United States v. Felder ( 2021 )

19-897
United States v. Felder
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
No. 19-897-cr
UNITED STATES OF AMERICA,
Appellee,
v.
TYRONE FELDER, AKA MAN MAN,
Defendant-Appellant,
KAREEM MARTIN, AKA JAMAL WALKER, TAKIEM EWING, AKA MULLA,
TOMMY SMALLS, AKA TOMMY GUNS,
Defendants. ∗
__________
On Appeal from the United States District Court
for the Southern District of New York
__________
ARGUED: OCTOBER 21, 2020
DECIDED: MARCH 31, 2021
__________
Before: RAGGI, SULLIVAN, and BIANCO, Circuit Judges.
∗
The Clerk of Court is respectfully directed to amend the caption as set forth
above.
________________
Defendant Tyrone Felder appeals from a judgment of the
United States District Court for the Southern District of New York
(Briccetti, J.), convicting him of two counts of carjacking resulting in
death, see 18 U.S.C. § 2119(3); multiple counts of substantive and
conspiratorial Hobbs Act robbery, see id. § 1951; and related firearms
offenses, see id. § 924(c). Felder argues that the district court erred in
(1) instructing the jury as to the elements of carjacking resulting in
death, (2) allowing the government to elicit expert opinion testimony
that an object in Felder’s hand on surveillance video was a firearm,
(3) relying on the good-faith exception to the exclusionary rule to
admit historical cell-site location information procured by a warrant
not supported by probable cause, and (4) admitting unduly
prejudicial photographic and testimonial evidence of Felder’s
relationship with co-conspirators. Felder further maintains (5) that
carjacking resulting in death and Hobbs Act robbery do not
categorically satisfy the crime-of-violence element of the firearms
offenses for which he stands convicted.
AFFIRMED.
CELIA V. COHEN, Assistant United States
Attorney (Danielle R. Sassoon, Assistant
United States Attorney, on the brief), for
Audrey Strauss, United States Attorney for
the Southern District of New York, New
York, New York, for Appellee.
2
BENJAMIN A. SILVERMAN (Andrew G. Patel,
Esq., New York, New York, on the brief), Law
Office of Benjamin Silverman, New York,
New York, for Defendant-Appellant.
REENA RAGGI, Circuit Judge:
Within the span of eight days in August 2014, defendant
Tyrone Felder killed two livery cab drivers by shooting each in the
head while stealing their cabs for use in armed robberies. Based on
this conduct, Felder now stands convicted after a jury trial of nine
crimes: two counts of carjacking resulting in death, see 18 U.S.C.
§ 2119(3); two counts of substantive and one count of conspiratorial
Hobbs Act robbery, see id. § 1951; two counts of discharging a firearm
in connection with crimes of violence (the fatal carjackings), see id.
§ 924(c)(1)(A)(iii); and two counts of brandishing a firearm in
connection with crimes of violence (the substantive Hobbs Act
robberies), see id. § 924(c)(1)(A)(ii). The judgment of conviction,
entered on April 5, 2019, in the United States District Court for the
Southern District of New York (Vincent J. Briccetti, Judge), sentenced
Felder to a total of life imprisonment plus 34 years for these crimes.
In appealing this conviction, Felder argues that the district
court erred in (1) instructing the jury as to the elements of carjacking
resulting in death, (2) allowing the government to elicit expert
opinion testimony that an object shown in Felder’s hand on
surveillance video was a firearm, (3) relying on the good-faith
exception to the exclusionary rule to admit historical cell-site location
information obtained with a warrant not supported by probable
cause, and (4) admitting unduly prejudicial photographic and
3
testimonial evidence of Felder’s relationship with co-conspirators in
the charged crimes. Felder further maintains (5) that carjacking
resulting in death and substantive Hobbs Act robbery cannot
categorically satisfy the crime-of-violence element of the firearms
offenses for which he stands convicted. For the reasons explained in
this opinion, we reject these arguments and, accordingly, affirm the
judgment of conviction on all counts.
BACKGROUND
Because Felder “appeals a judgment of conviction following a
jury trial, we summarize the evidence adduced in the light most
favorable to the prosecution.” United States v. Ng Lap Seng, 934 F.3d
110, 116 (2d Cir. 2019). That evidence was extensive, including hours
of surveillance video from dozens of different private and public
surveillance cameras, historical cell-site location records, various
forensics reports, and testimony from numerous witnesses. One of
these witnesses, Tommy Smalls, participated directly in the charged
crimes with Felder, Kareem Martin, and Takiem Ewing. These four
conspirators had known each other since childhood, having grown
up together in the same Bronx apartment complex.
I. The August 5, 2014 Crimes
Smalls testified that, in early August 2014, Felder proposed
robbing a McDonald’s restaurant in the Bronx. On the evening of
August 4, the four conspirators met to finalize their plan, agreeing to
carry guns and to carjack a vehicle for use in the robbery. A few hours
later, in the early morning of August 5, Smalls, Martin, and Ewing
met at Ewing’s Bronx apartment, where, after changing clothes and
donning latex gloves, they hailed a black livery cab operated by
4
Maodo Kane and directed Kane to drive them to Felder’s home. After
picking up Felder, the men instructed Kane to drive to a deserted,
dead-end block on Hunter Avenue in the Eastchester section of the
Bronx. There, Felder pointed a gun at Kane and ordered him out of
the car. When Kane failed to comply, Smalls pulled the livery driver
out of the car, whereupon Felder shot Kane once in the back of the
head, killing him.
Leaving Kane’s dead body on Hunter Avenue, Felder took the
wheel of the livery cab and drove his three confederates to the
targeted McDonald’s. Upon seeing a nearby police station and
passing police car, however, the men abandoned their original plan
and, instead, drove to Yonkers. There, as Felder waited in the cab,
Smalls, Martin, and Ewing entered a convenience store and, at
gunpoint, forced occupants to the floor, emptied the cash register, and
stole cash and bottles of bleach. Surveillance video captured the
entire robbery, including Felder at one point opening the targeted
store’s front door and exhorting his confederates to hurry up.
As the conspirators drove away from the first robbery scene,
they spotted a Dunkin’ Donuts store and decided to rob it too. Again,
Felder waited in the cab while Smalls, Martin, and Ewing entered the
store armed with guns. Once again, surveillance video captured the
crime, showing terrified employees fleeing into a back room while
Martin and Ewing emptied the cash register.
Following the second robbery, the conspirators drove to the
vicinity of Yankee Stadium, where they abandoned the stolen livery
cab after wiping it down with the stolen bleach to eliminate any
incriminating evidence. Surveillance video from the surrounding
5
streets shows the men walking several blocks before catching a cab
back to Ewing’s apartment. There, the conspirators threw the clothes
and gloves worn during the night’s crimes down a garbage chute and
divided the money taken in the two robberies.
II. The August 12, 2014 Crimes
Felder and his confederates soon planned another armed
robbery, again to be preceded by a carjacking. Surveillance video,
recorded on August 12, 2014, shows Felder, Smalls, Martin, and
Ewing exiting Ewing’s apartment building and entering a livery cab
driven by Aboubacar Bah. The conspirators directed Bah to drive to
the Hunts Point section of the Bronx. There, on a quiet block, Felder
pointed his gun at Bah’s head and instructed him to exit the vehicle.
Instead, Bah quickly accelerated the cab, whereupon Felder shot him
once in the head, killing him. Surveillance video shows the livery
cab—with Bah dead behind the wheel and Felder and his co-
conspirators in pursuit on foot—rolling down the street and crashing
into parked cars before coming to a halt. The video shows Felder and
his confederates then pulling Bah’s dead body out of the vehicle and
leaving it in the street before driving off in the cab.
The men soon grew concerned that police were following them,
and so they abandoned their robbery plan and left the carjacked livery
cab on a residential street in the Bronx. Surveillance video captures
all four men exiting the vehicle and fleeing on foot, Felder with a dark
object in his hand. At trial, a police firearms expert identified this
object as a gun. Still other surveillance videos show the conspirators
throwing their clothes and gloves into a nearby dumpster and then
returning to Ewing’s apartment building.
6
There, the men decided they needed to return to the abandoned
vehicle to ensure that it contained no incriminating evidence. When
Felder, Smalls, and Martin did so, they saw police already at the
scene. Street surveillance videos show the conspirators retrieving
their clothing and gloves from the dumpster where they had earlier
placed them. The men failed, however, to retrieve gloves worn by
Martin, thereby allowing authorities to recover the gloves and obtain
incriminating DNA evidence.
