08-3064-cr(L)
USA v. McTier

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference
to that database and the docket number of the case in which the order was entered.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of December, two thousand and nine.

PRESENT:

          ROGER J. MINER ,
          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
                 Circuit Judges.

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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               Nos. 08-3064-cr(L), 08-3654-
                                                                                           cr(CON), 08-3865-cr(CON), 08-
                                                                                           3876-cr(CON)

JOSE NIEVES, also known as JULIO , JOSIAH MC TIER, also
known as JO , GARETH VIALVE , also known as VOLVO ,

                               Defendants,

JAMES MC TIER, also known as JD, TRAVIS SCOTT, also known
as DIRTY TRAVIS, SHARIEF RUSSELL, also known as LUCKY ,
DWAYNE STONE , also known as DIVINE ,

                               Defendants-Appellants.

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FOR APPELLANTS:                                 Adam D. Perlmutter, New York, NY, for defendant-
                                                appellant James McTier.

                                                Arza Feldman, Feldman & Feldman, Uniondale, NY, for
                                                defendant-appellant Sharief Russell.

                                                JONATHAN SVETKEY , Watters & Svetky, LLP, New
                                                York, NY, for defendant-appellant Dwayne Stone.

FOR APPELLEE:                                   JASON A. JONES, Assistant United States Attorney
                                                (Benton J. Campbell, United States Attorney, and Peter
                                                A. Norling and Jeffrey H. Knox, Assistant United States
                                                Attorneys, on the brief), United States Attorney’s Office
                                                for the Eastern District of New York, Brooklyn, NY.

        Appeal from judgments of conviction of the United States District Court for the Eastern
District of New York (I. Leo Glasser, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of the District Court are AFFIRMED.

          Defendants-appellants James McTier (“McTier”), Sharief Russell (“Russell”), and Dwayne
Stone (“Stone”) appeal from judgments of conviction entered after a jury found defendants guilty of
various charges of murder, racketeering, and drug and weapons possession stemming from defendants’
affiliation with the “Folk Nation” gang, which operated in the Brownsville neighborhood of Brooklyn,
New York. Defendants were convicted and sentenced as follows:

         McTier was convicted of murder in aid of racketeering, attempted murder in aid of
racketeering, conspiracy to commit murder in aid of racketeering and assault in aid of racketeering, see
18 U.S.C. § 1959(a)(1), (3), (5), racketeering and racketeering conspiracy, see id. § 1962, and using and
carrying a firearm during and in relation to a crime of violence, see id. § 924(c). Though McTier was
eligible for the death penalty, the District Court sentenced him principally to life imprisonment.

          Russell was convicted of murder in aid of racketeering, see id. § 1959(a)(1), racketeering and
racketeering conspiracy, see id. § 1962, conspiracy to distribute and to possess with intent to distribute
cocaine base, see 21 U.S.C. §§ 841(a)(1), 846, using and carrying a firearm during and in relation to a
crime of violence and a drug trafficking crime, see 18 U.S.C. § 924(c), and possession of stolen firearms,
see id. § 922(j). The District Court sentenced Russell principally to life imprisonment.

        Stone was convicted of murder and conspiracy to murder in aid of racketeering, see id.
§§ 1959(a)(1), (5), racketeering and racketeering conspiracy, see id. § 1962, using and carrying a firearm
during and in relation to a drug trafficking crime and a crime of violence, see id. § 924(c), conspiracy to



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distribute and to possess with intent to distribute cocaine base, see 21 U.S.C. §§ 841(a)(1), 846, and
possession of stolen firearms, see 18 U.S.C. § 922(j). The District Court sentenced Stone principally to
life imprisonment.

