     10-800-cr
     United States v. Golding

                                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. 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 ASUMMARY 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 for the Second Circuit, held at
 2   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
 3   York, on the 23rd day of May, two thousand twelve.
 4
 5           PRESENT: RICHARD C. WESLEY,
 6                            RAYMOND J. LOHIER, JR,
 7                            CHRISTOPHER F. DRONEY,
 8                                                     Circuit Judges.
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10
11           UNITED STATES OF AMERICA,
12
13                                            Appellee,
14
15                                    v.                                          No. 10-800-cr
16
17           KARIM GOLDING,
18
19                                            Defendant-Appellant.
20
21           ------------------------------------------------------------------
22
23           FOR APPELLANT:                   CHARLES F. WILLSON, Nevins & Nevins LLP, East
24                                            Hartford, CT.
25
26           FOR APPELLEE:                    ALEXANDER A. SOLOMON, Assistant United States
27                                            Attorney (Peter A. Norling, Assistant United States
28                                            Attorney, on the brief) for Loretta E. Lynch, United
29                                            States Attorney for the Eastern District of New York,
30                                            Brooklyn, NY.

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 1          Appeal from a judgment of the United States District Court for the Eastern District
 2   of New York (Allyne R. Ross, Judge).
 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 4   AND DECREED that the judgment of conviction is AFFIRMED in part (as to Counts
 5   One through Seven and Count Eleven of the Superseding Indictment), VACATED in part
 6   (as to the felon-in-possession counts, Counts Eight through Ten), and REMANDED to
 7   the District Court for further proceedings consistent with this order.
 8          Defendant-Appellant Karim Golding appeals from a judgment entered on
 9   December 1, 2009, convicting him, after a second jury trial, of several narcotics-related
10   offenses involving cocaine and crack cocaine as well as several firearms-related counts,
11   including three counts of being a felon in possession of a firearm in violation of 18 U.S.C.
12   § 922(g)(1). He was sentenced principally to a term of 240 months’ imprisonment.
13          1.     The Mistrial and Retrial
14          On appeal, Golding asserts that the second trial, commenced after the District
15   Court declared a mistrial in the first trial, violated the Double Jeopardy Clause of the Fifth
16   Amendment. The Double Jeopardy Clause “generally protects a defendant from
17   successive prosecutions for the same offense.” United States v. Ware, 577 F.3d 442, 446
18   (2d Cir. 2009). A second trial, however, is not prohibited when a district court’s decision
19   to declare a mistrial is “compelled by ‘manifest necessity.’” United States v. Razmilovic,
20   507 F.3d 130, 136 (2d Cir. 2007). “[T]he classic example of manifest necessity is the
21   discharge of a genuinely deadlocked jury.” Id. at 137 (alterations in the original)
22   (quotation marks omitted); see also Yeager v. United States, 557 U.S. 110, 117 (2009).
23   Genuine deadlock occurs when “‘there exists a significant risk that a verdict may result
24   from pressures inherent in the situation rather than the considered judgment of all the
25   jurors.’” Razmilovic, 507 F.3d at 137 (quoting Arizona v. Washington, 434 U.S. 497, 509
26   (1978)). “We grant particularly broad discretion in reviewing the determination by a trial
27   judge that there is manifest necessity for a mistrial due to a genuinely deadlocked jury.”
28   Id.
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 1            The District Court received three notes stating that the jury was unable to reach a
 2   verdict because at least one juror was unable to be impartial or follow the jury
 3   instructions. One of the notes suggested that jurors might begin changing their votes
 4   solely “for the sake of ending th[e] trial” if they were forced to continue to deliberate.
 5   The District Court declared a mistrial only after it attempted to clarify its jury instructions
 6   and questioned the jury in an attempt to identify the juror or jurors referenced in the
 7   notes. In addition, following the questioning of the jury, one juror submitted another note
 8   representing that he, and possibly several other jurors, were not capable of deliberating
 9   impartially. Under the circumstances, the District Court’s actions were appropriate, and
10   nothing more was required. See United States v. Williams, 205 F.3d 23, 36 (2d Cir.
11   2000).
12            We also reject Golding’s argument that the court should have allowed the jury to
13   keep deliberating “even if that allowed for nullification.” Nullification is “a violation of a