Within days, authorities arrested all four conspirators. Smalls,
Ewing, and Martin would eventually plead guilty, with Felder alone
opting to stand trial. 1 After the jury found Felder guilty of all nine
crimes charged in this case, the district court imposed a total prison
sentence of life plus 34 years. 2 This timely appeal followed.
1For crimes relating to the described events of August 2014, Smalls was sentenced
to a total of 180 months’ incarceration, to run consecutively to a 60-month sentence
imposed by Chief Judge Colleen McMahon in a separate gang case, in which
Smalls, Felder, Martin, and numerous others faced charges. Ewing was sentenced
to a total of 384 months’ incarceration and Martin to a total of 480 months’
incarceration, to run consecutively to an 84-month part of a total 180-month
sentence imposed by Judge Valerie Caproni in the same gang case.
2 This sentence reflected concurrent prison terms of life on each of the two counts
of carjacking resulting in death and of 20 years on each of the three counts of Hobbs
Act robbery, to run consecutively with consecutive prison terms of 10 years each
on the two counts of discharging a firearm in relation to a crime of violence, and
7 years each on the two counts of brandishing a firearm in relation to a crime of
violence. The district court further ordered that Felder’s sentences on the four
firearms counts of conviction run consecutively to the total 312-month (26-year)
sentence imposed on him by Judge Caproni in the separate gang case.
7
DISCUSSION
I. Jury Instructions as to Carjacking Resulting in Death
Felder stands convicted on two counts of carjacking resulting
in death in violation of 18 U.S.C. § 2119(3). The statute states, in
relevant part, as follows:
Whoever, with the intent to cause death or
serious bodily harm takes a motor vehicle
that has been transported, shipped, or
received in interstate or foreign commerce
from the person or presence of another by
force and violence or by intimidation, or
attempts to do so, shall— . . .
(3) if death results, be fined under this title
or imprisoned for any number of years up to
life, or both, or sentenced to death.
18 U.S.C. § 2119.
Felder argues that the jury was erroneously instructed as to the
mens rea and causation elements of this crime. Because “[t]he
propriety of a jury instruction is a question of law,” we review
Felder’s claim de novo. United States v. Wilkerson, 361 F.3d 717, 732
(2d Cir. 2004) (internal quotation marks omitted). To secure reversal,
Felder must demonstrate that the instruction given was erroneous,
i.e., that when viewed as a whole, the instruction misled or
inadequately informed the jury “as to the correct legal standard.” Id.(internal quotation marks omitted). Felder must also show that the
instruction he requested was correct in all respects, and that he
suffered ensuing prejudice. See United States v. Fazio, 770 F.3d 160, 166
8
(2d Cir. 2014). Here, Felder cannot demonstrate either error or
prejudice.
A. The Mens Rea Instruction
In charging the mens rea element of federal carjacking, the
district court instructed the jury as follows:
The third element the Government must
prove beyond a reasonable doubt is that the
Defendant acted with intent to cause death
or serious bodily harm. To establish this
element, the Government must prove that at
the moment the Defendant, or those he is
alleged to have aided and abetted,
demanded or took control of the vehicle, the
Defendant possessed the intent to seriously
harm or kill the driver if necessary to steal
the car or for any other reason. A Defendant
may intend to engage in certain conduct
only if a certain event occurs. In this case,
the Government contends that the
Defendant intended to cause death or
serious bodily harm if the victim refused to
turn over his car. If you find beyond a
reasonable doubt that the Defendant had
such an intent, the Government has satisfied
this element of the offense.
Trial Tr. at 1322 (emphasis added).
Felder argues that the district court erred in including the
italicized language despite his request that it be omitted. He
9
maintains that a defendant can only be guilty of violating § 2119(3) if,
at the time of the carjacking, he intended to harm or kill the driver for
the purpose of stealing the vehicle. Felder contends that the
challenged charge was prejudicial as it allowed the jury to convict him
on the § 2119(3) counts even if the charged killings were not
committed for the purpose of stealing Kane’s and Bah’s vehicles.
Felder’s arguments fail because he cannot show either error or
prejudice. While we would normally address these points in that
order, because lack of prejudice is quickly demonstrated, we discuss
that first. Felder cannot demonstrate prejudice because the case was,
in fact, submitted to the jury on the theory he urged. When the quoted
mens rea charge is considered as a whole, it is evident that, although
the jury was told that the murderous or injurious intent required by
§ 2119 could be conditional (“if necessary to steal the car”) or
unconditional (“or for any other reason”), the jury was also instructed
that, in Felder’s case, the prosecution was proceeding on a theory of
conditional intent: “A Defendant may intend to engage in certain
conduct only if a certain event occurs. In this case, the Government
contends that the Defendant intended to cause death or serious bodily
harm if the victim refused to turn over his car.” Id. (emphasis added).
Moreover, in the immediately following sentence, the district court
told the jury that the prosecution would satisfy the mens rea element
if the jury found “beyond a reasonable doubt that the Defendant had
such an intent,” i.e., an intent to kill or seriously injure “if the victim
refused to turn over his car.” Id. (emphasis added). In sum, Felder’s
case was submitted to the jury on the very conditional intent theory
that he urged, and the evidence presented at trial powerfully supports
10
his conviction on that theory. 3 In these circumstances, Felder can
hardly claim that he was prejudiced by the district court’s passing
reference to a theory of unconditional murderous or injurious intent
specifically not pursued in the case. See generally United States v.
Shamsideen, 511 F.3d 340, 347–48 (2d Cir. 2008) (“The law recognizes
that instructions correctly explaining [a legal standard], particularly
when given repeatedly, can render a charge adequate in its entirety,
despite the inclusion of some objectionable language.”); United States
v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993) (observing that instruction
on legal theory not pursued by government is “surplusage and thus
does not create the risk of prejudice” (internal quotation marks
omitted)); see also Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 154
(2d Cir. 2014) (declining to “comb[] through a trial court’s instructions
seeking language that, when isolated from its context, might be or
appear to be misleading”).
3Felder argues that Maodo Kane was not killed to achieve the August 5 carjacking
because the conspirators had gained control of the vehicle when they dragged
Kane out of it and into the street, i.e., before Felder killed him. But Kane’s forcible
removal from the vehicle was so closely followed by Felder shooting the livery cab
driver dead as to compel a finding that the events were inextricable.
Felder further argues that Aboubacar Bah was not killed to achieve the August 12
carjacking but, rather, because Felder unintentionally discharged his gun when
falling as a result of Bah unexpectedly accelerating the cab. Of course, the jury’s
guilty verdict signals rejection of any suggestion that Felder accidentally shot Bah.
Moreover, Felder was already holding his gun to Bah’s head when Bah accelerated
rather than accede to the demand that he surrender his vehicle. Such conduct is
sufficient to support a finding of conditional intent. See United States v. Lebron-
Cepeda, 324 F.3d 52, 57 (1st Cir. 2003) (holding evidence that defendant put loaded
gun to carjacking victim’s head and threatened him sufficed to demonstrate
conditional intent to kill or seriously injure).
11
Second, and more to the point of Felder’s claim, the district
court committed no error when it charged § 2119 mens rea as
conditional or unconditional. That conclusion is supported by the
statutory text, which makes it a crime for a person (1) “with the intent
to cause death or serious bodily harm” (2) to “take[] a motor vehicle
. . . by force and violence or by intimidation,” or attempt to do so.
18 U.S.C. § 2119. This statutory structure indicates that the necessary
link between the two elements is one of temporal proximity, i.e., a
defendant must possess the requisite intent “to cause death or serious
bodily harm” at the time he “takes,” or attempts forcibly to take, the
motor vehicle. Id.; see, e.g., United States v. Epskamp, 832 F.3d 154, 162
(2d Cir. 2016) (stating that “we begin with the text of the statute to
determine whether the language at issue has a plain and
unambiguous meaning,” which “can best be understood by looking
to the statutory scheme as a whole and placing the particular
provision within the context of that statute” (internal quotation marks
omitted)); United States v. Gayle, 342 F.3d 89, 92–93 (2d Cir. 2003)
(stating that “[s]tatutory construction begins with the plain text” and
that “[t]he text’s plain meaning can best be understood by looking to
the statutory scheme as a whole and placing the particular provision
within the context of that statute” (internal quotation marks
omitted)), as amended (Jan. 7, 2004). Nothing in the text establishes the
purpose requirement urged by Felder.
