United States v. Gonzalez

10-2381 (L)
United States v. Gonzalez
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of October, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-2381(L)
18 10-2945(Con)
19 ROBERT ANTHONY GONZALEZ, MARK FRANCO,
20
21 Defendants,
22
23 RASHEEM RICHARDSON, KHALIL WILLIAMS,
24
25 Defendants-Appellants.
26
27 - - - - - - - - - - - - - - - - - - - -X
1
1
2 FOR APPELLANT RASHEEM RICHARDSON:
3 Louis R. Aidala
4 New York, NY
5
6 FOR APPELLANT KHALIL WILLIAMS:
7 Bridget M. Rohde,
8 Mintz Levin Cohn Ferris Glovsky
9 and Popeo P.C.
10 New York, NY
11
12 FOR APPELLEE:
13 Jillian B. Berman (Marissa Molé,
14 Michael D. Maimin, on the
15 brief), Assistant United States
16 Attorney, for Preet Bharara,
17 United States Attorney,
18 Southern District of New York,
19 New York, NY
20
21
22 Appeal from judgments of the United States District
23 Court for the Southern District of New York (Jones, J.).
24
25 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
26 AND DECREED that the district court’s judgments are
27 AFFIRMED.
28
29 Rasheem Richardson and Khalil Williams appeal from
30 judgments entered in the United States District Court for
31 the Southern District of New York convicting them, following
32 a jury trial, of conspiring and attempting to commit a Hobbs
33 Act robbery and of using, carrying, and possessing a firearm
34 during and in relation to, and in furtherance of, the
35 robbery conspiracy. Williams was also convicted of unlawful
36 possession of a firearm after having been convicted of a
37 felony. We assume the parties’ familiarity with the
38 underlying facts, the procedural history, and the issues
39 presented for review.
40
41 [1] The defendants challenge the denial of their motion to
42 suppress physical evidence obtained as a result of their
43 allegedly unlawful arrests and the subsequent search of the
44 car (a Honda Accord) in which they were found by police. We
2
1 review a district court’s ruling on a motion to suppress for
2 clear error as to factual findings, viewing the evidence in
3 the light most favorable to the government, and de novo as
4 to questions of law. United States v. Brown, 52 F.3d 415,
5 420 (2d Cir. 1995).
6
7 A warrantless arrest is permissible under the Fourth
8 Amendment if “the police have probable cause when the
9 defendant is put under arrest to believe that an offense has
10 been or is being committed.” United States v. Cruz, 834
11 F.2d 47, 50 (2d Cir. 1987). Probable cause exists if “the
12 facts and circumstances within their [the officers’]
13 knowledge and of which they had reasonably trustworthy
14 information [are] sufficient in themselves to warrant a man
15 of reasonable caution in the belief that an offense has been
16 or is being committed.” Id. (alterations in original)
17 (quoting Brinegar v. United States, 338 U.S. 160, 175-76
18 (1949)) (internal quotation marks omitted). A readily
19 mobile automobile may be searched without first obtaining a
20 warrant provided that there is probable cause to believe
21 that the vehicle contains contraband or other evidence of a
22 crime. See United States v. Gaskin, 364 F.3d 438, 456 (2d
23 Cir. 2004). Probable cause in this context “does not demand
24 certainty but only a ‘fair probability’ that contraband or
25 evidence of a crime will be found.” Id. at 457 (quoting
26 Illinois v. Gates, 462 U.S. 213, 238 (1983)). In addition,
27 an automobile may be searched incident to the arrest of an
28 occupant even after the arrestee has been secured and cannot
29 access the interior of the vehicle as long as “it is
30 reasonable to believe that evidence of the offense of arrest
31 might be found in the vehicle.” Arizona v. Gant, 129 S. Ct.
32 1710, 1714 (2009).
