     13-4262
     United States v. Rosemond
                                  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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 12th day of December, two thousand fourteen.
 4
 5   PRESENT: ROBERT D. SACK,
 6            GERARD E. LYNCH,
 7            DENNY CHIN,
 8                           Circuit Judges.
 9   ———————————————————————
10
11   UNITED STATES OF AMERICA,
12                           Appellee,
13
14                               v.                                   No.    13-4262
15
16   JAMES ROSEMOND, aka JIMMY HENCHMAN,
17                           Defendant-Appellant,
18
19   MARIO ROSEMOND, DENNIS GRAHAM aka MARK
20   BLACK aka BIGGA, JASON WILLIAMS, DARRON
21   LAMONT BENNETT aka L aka DIRT,
22                             Defendants.
23
24   ———————————————————————
25
26   FOR APPELLANT:                       MATTHEW M. ROBINSON, Robinson & Brandt PSC,
27                                        Covington, KY.
28
29   FOR APPELLEE:                        LAN NGUYEN, Assistant United States Attorney (Peter
30                                        A. Norling, Una Dean, Souyma Dayananda, Assistant
31                                        United States Attorneys, on the brief), for Loretta E.
32                                        Lynch, United States Attorney for the Eastern District of
33                                        New York, New York, NY.
34
 1          Appeal from the United States District Court for the Eastern District of New York

 2   (John Gleeson, J.).

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

 4   AND DECREED that the judgment of the district court is AFFIRMED IN PART and

 5   VACATED IN PART, and the case is REMANDED for further proceedings.

 6          Defendant James Rosemond appeals from a judgment of conviction, following a

 7   jury trial, for engaging in a Continuing Criminal Enterprise (“CCE”), 21 U.S.C. §§ 848(a)

 8   and 848 (b); conspiring to distribute cocaine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A);

 9   two counts of attempting to distribute cocaine, 21 U.S.C. §§ 846 and 841(b)(1)(A); three

10   counts of distributing cocaine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); possessing a

11   firearm in connection with drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i); possessing a

12   firearm as a felon, 18 U.S.C. § 922(g)(1); money laundering conspiracy, 18 U.S.C. §§

13   1956(a)(1)(A)(I) and 1956(h); engaging in unlawful monetary transactions involving over

14   $10,000, 18 U.S.C. § 1957; unlawfully structuring financial transactions, 31 U.S.C. §

15   5324(a)(3); and obstruction of justice, 18 U.S.C. § 1512(b)(3). He was sentenced

16   principally to life imprisonment.

17          Rosemond contends that (1) he was denied his Sixth Amendment right to conflict-

18   free counsel; (2) juror misconduct violated his due process and fair trial rights; (3) the

19   district court erred in admitting evidence of cocaine base, for which Rosemond had not

20   charged; (4) facts necessary to trigger the mandatory minimum sentence of life

21   imprisonment for his CCE conviction were not submitted to the jury, in violation of


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 1   Alleyne v. United States, 133 S. Ct. 2151 (2013); (5) conviction on both the CCE count

 2   and the lesser included offense of conspiring to distribute cocaine violated his Double

 3   Jeopardy rights; and (6) the government’s use of his proffer statements violated his Fifth

 4   Amendment right against self-incrimination. We assume the parties’ familiarity with the

 5   underlying facts and procedural history.

 6   1.     Conflict-Free Counsel

 7          Rosemond contends that his trial counsel, Gerald Shargel, labored under a conflict

 8   because he was present for Rosemond’s proffer sessions and might have been called as a

 9   witness to contradict the government’s account of the sessions. Rosemond further

10   contends that the trial court failed to secure his knowing and voluntary waiver of this

11   conflict, in violation of his Sixth Amendment rights.

12          A district court has “two distinct obligations . . . when the specter of conflicts of

13   interest arises.” United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994). First, there is an

14   “inquiry obligation” to “determine whether the attorney in fact suffers from an actual

15   conflict, a potential conflict, or no genuine conflict at all.” Id. Second, if the inquiry

16   reveals an actual or potential conflict, “the court has a subsequent

17   ‘disqualification/waiver’ obligation.” Id.

18          Here, the trial court satisfied its inquiry obligation by holding a hearing to examine

19   whether Shargel’s role as a potential witness presented an actual or potential conflict. At

20   that hearing, Shargel explained that his associate, Ross Kramer, who did not serve as trial

21   counsel, attended all but one of the proffer sessions and had the same recollection of these


                                                    3
 1   sessions as Shargel. Shargel further stated that, for the one proffer session Kramer did

 2   not attend, Shargel’s recollection did not substantially differ from the government’s.

 3   Based on those representations, the trial court correctly determined that Shargel was not

 4   conflicted because another witness was available to provide the same testimony that

 5   Shargel could have provided.

 6          Thus, Rosemond’s contention that the trial court failed to obtain a waiver of his

 7   right to conflict-free counsel rests on the false premise that his trial counsel was

 8   conflicted. Where, as here, “the court’s inquiry reveals that there is no genuine conflict at

 9   all, the court has no further obligation.” Levy, 25 F.3d at 153.

