United States v. McKenzie

09-5179-cr
United States v. McKenzie
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of April, two thousand eleven.
Present:
ROBERT D. SACK,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 09-5179-cr
TROY McKENZIE,
Defendant-Appellant.
________________________________________________
FOR APPELLANT: MATTHEW M. ROBINSON, ESQ., Covington, KY.
FOR APPELLEE: JAMES D. GATTA, Assistant United States Attorney (Peter A.
Norling, Assistant United States Attorney, of counsel), for Loretta
E. Lynch, United States Attorney, Eastern District of New York.
________________________________________________
Appeal from the United States District Court for the Eastern District of New York
(Trager, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,
and DECREED that the judgment of the District Court be and hereby is AFFIRMED.
Defendant-Appellant Troy McKenzie appeals from a judgment entered by the district
court (Trager, J.), convicting him, following a jury trial, of one count of conspiracy to possess
with intent to distribute marijuana under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(vii), and
one count of attempted possession with intent to distribute five kilograms or more of cocaine
under 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II), and sentencing him in principal part to 120
months’ imprisonment on each count, to run concurrently. McKenzie moved below under Fed.
R. Crim. P. 29 for acquittal on both counts, alleging insufficient evidence, but the district court
denied his motion. McKenzie challenges that determination on appeal as well as the district
court’s finding that he was ineligible for the “safety valve” under 18 U.S.C. § 3553(f). We
assume the parties’ familiarity with the underlying facts and the procedural history of the case.
I. The Sufficiency Challenge
“While we review de novo the denial of a Rule 29 sufficiency challenge, we apply the
same deferential standard as the district court in assessing the trial evidence, i.e., we view that
evidence in the light most favorable to the government, assuming that the jury resolved all
questions of witness credibility and competing inferences in favor of the prosecution.” United
States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010) (internal citations omitted); see also
United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998) (“We defer to the jury’s determination
of the weight of the evidence and the credibility of the witnesses, and to the jury’s choice of
competing inferences that can be drawn from the evidence.”). We have thus held that a
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defendant challenging the sufficiency of the evidence “bears a very heavy burden,” United States
v. Desena, 287 F.3d 170, 177 (2d Cir. 2002), because we must uphold the verdict provided that
“‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt,’” United States v. Stewart, 590 F.3d 93, 109 (2d Cir. 2009) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson)).
McKenzie asserts that the evidence in support of Count One—conspiracy to possess with
intent to distribute 1,000 kilograms or more of marijuana—was insufficient because the
Government showed only that he gave money to “Mr. Respect,” that this money was later
transported to Texas, and that he was present during a conversation between “Mr. Respect” and
“6-0” about missing marijuana. He maintains that these acts do not establish his knowing
participation in a conspiracy. We disagree.
McKenzie fails to acknowledge all of cooperating witness Robert McCleary’s
incriminating testimony, upon which a rational trier of fact could have concluded that: (1)
McKenzie counted out a sum of money on an electric currency counting machine and placed that
money in a locked traveling bag for transport to Texas as payment for a marijuana shipment; (2)
McCleary overheard McKenzie reference the missing marijuana in a conversation with “6-0”
and “Mr. Respect”; and (3) McKenzie met McCleary at the construction yard in Ridgewood and
took possession of the marijuana shipment. We have no difficulty concluding that these facts, as
well as McCleary’s other testimony concerning the scope and operation of the drug trafficking
organization, constitute ample evidence upon which the jury could reasonably conclude that
McKenzie was aware of the conspiracy to distribute marijuana, and that he knowingly joined and
participated in that conspiracy. See United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004)
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(“To sustain a conspiracy conviction, the government must present some evidence from which it
can reasonably be inferred that the person charged with conspiracy knew of the existence of the
scheme alleged in the indictment and knowingly joined and participated in it.”) (internal
quotations omitted).
McKenzie also contends that the evidence in support of Count Three—attempted
possession with intent to distribute five kilograms or more of cocaine—was insufficient because
he was unaware that McCleary’s November 29, 2004 shipment contained cocaine, he never
attempted to actually possess the cocaine, and his role was limited to providing McCleary with
driving directions to the construction yard. As with Count One, however, McKenzie fails to give
consideration to all of the evidence in the record.
“In order to establish that a defendant is guilty of an attempt to commit a crime, the
government must prove that the defendant had the intent to commit the crime and engaged in
conduct amounting to a ‘substantial step’ towards the commission of the crime.” United States
v. Brand, 467 F.3d 179, 202 (2d Cir. 2002) (some internal quotation marks omitted); accord
United States v. Martinez, 775 F.3d 31, 35 (2d Cir. 1985); see also United States v. Manley, 632
F.2d 978, 987-88 (2d Cir. 1980) (“In order for behavior to be punishable as an attempt, it need
not be incompatible with innocence, yet it must be necessary to the consummation of the crime
and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a
reasonable doubt that it was undertaken in accordance with a design to violate the statute.”).
