12-4652-cr
U.S. v. Falls


                              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
1st day of November, two thousand thirteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         AMALYA L. KEARSE,
         RICHARD C. WESLEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                       v.                                               No. 12-4652-cr

LARRY FALLS, AKA T, AKA TONE,

                Defendant-Appellant,

MICHAEL WALKER, AKA SWABS,

         Defendant.
________________________________________________

For Defendant-Appellant:                 MURRAY E. SINGER, Port Washington, NY;
                                         Larry Falls, pro se, White Deer, PA.
For Appellee:                             HILARY LEY JAGER (Emily Berger, on the brief),
                                          Assistant United States Attorneys, for Loretta E. Lynch,
                                          United States Attorney for the Eastern District of New
                                          York, Brooklyn, NY.


      Appeal from the United States District Court for the Eastern District of New York
(Cogan, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Larry Falls appeals from a judgment of conviction entered on

November 21, 2012, by the United States District Court for the Eastern District of New York

(Cogan, J.), convicting him, upon a jury verdict, of (1) conspiracy to distribute cocaine base and

marijuana, in violation of 21 U.S.C. §§ 846 and 841(a); (2) use of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); (3) possession of cocaine base

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and (4) being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following a hearing to determine certain facts

related to Falls’s sentencing, the district court found Falls responsible for a homicide as well as

an attempted kidnapping and robbery, and sentenced him to a total term of imprisonment of 360

months. We assume the parties’ familiarity with the relevant facts, the procedural history, and

the issues presented for review.

       Falls first argues that the evidence supporting his conviction on the two firearm counts is

legally insufficient because the conviction relied on Falls’s uncorroborated statements in

wiretapped telephone calls and in a post-arrest statement. Generally, “an accused may not be

convicted on his own uncorroborated confession” or admission, and the trustworthiness of such

statements must be established by “substantial independent evidence.” United States v. Bryce,

                                                 2
208 F.3d 346, 354 (2d Cir. 1999) (quoting Smith v. United States, 348 U.S. 147, 152 (1954), and

Opper v. United States, 348 U.S. 84, 93 (1954), respectively). However, the Second Circuit has

divided such statements into two categories: “those that bear insufficient indicia of reliability as

proof of the defendant’s commission of the offense to support a finding of guilt beyond a

reasonable doubt, and those that, considering the nature and the context of the defendant’s

words, demonstrate his commission of the offense so reliably that, without need of other

supporting evidence, they can support a finding of guilt beyond a reasonable doubt.” Opper, 348

U.S. at 355. While statements in the former category require corroboration through substantial

independent evidence, “[s]tatements in the latter category may be considered self-corroborating.”

Id.

        Falls claims that the recorded conversations presented at trial were insufficiently reliable

to be self-corroborating and were not corroborated by substantial evidence sufficient to establish

their reliability. We address the statements admitted at trial in turn. First, in a series of calls

between Falls and his brother, Harold Falls, Harold told Falls that an associate was trapped in a

building because the associate would be shot if he came out. Falls offered to help their associate

and stated that if he saw anyone outside the building, he would “get the flame throwers” and that

he had “a whole bunch of stuff” in his house. App. 499–500. In a second call about a half-hour

later, Falls told his brother that he had “already dropped them off.” Id. at 502–03. Looking at

these conversations, the district court found that, based on their nature and context, these

statements were self-corroborating, reasoning:

          Defendant’s brother called him asking for help, which defendant offered. Had
          defendant lied about either going to investigate or about possessing firearms, he
          would have potentially risked his own life as well as the lives of his brother and
          his friend. And unlike in Bryce, there is no ambiguity in defendant’s statements.

                                                    3
         They do not suggest that he could obtain firearms from a third-party if necessary;
         they outright demonstrate that he currently had firearms and that he had gotten
         them prior to investigating the area.

Id. at 543–44.

       While Falls challenges this conclusion, we are persuaded by the district court’s reasoning

and note that Falls has failed on appeal to identify any ambiguity in these statements that might

imply a plausible, non-culpable explanation, such that the statements should be deemed

unreliable. Cf. Bryce, 208 F.3d at 356 (finding uncorroborated statements insufficiently reliable

to support a cocaine possession charge where there was a likelihood that the defendant was

expressing his ability to obtain cocaine on the relevant dates, rather than his possession of

cocaine at the time of the statements). Therefore, we find that Falls’s statements to Harold Falls

were sufficiently reliable to be admissible without corroboration.

