10-266-cr
United States v. Donald

                           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. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING TO 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 28 th day of March, two thousand eleven.

PRESENT:         DENNIS JACOBS,
                 GUIDO CALABRESI,
                 REENA RAGGI,
                         Circuit Judges.
-----------------------------------------------------
UNITED STATES OF AMERICA,
                         Appellee,

                     v.                                                        No. 10-266-cr

ALBERT DONALD,

                          Defendant-Appellant.

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APPEARING FOR APPELLANT:                          M AURICE J. VERRILLO, Esq., Rochester,
                                                  New York.

APPEARING FOR APPELLEE:                           DOUGLAS E. GREGORY, Assistant United
                                                  States Attorney, for William J. Hochul, Jr., United
                                                  States Attorney for the Western District of
                                                  New York, Buffalo, New York.
       Appeal from a judgment of the United States District Court for the Western District

of New York (David G. Larimer, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on January 13, 2010, is AFFIRMED.

       Defendant Albert Donald, who was convicted after trial of various narcotics

trafficking offenses, see 21 U.S.C. § 841(a)(1), (b)(1)(B), appeals from the district court’s

judgment of conviction sentencing him to concurrent 240-month, 120-month, and 60-month

terms of incarceration. Specifically, Donald challenges (1) the district court’s denial of (a)

his motion to suppress evidence, (b) his request for a “missing witness” charge, and (c) his

motion for a new trial; (2) the sufficiency of the trial evidence supporting his conviction ; and

(3) the reasonableness of his sentence. We assume the parties’ familiarity with the facts and

record of prior proceedings in explaining our decision to affirm.

1.     Trial Motions

       a.     Suppression Motion

       Donald argues that evidence seized after a search of his residence pursuant to a

warrant should have been suppressed because the warrant (a) was based on materially false

or misleading information, see Franks v. Delaware, 438 U.S. 154, 171-72 (1978), and (b) was

not supported by probable cause. We are not persuaded.




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              i.      False Information in the Warrant Application

       A defendant challenging the accuracy of representations in a warrant application must

demonstrate by a preponderance of the evidence “(1) that the inaccuracies were the product

of a Government agent’s ‘deliberate falsehood’ or ‘reckless disregard for the truth’ rather

than innocent mistake, and (2) that, after setting aside the falsehoods, what remains of the

warrant affidavit is insufficient to support a finding of probable cause.” United States v.

Coreas, 419 F.3d 151, 155 (2d Cir. 2005) (quoting Franks v. Delaware, 438 U.S. at 171-72);

see also United States v. Canfield, 212 F.3d 713, 717-18 (2d Cir. 2000). Although we review

de novo whether the untainted portions of a warrant application demonstrate probable cause,

we review only for clear error a district court’s determination of whether officers acted

deliberately or recklessly. See United States v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003).

       In identifying allegedly false information in the subject warrant application, Donald

relies upon two later-recanted written statements of confidential informant Gregory Jasper

to the effect that he provided false information that was included in the warrant application.

After a Franks hearing, a magistrate judge recommended that suppression be denied because,

even if Jasper’s information was false, Donald failed to present any evidence that officers

knew or were recklessly unaware of its falsity when they obtained the challenged warrant.

We identify no error in that conclusion, which the district court adopted, because it accurately

characterizes the record.



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              ii.    Probable Cause

       “[P]robable cause to search is demonstrated where the totality of circumstances

indicates a ‘fair probability that contraband or evidence of a crime will be found in a

particular place.’” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)). Although the “existence of probable cause is a question

of law for the court,” a reviewing court nevertheless must “accord considerable deference

to the probable cause determination of the issuing magistrate.” Id. at 157. Thus, we will

affirm where the “totality of the circumstances” afforded the issuing magistrate “a substantial

basis” for making the requisite probable cause determination. Illinois v. Gates, 462 U.S. at

238 (internal quotation marks omitted).

