United States v. Rolle , 631 F. App'x 17 ( 2015 )

14-4322-cr
United States v. Rolle
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 24th day of November, two thousand fifteen.
PRESENT: AMALYA L. KEARSE,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 14-4322-cr
LAMONT ROLLE, AKA Anthony Rolle,
AKA Bam,
Defendant-Appellant.
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APPEARING FOR APPELLANT: COLLEEN P. CASSIDY, Federal Defenders of
New York, Inc., Appeals Bureau, New York,
New York.
APPEARING FOR APPELLEE: MARGARET GARNETT, Assistant United
States Attorney (Tatiana R. Martins, Kan M.
Nawaday, Brian A. Jacobs, Assistant United
States Attorneys, on the brief), for Preet
Bharara, United States Attorney for the
Southern District of New York, New York,
New York.
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Appeal from a judgment of the United States District Court for the Southern
District of New York (Loretta A. Preska, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on November 19, 2014, is AFFIRMED.
Defendant Lamont Rolle stands convicted after a jury trial of the conspiratorial
and substantive Hobbs Act robbery of Sue Ann Musto-Johns on November 12, 2013. See
18 U.S.C. § 1951.1 Rolle argues on appeal that (1) erroneous evidentiary rulings denied
him a fair trial, and (2) procedural errors render his 162-month prison sentence
unreasonable. We assume the parties’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
1. Evidentiary Rulings
We review a district court’s challenged evidentiary rulings, including those
limiting the scope of cross examination, for abuse of discretion. See United States v.
White, 692 F.3d 235, 244 (2d Cir. 2012). Even where we identify abuse, we will
nonetheless affirm if the error was harmless. See id.a. Limitations on Cross-Examination
Although the Confrontation Clause gives a defendant the right not only to cross-
examination, but to effective cross-examination, a district court may impose reasonable
limits on cross-examination to protect against harassment, prejudice, confusion, and
waste. See United States v. James, 712 F.3d 79, 103 (2d Cir. 2013).
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The jury acquitted Rolle of brandishing a firearm during and in relation to the robbery
offense. See 18 U.S.C. § 924(c)(1)(A)(ii).
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1. Cross-Examination Regarding Musto-Johns’s Identifications
Musto-Johns twice identified Rolle as one of her two partially masked robbers.
First, immediately after the robbery, she told Police Officer Padilla that she recognized
the voice of one of her assailants but could not “put a name on it,” J.A. 143; shortly
thereafter, upon hearing Rolle’s name, Musto-Johns told Officer Padilla “[t]hat’s the
voice that was in here,” J.A. 144. Second, that same day, Musto-Johns’s roommate,
Maria Rodriguez, telephoned Rolle to allow Musto-Johns to hear his voice, at which time
Musto-Johns “said it’s him” while “pointing to the phone.” J.A. 353. Rolle asserts that
the district court erroneously limited cross-examination of several government witnesses
that, he alleges, would have undermined both of these identifications.
Rolle first contends that he should have been permitted to elicit from either Musto-
Johns or one of the police officers that a state grand jury had refused to indict an
individual identified by Musto-Johns as the second robber. We disagree. Even if this
grand jury decision indicated doubt as to the reliability of Musto-Johns’s identification of
the second robber—whom Musto-Johns identified during a show-up, but had not
recognized during the robbery—that fact was minimally probative of her ability correctly
to identify Rolle (by his voice), with whom she had met and spoken approximately five
times before the robbery. Thus, the district court did not abuse its discretion in
precluding cross-examination regarding the grand jury determination on the ground that
the probative value of this evidence was outweighed by the danger of jury confusion
regarding the grand jury process, particularly as it pertained to an individual other than
Rolle.
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Rolle further argues that he should have been allowed to elicit on cross-
examination of Rodriguez that, prior to Musto-Johns’s second identification of Rolle, she
had accused Rodriguez of being involved in the robbery. Rolle maintains that the
statement was not offered “to prove the truth of the matter asserted,” Fed. R. Evid.
801(c), but rather to show Rodriguez’s motive to encourage Musto-Johns to identify
Rolle. Assuming the admissibility of the accusation on this ground, any error in its
exclusion was harmless in light of other trial evidence establishing that same motive,
including Musto-Johns’s testimony that, at one time, she thought Rodriguez was involved
with the robbery, and Officer Padilla’s testimony that she brought Rodriguez in for
questioning on the day of the robbery based on suspicion of her involvement. See United
States v. Figueroa, 548 F.3d 222, 231 (2d Cir. 2008) (explaining that an error is harmless
if, inter alia, “the testimony was cumulative”); see also United States v. Oluwanisola, 605
F.3d 124, 134 (2d Cir. 2010) (stating that court considers, inter alia, “extent to which the
defendant was otherwise permitted to advance the defense” in determining harmlessness).
2. Exclusion of Text Messages
Rolle complains that he was not allowed to offer into evidence, on cross-
examination of Rodriguez, certain text messages between himself and the witness on the
day of the robbery. The argument fails because the district court properly concluded that
Rolle’s own out-of-court statements were inadmissible hearsay. See Fed. R. Evid.
801(a); United States v. Coplan, 703 F.3d 46, 84 (2d Cir. 2012) (holding that defendant’s
prior statements are hearsay and not admissible for truth of matter asserted when offered
by defendant).
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Insofar as Rolle asserts that the messages were admissible under Fed. R. Evid.
613(b) (permitting, in appropriate circumstances, “[e]xtrinsic evidence of a witness’s
prior inconsistent statement”), to impeach Rodriguez’s testimony that she talked to Rolle
by phone on the morning of the robbery about meeting at the Gun Hill subway stop, the
text messages did not contradict Rodriguez’s testimony. Cf. United States v. Trzaska,
111 F.3d 1019, 1025 (2d Cir. 1997) (identifying error in admission of witness’s prior
statements “not inconsistent” with testimony). Rodriguez admitted on cross-examination
that she had been communicating with Rolle that morning about a potential drug deal.
