15-1645 (L)
United States v. Granton & Hardy

                                   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.

       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 21st day of August, two thousand seventeen.

PRESENT:           JOSÉ A. CABRANES,
                   GERARD E. LYNCH,
                                Circuit Judges,
                   KIYO A. MATSUMOTO,
                                District Judge.*


UNITED STATES OF AMERICA,

                            Appellee,                       15-1645-cr, 15-1716-cr

                            v.

AARON GRANTON AND DAMION HARDY,

                            Defendants-Appellants.


FOR DEFENDANT-APPELLANT GRANTON:                         ROBERT M. BEECHER, The Law Office of
                                                         Robert M. Beecher, Esq., New
                                                         Providence, NJ.




    *
    Judge Kiyo A. Matsumoto, of the United States District Court for the Eastern District of New
York, sitting by designation.

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FOR DEFENDANT-APPELLANT HARDY:                               BRENDAN WHITE, White & White, New
                                                             York, NY.

FOR APPELLEE:                                                MATTHEW S. AMATRUDA (Peter A.
                                                             Norling, on the brief), Assistant United
                                                             States Attorneys, for Robert L. Capers,
                                                             United States Attorney for the Eastern
                                                             District of New York, Brooklyn, NY.

       Appeal from an order of the United States District Court for the Eastern District of New
York (Frederic Block, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the May 19, 2015 and May 21, 2015 judgments of the
District Court be and hereby are AFFIRMED.

         Defendants-appellants Aaron Granton and Damion Hardy (“Defendants”) were convicted
upon jury verdict of racketeering, in violation of 18 U.S.C. § 1962(c); murder in aid of racketeering,
in violation of 18 U.S.C. § 1959(a)(1); kidnapping in aid of racketeering, in violation of 18 U.S.C.
§ 1959(a)(5); distribution of cocaine base, in violation of 21 U.S.C. § 841(a); as well as several other
offenses, including conspiring to commit each of the foregoing crimes. They were sentenced
principally to life terms of imprisonment. Defendants now challenge their judgments of convictions
in this consolidated appeal. Defendants challenge—either jointly or independently1—the District
Court’s decision finding Hardy competent to stand trial, the use of an anonymous jury, the
sufficiency of the evidence, certain evidentiary rulings, and certain colloquies between the District
Court and certain witnesses. We affirm.

                                           BACKGROUND

       Hardy was the leader of a violent gang of drug-traffickers who called themselves the Cash
Money Brothers (“CMB”).2 Granton worked his way up the ranks of CMB to become a lieutenant,
enforcer, and hit-man. The gang controlled Lafayette Gardens in Bedford-Stuyvesant for over a


    1
     Rather than filing a consolidated brief, Hardy and Granton filed separate briefs, and Hardy
additionally filed his own reply brief and a supplemental brief, in which Hardy appeals the District
Court’s denial of his pro se motion to dismiss the indictment. Granton has expressly adopted all
arguments in Hardy’s brief and reply brief, see Granton Br. 2, but Hardy has not done the same with
respect to Granton’s brief. Since all of the arguments made in either brief are unavailing, it is largely
inconsequential on whose behalf, exactly, a given argument has been offered. Nevertheless, we
specify in our discussion where an argument has been raised by Granton alone.
    2
     The name paid homage to the gang in the 1991 film “New Jack City,” which portrayed drug
dealers in a New York City housing project.

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decade, claiming the housing project as their “turf” and threatening or killing others who attempted
to sell drugs there. The evidence at trial detailed several murders committed by and for CMB,
including murders ordered by Hardy and murders committed by Granton, as well as instances where
CMB members shot at and/or threatened witnesses, or potential witnesses, who might testify against
CMB members. The indictment alleged, and the jury found, that CMB operated as a RICO
enterprise between 1991 and August 2004.

       We otherwise generally assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

                                            DISCUSSION

    (1) Hardy’s Competence To Stand Trial

        Hardy is schizophrenic and, by 2004, suffered from messianic delusions, claiming to be the
rapper known as “T.I.,” a biblical prophet, or the President of the United States. Hardy also
professed a belief in “Ethou Law,” which he insisted required his immediate release.

        In the time period following Defendants’ August 2004 indictment, Hardy was initially ruled
competent to stand trial by Judge David G. Trager, to whom this case was then assigned. By 2007,
however, Hardy had grown increasingly uncooperative with defense counsel and was making
increasingly bizarre statements. The Government moved for a new psychiatric evaluation, see 18
U.S.C.A. § 4241(a) (“[T]he defendant or the attorney for the Government may file a motion for a
hearing to determine the mental competency of the defendant.”), and in 2007 Hardy was ruled
incompetent to stand trial following an evaluation, and again incompetent in 2008 following a third
evaluation.

