United States v. Davis

10-3424-cr(L)
United States v. Davis
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2011
(Argued: June 18, 2012 Decided: August 8, 2012)
Docket Nos. 10-3424-cr (L); 10-3453-cr (CON)
UNITED STATES OF AMERICA,
Appellee,
v.
ALTON DAVIS, RODERICK GUNN, A/K/A ZAPPA,
Defendants-Appellants,
DERRILYN NEEDHAM, A/K/A INGRID,
RONALD KNIBBS, A/K/A BIRDIE,
Defendants.
Before:
LEVAL, RAGGI, and CHIN, Circuit Judges.
Appeal from judgments of conviction entered after a jury trial in the United States
District Court for the Southern District of New York (William H. Pauley III, Judge), on
charges of conspiring and attempting to commit Hobbs Act robberies, see 18 U.S.C.
§ 1951; using firearms in relation to the attempted robberies, on two occasions causing
death, see 18 U.S.C. § 924(c)(1)(A), (j); and conspiring to distribute more than 100
kilograms of marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1), 846. By summary order filed
today we reject most of appellants’ challenges to these convictions. This opinion
addresses Davis’s challenge to venue in the Southern District of New York for a
substantive Hobbs Act count and two firearms counts pertaining to the attempted robbery
of a residence in the Eastern District of New York.
AFFIRMED.
JOHN J. O’DONNELL (Jennifer E. Burns, Iris Lan, on the brief),
Assistant United States Attorneys, for Preet Bharara, United
States Attorney for the Southern District of New York, New
York, New York, for Appellee.
ANDREW M. ST. LAURENT, Harris, Cutler & Houghteling LLP, New
York, New York, for Defendant-Appellant Alton Davis.
HOWARD L. JACOBS (Jeremy B. Sporn, on the brief), New York, New
York, for Defendant-Appellant Roderick Gunn.
REENA RAGGI, Circuit Judge:
Defendants Alton Davis and Roderick Gunn appeal from judgments entered
against them on August 24, 2010, in the United States District Court for the Southern
District of New York (William H. Pauley III, Judge), convicting them of conspiracy to
commit Hobbs Act robberies of suspected drug dealers, see 18 U.S.C. § 1951 (Count
2
One); attempting to commit such a robbery on Wickham Avenue in the Bronx
(“Wickham robbery”), see id. (Count Three); two counts of using and discharging a
firearm during the Wickham robbery, including causing the death of Gary Grey, see id. §
924(c)(1)(A)(iii), (j) (Counts Six and Seven); and conspiracy to distribute and possess
with intent to distribute more than 100 kilograms of marijuana, see 21 U.S.C.
§§ 841(a)(1), (b)(1), 846 (Count Eight). Davis also appeals his convictions for attempting
to commit a Hobbs Act robbery in Elmont, Long Island (“Elmont robbery”), see 18
U.S.C. § 1951 (Count Two), and two counts of using and discharging a firearm during the
Elmont robbery, including causing the death of Stephanie Laing, see id.§ 924(c)(1)(A)(iii), (j) (Counts Four and Five).
In this opinion, we explain why we reject Davis’s challenge to venue in the
Southern District of New York for Counts Two, Four, and Five, the Hobbs Act and
firearms counts relating to the Elmont robbery. By separate order filed today, we
summarily reject defendants’ remaining challenges to their convictions. Accordingly, we
affirm the challenged judgments in all respects.
I. Factual Background
A. Defendants’ Criminal Conduct
1. The Robbery Scheme
Over the course of an eight-day trial, at which approximately 40 witnesses
testified, the prosecution proved that between mid-2002 and early 2003, defendants Davis
3
and Gunn, along with others, participated in a conspiracy to rob suspected drug dealers of
money and drugs. Of the six robberies or attempted robberies about which evidence was
introduced, three occurred in the Bronx, one in Queens, one on Long Island, and one in
Maryland. During the Maryland robbery, in which Davis, but not Gunn, participated,
approximately $1,000,000 was stolen. In committing robberies, one or more of the
conspirators usually was armed with a gun, such that during the Elmont robbery, which
targeted a Bronx drug dealer named Robert DeLeon, Davis shot and killed DeLeon’s
common-law wife, Stephanie Laing, and during the Wickham robbery, Davis shot and
killed the robbery target, Gary Grey. Insofar as this opinion focuses on Davis’s venue
challenge to the substantive counts pertaining to the attempted Elmont robbery, we limit
our further discussion of facts to those charges.