This conclusion is, moreover, compelled by the Supreme
Court’s decision in Holloway v. United States, 526 U.S. 1 (1999). At
issue in that case was not whether an “unconditional” intent to kill or
injure—even if unnecessary to effect the carjacking—could satisfy the
12
mens rea element of § 2119. That seems to have been taken as a given. 4
Rather, at issue was whether a “conditional” intent to kill or injure,
dependent on an event that the carjacker hoped would not occur—
specifically, driver resistance—could also satisfy that element. The
Supreme Court answered that question in the affirmative, explaining
that it “constru[ed] the statute to cover both the conditional and the
unconditional species of wrongful intent.” Id. at 9. In so ruling, the
Court identified temporality, not purpose, as the critical limiting
factor tying the mens rea and actus reus elements of § 2119. The Court
explained that “the factfinder’s attention” is properly drawn “to the
defendant’s state of mind at the precise moment he demanded or took
control over the car by force and violence or by intimidation.” Id. at 8
(emphasis added) (internal quotation marks omitted). “If the
defendant has the proscribed state of mind at that moment, the
statute’s scienter element is satisfied.” Id. In later reiterating this
point, the Court employed language that effectively defeats Felder’s
jury charge challenge here. The Court stated:
4Indeed, the Holloway dissenters maintained that the requisite intent for conviction
under § 2119 could only be unconditional, not conditional. See Holloway v. United
States, 526 U.S. at 12 (Scalia, J., dissenting); id. at 22 (Thomas, J., dissenting). Thus,
while Felder argues that the jury could not find him guilty if it was “senseless” for
him to kill his carjacking victims, i.e., if the killings, though intentional, were
unnecessary to, or for the purpose of, stealing the cars, see supra at 11 n.3, Justice
Scalia suggests that it was precisely such unconditional killings in the course of
carjackings that Congress sought to capture in § 2119, see id. at 18–19 (noting that
§ 2119 was enacted in wake of “well publicized instances . . . of carjackings in
which the perpetrators senselessly harmed the car owners when that was entirely
unnecessary to the crime,” and observing that “[i]t is not at all implausible that
Congress should direct its attention to this particularly savage sort of carjacking—
where killing the driver is part of the intended crime”).
13
The intent requirement of § 2119 is satisfied
when the Government proves that at the
moment the defendant demanded or took
control over the driver’s automobile the
defendant possessed the intent to seriously
harm or kill the driver if necessary to steal
the car (or, alternatively, if unnecessary to steal
the car).
Id. at 12 (emphasis added). That is effectively what the district court
charged here and, thus, we identify no error.
As the First Circuit has observed, the Holloway parenthetical
“implies that the Court saw a distinction between killing for its own
sake and willingness to kill to effect the theft, and that it deemed both
circumstances as meeting the intent standard of § 2119.” United States
v. Castro-Davis, 612 F.3d 53, 62 (1st Cir. 2010). We agree with this
reading of Holloway, as have at least two other courts of appeals. See
United States v. Washington, 702 F.3d 886, 892 (6th Cir. 2012) (stating
that mens rea element of carjacking statute is satisfied by
“unconditional intent to do harm” as well as “conditional intent”
before concluding that trial evidence satisfied even latter standard);
United States v. Perry, 381 F. App’x 252, 254 (4th Cir. 2010) (citing
Holloway in concluding that “a defendant who possesses the intent to
kill or seriously harm the driver of a vehicle may be convicted of
carjacking, even if his intent to harm is unrelated to the carjacking, so
14
long as his intent is formed when he takes control of the vehicle and
he satisfies § 2119’s other elements”). 5
Further, the cases cited by Felder do not support his argument
that only a conditional intent to kill or injure satisfies § 2119. At issue
in United States v. Applewhaite, 195 F.3d 679, 682–83 (3d Cir. 1999), was
the § 2119 conviction of a defendant who, in the course of a domestic
dispute between his paramour and her estranged husband, first beat
the husband senseless and then used the victim’s own vehicle to
transport the unconscious man from the scene. Subsequently, when
the victim awoke in the vehicle, the two men exchanged physical
blows, and the defendant shot the victim, who survived. See id. at 683.
The Third Circuit described these circumstances as “tragic,” but
insufficient to support a § 2119 conviction. Id. at 682.
The problem, however, was not with the conditionality of the
Applewhaite defendant’s intent but, rather, with the lack of a nexus
between the defendant’s violence and his taking of the victim’s van.
As the court observed, the defendant “clearly intended to seriously
harm or kill” his victim. Id. at 685. But no record evidence existed to
show that, at the moment he used force and violence against the
victim, the defendant had any intention of taking the victim’s car.
Instead, the defendant used force and violence “solely for the purpose
5 The authors of the model federal jury instructions most frequently used in this
circuit have also so construed Holloway. See 3 Leonard B. Sand et al., Modern
Federal Jury Instructions (Criminal) ¶ 53A.01, Instr. 53A-6 (2018) (stating with
respect to mens rea element of § 2119 that jury should be charged as follows: “To
establish this element, the government must prove that at the moment the
defendant demanded or took control of the vehicle, the defendant possessed the
intent to seriously harm or kill the driver if necessary to steal the car or for any other
reason.” (emphasis added)).
15
of bludgeoning” his victim; he took the vehicle “as an afterthought in
an attempt to get [the victim’s] limp body away from the crime
scene.” Id. at 685–86. In this factual context, the Third Circuit
observed that “under Holloway, unless the threatened or actual force
is employed in furtherance of the taking of the car, there is no
carjacking within the meaning of 18 U.S.C. § 2119.” Id. at 686. The
court nowhere held that when a defendant does take a vehicle by
force and violence, his murderous or injurious intent must be
necessary to achieve the taking.
Felder’s case is distinguishable from Applewhaite in that, here,
the two stolen cabs were plainly carjacked by means of force and
violence or intimidation. Specifically, Felder demanded each cab at
the point of his gun. Holloway makes plain that, where a vehicle is
thus demanded or taken, a defendant is guilty of carjacking under
§ 2119 if he simultaneously possessed the intent to seriously harm or
kill the driver. It matters not whether such killing or injury was
“necessary to steal the car” or “unnecessary to steal the car.” Holloway
v. United States, 526 U.S. at 12.
As for United States v. Harris, 420 F.3d 467 (5th Cir. 2005), the
Fifth Circuit there reversed a § 2119 conviction for insufficient
evidence that a defendant intended to kill or seriously injure his
victim “at the precise moment” he took control of his car, the temporal
nexus identified in Holloway. Id. at 471–72 (quoting Holloway v. United
States, 526 U.S. at 8). The Harris trial record indicated that the
defendant and his victim had ridden together in the victim’s car for
some time on the night of the crime before the defendant shot the
victim dead, with no evidence (apart from the defendant’s own
16
exculpatory testimony) of precisely when the defendant demanded
or took control of the car relative to when he killed the victim. See id.at 469–70. In these factual circumstances, the court ruled that “[t]he
jury had no evidence upon which to determine whether Harris
possessed intent to kill or harm at the moment of the taking.” Id.
at 474. Nowhere, however, did the court rule that the evidence had
to prove that the defendant’s intent to kill was not only
contemporaneous with the taking of the car but also conditional on
that action being necessary to, or for the purpose of, the taking.
Felder does not—and cannot—argue that the jury here was not
properly charged on the need for the government to prove that he
possessed the requisite murderous or injurious intent “at the
moment” he and his confederates demanded the carjacked vehicles.
Trial Tr. at 1322. Nor can he argue that the evidence was insufficient
to demonstrate such contemporaneous intent as he held a gun to the
head of each livery driver when he and his confederates demanded
their cabs. Like the First and Sixth Circuits, we recognize such
conduct supports an inference of contemporaneous intent to kill or at
least seriously injure the victim. See United States v. Lebron-Cepeda,
324 F.3d 52, 57 (1st Cir. 2003) (holding “evidence that [defendant]
placed a loaded and cocked revolver against [victim’s] head at the
inception of the carjacking and verbally threatened him” sufficient to
establish requisite intent); United States v. Adams, 265 F.3d 420, 424–25
(6th Cir. 2001) (stating “that physically touching a victim with a
weapon, standing alone, . . . indicates an intent on the part of the
defendant to act violently”). Indeed, the fact that Felder
unhesitatingly shot and killed Maodo Kane in the first carjacking only
17
strengthened the inference that he intended to kill or seriously injure
Aboubacar Bah in the second carjacking one week later.
