United States v. Carletto Allen ( 2020 )

18-1880-cr
United States v. Carletto Allen
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
21st day of December, two thousand twenty.
Present: ROSEMARY S. POOLER,
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges,
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 18-1880-cr
CARLETTO ALLEN, AKA JOKER,
Defendant-Appellant. 1
_____________________________________________________
Appearing for Appellant: Randall D. Unger, Bayside, N.Y.
Appearing for Appellee: Jessica Feinstein, Assistant United States Attorney (Allison
Nichols, Karl Metzner, Drew Skinner, Hagan Scotten, Assistant
United States Attorneys, on the brief) for Audrey Strauss, Acting
United States Attorney for the Southern District of New York.
Appeal from the United States District Court for the Southern District of New York
(Nathan, J.).
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The Clerk of Court is directed to amend the caption to the above.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment be and it hereby is AFFIRMED.
Defendant-Appellant Carletto Allen appeals from the June 20, 2018 judgment of
conviction in the United States District Court for the Southern District of New York (Nathan, J.)
following his conviction after a jury trial. The jury returned a verdict of guilty on four counts:
racketeering conspiracy in violation of 18 U.S.C. § 1962(d); narcotics conspiracy in violation of
21 U.S.C. § 846; narcotics possession with intent to distribute in violation of 21 U.S.C. § 841;
and a firearms offense in violation of 18 U.S.C. § 924(c). Allen was convicted of racketeering for
his involvement with the Big Money Bosses “(“BMB”) gang. The district court sentenced Allen
to concurrent terms of 36 months’ imprisonment on the first three counts and 60 months’
imprisonment on the fourth to run consecutively. The district court adjusted the sentence to
account for Allen’s state court sentence on relevant conduct, leaving a sentence of 72 months’
imprisonment. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.
Allen principally argues on appeal that: (1) the evidence at trial was insufficient to
support his racketeering conspiracy and firearms convictions; and (2) errors in the cross-
examination during his testimony require a new trial.
We will uphold a jury verdict provided “a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.” United States v. Persico, 645 F.3d 85, 104 (2d Cir.
2011) (internal quotation marks and citation omitted). On a challenge to the sufficiency of the
evidence, a defendant must demonstrate that, viewing all the evidence in the light most favorable
to the government, “no rational trier of fact could have found the essential elements of the crime
charged beyond a reasonable doubt.” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.
2001) (citations omitted). With respect to conspiracy convictions, “only slight evidence is
required to link another defendant with a conspiracy once the conspiracy has been shown to
exist.” United States v. Abelis, 146 F.3d 73, 80 (2d Cir. 1998).
Allen argues that there was insufficient evidence that he knowingly associated with BMB
or that his marijuana sales required their approval and agreement. We disagree. The trial record
contains ample evidence from which a rational jury could conclude that Allen knowingly
associated with, and conducted his drug sales in connection with, the BMB enterprise. A
cooperating witness, Stephan Hamilton, testified Allen always sold marijuana to BMB members
at a discount. Hamilton also testified that he personally received this discount based on his
membership in BMB, and Allen shouted out “Mister Big Money” and called out “Big Money”
during the first sale. Hamilton testified that he purchased marijuana from Allen frequently, and
BMB would not have allowed Allen to conduct sales in that location absent authorization.
Hamilton testified to Allen’s additional sales in wholesale quantities to other BMB dealers and to
Allen observing the BMB members repackaging the marijuana for resale. Hamilton testified that
Allen promised he would not sell to BMB’s rivals, YSGz, as he understood the rivalries.
Hamilton testified regarding a jailhouse conversation where Allen explicitly associated himself
with BMB, wishing he could have been present during their acts of violence United States v.
Truman, 688 F.3d 129, 144 (2d Cir. 2012).
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Allen attacks the credibility of Hamilton’s testimony based on Hamilton’s alleged history
of dishonesty, convictions, and his cooperation agreement. All of these issues were addressed
through cross examination, and we defer to the jury’s determinations as to witness credibility.
