United States v. Johnson ( 2020 )

14-1027-cr(L)
United States v. Johnson, et al.
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 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
6th day of March, two thousand twenty.
Present:
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 14-1027-cr (Lead)
14-1120-cr (Con)
14-1716-cr (Con)
ASTON JOHNSON, AKA Richard Burke, AKA Daniel
Arroyo, AKA Robert Brooks, RICHARD ANDERSON,
AKA Jason Key, AKA Christopher Key, ANDREW
WRIGHT, AKA Charles Rainey,
Defendants-Appellants.*
_____________________________________
For Appellee: MONICA J. RICHARDS, Assistant United States Attorney,
for James P. Kennedy, Jr., United States Attorney for
the Western District of New York, Buffalo, NY
*
The Clerk of Court is respectfully directed to amend the caption as set forth above.
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For Defendant-Appellant Johnson: VIVIAN SHEVITZ, South Salem, NY
For Defendant-Appellant Anderson: JAY S. OVSIOVITCH, Assistant Federal Public Defender,
Rochester, NY
For Defendant-Appellant Wright: LAWRENCE D. GERZOG, New York, NY
Appeal from a judgment of the United States District Court for the Western District of New
York (Siragusa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendants-Appellants Aston Johnson, Richard Anderson, and Andrew Wright (together,
the “Defendants”) appeal from their judgments of conviction entered on April 1, March 27, and
May 9, 2014, respectively, in the United States District Court for the Western District of New York
(Siragusa, J.). Defendants, who were participants in a cross-country marijuana-distribution
operation, were convicted under drug-conspiracy, firearm-possession, and murder statutes in
connection with their murders of Robert Moncriffe, Mark Wisdom, and Christopher Green
(together, the “Victims”) in Greece, New York. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
* * *
I. Anderson’s Cell-Site Location Information
At trial, the government offered historical cell-site location information (“CSLI”)
associated with Anderson’s cell phone as evidence of his traveling from his home in Arizona to
the murder scene in New York (with a stop in Columbus, Ohio, to obtain firearms and a rental
car). The government obtained Anderson’s CSLI pursuant to a warrant issued on April 8, 2010 by
a Monroe County judge. In the district court, Anderson moved to suppress the CSLI associated
with his cell phone, but the district court denied the motion on the basis that Anderson had
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registered the phone with his service provider under the stolen identity—including the birth date
and social security number—of Florida nursing-home resident named Jason Key. The district court
concluded that Anderson therefore lacked a reasonable expectation of privacy in the CSLI
associated with the phone. On appeal, Anderson argues that he had an objectively reasonable
privacy interest in this CSLI despite having registered his phone in another’s identity. We need
not address the issue, however, because even assuming arguendo that Anderson had a reasonable
expectation of privacy in the records at issue, investigators properly obtained them pursuant to a
facially valid judicial warrant supported by probable cause, defeating Anderson’s argument that
the records should have been suppressed.
It is clear that law enforcement agents may properly obtain CSLI records, even assuming
that an individual maintains a reasonable expectation of privacy in such records, when police act
pursuant to a warrant issued on the basis of probable cause. See Carpenter v. United States, 138 S.
Ct. 2206, 2221 (2018). And in issuing such a search warrant, the court is tasked with “simply
mak[ing] a practical, common-sense decision whether, given all the circumstances set forth in the
affidavit before [it] . . . there is a fair probability that . . . evidence of a crime” will be reflected in
the records at issue. Illinois v. Gates, 462 U.S. 213, 238 (1983). On appeal, we accord “substantial
deference to the finding of an issuing judicial officer that probable cause exists, limiting our inquiry
to whether the officer had a substantial basis for his determination.” United States v. Boles, 914
F.3d 95, 102 (2d Cir. 2019) (internal quotation marks and citation omitted). The issuing court here
had such a basis. The New York State Police investigator’s application included a detailed factual
recitation from which the issuing judge could conclude that Anderson was involved in the drug
conspiracy surrounding the Victims’ murders, that Anderson had traveled to the Rochester area by
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the time of the murders, and that Anderson traveled together with the other suspects to a hotel
immediately after the murders took place.
