United States v. Stroman , 420 F. App'x 100 ( 2011 )

10-0962-cr
USA v. Stroman
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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 26th day of April, two thousand eleven.
Present: ROBERT D. SACK,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
- v. - No. 10-0962-cr
TRAVIS STROMAN, a/k/a TIMOTHY STROMAN,
Defendant-Appellant.
_________________________________________
For Defendant-Appellant: EDWARD S. ZAS, Federal Defenders of New York,
Inc., Appeals Bureau, New York, N.Y.
For Appellee: ZAINAB AHMAD, Assistant United States Attorney
(Peter A. Norling, Assistant United States
Attorney, on the brief), for Loretta E. Lynch,
United States Attorney for the Eastern District of
New York, Brooklyn, N.Y.
Appeal from the United States District Court for the Eastern District of New York (Glasser,
J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of conviction of the district court is AFFIRMED and the
sentence is VACATED and REMANDED for further proceedings.
Defendant-Appellant Travis Stroman appeals from a judgment of conviction, entered on
March 15, 2010 and amended on March 29, 2010 in the United States District Court for the
Eastern District of New York (Glasser, J.), following a two-day jury trial, of one count of
possessing ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was
sentenced principally to 96 months’ imprisonment. Stroman’s conviction arose out of a shooting
on March 11, 2009 at a neighborhood grocery store in Brooklyn, New York, during which the
suspect discharged a firearm while chasing two individuals in the store, which resulted in no
injuries but damage to the glass door of a refrigerated beverage case. On appeal, Stroman argues
that the district court (1) committed reversible error in denying his motion to suppress allegedly
incriminating statements on the ground that those statements were made in response to the
functional equivalent of custodial interrogation under Miranda v. Arizona, 384 U.S. 436 (1966)
and Rhode Island v. Innis, 446 U.S. 291 (1980); (2) improperly admitted a hearsay statement
whose probative value was outweighed by the prejudice to the defendant; and (3) imposed a
procedurally unreasonable sentence by erroneously finding that Stroman discharged the firearm at
his intended victim with the specific intent to kill. We assume the parties’ familiarity with the
remaining facts and procedural history of the case, which we reference only as necessary to
explain our decision.
We turn first to Stroman’s claim that his statements were the result of interrogation in
violation of Miranda and Innis. “When reviewing a district court’s ruling on a motion to suppress
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evidence, we review the court’s factual findings for clear error, viewing the evidence in the light
most favorable to the government,” and its “legal conclusions are reviewed de novo.” United
States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008).
Under Miranda, the government may not use any statements “stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.” 384 U.S. at 444. These protections “come into
play whenever a person in custody is subjected to either express questioning or its functional
equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police . . . that the police should
know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S.
at 300-01 (footnote omitted).
On May 13, 2009, Federal Bureau of Investigation (“FBI”) agents and New York Police
Department officers arrested Stroman at his home with a warrant and brought him to an
interrogation room at the 73d Precinct station house. FBI Special Agent Jed Salter advised
Stroman that “he was being charged with a crime in connection with a shooting he committed in
March.” App. 30. Agent Salter told Stroman to remain silent, an instruction that Stroman claimed
he understood, and the agent informed Stroman that he would show Stroman video surveillance
footage. As Agent Salter began to show Stroman the video, Stroman started to speak, and Agent
Salter instructed him to remain silent. Despite the agent’s warning, as he watched the video,
Stroman repeatedly said “you can’t see my face.” App. 30. Defense counsel filed a pre-trial
motion to suppress Stroman’s statements as the product of custodial interrogation. The
Government, while conceding that Stroman was in custody at the time and was never given
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Miranda warnings, argued that because Agent Salter had told Stroman to remain silent and showed
him the video to educate the defendant about the evidence against him, Stroman’s statements were
not the result of the functional equivalent of interrogation. The district court denied Stroman’s
motion to suppress.
On appeal, Stroman argues that, by showing the video to him with the instruction to remain
silent, the agents knew that their actions were “reasonably likely to elicit an incriminating
response,” Innis, 446 U.S. at 301. In evaluating whether interrogation has violated the protections
afforded by Miranda, we must “consider police conduct in light of the totality of the circumstances
in assessing whether the police ‘should have known’ that their actions ‘were reasonably likely to
elicit an incriminating response.’” Acosta v. Artuz, 575 F.3d 177, 191 (2d Cir. 2009) (quoting
Innis, 446 U.S. at 303). Not all statements by the police regarding the nature and strength of the
evidence against a defendant constitute interrogation or its functional equivalent. See id.
