     13-359(L)
     USA v. Reed, et al.

                           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 25th day of June, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                ROSEMARY S. POOLER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14                                                               13-359-cr(L)
15                    -v.-                                       13-360(con),
16                                                                13-380(con)
17       GREGORY REED, also known as Sharky
18       JOHN JOHNSON, RONNIE GONZALEZ, also
19       known as Satan,
20                Defendants-Appellants.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLEE:                         TODD W. BLANCHE, Assistant
24                                             United States Attorney (with
25                                             Brent S. Wible, Assistant United
26                                             States Attorney, on the brief),
27                                             for Preet Bharara, United States
28                                             Attorney for the Southern

                                                  1
 1                              District of New York, New York,
 2                              New York.
 3
 4   FOR APPELLANTS:            JEREMY SCHNEIDER (with Lucas
 5                              Anderson on the brief), Rothman,
 6                              Schneider, Soloway & Stern, LLP,
 7                              New York, New York, for Gregory
 8                              Reed.
 9
10                              James E. Neuman (with David S.
11                              Greenfield on the brief), New
12                              York, New York, for John
13                              Johnson.
14
15                              Thomas H. Nooter, Freeman,
16                              Nooter & Ginsberg, New York, New
17                              York, for Ronnie Gonzalez.
18
19        Appeal from a judgment of the United States District
20   Court for the Southern District of New York (Sullivan, J.).
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23   AND DECREED that the judgments of the district court be
24   AFFIRMED.
25
26        Gregory Reed and John Johnson appeal from judgments of
27   conviction entered on January 17, 2013, and Ronnie Gonzalez
28   appeals from a judgment of conviction entered on January 23,
29   2013, in the United States District Court for the Southern
30   District of New York (Sullivan, J.). We decide the Sixth
31   Amendment claim raised by Reed in a separate opinion issued
32   simultaneously with this summary order. We assume the
33   parties’ familiarity with the underlying facts, the
34   procedural history, and the issues presented for review.
35
36        On June 6, 2011, a three-count federal indictment was
37   filed against Reed, Johnson, and Gonzales (collectively,
38   “Defendants”). Count One charged Defendants with conspiracy
39   to commit Hobbs Act robbery, in violation of 18 U.S.C. §
40   1951. Count Two charged Reed, Johnson, and Gonzalez with
41   attempted Hobbs Act robbery, in violation of 18 U.S.C. §
42   1951. Count Three charged Reed, Johnson, and Gonzalez with
43   causing the death of Bernardo Garcia through the use of a
44   firearm during and in furtherance of the crimes charged in
45   Counts One and Two, in violation 18 U.S.C. § 924(j). A jury
46   found each defendant guilty on each count.
47

                                  2
 1        “Because [Defendants] appeal[] from a judgment of
 2   conviction entered after a jury trial, the following facts
 3   are drawn from the trial evidence and described in the light
 4   most favorable to the government.” United States v. Wilson,
 5   709 F.3d 84, 85 (2d Cir. 2013) (per curiam).
 6
 7        On December 1, 2007, Donnell Richardson, a drug dealer
 8   with a long and varied criminal history, enlisted Reed and
 9   Gonzalez to rob a small ring of drug dealers operating out
10   of the lobby of a residential building in the Bronx (the
11   “Building”). Reed, in turn, recruited Johnson. Richardson
12   wanted to rob the drug dealers of their guns and take over
13   the Building for himself. As payment, it was agreed that
14   Reed, Johnson, and Gonzalez would keep any drugs and money
15   they could grab.
16
17        That same day, Gonzalez served as look-out and
18   Richardson waited in his car across the street while Reed
19   and Johnson entered the Building. When one of the dealers,
20   Luis Navarro, ran toward a stairwell, Reed fired into the
21   air. Johnson then shot and killed the other dealer, a
22   teenager named Bernardo Garcia. Reed, Johnson, and Gonzalez
23   immediately fled without taking any drugs, guns, or money.
24   Eventually, Donnell Richardson agreed to cooperate with the
25   Government’s investigation and prosecution (but not before
26   he had established his own highly-profitable drug-dealing
27   operation in the Building).
28
29       A.   Sufficiency of the Evidence
30
31        Reed and Gonzalez challenge the evidentiary sufficiency
32   of their convictions for Hobbs Act robbery. We review
33   sufficiency challenges de novo, “view[ing] the evidence in
34   the light most favorable to the government, crediting every
35   inference that could have been drawn in the government’s
36   favor, and deferring to the jury’s assessment of witness
37   credibility, and its assessment of the weight of the
38   evidence.” United States v. Chavez, 549 F.3d 119, 124 (2d
39   Cir. 2008) (internal quotation marks, citations, and
40   alterations omitted). A “conviction must be upheld if any
41   rational trier of fact could have found the essential
42   elements of the crime beyond a reasonable doubt.” Id. at 124
43   (internal quotation marks omitted, emphasis in original).
44
45        The Hobbs Act proscribes (inter alia) robbery,
46   attempted robbery, and conspiracy to commit robbery that “in
47   any way or degree obstructs, delays, or affects” interstate