2. The Elmont Robbery
In the fall of 2002, Gunn spoke with confederate Derrilyn Needham about robbing
“Bobby Sox,” whom he identified as a “big-time drug dealer.” Trial Tr. 373, 380. Gunn
directed Needham to locate “Bobby Sox,” whose real name was Robert DeLeon, and to
secure his license plate number.1 Sometime thereafter, Needham spotted DeLeon in a car
parked on White Plains Road in the Bronx. After Needham copied DeLeon’s license
1
Needham, who testified for the prosecution, admitted that she had been robbing drug
dealers since 2001, confident that such targets would not contact the police. She would
provide information about likely targets to the crew that actually committed the robberies.
Sometimes, she would herself go to the robbery location. In return, she would receive a
share of the proceeds.
4
plate number, she and Gunn enlisted a contact with access to records from the New York
State Department of Motor Vehicles to “run” the plate. Id. at 377. The conspirators thus
learned that the vehicle was registered to Stephanie Laing at 194 Locustwood Boulevard
in Elmont, Long Island, within the Eastern District of New York. Together with three
other persons, Gunn surveyed the Elmont address and concluded that a robbery “was
doable.” Id. at 380–81. Lacking confidence in his cohort, however, Gunn asked
Needham to secure Davis’s participation in the robbery, which she did. At this point in
the conspiracy, Davis had already participated with Gunn and Needham in one successful
robbery in the Bronx, as well as in failed robbery attempts in the Bronx and Queens. He
had also participated successfully with Needham in the Maryland robbery.
Testifying for the prosecution, Robert DeLeon stated that in the summer and fall
of 2002, he lived with Stephanie Laing and their children at 194 Locustwood Boulevard
in Elmont. During that time, he sold large quantities of marijuana in the Bronx and
Manhattan. DeLeon explained that, approximately three times per month, he received
500 to 800 pounds of marijuana from California at his Elmont home. There, he would
break down the shipments into smaller packages that he personally delivered in his car to
customers in the Bronx and Manhattan approximately “six times a week.” Id. at 238–39.
DeLeon would bring the money earned from these transactions back to Elmont. On
October 31, 2002, the date of the planned robbery, DeLeon had neither drugs nor large
amounts of money in his Elmont home, having received and distributed a shipment of
marijuana the week before.
5
Early on the morning of October 31, Davis armed himself with a .45 caliber
handgun and went to the targeted residence to commit the robbery. Not finding either
Gunn or another confederate—each of whom was supposed to serve as a lookout—at the
scene, Davis called Needham at her home in the Bronx and asked her to contact the two
missing men to find out where they were. Needham did so and reported back to Davis
that neither man could participate in the robbery that morning. Davis then asked
Needham to come to Elmont and herself serve as lookout. She replied that she could not
do so but offered to call “Tammy,” who agreed to provide the needed assistance.
Thereafter, at least three persons joined Davis to carry out the Elmont robbery.
On the morning of October 31, DeLeon was home with Laing and the couple’s two
children. Also present in the house were DeLeon’s mother and sister. As part of the
morning routine, DeLeon’s daughter went outside to warm up DeLeon’s car. As she
reentered the house, Davis came up behind her and forced his way inside. Laing
screamed when she saw the intruder and ran upstairs, with Davis in pursuit. Hearing the
scream, DeLeon grabbed a Glock .40 caliber handgun from his bedroom, confronted
Davis, and shot him in the right shoulder. DeLeon then ran downstairs, where he chased
and fired at the other robbers. Meanwhile, the wounded Davis entered the bedroom
where Laing had sought refuge with DeLeon’s mother, Eneta Brown. Brown saw Davis
lean over to say something to Laing—which Brown could not hear—whereupon Davis
6
shot Laing, first in the eye and then in the chest, killing the woman. Davis also tried to
shoot Brown, who was trying to hide under the bed, but his gun misfired.
