United States v. Kiond Jones , 630 F. App'x 104 ( 2015 )

12-4009-cr
United States v. Kiond Jones
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of December, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 GEOFFREY W. CRAWFORD,*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 12-4009-cr
17
18 TORELL WHYTE, aka TERROR,
19 ANTHONY PRADDY, aka BIRDMAN,
20 Defendants,
21
22 KIOND JONES, aka KION, aka KIOND HING,
23 Defendant-Appellant.
24 - - - - - - - - - - - - - - - - - - - -X
*
The Honorable Geoffrey W. Crawford, of the United
States District Court for the District of Vermont, sitting
by designation.
1
1
2 FOR APPELLEE: ANDREY SPEKTOR, Assistant United
3 States Attorney (Susan Corkery,
4 Assistant United States
5 Attorney, on the brief), for
6 Kelly T. Currie, Acting United
7 States Attorney, Eastern
8 District of New York, Brooklyn,
9 New York.
10
11 FOR APPELLANT: GAIL JACOBS, Great Neck, New
12 York (Richard E. Mischel,
13 Mischel & Horn, P.C., New York,
14 New York, on the brief).
15
16 Appeal from a judgment of the United States District
17 Court for the Eastern District of New York (Block, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of conviction on Count
21 Fourteen be REVERSED and the judgment of conviction on all
22 other counts be AFFIRMED; the matter is REMANDED for
23 resentencing on the affirmed counts, see United States v.
24 Rigas, 583 F.3d 108, 118-19 (2d Cir. 2009).
25
26 Kiond Jones appeals from the judgment of the United
27 States District Court for the Eastern District of New York
28 (Block, J.), sentencing him after jury trial principally to
29 50 years’ imprisonment for offenses committed in connection
30 with his participation in a drug-trafficking gang composed
31 primarily of residents of Raleigh Place in East Flatbush,
32 Brooklyn.
33
34 Jones was convicted of racketeering, in violation of 18
35 U.S.C. §§ 1962(c), 1963 (Count One); racketeering
36 conspiracy, in violation of 18 U.S.C. §§ 1962(d), 1963
37 (Count Two); and conspiracy to distribute 1000 kilograms or
38 more of marijuana, in violation of 21 U.S.C. §§ 846,
39 841(a)(1), 841(b)(1)(A)(vii) (Count Four). He was also
40 convicted of two violations of 18 U.S.C. § 924(c): unlawful
41 use of a firearm in furtherance of Counts One and Two
42 (crimes of violence) (Count Twelve); and unlawful use of a
43 firearm in furtherance of Count Four (a drug-trafficking
44 crime) (Count Fourteen).
45
46 Three racketeering acts (“RAs”) were attributed to
47 Jones in connection with Counts One and Two: conspiracy to
2
1 distribute 1000 kilograms or more of marijuana (RA 1); the
2 kidnapping of Craig Hecclewood (RA 2); and the attempted
3 murder of Moses Louis Osbourne (RA 3). While RA 1 was also
4 charged substantively as Count Four, Jones could not be
5 charged substantively with the kidnapping and attempted
6 murder (RAs 2 and 3) because the five-year statute of
7 limitations had run–-they occurred in May and July 2002, and
8 the indictment was filed July 20, 2010. We assume the
9 parties’ familiarity with the underlying facts, the
10 procedural history, and the issues presented for review.
11
12 1. Jones challenges the sufficiency of the evidence
13 with respect to Count One (racketeering) and Count Two
14 (racketeering conspiracy) of the indictment. Viewed in the
15 light most favorable to the government, United States v.
16 Burden, 600 F.3d 204, 214 (2d Cir. 2010), the prosecution’s
17 evidence was sufficient to support Jones’s convictions.