                                  3
 1   commerce. 18 U.S.C. § 1951(a). “Robbery” is “the unlawful
 2   taking or obtaining of personal property from the person . .
 3   . , against his will, by means of actual or threatened
 4   force, or violence, or fear of injury, immediate or future,
 5   to his person or property . . . .” 18 U.S.C. § 1951(b)(1).
 6   While the jurisdictional (i.e., interstate) element of the
 7   Hobbs Act “must be proven beyond a reasonable doubt, just as
 8   any other element, we recognize that the effect on
 9   interstate commerce need only be slight or subtle.” United
10   States v. Needham, 604 F.3d 673, 681 (2d Cir. 2010);
11   see also United States v. Fabian, 312 F.3d 550, 554 (2d Cir.
12   2002) (“Our precedent requires the government make only a
13   de minimis showing to establish the necessary nexus for
14   Hobbs Act jurisdiction.”).
15
16            1.   Intent to Commit Hobbs Act Robbery
17
18        Reed and Gonzalez argue that evidence was insufficient
19   evidence to conclude beyond a reasonable doubt that
20   Defendants had conspired to commit or attempted to commit a
21   robbery; they claim that the incident was a “straightforward
22   shooting.”1 Gonzalez Br. 17; see also Reed Br. 40 (“Every
23   objective item of evidence presented at trial, including
24   Navarro’s testimony, indicates that this crime was an
25   intentional murder, and not an attempted robbery.”).
26
27        “Attempt is an inchoate offense, requiring that a
28   defendant have taken a substantial step in furtherance of
29   the intended crime to support conviction.” United States v.
30   Davis, 689 F.3d 179, 187 (2d Cir. 2012) (internal quotation
31   marks omitted). The detailed testimony of Richardson
32   sufficiently evidenced Defendants’ intent to commit robbery.
33   Richardson testified that he hired Defendants to rob the
34   dealers at the Building so as to scare them off and replace
35   them. As payment, he told Defendants that they would keep
36   whatever money and drugs were recovered. This provided
37   Defendants with substantial pecuniary incentive to assist
38   Richardson: Luis Navarro (the surviving victim) testified
39   that he and his associates sold between $10,000 and $20,000
40   of crack cocaine and heroin every week. Trial Tr. 1055-59.
41   And for that reason, according to Richardson, “[Defendants]



         1
              This challenge implicates our jurisdiction under
     the Hobbs Act as well as Defendants’ guilt of the underlying
     substantive offense.
                                  4
 1   agreed to do the robbery.   They was [sic] getting the money
 2   and drugs.” Id. at 527.
 3
 4        Reed asserts that Richardson was “an inherently
 5   unreliable witness.” Reed Br. 39. However, “[a]ssessments
 6   of witness credibility and choices between competing
 7   inferences lie solely within the province of the jury,”
 8   United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010), and
 9   this Court must view Richardson’s testimony in the light
10   most favorable to the verdict. In that light, the jury was
11   free to credit Richardson’s testimony that this was a
12   robbery that did not go as planned.
13
14        Reed and Gonzalez claim that, whatever their intent,
15   the evidence was insufficient because the men did not
16   actually make any demands for drugs or money, let alone take
17   any. Based on Richardson’s testimony, the jury could
18   conclude that Reed, Gonzalez, and Johnson each had the
19   requisite specific intent to rob Navarro and Garcia. By the
20   time Reed and Johnson entered the Building, with Gonzalez on
21   watch and Richardson waiting in the wings, the would-be
22   robbers had already taken a substantial step toward
23   completing that crime. See United States v. Farhane, 634
24   F.3d 127, 147 (2d Cir. 2011) (“[A] ‘substantial step’ must
25   be ‘something more than mere preparation, yet may be less
26   than the last act necessary before the actual commission of
27   the substantive crime.’” (quoting United States v. Manley,
28   632 F.2d 978, 987 (2d Cir. 1980)).
29
30            2.   Hobbs Act Jurisdiction
31
32        Reed and Gonzalez argue that the Government failed to
33   prove the jurisdictional element of its Hobbs Act claims
34   beyond a reasonable doubt.
35
36        The Government rested federal jurisdiction on the
37   expert testimony of Special Agent Daniel Dyer of the Drug
38   Enforcement Agency that neither cocaine (crack’s predecessor
39   compound) nor heroin is produced in the United States. A
40   reasonable jury would certainly be free to disregard the
41   possibility, raised by Gonzalez on cross-examination, that
42   Navarro or his unnamed suppliers grew their own coca and
43   poppy plants and then went through the arduous process of
44   making cocaine and heroin from them--particularly in light
45   of Dyer’s testimony that hundreds of kilograms of coca leaf
46   are required to produce a single kilogram of cocaine. Cf.
47   United States v. Parkes, 497 F.3d 220, 231 (2d Cir. 2007)