          On appeal, defendants make the following arguments: (1) McTier and Russell argue that the
trial testimony of FBI Agent Jed Salter violated the Confrontation Clause of the Sixth Amendment as
construed by Crawford v. Washington, 541 U.S. 36 (2004); (2) Russell argues that the District Court erred
by dismissing Juror Three and replacing her with the first alternate juror; (3) McTier argues that the
District Court erred by admitting into evidence a taped telephone call between McTier and Lonie
Lewin, an associate of the Folk Nation gang; (4) Russell argues that the District Court erred by denying
his motion to sever under Federal Rule of Criminal Procedure 14; (5) Stone argues that the District
Court erred by denying Stone’s request for a new trial or further inquiry into the jury’s deliberations; (6)
Stone argues that the evidence at trial was insufficient for the jury to convict him on the charge of
murder and conspiracy to murder in aid of racketeering, see 18 U.S.C. § 1959(a)(1), (5); and (7) McTier
and Stone argue that their sentences should be vacated and remanded because the District Court
improperly sentenced them for using a firearm during and in relation to a violent felony or drug
trafficking crime, see United States v. Williams, 558 F.3d 166 (2d Cir. 2009); United States v. Whitley, 529
F.3d 150 (2d Cir. 2008).1

I.      The Alleged Craw fo rd Violation

        McTier and Russell argue that the trial testimony of FBI Agent Jed Salter violated the
Confrontation Clause insofar as Agent Salter testified that he told McTier that “Juma Cain had
confessed twice to the murder of Tabitha Buckman.” There was, however, no Confrontation Clause
violation, as Agent Salter’s statement about Cain’s confessions was not, in fact, admitted into evidence.
Counsel for McTier objected to the statement, and the District Court sustained the objection. Later,
the District Court proposed a limiting instruction admonishing the jury “to disregard the testimony that
June Cain confessed to the murder,” but defense counsel asked the Court not to give the instruction.

        Even if we ultimately concluded, however, that there was a violation of the Confrontation
Clause, any error committed was harmless. See United States v. Lombardozzi, 491 F.3d 61, 76 (2d Cir.
2007) (articulating the harmless error standard). Absent the testimony of Cain’s confessions, the
government’s case with respect to the Buckman homicide was very strong; the challenged testimony


        1
         Each defendant joins in the arguments of his co-defendants to the extent applicable
pursuant to Federal Rule of Appellate Procedure 28(i). Accordingly, while we highlight the
defendant (or defendants) who raises each particular argument herein, we have considered all
arguments as to all three defendants where appropriate.
       In addition, in a supplemental pro se brief, defendant Stone raises a number of additional
arguments, all of which we find meritless.
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was cumulative of other properly admitted evidence; the testimony was not at all important in the
context of the overall trial; and, as detailed above, the conduct of the prosecutor and the District Court
with respect to Agent Salter’s testimony was entirely consistent with trying to remedy any alleged
Confrontation Clause issue. Accordingly, there is no basis for reversing the judgment of conviction on
this issue.

II.     The Dismissal of Juror Three

        Russell argues that the District Court erred by dismissing Juror Three after Juror Three told the
Court that she recognized “Cheddar,” a member of the Folk Nation gang, as a man who participated in
an online chat group of which Juror Three was a member. We review a district court’s decision to
dismiss a juror before jury deliberations for abuse of discretion. See, e.g., United States v. Edwards, 342
F.3d 168, 182-83 (2d Cir. 2003). A district court has abused its discretion if it has (1) “based its ruling
on an erroneous view of the law,” (2) made a “clearly erroneous assessment of the evidence,” or (3)
“rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534
F.3d 117, 132 (2d Cir. 2008) (internal quotation marks omitted).

         The threat of jury tampering loomed over this trial, so much so that the District Court granted
the government’s request, over defendants’ objection, to empanel an anonymous jury.2 Jurors reported
feeling intimidated by spectators in the gallery, and there was an attempt on the part of one of
defendants’ associates to intimidate a witness. When the District Court learned that Juror Three had
some contact with a member of defendants’ gang, it was well within the District Court’s discretion to
conclude that Juror Three’s anonymity was threatened and that there was “reasonable cause” to dismiss
her. United States v. Purdy, 144 F.3d 241, 247 (2d Cir. 1998). In any event, the District Court’s decision
did not cause “‘bias or prejudice to the defendant.’” Id. (quoting United States v. Gambino, 951 F.2d 498,
503 (2d Cir. 1991)). The dismissal of Juror Three was not, therefore, an error meriting vacatur of the
judgment.

III.    The Admission of the Telephone Call Between McTier and Lewin

          McTier argues that the District Court erred by admitting into evidence a taped telephone call
between McTier and Lewin, an associate of the Folk Nation gang. McTier argues that the telephone
call was irrelevant and improperly “bolstered” the credibility of Lewin, who was a cooperating witness
for the government. We review a district court’s evidentiary rulings for abuse of discretion. United
States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009); cf. Sims, 534 F.3d at 132.




