United States v. Walker

Citation974 F.3d 193
Decision Date11 September 2020
Docket NumberNos. 18-1933,August Term, 2019,18-2085,s. 18-1933
Parties UNITED STATES of America, Appellee–Cross-Appellant, v. Shameke WALKER, Defendant-Appellant–Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael O. Hueston, ESQ., Brooklyn, N.Y., for Defendant-AppellantCross-Appellee.

Andrey Spektor, Assistant United States Attorney for the Eastern District of New York (Samuel P. Nitze & Lindsay K. Gerdes, Assistant United States Attorney, on the brief), for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for AppelleeCross-Appellant.

Before: Jacobs, Carney, and Park, Circuit Judges.

Carney, Circuit Judge:

In 2016, Defendant-Appellant Shameke Walker was convicted by a jury of (1) Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) ("Count One" or the "Hobbs Act robbery count"); (2) Committing Physical Violence in Furtherance of a Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) ("Count Two" or the "violence-in-Hobbs Act robbery count," which is not challenged on appeal); (3) Possessing, Brandishing, and Discharging a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c) ("Count Three" or the "firearm-in-crime-of-violence count"); and (4) Being a Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1) ("Count Four" or the "felon-in-possession count"), all in connection with his 2015 robbery of a convenience store in Brooklyn, New York. After dismissing the violence-in-Hobbs Act robbery count as duplicative of the Hobbs Act robbery count, the United States District Court for the Eastern District of New York (Weinstein, J. ) sentenced Walker to ten years of incarceration—the mandatory minimum sentence associated with the firearm-in-crime-of-violence count—to run consecutive to a sentence of time served on Counts One and Four. We now resolve Walker's appeal and the government's cross-appeal.

Walker attacks his three remaining convictions on several grounds. He first argues that the firearm-in-crime-of-violence count should have been dismissed because (he submits) Hobbs Act robbery is not a "violent crime" within the meaning of 18 U.S.C. § 924(c). On the same rationale, he maintains that the District Court's jury instructions regarding the firearm-in-crime-of-violence count were erroneous, warranting vacatur. Walker also urges that the Supreme Court's decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), compels reversal of his conviction on the felon-in-possession count because the District Court lacked jurisdiction over his prosecution, the government adduced insufficient evidence to prove that count, and the related jury instructions were erroneous. Walker further contends that the District Court made numerous erroneous evidentiary rulings, necessitating a new trial. Finally, Walker assails the District Court's denial of his motion for a new trial under Federal Rule of Criminal Procedure 33, charging several different errors that in his view require retrial.

On its cross-appeal, the government points to several recent decisions by our Court that, in its view, establish that New York Robbery in the Second Degree is a "violent felony" under the ACCA, 18 U.S.C. § 924(e). See, e.g., United States v. Moore , 916 F.3d 231 (2d Cir. 2019) ; United States v. Thrower , 914 F.3d 770 (2d Cir. 2019) ; United States v. Pereira-Gomez , 903 F.3d 155 (2d Cir. 2018). These decisions necessitate a remand to the District Court for resentencing, in the government's view.

For the reasons that follow, we reject each of Walker's lines of attack. His arguments with respect to Count Three, the firearm-in-crime-of-violence count, are foreclosed by our opinion in United States v. Hill , 890 F.3d 51, 60 (2d Cir. 2018), in which we held that Hobbs Act robbery qualifies, categorically, as a crime of violence under the elements clause of 18 U.S.C. § 924(c). His jurisdictional challenge to his conviction on Count Four, the felon-in-possession count, is similarly foreclosed by our opinion in United States v. Balde , 943 F.3d 73, 92 (2d Cir. 2019), and he cannot establish that the asserted evidentiary and other failures on the part of the government and the District Court amount to plain error requiring vacatur or reversal. As discussed in detail below, the District Court acted well within the permissible bounds of its discretion in its various evidentiary rulings and in denying Walker's motion for a new trial. As to the government's cross-appeal, however, we agree that our recent precedents confirm that New York Robbery in the Second Degree falls within the ACCA's definition of "violent felony" and that, accordingly, resentencing is required.

We therefore AFFIRM Walker's judgment of conviction and REMAND for RESENTENCING.

