United States v. Greene

20-1560-cr
United States v. Greene
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 27th day of May, two thousand twenty-one.
PRESENT:
BARRINGTON D. PARKER,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 20-1560
DARRYL M. GREENE, AKA DOBIE,
Defendant-Appellant.
_________________________________________
FOR DEFENDANT-APPELLANT: SCOTT M. GREEN, Law Office of Scott
Green, Rochester, NY.
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.
Appeal from a judgment of the United States District Court for the Western District
of New York (Vilardo, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on May 8, 2020, is
AFFIRMED.
Darryl M. Greene appeals from a judgment of conviction entered following a jury
trial at which he was found guilty of conspiracy to possess with intent to distribute, and to
distribute, 500 grams or more of a mixture and substance containing cocaine, see 21 U.S.C.
§§ 841(a)(l), 841(b)(l)(B), 846 (“Count 1”), and two counts of attempted possession with
intent to distribute cocaine, see id. §§ 841(a)(l), 841(b)(l)(C), 846; 18 U.S.C. § 2 (“Count 2”
and “Count 3”). The District Court sentenced Greene, principally, to an aggregate 120-
month term of imprisonment. We assume the parties’ familiarity with the underlying facts,
procedural history, and arguments on appeal, to which we refer only as necessary to explain
our decision to affirm.
1. Motion for Judgment of Acquittal
Greene first challenges the District Court’s denial of his Rule 29 motion for a
judgment of acquittal. Rule 29 permits a trial court to set aside a jury’s guilty verdict if it
determines the evidence was “insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
Such a finding is warranted “only if the evidence that the defendant committed the crime
alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a
reasonable doubt.” United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999). 1 We review de
novo a district court’s denial of such a motion. United States v. Cacace, 796 F.3d 176, 191 (2d
Cir. 2015). On such review, we conclude that Rule 29 relief was correctly denied.
Trial evidence established that, on July 24, 2017, “David Anderson” sent a package
(“Box 1”) by U.S. Postal Service (“USPS”) from San Diego, California, to “David Hodge” at
1Unless otherwise noted, in quoting caselaw, this Order omits all alterations, citations, footnotes, and internal
quotation marks.
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125 Kensington Avenue, Buffalo, New York (the names identified here are as reflected on
Box 1). Box 1 bore a USPS tracking number and was scheduled for delivery on July 27. On
July 25, “David Anderson” sent a second package (“Box 2”) by USPS from a different street
address in San Diego, California, to “W. Greene” at 1631 Hertel Avenue, Buffalo, New
York. Box 2 also bore a USPS tracking number and was slated for delivery on July 28.
On July 26, unindicted co-conspirator Hodge received text messages, providing
tracking information for Boxes 1 and 2, and instructions regarding the place and time to pick
up Box 1 in Buffalo. On July 27, Hodge made three visits to the Buffalo post office nearest
his home, alone on the first two visits and accompanied by Greene on the third. At about
the time of the third visit, Greene’s cell phone was used to trace the tracking number for
Box 1.
Meanwhile, on or about July 26, California-based postal inspectors alerted a Buffalo
counterpart, Jeffrey Maul, about a “suspicious” package addressed to Hodge at
125 Kensington Avenue in Buffalo. Maul identified the package—Box 1—and, upon
inspection, a trained drug-detection dog alerted to the presence of drugs. Maul requested and
received a search warrant to open Box 1, which was found to contain 997.8 grams of
cocaine.
Maul then prepared Box 1 for a controlled delivery, replacing the cocaine with a sham
substance and placing a transmitter inside. On July 28, U.S. Postal Inspector Ray Williams,
disguised as a letter carrier, delivered Box 1 to Hodge at 125 Kensington Avenue. Williams
testified that Hodge stated that he “had been waiting for” the package. Joint. App’x at 127.
Shortly after the delivery, Greene arrived by car at Hodge’s residence and retrieved Box 1,
which investigators found in his possession when they stopped him a few minutes later.