In sum, the district court correctly instructed the jury that to
prove the mens rea element of carjacking in violation of § 2119, the
government was obliged to prove that “at the moment” the vehicles
in question were demanded or taken by force and violence or
intimidation, Felder “possessed the intent to seriously harm or kill the
driver if necessary to steal the car or for any other reason.” Trial Tr.
at 1322.
B. The “Death Results” Instruction
Section 2119 prescribes enhanced penalties for federal
carjacking of up to life imprisonment or death, “if death results.”
18 U.S.C. § 2119(3). On this point, the district court charged the jury
as follows:
Now, if, and only if, you find the Defendant
guilty of Counts One or Seven [the
carjacking counts] as I just explained to you,
then you must make a special finding on
each of those Counts, Counts One and
Seven, for which you found the Defendant
guilty. Specifically, you must determine
whether or not death resulted from the
actions of the Defendant, or the actions of
people the Defendant is alleged to have
aided and abetted. In order to establish that
the conduct of the Defendant, or those he is
alleged to have aided and abetted, resulted
in the death of the victim, the Government
18
must prove beyond a reasonable doubt that
but for the actions of the Defendant, or those
he is alleged to have aided and abetted, the
victim would not have died. The
Government is not required to prove that
the Defendant, or those he is alleged to have
aided and abetted, intended to cause the
death of the victim. Your finding that death
resulted must be beyond a reasonable
doubt. In addition, it must be unanimous,
in that all of you must agree that death
resulted.
Trial Tr. at 1323–24 (emphasis added). 6
Felder argues that the district court erred in charging but-for
causation without further charging proximate causation, which
would have required the jury to find that the carjacking victims’
deaths were reasonably foreseeable to Felder. This argument finds
some support in basic principles of criminal law, which have “long
6As with the challenged mens rea instruction, this causation charge comports with
the model instruction for § 2119(3) found in 3 Leonard B. Sand et al., Modern
Federal Jury Instructions (Criminal) ¶ 53A.01, Instr. 53A-8, which states in
pertinent part as follows:
The final element the government must prove beyond a reasonable
doubt is that death (or serious bodily injury) resulted from the
defendant’s actions. In order to establish that the defendant’s
conduct resulted in the death of (or serious bodily injury to) [the
victim], the government must prove beyond a reasonable doubt
that but for the defendant’s actions, [the victim] would not have
died (or suffered that injury). The government is not required to
prove that the defendant intended to cause the death of (or injure)
[the victim].
19
considered causation a hybrid concept, consisting of two constituent
parts: actual cause and legal cause.” Burrage v. United States, 571 U.S.
204, 210 (2014). Thus, “[w]hen a crime requires ‘not merely conduct
but also a specified result of conduct,’ a defendant generally may not
be convicted unless his conduct is ‘both (1) the actual cause, and
(2) the “legal” cause (often called the “proximate cause”) of the
result.’” Id. (quoting 1 Wayne R. LaFave, Substantive Criminal Law
§ 6.4(a) (2d ed. 2003)).
But Burrage offers no further guidance relevant here. In that
case—which concerned language in the Controlled Substances Act
prescribing an enhanced 20-year mandatory minimum sentence for
defendants who unlawfully distributed covered drugs when “death
or serious bodily injury results from the use of such substance,”
21 U.S.C. § 841(a)(1), (b)(1)(A)–(C)—the Supreme Court addressed
only the “actual cause” requirement. With respect to that
requirement, the Court ruled that the phrase “results from” had to be
construed to require “but-for causation” and not simply contributory
causation as urged by the government. Burrage v. United States,
571 U.S. at 214 (stating “it is one of the traditional background
principles against which Congress legislates that a phrase such as
‘results from’ imposes a requirement of but-for causation” (internal
alterations, citations, and quotation marks omitted)). Reversing on
that ground, the Court found it unnecessary to decide whether the
phrase “results from” further required a jury to be “separately
instruct[ed]” to decide whether the victim’s death “was a foreseeable
result of the defendant’s drug-trafficking offense.” Id. at 208 (quoting
second question on which certiorari review was granted).
20
Both before and after Burrage, however, every court of appeals
to address the question has concluded that § 841(b) does not require
proof that the resulting death was reasonably foreseeable. See United
States v. Harden, 893 F.3d 434, 447–49 (7th Cir. 2018); United States v.
Burkholder, 816 F.3d 607, 618 (10th Cir. 2016); United States v. Webb,
655 F.3d 1238, 1250 (11th Cir. 2011); United States v. De La Cruz,
514 F.3d 121, 137 (1st Cir. 2008); United States v. Houston, 406 F.3d 1121,
1124–25 (9th Cir. 2005); United States v. Carbajal, 290 F.3d 277, 284
(5th Cir. 2002); United States v. McIntosh, 236 F.3d 968, 972–73 (8th Cir.
2001), abrogated on other grounds by Burrage v. United States, 571 U.S.
204; United States v. Robinson, 167 F.3d 824, 830–32 (3d Cir. 1999);
United States v. Patterson, 38 F.3d 139, 145 (4th Cir. 1994).
The Tenth Circuit decision in Burkholder detailed the reasoning
informing these decisions. Starting with the statutory text, Burkholder
highlighted Congress’ use of the phrase “results from” rather than
“causes,” observing that “resulting in death and causing death are not
equivalents.” United States v. Burkholder, 816 F.3d at 614 (internal
alterations and quotation marks omitted). The court explained that
“[g]enerally, . . . the ordinary meaning of ‘results from’ imposes a
requirement of actual or but-for causation”—the Burrage
conclusion—“and not proximate causation.” Id. (internal alterations
and quotation marks omitted). Next, the Tenth Circuit noted
Congress’ use of the passive voice in the phrase “results from,” a
choice that generally “evinces a concern with ‘whether something
happened—not how or why it happened.’” Id. (quoting Dean v.
21
United States, 556 U.S. 568, 572 (2003) 7). The court then cited to
Congress’ explicit inclusion of proximate-cause language in various
other statutory penalty enhancements and concluded therefrom that
the omission of such language from § 841(b) (the statute at issue) was
intentional. See id. at 615–16. Finally, the court noted that Congress
added the death-results-from provision in § 841(b)(1)(E)(i) after
courts of appeals had uniformly held identical language in
§ 841(b)(1)(C) not to require a finding of foreseeability or proximate
cause. See id. at 616 (collecting cases from six other circuits). Mindful
that Congress is presumed to be aware of a statute’s interpretation
when it amends the statute, the Tenth Circuit concluded in Burkholder
that Congress’ enactment of § 841(b)(1)(E)(i) “without codifying
therein a proximate-cause requirement strongly suggests that
Congress intentionally eschewed such a requirement.” Id. at 617.
This conclusion was reinforced by Congress’ subsequent
amendments to § 841(b), which left the language of § 841(b)(1)(E)
untouched. See id. at 617–18.8
To be sure, Burkholder, Harden, and the other cases just cited
were discussing a death-results-from enhancement in the Controlled
Substances Act, not the death-results-from enhancement in the
7 In Dean, the Supreme Court construed the statutory phrase “if the firearm is
discharged” not to require proof that the discharge be knowing or intentional.
Dean v. United States, 556 U.S. at 572 (quoting 18 U.S.C. § 924(c)(1)(A)(iii), which
prescribes 10-year mandatory minimum if firearm discharged by person who used
or carried firearm during or in relation to any crime of violence or drug
trafficking).
8 More recently, the Seventh Circuit cited approvingly to much of Burkholder’s
reasoning in reaching the same conclusion in United States v. Harden, 893 F.3d
at 447–49.
22
federal carjacking statute. But Burkholder’s reasoning applies as much
in the latter context as in the former and we therefore adopt it as our
own in concluding that the district court did not err in charging the
jury of the need to find but-for causation as to the carjacking victims’
deaths, without further charging that the deaths must have been
reasonably foreseeable to the defendant. That conclusion is only
reinforced with respect to § 2119(3) by the law’s temporality
requirement: a defendant can only be guilty of carjacking resulting in
death if, at the moment he forcibly takes or attempts forcibly to take
a vehicle, he possesses a specific intent “to cause death or serious
bodily harm.” 18 U.S.C. § 2119. Where a defendant is proved to have
acted with such murderous or injurious intent at the moment of the
carjacking, requiring a resulting death to be “foreseeable” appears
redundant and even confusing.
