    09-1160-cr
    United States v. Harrington



                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT
FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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, 500 Pearl Street, in the City of New
    York, on the 23rd day of March, two thousand ten.

    PRESENT:
                RALPH K. WINTER,
                DEBRA ANN LIVINGSTON,
                            Circuit Judges.*
    __________________________________________

    United States of America,

                       Appellee,

                       v.                                              09-1160-cr

    Russell Harrington,

                Defendant-Appellant.
    __________________________________________




             *
             The Honorable Lewis A. Kaplan, sitting by designation from the United States District
    Court for the Southern District of New York, originally a member of the panel, did not
    participate in consideration of this appeal. The two remaining members of the panel, who are in
    agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. I.O.P. E; United States v.
    Desimone, 140 F.3d 457 (2d Cir. 1998).
FOR APPELLANT:                 SAM A. SCHMIDT, Law Office of Sam A. Schmidt, New York,
                               NY.

FOR APPELLEE:                  PREET BHARARA, United States Attorney for the Southern
                               District of New York, KENNETH ALLEN POLITE, JR. and
                               MICHAEL D. MAIMIN, Assistant United States Attorneys, New
                               York, NY.


       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments of the district court be AFFIRMED.

       Defendant-Appellant Russell Harrington appeals from a March 18, 2009 judgment of the

United States District Court for the Southern District of New York (Kaplan, J.) sentencing him

principally to 188 months’ imprisonment. We assume the parties’ familiarity with the underlying

facts, procedural history, and the issues on appeal.

       On May 5, 2006, a one-count indictment was filed charging Harrington with possession of

a firearm by a previously convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On June

13, 2007, after a two-day jury trial before Judge Sprizzo, Harrington was convicted of the sole count

of the indictment. On March 6, 2009, after the case was reassigned from Judge Sprizzo to Judge

Kaplan, Harrington was sentenced pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), to a term of 188 months’ imprisonment. On appeal, Harrington makes arguments with

respect to both the judgment of conviction and his sentence. For the reasons that follow, we reject

all of Harrington’s arguments.

I.     Judgment of Conviction

       The government must prove three elements under Section 922(g)(1): “(1) knowing

possession of the firearm [or ammunition], (2) a previous felony conviction, and (3) the possession

being in or affecting commerce.” United States v. Amante, 418 F.3d 220, 221 n.1 (2d Cir. 2005).

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The district court here allowed Harrington to present evidence of—and instructed the jury on—an

“innocent possession” defense to Section 922(g)(1).1 Harrington argued that because he possessed

the firearm at issue only in order to turn it over to New York City’s “Toys for Guns” program, he

could not be convicted under Section 922(g)(1). The government was then permitted to introduce

evidence of Harrington’s 1991 New York State conviction for Robbery in the First Degree, a crime

that Harrington allegedly used a firearm to commit, to establish that Harrington’s intent in possessing

the firearm in connection with the instant offense was not, in fact, innocent. At trial, the government

placed a certified copy of the record of Harrington’s robbery conviction into evidence. However,

although Harrington has not disputed that he possessed a weapon at the time of his prior robbery,

the record of conviction does not, in fact, indicate that the robbery was committed using a firearm.

       Harrington argues that this was propensity evidence admitted in violation of Federal Rule of

Evidence 404(b), which prohibits admission of “[e]vidence of other crimes, wrongs, or acts . . . to

prove the character of a person in order to show action in conformity therewith,” but permits

admission of such evidence “for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b).

We review evidentiary rulings for abuse of discretion. United States v. Mercado, 573 F.2d 138, 141

(2d Cir. 2009). Additionally, “evidentiary rulings are subject to harmless error analysis.” Id. In

reviewing for harmless error, “we principally consider: (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 [evidence]; and (4) whether such evidence was cumulative of

       1
        This Court has not decided whether such a defense exists. Cf. United States v. White,
552 F.3d 240, 248-49 (2d Cir. 2009) (describing “fleeting possession” affirmative defense to
Section 922(g)(1) and noting that defense has not been recognized in this Circuit, other than in
dicta). We need not reach the question here.
                                                3
other properly admitted evidence.” United States v. McCallum, 584 F.3d 471, 478 (2d Cir. 2009).

