16-3701-cr
U.S. v. Wilson

                        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 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
19th day of June, two thousand eighteen.

Present:
            BARRINGTON D. PARKER
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges,
_____________________________________

UNITED STATES OF AMERICA,

                      Appellee,

                 v.                                                16-3701-cr

JEFFREY DOWDELL, AKA JD, AKA Hov, TASHAWN
ALBERT, AKA Knock out, AKA KO, AKA Dirt,
KYLE DOWDELL, AKA Bleek, QUONTA ALBERT,
AKA Richie, JAMALL HARRIS, AKA Mel, JAMES
HANDFORD, AKA Freak, ZEPHANEEA DOWDELL,
AKA Zeph, LASHAWNDREA JOHNSON, AKA
Country, JAMES HUDSON, AKA Hoodie, DARNYL
APGAR, AKA Pun, GENERAL DAVIS, JR., AKA
Iceberg, WILLIE STRONG, JR., AKA Bourne Grimey,
AKA BG, AKA Willie Strong,

                      Defendants,

DERRICK WILSON, AKA Sonny Black, AKA D-Ellis,


                                                1
                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                        MATTHEW BRISSENDEN, Matthew W. Brissenden, P.C.,
                                                Garden City, NY.*

For Appellee:                                   ALEXANDER P. ROBBINS, Attorney, Appellate Section,
                                                Criminal Division, Department of Justice, Washington,
                                                DC (Steven D. Clymer, Appellate Chief, Northern
                                                District of New York, John P. Cronan, Acting Assistant
                                                Attorney General, Washington, DC, on the brief), for
                                                Grant C. Jaquith, United States Attorney for the
                                                Northern District of New York.

          Appeal from an October 21, 2016 judgment of conviction of the United States District

Court for the Northern District of New York (Suddaby, C.J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Derrick Wilson appeals from an October 21, 2016 judgment of conviction of the United

States District Court for the Northern District of New York (Suddaby, C.J.). Wilson was charged

with one count of conspiracy to possess with intent to sell crack cocaine and heroin and one count

of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a), 846. Wilson was

convicted of both counts after a seven-day jury trial in which he waived his Sixth Amendment

right and represented himself. This appeal followed. Wilson now argues that: his waiver of his

Sixth Amendment right was not voluntary; he was denied an opportunity to present a complete

defense; the district court improperly suggested to the jury several times that it believed Wilson to

be guilty; the government improperly vouched for its witnesses during closing arguments; and the

jury instructions were erroneous. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.


*
    Wilson has also filed supplemental pro se briefing.


                                                      2
1. Background

       In 2013, the Drug Enforcement Agency began investigating Wilson for drug trafficking.

Wilson and eight of his co-conspirators were arrested a year later. Wilson fired his first court-

appointed attorney six months after his arrest. His second and third court-appointed attorneys

withdrew after one month each, both citing the large amount of work the case would involve and

the deterioration of their relationship with Wilson. The fourth, Danielle Neroni, represented

Wilson for eight months before she requested permission to withdraw. She suggested that Wilson

should be represented by Kenneth Moynihan, who had been appointed to represent Wilson in a

state criminal case, and explained that her and Wilson’s relationship had frayed. In a November

2015 hearing, Moynihan told the court that he would be prepared in time for the court’s scheduled

January 11, 2016 trial date. After being warned by the court that the trial had already been delayed

five times and would not be rescheduled again, and that Neroni had already done substantial work

on his case, Wilson affirmed that he wanted to replace Neroni with Moynihan.

       Two months later, at the final pretrial conference, Moynihan informed the court that he

was unprepared for trial and moved for a continuance. The court denied this motion. Wilson then

informed the court on the second day of his trial that he wished to terminate Moynihan and proceed

pro se because he believed that he understood the case better than Moynihan, was “very familiar

with the process of the legal proceeding[s],” and could ask Moynihan for help if he needed any.

Joint App. 421. The court strongly encouraged Wilson to reconsider, but Wilson would not budge.

The court accordingly ruled that Wilson’s waiver of his Sixth Amendment rights was knowing,

voluntary, and intelligent, and permitted him to proceed pro se.