Together with his confederates, Davis then fled the scene, going first to a cousin’s
home in Brooklyn and then to a Brooklyn hospital for treatment of the gunshot wound to
his shoulder. When local police detectives reported to the hospital to investigate the
shooting, he falsely reported being the victim of a street dispute in Brooklyn. In fact,
later that day, he would tell a group of persons, including Needham, about the events in
Elmont. Needham testified that Davis sounded “almost boastful” in relaying his killing of
Laing. Id. at 395. Thereafter, he would also tell Needham that he planned to kill Bobby
Sox, i.e., DeLeon, for shooting him.
Although Davis never achieved that murderous objective, in the course of the
January 2003 attempted Wickham robbery, in which he participated with Gunn and
Needham, Davis shot and killed robbery target Gary Grey. Davis had decided the night
before the robbery to murder Grey in order to prevent him from retaliating against the
person who gave the robbers entry into his home.
Following his March 2007 arrest by federal and state officials, Davis admitted
being present during the attempted Elmont robbery, being fired upon, and shooting back,
but claimed to have done so only reflexively, not intending to kill Laing.
7
B. The District Court’s Rejection of Davis’s Venue Challenge
1. The Government’s Venue Argument and the Court’s Jury Charge
In its summation to the jury, the government argued that venue in the Southern
District of New York for the crimes related to the attempted Elmont robbery was
supported by (1) Needham’s procurement in the Bronx of the target’s license plate
number; (2) Needham’s efforts, in response to Davis’s October 31, 2002 telephone call, to
secure people to help Davis commit the robbery; and (3) the robbery’s effect on interstate
commerce in the Bronx, where the robbery target dealt drugs.
In its charge to the jury, the district court stated that venue for “robbery or
attempted robbery . . . is proper in any district where interstate commerce is affected or
where the acts in furtherance of the robbery or attempted robbery took place.” Id. at
1826. This language was taken almost verbatim from the parties’ joint proposed jury
charge.
2. Davis’s Rule 29 Challenge to Venue
Prior to trial, Davis moved unsuccessfully to dismiss the Hobbs Act and firearms
counts relating to the attempted Elmont robbery, arguing that venue for these three crimes
was lacking in the Southern District of New York. Davis renewed the venue challenge
toward the close of evidence, moving for a judgment of acquittal pursuant to Fed. R.
Crim. P. 29. After the verdict, the district court denied the motion, identifying two “acts
in furtherance of the attempted robbery” that had taken place in the Southern District:
8
(1) Needham’s procurement of DeLeon’s license plate number in the Bronx, “the key act
enabling the robbery crew to locate DeLeon’s house”; and (2) Needham’s calling
“Tammy” from the Bronx to act as a lookout, which action “allow[ed] the crime to go
forward.” United States v. Davis, No. 06 CR 911 (WHP), 2010 WL 3306172, at *2
(S.D.N.Y. Aug. 20, 2010). The district court further concluded that, with venue in the
Southern District thus established “for the underlying crime of violence,” it necessarily
followed that venue in the Southern District was also established for the related § 924
firearms crimes. Id. (citing United States v. Rodriguez-Moreno, 526 U.S. 275, 282
(1999)).
C. Davis’s Sentence and Appeal
The district court proceeded to sentence Davis to concurrent prison terms of 20
years on the Hobbs Act conspiracy (Count One), 20 years on the attempted Elmont
robbery (Count Two), 20 years on the attempted Wickham robbery (Count Three), life on
the use and discharge of a firearm during the attempted Elmont robbery resulting in death
(Count Five), life on the use and discharge of a firearm during the attempted Wickham
robbery resulting in death (Count Seven), and 40 years on the conspiracy to traffic in
more than 100 kilograms of marijuana (Count Eight). The district court also imposed
concurrent terms of lifetime supervised release on each count of conviction and a total
special assessment of $800. This timely appeal followed.