                                   5
 1   (holding that testimony that marijuana was “almost
 2   exclusively” imported into the United States and that “very
 3   little” marijuana was grown in New York was sufficient to
 4   establish interstate nexus) (alteration omitted). In any
 5   event, we have held that expert testimony is unnecessary to
 6   establish Hobbs Act jurisdiction because “[t]he importation
 7   and interstate transportation of cocaine, as well as the
 8   financial size of the cocaine trade, have been routinely and
 9   copiously discussed by public officials, candidates for
10   office, and the news media for decades.” United States v.
11   Gomez, 580 F.3d 94, 102 (2d Cir. 2009). Special Agent
12   Dyer’s testimony was therefore sufficient to establish
13   beyond a reasonable doubt that a robbery of crack cocaine or
14   heroin would have at least a de minimis effect on interstate
15   commerce.
16
17       B.   Limitation of Cross-Examination of Richardson
18
19        Gonzalez argues that the district court abused its
20   discretion when it proscribed cross-examination into
21   Richardson’s “history of taking advantage of
22   minors--particularly, his conviction for the statutory rape
23   of a 14-year-old girl and his sexual conduct with a
24   16-year-old cousin who had run away from home and was
25   dependent on the witness financially and for shelter.”
26   Gonzalez Br. 17-18.
27
28        Because “the trial court is accorded broad discretion
29   in controlling the scope and extent of cross-examination[,]”
30   United States v. Caracappa, 614 F.3d 30, 42 (2d Cir. 2010)
31   (internal quotation marks omitted), we disturb such rulings
32   only if “persuaded that the trial judge ruled in an
33   arbitrary and irrational fashion.” United States v. Pipola,
34   83 F.3d 556, 566 (2d Cir. 1996). In particular, we look to
35   whether “the jury [was] in possession of facts sufficient to
36   make a discriminating appraisal of the particular witness’s
37   credibility.” United States v. Laljie, 184 F.3d 180, 192
38   (2d Cir. 1999) (internal quotation marks omitted).
39
40        In performing the required balancing under Federal Rule
41   of Evidence 403, the district court determined that the jury
42   was likely to be “distract[ed]” by Richardson’s sexual
43   abuses, and consequently unable to assess fairly his
44   credibility. Gonzalez App’x 39. This was not an arbitrary
45   or irrational finding. Cf. United States v. Rosa, 11 F.3d
46   315, 336 (2d Cir. 1993) (“Nor was it an abuse of discretion
47   to exclude evidence of certain types of acts such as rape

                                  6
 1   and burglary as having an insufficient bearing on the
 2   witness’s credibility.”).
 3
 4        Moreover, Richardson testified at great length to a
 5   life of violent crime and drug-dealing, including, for
 6   example, many drive-by shootings and thefts from his own
 7   family. He also admitted a guilty plea to assaulting his
 8   wife, then only seventeen years old and six months pregnant
 9   with their child. In light of this evidence, “the jury
10   [was] in possession of facts sufficient to make a
11   discriminating appraisal of . . . [Richardson’s]
12   credibility,” and the district court did not abuse its
13   discretion in excluding inquiry into two further examples of
14   his predatory abuse of young girls.2 Laljie, 184 F.3d at
15   192.
16
17       C.   John Johnson’s Appeal
18
19            1.   Motion to Suppress Identification Testimony
20
21        Johnson argues that due process was violated because
22   Richardson’s trial identification of him as one of the
23   robbers was tainted by two suggestive pretrial photo arrays.
24
25        The Government concedes (as it ultimately did below)
26   that the photo arrays were unduly suggestive. Nonetheless,
27   after hearing testimony from Richardson, the district court
28   concluded from the totality of the circumstances that
29   Richardson had a sufficient independent basis for making a
30   reliable trial identification of Johnson as the third
31   robber. Accordingly, Richardson’s identification of Johnson
32   was admitted pursuant to the inquiry elaborated in Neil v.
33   Biggers, 409 U.S. 188 (1972). We review that decision only
34   for clear error. See United States v. Reilly, 76 F.3d 1271,
35   1276 (2d Cir. 1996) (explaining that the clear error
36   standard requires affirmance if the district court’s
37   findings are “plausible in light of the record viewed in its
38   entirety”).
39
40        The factors relevant to this Biggers reliability
41   inquiry include (1) the witness’s opportunity to view the
42   criminal at the time of the crime, (2) the witness’s degree


