15-316-cr
United States v. Spencer
 
                           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.

       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 14th day of April, two thousand sixteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                                 Circuit Judges,
                 J. PAUL OETKEN,
                                 District Judge.*
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                   v.                                                    No.   15-316-cr

CARL SPENCER, AKA Barrington Antonio Stewart,
AKA Clyde Edward Crenshaw, AKA Brother-Brother,
                                 Defendant-Appellant.
----------------------------------------------------------------------

FOR APPELLANT:                   Ryan Thomas Truskoski, Esq., Harwinton, Connecticut.

FOR APPELLEE:                    Monica J. Richards, Assistant United States Attorney, for
                                 William J. Hochul, Jr., United States Attorney for the
                                 Western District of New York, Buffalo, New York.


*
 The Honorable J. Paul Oetken, of the United States District Court for the Southern
District of New York, sitting by designation.
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       Appeal from a judgment of the United States District Court for the Western

District of New York (David G. Larimer, Judge; Jonathan W. Feldman, Magistrate

Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 23, 2015, is AFFIRMED.

       Defendant Carl Spencer stands convicted after a jury trial of reentering the United

States without consent of the Attorney General after removal, see 8 U.S.C. § 1326(a)(1),

and aggravated identity theft, see 18 U.S.C. § 1028A(a)(1). On appeal he argues that

(1) the district court erred in (a) failing to suppress evidence seized during a search of

Spencer’s vehicle conducted after a traffic stop, (b) denying Spencer an adjournment

after the filing of a superseding indictment, and (c) denying a mistrial after a witness

testified as to suppressed matters; (2) the evidence was legally insufficient to support

conviction; and (3) the deportation order underlying his illegal reentry conviction is

invalid.   We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Denial of Suppression

       Spencer argues that evidence seized from his vehicle after a traffic stop should

have been suppressed because the stop was not supported by reasonable suspicion that he

was the vehicle driver and then engaged in illegal activity. We review a district court’s

factual findings on a motion to suppress for clear error, while reviewing de novo its

resolution of questions of law and mixed questions of law and fact, such as the existence



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of reasonable suspicion to stop. See Ornelas v. United States, 517 U.S. 690, 699 (1996);

United States v. Singletary, 798 F.3d 55, 59 (2d Cir. 2015).

       The suppression hearing testimony here showed that, at the time of the traffic stop,

agents had a reasonable suspicion both that Spencer was driving the gold Nissan sedan at

issue, and that he was then engaged in criminal activity, i.e., he was illegally in the

United States.    The latter suspicion was supported by Immigration and Customs

Enforcement (“ICE”) Officer Eric Pecoraro’s firsthand review of immigration databases

and Spencer’s immigration file, which included a photograph of Spencer.             As for

Spencer’s identity as the car driver, two months before the stop, Officer Pecoraro

received a tip that Spencer lived in the area of Hague Street and drove a gold Nissan

sedan. This information was corroborated by surveillance conducted the morning of the

stop, at which time agents observed a gold sedan parked in the driveway of 553 Hague

Street, and a man matching Spencer’s physical description exiting that premises and

entering the driver’s seat of the gold sedan, which then pulled out of the driveway. These

facts were communicated to Officer Pecoraro who then had a sufficiently “particularized

and objective basis for suspecting” that the individual driving the Nissan was Spencer

and that he was then engaged in criminal activity by being unlawfully in the United

States. Navarette v. California, 134 S. Ct. 1683, 1687 (2014).

       In urging otherwise, Spencer argues that the original tip as to his residence and car

lacked sufficient corroboration to support reasonable suspicion. Neither Florida v. J.L.,

529 U.S. 266 (2000), nor United States v. Freeman, 735 F.3d 92 (2d Cir. 2013), on which

he relies, supports his argument because, in both cases, the anonymous tip was the only

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basis for a reasonable suspicion of criminal activity. In Florida v. J.L., the Supreme

Court held that for the tip to support reasonable suspicion, it had to “be reliable in its

assertion of illegality, not just in its tendency to identify a determinate person.” 529 U.S.

at 272; see also United States v. Freeman, 735 F.3d at 99. But, as just discussed, here the

agents’ knowledge of Spencer’s unlawful activity was based on their independent review

of his immigration file and immigration databases, and the identifying tip was

corroborated by officers’ location of the gold sedan on the street stated by the tipster and

their personal observation of a man fitting Spencer’s description driving that sedan

shortly before the stop. See Florida v. J.L., 529 U.S. at 272 (explaining that accurate

description of subject’s location and appearance is reliable in “limited sense” that it “will

help the police correctly identify the person”).

