United States v. Nyenekor ( 2019 )

15-1271 (L)
United States v. Nyenekor
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 ASUMMARY ORDER@). A PARTY CITING TO 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 21st day of August, two thousand nineteen.
PRESENT:
JON O. NEWMAN,
PETER W. HALL,
Circuit Judges,
CLAIRE R. KELLY,
Judge.*
_____________________________________
United States of America,
Appellee,
v. 15-1271 (L)
16-394 (Con)
Carpeah R. Nyenekor, Sr.,
Defendant-Appellant.
_____________________________________
FOR DEFENDANT-APPELLANT: Carpeah R. Nyenekor, Sr., pro se, Winton,
NC.
FOR APPELLEE: Scott Hartman, Anna M. Skotko, Assistant
United States Attorneys, for Geoffrey S.
* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by designation.
Berman, United States Attorney for the
Southern District of New York, New York,
NY.
Appeal from a judgment of the United States District Court for the Southern District of New
York (Seibel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Carpeah Nyenekor, Sr., pro se, was indicted on three counts of distribution and
possession with intent to distribute cocaine. After a jury trial, he was found guilty of one count of
possession with intent to distribute 28 grams or more of cocaine base. The district court sentenced
him to 92 months’ imprisonment and 5 years’ supervised release. He raises multiple issues on
appeal. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
I. Motions to Dismiss the Indictment, Double Jeopardy, Speedy Trial
We review de novo denials of a motion to dismiss the indictment. United States v. Scott,
394 F.3d 111, 116 (2d Cir. 2005). The district court properly denied Nyenekor’s motions to
dismiss the indictment. Nyenekor’s argument that the indictment was based on false evidence is
meritless. Contrary to his assertions, nothing in the record shows that the search warrant
authorizing the March 1, 2013 search was ever found to be invalid or that Nyenekor was found not
guilty on that basis. Nyenekor’s state criminal charges were dismissed on the state prosecutor’s
motion on September 3, 2013, after Nyenekor was arrested on the federal criminal complaint; the
order dismissing those charges makes no mention of false evidence. Nor was there evidence
supporting Nyenekor’s contention that the Government deliberately failed to preserve evidence.
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See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.”).
Nyenekor’s double jeopardy argument is also meritless. As the Supreme Court recently
reaffirmed, the “dual-sovereignty” doctrine holds that “a State may prosecute a defendant under
state law even if the Federal Government has prosecuted him for the same conduct under a federal
statute.” Gamble v. United States, 139 S. Ct. 1960, 1964 (2019). It also applies to the reverse
situation: the federal Government may prosecute a defendant if he has already been prosecuted by
the state. Id. If jeopardy had attached to Nyenekor’s state criminal charges, therefore, the
Government was not barred from pursuing its own charges. Id.
Finally, the prosecution did not violate Nyenekor’s rights to a speedy trial under either the
Sixth Amendment or Speedy Trial Act. The Sixth Amendment does not apply until a particular
“prosecution has begun[,]” United States v. Marion, 404 U.S. 307, 313 (1971), and the Speedy Trial
Act’s indictment clock does not begin to run until the defendant is under “federal arrest” for the
federal charges, United States v. Jones, 129 F.3d 718, 721 (2d Cir. 1997). Nyenekor was not
arrested on the federal charges until August 2013. He was indicted by a federal grand jury in
September 2013. Any time prior to these dates does not count in determining his speedy trial rights
under the Act.
