United States v. Robinson

• Decision Date: 06 January 2021
• Docket Number: 16-CR-545 (SJF)(AYS)
• Citation: United States v. Robinson, 16-CR-545 (SJF)(AYS) (E.D. N.Y. Jan 06, 2021)
• Parties: UNITED STATES OF AMERICA, v. TYRONE ROBINSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

UNITED STATES OF AMERICA, v. TYRONE ROBINSON, Defendant.

16-CR-545 (SJF)(AYS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 6, 2021

OPINION & ORDER

FEUERSTEIN, J.

Pending before the Court are the motions of defendantTyrone Robinson("Robinson" or "defendant"): (i) for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure("Rule 29 Motion"); and (ii) for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure("Rule 33 Motion").For the reasons set forth below, defendant's motions are denied in their entirety.

I.BACKGROUND

On February 4, 2020, defendant was convicted, following a bifurcated jury trial, (A) of twenty-two (22) felony offenses arising from his participation in seven (7) home invasion robberies; and (B) of four (4) felony offenses arising from his unlawful possession of firearms and ammunition.¹See Docket Entry ("DE")[354].Defendant now moves: (A) for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure (i) as to counts nine (9), eighteen (18) and twenty-four (24), each charging Unlawful Use of a Firearm under 18 U.S.C. § 924(c), on the basis that, as a matter of law, attempted Hobbs Act robbery, the predicate for each of those charges, is not a qualifying "crime of violence" under that statute, and (ii) as to countsten (10) through twelve (12), sixteen (16) through twenty-one (21), twenty-five (25) through twenty-eight (28), and thirty (30) through thirty-two (32), on the basis that the evidence of his involvement in certain home invasion robberies on September 18, 2015, January 13, 2016, March 15, 2016 and May 3, 2016, and his unlawful possession of firearms and ammunition on certain dates, i.e., April 17, 2016, June 8, 2016 and between June 10, 2016 and July 8, 2016, was legally insufficient to sustain the jury's verdict on those counts; and (B) for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure on the grounds, inter alia, (i) that defendant was denied due process of law and the effective assistance of counsel by the Court's decision to limit the assistance of associate counsel, (ii) that defendant was denied due process of law, the right to present a defense, the right to confront and cross-examine his accuser, and the effective assistance of counsel by the Court's limitation on cross-examination of Varick Winters("Winters"), a cooperating witness, and by the Court's charge during and after Winters's testimony to disregard certain aspects of the cross-examination, (iii) that defendant was denied the right to present a defense and the effective assistance of counsel by the Court's limitation on trial counsel's summation, and (iv) that defendant was denied the effective assistance of counsel by trial counsel's failure to pursue and obtain independent extractions from, and further analysis of, certain cellphones and to pursue analysis of the IP addresses contained in Government Exhibit 22b.²

II.DISCUSSION³

A.Rule 29 Motion

1.Standard of Review

Rule 29 of the Federal Rules of Criminal Procedure authorizes trial courts to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction."Fed. R. Crim. P. 29."A defendant challenging the sufficiency of the evidence bears a heavy burden because a reviewing court must consider the evidence in the light most favorable to the prosecution and uphold the conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."United States v. Bramer, 956 F.3d 91, 96(2d Cir.2020);see alsoUnited States v. Alcius, 952 F.3d 83, 86(2d Cir.2020), cert. denied, 141 S. Ct. 296(2020)("A defendant bears a heavy burden because we view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility. . . .We will sustain the jury's verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.")In other words, "a court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt."United States v. Temple, 447 F.3d 130, 136(2d Cir.2006);accordUnited States v. Cuti, 720 F.3d 453, 461(2d Cir.2013).