       Falls also challenges the sufficiency of a series of recorded conversations and post-arrest

statements relating to his purchase of firearms from his cousin, Ronnie Scott. On August 17,

2009, Falls and Scott discussed meeting at a rest stop in Maryland to conduct the transaction. At

trial, the government presented the testimony of an FBI agent who conducted surveillance on

Falls as he drove to Maryland that same day. The agents noticed that Falls’s driving behavior in

Maryland suggested an attempt to avoid surveillance, and they were concerned that their

presence might have been noticed; they thus ended their surveillance before Falls met up with

anyone. Additionally, the government played a recording from the following day, August 18,

2009, in which Falls told “Chuck,” a customer of his drug business, that he “got some new

things” and that he was “ready to start trouble.” Gov’t App. 67. In another recorded call from

August 24, 2009, Scott told Falls that he would try to get him “one more.” Id. at 72. Finally, in a



                                                 4
post-arrest statement, Falls said that he purchased two firearms from Scott in Maryland, and that

Falls had sold one of the guns to an individual named “Ty.”1

       In denying Falls’s motion for acquittal, the district court found that the fact that the FBI

agents observed Falls driving “to the Maryland rest stop corroborated the telephone

conversations he had with Scott . . . and defendant’s post-arrest statements . . . .” App. 544. We

agree. The agents’ observation that Falls made a trip to Maryland on the same day he discussed it

with Scott, as well as their observations of Falls’s surveillance-conscious driving behavior,

provided at least some degree of corroboration of Falls’s statement that he intended to purchase

firearms from Scott in Maryland, even though the agents felt constrained to cease any

surveillance before seeing any firearm transaction occurring. That this transaction actually

occurred is further corroborated by Falls’s post-trip statements to Chuck that he “got some new

things,” by Scott’s comment on August 24 that he would try to get Falls “one more,” and by

Falls’s own post-arrest statement that he purchased two guns from Scott in Maryland. This

combination of statements and other evidence thus provides corroboration for one another, such

that Falls’s statements relating to the Maryland gun purchase were sufficiently reliable to be

admissible. To the extent Falls takes issue with other statements admitted at trial, we have

considered his contentions and reject them as meritless.2

       1
         Prior to his August 17 trip, Falls had discussed with Buck, his drug supplier, selling a
gun to an individual named Tyhiim.
       2
         Falls alternatively argues that his conviction on count two, use of a firearm in
furtherance of a drug-trafficking crime, should be overturned because there was no evidence that
he possessed the firearm “in furtherance of a drug-trafficking crime.” We disagree. There was
sufficient evidence for a reasonable jury to infer that Falls possessed firearms at least in part to
protect and promote his narcotics-trafficking business, as many of the recorded statements either
were made to individuals involved in his drug business or implicated subject matter related to
that business.

                                                 5
        Next, Falls argues that the district court erred in admitting into evidence the recordings of

the calls between Falls and Kim Weston, and Falls and Harold Falls. Falls contends that the

admission of these calls violated Rules 402 and 403 of the Federal Rules of Evidence. “A district

court’s evidentiary rulings are subject to review for abuse of discretion.” United States v. Curley,

639 F.3d 50, 56 (2d Cir. 2011). In reviewing a Rule 403 determination, “[s]o long as the district

court has conscientiously balanced the proffered evidence’s probative value with the risk for

prejudice, its conclusion will be disturbed only if it is arbitrary or irrational.” United States v.

Massino, 546 F.3d 123, 132 (2d Cir. 2008) (per curiam) (quoting United States v. Awadallah,

436 F.3d 125, 131 (2d Cir. 2006)) (alterations omitted).

        With respect to Rule 402, Falls argues that the statements in these calls do not relate to

the sale of drugs or the purchase or the use of firearms in relation to a drug crime and therefore

are irrelevant to any issue at trial. We agree with the district court, however, that these

conversations were highly relevant specifically because they “show the use of guns in

connection with drug trafficking” and because these conversations were “by far the most direct

evidence tying the guns to the drugs.” App. 271.