       Accordingly, we conclude, as the district court did, that the agents had reasonable

suspicion to stop Spencer on November 9, 2012.             This basis for challenging the

subsequent car search thus fails on the merits.

2.     Denial of Adjournment

       We review the denial of a motion to adjourn trial following a superseding

indictment for abuse of discretion, see United States v. McGee, 564 F.3d 136, 141–42 (2d

Cir. 2009), which we do not identify here.

       While 18 U.S.C. § 3161(c)(2) generally affords a defendant at least thirty days

from his initial appearance on an indictment before trial, the Supreme Court has held that

such a continuance is not categorically mandated following a superseding indictment.

See United States v. Rojas-Contreras, 474 U.S. 231, 236 (1985). Rather, the matter is left

                                              4
to the trial judge’s discretion consistent with the “ends of justice.”          18 U.S.C.

§ 3161(h)(7)(A); see United States v. McGee, 564 F.3d at 142. Although Spencer argues

that the changes reflected in the superseding indictment—the removal of one count and

the addition of one of Spencer’s aliases—affected his trial strategy, his assertion is

entirely conclusory. He fails to demonstrate that those changes “substantially impaired

presentation of his case.” United States v. McGee, 564 F.3d at 142 (emphasis added)

(internal quotation marks omitted). In these circumstances, he cannot show abuse of

discretion and, thus, his adjournment challenge fails on the merits.

3.     Denial of a Mistrial

       Spencer argues that a mistrial should have been declared when, in response to a

defense inquiry on cross-examination about fingerprinting Spencer after arrest to confirm

his identity, the testifying agent volunteered a statement by Spencer that had been

suppressed.1 Spencer’s counsel then moved for a mistrial on the ground that Spencer’s

statements at the scene of the arrest had been suppressed before trial. In denying a

mistrial, the district court concluded that (1) the agent’s testimony was a fair response to

the question, and (2) anything Spencer said about another identity was immaterial

because of identification cards on his person indicating use of the name Clyde Crenshaw.

We identify no abuse of discretion in this decision. See United States v. Farhane, 634

F.3d 127, 167 (2d Cir. 2011). Indeed, because the jury had already permissibly heard that

Spencer, upon being stopped, had presented a driver’s license bearing Clyde Crenshaw’s

1
  The agent responded: “There may have been. I don’t recall that. When I saw the
defendant I recognized him from the photo I had seen. However, he was claiming to be
someone else.” Trial Tr. 111.
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name, testimony that he verbally claimed to be someone else, even if violative of the

district court’s suppression ruling, is reasonably deemed harmless. Cf. United States v.

Fermin, 32 F.3d 674, 677 (2d Cir. 1994) (concluding that witness’s “one inadvertent,

ambiguous comment concerning ‘criminal histories’” was not “so prejudicial” as to

require mistrial).

       Spencer argues that even if the district court did not abuse its discretion in

rejecting his mistrial claim, his trial counsel was constitutionally ineffective in eliciting

the suppressed statement. Although we generally prefer that such claims be raised under

28 U.S.C. § 2255, see Massaro v. United States, 538 U.S. 500, 504 (2003), we address

Spencer’s claim now because no record development is necessary to conclude, for the

reasons stated, that the elicitation of the suppressed statement fails to satisfy the prejudice

requirement of Strickland v. Washington, 466 U.S. 668, 690 (1984). Cf. United States v.

Wellington, 417 F.3d 284, 288 (2d Cir. 2005) (denying ineffective assistance claim on

direct review). Precisely because, at the time of his arrest, Spencer had two forms of

identification bearing his picture and the name Clyde Crenshaw and two documents

bearing the name Barrington Stewart, there is no “reasonable probability” that, but for

trial counsel’s elicitation of agent testimony that Spencer claimed to be someone else at

the time of his arrest, “the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. at 694.          Thus, we reject both his mistrial and

ineffective assistance claims on the merits.




                                               6
4.     Sufficiency Challenge

       We review a sufficiency challenge de novo and must affirm the conviction if,

“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.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United

States v. Binday, 804 F.3d 558, 572 (2d Cir. 2015). In conducting such review, we are

mindful that “[d]irect evidence is not required” and that “the government is entitled to

prove its case solely through circumstantial evidence, provided, of course, that the

government still demonstrates each element of the charged offense beyond a reasonable

doubt.” United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation

marks omitted).

