     14-1113-cr(L)
     United States v. Monsalvatge et al.

                                 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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   4th day of May , two thousand seventeen.
 4
 5   Present:
 6               DEBRA ANN LIVINGSTON,
 7               CHRISTOPHER F. DRONEY,
 8                     Circuit Judges,
 9               ANALISA TORRES,
10                     District Judge.*
11   _____________________________________
12
13   UNITED STATES OF AMERICA,
14
15                              Appellee,
16                                                                           14-1113-cr(L),
17                     v.                                                    14-1139-cr(CON),
18                                                                           14-1206-cr(CON)
19   AKEEM MONSALVATGE, EDWARD BYAM,
20   DERRICK DUNKLEY,
21
22                     Defendants-Appellants.
23   _____________________________________
24
25   For Appellee:                                   TYLER J. SMITH, Jo Ann M. Navickas, Tiana A.
26                                                   Demas, Maria Cruz Melendez, Assistant United States
27                                                   Attorneys, for Bridget M. Rohde, Acting United
28                                                   States Attorney for the Eastern District of New York,
29                                                   Brooklyn, N.Y., for the United States of America.

     *
      Judge Analisa Torres, of the United States District Court for the Southern District of New York, sitting
     by designation.

                                                        1
1   For Defendants-Appellants:                    JONATHAN I. EDELSTEIN, Edelstein & Grossman,
2                                                 New York, N.Y., for Akeem Monsalvatge.
3
4                                                 PATRICK MICHAEL MEGARO, Orlando, Fla., for
5                                                 Edward Byam.
6
7                                                 DANIEL M. PEREZ, Law Offices of Daniel M. Perez,
8                                                 Newton, N.J., for Derrick Dunkley.
9
           UPON       DUE     CONSIDERATION               WHEREOF        it   is   hereby    ORDERED,

    ADJUDGED, AND DECREED that the judgments of conviction of the district court as to

    Akeem Monsalvatge and Edward Byam are AFFIRMED; that the judgment of conviction of the

    district court on Counts One, Four, and Five as to Derrick Dunkley is AFFIRMED; that the

    judgment of conviction of the district court on Counts Two and Three as to Dunkley is

    REVERSED; and that the case is REMANDED for resentencing as to Dunkley.

           Defendants-Appellants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley appeal

    from judgments of conviction in the United States District Court for the Eastern District of New

    York (Dearie, J.), entered on April 10, 2014.         The criminal action stems from two armed

    robberies — one on February 24, 2010, and the other on February 14, 2012 — of Pay-O-Matic

    check-cashing stores in Queens, New York.         Following a jury trial, Monsalvatge, Byam, and

    Dunkley were each convicted on all counts: Hobbs Act robbery conspiracy, in violation of 18

    U.S.C. § 1951(a) (Count One); Hobbs Act robbery on February 24, 2010, and on February 14,

    2012, in violation of 18 U.S.C § 1951(a) (Counts Two and Four); and unlawful use of a firearm

    in a crime of violence in connection with the February 24, 2010 and February 14, 2012

    robberies, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts Three and Five).        We describe in

    detail the facts of this case in a concurrently published opinion.

           On appeal, each Defendant-Appellant brings a number of claims.              As relevant here,

    Monsalvatge, joined by Dunkley, raises four issues: (1) whether the evidence as to Counts Four



                                                      2
and Five was sufficient; (2) whether the district court improperly admitted evidence of an

uncharged attempted robbery and Byam’s arrest for possessing forged license plates; (3) whether

the district court improperly limited cross-examination of an investigating detective; and (4)

whether prejudicial error occurred when a Government witness identified Monsalvatge as one of

the robbers on the surveillance footage. 1 Byam brings two challenges, alleging, with

Monsalvatge, that the district court erred in admitting evidence regarding the attempted robbery

and Byam’s arrest for possessing forged license plates, and adding that the district court

erroneously denied the suppression of certain physical evidence — to wit, a partially completed

Pay-O-Matic application — found in Byam’s residence at the time of his arrest. Dunkley raises

three issues in his counseled brief on appeal: (1) whether the evidence as to Counts Two and

Three was sufficient; (2) whether the district court erred in giving the jury a charge pursuant to

