United States v. Donahue Dewar and Sharon King , 375 F. App'x 90 ( 2010 )

08-5958-cr, 08-6222-cr, 09-1338-cr, 10-0403-cr
United States of America v. Donahue Dewar and Sharon King
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29 th day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSEPH M. McLAUGHLIN,
9 ROBERT D. SACK,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14
15 Appellee-Cross-Appellant,
16 08-5958-cr, 08-
17 -v.- 6222-cr, 09-1338-
18 cr, 10-0403-cr
19 CHARLES ERNEST DEWAR, also known as
20 Trooper,
21
22 Defendant,
23
24 DONAHUE DEWAR, also known as Blood,
25 also known as Kirk Dawar, and SHARON
26 KING,
27
28 Defendants-Appellants-Cross-
29 Appellees.
30 - - - - - - - - - - - - - - - - - - - -X
1 APPEARING FOR APPELLANT- Clinton W. Calhoun, III,
2 CROSS-APPELLEE DONAHUE Briccetti, Calhoun & Lawrence,
3 DEWAR: LLP, White Plains, NY.
4
5
6 APPEARING FOR APPELLANT- Jeremy Gutman, New York, NY.
7 CROSS-APPELLEE SHARON
8 KING:
9
10 APPEARING FOR APPELLEE- Brent S. Wible, Assistant United
11 CROSS-APPELLANT: States Attorney (Michael A.
12 Levy, Assistant United States
13 Attorney, on the brief), for
14 Preet Bharara, United States
15 Attorney, United States
16 Attorney’s Office for the
17 Southern District of New York,
18 New York, NY.
19
20
21 Appeals and cross-appeals from judgments of the United
22 States District Court for the Southern District of New York
23 (Robinson, J.).
24
25 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
26 AND DECREED that the judgments of the district court be
27 AFFIRMED.
28
29 Defendants-appellants-cross-appellees Donahue Dewar and
30 Sharon King appeal from judgments of conviction entered in
31 the United States District Court for the Southern District
32 of New York (Robinson, J.), following a jury trial. The
33 government cross-appeals from the judgments of conviction on
34 a narrow issue relating to the sentences imposed on Dewar
35 and King. We assume the parties’ familiarity with the
36 underlying facts, the procedural history, and the issues
37 presented for review.
38
39 For substantially the reasons stated by the district
40 court in its September 6, 2007 amended decision and order,
41 we reject defendants’ challenges to the evidence recovered
42 from the Lexus automobile (the “Lexus”) and from Apartment 1
43 at 3443 Mickle Avenue (the “Residence”). Reviewing for
44 abuse of discretion, we conclude that the district court
2
1 properly denied an evidentiary hearing regarding the police
2 stop of the Lexus because Dewar failed to contest the facts
3 presented in the declaration of Detective Sergeant Edward
4 Lucas (the “Lucas Declaration”) and thereby failed to create
5 a material issue. See United States v. Finley, 245 F.3d
6 199, 203 (2d Cir. 2001).
7
8 Reviewing the district court’s factual findings for
9 clear error and legal determinations de novo, we conclude
10 that the district court properly denied defendants’ motions
11 to suppress the evidence recovered from the Lexus and the
12 Residence. See United States v. Rodriguez, 356 F.3d 254,
13 257 (2d Cir. 2004). First, the district court properly
14 determined that probable cause supported the Lexus stop and
15 the arrests of Dewar and his brother based on (i) the
16 indicia of reliability of the confidential informant (the
17 “CI”) set forth in the Lucas Declaration, (ii) the monitored
18 and recorded conversations between the CI and defendants,
19 and (iii) police surveillance of the Residence.
20 See Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)
21 (“In general, probable cause to arrest exists when the
22 officers have knowledge or reasonably trustworthy
23 information of facts and circumstances that are sufficient
24 to warrant a person of reasonable caution in the belief that
25 the person to be arrested has committed or is committing a
26 crime.” (internal quotation marks omitted)).
27
28 Second, regarding the Residence, the district court
29 properly rejected defendants’ challenges based on the
30 particularity of the search warrant and the purported
31 staleness of the information described in the affidavit
32 submitted in support of the search warrant. The search
33 warrant--sought by local police and issued by a local judge
34 for purposes of a local investigation--did not have to
35 satisfy the 10-day requirement of the then-current version
36 of Federal Rule of Criminal Procedure 41(e)(2)(A)(i).
37 See United States v. Burke, 517 F.2d 377, 382 (2d Cir.
38 1975). A single sentence in the Statement of Facts of
39 Dewar’s pre-trial motion failed to raise an argument that
40 the seizure of objects beyond the purported scope of the
41 search warrant’s description rendered the police conduct an
42 impermissible general search, and defendants thus waived any
43 such argument pursuant to Federal Rule of Criminal Procedure
44 12(b)(3)(C).