33
34 Both the defendants’ arrests as well as the search of
35 the car were supported by probable cause. The police relied
36 on a tip from a confidential informant, who had provided
37 reliable information in the past, that multiple armed men in
38 a dark colored car were planning to rob Media Plaza, an
39 electronics store, on the night defendants were arrested
40 nearby (or on the following night). See Gates, 462 U.S. at
41 230 (holding that an informant’s “veracity, reliability and
42 basis of knowledge” are relevant to a determination of
43 whether a tip establishes probable cause under a totality-
44 of-the-circumstances analysis (internal quotation marks
3
1 omitted)). The defendants argue that the informant had
2 never provided information regarding a robbery, but that is
3 plainly irrelevant to his veracity or reliability. The
4 informant had provided information about violent and non-
5 violent crimes that contributed to the convictions of more
6 than twenty people. An informant need not have provided
7 tips in factually identical cases to demonstrate
8 reliability. The reliability of the tip is also not
9 impaired by the informant’s failure to indicate his source
10 of information. See Draper v. United States, 358 U.S. 307,
11 309-12 (1959) (finding probable cause to arrest the
12 defendant based on a tip that he would be returning to
13 Chicago carrying drugs where the informant did not explain
14 his basis of knowledge but had previously provided reliable
15 information and the police corroborated the informant’s
16 description of the defendant’s clothes, the color of the bag
17 he would be carrying, his physical appearance, and his
18 gait). Moreover, before arresting the defendants, the
19 police independently corroborated a number of the elements
20 of the informant’s tip: They identified the dark gray Honda;
21 co-defendant Robert Anthony Gonzalez came out of the back
22 seat, indicating that there was at least one other person in
23 the car; and the car was parked across the street from Media
24 Plaza on one of the two nights the robbery was predicted to
25 take place.
26
27 The observations of the police during their
28 surveillance of Media Plaza reinforced the reasonableness of
29 their belief that the car contained evidence of a crime and
30 that the defendants were engaged in criminal activity.
31 Gonzalez was observed walking near Media Plaza and peering
32 at the store; such behavior is consistent with casing Media
33 Plaza in anticipation of robbing it. The Honda moved from
34 one parking space to another that was closer to the store, a
35 maneuver suggesting that the defendants may have been
36 preparing to rob Media Plaza, and sought proximity to
37 facilitate a quicker entry and exit. When Gonzalez made eye
38 contact with Detective John Badyna, who was crouched in the
39 driver’s seat of an unmarked police car, Gonzalez
40 immediately changed directions and walked away from the
41 police car. “Headlong flight . . . is the consummate act of
42 evasion: It is not necessarily indicative of wrongdoing, but
43 it is certainly suggestive of such.” Illinois v. Wardlow,
44 528 U.S. 119, 124 (2000). Gonzalez was also wearing latex
4
1 gloves, and Detective Badyna noticed that his hands looked
2 “rubber-like.” Given the informant’s tip that multiple
3 armed men were planning to rob Media Plaza that night, it
4 was reasonable for the police to infer a common enterprise
5 among Gonzalez and the unidentified persons remaining in the
6 Honda (including defendants Richardson and Williams). Based
7 on Gonzalez’s behavior at the scene of the suspected
8 robbery, the tip from an informant with a history of
9 providing accurate information to the police (and
10 corroboration by the police of significant aspects of that
11 tip), and the apparent connection between Gonzalez and the
12 occupants of the car, there was probable cause to believe
13 that defendants Richardson and Williams were in the process
14 of attempting to rob Media Plaza and, therefore, to arrest
15 them.
16
17 The same information that established probable cause to
18 arrest the defendants also established probable cause to
19 believe that the Honda contained evidence of the planned
20 robbery. In particular, there was a fair probability that
21 the firearms that the informant’s tip suggested would be
22 used in the robbery might be found in the car along with the
23 other robbers (especially since no gun was found on
24 Gonzalez). Because both the defendants’ arrests and the
25 subsequent search of the car were supported by probable
26 cause, the district court did not err in denying defendants’
27 motion to suppress.
28
29 [2] The defendants challenge their convictions under 18
30 U.S.C. § 924(c) on sufficiency grounds. We review de novo a
31 sufficiency challenge and “‘affirm if the evidence, when
32 viewed in its totality and in the light most favorable to
33 the government, would permit any rational jury to find the
34 essential elements of the crime beyond a reasonable doubt.’”
35 United States v. Yannotti, 541 F.3d 112, 120 (2d Cir. 2008)
36 (quoting United States v. Geibel, 369 F.3d 682, 689 (2d Cir.
