17-2279-cr
United States v. Person

                              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 TO 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
14th day of August, two thousand eighteen.

Present:
            PIERRE N. LEVAL,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                   Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                    v.                                                            17-2279-cr


EVELYN PERSON,

                  Defendant-Appellant. 1
_____________________________________

    For Appellee:                                              CRAIG R. HEEREN (Susan Corkery, Michael P.
                                                               Robotti, on the brief), Assistant United States
                                                               Attorneys of Counsel, for Richard P.
                                                               Donoghue, United States Attorney for the
                                                               Eastern District of New York, Brooklyn, NY.

    For Defendant-Appellant:                                   DAVID GORDON, New York, NY.

1
    The Clerk of Court is directed to amend the official caption to conform with the caption above.


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

York (Glasser, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Evelyn Person (“Person”) appeals from a judgment of conviction

entered on July 21, 2017, in the United States District Court for the Eastern District of New York.

Person was convicted after a jury trial of conspiracy to distribute and possess with intent to

distribute narcotics in violation of 21 U.S.C. §§ 846, 841(a), 841(b)(1)(c), and of aiding and

abetting the unlawful use of a firearm in furtherance of drug crimes, in violation of 18 U.S.C. §§ 2,

924(c)(1)(A)(i).   See United States v. Person, No. 15-cr-466, 2017 WL 2455072 (E.D.N.Y. June

6, 2017).   We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

I.     Motion to Reopen Suppression Hearing

       First, Person argues that the district court erred in declining to reopen an evidentiary

hearing on her motion to suppress evidence, based on the ground that prior counsel provided

ineffective assistance at the suppression hearing.      We disagree.     We review a district court’s

decision whether to reopen a suppression hearing for abuse of discretion.      United States v. Oliver,

626 F.2d 254, 260 (2d Cir. 1980).     “A district court has abused its discretion if it has (1) based its

ruling on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence,

or (3) rendered a decision that cannot be located within the range of permissible decisions.” Chin

v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146 (2d Cir. 2012) (internal quotation marks omitted).

A factual finding “is clearly erroneous when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has been



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committed.” United States v. Sash, 396 F.3d 515, 521 (2d Cir. 2005) (quoting United States v.

Ekwunoh, 12 F.3d 368, 370 (2d Cir. 1993)).                     Factual findings that are based on credibility

determinations are entitled to “particularly strong deference.” United States v. Mendez, 315 F.3d

132, 135 (2d Cir. 2002).

         Here, the district court specifically held that its decision to deny the motion to suppress

was “determined by [its] evaluation of the credibility of the witnesses,” including by “observ[ing]

the witnesses” and “their demeanor as they responded to questions on direct and cross

examination.” United States v. Smith, No. 15-cr-466, 2016 WL 3144601, at *2 (E.D.N.Y. June

3, 2016).      “[C]redibility determinations are the province of the trial judge, and should not be

overruled on appeal unless clearly erroneous.” In re Terrorist Bombings of U.S. Embassies in E.

Africa, 552 F.3d 177, 210 (2d Cir. 2008) (quoting United States v. Yousef, 327 F.3d 56, 124 (2d

Cir. 2003)).     Person’s motion to reopen informed the district court of additional evidence that she

contended would bolster her testimony while casting doubt on the police officers’ testimony.                       But

the district court nevertheless decided not to reopen the suppression hearing, adhering to its view

that Officer Thevenin’s testimony was more believable than Person’s testimony.                                   “The

surrounding circumstances having thus been explored by the court, the decision not to reopen did

not constitute an abuse of discretion.” 2         Oliver, 626 F.2d at 260.

         To the extent that Person wishes to raise an ineffective assistance of counsel claim, any

such claim should be brought in a habeas proceeding in view of the absence of an adequate record.

United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000); see also Massaro v. United States, 538

U.S. 500, 504–05 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct



2
  While adhering to its original credibility determination was a proper exercise of the court’s discretion not to reopen
the hearing, we note that the district court’s additional reason—requiring that the evidence be newly discovered in an
ineffective assistance of counsel claim—was inappropriate.


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appeal for deciding claims of ineffective-assistance . . . [because w]hen an ineffective-assistance

claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record

not developed precisely for the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose.”).

II.    Evidentiary Rulings

       Next, we also reject Person’s challenges to the district court’s evidentiary rulings. We

review evidentiary rulings “under a deferential abuse of discretion standard.” United States v.