3
1
2 We reject defendants’ challenges to the jury
3 instructions. The district court properly instructed the
4 jury regarding Dewar’s knowledge and intent. See United
5 States v. Gilliam, 994 F.2d 97, 102 (2d Cir. 1993) (“[T]he
6 cases interpreting [Federal Rule of Evidence] 404(b) allow
7 the district court to do essentially what was done in this
8 case: the defendant does not challenge the element of the
9 crime, the jury is told that the element of the crime is
10 met, but no extraneous evidence to prove that element is
11 introduced.”); accord United States v. Tarricone, 996 F.2d
12 1414, 1421 (2d Cir. 1993); United States v. Colon, 880 F.2d
13 650, 659 (2d Cir. 1989). Because both Dewar and King were
14 convicted of the conspiracy charged in Count One of the
15 relevant indictment, Defendants cannot demonstrate plain
16 error based on the district court’s omission of an
17 instruction that the CI could not be a co-conspirator during
18 his cooperation with the investigation. Similarly,
19 Defendants cannot establish plain error based on the
20 district court’s omission of specific unanimity charges as
21 to (i) the object of the conspiracy for Count One in light
22 of the jury’s unanimous finding that the conspiracy involved
23 five or more kilograms of cocaine; (ii) the predicate drug
24 offense for Count Five in light of the jury’s unanimous
25 conviction on each of the three predicate offenses, see
26 United States v. Gomez, 580 F.3d 94, 103-04 (2d Cir. 2009);
27 or (iii) the particular firearm for Count Five, see, e.g.,
28 United States v. Perry, 560 F.3d 246, 257 (4th Cir. 2009);
29 United States v. Wise, 515 F.3d 207, 214-15 (3d Cir. 2008);
30 United States v. Hernandez-Albino, 177 F.3d 33, 40 (1st Cir.
31 1999); United States v. Morin, 33 F.3d 1351, 1353-54 (11th
32 Cir. 1994); United States v. Correa-Ventura, 6 F.3d 1070,
33 1075-87 (5th Cir. 1993).
34
35 Assuming King’s severance motion was properly
36 presented, and reviewing for abuse of discretion, the
37 district court properly denied it. See United States v.
38 Yousef, 327 F.3d 56, 150 (2d Cir. 2003). The district court
39 carefully instructed the jury that King contested the
40 knowledge and intent element of the charged offenses,
41 thereby minimizing any prejudice arising from the jury
42 instructions regarding Dewar’s knowledge and intent.
43 See United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006)
44 (“As the Supreme Court has frequently observed, the law
4
1 recognizes a strong presumption that juries follow limiting
2 instructions.”).
3
4 We reject Dewar’s challenges relating to the
5 government’s filing of a prior felony information. Although
6 the district court omitted the colloquy required under 21
7 U.S.C. § 851(b), it did not rely on the prior felony
8 information in sentencing Dewar:
9
10 [I]t is my view that a sentence of twenty years or
11 240 months was or is the appropriate sentence
12 regardless of what the mandatory minimum is; that
13 in light again of this defendant’s history and
14 characteristics and the circumstances of this
15 offense, that some very significant punishment
16 needs to be put in place. And, so, whether a ten
17 or a twenty-year mandatory minimum sentence were
18 found, I would have imposed a sentence of 240
19 months, and I just want that to be clear.
20
21 This lucid statement renders any error harmless. See United
22 States v. Deandrade, ---- F.3d ----, 2010 WL 842324, at *4
23 (2d Cir. Mar. 12, 2010). Moreover, Dewar failed to rebut
24 the “presumption of regularity” attaching to the
25 government’s filing of the prior felony information. United
26 States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008).
27
28 The government cross-appeals the district court’s
29 decisions not to impose consecutive sentences for Dewar and
30 King’s 18 U.S.C. § 924(c) convictions. The government
31 concedes that the district court complied with the law of
32 this Circuit, but contends that the law of this Circuit is
33 error. See United States v. Williams, 558 F.3d 166 (2d Cir.
34 2009); United States v. Whitley, 529 F.3d 150 (2d Cir.
35 2008). As a preliminary matter, the government requests
36 that we defer ruling on the cross-appeals until the legal
37 issue has been clarified by the Supreme Court, as the
38 government expects. We are aware that the Supreme Court has
39 granted two petitions for writs of certiorari on this issue.
40 See United States v. Gould, 329 Fed. App’x 569 (5th Cir.
41 2009), cert. granted, 130 S. Ct. 1283 (Jan. 25, 2010) (No.
42 09-7073); United States v. Abbott, 574 F.3d 203 (3d Cir.
43 2009), cert. granted, 130 S. Ct. 1284 (Jan. 25, 2010) (No.
44 09-479). However, a “panel is bound by prior decisions of
5
1 this court unless and until the precedents established
2 therein are reversed en banc or by the Supreme Court.”
3 United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009).
4 Accordingly, we conclude that the district court properly
5 declined to impose the consecutive sentences provided in §
6 924(c).
7
8 We have considered all of the contentions in these
9 appeals and cross-appeals and have found them to be without
10 merit. Accordingly, the judgments of the district court are
11 hereby AFFIRMED.
12
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
15
6