14-3211 (L)
United States v. Sebbern

                                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 16th day of December, two thousand fifteen.

PRESENT:            JOSÉ A. CABRANES,
                    BARRINGTON D. PARKER,
                    RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                           Appellee,                       14-3211 (L), 14-3226 (Con)

                           v.

DONTAE SEBBERN, AKA K-DON, AKA KD, DEXTER WAITERS,

                           Defendants-Appellants.


FOR DEFENDANT-APPELLANT SEBBERN:                        JOHN MERINGOLO, Meringolo &
                                                        Associates, PC, New York, NY.

FOR DEFENDANT-APPELLANT WAITERS:                        ROBERT ROSENTHAL, New York, NY.

FOR APPELLEE:                                           SHREVE ARIAIL (Peter A. Norling, Kevin
                                                        M. Trowel, on the brief), Assistant United
                                                        States Attorneys, for Robert L. Capers,
                                                        United States Attorney, Eastern District
                                                        of New York, Brooklyn, NY.


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       Appeal from judgments of the United States District Court for the Eastern District of New
York (Sandra L. Townes, Judge).

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

        Defendants-appellants Dontae Sebbern (“Sebbern”) and Dexter Waiters (“Waiters”) appeal
from judgments of conviction entered on August 29, 2014, after a jury found them guilty of
numerous crimes related to their participation in the “Gorilla Bloods” gang. Specifically, the jury
convicted defendants of racketeering (Count One); racketeering conspiracy (Count Two); murder in
aid of racketeering (Count Three); conspiracy to commit murder in aid of racketeering (Count Four);
use of firearms in furtherance of a crime of violence (Count Five); being a felon in possession of a
firearm (Count Six as to Sebbern and Count Seven as to Waiters); and conspiracy to distribute
cocaine and cocaine base (Count Nine). In addition, the jury convicted Waiters of possessing body
armor after being convicted of an offense that constitutes a crime of violence (Count Eight), and
convicted Sebbern of possession of narcotics with intent to distribute (Count Eleven).1 (The jury
acquitted defendants of using a firearm in connection with the drug trafficking conspiracy.) The
District Court sentenced each defendant principally to three concurrent terms of life imprisonment.2

         On appeal, Sebbern argues (1) that there was insufficient evidence for the jury to convict
him of (a) the murder of Jermaine Dickersen (“Dickersen”), (b) murder conspiracy, (c) narcotics
trafficking conspiracy, (d) racketeering, (e) racketeering conspiracy, or (f) use of a firearm in
connection with those crimes; (2) that the District Court erred in charging the jury with respect to
aiding and abetting liability, per Rosemond v. United States, 134 S. Ct. 1240 (2014); (3) that the
Government withheld material information, in violation of Brady v. Maryland, 373 U.S. 83 (1963),
regarding a traffic stop on November 7, 2009; (4) that the traffic stop was unreasonable under the
Fourth Amendment; (5) that the District Court erred in admitting letters and phone calls made by
Sebbern and Waiters after their arrest, in violation of the Federal Rules of Evidence and the
Confrontation Clause of the Sixth Amendment; and (6) that the narcotics seized from Sebbern on
July 15, 2009, should have been suppressed or, in the alternative, that the District Court erred in



   1
     The judgments entered on August 29, 2014, incorrectly indicate that defendants pleaded guilty
to several of the counts.
   2
     In addition, each defendant received concurrent sentences of 120 months (Count Four), 120
months (Count Six as to Sebbern, Count Seven as to Waiters), and 480 months (Count Nine), and a
consecutive sentence of 60 months (Count Five). Waiters also received a concurrent sentence of 36
months (Count Eight), and Sebbern received an additional concurrent sentence of 240 months
(Count Eleven).

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denying Sebbern’s request for a “mere possession” jury charge with respect to Count Eleven.
Waiters likewise challenges the sufficiency of the evidence supporting his convictions for Counts
One through Five and Nine. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

                                   A. Sufficiency of the Evidence

        In challenging the sufficiency of the evidence, defendants “bear[ ] a heavy burden,” as our
“standard of review is exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012)
(internal quotation marks omitted). In particular, “we must view 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. Brock, 789 F.3d 60, 63 (2d Cir. 2015) (internal
quotation marks omitted). “Although sufficiency review is de novo, we will uphold the judgments of
conviction if any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (internal quotation marks omitted). We owe particular deference to the jury’s
findings in a conspiracy case. See United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008).

1. Dickersen Murder

        Defendants argue that there was insufficient evidence to support their convictions for
Dickersen’s murder. The Government presented evidence showing, inter alia, that on the night of the
murder, defendants were at a party, during which Dickersen’s “crew” was responsible for the
beating of Tyrone Harley (“Harley”), a high-ranking Gorilla Blood, and the shooting of Joshua
Demellier, another member of the gang. After the party, Harley berated defendants for failing to
intervene. Dickersen was shot and killed shortly thereafter.