        Further evaluations and court hearings followed, in the midst of which the case passed from
Judge Trager to Judge Block. In 2012, Judge Block concluded that Hardy was a danger to others and
ordered him forcibly medicated on that ground, as well as on the alternative ground that this
medication would likely render him competent to stand trial. In August 2013, we affirmed the order
to medicate Hardy. See United States v. Hardy, 724 F.3d 280, 296–97 (2d Cir. 2013). Medication,
further evaluations, and two court hearings followed. Ultimately, on April 1, 2015, the District Court
found Hardy competent to stand trial.

        “It has long been accepted that a person whose mental condition is such that he lacks the
capacity to understand the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162,
171 (1975). To find a defendant competent to stand trial, a district court must find that the
government has shown by a preponderance of the evidence that the defendant has “(1) ‘sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding’ and (2)


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‘a rational as well as factual understanding of the proceedings against him.’” United States v. Morrison,
153 F.3d 34, 46 (2d Cir. 1998) (quoting United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995)); see 18
U.S.C. § 4241(d); Brown v. Warden, Great Meadow Corr. Facility, 682 F.2d 348, 353–54 (2d Cir. 1982).
“We [will] uphold a district court’s finding that a defendant is competent to stand trial unless that
finding is clearly erroneous. Where the record on competency may plausibly be read to indicate the
defendant may not have been competent, we still defer to the judgment of the district court, which
had the benefit of examining the defendant and hearing from the fact and expert witnesses in
person.” Morrison, 153 F.3d at 46 (internal quotation marks, citation, and brackets omitted).
“[D]eference is owed to the district court’s determinations based on observation of the defendant
during the proceedings.” United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986).

         Applying those standards here, we find no clear error in the District Court’s determination.
Hardy does not appear to argue that he lacks the ability “‘to understand the nature and
consequences of the proceedings,’” and his challenge focuses on his ability “‘to assist properly in his
defense.’” Hardy Br. 27 (quoting 18 U.S.C. § 4241). As the District Court observed, however, after
being medicated, Hardy was able to file pro se motions that “reflect[ed] Hardy’s ability to present
logical (if incorrect) legal arguments in an articulate manner,” Hardy App’x 211, and his demeanor in
court significantly improved. Additionally, in certain ways, Hardy exhibited a sophisticated
understanding of the dynamics of a criminal case, including the advantages of cooperation with the
Government. Finally, Dr. Leanne Preston-Baecht, a psychologist with the United States Bureau of
Prisons—who was assigned to be Hardy’s primarily clinical psychologist for four months in 2008
and from November 2011 to December 2014—deemed him competent to stand trial in November
2014, after he had been receiving medication for nearly a year (in contrast with Dr. Preston-Baecht’s
2008 evaluation, undertaken prior to Hardy’s being medicated, in which she had concluded that
Hardy was not competent to stand trial).

         It is true that the defense expert still found Hardy incompetent to stand trial—due, primarily,
to Hardy’s still harboring delusions about a supposed Supreme Court case that had ordered his
release under Ethou law, and Hardy’s insistence that, consequently, prosecutors would release him if
he spoke to them. Such beliefs were clearly unsound and may have been a product of mental illness,
but “[i]t is well-established that some degree of mental illness cannot be equated with incompetence
to stand trial.” Vamos, 797 F.2d at 1150. Moreover, as noted, Hardy does not argue that he was
unable to understand the nature and consequences of the proceedings, but argues that he was unable
to assist in his defense. Although Hardy may have harbored delusional beliefs about a fictional
Supreme Court case, Hardy’s counsel has not asserted or even suggested that it was not possible to
have Hardy consider and assist with other defenses.

         Even if the question may have been a close one for the District Court deciding the matter in
the first instance, it bears emphasis that, here, we are not deciding the matter in the first instance.
Giving the deference due the District Court’s decision, and reviewing for clear error, the question


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presented on appeal is not a close one. See, e.g., United States v. Gigante, 166 F.3d 75, 84 (2d Cir. 1999)
(describing competency review as “highly deferential,” and observing that choosing between “two
permissible views of the evidence” does not manifest clear error (internal quotation marks omitted)).
Accordingly, the District Court did not clearly err.