        2
       On appeal, defendants do not challenge the District Court’s decision to empanel an
anonymous jury.
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        The admission of the recording of the telephone call was not an abuse of discretion. The
recording was relevant because it provided evidence of McTier’s relationship with Lewin and contained
arguably incriminating statements by McTier. The claim of improper “bolstering” is unfounded, and
the statements were not hearsay because they were either not admitted for the truth of the matter
asserted or were non-hearsay admissions under Federal Rule of Evidence 801(d)(2).

IV.     The Denial of Severance

        Russell argues that the District Court erred by denying his motion for severance under Federal
Rule of Criminal Procedure 14. Because the government sought the death penalty against McTier, but
not Russell, Russell claims that he was subjected to undue prejudice when he was tried by a death-
qualified jury. In addition, Russell maintains that he was subjected to undue prejudice when the jury
heard evidence of violent crimes in which Russell took no part. Those factors, Russell argues, required
the District Court to grant his Rule 14 motion for severance.

         “‘[A] district court should grant a severance under Rule 14 only if there is a serious risk that a
joint trial would compromise a specific trial right of one of the defendants, or prevent a jury from
making a reliable judgment about guilt or innocence.’” United States v. Yousef, 327 F.3d 56, 150 (2d Cir.
2003) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). “There is a preference, in the federal
system, for the joint trial of defendants indicted together, and thus, a district court order denying a Rule
14 motion is considered virtually unreviewable and will be overturned only if a defendant can show
prejudice so severe that his conviction constituted a miscarriage of justice and that the denial of his
motion constituted an abuse of discretion.” Id. at 149-50 (internal quotation marks, alteration, and
citation omitted).

         The District Court did not abuse its discretion in denying severance here. The mere fact that
Russell was tried before a death-qualified jury was not, by itself, a sufficient ground for severance. See
In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 131-32 (2d Cir. 2008) (citing Buchanan v.
Kentucky, 483 U.S. 402 (1987)). To the extent that Russell claims that the jury heard evidence of crimes
in which he did not directly participate, much of the evidence of those crimes was admissible against
Russell because it established the nature and activities of the criminal enterprise—the Folk Nation
gang—of which Russell was charged with being a member. Accordingly, the admission of such
evidence was not grounds for severance. See United States v. Diaz, 176 F.3d 52, 102-04 (2d Cir. 1999).




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V.      The Denial of a New Trial or Further Investigation Following Allegations of Jury
        Misconduct

         Stone argues that the District Court erred by denying Stone’s request for a new trial or further
inquiry into the jury’s deliberations. Following the trial, Juror Eleven had a chance encounter with the
attorney representing Russell in which Juror Eleven expressed his concerns that members of the jury
had access to cell phones and newspapers in the jury deliberation room and had sent cell phone text
messages to alternate jurors during deliberations. The District Court held a hearing and interviewed
Juror Eleven. The hearing clarified that Juror Eleven, who was a court security officer in the state
court system, was unnerved that “things were done here differently than what [he was] used to at [state]
trials.” Although Juror Eleven had heard other jurors discussing cases that the attorneys had previously
tried and that Judge Glasser had previously presided over, Juror Eleven had no other “personal
knowledge of any juror seeking information about the case or the parties.” In particular, Juror Eleven
had heard one juror suggest that a text message be sent to an alternate juror, but Juror Eleven had no
knowledge of whether such a text message was, in fact, sent.

         Stone and Russell moved for a new trial—or, in the alternative, a broader investigation into the
jury’s conduct—based on Juror Eleven’s statements. The District Court denied the motion after
finding that Juror Eleven’s testimony was insufficient “to overcome the presumption of jury
impartiality.”

         “We review the denial of a motion for a new trial for abuse of discretion.” United States v. Greer,
285 F.3d 158, 170 (2d Cir. 2002); cf. Sims, 534 F.3d at 132. “Although we cannot lightly brush aside
allegations of juror misconduct, we recognize that the trial judge has broad discretion to decide
questions involving such misconduct.” United States v. Carmona, 858 F.2d 66, 69 (2d Cir. 1988). We
conclude that the District Court’s denial of the motion for a new trial—and the District Court’s
decision not to conduct further evidentiary hearings into the jury’s deliberations—was, in the
circumstances presented here, well within the range of permissible decisions.

