15-2942-cr
United States v. Black

                            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 27th day of January, two thousand seventeen.

Present:
                  PETER W. HALL,
                  DEBRA ANN LIVINGSTON,
                  CHRISTOPHER F. DRONEY,
                            Circuit Judges.


UNITED STATES OF AMERICA,

                          Appellee,
                  v.                                                             15-2942-cr

ZACHARY BLACK,           ALSO KNOWN AS          TEHUTI B’ATZ
ELOHIM BEY,

                          Defendant-Appellant.*


For Appellee:                     Emily Berger, Hiral D. Mehta, Nadia E. Moore, Assistant
                                  United States Attorneys, for Robert L. Capers, United
                                  States Attorney for the Eastern District of New York,
                                  Brooklyn, New York.

For Appellant:                    Robert J. Boyle, New York, New York.


*   The Clerk of Court is respectfully directed to amend the official caption to conform with the above.

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15-2942-cr
United States v. Black


        Appeal from a judgment of the United States District Court for the Eastern

District of New York (Irizarry, C.J.).

        UPON      DUE     CONSIDERATION,          IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

        Black lodges four distinct challenges to his convictions and sentences for

conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846 and

conspiracy to commit money laundering in violation of 18 U.S.C. § 1956. All lack

merit. We assume the parties’ familiarity with the underlying facts, the district

court’s rulings, and the arguments presented on appeal.

   I.      Motion to Sever

        Black first takes issue with the district court’s denial of his pro se motion to

sever Counts I and II (the methylone conspiracy counts) of the fourth superseding

indictment. See United States v. Black, No. 1:13-cr-316 (E.D.N.Y. filed Oct. 20,

2014), ECF No. 133. That motion references both Federal Rule of Criminal

Procedure 8, which concerns joinder of offenses in an indictment, and Federal Rule

of Criminal Procedure 14, which permits relief when joinder appears to be unduly

prejudicial. See id.

        We review the denial of a Rule 8(a) motion de novo. United States v. Litwok,

678 F.3d 208, 216 (2d Cir. 2012). Joinder is proper if the offenses have a “sufficient

logical connection.” United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990). This

Court conducts a “twofold inquiry: [1] whether joinder of the counts was proper, and

if not, [2] whether misjoinder was prejudicial to the defendant.” Litwok, 678 F.3d at

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United States v. Black

216. Denial of a Rule 14 motion for relief from prejudicial joinder, on the other

hand, is reviewed for abuse of discretion. United States v. Sampson, 385 F.3d 183,

190 (2d Cir. 2004). Rule 14 motions “will not be overturned unless the defendant

demonstrates that the failure to sever caused him ‘substantial prejudice’ in the form

of a ‘miscarriage of justice.’”1 Sampson, 385 F.3d at 190 (quoting United States v.

Blakney, 941 F.2d 114, 116 (2d Cir. 1991)). We need not determine whether Black’s

pro se motion is properly construed as made under Rule 8 or Rule 14 because his

challenge fails even under our more stringent de novo review, and Black has failed

to demonstrate any prejudice whatever.

        In dismissing the methylone counts at the close of the Government’s

evidence, the district court recognized that “[t]he evidence . . . as to the [methylone]

goes in as relevant in establishing the relationship between Raddy Breton and

[Black].” Gov’t App’x 2. The district court also gave the following limiting

instruction after trial:

               Evidence was presented at trial about methylone, also
               known as molly. That evidence may be considered by you
               with respect to the relationship between the defendant
               and any co-conspirator in connection with the marijuana
               and money laundering conspiracies, and as to how the
               defendant ultimately came before the Court, but not as
               proof that the defendant is little [sic] guilty.

               The defendant is charged only with conspiracy to
               distribute and to possess with intent to distribute, I
               should say or to distribute marijuana, and conspiracy to
               commit money laundering.

1 The Government repeatedly misstates the standard governing Rule 8 motions while arguing that
Black’s motion fell under Rule 8. See Appellee’s Br. 27–28, 32, 44. Abuse of discretion review and the
“substantial prejudice in the form of a miscarriage of justice” standard apply to Rule 14 motions, not
Rule 8 motions. See Litwok, 678 F.3d at 216; Sampson, 385 F.3d at 190.

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United States v. Black


J. App’x 61–62.

       At one point during deliberations, the jury asked the district court if “the

indictment change[d] over the course of the trial.” J. App’x 109. At that point, the

district court further clarified its limiting instruction:

              With respect to your other question about the indictment,
              the jury is to consider only the two charges contained in
              the indictment that have been submitted to you.
              Conspiracy to distribute or to possess with intent to
              distribute marijuana and conspiracy to commit money
              laundering.

              You are not to speculate as to why the other charges were
              not submitted to you for your consideration. As I charged
              you previously, yesterday, evidence was presented at trial
              about methylone, also known as molly. That evidence may
              be considered by you with respect to the relationship
              between the defendant and any co-conspirator in
              connection with the marijuana and the money laundering
              conspiracies and as to how the defendant ultimately came
              before the court, but not as proof that the defendant is
              guilty.

              The defendant is charged only with conspiracy to
              distribute or possess with intent to distribute marijuana
              and conspiracy to commit money laundering.