    (2) Use of an Anonymous Jury

         Granton challenges the District Court’s decision to empanel an anonymous jury. The legal
standards governing the use of an anonymous jury are well established. See United States v. Wong, 40
F.3d 1347, 1376 (2d Cir. 1994). An anonymous jury may be empanelled when there is “strong reason
to believe the jury needs protection” and the district court “tak[es] reasonable precautions to
minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are
protected.” United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991). “Within these parameters, the
trial court is accorded broad discretion to determine whether to empanel an anonymous jury.” Wong,
40 F.3d at 1376.

          Here, the District Court did not err or “abuse its discretion” by empanelling an anonymous
jury. In granting the Government’s motion for an anonymous jury, the District Court based its
decision “on the serious nature of the charges, which include a charge of attempted murder of a
cooperating witness, and Mr. Hardy’s prior conviction for witness tampering” as well as its finding
that Defendants “still have the means of juror intimidation at their disposal.” Granton Br. 43–44.
Furthermore, “[t]o protect against any possible prejudice to the defendants,” the District Court told
prospective jurors that it would be using a “number” system in order “to protect their privacy
because of the media coverage the case might generate.” Id. at 44. The case had indeed garnered
media attention, because Hardy used to date a famous rapper, and because the Government had
initially sought the death penalty for Hardy (a position it later abandoned). This media attention, as
the District Court noted, was itself a concern. See United States v. Vario, 943 F.2d 236, 240 (2d Cir.
1991) (“Pre-trial publicity may militate in favor of an anonymous jury because it can enhance the
possibility that jurors’ names would become public and thus expose them to intimidation by
defendants’ friends or enemies, or harassment by the public.” (citation and internal quotation marks
omitted)). Accordingly, it was not error to empanel an anonymous jury.

    (3) Sufficiency of the Evidence

          We analyze the sufficiency of the evidence “in the light most favorable to the government,
crediting every inference that could have been drawn in the government’s favor, and deferring to the
jury’s assessment of witness credibility and its assessment of the weight of the evidence.” United
States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008) (internal quotation marks, citations, and alterations
omitted).




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          “In order to secure a conviction under RICO, the Government must prove both the
existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’” United States v.
Turkette, 452 U.S. 576, 583 (1981). “[A]n association-in-fact enterprise must have at least three
structural features: a purpose, relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle v. United
States, 556 U.S. 938, 946 (2009). The Government can prove an enterprise “by evidence of an
ongoing organization, formal or informal, and by evidence that the various associates function as a
continuing unit.” Id. at 945 (quoting Turkette, 452 U.S. at 583). Significantly, “the evidence used to
prove the pattern of racketeering activity and the evidence establishing an enterprise ‘may in
particular cases coalesce.’” Id. at 947 (same). “We are mindful that ‘the existence of an association-
in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its
structure.’” United States v. Burden, 600 F.3d 204, 215 (2d Cir. 2010) (quoting United States v. Coonan,
938 F.2d 1553, 1559 (2d Cir. 1991)).

        Here, there was sufficient evidence that CMB constituted an associated-in-fact enterprise.
Indeed, Defendants do not even dispute that CMB existed as an enterprise through approximately
1999. Instead, relying on United States v. Morales, 185 F.3d 74, 81 (2d Cir. 1999), Defendants argue
that the enterprise did not continue, as charged in the indictment, through 2004. In particular,
Defendants emphasize the following points: (a) Hardy sometimes installed others to run the
enterprise while he was imprisoned and CMB’s membership changed generally; (b) Hardy also
became a member of another gang, the “Bloods,” in 1999; and (c) the racketeering acts were
committed with personal motives.

          None of those points refutes the existence of the associated-in-fact enterprise in this case.
Associated-in-fact enterprises need not have a fixed hierarchy as “different members may perform
different roles at different times.” Boyle, 556 U.S. at 948; see, e.g., Coonan, 938 F.2d at 1560 (rejecting
argument that RICO enterprise ceased to exist upon leader’s imprisonment because “even while in
jail [he] continued to act as leader of the [enterprise] and the [enterprise’s] criminal activities
continued without significant disruption”); cf. Morales, 185 F.3d at 81 (concluding, upon review of an
alleged nine-year enterprise, that the government “did not present sufficient evidence to show that
the enterprise continued during the seven-year period . . . [in which all of] the defendants were
incarcerated”). As for Hardy’s joining the Bloods in 1999, the evidence indicated that Hardy joined
the Bloods largely as a ruse to manipulate others; in any event, membership in one group does not
disprove the existence of another group or one’s membership in, or even one’s leadership of, that
other group—here, CMB.