In urging otherwise, Felder emphasizes that federal carjacking
resulting in death exposes a defendant to capital punishment, and the
Supreme Court has held that the death penalty cannot be imposed on
a defendant for “killings that he did not commit and had no intention
of committing or causing.” Appellant Br. at 32 (quoting Enmund v.
Florida, 458 U.S. 782, 801 (1982)). Whatever the merits of this
argument, any heightened mens rea or causation requirement for the
death penalty can be submitted to the jury at the capital sentencing
phase. Additionally, no Enmund concern arises here because the
government did not seek the death penalty against Felder.
Finally, even if a foreseeability instruction had been warranted
in Felder’s case, he would not be entitled to relief from his § 2119(3)
conviction because he cannot show that he was prejudiced by the
23
omission. As just noted, the foreseeability of death was implicit in the
district court’s instruction to the jury that it could find Felder guilty
of the charged carjackings only if he acted “with the intent to cause
death or serious bodily harm” at the moment the cars were stolen.
Trial Tr. at 1322. 9 In this case, that intent was overwhelmingly proved
by evidence that Felder pointed and fired loaded guns at his
carjacking victims when they resisted demands to surrender their
vehicles. While Felder continues to dispute this evidence, we must
assume that the jury credited it in finding the intent element proved.
And because Felder thus acted with such injurious intent, he must
have reasonably foreseen that deaths would result. Indeed, in
explaining its decision not to charge foreseeability, the district court
observed that both carjacking victims “were killed with a gunshot
wound to the back of the head. That normally results in death. I
mean, how could there—how could it not be the natural and
foreseeable . . . consequence of the acts committed by the
defendant[?]” Trial Tr. at 1192. Just so. On this record, we can thus
conclude beyond a reasonable doubt that, had foreseeability been
charged, the jury would have found it proved. See Neder v. United
States, 527 U.S. 1, 15 (1999) (ruling that omission of element is subject
to harmless error review).
In sum, Felder’s jury-charge challenges, both as to mens rea and
causation, fail for lack of both merit and prejudice.
9 Section 2119(2) cross references 18 U.S.C. § 1365 for the definition of “serious
bodily injury.” That statute states: “the term ‘serious bodily injury’ means bodily
injury which involves—(A) a substantial risk of death; (B) extreme physical pain;
(C) protracted and obvious disfigurement; or (D) protracted loss or impairment of
the function of a bodily member, organ, or mental faculty.” 18 U.S.C. § 1365(h)(3).
24
II. Expert Opinion Testimony
Among the many surveillance videos introduced into evidence
by the government at trial was one recorded on August 12, 2014—the
date of the second carjacking—which showed Felder and his co-
conspirators fleeing down an alley after abandoning Aboubacar Bah’s
livery cab on a Bronx street. Felder argues that the district court erred
in allowing a prosecution firearms expert, New York City Police
Detective Jonathan Fox, to testify that, in his opinion, a dark object
visible in Felder’s hand on this video was a firearm.
“We review a district court’s evidentiary rulings under a
deferential abuse of discretion standard,” United States v. Litvak,
889 F.3d 56, 67 (2d Cir. 2018) (internal quotation marks omitted), “and
such rulings will only be overturned if they are ‘arbitrary and
irrational,’” United States v. Gatto, 986 F.3d 104, 117 (2d Cir. 2021).
Even where we identify evidentiary error, however, we will not
reverse a conviction if the error was harmless. See United States v.
Siddiqui, 699 F.3d 690, 703 (2d Cir. 2012). These principles apply
equally whether a witness is testifying based on personal knowledge
or special expertise. See, e.g., United States v. Romano, 794 F.3d 317, 330
(2d Cir. 2015) (reviewing decision to admit or exclude expert
testimony for abuse of discretion). Before admitting expert opinion
testimony, however, the trial judge must determine that the expert
possesses “specialized knowledge [that] will assist the trier of fact, i.e.,
will be not only relevant, but reliable.” Id. Such specialized
knowledge can be grounded in scientific or other particularized
training, but it can also derive from personal observations or
experience, see id., so long as those observations or experience are
“outside the ken of the average person,” United States v. Garcia,
25
413 F.3d 201, 216 (2d Cir. 2005). Applying these principles here, we
identify no error or prejudice in the admission of Fox’s opinion
testimony regarding Felder’s August 12 possession of a firearm.
Some background is helpful to explain our conclusion.
The government first attempted—unsuccessfully—to have an
FBI agent identify the object shown in Felder’s hand in the August 12
surveillance footage as a firearm. That agent had viewed the video
numerous times before trial but, apparently, only realized that the
object in Felder’s hand was a gun during a break in his direct
examination. When the district court expressed doubt about such a
belated identification being admitted as expert opinion, the
government maintained that it could be received as lay opinion.
Compare Fed. R. Evid. 701, with Fed. R. Evid. 702 10; see Trial Tr. at 270
10 Rule 701, which governs lay opinion testimony, states as follows:
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Fed. R. Evid. 701.
Rule 702, which governs expert opinion testimony, states as follows:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue;
(b) the testimony is based on sufficient facts or data;
26
(“Your Honor, the government agrees with your point that it’s clearly
not expert testimony. Special Agent Kenney will be testifying on the
basis of his personal experience, both observing individuals carrying
firearms and personally carrying a firearm.”). The district court
precluded the agent’s opinion testimony finding its probative value
weak in light of its recent provenance and outweighed by potential
prejudice. See Fed. R. Evid. 403. The district court, however, did
admit into evidence for the jury’s review two still images extracted
from the August 12 surveillance video—one of which was an
enlarged depiction of Felder with the relevant object in his hand.
Subsequently, the government called Fox who, after being
recognized by the court—without objection—as a firearms expert,
testified to differences between certain firearms and to the types of
ammunition used in each. Shown surveillance footage from the
August 5 convenience store robbery, Fox testified that, in his opinion,
all three robbers captured on the video (i.e., Smalls, Martin, and
Ewing) were holding semiautomatic handguns. Explaining his
conclusion, Fox pointed out for the jury the firearms’ components that
he perceived in the video, specifically, slides, sights, and ejection
ports.
The government then advised the district court that it wished
also to ask Fox about the August 12 alley surveillance video. The
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.
27
government reported that Fox first saw this video earlier that
morning and identified the dark object in Felder’s hand as a firearm.
Felder objected, noting, among other things, that he had not received
notice of this expert testimony as required by Fed. R. Crim.
P. 16(a)(1)(G). 11 The government maintained that no notice was
required because Fox’s opinion was lay, “not expert[,] testimony.”
Trial Tr. at 692. The district court concluded otherwise, see id. at 694
(observing “Detective Fox is certainly an expert”), and adjourned
Fox’s examination for six days to afford Felder time to prepare for
Fox’s anticipated testimony.
When Fox’s examination resumed, the detective testified
without further objection that, in his opinion, one person seen
running down an alley on the August 12 video—earlier identified by
other witnesses as Felder—was carrying a semiautomatic handgun in
his left hand. The detective indicated that the video (and the still
images captured from it) showed that “the front of the firearm,” i.e.,
“the muzzle,” was “pointed in a downward direction.” Id. at 1076–
77. Fox further identified for the jury a perceived “slide” at the top of
the firearm and, in “the middle,” what “appear[ed] to be possibly an
ejection port.” Id. at 1077. Shown a different angle of these moments
in the alley taken by another surveillance camera, Fox again identified
11 That rule states in pertinent part as follows:
At the defendant’s request, the government must give to the defendant a
written summary of any testimony that the government intends to use
under Rule[] 702 . . . . The summary provided under this subparagraph
must describe the witness’s opinions, the bases and reasons for those
opinions, and the witness’s qualifications.
Fed. R. Crim. P. 16(a)(1)(G).
28
the object in Felder’s left hand as a firearm, which was “pointing
towards the ground” and “mov[ing] up and down” as Felder ran. Id.
at 1077–78.
