10-0962-cr
USA v. Stroman


                             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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 26th day of April, two thousand eleven.

Present: ROBERT D. SACK,
         ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
                     Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           - v. -                                 No. 10-0962-cr

TRAVIS STROMAN, a/k/a TIMOTHY STROMAN,

                     Defendant-Appellant.
_________________________________________

For Defendant-Appellant:                           EDWARD S. ZAS, Federal Defenders of New York,
                                                   Inc., Appeals Bureau, New York, N.Y.

For Appellee:                                      ZAINAB AHMAD, Assistant United States Attorney
                                                   (Peter A. Norling, Assistant United States
                                                   Attorney, on the brief), for Loretta E. Lynch,
                                                   United States Attorney for the Eastern District of
                                                   New York, Brooklyn, N.Y.


        Appeal from the United States District Court for the Eastern District of New York (Glasser,
J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of conviction of the district court is AFFIRMED and the

sentence is VACATED and REMANDED for further proceedings.

       Defendant-Appellant Travis Stroman appeals from a judgment of conviction, entered on

March 15, 2010 and amended on March 29, 2010 in the United States District Court for the

Eastern District of New York (Glasser, J.), following a two-day jury trial, of one count of

possessing ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was

sentenced principally to 96 months’ imprisonment. Stroman’s conviction arose out of a shooting

on March 11, 2009 at a neighborhood grocery store in Brooklyn, New York, during which the

suspect discharged a firearm while chasing two individuals in the store, which resulted in no

injuries but damage to the glass door of a refrigerated beverage case. On appeal, Stroman argues

that the district court (1) committed reversible error in denying his motion to suppress allegedly

incriminating statements on the ground that those statements were made in response to the

functional equivalent of custodial interrogation under Miranda v. Arizona, 384 U.S. 436 (1966)

and Rhode Island v. Innis, 446 U.S. 291 (1980); (2) improperly admitted a hearsay statement

whose probative value was outweighed by the prejudice to the defendant; and (3) imposed a

procedurally unreasonable sentence by erroneously finding that Stroman discharged the firearm at

his intended victim with the specific intent to kill. We assume the parties’ familiarity with the

remaining facts and procedural history of the case, which we reference only as necessary to

explain our decision.

       We turn first to Stroman’s claim that his statements were the result of interrogation in

violation of Miranda and Innis. “When reviewing a district court’s ruling on a motion to suppress

                                                  2
evidence, we review the court’s factual findings for clear error, viewing the evidence in the light

most favorable to the government,” and its “legal conclusions are reviewed de novo.” United

States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008).

       Under Miranda, the government may not use any statements “stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination.” 384 U.S. at 444. These protections “come into

play whenever a person in custody is subjected to either express questioning or its functional

equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express

questioning, but also to any words or actions on the part of the police . . . that the police should

know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S.

at 300-01 (footnote omitted).

       On May 13, 2009, Federal Bureau of Investigation (“FBI”) agents and New York Police

Department officers arrested Stroman at his home with a warrant and brought him to an

interrogation room at the 73d Precinct station house. FBI Special Agent Jed Salter advised

Stroman that “he was being charged with a crime in connection with a shooting he committed in

March.” App. 30. Agent Salter told Stroman to remain silent, an instruction that Stroman claimed

he understood, and the agent informed Stroman that he would show Stroman video surveillance

footage. As Agent Salter began to show Stroman the video, Stroman started to speak, and Agent

Salter instructed him to remain silent. Despite the agent’s warning, as he watched the video,

Stroman repeatedly said “you can’t see my face.” App. 30. Defense counsel filed a pre-trial

motion to suppress Stroman’s statements as the product of custodial interrogation. The

Government, while conceding that Stroman was in custody at the time and was never given


                                                   3
Miranda warnings, argued that because Agent Salter had told Stroman to remain silent and showed

him the video to educate the defendant about the evidence against him, Stroman’s statements were

not the result of the functional equivalent of interrogation. The district court denied Stroman’s

motion to suppress.

       On appeal, Stroman argues that, by showing the video to him with the instruction to remain

silent, the agents knew that their actions were “reasonably likely to elicit an incriminating

response,” Innis, 446 U.S. at 301. In evaluating whether interrogation has violated the protections

afforded by Miranda, we must “consider police conduct in light of the totality of the circumstances

in assessing whether the police ‘should have known’ that their actions ‘were reasonably likely to

elicit an incriminating response.’” Acosta v. Artuz, 575 F.3d 177, 191 (2d Cir. 2009) (quoting

Innis, 446 U.S. at 303). Not all statements by the police regarding the nature and strength of the

evidence against a defendant constitute interrogation or its functional equivalent. See id.