J. App’x 113–14.

       Black was not convicted of the methylone counts, and they were not

submitted to the jury. The submitted evidence relating to the methylone conspiracy

was nonetheless admissible to show Black’s relationships with individuals who were

also part of the marijuana conspiracy, see United States v. Pipola, 83 F.3d 556, 566

(2d Cir. 1996) (explaining that “background information in a conspiracy case” may

be admissible to “help the jury understand the basis for the co-conspirators’

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United States v. Black

relationship of mutual trust”), and the district court issued two specific, adequate

limiting instructions to that end. Therefore, and given the remaining evidence of

guilt was substantial, see United States v. Ong, 541 F.2d 331, 338 (2d Cir. 1976)

(“[W]here untainted evidence of guilt is substantial, a greater demonstration of

prejudice resulting from an erroneous failure to sever must be made before the error

will be considered to require reversal.”), Black has failed to demonstrate any

prejudice resulting from the joinder of the two dismissed methylone counts.

      That there was no prejudice also dooms Black’s retroactive misjoinder

argument. Retroactive misjoinder occurs when “joinder of multiple counts was

proper initially, but later developments—such as a district court’s dismissal of some

counts for lack of evidence or an appellate court’s reversal of less than all

convictions—render the initial joinder improper.” United States v. Jones, 16 F.3d

487, 493 (2d Cir. 1994). Retroactive misjoinder applies where a defendant shows

“compelling prejudice.” United States v. Vebeliunas, 76 F.3d 1283, 1293–94 (2d Cir.

1996) (quoting Jones, 16 F.3d at 493)).

      In evaluating “compelling prejudice,” the Court considers: (1) whether “the

evidence introduced in support of the vacated count . . . was of such an

inflammatory nature that it would have tended to incite or arouse the jury into

convicting the defendant on the remaining counts[;]” (2) the degree of overlap and

similarity between the evidence and facts pertaining to the dismissed count and

that pertaining to the remaining counts; and (3) “a general assessment of the




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United States v. Black

strength of the government’s case on the remaining counts.” Id. at 1294 (internal

citations and quotation marks omitted).

         The methylone conspiracy evidence was not so inflammatory that it would

incite or arouse the jury because the evidence presented on the counts of conviction

was of a similar nature. See United States v. Hamilton, 334 F.3d 170, 182 (2d Cir.

2003) (evidence not inflammatory where “the evidence that the government

presented on the reversed counts was, as a general matter, no more inflammatory

than the evidence that it presented on the remaining counts.”). Further, the degree

of overlap between the methylone evidence and the marijuana and money

laundering evidence was slight, reducing the risk of prejudice because the jury could

easily separate and decide the counts. See id. at 183. And, as noted, the

Government’s case on the marijuana and money laundering conspiracies was

otherwise strong. Black has thus failed to demonstrate “compelling prejudice,” and

he has accordingly not established retroactive misjoinder.

   II.      Jury Instruction

         Black next challenges the district court’s instruction on his use of multiple

names. We review jury instructions de novo while “viewing the charge as a whole,”

and Black must demonstrate both error and prejudice for the instruction to

constitute reversible error. United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir.

2010) (quoting United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006)). Using

different names can be probative of consciousness of guilt, see United States v.




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15-2942-cr
United States v. Black

Stevens, 83 F.3d 60, 67 (2d Cir. 1996) (per curiam), and that is the purpose for

which this evidence was admitted.

      On appeal, Black argues that the legality of his name change strips any

probative value from his use of either name. The evidence, however, showed that

Black used the names “Zachary Black” and “Tehuti Bey” interchangeably,

depending on his activities. He used Bey when he was stopped by the police in

Oregon but used Black to rent a car, book hotel stays, and maintain bank accounts.

Using different names in different situations may in fact be probative of

consciousness of guilt, and the district court gave a tailored limiting instruction to

that effect. The district court did not err in so instructing the jury.

   III.   Sentence

      We likewise find no error in the imposed sentence. A sentence’s substantive

reasonableness is determined by assessing “the length of the sentence . . . in light of

the factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d

127, 132 (2d Cir. 2006), abrogated on other grounds by Kimbrough v. United States,

552 U.S. 85 (2007). Review for substantive reasonableness is highly deferential and

“akin to review for abuse of discretion.” United States v. Parnell, 524 F.3d 166, 169

(2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir 2006)).

      The district court articulated its reasons for departing upward, specifically

the need for punishment, the seriousness of Black’s crime, Black’s criminal history,

his commission of other, uncharged offenses, and his likelihood of recidivism. The

district court further took into account inconsistencies in the presentence report and


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United States v. Black

Black’s uncooperative stance in the preparation of that report. The complete

analysis and imposition of sentence were sound exercises of the district court’s

discretion. The sentence was substantively reasonable.

   IV.      Fine

         Finally, we find no error with respect to the $10,000 fine imposed pursuant to

§ 5E1.2(a) of the Sentencing Guidelines, which we review for abuse of discretion,

United States v. Salameh, 261 F.3d 271, 276 (2d Cir. 2001) (per curiam). As Black

acknowledges, he did not file a required list of assets with the Probation Office. See

Appellant’s Br. 55. The district court explicitly noted that his lack of cooperation

with the Probation Office meant that the Office could not corroborate any tax

information or provide any analysis of Black’s finances. Faced with the absence of

any concrete financial information, the district court reasonably based its analysis

on the fact that Black’s criminal enterprise laundered over $2.5 million. Further,

present inability to pay is not necessarily a bar to the imposition of a fine. See

United States v. Thompson, 227 F.3d 43, 45 (2d Cir. 2000) (“Evidence of present

indigence by itself, . . . is not an absolute barrier to the imposition of a fine”); see

also United States v. Kakoullis, 150 F. App’x 80, 82 (2d Cir. 2005) (summary order).

Here, Black failed to meet his burden to show that he was unable to pay and

unlikely to become able to pay the imposed fine.




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United States v. Black

      We have considered Black’s remaining arguments and find them to be

without merit. Accordingly, the district court’s judgment is AFFIRMED.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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