10   2.     Juror Misconduct

11          Rosemond asserts that his fair trial and due process rights were violated by two

12   separate incidents of juror misconduct. First, Rosemond argues that the trial court erred

13   in not immediately excusing a juror who attempted to speak with a prosecutor after jury

14   selection and allegedly gave prosecutors a “thumbs-up” sign. The court questioned the

15   juror about this incident on the first day of the trial and credited her explanation that she

16   did not give such a sign and that, while she could not remember why she attempted to

17   speak to one of the prosecutors, it did not involve Rosemond’s case. As we “review a

18   trial judge’s handling of juror misconduct for abuse of discretion,” United States v. Cox,

19   324 F.3d 77, 86 (2d Cir. 2003) (alterations and internal quotation marks omitted), we

20   would be reluctant to second guess the trial court’s credibility determination. However,

21   we need not reach this question, as the juror was excused the following day upon a



                                                    4
 1   renewed motion by Rosemond. The juror – who sat for only the first day in a three-week

 2   trial – took no part in deliberations, and there is no evidence that she discussed the case

 3   with her fellow jurors. Thus, Rosemond has made no showing that his fair trial or due

 4   process rights were prejudiced by the juror’s one day of service.

 5          Second, Rosemond asserts that one or more jurors discovered information on the

 6   internet linking Rosemond to the murder of rapper Tupac Shakur and pressured other

 7   jurors to convict Rosemond based on this extrajudicial research. For support, Rosemond

 8   references affidavits submitted by his fiancée, Tamika Wooley, and by Jarrod Whittaker.

 9   But neither of these affidavits mention any extrajudicial research. Rather, Wooley simply

10   claimed to have overheard two jurors expressing frustration that another juror took longer

11   than they did to conclude Rosemond was guilty. And Whittaker’s affidavit states only

12   that he was told that two jurors believed “Rosemond was guilty due to his involvement in

13   the Tupac thing.” Gov’t App’x at 208. As the defense had elicited trial testimony that

14   government agents had questioned Rosemond about Shakur’s murder, the jury’s

15   knowledge of “the Tupac thing” does not suggest that jurors conducted extrajudicial

16   research. At most, the affidavits suggest that testimony regarding Rosemond’s possible

17   involvement in Shakur’s murder had some effect on some jurors. Such an allegation is

18   insufficient to warrant “[p]ost-trial jury scrutiny[,] [which] is disfavored because of its

19   potential to undermine full and frank discussion in the jury room.” United States v.

20   Stewart, 433 F.3d 273, 302 (2d Cir. 2006) (internal quotation marks omitted).

21



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 1   3.     Admission of Cocaine Base Evidence

 2          Rosemond contends that the trial court erroneously admitted into evidence cocaine

 3   base – a drug he was not charged with possessing – recovered from a “stash house” used

 4   by Rosemond’s organization. Rosemond argues that the government failed to notify him

 5   of its intent to introduce the cocaine base under Fed. R. of Evid. 404(b) and that in any

 6   event the drugs were not admissible under Rule 404(b).

 7          “[E]videntiary rulings are subject to harmless error” review, United States v.

 8   Mercado, 573 F.3d 138, 141 (2d Cir. 2009), and we conclude that any error in admitting

 9   the cocaine base was harmless. We first reject any claim of unfair surprise, as

10   Rosemond’s attorney had previously signed a stipulation that the cocaine base was

11   “admissible as evidence in the trial.” Gov’t App’x at 186-87. Moreover, prejudice is

12   minimized where, as here, “the evidence did not involve conduct more serious than the

13   charged crime[s] and the district court gave a proper limiting instruction.” United States

14   v. Williams, 205 F.3d 23, 34 (2d Cir. 2000). Lastly, the evidence of Rosemond’s guilt

15   was overwhelming, rendering it “highly probable that [the disputed evidence] did not

16   contribute to the verdict.” United States v. Kaiser, 609 F.3d 556, 573 (2d Cir. 2010)

17   (internal quotation marks omitted).

18   4.     CCE Sentence

19          The district court imposed a mandatory minimum sentence of life imprisonment on

20   the CCE count. A mandatory life sentence applies to a CCE conviction only when,

21   among other requirements, the defendant “is the principal administrator, organizer, or


                                                  6
 1   leader of the enterprise or is one of several such principal administrators, organizers, or

 2   leaders” of the CCE. 21 U.S.C. § 848(b)(1). Rosemond notes that the question of

 3   whether he was a “principal administrator, organizer, or leader” was not submitted to the

 4   jury, and correctly argues that imposing a heightened mandatory minimum sentence

 5   based on facts not found by the jury runs afoul of Alleyne v. United States, 133 S. Ct.

 6   2151 (2013), which was decided after his trial.

 7          Rosemond did not dispute below that a mandatory minimum sentence of life

 8   imprisonment was applicable to his CCE conviction. We review errors “not brought to

 9   the court’s attention” for plain error, Fed. R. Crim. P. 52(b), including in cases where a

10   change in applicable law occurred after conviction, see Johnson v. United States, 520

11   U.S. 461, 465-66 (1997). That principle applies when factors affecting a defendant’s

12   sentence should have been submitted for a jury finding but were not. United States v.