18
19 2. Jones also contends that the evidence was
20 insufficient for a reasonable jury to have found proof of
21 the firearms offenses within the five-year statute of
22 limitations. The predicates for Jones’s § 924(c)
23 convictions (RICO, RICO conspiracy, and drug-trafficking
24 conspiracy) are all continuing offenses. See United States
25 v. Payne, 591 F.3d 46, 69 (2d Cir. 2010) (narcotics
26 distribution conspiracy); United States v. Wong, 40 F.3d
27 1347, 1366 (2d Cir. 1994) (RICO and RICO conspiracy). “When
28 a defendant is convicted of violating § 924(c)(1)(A) for
29 using or carrying a firearm during and in relation to a
30 crime that is a continuing offense, the § 924(c)(1) crime
31 itself is a continuing offense.” Payne, 591 F.3d at 69.
32
33 Jones relies on United States v. Praddy, 725 F.3d 147,
34 156-59 (2d Cir. 2013), which carved out an exception to this
35 general rule. Anthony Praddy was convicted of possessing a
36 firearm during and in relation to participation in a
37 marijuana trafficking conspiracy. In the course of a 2004
38 arrest (i.e., in the pre-limitations period), a police
39 officer discovered a gun in Praddy’s backpack; the gun was
40 seized. Importantly, there was no other evidence that
41 Praddy had ever possessed a firearm. We concluded that,
42 while “possession is presumed to continue until the
43 underlying conspiracy offense has run its course, it would
44 defy all reason to give effect to that presumption after
45 such time as the gun has in fact been seized by law
3
1 enforcement authorities,” and reversed the § 924(c)
2 conviction.1
3
4 Jones contends that he is in the same position as
5 Praddy, apparently because a loaded firearm he was carrying
6 when arrested on December 31, 2002, was seized by the
7 police. But the unusual circumstances in Praddy are not
8 present here. There was testimony at trial that Jones had
9 been seen with at least three different firearms, and that
10 Jones had utilized various firearms in connection with his
11 racketeering and drug-trafficking activities. The seizure
12 of one of them therefore does not undermine the presumption
13 that his possession of the others continued throughout the
14 pendency of the continuing predicate offenses. Moreover, a
15 weapon was seized from Jones’s residence in 2007 (after the
16 2002 seizure and within the statute-of-limitations period)
17 near marijuana paraphernalia containing Jones’s
18 fingerprints. A reasonable jury could have inferred that
19 Jones used this firearm and/or other non-seized firearms in
20 furtherance of the drug-trafficking conspiracy and the RICO
21 offenses.
22
23 3. Jones argues that the trial court constructively
24 amended the indictment when it charged the jury as to the
25 § 924(c) firearms counts. The jury was instructed that a
26 guilty verdict required proof beyond a reasonable doubt that
27 Jones used, carried, or possessed a firearm in furtherance
28 of the predicate offenses, and that proof of discharge or
29 brandishing were sufficient to constitute use, but were not
30 required. Jones argues that the indictment--which alleged
31 that he used, carried, possessed, brandished, and discharged
32 a firearm in connection with the predicate offenses--charged
33 him “narrow[ly]” with the “more serious offense” of
34 discharge of the firearm, and therefore the jury charge
35 “‘broaden[ed] the possible bases for conviction from that
36 which appeared in the indictment.’” Br. for Def.-Appellant
37 Kiond Jones at 64 (quoting United States v. Banki, 685 F.3d
38 99, 118 (2d Cir. 2011)).
39
40 Jones’s argument fails because “[w]here there are
41 several ways to violate a criminal statute, . . . ‘federal
42 pleading requires . . . that an indictment charge in the
43 conjunctive to inform the accused fully of the charges.’ A
1
Incidentally, Anthony Praddy was Jones’s co-
defendant. We affirmed all other counts of conviction.
