09-0434-cr (L), 09-0457-cr (con)
U nited States v. W hite



                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMM 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 MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY 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 14 th day of April, two thousand ten.

PRESENT:             WILFRED FEINBERG,
                     GUIDO CALABRESI,
                     REENA RAGGI,
                               Circuit Judges.

------------------------------------------------------------------------------------
UNITED STATES OF AMERICA,
                      Appellee,
               v.                                                                      Nos.   09-0434-cr (L),
                                                                                              09-0457-cr (con)
O’KENE WHITE, also known as Dread, and
ANTONIO SCOTT,
                          Defendants-Appellants.
------------------------------------------------------------------------------------

APPEARING FOR APPELLANTS:                                  BEVERLY VAN NESS (Curtis J. Farber, on the
                                                           brief), New York, New York.

APPEARING FOR APPELLEE:                                    JASON B. SMITH, Assistant United States
                                                           Attorney (John P. Collins, Jr., Assistant United
                                                           States Attorney, on the brief), for Preet Bharara,
                                                           United States Attorney for the Southern District
                                                           of New York, New York, New York.

          Appeal from the United States District Court for the Southern District of New York

(Harold Baer, Jr., Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments entered on January 29, 2009, and February 2, 2009, are

AFFIRMED.

       Defendants O’Kene White and Antonio Scott appeal from convictions, after a jury

trial, for (1) conspiracy to commit and attempted robbery in violation of the Hobbs Act, 18

U.S.C. § 1951; (2) attempted possession of marijuana with intent to distribute, see 21 U.S.C.

§§ 841(a)(1), (b)(1)(D), 846; and (3) possession and discharge of firearms during and in

furtherance of the charged crimes, see 18 U.S.C. § 924(c). Although defendants do not

challenge the bulk of the evidence – much of it direct – establishing their use of brutal force

against women and children in an effort to steal marijuana belonging to Christopher

Farquharson, also known as “Blacks,” they submit that two discrete evidentiary rulings

warrant reversal. “We review a trial court’s evidentiary rulings deferentially, and we will

reverse only for abuse of discretion.” United States v. Quinones, 511 F.3d 289, 307 (2d Cir.

2007). We assume the parties’ familiarity with the facts and the record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

       1.     “Arizona” Testimony

       Stacy Roberts, Blacks’s girlfriend and one of the victims of defendants’ robbery

attempt, testified, inter alia, that defendants had asked her, “where’s Blacks’s stuff,” and that

Blacks had told her that he bought and sold two types of marijuana: “regular” and “Arizona.”

Drug Enforcement Administration Special Agent Craig Phildius testified that “Arizona”

marijuana is grown in Mexico (and to a lesser degree in Arizona) and shipped through

                                               2
Arizona, and that “regular” marijuana is also grown primarily in Mexico. Defendants submit

that Roberts’s testimony about the source of Blacks’s marijuana should have been excluded

because “its probative value is substantially outweighed by the danger of unfair prejudice.”

Fed. R. Evid. 403. We are not persuaded. Roberts’s testimony, admitted as a statement

against Blacks’s penal interest, see Fed. R. Evid. 804(b)(3),1 was relevant to proving that

defendants’ robbery would have had the requisite “slight, subtle or even potential” impact

on interstate commerce, United States v. Perrotta, 313 F.3d 33, 36 (2d Cir. 2002). The timing

of Blacks’s statement may have affected the weight of the evidence but not its admissibility.

See United States v. Schultz, 333 F.3d 393, 416 (2d Cir. 2003). In sum, we cannot conclude

either that the evidence lacked probative value or that the defendants were unfairly

prejudiced by its admission. See United States v. Jimenez, 789 F.2d 167, 171 (2d Cir. 1986)

(observing that evidence is not unfairly prejudicial simply because it is “harmful” to

defense). Nothing in the record suggests a “likelihood that jurors would render a decision

on an improper basis by giving this testimony undue weight.” United States v. Kaplan, 490

F.3d 110, 122 (2d Cir. 2007).

       2.     Evidence of Blacks’s Marijuana Possession




       1
          Although defendants argue that Blacks’s statements were not “genuinely self-
inculpatory,” Williamson v. United States, 512 U.S. 594, 605 (1994), we conclude that the
district court acted well within its discretion in finding that a “reasonable person in the
declarant’s shoes would perceive the statement” that he bought and sold Arizona marijuana
as “detrimental to his . . . penal interest,” United States v. Saget, 377 F.3d 223, 231 (2d Cir.
2004).

                                               3
       Defendants also submit that evidence establishing Blacks’s possession of more than

six pounds of marijuana on the day after the attempted robbery was irrelevant to their state

of mind and unduly prejudicial. See Fed. R. Evid. 403. We disagree. Whether or not the

six pounds of marijuana were the specific object of defendants’ robbery crimes, the large

quantity of contraband was relevant to establishing the scope of Blacks’s illegal trafficking,

making it more likely, in turn, that (a) defendants’ robbery would affect interstate commerce,

and (b) defendants’ intent was to distribute the marijuana they attempted to possess.

Accordingly, we conclude that the district court did not abuse its discretion in admitting this

evidence. See, e.g., United States v. Paulino, 445 F.3d 211, 218 (2d Cir. 2006).

       3.     Firearms Charge

       Because we identify no error in the district court’s evidentiary rulings relevant to the

first three counts of conviction, we necessarily decline defendants’ invitation to reverse their

convictions on the fourth count of possessing and discharging firearms during and in

furtherance of the other charged crimes.

       We have considered defendants’ other arguments on appeal and conclude that they

are without merit. Accordingly, we AFFIRM the judgments of the district court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, Clerk of Court




                                               4