BACKGROUND1

This appeal stems from Walker's conviction for the June 13, 2015 robbery of a Brooklyn convenience store. During that robbery, Walker—who was then on supervised release following his conviction for unlawfully possessing a firearm but, nevertheless, had come to the scene equipped with a firearm—attempted to shoot the store's clerk, Bazel Almontaser. Walker missed. His shot instead struck an uninvolved security guard standing across the street.

Based on the events of that day, a grand jury returned an indictment charging Walker with Hobbs Act robbery and a related offense (Counts One and Two), as well as crimes relating to his unlawful possession and use of a firearm and ammunition (Counts Three and Four).2 Walker decided to proceed to trial on these charges.

I. Pretrial Proceedings

Before Walker's trial began, the District Court made several rulings that are relevant to this appeal and that we therefore discuss in some detail.

First , in April 2016, the court denied Walker's motion to dismiss Count Three (the firearm-in-crime-of-violence count) for failure to state a claim. It reasoned that the question whether Hobbs Act robbery, as charged in Count One, was a crime of violence with the meaning of 18 U.S.C. § 924(c) —a question that was being litigated when Walker sought Count Three's dismissal—was not dispositive of the motion because committing physical violence in furtherance of a Hobbs Act robbery, as charged in Count Two, was such a crime.

Second , the District Court denied Walker's motion to preclude admission of fingerprint evidence collected from a cigarette carton that, as captured on video by surveillance cameras, Walker had attempted to steal from the convenience store during the robbery. In the period leading up to trial, the government produced to Walker, among other discovery, a report prepared by New York City Police Department ("NYPD") Detective Patricia Lezcano discussing those fingerprints (the "Fingerprint Report"). The Fingerprint Report advised that the carton contained three latent prints, each of which was matched to Almontaser.

At the time, the parties appear to have understood the Fingerprint Report to mean that the carton contained no other usable prints. This understanding was dispelled, however, when—just days before trial was scheduled to begin—the government met with Lezcano in a witness preparation session and she clarified that the carton contained a fourth print that was in fact usable; she simply had not identified its source. The government then directed Lezcano to perform a comparative analysis between the unidentified fourth print and Walker's prints and, after doing so, Lezcano determined that the previously unidentified print was Walker's.

When the government disclosed this new information, Walker responded that the government had violated its Rule 16 obligation to timely comply with discovery requests and asked the District Court "to preclude this fingerprint evidence." App'x 178. Finding the new evidence too "important" to exclude, the court refused to do so, but signaled that it was willing to provide Walker a lengthy continuance, including to prepare for a Daubert hearing as to whether the report was "unreliable as a class of evidence." App'x 178-79. Walker instead determined to challenge the fingerprint evidence through the testimony of one Dr. Itiel Dror, an expert in cognitive bias. The District Court allowed Walker to proceed as he proposed, and additionally, accommodated his request for a trial date in July, the month following all of this motions practice.

Third , the court permitted Officer Tanya Parris of the U.S. Probation and Pretrial Services Office ("Probation") to make an in-court identification of Walker. Parris had supervised Walker, in connection with a prior conviction, for a year before the robbery. Because of her familiarity with Walker—including with his general appearance at the time of the robbery—the government sought to adduce her testimony that Walker was the very person captured on the convenience store surveillance video in the middle of committing the robbery in question. The District Court agreed that such an identification would be probative, but it also recognized that it would be prejudicial to Walker should the jury learn that Parris knew him only in her capacity as his probation officer. It therefore precluded any testimony relating to the precise circumstances under which Walker and Parris had become acquainted, ordering Parris that she should "inform the jury on direct examination" only "that she ‘works for an agency to which Mr. Walker has to report.’ " App'x 174.

Fourth , the court found unpersuasive Walker's motion to preclude Almontaser's pretrial identification of Walker from a photographic array, in which Walker argued primarily that the fillers (photographs of non-suspects) did not bear sufficient resemblance to him. After examining the array itself, the District Court concluded that the array was "good," rather than being unduly "suggestive." App'x 118.

Fifth , and finally, the court precluded the defense's proposed inquiry into Almontaser's two prior...

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