Incident to their arrest of Greene, the officers seized Box 1, two cell phones, and an
identification document reflecting Greene’s Buffalo residence at 1631 Hertel Avenue, the
address on Box 2. The cell phones were found to contain text messages and internet search
activity bearing tracking information for Boxes 1 and 2 as well as text-messages with a
California phone number about using discretion in texting.
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On August 3, approximately one week after Greene’s arrest, USPS officials in Buffalo
intercepted Box 2, which was found to contain 498.7 grams of cocaine.
Viewing this evidence in the light most favorable to the prosecution, as we are bound
to do on appeal after a verdict of conviction, we easily conclude that the evidence was
sufficient for the jury to find “the essential elements of the crime established beyond a
reasonable doubt.” Cacace, 796 F.3d at 191. A reasonable jury could infer that Greene
conspired with Hodge and a California individual or individuals to possess with intent to
distribute (Count 1) and attempt to possess with intent to distribute the cocaine contained
within Boxes 1 and 2 (Counts 2 and 3).
2. Motion for New Trial
Greene also challenges the District Court’s denial of his motion for a new trial under
Rule 33 of the Federal Rules of Criminal Procedure. He urges primarily that he received
constitutionally ineffective assistance of counsel, which denied him a fair trial.
Rule 33 confers broad discretion on a trial court to order a new trial if needed to
avert a miscarriage of justice. See United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992).
We review the denial of a Rule 33 motion for abuse of discretion, assessing the factual
findings in support of such a decision for clear error. See United States v. Rigas, 583 F.3d 108,
125 (2d Cir. 2009). A defendant may raise a claim of ineffective assistance of counsel as part
of a motion for Rule 33 relief. See United States v. Brown, 623 F.3d 104, 113 n.5 (2d Cir. 2010).
Such a claim presents a mixed question of law and fact subject to de novo review. See Bennett v.
United States, 663 F.3d 71, 85 (2d Cir. 2011).
The District Court acted well within its discretion in rejecting Greene’s Rule 33
motion because Greene cannot show that (1) counsel’s performance was objectively
unreasonable and (2) the deficient performance prejudiced the defense. See Strickland v.
Washington, 466 U.S. 668, 687–88 (1984); United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.
2004).
First, insofar as Greene faults defense counsel for referencing Hodge’s anticipated
testimony for the prosecution in his opening, when Hodge did not, in fact, testify, we
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identify no ineffectiveness. Counsel’s opening statement was part and parcel of the defense’s
trial strategy to convince the jury that Hodge, not Greene, was the culpable party. This was
reasonable because Hodge was the only person in Buffalo who the available evidence linked
to the incriminating packages. Defense counsel introduced the idea that Hodge was the
actual culprit in the opening statement and reinforced it throughout trial, including during
cross-examination of the Government’s witnesses and in his closing argument. This was a
reasonable trial strategy, whether or not Hodge ultimately appeared at trial. Indeed, it may
have been the only strategy available, in light of the strong direct evidence of Greene’s
participation in the crimes. See United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)
(observing that certain decisions, such as whether to give an opening statement, are ones that
“fall squarely within the ambit of trial strategy, and, if reasonably made, will not constitute a
basis for an ineffective assistance claim”).
Further, Greene cannot demonstrate that he was prejudiced by counsel’s opening
remarks because, despite Hodge’s absence from the trial, counsel was able through cross-
examination to support the factual assertions made in his opening. Indeed, as the District
Court observed, Hodge’s absence may well have benefited, rather than prejudiced, Greene
because counsel was able to suggest, without contradiction, that Hodge was the actual
malefactor. Thus, even if counsel’s opening statement had fallen below an objective standard
of professional judgment—which it did not—Greene’s challenge would nevertheless fail at
the second Strickland prong, which requires prejudice.
Second, Greene argues that defense counsel’s failure to object to certain expert opinion
and hearsay testimony given by Special Agent David Turner was objectively unreasonable. In
particular, Greene takes issue with Agent Turner’s unobjected-to testimony regarding (1) his
conclusion that Greene, Hodge, and the individual from the California number “were
involved in the drug conspiracy together and that they ultimately might be relatives,” Joint
App’x at 147; (2) that prior to his arrest, Greene knew the tracking numbers of both parcels
shipped from California; (3) that telephone contacts between Greene, Hodge, and the
California number contained instructions telling Hodge where to be and at what time;
(4) that the operators of the cell phones were apparently unaware of errors made by them as
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they searched for the tracking numbers to the relevant packages; and (5) that Hodge’s
nickname was “Speed.”