       Donald argues that the challenged warrant was not supported by probable cause

because the warrant application described narcotics transactions that did not occur at his

residence and included no additional allegations demonstrating a likelihood that evidence of

criminality could be located specifically at his residence. See United States v. Singh, 390

F.3d 168, 182 (2d Cir. 2004) (requiring nexus between alleged criminality and location to be

searched); Velardi v. Walsh, 40 F.3d 569, 575 n.2 (2d Cir. 1994) (same). We disagree. As

the magistrate judge and district judge both recognized, the warrant application described the

involvement of Donald’s wife, Floretta Alston, in the narcotics distribution scheme and,

particularly, an occasion when officers observed Alston traveling from Donald’s residence



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to consummate a narcotics transaction with Jasper. Together with the scale of Donald’s

distribution activities, see United States v. Fama, 758 F.2d 834, 837-38 (2d Cir. 1985)

(suggesting that size of narcotics trafficking scheme may be factor relevant to probability that

contraband will be located at trafficker’s residence), there was a substantial basis for the

issuing judge to find by a fair probability that evidence of this criminal conduct could be

located at Donald’s residence.

       Accordingly, Donald’s motion to suppress evidence was properly denied.

       b.     Missing Witness Instruction

       Donald submits that the district court erred in refusing to give a “missing witness”

instruction based on the government’s failure to call Jasper as a trial witness.1 A missing

witness instruction “permits the jury to draw an adverse inference against a party failing to

call a witness when the witness’s testimony would be material and the witness is peculiarly

within the control of that party.” United States v. Caccia, 122 F.3d 136, 138 (2d Cir. 1997).

We afford district judges “considerable discretion” in deciding whether to give such an

instruction, United States v. Gaskin, 364 F.3d 438, 463 (2d Cir. 2004), and we review a

refusal to do so for abuse of discretion and actual prejudice, see United States v. Ebbers, 458

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         Donald also suggests that the government violated his Sixth Amendment right of
confrontation because it “utilize[d] third persons to establish the underlying [narcotics]
transactions” rather than relying on the testimony of Jasper, the alleged narcotics purchaser.
Appellant’s Br. at 25. Donald fails to make out a Sixth Amendment violation, however,
because he identifies no testimonial evidence offered against him by a witness he was unable
to confront. See, e.g., Crawford v. Washington, 541 U.S. 36, 68 (2004).

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F.3d 110, 124 (2d Cir. 2006), which we do not identify here.

       A prerequisite to a missing witness charge is reason to think the witness is peculiarly

within the control of the party that does not call him. See United States v. Caccia, 122 F.3d

at 139 (“The requirement that the witness be ‘peculiarly within the control’ of the party

ensures that the inference is not available to be drawn against a party who, in comparison

with an adversary, lacks meaningful or pragmatic access to the witness.”). Although Jasper

was a confidential informant who had testified for the government at a pre-trial hearing, the

district court acted within its discretion in finding that this control had ceased by the time of

trial when the government’s extensive efforts to locate Jasper had all proved unsuccessful.

Under these circumstances, we identify no error in the decision not to give a missing witness

charge.

       c.     Motion for a New Trial

       Donald faults the district court for not holding an evidentiary hearing before denying

his post-verdict new trial motion. Where, as here, such a motion is based on purportedly

newly-discovered evidence of perjury by a trial witness, “‘a threshold inquiry is whether the

evidence demonstrates that the witness in fact committed perjury.’” United States v. Stewart,

433 F.3d 273, 297 (2d Cir. 2006) (quoting United States v. White, 972 F.2d 16, 20 (2d Cir.

1992)). Under such circumstances, we afford a district court broad discretion “because its

vantage point as to the determinative factor – whether newly discovered evidence would have



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influenced the jury – has been informed by the trial over which it presided.” Id. at 296.

Thus, we review for abuse of discretion both a district court’s decision not to grant a new

trial motion, see United States v. Polouizzi, 564 F.3d 142, 159 (2d Cir. 2009), and its refusal

to hold an evidentiary hearing, see United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995).

       The district court did not err, let alone abuse its discretion, in declining to hold a

hearing in this case. Donald based his motion on two affidavits impeaching Alston’s trial

testimony: the first, from Donald’s brother, stating that another individual, who claimed to

be dating Alston at the time, said that the seized materials did not belong to Donald; and the

second, from Sekine Anderson, stating that she overheard Alston tell another woman that the

seized materials did not belong to Donald. The district court reasonably dismissed these

affidavits as “suspect and lack[ing] credibility,” Order at 5, United States v. Donald, No. 07-

CR-6208L (W.D.N.Y. Nov. 12, 2009), and acted well within its discretion in refusing to hold

a hearing where, having observed Alston’s trial testimony and received a supplemental

affidavit from her denying the perjury allegations, it found her testimony to be credible and

corroborated by other evidence, cf. United States v. DiPaolo, 835 F.2d 46, 51 (2d Cir. 1987)

(noting hearing seldom required for new trial motion based on witness’s own affidavit

recanting testimony, especially where district court observed witness’s testimony).

