     13-258 (L)
     USA v. Marsh

                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of May, two thousand fourteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                DENNIS JACOBS,
 8                JOSÉ A. CABRANES,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-258
16                                                                       13-2549
17       PRINCE MARSH AKA Daddy, AKA Pop,
18       WILLIAM ANDERSON, AKA Anton, AKA A
19       Town,
20                Defendants-Appellants.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANTS:                       ARZA FELDMAN, Feldman & Feldman,
24                                             Uniondale, New York, for
25                                             Defendant-Appellant Prince
26                                             Marsh.
27


                                                  1
 1                              ALEXANDER E. EISENMANN, New
 2                              York, New York, for Defendant-
 3                              Appellant William Anderson.
 4
 5   FOR APPELLEE:              DANIEL C. RICHENTHAL, Assistant
 6                              United States Attorney (with
 7                              Douglas B. Bloom and Brent S.
 8                              Wible, Assistant United States
 9                              Attorneys, on the brief), for
10                              Preet Bharara, United States
11                              Attorney for the Southern
12                              District of New York, New York,
13                              New York.
14
15        Appeal from judgments of the United States District
16   Court for the Southern District of New York (Karas, J.).
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the judgment of the district court be
20   AFFIRMED.
21
22        Prince Marsh and William Anderson (collectively,
23   “Defendants”) appeal from judgments of conviction entered on
24   January 15, 2013, and May 6, 2013, respectively, following a
25   two-week jury trial. We assume the parties’ familiarity
26   with the underlying facts, the procedural history, and the
27   issues presented for review.
28
29        On June 13, 2011, Marsh, Anderson, and others were
30   charged with a single count of conspiracy to distribute and
31   to possess with intent to distribute at least five kilograms
32   of cocaine base, in the form commonly known as crack, in
33   violation of 21 U.S.C. § 846. On August 2, 2011, Defendants
34   were convicted of involvement in a conspiracy that did not
35   involve more than 500 grams of powder cocaine or more than
36   50 grams of crack.
37
38        Evidentiary Objection. Over objection, the district
39   court permitted Special Agent Stephen Tortorella of the
40   Federal Bureau of Investigation (“FBI”) to testify that he
41   used a device called the “Cellebrite Universal Forensic
42   Extraction Device” (hereinafter, “Cellebrite”) to download
43   and review the contents of two cellular phones belonging to
44   Marsh’s girlfriend. Defendants claim that this testimony
45   improperly elicited expert opinion testimony from a non-
46   expert witness.
47

                                  2
 1        We accord a district court’s evidentiary rulings
 2   deference, and reverse only for abuse of discretion. United
 3   States v. Robinson, 702 F.3d 22, 36 (2d Cir. 2012). A
 4   district court has abused its discretion if its ruling is
 5   based on an erroneous view of the law or on a clearly
 6   erroneous assessment of the evidence, or if its decision
 7   cannot be located within the range of permissible decisions.
 8   In re Sims, 534 F.3d 117, 132 (2d Cir. 2008).
 9
10        “The Federal Rules of Evidence allow the admission of
11   fact testimony so long as the witness has personal
12   knowledge, see Fed. R. Evid. 602, while opinion testimony
13   can be presented by either a lay or expert witness, see Fed.
14   R. Evid. 701 & 702.” United States v. Cuti, 720 F.3d 453,
15   457-58 (2d Cir. 2013) (internal quotation marks,
16   punctuation, and citation omitted). “A witness’s
17   specialized knowledge, or the fact that he was chosen to
18   carry out an investigation because of this knowledge, does
19   not render his testimony ‘expert’ as long as it was based on
20   his investigation and reflected his investigatory findings
21   and conclusions, and was not rooted exclusively in his
22   expertise[.]” United States v. Rigas, 490 F.3d 208, 224 (2d
23   Cir. 2007).
24
25         Special Agent Tortorella explained his training in the
26   use of Cellebrite technology to retrieve text messages and
27   other data from a cellular phone; described how he used
28   Cellebrite to do so in this case; and testified that he
29   confirmed the results by checking the messages on the phone
30   itself. He then testified to the contents of the messages
31   retrieved from the phone. Tortorella did not purport to
32   render an opinion based on the application of specialized
33   knowledge to a particular set of facts; nor did his
34   testimony turn on or require a technical understanding of
35   the programming or internal mechanics of the technology.
36
37        Accordingly, the district court did not abuse its
38   considerable discretion in permitting Special Agent
39   Tortorella to testify to these facts pursuant to Rule 602.
40
41        Jury Instruction. Defendants argue that the conspiracy
42   charge was defective. “We review jury charges de novo,
43   reversing only where a charge either failed to inform the
44   jury adequately of the law or misled the jury about the
45   correct legal rule.” United States v. Ford, 435 F.3d 204,
46   209-10 (2d Cir. 2006) (internal citations omitted).
47