(“[C]ourts have not endorsed the proposition that statements by law enforcement officials to a
suspect regarding the nature of the evidence against the suspect constitute interrogation as a matter
of law, recognizing that it simply cannot be said that all such statements are objectively likely to
result in incriminating responses by those in custody.” (internal quotation marks and alteration
omitted)); see also United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992) (“[T]he Innis
definition of interrogation is not so broad as to capture within Miranda’s reach all declaratory
statements by police officers concerning the nature of the charges against the suspect and the
evidence relating to those charges.”); Easley v. Frey, 433 F.3d 969, 974 (7th Cir. 2006) (officer’s
“matter-of-fact communication of the evidence” against the defendant was not interrogation).
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Stroman nevertheless argues that, when reviewing the “totality of the circumstances,”
Acosta, 575 F.3d at 191, this Court should conclude that the agents “should have known” that their
actions — forcing Stroman to watch a potentially incriminating videotape and requesting that he
remain silent — were “reasonably likely to elicit an incriminating response,” Innis, 446 U.S. at
301. Several courts have asserted that, under certain circumstances, showing evidence to the
defendant may be the functional equivalent of custodial interrogation. See, e.g., United States v.
Green, 541 F.3d 176, 187 (3d Cir.) (holding that showing video allegedly depicting defendant as
engaging in a criminal act was reasonably likely to elicit incriminating response), reh’g granted
and vacated, 304 F. App’x 981, 982 (3d Cir. 2008); United States v. Collins, 43 F. App’x 99, 101
(9th Cir. July 30, 2002) (playing audiotape to defendant was likely to elicit incriminating
response); United States v. Lovell, 317 F. Supp. 2d 663, 669 (W.D. Va. 2004) (concluding that
showing rifle to defendant was “functional equivalent” of interrogation). The question thus posed
by this case is whether the police conduct was intended to elicit an incriminating response from
Stroman before informing him of his Miranda rights.
This Court has not had occasion to consider this question, and although the police conduct
at issue raises concerns that police may be able to sidestep Miranda’s safeguards, we need not
determine whether the agents’ actions rise to the level of a Miranda violation. Assuming
arguendo that Stroman’s statements were the product of interrogation and thus the district court
erred in not granting Stroman’s motion to suppress, we conclude that it was harmless error to
admit those statements at trial. Stroman argues that “there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.” Chapman v. California, 386
U.S. 18, 23 (1967) (internal quotation marks omitted). The reasonable possibility standard asks
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whether “the minds of an average jury would not have found the [government’s] case significantly
less persuasive had the testimony . . . been excluded.” Schneble v. Florida, 405 U.S. 427, 432
(1972) (internal quotation marks omitted). More recently, this Court stated that, according to the
Supreme Court,
the following factors [are] relevant in determining whether the erroneous admission of
a confession was harmless error: (1) the overall strength of the prosecution’s case; (2)
the prosecutor’s conduct with respect to the improperly admitted evidence; (3) the
importance of the wrongly admitted testimony; and (4) whether such evidence was
cumulative of other properly admitted evidence.
Zappulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004).
In light of these principles, we conclude that the introduction of Stroman’s statements was
harmless given the overall strength of the prosecution’s case and the weight given to the other
evidence. The jury was shown the video surveillance footage and could have made an independent
identification of Stroman as the shooter. Moreover, both Cynthia Whitaker, his former girlfriend,
who had accompanied Stroman to the store just prior to the shooting incident, and Stroman’s
former boss identified him as the shooter in the surveillance video. Whitaker further testified that
after the store owner informed her that someone had to pay for the broken glass door and she
relayed this information to Stroman, he responded by asking her to inquire as to how much the
repair would cost. During its summation, the Government emphasized Whitaker’s testimony,
asserting that the jury could render a guilty verdict based solely on Whitaker’s identification of
Stroman as the shooter. To be sure, the Government also placed emphasis on Stroman’s false
exculpatory statements, arguing that those statements constituted admissions by Stroman that he
was the person in the video. That factor supports a conclusion that if that evidence was admitted
erroneously, the error was not harmless. See, e.g., Zappulla, 391 F.3d at 471-72. We nonetheless
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conclude that the evidence of guilt here was “so overwhelming” that the “minds of an average jury
would not have found the State’s case significantly less persuasive” in the absence of Stroman’s
allegedly incriminating statements. Schneble, 405 U.S. at 432; see also Medina v. Keane, 936
F.2d 681, 683-84 (2d Cir. 1991) (holding that the government had proven its case beyond a
reasonable doubt notwithstanding an improperly obtained post-arrest statement and therefore the
statement’s admission was harmless error).