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        Finally, even assuming it is correct that CMB members sometimes acted out of personal
motivation, individuals can act with personal motivation while being a part of—and acting in
furtherance of—an enterprise.3

   (4) Evidentiary Rulings

        Granton summarily challenges the admission of evidence regarding several bad acts that
went to establishing the existence and nature of the RICO enterprise. These challenges have no
merit. Nearly all the evidence was not objected to before the District Court, and its admission does
not constitute error, much less plain error. With respect to certain evidence, Granton did request a
limiting instruction. The District Court issued such a limiting instruction to the jury, and Granton
did not object or request anything further.

        In sum, the District Court did not abuse its discretion or commit plain error in its
evidentiary rulings.

   (5) Colloquies between the District Court and Certain Witnesses

        Granton complains of two colloquies the District Court had with witnesses. The first
colloquy arose during cooperating witness Allen Bryant’s testimony regarding Granton’s shooting of
J.R. Hamilton. During that shooting, Granton’s gun jammed twice, and each time Granton
unjammed it to continue firing. Bryant testified that these acts increased Granton’s reputation
“[b]ecause it takes a lot of heart to shoot like that.” Gov’t App’x 18. The prosecutor asked Bryant
what he meant by that, defense counsel objected, and Judge Block’s decision to overrule the
objection led to this colloquy with the witness:

       THE COURT: No, overruled. It takes a lot of heart, they’re not very sensitive about
       killing somebody. You don’t mean that, do you? That’s heart when you care about
       another human being.
       THE WITNESS: No. I’m using in the slang term. Courage.
       THE COURT: The slang term means that they don’t care about whether they kill
       somebody or not, right?
       THE WITNESS: No.
       THE COURT: So you tell what “heart” means.



   3
      Hardy’s appeal, asserted in his supplemental brief, of the District Court’s denial of his pro se
motion to dismiss the indictment on the ground that it failed to allege an overt act in support of its
conspiracy charge is without merit, because, as Hardy’s counsel concedes, see Hardy Supplemental
Br. 7, Hardy was charged under 21 U.S.C. § 846, which does not require that an overt act be alleged.
See United States v. Shabani, 513 U.S. 10 (1994).

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         THE WITNESS: Heart means that it took a lot of courage for him to do that.
         THE COURT: It took him a lot of courage to kill somebody?
         THE WITNESS: No. For the gun.
         THE COURT: To unjam it?
         THE WITNESS: To unjam it and go back to the scene.
         THE COURT: To unjam it and go back and shoot somebody?
         THE WITNESS: Yes.
         THE COURT: Next question.
Id. at 18–19.

        The second colloquy occurred during the testimony of cooperating witness Robert Footman.
As the Government elicited testimony from Footman that he had committed shootings for Hardy,
the District Court began asking questions after Footman stated he did not how to respond to
questions asking whether he was Hardy’s “hit-man” or “shooter”:

         THE COURT: Well, if [Hardy] told you to shoot somebody, you would do it; right?
         THE WITNESS: Yes.
         THE COURT: That was all you needed to know; right?
         THE WITNESS: Yes.
         [DEFENSE COUNSEL]: Objection, Your Honor.
         THE COURT: I am just trying to get clarification. Who is objecting? I just want to
         get clarification that you would just shoot people if somebody told you to shoot
         people; right? No compunctions about that. You are not going to do that today, are
         you?
         THE WITNESS: No.
         THE COURT: That is in the past; right?
         THE WITNESS: Yes.
         THE COURT: You are out there, we do not have to worry about you; right?
         THE WITNESS: No.
Id. at 58.

        This type of questioning and commentary by a district court can be a source of prejudice
undermining the integrity of a trial. But, as Granton himself acknowledges, “[t]he vital question is
not whether the trial judge’s conduct left something to be desired but whether his behavior was so
prejudicial that it denied appellant a fair, as distinguished from a perfect, trial.” United States v. Bejasa,
904 F.2d 137, 141 (2d Cir. 1990) (internal quotation marks and alterations omitted). Here, in light of
the particulars of the District Court’s colloquies, the overwhelming evidence of Defendants’ serious

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and violent crimes, as well as the long curative instruction issued by the District Court, see Gov’t
App’x 59, we are confident that Defendants received a fair trial.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Granton and Hardy on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the May 19, 2015 and May 21,
2015 judgments of the District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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