Pinkerton v. United States, 328 U.S. 640 (1946); and (3) whether the district court erred in

admitting evidence of the uncharged attempted robbery.2

        We have carefully considered the claims enumerated here and, after a thorough review of

the record, we conclude that they are without merit, with one exception. As to Dunkley’s first

claim on appeal — whether the evidence is sufficient as to his participation in the February 24,

2010 robbery, as charged in Counts Two and Three — we conclude that the evidence, while

sufficient as to Monsalvatge and Byam, is insufficient as to Dunkley.            We therefore reverse his

conviction on Counts Two and Three and remand for resentencing as to Dunkley.                 As regarding

1
  A fifth issue — whether the district court erred in allowing the Government to play for the jury excerpts
from the movie, The Town — is addressed in the opinion issued simultaneously with this summary order,
in which we conclude that the district court did not abuse its discretion in this regard. Dunkley also
joins in this claim on appeal.
2
  Monsalvatge joins each of Dunkley’s counseled claims on appeal. Dunkley has, in addition, submitted
a pro se filing in which he argues that he is entitled to relief pursuant to Johnson v. United States, 135 S.
Ct. 2551 (2015).

                                                     3
Counts One, Four, and Five as to Dunkley and each and every count as to Monsalvatge and

Byam, we affirm.

                                        *       *      *

       “A defendant challenging the sufficiency of the evidence bears a heavy burden, because

the reviewing court is required to draw all permissible inferences in favor of the government and

resolve all issues of credibility in favor of the jury verdict.” United States v. Kozeny, 667 F.3d

122, 139 (2d Cir. 2011) (citation omitted).   In evaluating the sufficiency of the evidence, this

Circuit considers “the totality of the government’s case . . . as each fact may gain color from

others.”   United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999).     Although sufficiency

is reviewed de novo, we affirm a conviction if “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Coplan, 703 F.3d

46, 62 (2d Cir. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).      Nevertheless,

“at the end of the day, ‘if the evidence viewed in the light most favorable to the prosecution

gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence,

then a reasonable jury must necessarily entertain a reasonable doubt.’”         United States v.

Cassese, 428 F.3d 92, 99 (2d Cir. 2005) (quoting United States v. Glenn, 312 F.3d 58, 70 (2d

Cir. 2002)).

       Dunkley contends that the evidence against him as to both Count Two (Hobbs Act

robbery on February 24, 2010) and Count Three (unlawful use of a firearm in a crime of violence

in connection with the February 24, 2010 robbery) was insufficient. We agree.                 The

Government’s proof at trial to support these counts as to Dunkley amounted principally to two

kinds of evidence: identifying evidence (from the surveillance footage in conjunction with the

testimony of Muhammed Hafeez) and cellular telephone records.        The Government in addition


                                                4
introduced evidence that Dunkley had completed transactions at the Rockaway Boulevard

Pay-O-Matic, the site of the February 24, 2010 robbery, in 2010 and 2011.             Gov’t Ex. 85B.

And it relied on ample evidence of Dunkley’s participation in both the Hobbs Act robbery

conspiracy and the 2012 armed robbery.

       Although there is no question that the evidence was more than sufficient to support

Dunkley’s conviction as to Counts One, Four, and Five, we conclude that as to Counts Two and

Three, the lack of evidentiary support for the Government’s theory of the case requires that the

convictions as to these counts be set aside.     At the start, the Government’s theory at trial was

that Dunkley was “Robber 1” in the surveillance footage.       Dunkley, as one detective testified, is

black, 5’9” tall, and 180 pounds.        Joint App’x 1002.       Robber 1 was wearing a hooded

sweatshirt, jeans, blue gloves with white text, and a bandana over his face. On the surveillance

footage itself, it is difficult to ascertain any particular attributes of Robber 1 with certainty given

his attire. Another detective analyzing the surveillance footage testified that the robber in the

footage seemed to stand about 5’7” tall and to weigh 150 pounds.           Hafeez, the Pay-O-Matic

cashier and sole eyewitness, offered inconsistent testimony as to Robber 1.        Hafeez testified at

trial that Robber 1 was “not black or totally white” but “in the middle shade.” Id. at 1400.