         2
              Much less was the decision harmful, as the
     evidence was “repetitive [and] only marginally relevant.”
     Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
                                  7
 1   of attention, (3) the accuracy of the witness’s prior
 2   description of the criminal, (4) the level of certainty
 3   demonstrated by the witness at confrontation, and (5) the
 4   length of time between the crime and the confrontation.
 5   Biggers, 409 U.S. at 199-200 (1972). Considering these
 6   factors in light of the record, we cannot say that the
 7   district court’s analysis was clearly erroneous. Although
 8   Richardson had not met Johnson prior to the day of the
 9   robbery, Richardson had ample opportunity and incentive to
10   observe Johnson that day, both before and after the crime.
11   Richardson also saw Johnson three more times before the
12   suggestive photo arrays, and at one of those meetings the
13   men explicitly referenced Johnson’s participation in the
14   robbery. The district court reasonably found that the
15   number and quality of these interactions (i.e., in good
16   light and at close range), as well as the level of attention
17   paid by Richardson during them, outweighed the length of
18   time that passed between the crime and the suggestive
19   confrontations. Cf. United States v. Jacobowitz, 877 F.2d
20   162, 168 (2d Cir. 1989) (long interval between witness’s
21   encounter with defendant and the identification procedure
22   outweighed by other factors). Finally, although
23   Richardson’s initial description of Johnson was vague, it
24   was not inaccurate; and his identification of Johnson as the
25   third robber--from the first photo array through the
26   conclusion of trial--was prompt and steadfast.
27
28        The district court did not clearly err in concluding
29   that Richardson had an independent basis for making a
30   reliable trial identification of Johnson. Therefore, the
31   district court properly submitted this evidence to the jury,
32   notwithstanding the Government’s use of unduly suggestive
33   photo arrays.
34
35            2.   Objection to Identification Instruction
36
37        At a pretrial hearing on jury instructions, Johnson
38   requested an instruction that “the use of the single-photo
39   displays was improperly suggestive” (as the court had
40   already found) and then explained the Biggers factors. See
41   Johnson Br. 43. Ultimately, the district court issued a
42   revised charge that closely tracked Johnson’s suggested
43   Biggers language without telling the jury of the prior
44   ruling on the photo arrays.
45
46        Johnson raised no objection to the revised charge, and
47   we accordingly review only for plain error. See United

                                  8
 1   States v. Crowley, 318 F.3d 401, 412-13 (2d Cir. 2003) (“A
 2   party who has requested an instruction that has not been
 3   given is not relieved of the requirement that he state
 4   distinctly his objection to the instruction that is given.”)
 5   (citation, internal quotation marks, and alteration
 6   omitted). “As a general rule, we reserve a finding of
 7   plainness to situations where a trial court’s ruling
 8   contravenes clearly established precedent.” United States
 9   v. Brown, 352 F.3d 654, 665 n.10 (2d Cir. 2003).
10
11        As Johnson acknowledges, the Second Circuit has
12   “declined to require particular language” for eyewitness
13   identification cautionary charges. Johnson Br. 39-40
14   (citing United States v. Evans, 484 F.2d 1178, 1188 (2d Cir.
15   1973)). Indeed, an eyewitness identification charge
16   materially indistinguishable from the one disputed here was
17   found to have “provided substantial guidance on how to
18   evaluate eyewitness identification testimony.” United
19   States v. Kwong, 69 F.3d 663, 666 (2d Cir. 1995).
20
21        When, as here, “the judge’s charge fairly and
22   accurately encompasses the theory of the defense, we have
23   affirmed a judgment of conviction.” United States v. Luis,
24   835 F.2d 37, 40 (2d Cir. 1987) (citations omitted). The
25   district court’s instruction gave an accurate assessment of
26   the law and fairly apprised the jury of their sensitive task
27   of assessing Richardson’s credibility and the reliability of
28   his identification of Johnson. Accordingly, we find no
29   plain error.
30
31        For the foregoing reasons, and finding no merit in the
32   other arguments raised by Defendants, we hereby AFFIRM the
33   judgment of the district court.
34
35                              FOR THE COURT:
36                              CATHERINE O’HAGAN WOLFE, CLERK
37




                                   9