Viewed in a light most favorable to the Government, the evidence at trial showed that in October
2004, McCleary transported a shipment of cocaine from Texas to Georgia, for which he was
initially paid $15,000. When McCleary did not receive the balance of his payment, he called
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McKenzie, who personally delivered the remaining $35,000. It further established that on
November 29, 2004, McCleary (who was by then cooperating with the Government) called
McKenzie, feigning that he was on route to New York City with a shipment, and McKenzie gave
McCleary turn-by-turn directions to a construction yard in Ridgewood, New York, where
McCleary had previously delivered a shipment of marijuana. During their telephone
conversation on November 29, which was recorded, McKenzie made repeated references to the
fact that McCleary should “remember” where he was going. Eventually, McKenzie offered to
lead McCleary to the construction yard. McKenzie was arrested that same day at the
construction yard, at which time his telephone was ringing with a call from Clacon James, a co-
defendant, who was himself arrested near the construction yard later that day.
We find this evidence sufficient to support a conviction on Count Three. McKenzie’s
comments that McCleary should “remember” how to navigate to the construction yard constitute
circumstantial evidence that McKenzie knew that McCleary was transporting a controlled
substance since the only other time McCleary went to the yard was to deliver drugs, and
McKenzie knew about that prior shipment because on that occasion, he met McCleary at the
yard and took possession of the marijuana. The jury could reasonably have inferred that
McKenzie gave directions to McCleary with the intent that he deliver the shipment to the yard,
where McKenzie could claim possession. See United States v. MacPherson, 424 F.3d 183, 189
(2d Cir. 2005) (“[K]nowledge and intent can often be proved through circumstantial evidence
and the reasonable inferences drawn therefrom.”). Indeed, that McKenzie went to the
construction yard later that day undermines his contention that he only gave directions to
McCleary as a favor for James. McKenzie’s actions on November 29 must also be considered in
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view of McCleary’s testimony concerning the scope and operations of the drug organization,
since the jury received evidence that McKenzie had previously paid McCleary for a prior
cocaine shipment and had assisted James with the marijuana shipments. A rational trier of fact
could have relied on this evidence to infer that McKenzie intended to possess the cocaine
shipment on November 29, and by giving directions to McCleary and showing up at the
construction yard, McKenzie took substantial steps in furtherance of that objective. Finally, to
the extent McKenzie argues that he could not be convicted on Count Three because he was
unaware that the shipment contained cocaine, this is unavailing. Where a defendant is charged
under 21 U.S.C. § 846 for violating 21 U.S.C. § 841, it is irrelevant whether the defendant had
actual knowledge of the type or quantity of drug involved so long as he directly participated in
the drug transaction. See United States v. Andino, 627 F.3d 41, 47 (2d Cir. 2010).
II. “Safety Valve”
“We review a sentencing court’s factual findings for clear error, but review the court’s
interpretation of the safety valve provisions de novo.” United States v. Ortiz, 136 F.3d 882, 883
(2d Cir. 1997); see United States v. Nuzzo, 385 F.3d 109, 118 (2d Cir. 2004) (“We acknowledge
that the plain language of the statute [18 U.S.C. § 3553(f)] requires the district court to make its
own determination whether [a defendant] satisfied the safety-valve provision, and that we owe a
district court deference with respect to factual findings, especially those based on witness
credibility.”) (internal quotation marks omitted) (alterations in original). Section 3553(f) of Title
18, which is incorporated under U.S.S.G. § 5C1.2, provides in relevant part that to be eligible for
the “safety valve,” a defendant must have
[N]ot later than the time of the sentencing hearing, . . . truthfully provided
to the Government all information and evidence the defendant has
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concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan, but the fact that the defendant
has no relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude a
determination by the court that the defendant has complied with this
requirement.
“[T]he plain language of the ‘safety valve’ places the burden on the defendant to provide truthful
information to the government.” United States v. Gambino, 106 F.3d 1105, 1110 (2d Cir. 1997);
see id. (“[T]he defendant [must] . . . prove to the court that he has provided the requisite
information if he is to receive the benefit of the statute.”) (emphasis in original); see also United
States v. Jimenez, 451 F.3d 97, 102-03 (2d Cir. 2006). We find no error with the district court’s
denial of the safety valve. McKenzie failed to address a number of incriminating facts during his
proffer session and the subsequent hearing, and his explanations for certain discrepancies
between his testimony and the record evidence were not entirely plausible. Viewing the record
as a whole, therefore, and bearing in mind the deference we must give to the fact finder on the
issue of witness credibility, it was not clear error for the district court to conclude that McKenzie
had not been “completely candid” with the Government.
The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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