       During the trial, the government introduced evidence showing that it had made several

controlled purchases of crack cocaine from Wilson, and that, when arrested, Wilson was found


                                                 3
with five cell phones, $5,700 in cash, drug paraphernalia, and keys to houses that, when searched,

were found to contain heroin and more drug paraphernalia. Wilson’s former girlfriend testified

that she knew that Wilson sold heroin and crack, and that she helped him bag the heroin. Her sister

also testified that she bagged heroin for Wilson and that Wilson had kept heroin in her home. Six

of Wilson’s alleged co-conspirators — Jeffrey Dowdell, Tashawn Albert, Barbara Hickman,

Zephaneea Dowdell, Darnyl Apgar, and Jamal Harris — attested that he sold heroin and crack.

Finally, the government played recordings of Wilson’s phone calls from jail to his parents, in

which he suggested that the government had sufficient evidence to convict him.

        Wilson’s principal defense at trial was that he sold marijuana, not crack or heroin, and that

the government had fabricated evidence that he sold the latter two as retaliation for a successful

§ 1983 lawsuit that he brought against the Syracuse Police Department in 2006. Wilson was able

to cross-examine law enforcement officers as to whether they fabricated evidence against him, and

to suggest that his alleged co-conspirators were testifying against him in exchange for reduced

prison sentences. The government also cross-examined Wilson about this conspiracy theory. But

the court had ruled in the final pretrial conference that Wilson would be barred from introducing

evidence about the 2006 lawsuit during the trial, so Wilson was not permitted to reference the

lawsuit during his testimony or his cross-examination of government witnesses.1 The court also

ruled that another line of questioning Wilson wanted to pursue — whether one of his co-

conspirators had acquired cocaine from a third party named Melvin Moon Williams — was

irrelevant under Fed. R. Evid. 401.




1
  The court had concluded that, under United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997), any
such evidence would have to be presented as part of a pre-trial motion to dismiss and would have no bearing
on Wilson’s factual innocence.


                                                    4
       Throughout the trial, Wilson repeatedly asked improper questions, bickered with the court

when it ruled adversely to him on evidentiary matters, and accused the court of partiality towards

the government. The court accordingly expressed frustration with him throughout the trial. After

one particularly heated exchange with Wilson, Chief Judge Suddaby told the jury that although he

had been “at times upset . . . as far as improper procedure,” the jury should not be swayed or

influenced by his comments. Joint App. 1495.

       During closing arguments, the government attacked Wilson’s conspiracy theory and

argued that the officers who testified against Wilson had little incentive to perjure themselves to

convict a low-level dealer like Wilson. It also suggested that the officers’ oath to testify truthfully

inherently “means something to decorated law enforcement personnel,” whereas Wilson had

nothing “to lose by testifying falsely” because he was not “worried . . . about an additional charge

of perjury.” Id. at 1782, 1783. Wilson objected to both statements as improper, but the court

overruled his objections.

       Finally, during jury instructions, the court told the jury that it could consider Wilson’s prior

conviction for drug trafficking as evidence both that Wilson acted “knowing and intentionally and

not because of some mistake, accident, or other innocent reasons,” and that Wilson “was the person

who committed the acts charged in this indictment,” based on those acts’ similarity to his previous

criminal conviction. Id. at 1862, 1861. Wilson did not object to these instructions.

       Wilson was convicted of one count of conspiracy to sell crack cocaine and heroin and one

count of possession of heroin with intent to sell, in violation of 21 U.S.C. §§ 841(a) and 846. He

was sentenced to serve 28 years in prison. He filed this appeal, and now argues that (A) his waiver

of his Sixth Amendment rights was not voluntary, (B) the court erred in denying him the ability to

present evidence about his past lawsuit against the Syracuse Police Department and Melvin Moon


                                                  5
Williams’s role as a drug supplier, (C) the court made prejudicial comments against him during

the trial, (D) the government improperly vouched for its witnesses, and (E) the jury instruction

concerning his past conviction was in error.

2. Analysis

       A. Wilson’s Right to Counsel

       Wilson first argues that his waiver of his Sixth Amendment right to counsel was not

voluntary. “A defendant [] has two correlative and mutually exclusive Sixth Amendment rights:

the right to have counsel, on one hand, and the right to refuse counsel and represent himself, on

the other.” United States v. Gerritsen, 571 F.3d 1001, 1007 (9th Cir. 2009). Violation of either

right is a structural error, warranting reversal. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.7

(1984). When a criminal defendant waives his Sixth Amendment right, the trial court must inquire

as to whether the waiver was knowing, intelligent, and voluntary. United States v. Schmidt, 105

F.3d 82, 88 (2d Cir. 1997). We review the district court’s supporting factual findings for clear error

and the validity of the defendant’s choice to represent himself de novo. Id.