Further, he testified that Robber 1 was “[m]aybe 5’5”, 5’6”,” id., and “on the thin side,”

“between 140 and 150 pounds,” id. at 1415. On cross-examination, Hafeez admitted that he

had given a different description to the police: that Robber 1 was “a mix of Spanish and white,”

id. at 1414, likely “Hispanic, 5’3” to 5’5” [and] between 130 and 150 pounds,” id. at 1433.

       The Government offered cell phone records to buttress the inconclusive identification

evidence. These records, however, were also significantly weaker in their tendency to identify

Dunkley as one of the robbers, as opposed to Monsalvatge and Byam. The records do show


                                                  5
that Dunkley’s cell phone exchanged calls with Monsalvatge’s and Byam’s phones, clearly

supporting the inference that the three were in communication in the days surrounding the first

robbery and even during the robbery itself. But a close review of the cell phone records — in

particular, the records of the critical calls suggesting the robbers “cased” the Pay-O-Matic, and

the calls during the actual robbery — demonstrates that Dunkley’s cell phone records are

significantly less probative than those of Monsalvatge or Byam and that these records, even

considered in conjunction with the other evidence, could not establish Dunkley’s personal

participation in the February 24, 2010 robbery beyond a reasonable doubt.

        To that end, Dunkley’s cell phone number is not to be found among the early-morning

calls to and from the cell phones belonging to Monsalvatge and Byam on February 17 and 19,

2010, when these phones were located near the Pay-O-Matic, suggesting that the robbers “cased”

the Pay-O-Matic twice, both times at around 3 a.m.         While Dunkley’s and Byam’s phones did

exchange three early-morning calls on February 19 (but none at all on February 17), these calls

occurred while Byam’s phone was in the vicinity of Byam’s home.               Moreover, as cell-site

information was not available for Dunkley’s cell phone (unlike for Monsalvatge’s and Byam’s)

there is no evidence at all as to its location during these calls.

        The critical cell phone record evidence is from February 24, 2010, the day of the robbery.

According to the Government, the robbery commenced at about 3:24 a.m. and ended about half

an hour later, at about 3:57 a.m.    The cell phone calls from that record occurred as follows:

       Before the robbery.         Between 1:00 and 3:20 a.m., Dunkley and Byam’s phones

        exchanged six calls. 3        Notably, at 2:27 a.m., Byam’s phone placed a call to


3
 Although seven unique phone calls were logged during this period, one of them lasted 0 seconds: (1) at
1:21 a.m., from Dunkley to Byam (9 seconds); (2) at 1:43 a.m., from Dunkley to Byam (6 seconds); (3) at
2:04 a.m., from Byam to Dunkley (21 seconds); (4) at 2:05 a.m., from Dunkley to Byam (22 seconds); (5)

                                                   6
        Monsalvatge’s phone, and at 2:50 a.m., Byam received a call from Dunkley’s phone,

        which created a three-way call that ended at 3:18 a.m., a few minutes before the

        beginning of the robbery.

       During the robbery.     At 3:20 a.m., Dunkley’s phone placed a call to Byam’s phone that

        lasted 20 minutes and 10 seconds. Accordingly, this call was placed four minutes

        before the beginning of the robbery, and would have ended in the midst of the robbery, at

        approximately 3:40 a.m.4

       After the robbery. After the end of the robbery at 3:57 a.m., Dunkley’s phone did not

        place or receive any calls until 9:17 a.m. Thereafter, Dunkley and Byam’s phones

        exchanged five phone calls.5

The lack of cell-site information means that there is no cell phone evidence that Dunkley’s phone

was near the Pay-O-Matic at the time any of these calls took place.        Moreover, the lengthy 3:20

a.m. phone call (from Dunkley’s phone to Byam’s phone) would have ended in the midst of the

robbery, but Robber 1 in the surveillance footage does not appear to use a cell phone at any point

during the robbery.     This cell phone evidence as to Dunkley stands in stark contrast with the

evidence as to Monsalvatge and Byam, whose cell phones, accessing the cell tower closest to the