We turn next to Stroman’s challenge to the admission of a hearsay statement. Whitaker
testified that the store owner told her “the one you was in the store with earlier, he broke my glass
and somebody has to pay for it.” App. 137. Defense counsel objected on grounds of hearsay, but
the district court admitted the statement and gave a limiting instruction to the jury that the
statement was not being offered for the truth of its content but for the mere fact of having been
said to Whitaker. On appeal, Stroman argues that the statement should have been excluded on the
ground that the statement was likely viewed by the jury as an out-of-court identification of
Stroman as the shooter because “the jury [was] likely to consider the statement for the truth of
what was stated with significant resultant prejudice.” United States v. Forrester, 60 F.3d 52, 59
(2d Cir. 1995) (internal quotation mark omitted); see also United States v. Tussa, 816 F.2d 58, 66
(2d Cir. 1987) (finding limiting instruction insufficient to prevent error where the hearsay use went
to a highly material issue in the case). Nevertheless, we conclude that admission of the statement
was harmless in light of the aforementioned witness identifications of Stroman as the shooter and
Stroman’s own inquiry into the cost of the glass repair. See Forrester, 60 F.3d at 64 (“Error is
harmless if it is highly probable that it did not contribute to the verdict.” (internal quotation marks
omitted)).
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Finally, we turn to Stroman’s challenge to the procedural reasonableness of his sentence.
Review of a district court’s sentence for procedural reasonableness focuses on whether the district
court committed a “‘significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.’” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). We review the district court’s factual findings for
clear error. See 18 U.S.C. § 3742(e).
The Presentence Investigation Report identifies the applicable guideline under the United
States Sentencing Guidelines for the crime of possessing a firearm or ammunition as a felon, in
violation of 18 U.S.C. § 922(g)(1), as section 2K2.1. It notes that if the defendant uses
ammunition or a firearm in connection with another offense, then the district court, pursuant to
section 2X1.1, is to apply “[t]he base offense level from the guideline for the substantive offense,
plus any adjustments from such guideline for any intended offense conduct that can be established
with reasonable certainty.” U.S.S.G. § 2X1.1(a). In calculating the Guidelines range for
Stroman’s sentence, the district court, over the objections of defense counsel, applied the guideline
for second-degree murder, section 2A2.1(a)(2), which gives a base offense level of 27 and resulted
in a sentencing range of 78 to 97 months.
On appeal, Stroman argues that it was clearly erroneous for the district court to conclude
that Stroman had the specific intent to kill necessary to justify imposition of the base offense level
for second-degree murder under section 2A2.1(a)(2). The Supreme Court has held that
“[a]lthough a murder may be committed without an intent to kill, an attempt to commit murder
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requires a specific intent to kill.” Braxton v. United States, 500 U.S. 344, 351 n.* (1991) (internal
quotation marks omitted) (emphasis supplied); see also United States v. Kwong, 14 F.3d 189, 194
(2d Cir. 1994) (requiring specific intent to kill to convict for attempted murder). Therefore, the
district court must have concluded, by a preponderance of the evidence, that Stroman actually
attempted or intended to kill his victim. The district court found that Stroman had deliberately
fired his weapon:
[l]ooking at that videotape, it was obvious Mr. Stroman was running into this bodega
for the very specific purpose of shooting whoever it was he was aiming his gun at
and had he hit him, he might very well have killed him. So, that was not an accident.
It wasn’t a fortuitous event. It was obviously something he clearly intended to do.
You don’t run into a bodega, running after somebody, pointing a gun at him and
shooting at him, unless this is something you intended to do. I have no difficulty
with that.
App. 328.
This statement does not directly address whether Stroman intended to kill his victim.
Although the district court further stated that it “look[ed] like” Stroman was “attempt[ing] to kill
someone,” id. at 341, this statement does not support a finding of specific intent, and therefore we
conclude that the district court committed procedural error. Accordingly, we vacate Stroman’s
sentence and remand the case to the district court for resentencing.
We have considered Stroman’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, Stroman’s conviction is AFFIRMED and the district
court’s sentence is VACATED and REMANDED for further proceedings consistent with this
order.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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