Nor was the remaining two-year delay after Nyenekor was placed in federal custody a
violation of his speedy trial rights. To determine if a defendant’s Sixth Amendment right to a
speedy trial has been violated, a court must consider the “‘[l]ength of delay, the reason for the delay,
the defendant’s assertion of his right, and prejudice to the defendant.’” United States v. Black, 918
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F.3d 243, 254 (2d Cir. 2019) (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)). Nyenekor’s
competency evaluation was unnecessarily delayed for four-months because of the government’s
failure to serve the Bureau of Prisons and the U.S. Marshals Service with the district court’s order
transferring Nyenekor for treatment. Nonetheless, the bulk of the two-year delay mostly stemmed
from the initial January 2014 order for a competency evaluation, subsequent evaluations,
proceedings in May 2014 and the court’s determination of incompetency, the five months Nyenekor
was at Federal Medical Center Butner to be restored to competency, and the second and third
competency hearings in May and June 2015. Although a delay of over a year is presumptively
prejudicial, see Black, 918 F.3d at 255, the overwhelming portion of the delay here was valid and
necessary to resolve Nyenekor’s competency issues. Further, any delays caused by competency
hearings or examinations, or when the defendant is considered mentally incompetent to stand trial,
are automatically excluded from the speedy trial time computations. 18 U.S.C. § 3161(h)(1)(A),
(4).
II. Motion to Suppress
We review de novo a district court’s legal conclusions in a decision on a motion to suppress
evidence and review its findings of fact for clear error. United States v. Bershchansky, 788 F.3d
102, 108 (2d Cir. 2015). We review de novo mixed questions of law and fact. Id. Here, the
district court properly denied the motion, reasoning that the application did not falsely state the
Newburgh police officers had recorded the controlled purchases; the application stated only that
the police had monitored them and no recordings could be expected.
On appeal, Nyenekor does not point to any legal or factual error in this decision, but he
asserts (1) that the Newburgh police lied on the warrant application to retaliate against him for filing
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lawsuits against the officers and (2) that the application was not supported with evidence. There
is no evidence in the record supporting Nyenekor’s argument, however. Detective Michael
Loscerbo testified that he was not really aware of the litigation nor was he affected by it, which
suggests that he was not motivated to retaliate against Nyenekor. Further, the warrant application
was adequately supported by a police officer’s affidavit which laid out the factual reasons—the two
controlled buys—supporting the officer’s belief that cocaine would be found at Nyenekor’s
residence. This was sufficient support for issuance of the warrant. See Illinois v. Gates, 462 U.S.
213, 238–39 (1983) (“[T]he duty of a reviewing court is simply to ensure that the magistrate had a
substantial basis for concluding that probable cause existed.” (internal quotation marks, brackets,
and ellipsis omitted)).
III. Motion to Proceed Pro Se
Nyenekor asserts that the district court violated his Sixth Amendment right to represent
himself by denying his request to defend himself pro se. A criminal defendant has a Sixth
Amendment right to forgo counsel and represent himself pro se. See Faretta v. California, 422
U.S. 806, 819 (1975). Judges are not required, however, to permit a defendant with “severe mental
illness to the point where [he is] not competent to conduct trial proceedings by [himself,]” to
proceed pro se, and, the court can insist on counsel even if the defendant is competent to stand trial.
Indiana v. Edwards, 554 U.S. 164, 177–78 (2008). We have not clearly articulated a standard of
review applicable to Edwards decisions, but our case law suggests that such decision is reviewed
for clear error. See United States v. Scott, 509 F. App’x 35, 36 (2d Cir. 2013) (summary order)
(“The district court did not commit clear error in allowing Scott to proceed to trial pro se.”).
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On review, we determine the district court did not commit clear error by refusing to permit
Nyenekor to proceed pro se. It reasoned that Nyenekor’s mental illness (antisocial personality
disorder) made him fixate on certain legal issues and made him unable to focus on actually
preparing a defense or realistically to understand events, and that his mental condition would cause
him to disrupt proceedings if he were permitted to represent himself. See United States v. Barnes,
693 F.3d 261, 271 (2d Cir. 2012) (“A defendant has no right to engag[e] in serious and obstructionist
misconduct, and a court may deny a defendant's request to proceed pro se if it finds that the request
is manipulative or abusive in some other way[.]” (internal quotation marks and citation omitted)).