        Defendants were arrested near the murder scene, just after Dickersen’s murder, wearing
body armor, as they and an unidentified third person fled from Harley’s car after dropping two
firearms, one of which was the murder weapon. After his arrest, Waiters wrote two letters to an
associate that, according to the Government, amounted to an admission of his involvement in the
homicide.

         Viewing this evidence as a whole, see United States v. Huezo, 546 F.3d 174, 183 (2d Cir. 2008),
we conclude that a rational juror could have found that defendants planned to murder Dickersen,
and that they did in fact murder him, in order to placate or impress Harley, a high-ranking member
of their gang who had recently rebuked defendants for failing to oppose Dickersen at the party.

2. Narcotics-Trafficking Conspiracy

        Defendants’ argument that there was insufficient evidence to demonstrate their involvement
in a narcotics-trafficking conspiracy is equally unavailing. As Sebbern helpfully explains, defendants

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“sold drugs together, and whatever crack heads came by, they shared.” Waiters Reply Br. 12
(quoting Waiters App. 940). Their cooperative marketing—together with defendants’ operating from
a shared location controlled by Gorilla Bloods and their use of shared phone numbers—permitted a
reasonable juror to find beyond a reasonable doubt that defendants possessed “some knowledge” of
the unlawful aims and objectives of the alleged conspiracy, whose “essential nature” was to
distribute drugs. See United States v. Salameh, 152 F.3d 88, 147 (2d Cir. 1998) (internal quotation marks
omitted).

3. Use of a Firearm in Connection with Counts One through Four

        Finally, defendants challenge the sufficiency of the evidence supporting their conviction for
use of a firearm in connection with the crimes charged in Counts One through Four, in violation of
18 U.S.C. § 924(c)(1)(A).3 In particular, Sebbern argues that because the jury did not find that
Sebbern or Waiters had discharged a firearm in connection with Dickersen’s murder, they could only
have been found guilty of using a firearm under an aiding-and-abetting theory; and that the District
Court’s aiding-and-abetting instruction was “plainly erroneous” in light of Rosemond, 134 S. Ct. at
1240.

        We need not reach the aiding-and-abetting issue, because there was sufficient evidence to
convict defendants as principals. As defendants concede, § 924(c) permits conviction not only for
discharging a firearm, but also for carrying or possessing a firearm in furtherance of a crime of
violence. See United States v. Gardner, 602 F.3d 97, 100 (2d Cir. 2010). Here, the predicate crime of
violence was Dickersen’s murder. Shortly after that murder, Waiters was arrested just after dropping
the 9 mm handgun that fired the shot that killed Dickersen, and Sebbern was arrested just after
dropping another handgun. Based on this evidence, a reasonable juror could have found beyond a
reasonable doubt not only that defendants participated in Dickersen’s murder, but also that they did
so while carrying firearms “in furtherance of” that crime.


    3
        Section 924(c)(1)(A) provides, in relevant part:

          [A]ny person who, during and in relation to any crime of violence or drug trafficking
          crime . . . for which the person may be prosecuted in a court of the United States,
          uses or carries a firearm, or who, in furtherance of any such crime, possesses a
          firearm, shall, in addition to the punishment provided for such crime . . .

                  (i) be sentenced to a term of imprisonment of not less than 5 years;

                  (ii) if the firearm is brandished, be sentenced to a term of imprisonment of
                  not less than 7 years; and

                  (iii) if the firearm is discharged, be sentenced to a term of imprisonment of
                  not less than 10 years.

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                                       B. Admission of Evidence

         Sebbern challenges several of the District Court’s evidentiary rulings. “Although we review
de novo the legal issues presented by a motion to suppress, we accept the district court’s factual
findings unless clearly erroneous, and we view those facts in the light most favorable to the
government.” United States v. Casado, 303 F.3d 440, 443 (2d Cir. 2002).

1. November 7, 2009 Stop

        Sebbern challenges the admission of evidence related to his traffic stop and subsequent
arrest on November 7, 2009, shortly after Dickersen’s murder.4 Specifically, Sebbern argues that the
stop was unreasonable under the Fourth Amendment, and that the Government violated its duty
under Brady to disclose before trial that Officer James Piscopo (“Piscopo”) would offer testimony
indicating that the stop lacked any justification.

         As the District Court correctly noted, a traffic stop is presumptively reasonable under the
Fourth Amendment if “the police have probable cause to believe that a traffic violation has
occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). Here, the District Court found that the
police had probable cause to believe that the black Mercedes in which Sebbern and Waiters were
riding had run a stop sign. We see no reason to question that finding. Sebbern’s only argument to
the contrary is his assertion that Piscopo testified at trial “that there was no reason to suspect the
Mercedes was involved in criminal activity” before it was stopped. Sebbern Br. 36. But this
mischaracterizes his testimony, which was that Piscopo decided to follow the Mercedes while it was
still obeying traffic laws, but that the police stopped it only after it ran a stop sign and nearly collided
with a police car. Plainclothes officers who follow a vehicle in an unmarked car do not display the
“physical force or show of authority” required for a stop. See United States v. Adegbite, 846 F.2d 834,
837 (2d Cir. 1988) (internal quotation marks omitted); see also Arizona v. Johnson, 555 U.S. 323, 333
(2009) (“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic
violation.” (emphases supplied)).