(“[C]ourts have not endorsed the proposition that statements by law enforcement officials to a

suspect regarding the nature of the evidence against the suspect constitute interrogation as a matter

of law, recognizing that it simply cannot be said that all such statements are objectively likely to

result in incriminating responses by those in custody.” (internal quotation marks and alteration

omitted)); see also United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992) (“[T]he Innis

definition of interrogation is not so broad as to capture within Miranda’s reach all declaratory

statements by police officers concerning the nature of the charges against the suspect and the

evidence relating to those charges.”); Easley v. Frey, 433 F.3d 969, 974 (7th Cir. 2006) (officer’s

“matter-of-fact communication of the evidence” against the defendant was not interrogation).




                                                  4
       Stroman nevertheless argues that, when reviewing the “totality of the circumstances,”

Acosta, 575 F.3d at 191, this Court should conclude that the agents “should have known” that their

actions — forcing Stroman to watch a potentially incriminating videotape and requesting that he

remain silent — were “reasonably likely to elicit an incriminating response,” Innis, 446 U.S. at

301. Several courts have asserted that, under certain circumstances, showing evidence to the

defendant may be the functional equivalent of custodial interrogation. See, e.g., United States v.

Green, 541 F.3d 176, 187 (3d Cir.) (holding that showing video allegedly depicting defendant as

engaging in a criminal act was reasonably likely to elicit incriminating response), reh’g granted

and vacated, 304 F. App’x 981, 982 (3d Cir. 2008); United States v. Collins, 43 F. App’x 99, 101

(9th Cir. July 30, 2002) (playing audiotape to defendant was likely to elicit incriminating

response); United States v. Lovell, 317 F. Supp. 2d 663, 669 (W.D. Va. 2004) (concluding that

showing rifle to defendant was “functional equivalent” of interrogation). The question thus posed

by this case is whether the police conduct was intended to elicit an incriminating response from

Stroman before informing him of his Miranda rights.

       This Court has not had occasion to consider this question, and although the police conduct

at issue raises concerns that police may be able to sidestep Miranda’s safeguards, we need not

determine whether the agents’ actions rise to the level of a Miranda violation. Assuming

arguendo that Stroman’s statements were the product of interrogation and thus the district court

erred in not granting Stroman’s motion to suppress, we conclude that it was harmless error to

admit those statements at trial. Stroman argues that “there is a reasonable possibility that the

evidence complained of might have contributed to the conviction.” Chapman v. California, 386

U.S. 18, 23 (1967) (internal quotation marks omitted). The reasonable possibility standard asks


                                                  5
whether “the minds of an average jury would not have found the [government’s] case significantly

less persuasive had the testimony . . . been excluded.” Schneble v. Florida, 405 U.S. 427, 432

(1972) (internal quotation marks omitted). More recently, this Court stated that, according to the

Supreme Court,

       the following factors [are] relevant in determining whether the erroneous admission of
       a confession was harmless error: (1) the overall strength of the prosecution’s case; (2)
       the prosecutor’s conduct with respect to the improperly admitted evidence; (3) the
       importance of the wrongly admitted testimony; and (4) whether such evidence was
       cumulative of other properly admitted evidence.

Zappulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004).

       In light of these principles, we conclude that the introduction of Stroman’s statements was

harmless given the overall strength of the prosecution’s case and the weight given to the other

evidence. The jury was shown the video surveillance footage and could have made an independent

identification of Stroman as the shooter. Moreover, both Cynthia Whitaker, his former girlfriend,

who had accompanied Stroman to the store just prior to the shooting incident, and Stroman’s

former boss identified him as the shooter in the surveillance video. Whitaker further testified that

after the store owner informed her that someone had to pay for the broken glass door and she

relayed this information to Stroman, he responded by asking her to inquire as to how much the

repair would cost. During its summation, the Government emphasized Whitaker’s testimony,

asserting that the jury could render a guilty verdict based solely on Whitaker’s identification of

Stroman as the shooter. To be sure, the Government also placed emphasis on Stroman’s false

exculpatory statements, arguing that those statements constituted admissions by Stroman that he

was the person in the video. That factor supports a conclusion that if that evidence was admitted

erroneously, the error was not harmless. See, e.g., Zappulla, 391 F.3d at 471-72. We nonetheless



                                                  6
conclude that the evidence of guilt here was “so overwhelming” that the “minds of an average jury

would not have found the State’s case significantly less persuasive” in the absence of Stroman’s

allegedly incriminating statements. Schneble, 405 U.S. at 432; see also Medina v. Keane, 936

F.2d 681, 683-84 (2d Cir. 1991) (holding that the government had proven its case beyond a

reasonable doubt notwithstanding an improperly obtained post-arrest statement and therefore the

statement’s admission was harmless error).