9
II. Discussion
Davis contends that the district court erred in rejecting his venue challenge to the
three substantive counts of conviction pertaining to the attempted Elmont robbery
(Counts Two, Four, and Five). He maintains that the evidence is insufficient as a matter
of law to permit venue for these crimes to have been found in the Southern District of
New York. Because Davis is serving concurrent life sentences for shooting and killing
persons in the Wickham robbery as well as the Elmont robbery, and because proof of the
Elmont robbery and the related firearms charges was properly admitted to prove the
overall Hobbs Act conspiracy charge, it is doubtful that he would realize any practical
benefit from a successful venue challenge to the counts of conviction pertaining to the
Elmont robbery. Nevertheless, because we recognize that the fact of concurrent sentences
on two counts does not moot a challenge to one count, see Ball v. United States, 470 U.S.
856, 864–65 (1985), we proceed to address Davis’s venue challenge, and we conclude
that it is meritless.
A. The Venue Requirement
A defendant’s right to be tried in the state and district in which the charged crime
“shall have been committed” is grounded in two provisions of the Constitution, see U.S.
Const. art. III, § 2, cl. 3; id. amend. VI, and reiterated in Fed. R. Crim. P. 18. The
requirement derives from colonial grievances against the Crown, which had sometimes
transported American colonists across the sea to stand trial in England. See Drew L.
10
Kershen, Vicinage, 29 Okla. L. Rev. 801, 807 (1976) (noting specific reference to this
grievance in Declaration of Independence). Thus, the Constitution’s venue requirement
was adopted to shield a federal defendant from “the unfairness and hardship” of
prosecution “in a remote place.” United States v. Cores, 356 U.S. 405, 407 (1958); see
3 J. Story, Commentaries on the Constitution of the United States § 1775, at 654 (photo.
reprint 1999) (Boston, Hilliard, Gray & Co. 1833) (observing that object of Constitution’s
vicinage clause is to prevent “accused from being dragged to a trial in some distant
state”).
Despite its constitutional pedigree, venue is not an element of any crime, so as to
require proof beyond a reasonable doubt. Rather, venue need be proved only by a
preponderance of the evidence. See United States v. Tzolov, 642 F.3d 314, 318 (2d Cir.
2011); United States v. Rommy, 506 F.3d 108, 119 (2d Cir. 2007) (collecting cases).2
The sufficiency of the evidence to support a preponderance finding of venue is a question
of law that we review de novo, considering the evidence in the light most favorable to the
government. United States v. Tzolov, 642 F.3d at 318.
2
Indeed, because venue is not an element of a crime, a question might be raised as to
whether venue disputes must, in fact, be submitted to a jury. See United States v. Rommy,
506 F.3d at 119 n.5 (noting issue without deciding it); United States v. Hart-Williams, 967
F. Supp. 73, 76–78 (E.D.N.Y. 1997) (concluding that venue need not be decided by jury and
collecting cases). As in Rommy, no such question was raised in this case, and thus we do
not attempt to answer it here.
11
Where, as here, a defendant is charged with multiple crimes in a single indictment,
the government must satisfy venue with respect to each charge. See United States v.
Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir. 1989). In considering whether
the government has carried this burden, we begin by determining the locus delicti of the
particular crime at issue, employing the two-step analysis set forth in United States v.
Rodriguez-Moreno, which seeks first to “identify the conduct constituting the offense,”
and then to “discern the location of the commission of the criminal acts.” 526 U.S. at279–80; see also United States v. Cabrales, 524 U.S. 1, 6–7 (1998) (“[T]he locus delicti
must be determined from the nature of the crime alleged and the location of the act or acts
constituting it.”); United States v. Ramirez, 420 F.3d 134, 138 (2d Cir. 2005). Although
statutory language necessarily informs the first step of the analysis, the Supreme Court
has “rejected a rigid ‘verb test’ that ‘unduly limits the inquiry into the nature of the
offense and thereby creates a danger that certain conduct prohibited by statute will be
missed.’” United States v. Saavedra, 223 F.3d 85, 90 (2d Cir. 2000) (quoting United
States v. Rodriguez-Moreno, 526 U.S. at 280).
Similarly, at the second step, the law recognizes that not all crimes consist of a
single, non-continuing act, so as to locate venue in a single district. See United States v.
Ramirez, 420 F.3d at 139. “The commission of some crimes can span several districts.”
United States v. Rommy, 506 F.3d at 119. In such circumstances, Congress has
12
instructed that venue properly lies in “any district” in which the charged offense “was
begun, continued, or completed.” 18 U.S.C. § 3237(a).