       Wilson does not dispute that his waiver was knowing and intelligent. He argues instead

that his waiver was not voluntary because his attorney, by counsel’s own admission, was

insufficiently prepared for trial. See, e.g., Pazden v. Maurer, 424 F.3d 303, 316 (3d Cir. 2005)

(holding that a Sixth Amendment waiver in such circumstances is not truly voluntary). We

disagree. When Wilson waived his Sixth Amendment right, he did not suggest that he was doing

so because he felt coerced. Rather, Wilson insisted that he was ready for trial and assured the court

that he was “very familiar with the process of the legal proceeding[s],” especially if Moynihan

continued to advise him throughout the trial. Joint App. 421. Wilson and the judge had an extensive

colloquy on this subject, during which the court repeatedly encouraged Wilson to reconsider. See


                                                  6
Schmidt, 105 F.3d at 88 (holding that a Sixth Amendment waiver in similar circumstances was

knowing, intelligent, and voluntary). Because Wilson told the district court that he was capable of

adequately representing himself, his case is very different from those in which courts have found

defendants’ waivers to be involuntary. See, e.g., Pazden, 424 F.3d at 316 (holding that waiver was

involuntary because the record contained “statements by [the defendant] explaining the dilemma

he was placed in”).

       Moreover, to the extent that Moynihan was unprepared, Wilson had only himself to blame:

he fired his first lawyer, his next two resigned because their relationship with him deteriorated,

and he replaced the fourth two months before trial, even after the court warned him that his trial

date would not be moved again. To hold that Wilson’s waiver was involuntary in such

circumstances would give future criminal defendants the ability to “disrupt proceedings by

demanding new counsel whenever he differs from his lawyer’s strategic, legal, or ethical

judgments about how to conduct a case.” United States v. Rivernider, 828 F.3d 91, 108 (2d Cir.),

cert. denied sub nom. Ponte v. United States, 137 S. Ct. 456 (2016). In sum, a Sixth Amendment

waiver is not per se involuntary simply because the defendant’s counsel is unprepared when the

defendant is responsible for the counsel’s lack of preparation. Cf. United States v. Hall, 610 F.3d

727, 740 (D.C. Cir. 2010) (holding that a defendant’s Sixth Amendment waiver was voluntary,

even though his counsel was unprepared, because the government was not at fault for the counsel’s

lack of preparation). Accordingly, the district court did not err in concluding that Wilson’s waiver

was voluntary.

       B. Wilson’s Right to Present a Defense

       Second, Wilson argues that the court wrongly prevented him from pursuing two different

lines of cross-examination. Criminal defendants are guaranteed a “meaningful opportunity to


                                                 7
present a complete defense,” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.

Trombetta, 467 U.S. 479, 485 (1984)), but trial courts have a responsibility to exclude irrelevant

evidence, as well as evidence especially likely to cause “unfair prejudice, confus[e] [] the issues,

or . . . mislead the jury,” Holmes v. South Carolina, 547 U.S. 319, 326 (2006). When courts exclude

evidence under Rules 401 and 403, we review their rulings for abuse of discretion. United States

v. Gupta, 747 F.3d 111, 137 (2d Cir. 2014); United States v. Lee, 833 F.3d 56, 73 (2d Cir. 2016).

However, we apply harmless error review when evidence is wrongfully excluded. See Gupta, 747

F.3d at 133. Under this test, “we ask whether we can conclude with fair assurance that the errors

did not substantially influence the jury.” Id. (quoting United States v. Oluwanisola, 605 F.3d 124,

133 (2d Cir. 2010)). To assess this, “we normally consider such factors as (1) the importance of

unrebutted assertions to the government’s case; (2) whether the excluded material was cumulative;

(3) the presence or absence of evidence corroborating or contradicting the government’s case on

the factual questions at issue; (4) the extent to which the defendant was otherwise permitted to

advance the defense; and (5) the overall strength of the prosecution’s case.” Gupta, 747 F.3d at

133–34 (quoting Oluwanisola, 605 F.3d at 134).

       Wilson argues that the district erred when it held during the pretrial conference that Wilson

could not introduce evidence concerning his lawsuit against the Syracuse Police Department.