Although the text messages do not discuss a subway station meeting, Rodriguez’s
testimony on this point “augment[ed]” the text messages rather than impeached them.
United States v. Leonardi, 623 F.2d 746, 756–57 (2d Cir. 1980) (concluding that
memorandum was properly excluded at trial because “it was not inconsistent with the
witness’ trial testimony”). The district court therefore did not abuse its discretion in
excluding this evidence.
b. Exclusion of Medical Records
Rolle also faults the district court’s exclusion of one of Musto-Johns’s medical
records, which allegedly showed that she sustained no fractures in the robbery. Because
this decision followed a balancing analysis under Fed. R. Evid. 403, our review is “highly
deferential in recognition of the district court’s superior position to assess relevancy and
to weigh the probative value of evidence against its potential for unfair prejudice.”
United States v. Coppola, 671 F.3d 220, 244 (2d Cir. 2012) (internal quotation marks
omitted). The district court determined that, to the extent the records could be read to
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indicate that Musto-Johns did not fracture a rib during the robbery, they were
nevertheless more confusing than probative without a testifying witness to explain their
significance, particularly as there was no dispute that Musto-Johns was injured to some
degree during the crime. See J.A. 498. Insofar as the records were arguably inconsistent
with Musto-Johns’s testimony regarding the extent of her injuries, the district court
observed that she had already been impeached more directly about the crime. The
decision to preclude further impeachment as to the degree of injury through the use of
potentially confusing documents was not an abuse of discretion.
In any event, any error was harmless in light of the overall strength of the
government’s case. See Fed. R. Crim. P. 52(a); United States v. Figueroa, 548 F.3d at
231. Musto-Johns’s identification of Rolle as one of the robbers was corroborated by
evidence (1) placing Rolle’s cell phone (and implicitly, Rolle) in the vicinity of Musto-
Johns’s apartment at the time of the robbery; (2) showing pictures on Rolle’s cell phone
of a large amount of cash, taken shortly after the robbery; and (3) establishing that the
serial numbers on several hundred-dollar bills recovered from Rolle’s apartment matched
numbers on hundred-dollar bills stolen from Musto-Johns, of which she had taken a
picture several weeks before the robbery. Moreover, although the testimony of Musto-
Johns and Rodriguez was of central importance to the government’s case, making cross-
examination important, Rolle in fact was permitted to conduct a wide-ranging cross-
examination of both witnesses.
Accordingly, Rolle’s challenges to the district court’s evidentiary rulings do not
warrant reversal.
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2. Sentencing Challenge
We review Rolle’s sentence for “reasonableness,” which is “a particularly
deferential form of abuse-of-discretion review.” United States v. Cavera, 550 F.3d 180,
187–88 & n.5 (2d Cir. 2008) (en banc).
Rolle argues that procedural errors rendered his sentence unreasonable:
(1) application of the U.S.S.G. § 2B3.1(b)(3)(B) enhancement for “serious bodily injury,”
and (2) reliance on acquitted conduct and an unsubstantiated arrest report in imposing a
sentence at the top of his 130-to-162 months Guidelines range. We review the district
court’s findings of fact relevant to its Guidelines calculation for clear error, and its
construction of the Guidelines de novo. See United States v. Awan, 607 F.3d 306, 312
(2d Cir. 2010).
In faulting the district court’s finding that Musto-Johns suffered serious bodily
injury during the robbery, Rolle fails to acknowledge that we must “view the evidence
the light most favorable to the [g]overnment.” United States v. Johnson, 378 F.3d 230,
238 (2d Cir. 2004); see United States v. Guang, 511 F.3d 110, 123–24 (2d Cir. 2007).
When we so view Musto-Johns’s trial testimony and hospital records, we conclude that
the district court reasonably found that, as a result of being assaulted during the robbery,
Musto-Johns’s “[h]ead was bleeding,” her “face was covered in blood,” she was
hospitalized for ten days, and she was prescribed strong pain medication and a neck
brace. J.A. 811. These findings satisfy “serious bodily injury” for purposes of a
§ 2B3.1(b)(3)(B) enhancement. See U.S.S.G. § 1B1.1 cmt. n.1(L) (defining “serious
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bodily injury” to include, among other things, “injury . . . requiring medical intervention
such as . . . hospitalization”).
The record belies Rolle’s claim that the district court improperly considered an
offense for which he was acquitted. See J.A. 811 (“With respect to the acquitted conduct,
I am aware of my ability to count the acquitted conduct but decline to do so.”). Nor did
the district court err in considering the Presentence Investigation Report’s (“PSR”)
account of Rolle’s prior convictions—some of which were for conduct similar to that at
issue in this case—in imposing a within-Guidelines sentence of 162 months’
imprisonment. “Although a sentencing court may not rely on a PSR’s description of pre-
arrest conduct that resulted in a prior conviction to determine whether that prior
conviction constitutes a crime of violence under the Guidelines, a sentencing court can
consider that conduct under 18 U.S.C. § 3553(a) when fashioning the defendant’s
sentence.” United States v. Reyes, 691 F.3d 453, 460 (2d Cir. 2012).2
In sum, no procedural error raises concern about the reasonableness of Rolle’s
sentence.
2
Because we conclude that the district court committed no error in considering these
prior convictions under 18 U.S.C. § 3553(a), we need not decide whether our review is
limited to plain error, as urged by the government.
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3. Conclusion
We have considered Rolle’s remaining arguments and conclude they are without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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