To comport with constitutional safeguards, we have construed this language to
require more than “some activity in the situs district”; instead, there must be “substantial
contacts,” considering “the site of the defendant’s acts, the elements and nature of the
crime, the locus of the effect of the criminal conduct, and the suitability of each district
for accurate factfinding.” United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985);
accord United States v. Royer, 549 F.3d 886, 895 (2d Cir. 2008). Further, to support
venue, what is begun or continued in a district must be a part of the actual charged crime,
not merely steps preparatory to the crime. See United States v. Tzolov, 642 F.3d at 319;
United States v. Beech-Nut Nutrition Corp., 871 F.2d at 1190.
Finally, there must be some “sense of [venue] having been freely chosen” by the
defendant. United States v. Reed, 773 F.2d at 481. This does not mean that evidence
must show that a defendant had actual knowledge that particular acts would occur in a
particular district to support venue at that location. Rather, it asks whether the acts’
“occurrence in the district of venue [would] have been reasonably foreseeable” to the
defendant. United States v. Rommy, 506 F.3d at 123.
With these principles in mind, we consider Davis’s venue challenge.
13
B. The Conduct Constituting the Crimes of Conviction
Although Davis challenges venue on three counts of conviction—the Hobbs Act
attempted Elmont robbery (Count Two), § 924(c)(1) use of a firearm in furtherance of the
Elmont robbery (Count Four), and § 924(j) use of a firearm in furtherance of the Elmont
robbery resulting in death (Count Five)—we need focus only on the Hobbs Act count in
light of Supreme Court precedent holding that “[w]here venue is appropriate for the
underlying crime of violence,” it is also appropriate for related § 924 firearms offenses
committed in furtherance of the act of violence. United States v. Rodriguez-Moreno, 526
U.S. at 282.
In identifying the “conduct constituting” the charged Hobbs Act offense, id. at
279, we begin with the statutory text. The Hobbs Act prohibits, among other things, “in
any way or degree obstruct[ing], delay[ing], or affect[ing] commerce or the movement of
any article or commodity in commerce, by robbery or extortion.” 18 U.S.C. § 1951(a).
The statute defines “robbery” to mean “the unlawful taking or obtaining of personal
property from the person or in the presence of another . . . by means of actual or
threatened force, or violence, or fear of injury, immediate or future, to his person or
property.” Id. § 1951(b)(1). Because the Hobbs Act criminalizes a particular type of
“robbery”—i.e., one that “obstructs, delays, or affects commerce,” id. § 1951(a)—venue
for a substantive Hobbs Act charge is “‘proper in any district where interstate commerce
is affected or where the alleged acts took place.’” United States v. Smith, 198 F.3d 377,
14
383 (2d Cir. 1999) (emphasis added) (quoting United States v. Stephenson, 895 F.2d 867,
875 (2d Cir. 1990)); see also United States v. Bowens, 224 F.3d 302, 313 (4th Cir. 2000)
(“[I]n a prosecution under the Hobbs Act, venue is proper in any district where commerce
is affected because the terms of the statute itself forbid affecting commerce in particular
ways.”). This is consistent with Congress’s ability to “provide that the locality of a crime
shall extend over the whole area through which force propelled by an offender operates.”
United States v. Johnson, 323 U.S. 273, 275 (1944); accord United States v. Bowens, 224
F.3d at 312–13 (“Congress may, consistent with the venue clauses of Article III and the
Sixth Amendment, define the essential conduct elements of a criminal offense in terms of
their effects, thus providing venue where those effects are felt.”).3
Davis argues that basing venue on a potential effect on interstate commerce would
effectively eliminate all constraints on venue in Hobbs Act cases. This is because even a
potential effect on interstate commerce is sufficient to satisfy the jurisdictional element of
the Hobbs Act, see United States v. Parkes, 497 F.3d 220, 230 (2d Cir. 2007), regardless
3
Another crime for which the law recognizes venue both in a district where a
defendant commits an act and in the district where the act has an effect is obstruction of
justice. See 18 U.S.C. § 1512(i) (providing that prosecution for obstructing justice may be
brought not only in “district in which the conduct constituting the alleged offense occurred,”
but also in “district in which the official proceeding . . . was intended to be affected”); United
States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991) (stating that § 1512(i), then
§ 1512(h), codifies prior judicial decisions holding venue proper in “district where
government proceedings were affected”); United States v. Reed, 773 F.2d at 486 (“The
contacts with the Southern District for jurisdictional and enforcement purposes are no less
because the attempt to obstruct the proceeding there failed.”).