Pay-O-Matic store, exchanged some calls at about the same time that Robber 2 accessed his



at 2:50 a.m., from Dunkley to Byam (28 minutes, 7 seconds) (part of a three-way call); (6) at 3:18 a.m.,
from Dunkley to Byam (0 seconds); and (7) at 3:19 a.m., from Byam to Dunkley (37 seconds).
4
  Two other phone calls were logged during the robbery, both of which lasted 0 seconds: (1) at 3:40 a.m.,
from Byam to Dunkley (0 seconds); and (2) at 3:40 a.m., from Byam to Dunkley (0 seconds).
5
  Although six unique phone calls were logged after the robbery, one of them lasted 0 seconds: (1) at
9:17 a.m., from Dunkley to Byam (0 seconds); (2) at 9:18 a.m., from Byam to Dunkley (18 seconds); (3)
at 12:02 p.m., from Byam to Dunkley (6 seconds); (4) at 12:03 p.m., from Byam to Dunkley (30
seconds); (5) at 12:14 p.m., from Dunkley to Byam (34 seconds); and (6) at 2:39 p.m., from Byam to
Dunkley (4 seconds).

                                                   7
phone on the surveillance video.6       The cell phone record evidence for Dunkley, on the other

hand, does not show any certain link between Dunkley’s cell phone and either Robber 1 on the

surveillance video (who does not appear on screen using a cell phone) or the Pay-O-Matic

location more generally.

        We conclude that as to Counts Two and Three this evidence, “viewed in the light most

favorable to the prosecution” and in conjunction with all the other evidence presented at trial,

nevertheless “gives equal or nearly equal circumstantial support to a theory of guilt and a theory

of innocence.” Cassese, 428 F.3d at 99 (quoting Glenn, 312 F.3d at 70).7            There is insufficient

evidence to establish beyond a reasonable doubt that Dunkley was Robber 1, actually robbing the

Pay-O-Matic, as opposed to — hypothetically, in the light most favorable to the Government —

an alternative theory that Dunkley, although clearly an associate of Monsalvatge and Byam,

played a different role or none whatsoever during this first robbery.         Without something more,

we cannot say, even on the totality of the Government’s case, that any rational fact-finder could

conclude that Dunkley was one of the armed robbers in the 2010 robbery. See Coplan, 703

6
  The surveillance footage shows Robber 2 using his phone during the commission of the robbery at 3:35,
3:41, 3:48, 3:50, and 3:52 a.m. Monsalvatge’s cell phone records show that at 3:35 a.m., his cell phone
placed a call to Byam’s cell phone. At 3:41, 3:48, 3:50, and 3:52 a.m., Monsalvatge’s cell phone
received calls from Byam’s cell phone. Monsalvatge’s cell phone also received calls from Byam’s cell
phone at 3:44 and 3:49 a.m.
7
  Comprehensively marshaling the evidence with respect to Dunkley for the first time in its petition for
rehearing, the Government argues that Cassese, rather than articulating the sufficiency of the evidence
standard established in Jackson v. Virginia, actually created a new standard that requires a lesser showing
of defendants seeking to bring sufficiency of the evidence challenges than Jackson v. Virginia demands.
Glenn, the case Cassese relied on, carefully analyzed and elaborated on the Jackson v. Virginia standard
in the course of its analysis, Glenn, 312 F.3d at 69-70, and cases since Glenn have done the same, see,
e.g., Coplan, 703 F.3d at 62, 72. We need not consider here, however, whether Glenn and the cases
following it departed from Jackson v. Virginia because we would reach the same conclusion in applying
Jackson v. Virginia’s classic formulation: that “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319. Because, on the
evidence presented here, no rational trier of fact “could have found the essential elements of the crime
beyond a reasonable doubt,” we reverse Dunkley’s conviction as to Counts Two and Three.

                                                    8
F.3d at 62.   We thus reverse Dunkley’s conviction on Counts Two and Three and remand his

case for resentencing.

                                       *      *      *

       We have considered Defendants-Appellants’ remaining claims and find them to be

without merit.   Accordingly, we AFFIRM the judgments of conviction of the district court as

to Monsalvatge and Byam; we AFFIRM the judgment of conviction of the district court on

Counts One, Four, and Five as to Dunkley; we REVERSE the judgment of conviction of the

district court on Counts Two and Three as to Dunkley; and we REMAND the case for

resentencing as to Dunkley.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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