2.     Sufficiency Challenge

       Donald challenges the sufficiency of the evidence to support his conviction on counts



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of (1) conspiracy to possess with intent to distribute narcotics, (2) distribution of narcotics,

(3) possession with intent to distribute narcotics, and (4) possession of a firearm in

furtherance of narcotics crimes. A defendant mounting a sufficiency challenge bears a heavy

burden because, although our standard of review is de novo, we must view the evidence in

the light most favorable to the government, drawing all reasonable inferences in its favor,

including those pertaining to credibility. See United States v. Heras, 609 F.3d 101, 105 (2d

Cir. 2010); United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010). We will reverse

only if we conclude that no reasonable jury could find guilt beyond a reasonable doubt based

on the totality of the evidence. See United States v. Heras, 609 F.3d at 105-06. Under this

standard, we conclude that Donald’s sufficiency challenge is without merit.

       To begin, the jury heard testimony from Alston that she frequently observed Donald

preparing and packaging cocaine for sale during the time-frame of the charged conspiracy,

that she was present during numerous narcotics transactions in which Donald participated,

and that she consummated narcotics transactions at Donald’s direction. Although this

testimony alone was sufficient to support Donald’s conviction on the narcotics counts, see,

e.g., United States v. Florez, 447 F.3d 145, 155-56 (2d Cir. 2006) (uncorroborated co-

conspirator testimony is competent evidence to establish guilt), the jury also heard police

testimony about Donald’s inculpatory admissions to purchasing, preparing, and selling

between 62 and 125 grams of cocaine each week during the time-frame of the charged



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conspiracy.

       Further, the jury heard two surveillance officers testify to observing Donald

consummate the charged transactions with Jasper, which accounts were corroborated by

Alston’s testimony about her direct participation in and observation of each transaction.

Although Donald complains of the government’s failure to call Jasper himself as a witness,

on sufficiency review we need consider only whether “the record evidence could reasonably

support a finding of guilt beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 318

(1979) (emphasis added), and we conclude that it could even without testimony from Jasper.

       Indeed, the jury was presented with evidence of drugs, firearms, drug paraphernalia,

and cash seized from Donald’s residence. Alston testified that these items belonged to

Donald and that Donald carried a firearm with him in the course of his narcotics distribution

activities.   Moreover, officers testified about Donald’s statement that he lived at the

residence, which was corroborated by keys seized from his person and mail addressed to him

there. Donald’s argument that this evidence failed to establish his control over the premises

so as to support an inference that he possessed the seized materials appears to challenge the

weight assigned the evidence by the jury, something we generally will not second guess on

sufficiency review. See, e.g., United States v. Heras, 609 F.3d at 105 (cautioning that

appellate review of sufficiency must not “usurp the role of the jury by substituting [court’s]

own determination of the weight of the evidence and the reasonable inferences to be drawn



                                              9
for that of the jury” (internal quotation marks omitted)).

        Drawing all reasonable inferences in the government’s favor, as we must, we conclude

that the evidence was sufficient to support Donald’s conviction on the firearm and narcotics

possession counts.

3.      Sentencing Challenges

        Donald advances two challenges to his sentence, neither of which warrants extended

discussion. First, he argues that he should be resentenced in accordance with amendments

to the U.S. Sentencing Guidelines enacted in the Fair Sentencing Act of 2010 (“FSA”), Pub.

L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). That argument is foreclosed by our decision

in United States v. Diaz, 627 F.3d 930 (2d Cir. 2010), which held that the FSA does not

apply retroactively to defendants, like Donald, who were convicted and sentenced before the

FSA’s enactment, see id. at 931.

        Second, Donald challenges the application of a statutory enhancement of the

applicable mandatory minimum, see 21 U.S.C. § 841(b)(1)(A)-(B), based upon a prior drug

conviction in which he was adjudicated as a youthful offender. He acknowledges that his

argument is foreclosed by United States v. Sampson, 385 F.3d 183, 195 (2d Cir. 2004), but

suggests that we should revisit that decision in light of United States v. Savage, 542 F.3d 959

(2d Cir. 2008). Donald offers no reason why we should do so, however, and we perceive

none.



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      We have considered Donald’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

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




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