37 2004)).
38
39 Section 924(c) provides for an additional term of
40 imprisonment for “any person who, during and in relation to
41 any crime of violence or drug trafficking crime . . . uses
42 or carries a firearm, or who, in furtherance of any such
43 crime, possesses a firearm . . . .” 18 U.S.C. §
44 924(c)(1)(A). The district court instructed the jury on
5
1 three theories of liability: direct or constructive
2 possession, aiding and abetting liability, and liability
3 under a Pinkerton theory. Because the evidence was
4 sufficient to convict the defendants on a Pinkerton theory,
5 we affirm on that basis. See United States v. Masotto, 73
6 F.3d 1233, 1241 (2d Cir. 1996).
7
8 Under the Pinkerton doctrine, “a conspirator ‘can be
9 held responsible for the substantive crimes committed by his
10 co-conspirators to the extent those offenses were reasonably
11 foreseeable consequences of acts furthering the unlawful
12 agreement, even if he did not himself participate in the
13 substantive crimes.’” United States v. Romero, 897 F.2d 47,
14 51 (2d Cir. 1990) (quoting United States v. Bruno, 873 F.2d
15 555, 560 (2d Cir. 1989)). The evidence introduced at trial
16 was sufficient for a rational jury to conclude beyond a
17 reasonable doubt that: (1) Williams and Richardson entered
18 into a Hobbs Act conspiracy with co-defendants Mark Franco
19 and Gonzalez to rob Media Plaza, (2) the agreement
20 contemplated the use of two armed shooters, and (3) Franco
21 possessed a .45-caliber pistol to be used in the robbery,
22 which he concealed under the floor mat of the driver’s side
23 of the Honda. Franco’s possession of the gun to be used in
24 the robbery was thus both in furtherance of the robbery
25 conspiracy and entirely foreseeable; there was therefore
26 sufficient evidence to convict defendants Williams and
27 Richardson of Franco’s substantive Section 924(c) offense.1
28
29 [3] Richardson also argues that there was insufficient
30 evidence of attempted robbery. To be guilty of attempt, a
31 defendant must have (1) intended to commit the crime and (2)
32 “engaged in conduct amounting to a ‘substantial step’
33 towards the commission of the crime.” United States v.
34 Martinez, 775 F.2d 31, 35 (2d Cir. 1985). A substantial
35 step requires “something more than mere preparation, yet may
1
Because Richardson’s argument concerning the
duplicitousness of Count Three of the indictment has been
waived, we do not consider it. See Fed. R. Crim. P.
12(b)(3)(B) (a motion alleging a defect in the indictment
must be raised before trial); United States v. Berardi, 629
F.2d 723, 729 (2d Cir. 1980) (an objection that an
indictment is duplicitous is “generally deemed to be waived
if not properly raised before trial”).
6
1 be less than the last act necessary before the actual
2 commission of the substantive crime.” Id. (quoting United
3 States v. Manley, 632 F.2d 978, 987-88 (2d Cir. 1980)). The
4 trial evidence, including Franco’s testimony and the
5 physical evidence obtained at the crime scene, established
6 that at the time they were arrested the defendants (1)
7 intended to rob Media Plaza, (2) were in possession of the
8 tools necessary to do so (including guns, latex gloves, duct
9 tape, and ski masks), and (3) had arrived at the scene of
10 the planned robbery. The evidence also showed that the
11 defendants and their co-conspirators had cased Media Plaza;
12 indeed, by the time the defendants were arrested Gonzalez
13 had exited the car twice to scope out the area. Moreover,
14 Gonzalez had already put on latex gloves, from which the
15 jury could reasonably infer that the robbery was imminent.
16 Defendants’ reconnoitering at the scene of the contemplated
17 crime while in possession of paraphernalia which, under the
18 circumstances, could serve no lawful purpose (including a
19 real firearm, a starter pistol, and ski masks) constitutes a
20 substantial step, and amply corroborates their criminal
21 purpose. See United States v. Jackson, 560 F.2d 112, 120-21
22 (2d Cir. 1977). Therefore, the evidence was sufficient to
23 convict the defendants of attempted robbery.