Nyenekor argues that the trial involved a simple legal issue and that his prior courtroom
behavior had been acceptable. The district court’s decision, however, was not based on the
complexity of the legal issues, but rather Nyenekor’s ability to “keep his head in the game at trial[.]”
Although the district court acknowledged that Nyenekor had behaved himself in court, his behavior
elsewhere demonstrated that he had the capacity to be disruptive in the courtroom if he wanted to
manipulate the proceedings. Nyenekor’s legal filings also showed that his antisocial personality
disorder affected his ability to understand the proceedings and that he repeatedly fixated on
jurisdiction, double jeopardy, and DNA evidence, despite such arguments being meritless. Given
this evidence, the district court’s decision was not clearly erroneous.
IV. Evidentiary Issues
Nyenekor the Government failed to disclose certain evidence bearing on the case. The
record, however, does not support this argument. During sentencing, the district court briefly
addressed Nyenekor’s evidentiary challenges and the Government stated that the evidence was
disclosed to defense counsel early in the case or as 18 U.S.C. § 3500 material. The fact that
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Nyenekor’s attorney did not introduce or use this evidence does not show that the Government
failed to produce it.
Nyenekor argues that the district court should not have permitted the Government to offer
his redacted 2009 plea colloquy because it was prejudicial under Federal Rule of Evidence 403 and
violated Rule 404(b). Rule 404(b) prohibits parties from introducing evidence that the defendant
previously committed a crime to show his propensity to engage in such crimes. However, the
evidence is permissible “for another purpose, such as proving . . . intent . . . [or] knowledge[.]” Fed.
R. Evid. 404(b)(2). Here, the Government offered the 2009 colloquy for the purpose of showing
Nyenekor’s knowledge of drug selling and his intent to engage in it. See United States v. Paulino,
445 F.3d 211, 222–23 (2d Cir. 2006) (evidence of prior narcotics conviction did not violate Rule
404(b) where it was admitted to prove defendant’s knowledge of and intent to distribute drugs found
in his bedroom). Nor did the prejudice caused by the colloquy outweigh its probative value
because the testimony represented a small fraction of the evidence and did not involve “conduct
any more sensational or disturbing than the crimes” with which Nyenekor was charged. United
States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990). Further, the district court gave a
limiting instruction immediately before the Government offered this evidence and during the jury
charge.
V. Sufficiency of the Evidence
A defendant challenging the sufficiency of the evidence faces a heavy burden, and a
conviction will be upheld if any rational trier of fact could have found the elements of a crime
beyond a reasonable doubt. United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014). A reviewing
court “view[s] the evidence in the light most favorable to the government, drawing all inferences
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in the government’s favor,” United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010) (internal
quotation marks omitted), and applies the sufficiency 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. Guadagna, 183
F.3d 122, 130 (2d Cir. 1999). Nyenekor was charged under 21 U.S.C. § 841(a)(1) and (b)(1)(B).
Section 841(a)(1) prohibits any person from “knowingly or intentionally . . . possess[ing] with intent
to distribute . . . a controlled substance[.]” Section 841(b)(1)(B) imposes specific penalties for
violating § 841(a)(1) with 28 grams or more of a mixture or substance containing cocaine base.
Nyenekor argues that the Government failed to offer sufficient evidence that he possessed
the cocaine. We are not persuaded. The Government offered evidence that Nyenekor
constructively possessed the drugs. “Constructive possession exists when a person has the power
and intention to exercise dominion and control over an object, and may be shown by direct or
circumstantial evidence.” United States v. Facen, 812 F.3d 280, 286–87 (2d Cir. 2016) (internal
quotation marks omitted). “[M]ere presence at the location of contraband does not establish
possession[,]” but “presence under a particular set of circumstances” would be sufficient to show
constructive possession. Id. at 287 (first alteration in original; internal quotation marks omitted).