        Falls also argues that the introduction of these statements was erroneous because the

statements’ “probative value is substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403. In balancing the probative value of evidence against the risk of unfair

prejudice, “[t]he question is not whether the evidence was suggestive of guilt[,] . . . but rather,

whether ‘it tends to have some adverse effect upon a defendant beyond tending to prove the fact

or issue that justifie[s] its admission into evidence.’” Massino, 546 F.3d at 132 (quoting United

States v. Figueroa, 618 F.2d 934, 943 (2d Cir.1980)). In the challenged statements, Falls



                                                   6
manifested an intention and willingness to commit various acts of violence. Falls again claims

that these statements have only minimal, if any, relevance, while the violent nature of these

statements unfairly excited the jury’s emotions against him, and they were therefore unduly

prejudicial.

       At trial, however, the district court expressly considered both the probative value of these

statements, which the court found to be significant, and the risk of undue prejudice, which the

court found to be diminished by the “inherent violence” in the use of guns as part of a drug

conspiracy, suggesting that Falls’s expressions of willingness to resort to violence would not

unduly change the jury’s view of the crime itself. App. 271. The district court even gave a

limiting instruction to the jury, stating with respect to these tapes that the jury should “[k]eep in

mind that Mr. Falls is not charged with any acts of violence, nor any propensity to commit

violence” and that the jury should consider them “only . . . in connection with determining

whether the government has met its burden of proof to prove the defendant guilty beyond a

reasonable doubt of the charges here, not anything having to do with violence.” Id. at 280. Thus,

it is clear that the district court “conscientiously balanced” these competing concerns, and its

conclusion was neither arbitrary nor irrational. See Massino, 546 F.3d at 132. Accordingly, we

find that the district court did not abuse its discretion in admitting these tapes into evidence.

       As to the third issue on appeal, Falls argues that the jury did not determine whether the

government proved that Falls had conspired to distribute or possessed with intent to distribute

marijuana, and therefore that he was never convicted of the exact crime charged in count one of

the indictment in violation of the Fifth Amendment. Specifically, count one charged that Falls

“knowingly and intentionally conspire[d] to distribute and possess with intent to distribute one or



                                                  7
more controlled substances, which offense involved (a) 50 grams or more of a substance

containing cocaine base . . . and (b) marijuana . . . .” Gov’t App. 15–16 (emphasis added). At

trial, the district court instructed the jury that, in order to find Falls guilty on count one, it had to

find that Falls conspired to distribute or possess with intent to distribute “a” controlled

substance, App. 426, and that they must find that he participated in the alleged conspiracy “with

knowledge of the unlawful purpose charged in the indictment, that is, to distribute or possess

with intent to distribute cocaine base or marijuana,” id. at 429 (emphasis added). Additionally,

the verdict sheet asked with respect to count one whether “the government prove[d] beyond a

reasonable doubt that . . . the defendant conspired to distribute or possess with intent to distribute

cocaine base or marijuana,” and then whether the conspiracy involved 50 grams or more of

cocaine base, both of which the jury answered in the affirmative. Id. at 479 (emphasis added).

Thus, Falls argues that to the extent that the verdict form altered the factual allegations in the

indictment by making count one disjunctive (cocaine or marijuana) rather than conjunctive

(cocaine and marijuana), the verdict form constitutes a constructive amendment of the

indictment in violation of his Fifth Amendment right to be tried on the indictment voted by the

grand jury.

        However, it is well established that “[a]s long as the crime and the elements of the

offense that sustain the conviction are fully and clearly set out in the indictment, the right to a

grand jury is not normally violated by the fact that the indictment alleges more crimes or other

means of committing the same crime.” United States v. Miller, 471 U.S. 130, 136 (1985).

Accordingly, “[w]here there are several ways to violate a criminal statute, . . . [f]ederal pleading

requires . . . that an indictment charge in the conjunctive to inform the accused fully of the



                                                    8
charges,” United States v. McDonough, 56 F.3d 381, 390 (2d Cir. 1995) (internal quotation

marks omitted) (second ellipses in original), and “[a] conviction under such an indictment will

be sustained if the evidence indicates that the statute was violated in any of the ways charged,”

id. See also United States v. Mejia, 545 F.3d 179, 207 (2d Cir. 2008) (“[A]lthough the

Indictment alleged that MS–13 engaged in both acts and threats of murder and narcotics

trafficking [which was not proven], Appellants’ conviction under that indictment was proper

because the jury found that the evidence indicated that the statute was violated in the other way

charged.” (internal quotation marks and brackets omitted)).

