     08-5453-cr
     United States v. Jones



 1                                         UNITED STATES COURT OF APPEALS
 2                                             FOR THE SECOND CIRCUIT
 3
 4                                                   SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
 8   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 9   W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
10   M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
11   NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14           At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
15   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
16   on the 16th day of February, two thousand and ten.
17
18   PRESENT:
19
20                            GUIDO CALABRESI
21                            ROESEMARY S. POOLER,
22                                            Circuit Judges,
23                            LAWRENCE E. KAHN*
24                                            District Judge.
25
26
27
28   DEAN JONES,
29
30                            Defendant-Appellant,
31
32                            -v.-                                            No. 08-5453-cr
33
34   UNITED STATES OF AMERICA
35
36
37                            Appellee..
38
39   Appearing for Appellant:                                   Donald D. DuBoulay, New York, N.Y.
40
41   Appearing for Appellee:                                    Michael D. Maimin, of counsel to Preet
42                                                              Bharara, United States Attorney for the
43                                                              Southern District of New York (Katherine
44                                                              Polk Failla, on the brief), New York, N.Y.
45

     *
      The Honorable Lawrence E. Kahn, United States District Court for the Northern District of
     New York, sitting by designation.

                                                          -1-
 1           Appeal from the United States District Court for the Southern District of New York
 2   (Crotty, J.).
 3
 4        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

 6          Defendant-Appellant Dean Jones appeals from a judgment of conviction of possession of

 7   a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), entered on November 3,

 8   2008, in the United States District Court for the Southern District of New York (Crotty, J.),

 9   following a bench trial. We assume the parties’ familiarity with the case’s facts and procedural

10   history, and the issues on appeal.

11          We find Jones’s Fourth Amendment and sufficiency of the evidence claims to be without

12   merit. Jones’s Fourth Amendment claims are that (1) he had a reasonable expectation of privacy

13   such that he had standing to challenge the stop of the cab in which he was a passenger; and (2)

14   the arresting officers did not have reasonable suspicion to stop the cab and therefore could not

15   use any evidence found as a result of the stop. We assume, without deciding, that Jones had

16   standing to challenge the search. See United States v. Paulino, 850 F.2d 93, 96 (2d Cir. 1988)

17   (noting that the “better analysis” of Fourth Amendment claims is often to address the merits

18   before the “intertwined concept of standing” (quoting Rakas v. Illinois, 439 U.S. 128, 133 (U.S.

19   1978))); see also United States v. SDI Future Health, Inc., 568 F.3d 684, 695 (9th Cir. 2009)

20   (“Fourth Amendment standing, unlike Article III standing, is a matter of substantive Fourth

21   Amendment law[.]”) (alterations and quotation marks omitted).

22          Police officers may lawfully stop a cab if they have reasonable suspicion that the driver

23   committed a traffic violation. See United States v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009).

24   Jones argues that the District Court erred by not holding an evidentiary hearing on the legality of

25   the stop. “[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving

26   papers are sufficiently definite, detailed, and nonconjectural to enable the court to conclude that

                                                      -2-
 1   contested issues of fact going to the validity of the search are in question.” United States v.

 2   Pena, 961 F.2d 333, 339 (2d Cir. 1992) (internal quotation marks omitted). This Court reviews

 3   for abuse of discretion a district court’s decision not to hold an evidentiary hearing. United

 4   States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001).

 5          The District Court did not abuse its discretion by not holding an evidentiary hearing.

 6   New York traffic regulations require that cabs have a partition between the driver and the

 7   passenger. See N.Y. Comp. Codes. R. & Regs. Tit. 35 § 6-13(a)(1). Cabs do not need to have a

 8   partition if they have, among other things, both a security camera and a decal on the rear

 9   passenger window clearly stating that the cab is equipped with a security camera. See id. § 6-

10   13(a)(3); 6-13(c). Because Jones alleged neither that the cab had a partition nor that its rear

11   passenger window contained a decal stating that the cab was equipped with a security camera,

12   there was no material factual dispute regarding the legality of the stop.

13          Jones also argues that there was insufficient evidence from which the jury could conclude

14   that he, rather than the cab driver, had possession of the gun. In reviewing a sufficiency-of-the

15   evidence claim, this Court must review the evidence in the light most favorable to the

16   Government. United States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004). Jones’s principal

17   argument on appeal is that the cab driver’s testimony was not credible. But because we must

18   resolve credibility issues in favor of the jury verdict, United States v. Howard, 214 F.3d 361, 363

19   (2d Cir. 2000), we find this argument to be without merit.

20          We have considered all of Jones’s claims on appeal and find them to be unavailing.

21   Accordingly, we affirm the District Court’s judgment.

22                                                          FOR THE COURT:
23
24                                                          Catherine O’Hagan Wolfe, Clerk of Court
25
26
27


                                                      -3-