On appeal, Felder maintains that Fox should not have been
allowed to testify to this opinion because (1) the government failed to
provide adequate notice and (2) the testimony was argument, not
expert opinion, which (3) usurped the fact finding role of the jury.
The government counters that Fox’s testimony was properly
admitted expert opinion, or alternatively, lay opinion, and that Felder
waived any objection to admission.
As an initial matter, we note that the government mistakenly
characterizes the testimony it sought to elicit—first, unsuccessfully
from an FBI agent, and then, successfully from Fox—as lay opinion
evidence. In doing so, it repeats an error previously identified by this
court in United States v. Garcia, 413 F.3d at 215 (explaining that “lay
opinion must be the product of reasoning processes familiar to the
average person in everyday life,” and that an opinion “rest[ing] in any
way upon scientific, technical, or other specialized knowledge” can
only be admitted as expert testimony (internal quotation marks
omitted)). Fox’s opinion that Felder held a gun in his hand was not
based on any personal knowledge of the events at issue, i.e., Fox had
not been on the scene when Felder ran down the alley on August 12.
See id. at 212 (observing that lay opinions about events directly
experienced can reflect insights that “you had to be there” to
appreciate). Nor was his opinion the product of reasoning or
experiences familiar to the average person. See id. at 215. To the
contrary, the government offered the detective’s opinion precisely
29
because he had specialized knowledge of, and long experience with,
firearms and their component parts, which went well beyond that of
an average person and which afforded him expert insights helpful to
a jury in identifying objects in grainy surveillance images. Thus, in
considering Felder’s evidentiary challenge to Fox’s testimony, we
examine it as expert, not lay, opinion testimony.
Nevertheless, we conclude that the district court acted well
within its discretion in allowing Fox to offer expert testimony about
what he saw in Felder’s hand on the August 12 surveillance video and
related still images. Felder does not dispute Fox’s qualification as a
firearms expert, nor does he argue that his expertise was insufficient,
as a matter of law, to allow the detective to recognize and identify
photographic depictions of firearms. Indeed, Felder raised no
objection to Fox’s expertise or identification of firearms in co-
conspirators’ hands as captured in the surveillance video of the
August 5 convenience store robbery.
Nor can Felder demonstrate that Fox’s challenged testimony
usurped the role of the jury. See United States v. Duncan, 42 F.3d
97, 101 (2d Cir. 1994) (“[T]he use of expert testimony is not permitted
if it will usurp . . . the role of the jury in applying th[e] law to the facts
before it. When an expert undertakes to tell the jury what result to
reach, this does not aid the jury in making a decision, but rather
attempts to substitute the expert’s judgment for the jury’s.” (emphasis
in original) (internal citations and quotation marks omitted)). Fox
testified to his opinion about what was shown in Felder’s hand on the
grainy August 12 video and, in particular, to what he saw in the video
that informed that opinion. He did not “tell the jury what result to
30
reach” with respect to any of the charges at issue in the case.
Moreover, the jury remained free to accept or reject Fox’s opinion
based on its assessment of the sufficiency of the data and experience
informing the proffered opinion, Fox’s credibility generally, and the
jury’s own evaluation of the video. See In re Methyl Tertiary Butyl Ether
(MTBE) Prod. Liab. Litig., 725 F.3d 65, 114 (2d Cir. 2013) (identifying
no error where “jury is free to accept or reject expert testimony, and
is free to draw its own conclusion” (internal alterations and quotation
marks omitted)). Indeed, the district court specifically instructed the
jury of its right to “disregard” expert opinion “entirely or in part.”
Trial Tr. at 1348.
The government’s failure to give Felder timely notice of its
intent to elicit expert opinion testimony from Fox with respect to the
August 12 video also warrants no relief on appeal because the district
court fashioned a satisfactory remedy by granting Felder a six-day
continuance. See United States v. Ulbricht, 858 F.3d 71, 115 (2d Cir.
2017) (recognizing district court’s “broad discretion in fashioning a
remedy” for Rule 16 failures, “which may include granting a
continuance or ordering the exclusion of evidence” (internal
quotation marks omitted)). When Fox’s testimony resumed, Felder
neither renewed his notice objection nor requested a further extension
(despite a specific inquiry from the district court). Rather, the defense
proceeded to conduct a vigorous cross-examination, highlighting
facts suggesting that the detective’s opinion about the August 12
firearm possession was not unreserved.
In sum, the challenge to Fox’s testimony fails because Felder
cannot show that (1) the district court abused its discretion in
31
admitting this expert testimony, (2) the testimony usurped the role of
the jury, or (3) he was prejudiced by delayed notice of the testimony.
III. Historical Cell-Site Location Information
Among the evidence offered against Felder at trial were records
maintained by telecommunication providers showing historical
location and usage data for certain cell phones subscribed to by Felder
and other conspirators on the dates of the charged carjackings. The
government procured these records pursuant to a court order issued
on October 20, 2014, as then authorized by the Stored
Communications Act upon a government showing of “reasonable
grounds” to believe that the records sought were “relevant and
material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
Four years later, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the
Supreme Court ruled that such a reasonable-grounds showing was
insufficient to satisfy the Fourth Amendment. The Court explained
that the acquisition of historical cell-site location data from wireless
carriers constitutes a “search,” which under the Fourth Amendment
requires “a warrant supported by probable cause.” Id. at 2220–21.
Citing Carpenter, Felder moved in the district court to suppress
historical cell-site location information obtained pursuant to a court
order supported by less than probable cause. He now argues that the
district court erred in denying suppression based on the good faith
exception to the exclusionary rule. Reviewing Felder’s legal
argument de novo, we identify no error in the district court’s denial of
suppression based on good faith, largely for the reasons already
stated by this court in United States v. Zodhiates, 901 F.3d 137, 143–44
(2d Cir. 2018), and reiterated in subsequent unpublished orders, see,
e.g., United States v. Miller, 807 F. App’x 90, 96 (2d Cir. 2020); United
32
States v. Herron, 762 F. App’x 25, 31 (2d Cir. 2019); United States v.
Chambers, 751 F. App’x 44, 46–48 (2d Cir. 2018).
The identification of Fourth Amendment error does not
automatically entitle a defendant to the suppression of evidence. As
the Supreme Court has instructed, the exclusionary rule must be the
judiciary’s “last resort, not [its] first impulse” when evidence has been
procured in violation of the Fourth Amendment. Hudson v. Michigan,
547 U.S. 586, 591 (2006). The exclusionary rule serves “to deter future
Fourth Amendment violations,” Davis v. United States, 564 U.S. 229,
236–37 (2011), and thus, the harsh remedy of suppression is
warranted “only where it results in appreciable deterrence,” Herring
v. United States, 555 U.S. 135, 141 (2009) (internal alterations and
quotation marks omitted).
That is not the case where, as here, evidence was procured by
complying with existing federal law, specifically by obtaining a
judicial order according to terms then specified in the Stored
Communications Act. Reliance on a federal statute gives rise to a
presumption of good faith unless the statute is “clearly
unconstitutional.” Illinois v. Krull, 480 U.S. 340, 349–50 (1987). The
Supreme Court has stated that this presumption applies even if “the
statute is subsequently declared unconstitutional, [because]
excluding evidence obtained pursuant to [the statutory scheme] prior
to such a judicial declaration will not deter future Fourth Amendment
violations by an officer who has simply fulfilled his responsibility to
enforce the statute as written.” Id. at 350.
When the government obtained the judicial order here at issue,
the Stored Communications Act was not “clearly unconstitutional,”
33
id. at 349, and was, in fact, wholly consistent with the third-party
doctrine, which deems a person to have “no legitimate expectation of
privacy in information he voluntarily turns over to third parties,”
Smith v. Maryland, 442 U.S. 735, 743–44 (1979); see United States v.
Miller, 425 U.S. 435, 443 (1976). Prior to Carpenter, all five courts of
appeals to have considered the question relied on this doctrine in
holding that government acquisition of historical cell-site location
information from third parties was not subject to the Fourth
Amendment’s warrant requirement. See United States v. Thompson,
866 F.3d 1149, 1156–60 (10th Cir. 2017); United States v. Graham,
824 F.3d 421, 424–25 (4th Cir. 2016) (en banc); United States v. Carpenter,
819 F.3d 880, 887–88 (6th Cir. 2016), rev’d, 138 S. Ct. 2206 (2018); United
States v. Davis, 785 F.3d 498, 511–13 (11th Cir. 2015) (en banc); In re
Application of the United States for Historical Cell Site Data, 724 F.3d 600,
610–15 (5th Cir. 2013). Deterrence is not served by suppressing
evidence obtained “in reasonable reliance on binding precedent.”