4
1 conviction under such an indictment will be sustained if the
2 evidence indicates that the statute was violated in any of
3 the ways charged.” United States v. McDonough, 56 F.3d 381,
4 390 (2d Cir. 1995) (quoting United States v. McGinnis, 783
5 F.2d 755, 757 (8th Cir. 1986)) (brackets omitted). The
6 indictment gave Jones “notice of the core of criminality to
7 be proven at trial,” United States v. D’Amelio, 683 F.3d
8 412, 417 (2d Cir. 2012) (quoting United States v. Rigas, 490
9 F.3d 208, 228 (2d Cir. 2007)) (emphases omitted), which was
10 the use of a firearm in connection with the Raleigh Place
11 drug-trafficking enterprise and conspiracy. Compare 18
12 U.S.C. § 924(c)(1)(A) (criminalizing use, carrying, or
13 possession), with id. § 924(c)(1)(A)(i)-(iii) (setting forth
14 sentencing consequences for various types of use). It
15 sufficiently “enables him to plead an acquittal or
16 conviction in bar of future prosecutions for the same
17 offense.” D’Amelio, 683 F.3d at 417 (quoting United States
18 v. Resendiz-Ponce, 549 U.S. 102, 108 (2007)); see also,
19 e.g., United States v. Miller, 471 U.S. 130, 135 (1985)
20 (“The indictment was also sufficient to allow Miller to
21 plead it in the future as a bar to subsequent prosecutions.
22 Therefore, none of [the] ‘notice’ related concerns--which of
23 course are among the important concerns underlying the
24 requirement that criminal charges be set out in an
25 indictment--would support the result of the Court of Appeals
26 [vacating the judgment of conviction].”).
27
28 4. As explained above, the district court charged the
29 jury to find whether Jones had used, carried, or possessed a
30 firearm in connection with the predicate offenses. The
31 court then found, as a sentencing factor, that Jones had
32 discharged his weapon in connection with Count Twelve, and
33 sentenced him to the higher mandatory minimum sentence (10
34 years’ incarceration, rather than 5). This followed
35 governing law at the time, see Harris v. United States, 536
36 U.S. 545, 567-70 (2002); United States v. Gomez, 580 F.3d
37 94, 104 (2d Cir. 2009), but (as the government concedes) it
38 is error in view of Alleyne v. United States, 133 S. Ct.
39 2151 (2013), which requires that any fact increasing a
40 mandatory minimum sentence must be submitted to the jury.
41
42 However, the error was harmless. See United States v.
43 Friedman, 300 F.3d 111, 127-28 (2d Cir. 2012) (analyzing
44 analogous Apprendi claim for harmless error). The district
45 judge found that Jones discharged his weapon when he shot
46 Osbourne. The jury necessarily so found, because it found
47 RA 3 (the attempted murder of Osbourne) proved; and no
5
1 evidence was presented at trial to suggest that Jones could
2 have attempted to kill Osbourne in any way other than
3 through the discharge of his weapon. Moreover, it does not
4 appear that Jones contested that he had shot Osbourne. His
5 defense concerned the alleged motivation underlying that
6 shooting (that it was unrelated to the marijuana
7 distribution conspiracy). See Neder v. United States, 527
8 U.S. 1, 17 (1999) (when “omitted element was uncontested and
9 supported by overwhelming evidence,” erroneous instruction
10 was harmless); Friedman, 300 F.3d at 128 (holding Apprendi
11 error harmless due to what jury necessarily found in
12 rendering its verdict).
13
14 5. Jones also argues that the two firearms counts
15 were multiplicitous; as to this, we agree.2
16
17 Lesser-included offenses and their greater offense are
18 considered a single offense, and may not be punished
19 separately. See Blockburger v. United States, 284 U.S. 299,
20 304 (1932). There is an exception to this rule for RICO
21 offenses and their predicate racketeering acts. Congress
22 intended “to permit cumulative sentences for a RICO
23 conviction and the predicate offenses upon which the RICO
24 violation is premised.” United States v. Walsh, 700 F.2d
25 846, 856 (2d Cir. 1983).