The most important of these factors is the strength of the government’s case. Id.

        Here, we easily conclude that whatever error was committed in introducing the certified copy

of the conviction into evidence, the error was harmless.            First, and most importantly, the

government’s case against Harrington was “indisputably strong.” Id. Harrington stipulated to two

elements of Section 922(g)(1)—that he had a previous felony conviction and that the gun had

traveled in commerce. And with regard to the “knowing possession of a firearm” element of the

offense, the government presented ample evidence at trial from which the jury could without

difficulty conclude that Harrington’s possession was knowing, including police testimony regarding

the recovery of the weapon by officers after Harrington was observed discarding it and Harrington’s

own admission that he possessed the weapon. Finally, even assuming this Circuit were to recognize

an innocent possession defense, the government’s case that Harrington’s possession was not innocent

was equally strong. Although Harrington argued at trial he possessed the firearm so that he could

turn it into the “Toys for Guns” program, this program did not exist in 2006 when Harrington was

arrested. Additionally, Harrington’s explanation for his possession changed between his post-arrest

written statement, in which he stated that he found the weapon and took possession of it to turn it

in for presents for his daughter, and the story he told to his parole officer, that he took possession of

the weapon to prevent a young boy from having access to it. These discrepancies provided further

reason for the jury to disbelieve his defense.

        As to the use made of the robbery conviction at trial, once the government introduced the

record of conviction into evidence, no further mention of this conviction was made by either party

for the remainder of the trial. See McCallum, 584 F.3d at 478 (noting as relevant in the harmless


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error analysis that “the government did not draw undue attention to the prior convictions, omitting

as it did any discussion of the convictions in its summation or rebuttal”). The jury was already

aware, moreover, that the defendant had committed a prior felony, based on the parties’ stipulation.

In light of these considerations, we conclude that any error in the district court’s admission of the

record of conviction was harmless.

II.     Sentencing

       Harrington makes two principal arguments with regard to his sentence. First, he argues that

he was improperly sentenced as an armed career criminal because a jury, rather than the sentencing

judge, should have determined whether he committed the predicate offenses for purposes of the

ACCA. Second, he argues that it was improper to count a 1990 armed robbery conviction as a

predicate offense for the ACCA because he was 16 years old when he committed the offense. We

review these issues of law de novo. United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).

       Under the ACCA, a defendant is subject to an enhanced penalty if he violates Section 922(g)

and has three previous convictions for a “violent felony” or “serious drug conviction.” 18 U.S.C.

§ 924(e). As defined by the statute,

            (B) the term “violent felony” means any crime punishable by imprisonment
            for a term exceeding one year, or any act of juvenile delinquency involving
            the use or carrying of a firearm, knife, or destructive device that would be
            punishable by imprisonment for such term if committed by an adult, that--
                     (i) has as an element the use, attempted use, or threatened use of
            physical force against the person of another; or
                     (ii) is burglary, arson, or extortion, involves use of explosives, or
            otherwise involves conduct that presents a serious potential risk of physical
            injury to another; and
            (C) the term “conviction” includes a finding that a person has committed an
            act of juvenile delinquency involving a violent felony.

Id. Moreover, “[w]hat constitutes a conviction of a [crime punishable by imprisonment for a term


                                                 5
exceeding one year] shall be determined in accordance with the law of the jurisdiction in which the

proceedings were held.” Id. § 921(20).

        Harrington’s first argument is foreclosed by the Supreme Court’s and this Circuit’s precedent.