13   Joyner, 313 F.3d 40, 45-46 (2d Cir. 2002). “Before an appellate court can correct an error

14   not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial

15   rights. If all three conditions are met, an appellate court may then exercise its discretion

16   to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,

17   or public reputation of judicial proceedings.” United States v. Thomas, 274 F.3d 655,

18   667 (2d Cir. 2001) (quoting Johnson, 520 U.S. at 466-67) (alterations and internal

19   citations omitted).

20

21

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 1          The first three of these prongs are generally satisfied where a defendant’s sentence

 2   enhancement is based on a fact that should have been found by the jury. Joyner, 313 F.3d

 3   at 45-46. We may assume they are satisfied here, since we conclude that the fourth prong

 4   is not. “We will not reverse for plain error where there is no disagreement as to the truth

 5   of the pertinent facts, and the record as a whole casts no doubt on the accuracy of that

 6   fact.” Joyner, 313 F.3d at 46 (alterations omitted). Here, the government’s entire theory

 7   of the case was that Rosemond was a principal leader of the CCE, and Rosemond makes

 8   no real argument that the jury – which convicted on all thirteen counts – might have

 9   concluded otherwise.

10          Moreover, the district court made abundantly clear that although it believed the life

11   sentence was mandated, it would have imposed a life sentence in any event if it had

12   discretion to impose a lesser sentence. We have held that an error in calculating a

13   mandatory minimum does not require reversal where the error did not make a difference

14   to the sentence imposed. United States v. Deandrade, 600 F.3d 115, 120 (2d Cir. 2010).

15   Cf. United States v. Sanchez, ___ F.3d ___, 2014 WL 6805197, at *3 (2d Cir. Dec. 4,

16   2014) (holding that error in calculating mandatory minimum requires reversal, even on

17   plain error standard, where the miscalculation had an impact on the sentence imposed).

18   Here, as in Deandrade, the district court specifically stated that the mandatory minimum

19   made no difference to the sentence it imposed. Indeed, the court could hardly have been

20   clearer: the district judge emphasized that the mandatory sentence he believed applied

21   merely required him “to impose a sentence that I would have imposed in any event” and

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 1   that “if there’s ever a time when it’s clear that were there judging to be done, the result

 2   would be the same, this is it.” Joint App’x at 147. The district court followed through on

 3   that assessment by imposing life sentences for Counts Two through Seven, none of which

 4   carried a mandatory life sentence.

 5          Because there is no genuine dispute as to the pertinent facts and because the error

 6   did not affect Rosemond’s sentence, the error did not “seriously affect[] the fairness,

 7   integrity, or public reputation of judicial proceedings.” Thomas, 274 F.3d at 667

 8   (alteration and internal quotation marks omitted). We therefore affirm Rosemond’s CCE

 9   sentence.

10   5.     Double Jeopardy

11          The government concedes that Rosemond’s conviction on Count Two, for

12   conspiring to distribute cocaine, should be vacated as a lesser included offense of his

13   CCE conviction pursuant to Rutledge v. United States, 517 U.S. 292 (1996). We agree,

14   and accordingly vacate Rosemond’s conviction on Count Two and remand with

15   instructions to the district court to correct the judgment to reflect the dismissal of Count

16   Two.

17   6.     Proffer Statements

18          Rosemond argues that his Fifth Amendment right against self-incrimination was

19   violated by the government’s use of his proffer statements at trial. The argument is

20   meritless. Rosemond’s proffer agreement provided that the government could use his

21   statements “as substantive evidence to rebut, directly or indirectly, any evidence offered

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 1   or elicited, or factual assertions made, by or on behalf of [Rosemond] at any stage of a

 2   criminal prosecution,” Gov’t App’x at 190, and there is no dispute that Rosemond

 3   triggered this provision by referencing the proffer sessions at trial. “[W]here a proffer

 4   agreement is entered into knowingly and voluntarily, a provision in which defendant

 5   waives his exclusionary privilege under Federal Rule of Evidence 410 by permitting the

 6   Government to introduce defendant’s proffer statements to rebut contrary evidence or

 7   arguments presented by the defense . . . is enforceable.” United States v. Velez, 354 F.3d

 8   190, 196 (2d Cir. 2004); see also United States v. Mezzanatto, 513 U.S. 196, 210 (1995).

 9   The same applies to a defendant’s Fifth Amendment privilege against self-incrimination.

10   “A defendant entering a proffer session is waiving valuable rights – first and foremost, his

11   or her Fifth Amendment right not to incriminate oneself . . . .” United States v. Heatley,

12   39 F. Supp. 2d 287, 299 (S.D.N.Y. 1998) (Sotomayor, J.)

13          We have considered all of Rosemond’s remaining arguments and find them to be

14   without merit. For the foregoing reasons the judgment of the district court is AFFIRMED

15   IN PART and VACATED IN PART, and the case is REMANDED for further

16   proceedings.

17
18                                      FOR THE COURT:
19                                      CATHERINE O’HAGAN WOLFE, Clerk of Court
20
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