14-4349-cr
United States v. Lloyd


                          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 25th day of November, two thousand fifteen.

PRESENT: AMALYA L. KEARSE,
                 REENA RAGGI,
                 RICHARD C. WESLEY,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                              No. 14-4349-cr

STEPHANIE LLOYD
                                 Defendant-Appellant,

SHAROD WILLIAMS, AKA Sharod Brown, AKA Barry,
TRAVIS WALKER, DARIUS LOWERY, AKA YD,
TERRELL MADEN, AKA Ralo, RALPH JAMES, AKA
Esco, LAURELL LEWIS, AKA TK, BRYAN KENNER,
                                 Defendants.*
----------------------------------------------------------------------




*
    The Clerk of Court is directed to amend the caption as set forth above.

                                                     1
APPEARING FOR APPELLANT:                  ROBERT P. LARUSSO, LaRusso Conway &
                                          Bartling, Mineola, New York.

APPEARING FOR APPELLEE:                   LARA TREINIS GATZ, Assistant United
                                          States Attorney (Amy Busa, Assistant United
                                          States Attorney, on the brief), for Robert L.
                                          Capers, United States Attorney for the Eastern
                                          District of New York, Central Islip, New York.

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

of New York (Arthur D. Spatt, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 14, 2014, is AFFIRMED.

       Defendant Stephanie Lloyd was convicted, after a jury trial, of conspiracy to rob

the Wyandanch Post Office (“Post Office”), where she was then employed, see 18 U.S.C.

§ 371; aiding and abetting her confederates’ robbery of that Post Office, see id. §§ 2114

and 2; and, on a Pinkerton theory, possessing a firearm during a crime of violence, see id.

§ 924(c). Lloyd now appeals from the denial of her motions for a judgment of acquittal

pursuant to Fed. R. Crim. P. 29, and for a new trial pursuant to Fed. R. Crim. P. 33. See

United States v. Lloyd, 947 F. Supp. 2d 259 (E.D.N.Y. 2013). We assume the parties’

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1.     Rule 29 Motion

       Lloyd asserts that she was entitled to Rule 29 relief because, even if the evidence

was sufficient to prove her joinder in a conspiracy to rob the Wyandanch Post Office, the

conspiracy she joined was to commit that robbery at Christmastime 2009, not the charged


                                               2
conspiracy, which led to the robbery of the Post Office in October 2009. Without her

knowing joinder in a conspiracy to rob the Post Office in October (rather than

December), Lloyd maintains that her overt acts in providing security information to her

then-boyfriend, Travis Walker, who organized and carried out the October robbery, could

not be found to constitute knowing aiding and abetting of the robbery. Nor, Lloyd

contends, could she be found to have foreseen the possession of firearms by the person

committing the October robbery, as necessary for Pinkerton culpability.

       On de novo review of these sufficiency challenges, we conclude, as the district

court did, that they fail on the merits. See United States v. Allen, 788 F.3d 61, 63, 66

(2d Cir. 2015) (observing that, on de novo review of sufficiency challenge, court must

view evidence in light most favorable to government, drawing all permissible inferences

in its favor, and deferring to jury’s assessments of witnesses’ credibility).

       a.     Separate Conspiracies

       Lloyd insists the evidence showed that she agreed to rob the Post Office only at

Christmastime because that was when proceeds would be greatest.                  She further

maintains that she did not agree to a robbery that would take place when she was not at

work—as happened here—because she wished to claim injury from the robbery, allowing

her to file a workers’ compensation claim. The argument fails to show that no rational

jury could have found the single charged conspiracy and Lloyd’s membership in it

proved beyond a reasonable doubt. See United States v. Anderson, 747 F.3d 51, 59 (2d

Cir. 2014). It is well established that members of a conspiracy need not have agreed on

all details of the conspiracy, so long as they agreed on “‘the essential nature of the plan.’”