Litvak, 808 F.3d 160, 179 (2d Cir. 2015).     “To find such abuse, we must conclude that the trial

judge’s evidentiary rulings were arbitrary and irrational.” United States v. Mercado, 573 F.3d

138, 141 (2d Cir. 2009).    And even if a district court makes an erroneous evidentiary ruling, we

will not reverse that decision if the error was harmless. United States v. McGinn, 787 F.3d 116,

127–28 (2d Cir. 2015).

       The district court’s admission of Person’s prior arrest under Rule 404(b) as evidence of

knowledge and intent was not an abuse of discretion.     Fed. R. Evid. 404(b); see also United States

v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004) (noting that this Court “has adopted an ‘inclusionary’

approach to other act evidence under Rule 404(b), which allows such evidence to be admitted for

any purpose other than to demonstrate criminal propensity”).        To determine whether other act

evidence was properly admitted, we consider “whether (1) it was offered for a proper purpose; (2)

it was relevant to a material issue in dispute; (3) its probative value is substantially outweighed by

its prejudicial effect; and (4) the trial court gave an appropriate limiting instruction to the jury if

so requested by the defendant.” Id.     Person’s principal defense was that even though her alleged

co-conspirator was indeed using her apartment as a stash house and conspiring to distribute drugs,

Person herself did not know about and so could not have had any intent to participate in the drug-



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related activity occurring in her apartment.            Person’s prior arrest for possession of crack cocaine

occurred the day after a search warrant was executed at her apartment and two men (including one

man who had been living at her apartment for at least one month) were also arrested at her

apartment for possession of crack cocaine. 3                    Such evidence speaks directly to Person’s

knowledge of and intention to commit the charged crimes of conspiring to distribute drugs and

maintain a stash house.         United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (“Where, for

example, the defendant does not deny that he was present during a narcotics transaction but simply

denies wrongdoing, evidence of other arguably similar narcotics involvement may, in appropriate

circumstances, be admitted to show knowledge or intent.”); see also Mercado, 573 F.3d at 141

(noting circumstances of other acts can provide background information showing that the conduct

might reflect “more than innocent acts of a friend . . . [and] at least suggest that Defendant was not

an innocent pawn taken by surprise by the drug transaction”).                    Any potential for prejudice was

not unfair under Rule 403 and was ameliorated by the district court’s careful limiting instructions.

United States v. Roldan–Zapata, 916 F.2d 795, 804 (2d Cir.1990) (upholding admission where the

“evidence . . . did not involve conduct any more sensational or disturbing than the crimes with

which [the defendant] was charged”); see also United States v. Snype, 441 F.3d 119, 129–30 (2d

Cir. 2006) (“[T]he law recognizes a strong presumption that juries follow limiting instructions.”).

Accordingly, it was not an abuse of the district court’s discretion to admit the evidence.

         It also was not an abuse of discretion for the district court to exclude the photograph of a


3
  Person also argues that there was insufficient evidence to find that a similar act occurred. This argument is squarely
foreclosed by Huddleston v. United States, 485 U.S. 681 (1988). The government proffered testimony from the
arresting officers and documentary evidence including arrest reports and the property clerk’s invoices, and Person
herself also testified about the execution of the search warrant in her apartment, the arrest of two men at her apartment,
and her own arrest on the following day. The district court did not err in concluding that “consider[ing] all evidence
presented to the jury,” a reasonable jury could find by a preponderance that the similar act did take place. Id. at 690–
91 (“[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The
sum of an evidentiary presentation may well be greater than its constituent parts.”) (quoting Bourjaily v. United States,
483 U.S. 171, 179–80 (1987)).


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police officer wearing a party mask during the search of Person’s apartment.     It was not “arbitrary

and irrational” for the district court to conclude that the photograph was not probative of the

witness’s credibility.    See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (permitting district

court to “impose reasonable limits on such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation

that is repetitive or only marginally relevant”).   And even assuming that the conduct depicted in

the photograph was probative of credibility, Rule 608 instructs that “extrinsic evidence is not

admissible to prove specific instances of a witness’s conduct” for that purpose.       Fed. R. Evid.