26
27 There is no such exception for § 924(c) offenses. See
28 United States v. Lindsay, 985 F.2d 666, 677 (2d Cir. 1993).
29 We concluded in Lindsay that there was “ambigu[ity] as to
30 whether congress intended that a defendant should be
31 convicted of two § 924(c)(1) violations in relation to
32 greater and lesser-included offenses,” and vacated one of
33 two § 924(c) offenses in which the predicates were a cocaine
34 conspiracy (a lesser-included offense) and managing a
35 continuing criminal enterprise (the greater offense). Id.;
2
Jones did not raise this argument below. However, we
are satisfied that the error rises to the level of plain
error. The error is sufficiently “plain”; and 25 years of
Jones’s incarceral sentence is attributable to a conviction
obtained in violation of the Double Jeopardy Clause. See 18
U.S.C. § 924(c)(1)(C)(i), (D)(ii). Given the magnitude of
the sentencing consequences, the error both affects Jones’s
substantial rights and seriously affects the fairness,
integrity, and public reputation of these proceedings. See
United States v. Riggi, 541 F.3d 94, 102 (2d Cir. 2008).
6
1 see Bell v. United States, 349 U.S. 81, 84 (1955) (“[I]f
2 Congress does not fix the punishment for a federal offense
3 clearly and without ambiguity, doubt will be resolved
4 against turning a single transaction into multiple
5 offenses.”).
6
7 Count Twelve charged Jones with the use of a firearm in
8 furtherance of Counts One and Two (racketeering and
9 racketeering conspiracy); and Count Fourteen charged Jones
10 with the use of a firearm in furtherance of Count Four
11 (marijuana distribution conspiracy). These two § 924(c)
12 counts are multiplicitous because the predicates for Jones’s
13 firearms convictions are a lesser-included offense (the
14 marijuana distribution conspiracy) and greater offenses (the
15 RICO offense and the RICO conspiracy). The RICO exception
16 permits the government to seek punishment for RICO offenses
17 and their predicate acts notwithstanding that one is lesser-
18 included in the greater; however, it does not follow that
19 Congress intended multiple § 924(c) convictions predicated
20 on those lesser-included and greater offenses.3
21 See Lindsay, 985 F.2d at 677.
22
23 Accordingly, one of Jones’s firearms convictions must
24 be reversed. We reverse the conviction on Count Fourteen
25 and affirm the conviction on Count Twelve (which includes a
26 higher mandatory minimum for discharge of the weapon). See
27 Rutledge v. United States, 517 U.S. 292 (1996) (rejecting
28 prior Second Circuit practice of vacating multiplicitous
29 sentences only and combining convictions); Underwood v.
30 United States, 166 F.3d 84, 86 (2d Cir. 1999) (discussing
31 Rutledge); cf. Lindsay, 985 F.2d at 676 (vacating
32 convictions with less severe sentences and leaving in place
33 conviction with enhanced sentence for use of a firearm
34 equipped with a silencer).
35
3
The line of cases the government cites, Br. for the
United States at 29-30, is inapposite. These cases deal
with an exception to the general rule that § 924(c) offenses
based on different or distinct predicate offenses are not
multiplicitous. See, e.g., United States v. Mejia, 545 F.3d
179 (2d Cir. 2008); United States v. Wallace, 447 F.3d 184
(2d Cir. 2006); United States v. Finley, 245 F.3d 199 (2d
Cir. 2001). But here, there are no different or distinct
predicate offenses; rather, the predicates are lesser-
included and greater offenses.
7
1 For the foregoing reasons, the judgment of conviction
2 on Count Fourteen is REVERSED and the judgment of conviction
3 on all other counts is AFFIRMED; the matter is REMANDED for
4 resentencing de novo on the affirmed counts, see United
5 States v. Rigas, 583 F.3d 108, 118-19 (2d Cir. 2009).
6
7 FOR THE COURT:
8 CATHERINE O’HAGAN WOLFE, CLERK
9
8