                                              3
United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004) (quoting United States v.

McDermott, 245 F.3d 133, 137 (2d Cir. 2001)). The “essential nature” of the charged

conspiracy was to rob the Wyandanch Post Office. The evidence showed that Lloyd

herself conceived the scheme and proposed it to her boyfriend, who then recruited

confederates to help him carry it out. To facilitate the scheme, Lloyd provided security

information about the Post Office. Meanwhile, her boyfriend told Lloyd that the cousin

whom he had recruited for the robbery would be armed, so that the crime could be carried

out “at armed gunpoint.” A. 99. This was sufficient proof of a common scheme, with

mutual dependence and assistance, to allow the jury to find Lloyd guilty of the single

charged conspiracy.

      Nor is a different conclusion compelled by evidence that Lloyd proposed for the

robbery to occur at Christmastime while she was at work, and that she was angry when

she learned it happened in October. Her acceptance of a share of the proceeds of the

October robbery easily allowed a reasonable jury to conclude that her timing and

presence preferences were not essential to the nature of the robbery plan. Accordingly,

we reject Lloyd’s sufficiency challenge to her conspiracy conviction.

      b.     Substantive Robbery and Firearm Possession

      The same reasoning defeats Lloyd’s challenge to her conviction for aiding and

abetting the October robbery. On this theory of culpability, the government must prove

the defendant’s knowledge of the substantive crime, and action taken by the defendant

with the intent to contribute to the crime’s success.   See United States v. Reifler, 446

F.3d 65, 96 (2d Cir. 2006). To carry this burden, the government need not prove the

                                            4
defendant’s knowledge of all details of the crime, “so long as the evidence shows that he

joined the venture, [that he] shared in it, and that his efforts contributed towards its

success.”   Id. (internal citation and quotation marks omitted).       The trial evidence

satisfied this standard. Lloyd’s knowledge and intent to rob the Wyandanch Post Office

is evident from the fact that she conceived the crime and solicited her boyfriend to

commit it. By providing information about the security and internal operations of the

Post Office—information critical to success of the robbery—Lloyd took action

manifesting her intent for the crime to succeed.         The fact that her confederates

committed the robbery at a time and under circumstances other than those proposed by

Lloyd did not preclude a reasonable jury from finding her liable for aiding and abetting

the substantive crime, particularly given her acceptance of a share of the proceeds.

       As for Lloyd’s conviction for firearm possession during the robbery, Pinkerton v.

United States, 328 U.S. 640 (1946), establishes that “a defendant who does not directly

commit a substantive offense may nevertheless be liable if the commission of the offense

by a co-conspirator in furtherance of the conspiracy was reasonably foreseeable to the

defendant as a consequence of their criminal agreement.” United States v. Parkes, 497

F.3d 220, 232 (2d Cir. 2007) (internal quotation marks omitted). Here, the reasonable

foreseeability to Lloyd that one of her coconspirators would be armed with a gun during

the robbery was proved by her boyfriend’s testimony that he specifically told Lloyd of

the plan for his cousin to carry a firearm and for the Post Office to be robbed at gunpoint.

Lloyd’s contention that no reasonable jury could have found her to have foreseen firearm



                                             5
possession on October 30, 2009, because she agreed only to a robbery at Christmastime,

simply reasserts a point that we have already resolved against her.

       Accordingly, the court correctly denied Lloyd’s Rule 29 motion for a judgment of

acquittal notwithstanding the jury’s guilty verdict.

2.     Rule 33 Motion

       Lloyd argues that the district court nevertheless erred in denying her motion for a

new trial based on the government’s misleading presentation of Walker’s testimony and

defects in the jury charge.

       We review the denial of a new trial motion for abuse of discretion, United States

v. Cacace, 796 F.3d 176, 191 (2d Cir. 2015), mindful that while such motions are

properly granted “if the interest of justice so requires,” Fed. R. Crim. P. 33(a), that

conclusion is warranted “only in extraordinary circumstances,” United States v.

McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (internal quotation marks omitted), for

example, when the reviewing court “harbor[s] a real concern that an innocent person may

have been convicted,” United States v. Lin Guang, 511 F.3d 110, 119 (2d Cir. 2007).

Lloyd fails to satisfy that standard. See United States v. McCourty, 562 F.3d at 475

(imposing burden on defendant moving for Rule 33 relief).

       a.     Government Misconduct

       Lloyd asserts that the government inappropriately enhanced Walker’s credibility

by withholding a cooperation agreement so as to make it appear to the jury that no

promises had been made to him in return for his testimony when the government knew

that it would in fact file a motion for sentencing leniency pursuant to 18 U.S.C.