Evidence of his past lawsuit could have helped him establish motive for his theory that law

enforcement officers had framed him. Wilson is correct that the district court was wrong to exclude

all references to the lawsuit, but we hold that this was harmless error. This excluded evidence was

cumulative: Wilson was able to introduce his retaliation theory during the trial, which is why the

government cross-examined him on the subject. He was also able to suggest during his testimony

and cross-examination of other witnesses that the government pressured his co-conspirators to lie


                                                 8
about his role in the conspiracy. Additionally, the government’s evidence would have been

overwhelming even if Wilson had been able to testify about the lawsuit: Wilson’s former

girlfriend, her sister, six co-conspirators, and multiple law enforcement officers all testified that

Wilson sold heroin and crack, and Wilson admitted in a recorded phone call to his parents that the

government’s case against him was strong enough to convict him.

       He next contends that the court erred in preventing him from asking a co-conspirator

whether he obtained cocaine from a third party named Melvin Moon Williams. The court excluded

this line of questioning as irrelevant under Rule 401. “Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the act.” Id. We conclude that the district court did not abuse

its discretion in ruling that Melvin Moon Williams’s role was not “of consequence” in this trial.

Even if Melvin Moon Williams had supplied some of Wilson’s co-conspirators with cocaine, that

would not disprove that Wilson also supplied them with cocaine and heroin. Accordingly, we hold

that Wilson’s was not denied a “meaningful opportunity to present a complete defense.” Crane,

476 U.S. at 690.

       C. The District Court’s Comments in the Presence of the Jury

       Third, Wilson claims that he was denied a fair trial because Chief Judge Suddaby made

comments to the jury that suggested that he believed Wilson was guilty. See United States v.

Nazzaro, 472 F.2d 302, 312–13 (2d Cir. 1973) (holding that a judge’s biased comments may

deprive a criminal defendant of a fair trial). Such comments amount to reversible error only if “the

jury was so impressed with the judge’s partiality to the prosecution that it became a factor in

determining the defendant’s guilt or whether it appeared clear to the jury that the court believed

the accused is guilty.” United States v. Amiel, 95 F.3d 135, 146 (2d Cir. 1996) (quoting Nazzaro,


                                                 9
472 F.2d at 303) (brackets omitted). We have reviewed the record and conclude that there was no

reversible error. Wilson first objects to the court referring to his questions as “wasting a lot of

time,” Joint App. 669, but the court said this after Wilson had asked a witness repetitive questions

over several hours and ignored the district court’s repeated warnings that he would have to

conclude his questioning eventually. The other purportedly prejudicial comments were made after

Wilson bickered with the court about its evidentiary rulings. See Liteky v. United States, 510 U.S.

540, 555 (1994) (explaining that “judicial rulings alone almost never constitute a valid basis for a

bias or partiality motion”). Finally, Wilson made several disrespectful comments to the judge

throughout the trial and was sufficiently disruptive during the proceedings that at one point he had

to be removed from the courtroom. The court no doubt expressed “impatience, dissatisfaction,

annoyance, and even anger” in response to all of this, but not so much as to “establish[] bias or

partiality.” Id. at 555–56. Wilson thus has not established that “it appeared clear to the jury that

the court believed the accused is guilty.” Amiel, 95 F.3d at 146 (quoting Nazzaro, 472 F.2d at 303)

(brackets omitted).

       D. Prosecutorial Misconduct

       Fourth, Wilson argues that the government improperly vouched for its witnesses during its

summation. “To prevail on this claim, [Wilson] must demonstrate (1) that the prosecutor’s

statements were improper and (2) that the remarks, taken in the context of the entire trial, resulted

in substantial prejudice.” United States v. Bautista, 23 F.3d 726, 732 (2d Cir. 1994). Because

Wilson objected to the statements at issue below, we review for abuse of discretion the district

court’s rulings admitting the government’s statements. See United States v. Farhane, 634 F.3d

127, 167 (2d Cir. 2011). When “determining whether substantial prejudice has resulted, we

consider ‘the severity of the misconduct, the measures adopted to cure it, and the certainty of


                                                 10
conviction in the absence of the misconduct.’” United States v. Perez, 144 F.3d 204, 210 (2d Cir.

1998) (quoting United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995)).

