Cr. 487(RJS) was filed, charging Defendants with Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count One); attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Count Two); and causing the death of Bernardo Garcia through the use of a firearm during and in relation to the crimes charged in Counts One and Two, in violation of 18 U.S.C. §§ 924(j) and 2 (Count Three).

On March 9, 2012, Reed moved to suppress Navarro's lineup identification of Reed as his assailant, claiming it was conducted in violation of his Sixth Amendment right to counsel. The district court denied the motion, and the case proceeded to trial. The jury convicted each defendant of one count of conspiracy to commit Hobbs Act robbery and one count of attempted Hobbs Act robbery, both in violation of 18 U.S.C. § 1951, and one count of possession and use of a firearm during a crime of violence resulting in the death of another, in violation of 18 U.S.C. § 924(j). On January 15, 2013, Reed was sentenced to life imprisonment and three years' supervised release.

This appeal followed.

II

“In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. “The Sixth Amendment right of the ‘accused’ to assistance of counsel in ‘all criminal prosecutions' is limited by its terms: it does not attach until a prosecution is commenced.” Rothgery, 554 U.S. at 198, 128 S.Ct. 2578 (quoting U.S. Const. amend. VI) (some internal quotation marks and footnote omitted). “Attachment” refers to “ when the [Sixth Amendment] right may be asserted”; it does not concern the separate question of “ what the right guarantees” once it is attached. Id. at 214, 128 S.Ct. 2578 (Alito, J., concurring) (emphasis in original). The issue here is whether Reed's Sixth Amendment right to counsel attached upon the Grand Jury's voting of the true bill, i.e., when it voted to indict Reed. There is no question that, if the right attached, Reed was entitled to counsel during the lineup at which Navarro identified Reed as his assailant. See United States v. Wade, 388 U.S. 218, 226, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (explaining that a post-indictment corporeal lineup is “a critical stage of the prosecution” at which the Sixth Amendment guarantees the presence of counsel).

The Supreme Court has “pegged commencement [of a prosecution] to ‘the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Rothgery, 554 U.S. at 198, 128 S.Ct. 2578 (quoting United States v. Gouveia, 467 U.S. 180, 188 (1984)). “The rule is not ‘mere formalism,’ but a recognition of the point at which ‘the government has committed itself to prosecute,’ ‘the adverse positions of government and defendant have solidified,’ and the accused ‘finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.’ ” Id. (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion)).

Under New York law, “[a] criminal action is commenced by the filing of an accusatory instrument with a criminal court.” N.Y.Crim. Proc. § 100.05. This, the Government argues (and the district court held), is the beginning and end of the inquiry: adversary judicial proceedings began (at the earliest) only when Reed was brought to court and presented on the complaint—that is, April 9, 2010, the day after the lineup and four days after the grand jury voted the true bill. See Reed, No. 11 Cr. 487(RJS), 2012 WL 2053758, at *2–3, 2012 U.S. Dist. LEXIS 79552, at *7–8; see also People v. Blake, 35 N.Y.2d 331, 339–40, 361 N.Y.S.2d 881, 320 N.E.2d 625 (1974) (relying on Kirby and § 100.05 to hold that Sixth Amendment rights attach only upon the filing of an accusatory instrument). Case law since Kirby, however, has clarified that “what counts as a commitment to prosecute is an issue of federal law unaffected by allocations of power among state officials under a State's law.” Rothgery, 554 U.S. at 207, 128 S.Ct. 2578; see also Moran v. Burbine, 475 U.S. 412, 429 n. 3, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (“[T]he type of circumstances that would give rise to the right would certainly have a federal definition[.]”).

In Rothgery, the Fifth Circuit had held that the Sixth Amendment did not attach at the defendant's initial arraignment (which under Texas law need not be attended or even known of by the assigned prosecutor), “reason[ing] that because the decision not to prosecute is the quintessential function of a prosecutor under Texas law, the State could not commit itself to prosecution until the prosecutor signaled that it had.” 554...