15
of the defendant’s state of mind with respect to the commerce element, see United States
v. Silverio, 335 F.3d 183, 187 (2d Cir. 2003). But we have had no occasion to consider
whether the same conclusion applies to venue, particularly in light of our precedent
discussing the need for some “sense” that the defendant chose venue, United States v.
Reed, 773 F.2d at 481, even if only by foreseeing the effect of his actions in the venue
district, see United States v. Rommy, 506 F.3d at 123. The point warrants little
discussion on this appeal because the evidence shows both that an effect on interstate
commerce in the Southern District of New York from the Elmont robbery was reasonably
foreseeable to Davis, see infra at [19–21], and that Davis purposefully took steps in the
Southern District of New York to advance the robbery at a point where it seemingly had
stalled, see infra at [21–24].
Further, Davis stands convicted of attempted rather than completed Hobbs Act
robbery. See 18 U.S.C. § 1951(a). Attempt is an inchoate offense, requiring that a
defendant have taken a “‘substantial step’ in furtherance of the intended crime” to support
conviction. United States v. Farhane, 634 F.3d 127, 146–47 (2d Cir. 2011) (collecting
cases discussing how “substantial step” requirement widened ambit of attempt liability
beyond that provided at common law), cert. denied, 132 S. Ct. 833. Where a particular
attempt involves criminal activity spanning more than one district, venue can properly lie,
consistent with caveats already discussed, “wherever the attempt . . . was begun,
16
continued, or completed.” United States v. Drachenberg, 623 F.3d 122, 125 (2d Cir.
2010) (internal quotation marks omitted).
Most obviously, venue for attempt will lie in the district where a substantial step
toward commission of the offense occurred. In the case of a Hobbs Act robbery, this
means venue will lie in any district where a substantial step toward robbery took place.
But because a Hobbs Act robbery must affect interstate commerce, venue may also be
informed by where the defendant knew or reasonably should have foreseen that interstate
commerce would be affected. As we have recognized in the context of conspiracy,
another inchoate offense, venue may lie in a district where the defendant knows or
reasonably should foresee that acts in furtherance of the criminal enterprise would take
place, even if such events have not yet occurred. See United States v. Rommy, 506 F.3d
at 123.
Thus, in reviewing Davis’s challenge to venue in the Southern District of New
York, we consider whether a reasonable jury could have found by a preponderance of the
evidence that Davis (1) knew or reasonably should have foreseen that interstate
commerce would have been affected in the Southern District by completion of the
attempted Elmont robbery, or (2) took a substantial step in furtherance of that intended
robbery in the Southern District. We identify record support for both these findings.
17
C. The Location and Effects of the Attempted Elmont Robbery
In proceeding to “discern the location of the commission of the criminal acts”
constituting the charged crime, United States v. Rodriguez-Moreno, 526 U.S. at 279, we
readily identify any number of significant steps taken by Davis in the Eastern District of
New York intended to culminate in the commission of Hobbs Act robbery. On the
morning of October 31, 2002, an armed Davis traveled to Elmont, Long Island, to commit
the robbery. There, he forcibly entered the target residence. Once inside that residence,
Davis shot and killed a woman in response to efforts to prevent him from carrying out the
robbery. These substantial steps brought the intended Hobbs Act robbery about as close
to fruition as possible while still constituting an attempt. Indeed, the only reason Davis’s
conduct qualified as an attempt rather than a completed crime was that his use of force
resulted in the loss of human life rather than personal property.
These substantial steps in the Eastern District, however, are not the only
circumstances relevant to venue.