"The jury may reach its verdict based upon inferences drawn from circumstantial evidence, and the evidence must be viewed in conjunction, not in isolation."United States v. Pugh, 945 F.3d 9, 19(2d Cir.2019);see alsoUnited States v. Atilla, 966 F.3d 118, 128(2d Cir.2020)("We must analyze the evidence in conjunction, not in isolation, . . . and apply thesufficiency test to the totality of the government's case and not to each element, as each fact may gain color from others.");United States v. Cote, 544 F.3d 88, 98(2d Cir.2008)("[W]e consider the evidence in its totality, not in isolation, and the government need not negate every possible theory of innocence.")"A court will overturn a conviction [] only if, after viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, it determines that no rational trier of fact could have concluded that the Government met its burden of proof."Pugh, 945 F.3d at 19."The reviewing court must defer to the jury's assessment of witness credibility and its assessment of the weight of the evidence."Pugh, 945 F.3d at 19;see alsoTemple, 447 F.3d at 136("In assessing the evidence, a court is constrained to bear in mind that Rule 29 does not provide it with an opportunity to substitute its own determination of [] the weight of the evidence and the reasonable inferences to be drawn for that of the jury.")"Where a court concludes after a full analysis of the evidence in connection with a Rule 29 motion that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [it] must let the jury decide the matter. . . .Conversely, in passing upon a motion for directed verdict of acquittal, [] if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted."Temple, 447 F.3d at 137accordCuti, 720 F.3d at 461.

2.Attempted Hobbs Act Robbery is a "Crime of Violence"

Initially, defendant renews his contention, expressly rejected by this Court, that attempted Hobbs Act robbery is not a "crime of violence" for purposes of 18 U.S.C. § 924(c).The Honorable Arthur D. Spatt, former United States District Judge, to whom this case was previously assigned, previously concluded that attempted Hobbs Act robbery constitutes a crimeof violence under § 924(c)'s elements clause and, thus, may sustain a § 924(c) charge⁴.SeeUnited States v. Robinson, No. 16-cr-545, 2019 WL 5864135, at *5(E.D.N.Y.Nov. 8, 2019).As explained by Judge Spatt,

"Placing such charges outside the reach of Section 924(c) would run afoul of the plain language of the statutes at issue, as well as analogous Second Circuit case law.The elements clause expressly includes the 'attempted use' or 'threatened use' of force within its definition of crime of violence.Therefore, if a completed Hobbs Act robbery involves the requisite use of force to qualify as a crime of violence, ... then a necessary implication is that an attempt to commit the same crime constitutes an attempted use of force."

Id.

Defendant fails to provide any factual or legal basis for the Court to depart from Judge Spatt's prior ruling.The "categorical approach" adopted by the Supreme Court in Mathis v. United States, --- U.S. ---, 136 S. Ct. 2243, 2248, 195 L. Ed. 2d 604(2016), to evaluate whether an offense constitutes a crime of violence, "involves two steps: first we identify the elements of the predicate conviction by determining the minimum criminal conduct a defendant must commit to be convicted; second, we determine whether that minimum criminal conduct 'has as an element the use, attempted use, or threatened use of physical force [against the person of another].'"United States v. Moore, 916 F.3d 231, 240(2d Cir.2019)(quotingU.S.S.G. § 4B1.2(a)(1));see alsoUnited States v. Samuels, No. 18-cr-306, 2020 WL 5517772, at *5(S.D.N.Y.Sept. 14, 2020)(holding that the categorical approach "requires the court to consider the minimum conduct necessary for a conviction of the predicate offense (in this case, an attempted Hobbs Act robbery), and then to consider whether such conduct amounts to a crime of violence under § 924(c)(3)(A).")"[T]he categorical approach is confined to the legal elements ofthe statute, with no consideration of the facts of the underlying crime."Moore, 916 F.3d at 238;see alsoUnited States v. Welch, No. 17-cr-126, 20-cv-2835, 2020 WL 6200168, at * 2(E.D.N.Y.Oct. 22, 2020)("An offense categorically qualifies as a crime of violence if it has 'as an element the use, attempted use, or threatened use of physical force against the person or property of another,' regardless of whether physical force was actually used in a particular instance.")

Since the Second Circuit has yet to determine whether attempted Hobbs Act robbery qualifies as a crime of violence, the Court must apply the categorical approach to this crime.The Court agrees with the district courts in this Circuit, and other circuit courts, which have found that attempted Hobbs Act robbery constitutes a crime of violence under the force or elements clause of § 924(c)(3)(A).SeeSamuels, 2020 WL 5517772, at * 6(citing cases)."The elements of the statute include 'attempted use' or 'threatened use' of physical force within the definition of crime of violence,"id.(citing18 U.S.C. § 924(c)(3)(A)), and "[i]f a completed Hobbs Act robbery requires an element of physical force to qualify as a crime of violence, then it must...