       Wilson argues that two statements were improper. First, the government stated: “I would

submit to you that this oath is absolutely meaningless to this defendant. It means nothing. What

does he have to lose by testifying falsely? He’s not worried at this point about an additional charge

of perjury.” Joint App. 1783. Second, after observing that the law enforcement officers who

testified against Wilson had testified under oath, the government said that this “oath means

something to decorated law enforcement personnel who do not wish to perjure themselves and

commit crimes and make false accusations with their long-standing careers.” Joint App. 1782.

       The United States concedes that the second comment was improper. Assuming arguendo

that the first comment was also improper, we conclude that neither resulted in substantial prejudice

to Wilson. These were fleeting comments made during an otherwise appropriate defense of the

officers’ credibility. See United States v. Elias, 285 F.3d 183, 191 (2d Cir. 2002) (holding that “the

severity of the misconduct is mitigated if the misconduct is an aberration in an otherwise fair

proceeding,” and that “isolated remarks [] ordinarily” do not cause substantial prejudice); United

States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994) (holding that the government may respond to attacks

on the credibility of its witnesses). Additionally, the court corrected any confusion the

government’s comments might have caused by instructing the jury afterwards that a government

witness’s testimony is not “necessarily deserving of more or less consideration . . . than that of any

ordinary witness.” Joint App. 1855; see Elias, 285 F.3d at 192 (holding that a corrective jury

instruction can cure the prejudicial impact of an improper statement). Finally, as discussed above,

the evidence against Wilson was overwhelming, and his sole, implausible defense was that federal

and local officials conspired with his girlfriend, her sister, and six co-conspirators to frame him


                                                 11
for selling heroin and cocaine, when he really sold marijuana. See United States v. Modica, 663

F.2d 1173, 1182 (2d Cir. 1981) (per curiam) (declining to reverse when the defendant “was caught

red-handed, and his explanation was implausible”). Wilson has thus failed to show that these

comments amounted to reversible error.

        E. The Court’s Instructions

        Finally, Wilson challenges the court’s jury instructions. “A defendant challenging a jury

instruction as erroneous must show ‘both error and ensuing prejudice.’” United States v. Sabhnani,

599 F.3d 215, 237 (2d Cir. 2010) (quoting United States v. Quinones, 511 F.3d 289, 313–14 (2d

Cir. 2007)). We assess whether the jury charge “as a whole . . . adequately communicated the

essential ideas to the jury,” and “do not review [the] [] charge on the basis of excerpts taken out of

context.” Sabhnani, 599 F.3d 237 (internal citations and quotation marks omitted). We review this

issue for plain error because Wilson did not object to the jury instructions below. See United States

v. Veliz, 800 F.3d 63, 76 (2d Cir. 2015). He therefore must show that: “(1) there is an error; (2) the

error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected his

substantial rights, which in the ordinary case means it affected the outcome of the district court

proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)) (brackets omitted).

        The court instructed the jury that it could consider Wilson’s prior criminal conduct as

evidence that Wilson acted “knowingly and intentionally and not because of some mistake,

accident, or other innocent reasons,” and also that Wilson “was the person who committed the acts

charged in this indictment,” based on those acts’ similarity to his previous criminal conviction.

Joint App. 1862, 1861. Wilson argues that both instructions were plain error because they were

extraneous to his case, given that the other act evidence here was admitted as background to the


                                                   12
conspiracy, yet still encouraged the jury to infer that his “prior conviction could be considered as

evidence that he committed the acts charged in the indictment,” in violation of Fed. R. Evid.

404(b). Reply Br. 19–20. We disagree. A jury instruction that is legally accurate but merely

“extraneous to [the] case” does not amount to reversible error, let alone plain error, “at least absent

further instruction as to a legal theory that would support liability based on” the extraneous

instruction. Sabhnani, 599 F.3d at 238. There was no such erroneous further instruction below,

and so Wilson’s explanation as to how the jury instructions prejudiced him is unconvincing. In

fact, the district court told the jury twice that it could not consider evidence of Wilson’s past

conduct “as a substitute for proof that the defendant committed the crime charged here” or “as

proof that defendant has a criminal personality or bad character.” Joint App. 1861. So even

assuming arguendo that some “excerpts taken out of context” were erroneous, the jury charge “as

a whole . . . adequately communicated the essential ideas to the jury.” Sabhnani, 599 F.3d 237

(quoting United States v. Tran, 519 F.3d 98, 105 (2d Cir. 2008)) (internal quotation marks

omitted). Wilson has thus failed to show that the jury charge was plain error.

                                          *       *       *

       We have considered Wilson’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




                                                  13