Davis v. United States, 564 U.S. at 241.
It was on that very basis that this court, in United States v.
Zodhiates, 901 F.3d at 144, recognized a good-faith exception to
suppression of cell phone records obtained without a warrant pre-
Carpenter but pursuant to a subpoena then authorized by the Stored
Communications Act, see 18 U.S.C. § 2703(c)(2). Zodhiates’ reasoning
applies equally here, where records were obtained under the statute’s
order requirement rather than its lesser subpoena requirement. This
court reached that conclusion summarily in United States v. Miller, 807
F. App’x at 96, and United States v. Chambers, 751 F. App’x at 46–48.
We do so again today in this precedential opinion.
34
In urging otherwise, Felder argues that the government could
not, in good faith, have thought it constitutionally permissible to
obtain historical cell-site location information without a warrant after
United States v. Jones, 565 U.S. 400, 404 (2012) (holding warrantless
placement of GPS tracker on defendant’s vehicle unconstitutional),
and Riley v. California, 573 U.S. 373, 386 (2014) (holding warrant
required to search cellphone seized during lawful arrest). He is
wrong. In neither Jones nor Riley was the challenged evidence
procured under the Stored Communications Act or the third-party
doctrine. In Jones, the Supreme Court explained that warrantless GPS
tracking was unconstitutional because the placement of a tracker on a
defendant’s vehicle constituted a physical trespass. See 565 U.S. at 404(stating that “[g]overnment physically occupied private property for
the purpose of obtaining information”). Here, the government did
not trespass onto any property, and certainly not onto Felder’s
property. Nor did it search any property seized from his person as in
Riley. See 573 U.S. at 386–87. Rather, the government obtained the
data at issue by obtaining a court order as then authorized by the
Stored Communications Act, which it served on the third party in
possession of the data. These crucial differences prompt us to
conclude that, even after Jones and Riley, federal officials could have
reasonably relied on this statute and the third-party doctrine to
conclude that the requested historical cell-site information could be
obtained without a warrant supported by probable cause. 12 See United
12This conclusion finds support in Justice Sotomayor’s concurring opinion in Jones.
See United States v. Jones, 565 U.S. at 413 (Sotomayor, J., concurring). Though she
questioned the continued viability of the third-party doctrine in a digital age,
35
States v. Goldstein, 914 F.3d 200, 205 (3d Cir. 2019) (holding neither
Jones nor Riley precluded good faith reliance on Stored
Communications Act).
Indeed, in Carpenter, when the Supreme Court identified
historical cell-site data as “qualitatively different” from the
“telephone numbers and bank records” to which the third-party
doctrine had long applied, it acknowledged that historical cell-site
location information “does not fit neatly under existing precedents.”
Carpenter v. United States, 138 S. Ct. at 2214–17. This too, then,
supports our conclusion that even after Jones and Riley, but before
Carpenter, it was objectively reasonable for authorities to think that, if
they complied with the requirements of the Stored Communications
Act, no warrant based on probable cause was constitutionally
required to obtain historical cell-site location information from a third
party.
In sum, on the facts of this case, the district court did not err in
relying on the good-faith exception to the exclusionary rule in
admitting historical cell-site location information obtained through a
judicial order issued under the Stored Communications Act rather
than a warrant supported by probable cause.
Justice Sotomayor conceded that “[r]esolution of these difficult questions in this
case is unnecessary” precisely because “the [g]overnment’s physical intrusion”
onto defendant’s vehicle—the majority’s trespass theory—“supplies a narrower
basis for decision.” Id. at 417–18. In short, nothing in Jones clearly alerted
reasonable officers that where, as here, they sought historical cell-site location
information from a third party, compliance with the Stored Communications Act’s
requirements was no longer constitutionally sufficient and that a warrant
supported by probable cause was required.
36
IV. Testimony and Photographs of Felder’s Relationship with
Co-Conspirators
Felder argues that the district court abused its discretion in
admitting irrelevant and prejudicial character and propensity
evidence in violation of Fed. R. Evid. 402, 403, and 404.
Some of the challenged evidence was photographic, depicting
Felder and other persons making gestures and wearing baseball caps,
hooded sweatshirts, and t-shirts of different colors. Five of these
photographs are at issue on appeal: GX 1100-A (page five);
GX 1101-A (page one); GX 1101-A (page two); GX 800-A2; and
GX 800-A3. 13 At trial, Felder objected only to GX 800-A2.
Some of the challenged evidence was testimonial. Over defense
objection, Nenobia Washington, a resident of the Bronx apartment
complex where Felder, Smalls, Martin, and Ewing grew up, testified
to frequently seeing the four men together at that location and that, it
appeared to her, Felder commanded a certain level of respect from his
co-conspirators (and others). Also over defense objection, Jorge
Figueroa, a security guard at the same apartment complex, testified
that, based on his frequent observations of the four conspirators
together, Felder appeared to be in charge.
To the extent Felder objected to this photographic and
testimonial evidence, we review the district court’s “evidentiary
rulings under a deferential abuse of discretion standard.” United
States v. Litvak, 889 F.3d at 67 (internal quotation marks omitted). To
13We do not address other photographs referenced by Felder in his brief, but not
offered into evidence at trial.
37
the extent he failed to object, our review is limited to plain error. See
United States v. Simels, 654 F.3d 161, 168 (2d Cir. 2011); Fed. R. Crim.
P. 52(b). As a practical matter, the higher standard makes no
difference here. Felder cannot show any abuse of discretion and, thus,
he cannot satisfy the first requirement for plain error. See United States
v. Moore, 975 F.3d 84, 90 (2d Cir. 2020) (identifying error as first
element of plain error).
Photographs and testimony linking Felder to co-defendants in
the charged case were properly admitted as direct evidence of the
men’s relationship and, therefore, probative of the charged
conspiracy. See United States v. Salameh, 152 F.3d 88, 123 (2d Cir. 1998)
(holding that photographs were properly admitted to establish
relationship among conspirators). In urging otherwise, Felder
complains that the photographs, by depicting the men in gang colors
and making gang signs, invited a prejudicial inference of propensity
to engage in criminal conduct. See Fed. R. Evid. 404(b)(1). We are not
persuaded.
First, the district court was careful to exclude from trial any
evidence of Felder’s criminal participation with his co-conspirators in
the “YGz” street gang. Second, the challenged photographs depict no
weapons, narcotics, or other contraband. Third, the photographs do
not depict any obvious indications of gang affiliations. The clothing
worn shows no consistent color scheme that might suggest gang
membership, and the hand gestures—such as Felder using his thumb
and forefinger to form an “L”—would not readily be understood as
gang signs by the average person. Indeed, the gesture most
frequently depicted—and likely to be recognized—is the offensive
38
one of extending a middle finger, employed by many people with no
gang affiliation. Finally, assuming any of the challenged photographs
qualify as bad acts evidence, such evidence may be admitted under
this court’s inclusionary approach to explain or demonstrate a
criminal relationship and to help the jury understand the basis for
conspirators’ mutual trust. See United States v. Mercado, 573 F.3d
138, 141 (2d Cir. 2009); United States v. Pipola, 83 F.3d 556, 566 (2d Cir.
1996). On this record, we conclude that the district court did not
abuse its discretion in admitting the challenged photographs.
As for the testimony from Washington and Figueroa, Felder
does not—and cannot—suggest that these witnesses, based on
repeated personal observation of all four conspirators, were not
competent to offer lay opinions as to the men’s relationships with
each other. See United States v. Garcia, 413 F.3d at 211 (stating that
witness may offer lay opinion that “particular participant, ‘X,’ was the
person directing the transaction” based on, among other things,
witness’s “personal perception of such subjective factors as the
respect various participants showed ‘X,’ [and] their deference to ‘X’
when he spoke”). Felder argues that this testimony was
impermissible evidence of a character trait implying criminal
leadership. We conclude, however, that the district court acted well
within its discretion in ruling that the witnesses’ perception that co-
conspirators accorded Felder respect and deference was more
probative than prejudicial on the issue of knowledge, see Fed. R.