14   juror’s oath to apply the law as instructed by the court.” United States v. Thomas, 116
15   F.3d 606, 614 (2d Cir. 1997). “[T]rial courts have the duty to forestall or prevent such
16   conduct, whether by firm instruction or admonition or, where it does not interfere with
17   guaranteed rights or the need to protect the secrecy of jury deliberations, . . . by dismissal
18   of an offending juror from the venire or the jury.” Id. at 616; see also United States v.
19   Polouizzi, 564 F.3d 142, 162-63 (2d Cir. 2009). It was not error, therefore, for the
20   District Court to declare a mistrial rather than acquiesce to the threat of jury nullification
21   raised in the jury’s notes.
22            Accordingly, because the District Court acted well within its discretion when it
23   determined that a mistrial was manifestly necessary, the Double Jeopardy Clause did not
24   bar Golding’s second trial.
25            2.     The Felon-in-Possession Convictions
26            Prior to the second trial, counsel for Golding stipulated to the fact that Golding had
27   been previously convicted of a felony, an element that the Government was required to
28   establish in connection with the felon-in-possession counts. Rather than submitting the
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 1   stipulation regarding Golding’s prior felony conviction to the jury, however, the District
 2   Court, at defense counsel’s request, removed that element entirely from the jury’s
 3   consideration. It was only after the jury convicted Golding on all counts that the District
 4   Court admitted the stipulation into evidence.
 5          In United States v. Chevere, we held that “in a prosecution under § 922(g)(1),
 6   there are no circumstances in which a district court may remove the element of a prior
 7   felony conviction entirely from the jury’s consideration by accepting a defendant’s
 8   stipulation to that element.” 368 F.3d 120, 122 (2d Cir. 2004) (per curiam) (emphasis
 9   added). We have explained that removing the felony conviction element from the jury
10   causes “harm to the judicial process and the role of the jury in determining the guilt or
11   innocence of the accused as charged. [It] violates the very foundation of the jury
12   system.” United States v. Gilliam, 994 F.2d 97, 100 (2d Cir. 1993). Regardless of
13   defense counsel’s position regarding the element, the District Court should have
14   submitted the stipulation establishing the fact of Golding’s prior conviction to the jury. It
15   committed plain error when it failed to do so, and we accordingly vacate the felon-in-
16   possession convictions.
17          3.     The Alleged Brady Violation
18          Golding also contends that the District Court should have inquired into statements
19   he made at his sentencing hearing regarding an alleged Brady violation. At his
20   sentencing, Golding stated that he was “aware” of statements made to the Government
21   indicating that the victim had been shot once rather than two times and that Golding “took
22   no part in any violence that occurred on said date.” To establish a Brady violation, the
23   defendant must show that the Government suppressed information that was both
24   exculpatory and material. United States v. Brunshtein, 344 F.3d 91, 101 (2d Cir. 2003).
25   Golding does not dispute that he knew of the allegedly exculpatory evidence. Indeed, at
26   the sentencing hearing, Golding stated that he was “aware” that his own private
27   investigator had been told by the victim that he was shot only once. Accordingly, this
28   evidence was not “suppressed” for Brady purposes. See Leka v. Portuondo, 257 F.3d 89,
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 1   100 (2d Cir. 2001) (evidence is not suppressed “if the defendant either knew, or should
 2   have known, of the essential facts permitting him to take advantage of any exculpatory
 3   evidence” (quotation marks omitted)).
 4            4.    The Refusal to Adjourn Golding’s Sentencing
 5            Finally, Golding argues that the District Court improperly denied his request
 6   seeking an adjournment of his sentencing because Congress was likely to revise the
 7   applicable mandatory minimum sentences for offenses involving cocaine base, and a
 8   lower sentence would have been imposed had he been sentenced after the passage of the
 9   Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (amending 21
10   U.S.C. § 841). Because our conclusion that Golding was improperly convicted on the
11   felon-in-possession counts requires a remand for resentencing, this argument is moot.
12            We have considered Golding’s other arguments and conclude that they are without
13   merit. For the foregoing reasons, we AFFIRM in part the judgment of conviction (as to
14   Counts One through Seven and Eleven), VACATE in part (as to Counts Eight, Nine, and
15   Ten), and REMAND to the District Court for further proceedings consistent with this
16   order.
17

18                                                     FOR THE COURT:
19                                                     Catherine O’Hagan Wolfe, Clerk of Court
20




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