1. The Effect of the Attempted Elmont Robbery on Interstate
Commerce in the Bronx
First, there is no question that the crime Davis came so close to committing would
have affected interstate commerce directly in the Southern District of New York. DeLeon
was a large-scale drug dealer who acquired his contraband from out of state and sold it to
customers in the Bronx and Manhattan. Insofar as the planned Elmont robbery would
18
have stolen drugs intended for sale in these boroughs or money (the proceeds of such
sales) that would have financed DeLeon’s future drug sales in these boroughs, the robbery
would have affected commerce in the Southern District of New York. See United States
v. Needham, 604 F.3d 673, 682 (2d Cir. 2010) (explaining that commerce element may be
satisfied by showing that “robbery depleted assets that would have purchased goods in
interstate commerce,” whether putative transactions are “legal or illegal”).
To the extent there is any question as to whether Davis—in addition to Gunn and
Needham—had actual knowledge of the Southern District locus of DeLeon’s drug
trafficking,4 Davis’s prior participation with Gunn and Needham in a pattern of robberies
of persons dealing drugs in the Bronx, together with the proximity of DeLeon’s home in
Elmont to the Bronx, was enough to show that it was more probable than not that Davis
understood the likelihood that this also would be a robbery of a drug dealer who sold
drugs in the Bronx. See generally United States v. Rowe, 414 F.3d 271, 279 (2d Cir.
2005) (holding that defendant who posted advertisement for child pornography from
home computer in Kentucky was properly prosecuted in Southern District of New York
because he “must have known or contemplated” world-wide transmittal of
advertisement); United States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003) (holding that
4
Davis did not raise this question in the district court, and the parties appear to have
given it little attention at trial. In moving for a judgment of acquittal on Counts Two, Four
and Five, Davis’s counsel mistakenly called “[t]he fact that Mr. DeLeon may have run a drug
business in the Southern District of New York” simply “irrelevant” to venue. Trial Tr. 1540.
19
“savvy investor” would reasonably foresee that his stock trades would be executed on
either NYSE or AMEX in Southern District of New York); United States v. Kim, 246
F.3d 186, 193 (2d Cir. 2001) (holding that defendant who knew victim paid invoices from
bank located in Southern District of New York could reasonably foresee faxes and wire
transfers in that district). Thus, this case does not require us to delineate the
constitutional limits of a venue determination based on a de minimis or collateral effect
on interstate commerce unforeseeable to the defendant.5 In this case, Davis attempted to
affect illicit commerce that he reasonably could have foreseen was conducted in the
Southern District of New York by committing a robbery in the Eastern District of New
York, circumstances that support venue in both districts.
2. Davis’s Substantial Steps in the Bronx in Furtherance of the
Attempted Elmont Robbery
We need not here decide, however, whether this foreseeable potential effect on
commerce in the Southern District of New York is sufficient, by itself, to support the
challenged venue under our substantial contacts rule. See United States v. Reed, 773 F.2d
at 481. Any concern in that respect is removed by a second circumstance relevant to
venue: Davis’s own actions on the morning of the attempted robbery directed at the
Southern District of New York. On October 31, 2002, an armed Davis arrived at the
DeLeon home ready to commit robbery. Such conduct, by itself, went beyond “mere
5
We do not consider or decide whether Davis could have been prosecuted for crimes
related to the Elmont robbery in California, the source location of DeLeon’s drug supply.
20
preparation,” United States v. Manley, 632 F.2d 978, 987 (2d Cir. 1980); it was a
substantial step “planned to culminate” in the commission of the attempted Hobbs Act
robbery, United States v. Ivic, 700 F.2d 51, 66 (2d Cir. 1983) (Friendly, J.) (citing Model
Penal Code § 5.01(c) (Proposed Official Draft 1962), in explaining “substantial step”
requirement of attempt),6 abrogated on other grounds by National Org. for Women, Inc. v.
Scheidler, 510 U.S. 249, 254–55 (1994); accord United States v. Farhane, 634 F.3d at
147. Having thus begun the attempt, Davis found his ability to proceed unexpectedly
stalled by the failure of other members of the robbery crew to arrive on site as planned.
To ascertain their whereabouts, Davis telephoned Needham at her Bronx residence. Upon
learning from Needham that these crew members could not participate in the robbery that
morning, Davis signaled his continued determination to proceed with the robbery by
asking Needham to come to the site and act as his lookout. When she replied that she
could not do so, Davis had her secure the assistance of another person.