VI.     The Sufficiency of the Evidence for Stone’s Murder-in-Aid-of-Racketeering Conviction

        Stone argues that the evidence at trial was insufficient for the jury to convict him of murder and
conspiracy to murder in aid of racketeering. See 18 U.S.C. § 1959(a)(1), (5). Because “the task of
choosing among competing, permissible inferences is for the [jury and] not for the reviewing court,”
United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001), we are required to review the evidence “in
the light most favorable to the government,” United States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004),
and to “resolve all issues of credibility in favor of the jury’s verdict,” United States v. Desena, 287 F.3d
170, 177 (2d Cir. 2002) (internal quotation marks omitted). See generally Jackson v. Virginia, 443 U.S. 307,
318-19 (1979). After a review of the trial record, we conclude that Stone has not met the “heavy
burden” of demonstrating that the evidence was insufficient for the jury to convict him of murder in
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aid of racketeering. United States v. Walsh, 194 F.3d 37, 51 (2d Cir. 1999) (internal quotation marks
omitted).

VII.    The Convictions for Use of a Firearm Under 18 U.S.C. § 924(c)

        McTier and Stone argue that the District Court improperly sentenced them under 18 U.S.C.
§ 924(c). McTier and Stone did not raise this argument before the District Court, and thus we review
for plain error. “To demonstrate plain error, a defendant must show (1) error, (2) that is plain at the
time of appellate review, and (3) that affects substantial rights. Where these conditions are met, we
have the discretion to notice a forfeited error if (4) it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Quinones, 511 F.3d 289, 316 (2d Cir. 2007).

        Subsection 924(c) provides in relevant part:

        Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by
        any other provision of law, any person who, during and in relation to any crime of
        violence or drug trafficking crime (including a crime of violence or drug trafficking
        crime that provides for an enhanced punishment if committed by the use of a deadly
        or dangerous weapon or device) . . . uses or carries a firearm, or who, in furtherance
        of any such crime, possesses a firearm, shall, in addition to the punishment provided
        for such crime of violence or drug trafficking crime—
                 (i) be sentenced to a term of imprisonment of not less than 5 years;
                 (ii) if the firearm is brandished, be sentenced to a term of imprisonment of
                 not less than 7 years; and
                 (iii) if the firearm is discharged, be sentenced to a term of imprisonment of
                 not less than 10 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added). We have held that the “except” clause of this subsection
“‘means what it literally says’—that the minimum sentences it requires do not apply where ‘a greater
minimum sentence is otherwise provided by . . . any other provision of law.’” Williams, 558 F.3d at 169
(quoting Whitley, 529 F.3d at 153).

         Here, McTier and Stone were convicted on counts of murder in aid of racketeering and
sentenced to life imprisonment—the statutory minimum—on those counts. Also, prior to our
decisions in Williams and Whitley, the District Court sentenced McTier and Stone to additional
“consecutive” terms of imprisonment under 18 U.S.C. § 924(c)(1)(A). The government now concedes
that, under Williams and Whitley, some of the sentences the District Court imposed under § 924(c)(1)(A)
were erroneous because another provision of law provided “‘a greater minimum sentence’”—life
imprisonment—than the sentences called for in § 924(c)(1)(A). Williams, 558 F.3d at 169 (quoting
Whitley, 529 F.3d at 153).
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          Nonetheless, even if some of the sentences imposed under § 924(c)(1)(A) were erroneous, the
errors were harmless in the circumstances here and thus did not affect defendants’ substantial rights.
Because each defendant was sentenced to life imprisonment, the “consecutive” sentences under §
924(c)(1)(A) are “irrelevant to the time [each defendant] will serve in prison, and we can think of no
collateral consequences from such erroneous . . . sentences that would justify vacating them.” United
States v. Rivera, 282 F.3d 74, 78 (2d Cir. 2000). Thus, even though the District Court erred in sentencing
McTier and Stone under § 924(c)(1)(A), we need not vacate the sentences.

                                                *   *   *

       We have carefully considered defendants’ remaining arguments on appeal and find them to be
without merit.

                                           CONCLUSION

       For the reasons set forth above, the judgments of the District Court are AFFIRMED.


                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court

                                               By _______________________________




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