He argues that Almendarez-Torres v. United States, 523 U.S. 224 (1997), which held that recidivism

is a sentencing factor rather than an element of the crime, was either wrongly decided or has been

overruled. Since it was decided, however, this principle from Almendarez-Torres has been repeatedly

reaffirmed by the Supreme Court. See Blakely v. Washington, 542 U.S. 296, 301 (2004) (“Other than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis

added)); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (same). Moreover, this Court has

affirmed that it is a role for the district court, not a jury, to find the predicate felony convictions before

sentencing a defendant as an armed career criminal. See United States v. Massey, 461 F.3d 177, 179

(2d Cir. 2006); United States v. Estrada, 428 F.3d 387, 390 (2d Cir. 2005) (“[T]he Supreme Court’s

ruling in Almendarez-Torres . . . that recidivism is a sentencing factor rather than an element of the

crime, remains good law, and it is not within the purview of the Courts of Appeals to anticipate

whether the Supreme Court may one day overrule its existing precedent.” (internal quotation marks

omitted)). Thus, it was not error for the district court, rather than a jury, to determine that Harrington

had committed the predicate felonies in this case.

        Harrington next argues that one of the predicate felonies on which his status as an armed

career criminal was based was committed when Harrington was 16 years old and should not count

for purposes of the ACCA. The district court determined that Harrington’s 1990 commission of

Attempted Robbery in the Second Degree for which he was tried and, in 1991, sentenced as an adult


                                                      6
was a “violent felony” under Section 924(e). Harrington asserts that Section 924(e) should be read

such that all youthful offenders are considered to have committed an “act of juvenile delinquency”

and therefore, before such an offense can count as a predicate offense for the ACCA, it must

“involv[e] the use or carrying of a firearm, knife, or destructive device.” Under this interpretation of

the statute, even though Harrington was tried and sentenced as an adult, his 1991 attempted robbery

conviction cannot count as an ACCA predicate because the offense did not involve the use of a

firearm, knife, or destructive device. Harrington is incorrect.

       Section 924(e) provides that a “violent felony” means a “crime punishable by imprisonment

for a term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). Section 921(20) explicitly states that

whether a given conviction satisfies this definition “shall be determined in accordance with the law

of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(20). This Court has also

affirmed that “[a]n offense constitutes an act of juvenile delinquency [for purposes of the ACCA] if

it is adjudicated as such by the applicable state.” United States v. Daye, 571 F.3d 225, 230 n.7 (2d

Cir. 2009) (citing United States v. Lender, 985 F.2d 151, 156 (4th Cir. 1993)). Thus, under the

unambiguous language of the statute, since Harrington was convicted, in state court, as an adult, of

a “crime punishable by imprisonment for a term exceeding one year” that “has as an element the . .

. attempted use . . . of physical force,” he committed a “violent felony.” 18 U.S.C. § 924(e). Because

New York adjudicated him as an adult, and because Section 924(e) does not incorporate an age

threshold below which a conviction is automatically an “act of juvenile delinquency,” there is no need

in this case to refer to the provision of Section 924(e) that provides a way for “act[s] of juvenile

delinquency” to count as predicate violent felonies.

       To the extent Harrington argues that this reading of the statute runs afoul of Taylor v. United


                                                   7
States, 495 U.S. 575 (1990), we disagree. In Taylor, the Supreme Court determined that it was

unclear whether Congress had intended to make a statutory term dependent on state law. Id. at 580.

Here, by contrast, Congress defined “crime punishable by imprisonment for a term exceeding one

year” with explicit reference to state law. 18 U.S.C. § 921(20); see also Daye, 574 F.3d at 230 n.7.

Taylor is therefore distinguishable. We similarly reject any argument that this reading of Section

924(e) violates Harrington’s equal protection rights. It is not irrational for Congress to define some

aspects of federal statutes with reference to state law. See United States v. Lender, 985 F.2d 151, 156

n.* (4th Cir. 1993).

         We have considered the remainder of Harrington’s claims and determined them to be without

merit.

         For the foregoing reasons, the judgments of the district court are hereby AFFIRMED.




                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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