Even if the warrant had been defective, moreover, Anderson would not be entitled to a
suppression order in the circumstances here. The exclusionary rule applies only to deter
“deliberate, reckless, or grossly negligent conduct.” Herring v. United States, 555 U.S. 135, 144
(2009). “When an officer genuinely believes that he has obtained a valid warrant . . . and executes
that warrant in good faith, there is no conscious violation of the Fourth Amendment, ‘and thus
nothing to deter.’” United States v. Raymonda, 780 F.3d 105, 118 (2d Cir. 2015) (quoting United
States v. Leon, 468 U.S. 897, 920–21 (1984)). As long as the officer’s reliance on the warrant was
objectively reasonable, this “good faith” exception to the warrant requirement insulates the
evidence from exclusion. See Boles, 914 F.3d at 103. Since there is no evidence to suggest that
reliance on the warrant here was anything other than reasonable, the district court did not err in
declining to exclude the CSLI evidence.1
II. The District Court’s Aiding-and-Abetting and Pinkerton Instructions
Wright and Johnson next argue that the district court erred in instructing the jury that it
could convict the Defendants not only as principal offenders under 21 U.S.C. § 848(e)(1)(A), but
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Indeed, because investigators obtained Anderson’s CSLI in 2010, prior to the Supreme Court’s
decisions in Carpenter and United States v. Jones, 565 U.S. 400 (2012), this conclusion would
hold even if investigators had not secured a warrant supported by probable cause before obtaining
Anderson’s CSLI records. See United States v. Zodhiates, 901 F.3d 137, 143–44 (2d Cir. 2018).
In Zodhiates, we held that government agents who obtained a criminal defendant’s CSLI records
without a warrant before the Supreme Court decided Carpenter and Jones relied in good faith on
then-applicable appellate precedent. Id. The government issued the subpoena at issue in Zodhiates
pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. § 2703. For court orders like the
warrant at issue in this case, the SCA required only a showing of “specific and articulable facts
showing that there are reasonable grounds to believe that the . . . information sought[] [is] relevant
and material to an ongoing criminal investigation.” Id. § 2703(d). The warrant that issued here
clearly met this standard.
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also for aiding and abetting pursuant to 18 U.S.C. § 2 or as coconspirators as described in Pinkerton
v. United States, 328 U.S. 640 (1946). We review a district court’s jury instructions de novo and
reverse where, in view of the charge as a whole, there was prejudicial error. United States v.
Sheehan, 838 F.3d 109, 121 (2d Cir. 2016). There was no such error here.
In United States v. Walker, 142 F.3d 103, 113–14 (2d Cir. 1998), we held that both aiding-
and-abetting and Pinkerton liability may attach to offenses under § 848(e). In that case, after
concluding that the “district court was correct in instructing the jury that aiding and abetting
liability was available,” we upheld the conviction of a defendant who “aided in preparations for”
a murder and “accompanied [another defendant] to [the murder victim’s] house with the shared
intent of carrying out the killing.” Id. We also upheld a Pinkerton instruction in connection with a
murder charged under § 848(e)(1)(A). Id. at 114. The district court did not err in instructing the
jury that it could convict the Defendants under an aiding-and-abetting or Pinkerton theory of
liability.
III. The Sufficiency of the Evidence to Convict Wright
As he did in his unsuccessful Rule 29 motion before the district court, Wright argues that
the government’s evidence was insufficient to support the jury’s guilty verdict under any of the
instructed theories of liability, and that we should therefore vacate his conviction. Because the
evidence was sufficient to support Wright’s conviction, we agree with the district court that Wright
is not entitled to vacatur. We review a district court’s decision on a motion for acquittal pursuant
to Federal Rule of Criminal Procedure 29 de novo. United States v. Valle, 807 F.3d 508, 515 (2d
Cir. 2015). In so doing, we view the evidence in the light most favorable to the Government with
all reasonable inferences resolved in the Government’s favor. United States v. Anderson, 747 F.3d
51, 60 (2d Cir. 2014). We will uphold the jury’s verdict “if any rational trier of fact could have
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found the essential elements of the crime had been proved beyond a reasonable doubt.” Valle, 807
F.3d at 515. We therefore “assum[e] that the jury resolved all questions of witness credibility . . .
in favor of the prosecution,” United States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010), and
“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,” United
States v. Best, 219 F.3d 192, 200 (2d Cir. 2000) (internal quotation marks omitted). The verdict
“may be based on circumstantial evidence,” and “the Government is not required to preclude every
reasonable hypothesis which is consistent with innocence.” United States v. Ogando, 547 F.3d
102, 107 (2d Cir. 2008) (internal quotation marks omitted).