                                              6
§ 3553(e). The argument lacks support in the record. Walker explicitly testified that

the government made no promise to file a § 3553(e) motion, but that he was testifying in

the hope that, “by telling the truth,” he could “get some leniency on [his] sentencing.”

G.A. 27, 28.         This allowed the jury to understand the self-interest informing the

witness’s testimony and to assess his credibility in light thereof.

        Thus, the district court did not abuse its discretion in finding that the government’s

conduct did not lead to injustice or raise a real concern that an innocent person had been

convicted.

        b.     Jury Instructions

        We review Lloyd’s jury instruction challenges de novo, but we will reverse only if

the charge, “taken as a whole, caused [the] defendant prejudice.” United States v.

Applins, 637 F.3d 59, 72 (2d Cir. 2011) (internal quotation marks omitted).       We discern

none.

               (1)      Cooperating Witness Charge

        Lloyd submits that the district court erred in refusing to instruct the jury to

evaluate Walker’s testimony as that of a cooperating witness. This claim merits little

discussion because even if Walker should have been denominated a cooperating witness,

the district court’s charge sufficiently informed the jury of the need to scrutinize his

testimony carefully to avoid any prejudice to Lloyd.1     See United States v. Vaughn, 430


1
    The court charged the jury as follows:

               [A]s to Travis Walker, I instruct you that a witness who is
               hoping to receive a lighter sentence by giving testimony

                                              7
F.3d 518, 523–24 (2d Cir. 2005) (Sotomayor, J.) (rejecting challenge to charge that

“fairly put the issue of [the witness]’s possible motivations to the jury for its

consideration,” and stating that district court “need not over-emphasize the obvious”).

Indeed, the challenged instruction effectively tracked the model interested witness

charge, but without language (favorable to the government) explaining that “[t]his is not

to suggest that every witness who has an interest in the outcome of a case will testify

falsely.” See 1-7 Modern Federal Jury Instructions – Criminal, Instruction 7-3.

             (2)    Pinkerton Liability

      Lloyd also maintains that the court erred in failing to charge the jury that to

convict her of weapon possession on a Pinkerton theory, the government had to prove

that such possession fell “within the scope of the unlawful project,” Pinkerton v. United

States, 328 U.S. at 647–48. The argument fails because the point made in the quoted

language from Pinkerton was adequately conveyed to the jury by the instruction that it

could not convict Lloyd on this theory unless it found that the charged possession “was

committed pursuant to a common plan and understanding” among the conspirators that

included Lloyd, and that Lloyd could “have reasonably foreseen that the substantive

crime [of firearm possession] might be committed by her coconspirators.” A. 130.

This language finds approval in our prior decisions. See, e.g., United States v. Salameh,


             favorable to the prosecution may have a motive to testify
             favorably to the Government.          Therefore, you must
             scrutinize his testimony with some caution.

A. 128.



                                           8
152 F.3d 88, 149 (2d Cir. 1998) (citing United States v. Miley, 513 F.2d 1191, 1208 (2d

Cir. 1975) (Friendly, J.)).2

       Lloyd further asserts the district court was required to instruct the jury that, in

evaluating her responsibility for the conduct of coconspirators, it should focus on the

agreement “as the defendant understood it.”       Def.’s Br. at 27, 28. Lloyd cites no

authority for this unrequested charge. Insofar as it suggests that Lloyd could not be

convicted of substantive crimes on a Pinkerton theory unless she joined in the charged

robbery conspiracy, and not in some other robbery conspiracy, we have already explained

why the evidence sufficiently supports that jury finding.           Thus, Lloyd has not

demonstrated that any charging omission caused her prejudice. See Fed. R. Crim. P.

52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded.”).

       Consequently, the district court acted well within its discretion in denying Lloyd’s

Rule 33 motion for a new trial.

3.     Conclusion

       We have considered Lloyd’s remaining arguments, and we conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




2
  Accordingly, we need not address the government’s argument for more stringent
review of challenges raised for the first time in a Rule 33 motion.

                                             9