       We turn next to Stroman’s challenge to the admission of a hearsay statement. Whitaker

testified that the store owner told her “the one you was in the store with earlier, he broke my glass

and somebody has to pay for it.” App. 137. Defense counsel objected on grounds of hearsay, but

the district court admitted the statement and gave a limiting instruction to the jury that the

statement was not being offered for the truth of its content but for the mere fact of having been

said to Whitaker. On appeal, Stroman argues that the statement should have been excluded on the

ground that the statement was likely viewed by the jury as an out-of-court identification of

Stroman as the shooter because “the jury [was] likely to consider the statement for the truth of

what was stated with significant resultant prejudice.” United States v. Forrester, 60 F.3d 52, 59

(2d Cir. 1995) (internal quotation mark omitted); see also United States v. Tussa, 816 F.2d 58, 66

(2d Cir. 1987) (finding limiting instruction insufficient to prevent error where the hearsay use went

to a highly material issue in the case). Nevertheless, we conclude that admission of the statement

was harmless in light of the aforementioned witness identifications of Stroman as the shooter and

Stroman’s own inquiry into the cost of the glass repair. See Forrester, 60 F.3d at 64 (“Error is

harmless if it is highly probable that it did not contribute to the verdict.” (internal quotation marks

omitted)).



                                                   7
       Finally, we turn to Stroman’s challenge to the procedural reasonableness of his sentence.

Review of a district court’s sentence for procedural reasonableness focuses on whether the district

court committed a “‘significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.’” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)). We review the district court’s factual findings for

clear error. See 18 U.S.C. § 3742(e).

       The Presentence Investigation Report identifies the applicable guideline under the United

States Sentencing Guidelines for the crime of possessing a firearm or ammunition as a felon, in

violation of 18 U.S.C. § 922(g)(1), as section 2K2.1. It notes that if the defendant uses

ammunition or a firearm in connection with another offense, then the district court, pursuant to

section 2X1.1, is to apply “[t]he base offense level from the guideline for the substantive offense,

plus any adjustments from such guideline for any intended offense conduct that can be established

with reasonable certainty.” U.S.S.G. § 2X1.1(a). In calculating the Guidelines range for

Stroman’s sentence, the district court, over the objections of defense counsel, applied the guideline

for second-degree murder, section 2A2.1(a)(2), which gives a base offense level of 27 and resulted

in a sentencing range of 78 to 97 months.

       On appeal, Stroman argues that it was clearly erroneous for the district court to conclude

that Stroman had the specific intent to kill necessary to justify imposition of the base offense level

for second-degree murder under section 2A2.1(a)(2). The Supreme Court has held that

“[a]lthough a murder may be committed without an intent to kill, an attempt to commit murder


                                                  8
requires a specific intent to kill.” Braxton v. United States, 500 U.S. 344, 351 n.* (1991) (internal

quotation marks omitted) (emphasis supplied); see also United States v. Kwong, 14 F.3d 189, 194

(2d Cir. 1994) (requiring specific intent to kill to convict for attempted murder). Therefore, the

district court must have concluded, by a preponderance of the evidence, that Stroman actually

attempted or intended to kill his victim. The district court found that Stroman had deliberately

fired his weapon:

         [l]ooking at that videotape, it was obvious Mr. Stroman was running into this bodega
         for the very specific purpose of shooting whoever it was he was aiming his gun at
         and had he hit him, he might very well have killed him. So, that was not an accident.
         It wasn’t a fortuitous event. It was obviously something he clearly intended to do.

         You don’t run into a bodega, running after somebody, pointing a gun at him and
         shooting at him, unless this is something you intended to do. I have no difficulty
         with that.

App. 328.

         This statement does not directly address whether Stroman intended to kill his victim.

Although the district court further stated that it “look[ed] like” Stroman was “attempt[ing] to kill

someone,” id. at 341, this statement does not support a finding of specific intent, and therefore we

conclude that the district court committed procedural error. Accordingly, we vacate Stroman’s

sentence and remand the case to the district court for resentencing.

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

Accordingly, for the foregoing reasons, Stroman’s conviction is AFFIRMED and the district

court’s sentence is VACATED and REMANDED for further proceedings consistent with this

order.

                                                       FOR THE COURT:
                                                       CATHERINE O’HAGAN WOLFE, CLERK




                                                   9