Here, the evidence was plainly sufficient to find Wright guilty of the charged offenses. In
addition to the effectively unchallenged evidence that Wright participated in a drug-distribution
conspiracy with Johnson and Anderson, the government offered compelling evidence that Wright
participated in the planning and execution of the murders. The government presented witness
testimony and CSLI records showing that Wright booked a flight to Columbus, Ohio, rented a car,
obtained two firearms, and drove to Rochester, New York, where he stayed in a Holiday Inn
Express along with the other suspects. Ballistics evidence showed that one of the firearms Wright
obtained in Columbus matched shell casings found at the murder scene. Video evidence also
showed that on the day of the murders, Wright and Johnson left the Holiday Inn Express together
and traveled to a Comfort Inn, where Johnson rented a room. Further video evidence showed that
Wright and Anderson thereafter left the Holiday Inn Express together, traveling in the direction of
the murder scene, and that Anderson, Wright, and Johnson all returned to the Comfort Inn
approximately fifteen minutes after the 911 call alerting police to the murders. Wright and
Anderson left about ten minutes later, and drove back to Columbus. The government also
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presented evidence that approximately one week after the murders, Wright discussed a firearm he
obtained in Columbus with the man who supplied it, indicating that the transaction had served its
purpose and that Wright had disposed of the firearm. On this and other evidence in the trial record,
the jury had more than a sufficient basis to convict Wright.
IV. Anderson’s Sixth Amendment Claim
Anderson argues that he is entitled to a new trial because court security officers twice
removed his friend Kevin Felton from the courtroom during the trial proceedings, allegedly
violating Anderson’s Sixth Amendment right to a public trial. Under the circumstances here, we
agree with the district court that Anderson is not entitled to a new trial.
The right to a public trial is “subject to the trial judge’s power to keep order in the
courtroom.” Cosentino v. Kelly, 102 F.3d 71, 73 (2d Cir. 1996) (quoting United States v. Fay, 350
F.2d 967, 971 (2d Cir. 1965)). And even when improper exclusion does occur, not “every
temporary instance of unjustified exclusion of the public—no matter how brief or trivial, and no
matter how inconsequential the proceedings that occurred during an unjustified closure—would
require that a conviction be overturned.” Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir. 2009).
Under this “triviality” exception, an unjustified exclusion from the courtroom will not require a
new trial if the closure does not “subvert[] the values the drafters of the Sixth Amendment sought
to protect:” (1) ensuring a fair trial, (2) reminding the prosecutor and judge of their responsibility
to the accused, (3) encouraging witnesses to come forward, and (4) discouraging perjury. Smith v.
Hollins, 448 F.3d 533, 540 (2d Cir. 2006).
Felton’s removal did not violate Anderson’s right to a public trial or infringe on the values
listed above. At no point during the alleged exclusion events did the district court close or partially
close the courtroom either to the public or to the press. See Cosentino, 102 F.3d at 73 (affirming
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an order that “allowed access to most members of the public (and press) . . . and only barred those
individuals who . . . posed a threat to the orderly conduct of the second trial”). Instead, court
security officers removed a single individual for suspicious behavior, including repeatedly
attempting to communicate with a defendant and potentially attempting to intimidate the jury.
Even if court security officers should not have removed Felton from the courtroom, his individual
removal did not threaten the values the Sixth Amendment was fashioned to protect. The district
court was therefore correct to deny Anderson’s motion for a new trial. Cf. Peterson v. Williams,
85 F.3d 39, 43–44 (2d Cir. 1996) (finding no basis for a new trial even where an administrative
error resulted in the complete closure of the courtroom during the defendant’s testimony).
V. Johnson’s Ineffective Assistance of Counsel Claim
On appeal, Johnson argues that he was afforded constitutionally ineffective assistance of
counsel because his attorney failed to make certain procedural motions to mitigate the effect of
Wright’s trial strategy of blaming his codefendants, failed to join in Anderson’s motion to suppress
CSLI evidence, and failed to join in motions concerning the alleged Sixth Amendment violations
described above. On the record before us, we decline to resolve Johnson’s claim of ineffective
assistance of counsel, leaving him with the opportunity to raise it again—along with any other
collateral attacks on his conviction—in a motion pursuant to 28 U.S.C. § 2255. See United States
v. Doe, 365 F.3d 150, 152 (2d Cir. 2004).
Our Circuit has a “baseline aversion to resolving ineffectiveness claims on direct review,”
United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003) (internal quotation marks omitted), a
position consistent with the Supreme Court’s observation that “in most cases a motion brought
under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance,” Massaro
v. United States, 538 U.S. 500, 504 (2003). “Among the reasons for this preference is that the
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allegedly ineffective attorney should generally be given the opportunity to explain the conduct at
issue.” United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003) (citation omitted). In light of the
incomplete record before us, and because “the district court [is] the forum best suited to developing
the facts necessary to determining the adequacy of representation during an entire trial,” we decline
to address Johnson’s ineffective-assistance claims at this time. Massaro, 538 U.S. at 505.
We have considered Defendants’ remaining arguments and find any error to be harmless
or the claims to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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