Occupation of a residence, combined with knowledge of an item’s presence, is sufficient to show
constructive possession. See Paulino, 445 F.3d at 222–23 (construction possession could be
shown where evidence showed that defendant used drugs and was sole occupant of room where
cocaine was found).
The evidence showed that Nyenekor was the sole occupant of the room in which the drugs
were found, that the jacket in which additional drugs were found belonged to him, and that he
admitted drugs were dropped off in the room by another dealer for the purposes of distribution.
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Further, Nyenekor’s prior conviction for possessing cocaine showed that he was aware of how
cocaine is packaged for distribution. Together, this evidence is sufficient to show that Nyenekor
constructively possessed the cocaine with an intent to distribute it.
VI. Jury Instructions
Nyenekor objects to the jury instructions, arguing that the inclusion of the aiding and
abetting theory was akin to charging him with another crime without actually indicting him. We
review de novo errors in jury instructions. United States v. Kozeny, 667 F.3d 122, 130 (2d Cir.
2011). This Court will “reverse only if all of the instructions, taken as a whole, caused a defendant
prejudice.” United States v. Bahel, 662 F.3d 610, 634 (2d Cir. 2011) (internal quotation marks
omitted).
“The well established rule in this and other circuits is that a defendant may be indicted for
the commission of a substantive crime and convicted of aiding and abetting its commission although
not named in the indictment as an aider and abettor.” United States v. Smith, 727 F.2d 214, 217
(2d Cir. 1984) (internal quotation marks omitted). “An aiding and abetting jury instruction is
appropriate where the prosecution makes it known that it intends to proceed on a theory of aiding
and abetting and the evidence so warrants.” Id.
Here, the Government timely sought to include the aiding and abetting theory. It first
raised the issue on the second day of the trial before the defense’s case began. The Government
sought inclusion of the aiding and abetting theory for all three counts because Nyenekor’s post-
arrest statement suggested that he possessed the drugs to assist another dealer. Further, the
evidence supported an aiding and abetting charge. As the district court explained, Nyenekor’s
post-arrest statements showed that he assisted another drug dealer by connecting the dealer with
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prospective buyers or by selling on behalf of the dealer. Depending on whether the jury elected to
credit the confidential informant, the evidence showed either direct liability or suggested aiding and
abetting.
VII. Sentence
Nyenekor raises two challenges to his sentence. First, he argues that the district court
should not have applied an enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. We
disagree that the district court exceeded the bounds of its discretion in applying the enhancement.
See United States v. Salim, 549 F.3d 67, 72 (2d Cir. 2008) (reviewing calculation of guidelines for
abuse of discretion). An enhancement under § 3C1.1 applies when “the defendant willfully
obstructed or impeded . . . the administration of justice with respect to the . . . prosecution . . . of
the instant offense of conviction” and the obstructive conduct related to “the defendant’s offense of
conviction[.]” U.S.S.G. § 3C1.1. Although refusal to generally comply with a court order is not
listed under the examples of obstructive conduct, the list is non-exhaustive. Id. cmt. 4. Nyenekor
refused to comply with the district court’s order compelling him to provide a voice exemplar, which
the district court ordered as part of the trial. The conduct related to Nyenekor’s offense of
conviction because the exemplar would be used by a police officer to identify Nyenekor’s voice as
the one he heard selling cocaine to the confidential informant. See Id. (obstructive conduct can
include conduct that attempts to prevent relevant evidence from being introduced, such as by
intimidating witnesses or committing perjury).
Second, Nyenekor asserts that he was illegally sentenced to five years’ supervised release
because the statutory maximum for class C felonies was three years. This argument is meritless.
Nyenekor was convicted of violating 21 U.S.C. § 841(b)(1)(B), which carries a mandatory
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minimum sentence of 4 years’ supervised release. Therefore, the district court’s imposition of a
5-year term of supervised release was not illegal.
We have considered all of Nyenekor’s remaining arguments and find them to be without
merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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