608(b); see also United States v. Atherton, 936 F.2d 728, 733 (2d Cir. 1991) (finding mere fact of

prior misconduct “not probative of bias, and . . . therefore [extrinsic evidence of the misconduct

was] appropriately excluded pursuant to Fed. R. Evid. 608(b)”). Though the district court ruled

that the photograph would not be admitted as evidence, it did not preclude counsel from

questioning the witness about that conduct on cross-examination.

       Moreover, the district court did not abuse its discretion in refusing to admit a store

transaction log documenting that Person cashed her paychecks, after the district court already

permitted Person to testify at length about the details of her pay stubs (which were admitted into

evidence) and to explain how she cashed her pay checks but spent only a portion of that cash.

The district court also allowed Person to describe the store transaction log without resorting to the

document itself.    We similarly conclude that the district court did not abuse its discretion in

declining to admit a photograph of Person which purportedly showed what she was wearing on

the morning of her arrest.     Person testified about her outfit that morning, and the photograph

admittedly was not taken at that time.       Considered in context, “[t]he court had discretion to

exclude further proof.”     United States v. Weiss, 930 F.2d 185, 198 (2d Cir. 1991) (relying on Rule



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403 to affirm the district court’s decision to preclude further questioning on an issue because “the

evidence would have had minimal probative value . . . and its admission would have required

unnecessary delay”); see also Fed. R. Evid. 403 (“The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . undue delay, wasting time, or

needlessly presenting cumulative evidence.”).

III.     Inconsistent Verdict

         Finally, Person argues that the jury returned an inconsistent verdict warranting a new trial

because although the jury found Person guilty of “Conspiracy to Distribute and Possess with Intent

to Distribute Narcotics,” the jury answered “No” in response to two special interrogatories that

asked:    (1) “Did the government prove that the defendant was responsible for a substance

containing cocaine base?”; and (2) “Did the government prove that the defendant was responsible

for a substance containing heroin?” J.A. 77.        This argument is meritless.

         The district court instructed the jury as to the required proof for the government to show

that Person participated in a drug conspiracy, and Person does not assert that those jury instructions

were erroneous in any way.        The district court did not address the special interrogatories in its

jury instructions, and thus never defined for the jury what it meant for Person to be “responsible

for” drugs such that the special interrogatories should be answered in the affirmative.        Finally,

this omission does not itself constitute grounds for vacatur:      drug type and quantity are not an

element of the charged conspiracy offense.      See United States v. Taylor, 816 F.3d 12, 19 (2d Cir.

2016) (approving special verdict form that “separated the issue of conspiratorial liability from

[drug] quantity”); see also United States v. Daniels, 723 F.3d 562, 572 (5th Cir. 2013) (“[F]ailure

to prove drug quantity or type does not undermine a defendant’s conviction [for conspiracy with

intent to distribute drugs].”).



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         In such circumstances, we “assum[e] the jury acted in a consistent manner and followed

the instructions of the district court.” United States v. Pforzheimer, 826 F.2d 200, 205 (2d Cir.

1987).    Doing so, the jury must have found that Person was guilty of conspiracy to distribute and

possess with intent to distribute narcotics because “a jury is presumed to follow the instructions of

the trial judge” and “the nature of the verdict of the jury is clear.” Id. (upholding jury verdict

even after concluding that a special interrogatory was erroneously worded); see also United States

v. Clemente, 22 F.3d 477, 481 (2d Cir. 1994) (concluding that a general guilty verdict was not

inconsistent with an answer to a special interrogatory because the act described in the special

interrogatory was “not a necessary element of the offense”).       Here, the jury was also properly

instructed that Person, assuming she participated in the conspiracy, was “equally culpable” of

conspiring even though she “participated in [the] conspiracy to a degree more limited than that of

the other co-conspirators.”    Trial Tr. 818.       The jury may thus have concluded that Person’s

actions, while sufficient for conviction of the charged crime of conspiracy, did not rise to the

(undefined and ambiguous) level of her being held “responsible for” the drugs in comparison to

her co-conspirator’s actions. Blissett v. Coughlin, 66 F.3d 531, 535 (2d Cir. 1995) (“When a

claim is made that a jury’s answers to special interrogatories are inconsistent, our responsibility as

a reviewing court is to adopt a view of the case, if there is one, that resolves any seeming

inconsistency.”).     We therefore conclude that the jury’s general verdict and special

interrogatories are not inconsistent, and a judgment of acquittal or a new trial is not required.

                                                *        *     *




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      We have considered Person’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the District Court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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