Evid. 404(b)(2), rebutting Felder’s suggestion that he was merely
present during the August 12 carjacking, “and didn’t know what the
three other people did,” Trial Tr. at 254–55. Indeed, this court has
upheld the admission of even prior-crime evidence that rendered
39
more plausible conspirators’ intentional participation in the charged
crime. See United States v. Dupree, 870 F.3d 62, 76 (2d Cir. 2017)
(admitting evidence of defendants’ participation in drug trafficking
operation “as probative evidence of defendants’ knowledge of the
charged drug- and murder-related acts, their intent to engage in these
acts, and the development of their relationships with each other”).
Where, as here, the challenged testimonial evidence established the
nature of a relationship among conspirators without even referencing
any prior crimes, the district court did not abuse its discretion by
allowing the jury to hear it.
V. Crimes of Violence
Felder challenges his § 924(c)(1)(A) convictions for brandishing
and discharging a firearm in relation to crimes of violence, arguing
that neither Hobbs Act robbery nor carjacking resulting in death
qualify as crimes of violence under § 924(c)(3)(A). As Felder himself
acknowledges, his argument is foreclosed by precedent. 14
Felder’s Hobbs Act robbery challenge is defeated by United
States v. Hill, 890 F.3d 51 (2d Cir. 2018), which expressly held “that
Hobbs Act robbery is a crime of violence under 18 U.S.C.
§ 924(c)(3)(A).” Id. at 53. This court recently reiterated that
conclusion in United States v. Walker, 974 F.3d 193 (2d Cir. 2020),
observing that “[b]ecause prior opinions of a panel of this court are
binding upon us in the absence of a change in the law by higher
authority or our own in banc proceeding (or its equivalent), Hill
14Felder explains that he raises these arguments to preserve them for further
review either by this court en banc or by the Supreme Court.
40
controls this case.” Id. at 201 (internal citations and quotation marks
omitted). This same conclusion applies here.
As for federal carjacking, we note at the outset that this court
identified an earlier version of 18 U.S.C. § 2119 as a § 924(c)(3) crime
of violence, albeit without the benefit of subsequent Supreme Court
instructions on the categorical approach. See United States v.
Mohammed, 27 F.3d 815, 819 (2d Cir. 1994) (stating that “[i]t is clear
that a violation of section 2119, the carjacking statute, is a crime of
violence within the meaning of section 924(c)”). 15 In now arguing that
the current version of § 2119 is not a categorical crime of violence,
Felder focuses on the possibility of the crime being committed by
“intimidation,” 18 U.S.C. § 2119, which, he maintains, means that it
lacks “as an element, the actual, attempted, or threatened use of
physical force” as required by § 924(c)(3)(A). Appellant Br. at 56. He
is wrong.
In United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019), this
court rejected a similar challenge to federal bank robbery, a crime that,
like federal carjacking, proscribes a taking “by force and violence, or
by intimidation.” 18 U.S.C. § 2113(a). The Hendricks defendant
argued that the crime was not categorically violent because a
defendant might stand convicted for “negligently intimidating a
15When United States v. Mohammad was decided, § 2119 made it a crime for a
person “possessing a firearm” to “take[] a motor vehicle . . . from the person or
presence of another by force and violence or by intimidation, or attempt[] to do
so.” 27 F.3d at 819 (second alteration in original) (quoting 18 U.S.C. § 2119 (1994)).
At issue in the case was whether double jeopardy precluded a defendant convicted
under § 2119 from receiving a consecutive sentence under § 924(c) for using or
carrying a firearm in relation to a crime of violence. See id. at 818–19 (rejecting
double jeopardy challenge).
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victim.” United States v. Hendricks, 921 F.3d at 328 (emphasis in
original). This court held that, in fact, to commit the crime by
“intimidation,” a defendant “must at least know that his actions would
create the impression in an ordinary person that resistance would be
met by force.” Id. (emphasis in original) (internal quotation marks
omitted). Thus, we joined “every circuit to have addressed the issue”
in holding “that bank robbery ‘by intimidation’ under § 2113(a)
involves the threatened use of physical force and thus constitutes a
crime of violence within the meaning of § 924(c)(3)(A).” Id. at 328
& n.35 (collecting cases).
Hendricks’ reasoning is equally applicable to the federal
carjacking statute. Even when committed by intimidation, federal
carjacking requires a defendant to act in a way that he knows will
create the impression in an ordinary person that resistance to
defendant’s demands will be met by force. Indeed, that conclusion is
only reinforced by the fact that, when a defendant commits carjacking
by intimidation, he must act not only with the knowledge that his
actions will create the impression that resistance will be met by force,
but also “with the intent to cause death or serious bodily harm,”
18 U.S.C. § 2119, something he can achieve only through the use of
physical force, see United States v. Castleman, 572 U.S. 157, 169 (2014)
(stating that “knowing or intentional causation of bodily injury
necessarily involves the use of physical force”); United States v. Scott,
No. 18-163, 2021 WL 786632, at *11 (2d Cir. Mar. 2, 2021) (en banc)
(stating that “defendant’s ‘use’ of violent force depends on his
knowing or intentional causation of bodily injury”). Thus, we
identify federal carjacking as a categorical crime of violence.
42
Here too, in so ruling, we join every other court of appeals to
have considered the matter. See Estell v. United States, 924 F.3d
1291, 1293 (8th Cir. 2019) (recognizing federal carjacking as a
§ 924(c)(3)(A) crime of violence); United States v. Jackson, 918 F.3d
467, 485–86 (6th Cir. 2019) (same); United States v. Cruz-Rivera, 904
F.3d 63, 66 (1st Cir. 2018) (same); United States v. Evans, 848 F.3d 242,
246–48 (4th Cir.) (same), cert. denied, 137 S. Ct. 2253 (2017); United
States v. Jones, 854 F.3d 737, 740–41 (5th Cir.) (same), cert. denied, 138 S.
Ct. 242 (2017); In re Smith, 829 F.3d 1276, 1280–81 (11th Cir. 2016)
(same).
In sum, because both Hobbs Act robbery and federal carjacking
are categorical crimes of violence, Felder’s challenges to his § 924
convictions fail on the merits.
CONCLUSION
To summarize,
(1) Defendant’s challenges to the district court’s instructions
on the mens rea and causation elements of carjacking
resulting in death, see 18 U.S.C. § 2119(3), both fail
because these claims lack merit and the purported errors
were in any event harmless.
(a) As to mens rea, the district court correctly charged
that, at the moment defendant demanded or took
control of the subject vehicles, defendant had to
possess “the intent to seriously harm or kill the
driver if necessary to steal the car or for any other
reason.” Trial Tr. at 1322 (emphasis added).
43
(b) As to causation, the district court correctly charged
that the government had to prove beyond a
reasonable doubt that “but for” defendant’s
actions, “the victim would not have died.” Id.at 1323–24.
(c) Even if the district court should have deleted the
challenged language from its mens rea charge or
required the jury to find proximate causation, the
record here permits us confidently to conclude
that the jury would have made such findings in
any event.
(2) Defendant’s evidentiary challenges fail because the
district court acted within its discretion in making each
of the rulings at issue.
(a) In allowing a firearms expert to testify that, in his
opinion, a dark object in defendant’s hand on a
surveillance video was a gun, the district court
(1) did not allow the witness to usurp the
factfinding role of the jury (2) with improper
argument, and (3) satisfactorily afforded
defendant relief from late notice by granting a six-
day continuance.
(b) In admitting into evidence historical cell-site
location information obtained without a warrant
supported by probable cause, the district court
reasonably relied on the good-faith exception to
the exclusionary rule because the procurement
44
pre-dated Carpenter v. United States, 138 S. Ct. 2206(2018), and the government reasonably relied on
the Stored Communications Act, see 18 U.S.C.
§ 2703(d), and the third-party doctrine.
(c) In admitting photographic and testimonial
evidence of defendant’s relationship with his co-
conspirators, the district court reasonably
concluded that such evidence was more probative
than prejudicial. See Fed. R. Evid. 402, 403, & 404.
(3) Defendant’s challenge to his firearms convictions under
18 U.S.C. § 924(c)(3)(A) fail because the predicate crimes
on which these convictions are based, Hobbs Act
robbery, see id. § 1951, and federal carjacking, see id.
§ 2119(3), are categorical crimes of violence.
Accordingly, the judgment of conviction is AFFIRMED.
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