In short, having taken one substantial step intended to culminate in the commission
of the Elmont robbery, but having found the crime stalled by others, Davis used a
telephone to reach into the Southern District of New York to commit a further substantial
6
Ivic held that a defendant’s agreeing to participate in a bombing authorized by a
co-defendant, examining the target site, and having the explosives “readily available” were
sufficient to constitute a substantial step toward the bombing’s commission, although barely.
700 F.2d at 67. Here, not only had Davis agreed to participate in the robbery after the target
site had been surveyed, but he had arrived at the site on the morning of the robbery, armed
and ready to commit the crime.
21
step, procuring persons who could immediately provide the assistance necessary to restart
the crime. See United States v. Rommy, 506 F.3d at 122 (discussing how defendant
“propels” himself into district to which he makes telephone calls); see also United States
v. Royer, 549 F.3d at 895 (holding that defendant’s “electronic transmissions” into
district supported venue where received). Indeed, because Davis made this telephone call
as he stood outside the DeLeon home ready to enter and rob it, the identification of the
call as a substantial step intended to culminate in the commission of Hobbs Act robbery is
even more apparent than in United States v. Stephenson, where we held that telephone
calls placed into the Southern District of New York laying the groundwork for bribes
were “part and parcel” of a bribery offense culminating weeks later. 895 F.2d at 875.
Although “not physically present” in the Bronx on October 31, 2002, Davis could
not—and, as the evidence indicates, would not—have forged ahead with the robbery had
he not “enter[ed], by telephone, the Southern District.” Id. at 874.
Further, insofar as Needham, in the Bronx, then proceeded to make calls to secure
the assistance Davis needed, her actions in the Southern District of New York in
furtherance of the planned robbery are also fairly chargeable to Davis. See 18 U.S.C. § 2(holding defendant responsible for actions of others that he “aids, abets, counsels,
commands, induces or procures”); United States v. Lam Kwong-Wah, 924 F.2d 298, 302
(D.C. Cir. 1991) (recognizing that defendant who did nothing himself in venue district
may nevertheless be held to account there if he aided and abetted confederates’ acts in
22
district); see also Restatement (Second) of Agency § 212 (subjecting principal “to liability
for the consequences of another’s conduct which results from his directions” if principal
“intends the conduct, or if he intends its consequences”).
In sum, when we consider in the aggregate that (1) the elements and nature of the
Hobbs Act required that Davis attempt a robbery that would have an effect on interstate
commerce; (2) the effect on commerce of the attempted Elmont robbery would fall
directly in the Southern District of New York; (3) the effect on commerce in the Southern
District was at least reasonably foreseeable to Davis; (4) at a critical point after Davis had
already taken a substantial step intended to culminate in Hobbs Act robbery, he took a
further substantial step in the Southern District of New York that was essential to
allowing him to proceed with that robbery; and (5) the Southern and Eastern Districts
were equally suitable for accurate factfinding, we conclude that venue for the Hobbs Act
and firearms crimes pertaining to the Elmont robbery was proper in the Southern District
of New York. See United States v. Royer, 549 F.3d at 894–95.7
III. Conclusion
To summarize, we conclude that venue in the Southern District of New York for
prosecution of the attempted Hobbs Act robbery in Elmont, Long Island, was supported
by a preponderance of the evidence showing that (1) the robbery would have affected
7
In light of this conclusion, we need not reach the government’s argument that venue
in the Southern District is also supported by Needham’s procurement in the Bronx, prior to
Davis’s joining in the plan for the robbery, of DeLeon’s license plate number.
23
commerce directly in the Southern District of New York, where defendant Davis
reasonably could have foreseen that the robbery target dealt the drugs and earned the drug
proceeds that were the object of the robbery; and (2) after Davis had already taken a
substantial step toward committing the attempted Elmont robbery only to have his plans
stalled by the failure of confederates to appear on the scene, Davis used a telephone to
reach into the Southern District of New York to procure the immediate assistance
necessary to allow the crime to go forward.
For this reason and those stated in the related summary order filed today, the
judgments of conviction entered against Davis and Gunn are AFFIRMED.
24