24
25 [4] Richardson also challenges the sufficiency of the
26 evidence of the requisite effect on interstate commerce to
27 sustain defendants’ Hobbs Act convictions. “In a Hobbs Act
28 prosecution, proof that ‘commerce [wa]s affected is critical
29 since the Federal Government’s jurisdiction of this crime
30 rests only on that inference.’” United States v. Elias, 285
31 F.3d 183, 188 (2d Cir. 2002) (alteration in
32 original)(quoting Stirone v. United States, 361 U.S. 212,
33 218 (1960)). “At the same time, it is well established that
34 the burden of proving a nexus to interstate commerce is
35 minimal” and a “very slight effect on interstate commerce”
36 is sufficient. Id. The interstate commerce element of a
37 Hobbs Act offense is satisfied if the robbery involves a
38 store or business that sells products that are produced in
39 another state or country. See id. at 188-89; United States
40 v. Mapp, 170 F.3d 328, 336 n.13 (2d Cir. 1999).
41
42 The government called several witnesses at trial who
43 testified that they had seen Samsung and Sharp televisions
44 for sale at Media Plaza, including Franco who testified that
7
1 he had seen a Sharp Aquos television, which he intended to
2 steal, shortly before the arrest. The defendants stipulated
3 to the fact that neither brand of television had ever been
4 manufactured in New York. Richardson’s argument that the
5 Sharp and Samsung televisions sold by Media Plaza may have
6 been counterfeits is sheer speculation. The jury could
7 reasonably infer that Media Plaza stocked foreign-made
8 televisions during the period in question. Viewing the
9 evidence in the light most favorable to the government,
10 there was sufficient evidence of the necessary de minimis
11 effect on interstate commerce to sustain the defendants’
12 Hobbs Act convictions.
13
14 [5] Finally, Williams argues that the district court failed
15 to provide an adequate jury instruction on the need to
16 corroborate Franco’s testimony as an accomplice and
17 cooperating witness. A challenge to jury instructions is
18 reviewed de novo and we reverse only where all the
19 instructions, taken as a whole, prejudiced the defendant.
20 United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998).
21 Where, as here, a defendant fails to object to the district
22 court’s jury instructions at trial, those instructions are
23 reviewed for plain error. United States v. Middlemiss, 217
24 F.3d 112, 121 (2d Cir. 2000).
25
26 In instructing a jury as to the possible motivations of
27 a cooperating witness, “district courts need only fairly put
28 the issue of a cooperating witness’s possible motivations to
29 the jury for its consideration and need not over-emphasize
30 the obvious--that cooperators may have an interest in
31 currying favor with the prosecutor that could affect the
32 substance of their testimony.” United States v. Vaughn, 430
33 F.3d 518, 523-24 (2d Cir. 2005). “As long as district
34 courts intelligibly identify a cooperating witness’s
35 possible motivations for the jury’s consideration, the
36 cautionary charge given to the jury regarding a cooperating
37 witness’s testimony is sufficient.” Id.
38
39 The district court instructed the jury to scrutinize
40 the testimony of each witness, to consider whether the
41 witness has a relationship with the government that might
42 affect his or her testimony, and to particularly scrutinize
43 the testimony of cooperating witnesses. This was sufficient
44 to flag Franco’s possible motivations for the jury’s
8
1 consideration. Moreover, the defendants challenged Franco’s
2 credibility on cross examination and during summations. So
3 the defendants cannot show that any alleged inadequacies in
4 the jury instruction “affected [their] substantial rights”
5 as they must to prove plain error. United States v. Marcus,
6 130 S. Ct. 2159, 2164 (2010); see also United States v.
7 Velez, 652 F.2d 258, 261 n.5 (2d Cir. 1981) (noting that the
8 district court’s failure to charge the jury regarding the
9 credibility of a cooperating witness was not prejudicial
10 because “defense counsel forcefully argued [the witness’s]
11 lack of credibility in his summation”).
12
13 We have considered the defendants’ remaining arguments
14 and find them to be without merit. For the foregoing
15 reasons, the judgments of the district court are hereby
16 AFFIRMED.
17
18
19
20 FOR THE COURT:
21 CATHERINE O’HAGAN WOLFE, CLERK
22
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24
25
9