19-189-cr
United States v. Griffin

                             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 ASUMMARY 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 30th day of April, two thousand twenty.

         PRESENT: GUIDO CALABRESI,
                          RICHARD C. WESLEY,
                          RICHARD J. SULLIVAN,
                                  Circuit Judges.
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         UNITED STATES OF AMERICA,

                           Appellee,

                    v.                                                        No. 19-189-cr

         JUNIOR GRIFFIN,

                           Defendant-Appellant,


         MARC BENVENUTTI, VERDELL PICKNEY,
         AKA VERDELL DAVIS, AKA V-12, PAUL GIST,
         AKA PEEWEE, AKA SWEET PEA, ROBERT GIST,
AKA G-BABY, CICERO WILLIAMS, AKA TUBES,
JOSEPH ENCARNACION, AKA CABEZA,
KELVIN POLANCO, AKA PSYCHO, AKA FRESH,
JABARI ADAMS, AKA FLEA, AKA BARI, BRANDON
SMITH, AKA SKILLZ, JOSEPH RIVERA, AKA JOJO,
CYNTHIA WOODS, AKA BROOKLYN, KEITH
NESBITT, AKA BALDY, GREGORY HERNANDEZ,
AKA KANE, EDUARDO ROSA, AKA LIL BRO ED,
LUIS CABAN, AKA JAY, DANIEL RENVIL, AMANDA
LOPEZ, MADELINE OLIVARES, LANCE WRIGHT,
KENNETH LACEN, AKA MONTANA, JONATHAN
PEREZ, MALIK ABDUL,

        Defendants.

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FOR APPELLANT:                                            JAMES E. NEUMAN, Law Office
                                                          of James E. Neuman, New
                                                          York, NY.

FOR APPELLEE:                                             DANIELLE R. SASSOON,
                                                          Assistant United States
                                                          Attorney (Michael K. Krouse,
                                                          Jacob Warren, Won S. Shin,
                                                          Assistant United States
                                                          Attorneys, on the brief), for
                                                          Geoffrey S. Berman, United
                                                          States Attorney for the
                                                          Southern District of New York,
                                                          New York, NY.




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      Appeal from a judgment of the United States District Court for the

Southern District of New York (Gregory H. Woods, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Junior Griffin appeals from a judgment of the district court (Woods, J.)

following a jury trial in which Griffin was convicted of one count of conspiracy to

distribute or possess with intent to distribute 280 grams or more of cocaine base

and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846, and one count of

distribution or possession with intent to distribute a quantity of cocaine in

violation of 21 U.S.C. § 841(b)(1)(C). On appeal, Griffin argues that the district

court erred in denying his motion to sever Counts One and Two under Federal

Rules of Criminal Procedure 8(a) and 14(a), and in excluding certain recorded

communications under Federal Rule of Evidence 807’s residual hearsay exception.

We assume the parties’ familiarity with the underlying facts and the record of

prior proceedings, to which we refer only as necessary to explain our decision to

affirm.


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   1. Severance of Counts

      “We review the District Court’s denial of a Rule 8(a) motion to sever counts

de novo, and conduct a twofold inquiry:       whether joinder of the counts was

proper, and if not, whether misjoinder was prejudicial to the defendant.” United

States v. Litwok, 678 F.3d 208, 216 (2d Cir. 2012) (internal quotation marks and

citations omitted). As relevant here, joinder under Rule 8(a) is appropriate where

counts “are of the same or similar character.” Fed. R. Crim. P. 8(a). “‘Similar’

charges include those that are ‘somewhat alike,’ or those ‘having a general

likeness’ to each other.” United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008).

We find no error in joining the two counts at issue here. Counts One and Two

are clearly “somewhat alike,” as they both involved the sale and purchase of the

same narcotic, in the same city, within the same approximately one-year period.

Id. Although the counts involved sales to different individuals, and Count One

charges a conspiracy while Count Two charges a single substantive sale, they share

a “general likeness,” making joinder appropriate. Id.

      Notwithstanding proper joinder, a court may sever counts to prevent

prejudice to a party pursuant to Rule 14. “The denial of a motion to sever under


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Rule 14 is reviewed for abuse of discretion.” United States v. Sampson, 385 F.3d

183, 190 (2d Cir. 2004).    To succeed on appeal, Griffin must demonstrate that

joinder caused “substantial prejudice in the form of a miscarriage of justice.”

United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (internal quotation marks

omitted).    Griffin cannot show such prejudice.           Notably, evidence of the

substantive sale would likely have been admissible in a separate trial for Count

One – and similarly, evidence of his participation in the narcotics conspiracy

would likely have been admissible in a separate trial for Count Two – under

Federal Rule of Evidence 404(b) as evidence of intent, knowledge, or opportunity.

See, e.g., United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (finding that where

the government was required to prove that defendants “knowingly or

intentionally conspired to distribute [a narcotic], or to possess it with intent to

distribute,” “the intent or knowledge of [defendants] were clearly at issue, and

evidence of their involvement in prior narcotics transactions was probative of their

intent or knowledge in connection with the crime charged”); see also United States

v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (noting that under the Second

Circuit’s “inclusionary approach,” evidence of other crimes or acts “is admissible


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for any purpose other than to show a defendant’s criminal propensity” (internal

quotation marks omitted)).      Given the likelihood of admissibility, the district

court’s limiting instructions to the jury to consider the counts separately, and the

fact that the court adjourned the trial by a week to enable Griffin to prepare for the

added count, we cannot say that the district court abused its discretion in denying

the Rule 14 motion.

   2. Exclusion of Recordings

      At trial, the government introduced text messages and calls between Griffin

and his co-conspirator, Jonathan Perez, to establish that Griffin supplied cocaine

to Perez as part of the conspiracy charged in Count One. Griffin unsuccessfully

sought to introduce additional call recordings and text messages between Perez

and other suppliers in order to rebut the government’s position that Griffin had

supplied Perez with cocaine on specific occasions. On appeal, Griffin challenges

the district court’s exclusion of the evidence as inadmissible hearsay, arguing that

the communications should have been admitted under Federal Rule of Evidence

807, the so-called “residual” exception to the rule against hearsay. We review the




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district court’s evidentiary ruling for abuse of discretion subject to harmless error

analysis. United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001).

      “To be admissible pursuant to the residual exception, the evidence must

fulfill five requirements: trustworthiness, materiality, probative importance, the

interests of justice[,] and notice.” Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d

Cir. 1991). “Congress intended that the residual hearsay exceptions will be used

very rarely, and only in exceptional circumstances.”           Id. (internal quotation

marks omitted).       We find no abuse of discretion in the district court’s

determination that Rule 807’s requirements were not met, including but not

limited to its findings that Griffin failed to satisfy the notice and probative

importance requirements. Since Griffin first requested to introduce the evidence

after the court impaneled the jury and after the government had prepared and

provided its exhibits for trial, the district court reasonably found that Griffin failed

to give sufficient notice to the government of his intent to admit the evidence.

The court also had reason to conclude that Griffin lacked good cause for the delay,

given the extended discovery period and additional time Griffin was afforded to

prepare the case. Nor did the district court abuse its discretion in finding that the


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evidence was not more probative on the point for which it was offered than other

evidence the defense might have introduced. Because Griffin did not establish

that all five requirements were met, the court permissibly excluded the evidence

under Rule 807.

      We have considered Griffin’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the judgment of the District Court

is AFFIRMED.

                                     FOR THE COURT:
                                     Catherine O=Hagan Wolfe, Clerk of Court




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