       Spencer argues that the government failed to carry this burden because the trial

evidence gave “equal or nearly equal circumstantial support to a theory of guilt and a

theory of innocence.” United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002). The

government maintains that Glenn cannot be construed to impose a stricter review

standard than that pronounced by the Supreme Court in Jackson v. Virginia, and that our

sister circuits have expressly rejected the equipoise standard urged by Spencer. See

United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc); United

States v. Caraballo-Rodriguez, 726 F.3d 418, 431–32 (3d Cir. 2013) (en banc). We need

not pursue the point here because the evidence was not in equipoise but, rather, tilted

decidedly in favor of guilt.



                                            7
       With respect to his illegal reentry following deportation, Spencer argues that,

because he was known by many different names, the government “failed to prove that the

person sitting in the courtroom was a person who was previously deported.” Appellant’s

Br. 35; see 8 U.S.C. § 1326(a)(1). This argument fails because the government’s trial

proof included a photograph of Spencer taken at the time of his deportation, which the

jury could easily compare with the defendant sitting in the courtroom to conclude that he

was the individual previously deported.

       As for his aggravated identity theft, Spencer contends that there was insufficient

evidence that (1) he ever used the other person’s identification found on his person at

arrest during and in relation to one of the felonies enumerated in 18 U.S.C.

§ 1028A(a)(1), and (2) he knew that the means of identification belonged to another

person. See 18 U.S.C. § 1028A(a)(1), (c). The argument fails because a jury could

reasonably conclude from Spencer’s production of a Georgia license in the name of

Clyde Crenshaw when asked for his own that he used another person’s means of

identification during and in relation to the offense of being found in the United States

after a prior deportation. See 8 U.S.C. § 1326 (offense of entering or being found in

United States after deportation); 18 U.S.C. § 1028A(a)(1), (c).

       That Clyde Crenshaw was a real person was evident from his trial testimony.

Further, Spencer had in his possession a social security card bearing Crenshaw’s actual

social security number, as well as “numerous money cards, debt or credit cards and some

other health cards and another health access program card all in the name of Clyde

Crenshaw.” Trial Tr. 103. This was sufficient to permit the jury to conclude that

                                            8
Spencer relied on these means of identifying a person he knew was real, rather than

fictitious, during and in relation to his illegal presence crime. See Flores-Figueroa v.

United States, 556 U.S. 646, 657 (2009) (holding that § 1028A(a)(1) requires proof that

defendant knew means of identification belonged to another person).

       Thus, Spencer’s sufficiency challenge fails on the merits.

5.     Validity of Underlying Deportation Order

       Spencer argues, apparently pro se, that the deportation order underlying his § 1326

conviction is invalid because he was not afforded a hearing prior to his removal from the

United States. See United States v. Copeland, 376 F.3d 61, 66 (2d Cir. 2004) (explaining

that alien can defend against illegal reentry charge under § 1326 by challenging validity

of deportation order upon which that charge is based). Because he failed to make this

argument before the district court, our review is for plain error. See United States v. Hsu,

669 F.3d 112, 118 (2d Cir. 2012) (stating that plain error requires showing of (1) error;

(2) that is clear or obvious; (3) affecting substantial rights, i.e., “affect[ing] the outcome

of the district court proceedings”; and (4) calling into question fairness, integrity, or

public reputation of judicial proceedings (quoting United States v. Marcus, 560 U.S. 258,

262 (2010))).

       We identify no error, let alone plain error, here. An alien may not challenge the

validity of a deportation order unless he demonstrates that (1) he exhausted available

administrative remedies to challenge the order, (2) the deportation proceedings at which

the order was issued deprived him of the opportunity for judicial review, and (3) entry of

the order was fundamentally unfair. See 8 U.S.C. § 1326(d); United States v. Daley, 702

                                              9
F.3d 96, 100 (2d Cir. 2012).       The record shows that Spencer was not denied the

opportunity for judicial review. Indeed, prior to his removal he had a hearing before an

Immigration Judge, appealed to the Board of Immigration Appeals, and petitioned for

review in this court, which ultimately dismissed the petition based on Spencer’s failure to

comply with scheduling orders or otherwise pursue his appeal. See Mandate, Spencer v.

INS, 03-4042-ag (2d Cir. Sept. 30, 2005). Insofar as Spencer now claims that he was

deprived of the ability to seek discretionary cancellation of removal, he has failed to

satisfy his burden to show a reasonable probability that the IJ would have granted such

cancellation. See United States v. Daley, 702 F.3d at 100.

       Accordingly, we reject Spencer’s collateral attack on the order of deportation

underlying his § 1326 conviction.2

6.     Conclusion

       We have considered Spencer’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the district court’s judgment.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




2
   Our rejection of this argument on the merits necessarily means that Spencer cannot
satisfy the prejudice prong of his related claim that trial counsel was ineffective in failing
to challenge the underlying deportation order. See Strickland v. Washington, 466 U.S. at
694.
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