        The substance of Piscopo’s testimony—which was materially consistent with the testimony
of other officers at trial and of Officer Richard Ortiz at the suppression hearing—also makes it clear
that no Brady violation occurred. “To establish a Brady violation, a defendant must show (1) that the
evidence at issue is favorable to the accused,” because it is exculpatory or impeaching; (2) that the
Government suppressed that evidence, “either willfully or inadvertently”; and (3) that prejudice
ensued. United States v. Paulino, 445 F.3d 211, 224 (2d Cir. 2006) (internal quotation marks omitted).


    4
     Although Sebbern never moved in the District Court to suppress the evidence, Waiters’s
motion to suppress was sufficient to preserve the issue for appeal. See United States v. Garcia, 291 F.3d
127, 140 (2d Cir. 2002).

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Sebbern has satisfied none of these prongs. First, Sebbern has not shown that Piscopo’s testimony,
which reinforces the Government’s narrative that the police pulled over the Mercedes after it
committed a traffic violation, was favorable to defendants. Second, Sebbern offers no evidence that
the Government suppressed Piscopo’s testimony, or that the Government’s disclosure, pursuant to
18 U.S.C. § 3500, of “notes, reports and prior testimony of Officer Piscopo in the state grand jury,”
gave Sebbern insufficient notice of its contents. See Gov’t Br. 51-52. Finally, no prejudice ensued.
The District Court found that, even if the police had acted unreasonably in stopping the Mercedes,
Waiters had failed to assert Fourth Amendment standing to seek suppression of the handgun
recovered from the stop—a finding Sebbern does not challenge on appeal. Accordingly, even if
Piscopo’s testimony had shown that the stop was unreasonable, it would have made no difference to
the case’s outcome.

2. Admission of Waiters’s Letters from Prison

        Sebbern challenges the admission at trial of two letters Waiters wrote from prison, in which
Waiters allegedly admitted his involvement in Dickersen’s murder. In one letter, Waiters wrote to a
Gorilla Blood that “if you should oppress a rilla [Gorilla Blood] you should be delt wit no matter
who you are and dats basically wut this is about.” Waiters App. 1915-16, 2585-86. In the other, he
wrote that he “had to let [his] knuckles drag on a few dirty monkeys who felt that they could
disrespect” his gang. Waiters App. 1925, 2587-88. Sebbern and the Government interpreted these
statements as admissions of participation in the homicide. Sebbern concedes that Waiters’s letters do
not incriminate him directly, and therefore that Bruton v. United States, 391 U.S. 123 (1968), does not
apply. Instead, he relies on Crawford v. Washington, 541 U.S. 36 (2004), which holds that the
Confrontation Clause of the Sixth Amendment generally bars “the admission of testimonial
statements of a witness who did not appear at trial” for cross-examination, id. at 53-54 (emphasis
supplied). But because Waiters’s letters to fellow gang members were not testimonial, the
Confrontation Clause poses no bar to their admission. See United States v. Williams, 506 F.3d 151,
156-57 (2d Cir. 2007).

3. July 15, 2009 Stop

         Finally, Sebbern argues that the District Court erred in failing to suppress drugs seized from
his car on July 15, 2009, after the police stopped him for a traffic violation. The District Court
credited testimony by Officer Christopher Parco (“Parco”) that during the stop, he “observed 2 or 3
clear plastic bags containing what appeared to be crack cocaine lying in plain view on the front lip of
the sunroof” of Sebbern’s car. Sebbern App. 231 (Order of Nov. 30, 2012). Sebbern asserts that “[i]t
defies logic” that Parco “could have seen the crack cocaine in the sunroof.” Sebbern Br. 77. Instead,
Sebbern insists, “the narcotics could only have been found after Sebbern had been arrested and
removed from the car, rendering the search improper under” Arizona v. Gant, 556 U.S. 332 (2009).
Sebbern Br. 77-78. Sebbern offers no support for this statement, and his bare assertion of an
alternative narrative is insufficient to suggest any error, much less clear error, in the District Court’s

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decision to credit Parco’s version of events. See United States v. Bershchansky, 788 F.3d 102, 108 (2d
Cir. 2015) (“We pay special deference to the district court’s factual determinations going to witness
credibility.” (internal quotation marks omitted)).

                                          CONCLUSION

        We have reviewed all of the other arguments raised by Sebbern and Waiters on appeal and
find them to be without merit. Accordingly, we AFFIRM the August 29, 2014 judgments of the
District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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