See United States v. Morrison, 153 F.3d 34, 49 (2d Cir.1998) (We defer to the jury’s
determination of the weight of the evidence and the credibility of the witnesses, and to the jury’s
choice of the competing inferences that can be drawn from the evidence.”). The record more than
supports the jury’s conclusion that Allen possessed knowledge of the general contours of the
racketeering conspiracy. See United States v. Applins, 637 F.3d 59, 77 (2d Cir. 2011).
Allen also argues that there was insufficient evidence to sustain his conviction under
Section 924(c), which provides that “any person who, during and in relation to any . . . drug
trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall . . . be sentenced to a term of imprisonment of not less than 5 years.”
18 U.S.C. § 924(c)(1)(A)(i). “[A] drug dealer may be punished under § 924(c)(1)(A) where the
charged weapon is readily accessible to protect drugs, drug proceeds, or the drug dealer himself.”
United States v. Snow, 462 F.3d 55, 62–63 (2d Cir. 2006).
Viewing the evidence in the light most favorable to the government, Allen had the
weapon readily accessible during a drug sale just before his arrest. Allen testified that he sold an
associate “nickel bags of weed” and stayed with him to smoke just before his arrest. The
arresting officer testified that after he saw Allen smoking a marijuana cigarette and opened the
car door to grab Allen’s hand, he saw the handle of the gun. If credited, this testimony would
allow the jury to rationally conclude that Allen kept the gun readily accessible to protect himself
during a drug sale. Additionally, Hamilton testified that Allen told him that, after someone
robbed Allen, Allen shot at the robber, providing further support for the jury’s verdict.
Allen also argues that the government’s questions to him regarding whether the arresting
officers lied warrant a new trial. He relies on United States v. Richter, 826 F.2d 206, 208 (2d Cir.
1987), where we held that “[p]rosecutorial cross-examination which compels a defendant to state
that law enforcement officers lied in their testimony is improper.” Here, during cross
examination the government explicitly asked Allen if he was claiming that the arresting officer
lied. The government followed up by asking Allen if he was claiming that the other officers at
the scene were “willing to risk their careers to lie about where that gun came from.” Allen did
not object to these questions below. Where the error is not raised below, our review is for plain
error. United States v. Nouri, 711 F.3d 129, 138 (2d Cir. 2013). “Under the plain-error rule, we
may overturn a conviction by reason of an error not timely raised at trial only if the appellant
demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error
seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.(alteration in original) (internal quotation marks and citations omitted). The government
acknowledges that the questions to Allen were improper. Thus, the first two factors are satisfied,
but this error alone did not suffice to seriously undermine the fundamental fairness of the trial.
In Richter, the conviction was reversed after the government improperly elicited
testimony that forced the defendant to testify a law enforcement agent was lying. Richter, 826
F.2d at 208. However, we noted, “[b]ecause the prosecutor in this case gave the defendant an
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alternative of branding [the agent’s] testimony as either a lie or a mistake and because no
objection was taken by defense counsel, we might be inclined to overlook the impropriety if that
were defendant’s sole claim of error.” Id. We emphasized that the government called a second
agent as a rebuttal witness to testify that the first agent was truthful and then used the summation
to repeatedly emphasize the point that the defendant’s innocence depended on the jury finding
that the agents were lying. Id. at 208-10. In subsequent cases, we declined to reverse convictions
where the government’s improper questions did not similarly taint the entirety of the trial
proceedings. “[D]efendants invoking Richter have not succeeded in obtaining reversal of their
convictions when the starkly offensive prosecutorial delinquencies in Richter were not
replicated.” United States v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994) (collecting cases); see also
United States v. Truman, 688 F.3d 129, 144 (2d Cir. 2012) (holding that a similar error “when
viewed in the context of the entire trial [was] not so severe and significant as to deprive [the
defendant] of a fair trial”) (internal quotation marks and citation omitted). Here, the government
did ask improper questions, but it did not attempt to rebut Allen’s testimony with additional law
enforcement testimony and did not rely on this questioning in summation. While the
government’s error was clear and affected Allen’s substantial rights, because the improper
questions did not permeate the trial proceedings, they did not undermine the fundamental
fairness of Allen’s trial.
We have considered the remainder of Allen’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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