                                  3
 1        Defendants argue that a single sentence of the
 2   conspiracy instruction, read in isolation, suggests that a
 3   defendant may be convicted without the jury finding that the
 4   defendant joined the conspiracy with an intention to further
 5   its objective. However, “[w]e do not ‘review portions of
 6   [jury] instructions in isolation, but rather consider them
 7   in their entirety’” to determine whether they were adequate.
 8   Id. at 210 (quoting United States v. Weintraub, 273 F.3d
 9   139, 151 (2d Cir. 2001)).
10
11        The district court’s instruction clearly (and
12   repeatedly) emphasized the Government’s burden to prove a
13   defendant’s knowledge of and specific intent to further the
14   aims of the charged conspiracy. See, e.g., Anderson Br. 14
15   (“‘Again, what is necessary is that the Defendant must have
16   joined in the conspiracy with knowledge of at least some of
17   its purposes or objectives and with the intention of aiding
18   in the accomplishment of those unlawful ends.’”) (citing
19   Trial Tr., at 2586, Aug. 1, 2011); id. at 13 (“‘The key
20   question, therefore, is whether the Defendant you are
21   considering joined the conspiracy with an awareness of at
22   least some of the basic aims and purposes of the unlawful
23   agreement and with the specific intention to further those
24   aims and purposes.” (emphasis in original) (citing Trial
25   Tr., at 2584, Aug. 1, 2011)). As Defendants concede, the
26   district court’s instruction tracked Judge Sand’s model
27   instruction on conspiracy, see 1 L. Sand et al., Modern
28   Federal Jury Instructions 18-6, which is “routinely
29   charge[d]” in order “to ensure that jurors do not mistakenly
30   conflate the knowledge and intent aspects of the mens rea
31   necessary to prove a defendant’s joinder in a conspiracy.”
32   United States v. Svoboda, 347 F.3d 471, 479 n.8 (2d Cir.
33   2003).
34
35        Viewed in its entirety, the charge clearly set forth
36   the elements of conspiracy and “fairly and accurately
37   encompasse[d] the theory of the defense[.]” United States
38   v. Luis, 835 F.2d 37, 40 (2d Cir. 1987). That is all the law
39   requires.
40
41        Jury Deliberations. Finally, Defendants argue that the
42   district court’s response to a jury note was erroneous and
43   misleading. “The trial court enjoys considerable discretion
44   in construing the scope of a jury inquiry and in framing a
45   response tailored to the inquiry.” United States v. Rommy,
46   506 F.3d 108, 126 (2d Cir. 2007) (citation omitted). Any
47   supplemental charge given by the trial court must be

                                  4
 1   considered “in its context and under all the circumstances.”
 2   Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (internal
 3   quotation marks omitted).
 4
 5        On August 2, 2011, after the jury had begun its
 6   deliberations, the jury sent this not:
 7
 8            Q. If we don’t find the defendant
 9            possessed 50 grams of crack or 500 mg[1]
10            of cocaine but we determine a conspiracy
11            exists, is he guilty?
12
13   Trial Tr., at 2642, Aug. 2, 2011. In response, the district
14   court explained that the jury could find a defendant guilty
15   only if it found that that defendant had joined a conspiracy
16   to distribute one or more controlled substances,
17   irrespective of whether it found that the defendant was
18   responsible for less than 50 grams of crack or 500 grams of
19   cocaine.2 Thus, the district court reasonably interpreted

         1
              The district court assumed that the jury note
     meant to say “grams.”
         2
              The district court’s full response:

              [T]he answer to your question is no,
              because in addition [to] proving that a
              conspiracy existed, the Government also
              must prove beyond a reasonable doubt that
              the defendant you are considering was a
              member of that conspiracy. If you do not
              find those two elements proven beyond a
              reasonable doubt as to the defendant you
              are considering, you must acquit that
              defendant. If, however, you unanimously
              conclude that these elements have been
              proven beyond a reasonable doubt, then
              you should convict that defendant even if
              you find that the defendant was involved
              in less than 50 grams of crack and/or 500
              grams of cocaine. In other words, the
              weight of the controlled substances is
              not an element you must determine in
              deciding whether the defendant you are
              considering is guilty of the conspiracy
              charged in the Indictment.

         Court’s Ex. L, Aug. 2, 2011.
                                  5
 1   the note’s primary concern and crafted a response both
 2   legally accurate and “fair to both sides.” United States v.
 3   GAF Corp., 928 F.2d 1253, 1263 (2d Cir. 1991). This was no
 4   abuse of discretion.
 5
 6        For the foregoing reasons, and finding no merit in
 7   Defendants’ other arguments, we hereby AFFIRM the judgment
 8   of the district court.
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12




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