       Here, a conviction on count one could be supported by a finding that Falls conspired to

distribute or possess with intent to distribute either at least 50 grams of cocaine base—which the

jury explicitly found—or an unspecified amount of marijuana (or both). Therefore, under Miller,

Falls’s right to a grand jury indictment was not violated by the district court’s use of the

disjunctive in the jury instructions and the verdict sheet. To the extent that Falls argues that the

district court’s occasional use of the word “and,” such as when it read the indictment, could have

confused the jury, we are skeptical that any such confusion occurred given the clear language of

the verdict form and the district court’s generally consistent use of “or.” Accordingly, we reject

Falls’s Fifth Amendment challenge to his conviction on count one.

       Finally, Falls argues that his case should be remanded for resentencing because there was

a lack of credible evidence to support the district court’s finding that Falls was responsible for

the murder of Dwayne Scott and for conspiring to kidnap and rob Marsha Palmer. “[D]isputed

facts relevant to sentencing . . . need be established only by a preponderance of the evidence,”

United States v. Ruggiero, 100 F.3d 284, 290 (2d Cir. 1996) (internal quotation marks omitted),



                                                  9
and “[a] district court’s factual findings at sentencing may not be overturned unless clearly

erroneous,” id. at 291–92 (internal quotation marks omitted). “So long as the district court’s

account of the evidence is plausible in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently.” United States v. Reilly, 76 F.3d 1271, 1276 (2d

Cir. 1996) (internal quotation marks omitted).

       With respect to the murder of Dwayne Scott, Falls contends that the testimony of Harvey

Parrish, Falls’s alleged co-conspirator and the primary witness for the government at the

sentencing hearing, was insufficiently reliable to establish Falls’s involvement in the murder

because Parrish repeatedly changed his story, he was disbelieved by the government on certain

points, and his testimony was at times inconsistent with the other evidence presented at the

hearing. However, Parrish’s testimony was corroborated in large part by various pieces of

evidence admitted at the hearing: co-conspirator Chris Smith’s statements to investigators; police

reports describing the crime scene; other witnesses’ statements to the police; cell phone tower

data that confirmed the path and timing that Parrish described Falls, Smith, and him as taking on

the night of the murder; and Falls’s own statement that he was with Parrish and Smith that night.

Although there were some inconsistencies between Parrish’s testimony and some of the other

evidence, the district court fairly found that those inconsistencies paled in comparison to the

consistency of the government’s evidence on the whole, especially given the relatively low

preponderance-of-the-evidence standard that applies. Furthermore, while the history of Parrish’s

shifting statements to agents over the course of their investigation might provide cause to doubt

his credibility, such concerns were brought to light at the hearing and the district court expressly



                                                 10
found Parrish credible at the hearing. We see no basis to overturn that determination.

Accordingly, because the district court’s account is at the very least “plausible in light of the

record viewed in its entirety,” Reilly, 76 F.3d at 1276, we find that the district court did not

clearly err in finding Falls responsible for the murder of Dwayne Scott.

       As for the attempted robbery and kidnapping of Marsha Palmer, Falls argues that the

wiretapped conversations on which the district court’s finding was based demonstrate that he did

not intend to kidnap Palmer; rather, he and others merely sought to find out where Palmer lived

so that they could break into her apartment, with the sole goal of stealing money they believed

was kept there. Falls claims that any discussion of harm to Palmer was just “men blowing

smoke.” The district court rejected this interpretation at sentencing and found that, although the

main object of the conspiracy was attempted robbery, kidnapping was nonetheless a part of the

conspiracy. Given Falls’s recorded statements that he might “just knock [Palmer] out” and that

he should “go over there right now and tie her up,” and that if Palmer were to go near a car, they

could take her, App. 771–73, we cannot say that the district court clearly erred in finding that

the conspiracy to rob Palmer also included kidnapping as a component. Therefore, we reject

Falls’s arguments regarding his sentencing hearing in their entirety.

       We have considered Falls’s remaining arguments, including the argument in his pro se

submission that his sentence violates the rule articulated in Alleyne v. United States, 133 S. Ct.

2151 (2013), and find them to be without merit. For the reasons stated herein, the judgment of

the district court is AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




                                                  11