As the District Court recognized, defense counsel made “a valid strategic choice” not
to object to these statements but, rather, to attack them on cross-examination. Special App’x
at 13; see also United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (“[T]he conduct of
examination and cross-examination is entrusted to the judgment of the lawyer, and an
appellate court on a cold record should not second-guess such decisions unless there is no
strategic or tactical justification for the course taken.”). This was consistent with the Hodge-
oriented theory of the defense case. For example, defense counsel established the lack of
proof that Greene, rather than Hodge or someone else, used the phone to send the
incriminating text messages. Additionally, counsel’s failure to object to Agent Turner’s
identification of Hodge as “Speed” reinforced the defense argument that he was the actual
drug dealer whose acceptance of the initial delivery was knowing and intentional while
Greene’s involvement was that of an innocent dupe. These were objectively reasonable
strategic decisions regarding how to conduct cross-examination and forgo objection. In any
event, even if any of Agent Turner’s challenged statements were objectionable, the
Government’s evidence was sufficiently compelling in demonstrating Greene’s guilt to
preclude a finding of prejudice under the second Strickland prong as well.
Third, Greene identifies error in counsel’s failure to avoid revelation of Greene’s prior
drug conviction, specifically faulting counsel for (1) failing to request redaction of Greene’s
videotaped post-arrest interview, during which he admitted a previous arrest “for drugs,”
and (2) “exacerbat[ing]” the error by referring to Greene’s prior conviction during his closing
statement. Appellant’s Br. at 34–39.
As the District Court explained, however, defense counsel’s efforts to shift blame to
Hodge, while reasonable, also opened the door to evidence of Greene’s prior conviction. In
evidence were text messages sent from Greene’s cell phone to a California phone number
making reference to the sender’s prior “case” to encourage the recipient to be more discreet.
Joint App’x at 157; Special App’x at 11. Because defense counsel had established Hodge’s
prior criminal record involving drugs, the District Court acted within its discretion in
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allowing the prosecution to offer evidence that Greene, too, had a prior drug conviction,
which was done through stipulation to minimize its effect. The District Court explained that
“otherwise, there would be no context for the possibility that Greene, and not Hodge, might
have sent the text message referring to ‘my case.’” Id.; see also United States v. Gambino, 59 F.3d
353, 368 (2d Cir. 1995). In closing, defense counsel nevertheless contrasted Greene’s single
prior conviction with Hodge’s numerous prior arrests and convictions, consistent with the
overall blame-shifting strategy. Thus, defense counsel took steps to mitigate harm flowing
from a disclosure that he could not avoid given the chosen defense strategy.
As discussed above, defense counsel’s attempt to shift suspicion onto Hodge was a
“sound trial strategy.” Strickland, 466 U.S. at 689. Allowing the disclosure of Hodge’s prior
conviction flowed from that strategy. Considering the strength of the evidence against
Greene, we can identify no “reasonable probability” that omitting reference to Greene’s
prior conviction would have changed the verdict. Id. at 694.
Finally, Greene argues that, considered together, defense counsel’s alleged errors
demonstrated ineffective assistance and that the representation was so deficient in toto that
Greene was deprived of a fair trial. As explained above, however, the errors alleged on
appeal were all consistent with defense counsel’s objectively reasonable trial strategy. Even if
individual actions were objectionable in some respects, in light of the strong evidence against
Greene, we cannot conclude that the errors (if errors they were) prejudiced the outcome of
the proceedings or resulted in an unfair trial. Id. at 687. The District Court did not abuse its
discretion in denying Greene’s Rule 33 motion.
* * *
We have considered Greene’s remaining arguments and find in them no basis for
reversal. For the reasons set forth above, the District Court’s judgment is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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