     06-5652-cr (L), 07-0112-cr (CON), 07-0196-cr (CON), 07-0294-cr (CON)
     United States v. Needham, et al.
                                                                                              S.D.N.Y.
                                                                                             Lynch, J.




 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 BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
 9   CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   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 14th day of May, two thousand and ten.
17
18   PRESENT:    JOSÉ A. CABRANES,
19               ROBERT A. KATZMANN,
20               BARRINGTON D. PARKER,
21                               Circuit Judges.
22   ________________________
23
24   United States of America,
25
26                                           Appellee,
27                   -v.-                                                        No. 06-5652-cr
28                                                                               SUMMARY ORDER
29   Derrilyn Needham, Javier Robles, Corey Thompson,
30
31                                           Defendants-Appellants,
32
33                   -v.-
34
35   Joey Figueroa, Christian Quinones,
36
37                                           Defendants.
38
39   For Appellant Needham:          Elizabeth E. Macedonio, Bayside, NY.
 1   For Appellant Robles:          David L. Lewis, Lewis & Fiore, New York, NY.
 2
 3   For Appellant Thompson:        Sanford N. Talkin, Talkin, Muccigrosso & Roberts, LLP, New
 4                                  York, NY.
 5
 6   For Appellee:                  David S. Leibowitz, Assistant United States Attorney (Katherine
 7                                  Polk Failla, Assistant United States Attorney, on the brief) for
 8                                  Michael J. Garcia, United States Attorney, Southern District of
 9                                  New York, New York, NY.
10
11       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
12   DECREED that the judgments of the district court are AFFIRMED.

13          Defendants-appellants Derrilyn Needham and Javier Robles appeal from convictions in the

14   United States District Court for the Southern District of New York (Lynch, J.) finding each guilty

15   of Hobbs Act robbery and related offenses. See 18 U.S.C. §§ 1951, 1952. They challenge these

16   convictions on multiple grounds, claiming that the district court improperly admitted evidence of

17   prior bad acts, and – in Needham’s case – that the government failed to prove a single conspiracy

18   as alleged in its indictment. Robles also attacks the leadership enhancement that the district court

19   applied at his sentencing, and argues that the sentencing judge’s fact-finding was in violation of the

20   Sixth Amendment. We assume the parties’ familiarity with the facts, procedural history, and issues

21   presented on appeal. These are summarized in a contemporaneously issued opinion in this case.

22          A.       Evidence of Prior Bad Acts

23          Needham and Robles each argue that the district court erred in admitting evidence of prior

24   bad acts, in violation of Federal Rule of Evidence 404(b). Needham challenges the admission of

25   evidence concerning a robbery and subsequent kidnapping that occurred on January 2, 2004, at 464

26   Commonwealth Avenue. Robles, for his part, challenges evidence showing that he conspired to

27   distribute heroin in Pennsylvania during the period indicted.




                                                       2
 1          “We review a district court’s evidentiary rulings under a deferential abuse of discretion

 2   standard and give district court judges wide latitude in determining whether evidence is admissible

 3   at trial.” United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007) (citing Meloff v. New York Life

 4   Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001)) (internal quotation marks omitted). This Court follows

 5   “an inclusionary rule, allowing the admission of [prior bad act] evidence for any purpose other than

 6   to show a defendant’s criminal propensity, as long as the evidence is relevant and satisfies the

 7   probative-prejudice balancing test of Rule 403 of the Federal Rules of Evidence.” United States v.

 8   Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (internal quotation marks omitted).

 9          In Needham’s case, the district court ruled that evidence of the Commonwealth Avenue

10   robbery was directly relevant to the charged conspiracy. While the robbery took place on January 2,

11   2004, the court found that it was encompassed by the indictment, which charged defendants with

12   participating in a robbery conspiracy “[f]rom in or about December 2001, through in or about

13   December 2003.” The district court observed that it was “not a hard call” to find that a robbery

14   committed on January 2, 2004, was within the scope of a conspiracy that allegedly concluded “in or

15   about” December 2003. Nonetheless, the district court excluded any testimony relating to the

16   subsequent kidnapping as unduly prejudicial.

17          We do not consider evidence of uncharged criminal activity to be “other crimes evidence

18   under Fed. R. Evid. 404(b) if it arose out of the same transaction or series of transactions as the

19   charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or

20   if it is necessary to complete the story of the crime on trial.” Carboni, 204 F.3d at 44 (internal

21   quotation marks omitted). The Commonwealth Avenue robbery, which involved four of the same

22   participants as the other robberies and occurred within the same time-frame, plausibly arose out of

23   the same series of transactions as the alleged conspiracy. Moreover, the district court carefully


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 1   limited the scope of the testimony to any avoid undue prejudice related to the kidnapping allegations.

 2   On this record, we find no error. See United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006).

 3          Likewise, the district court did not abuse its discretion under Federal Rules of Evidence

 4   404(b) and 403 by admitting evidence of Robles’s prior heroin conspiracy conviction in

 5   Pennsylvania. It properly followed the four steps required before admitting evidence under Rule

 6   404(b), and justifiably concluded that the prior conviction was admissible to show motive. See

 7   United States v. Gilan, 967 F.2d 776, 780 (2d Cir. 1992) (describing four-step test).

 8                  B.      Multiple Conspiracies

 9          Needham further argues that the Government failed to put forward sufficient evidence

10   proving the existence of a single robbery conspiracy in which she was a participant. Instead, she

11   claims that the proof at trial showed multiple conspiracies, contrary to the indictment, and that this

12   variance prejudiced her defense.

13          Generally, “[w]hether the government’s proof shows a single conspiracy or multiple

14   conspiracies is a question of fact for a properly instructed jury.” United States v. Berger, 224 F.3d

15   107, 114 (2d Cir. 2000) (internal quotation marks omitted). In this case, the district court delivered

16   precisely such a precautionary instruction. Thus, to secure the reversal of a conviction on a multiple

17   conspiracies theory, Needham must show both that (1) “the indictment charged a single conspiracy,

18   but the proof disclosed several independent conspiracies, and (2) [the] defendant was so prejudiced

19   by this variance as to be denied a fair trial.” United States v. Desimone, 119 F.3d 217, 226 (2d Cir.

20   1997). In our analysis of the first prong, we apply a sufficiency of the evidence standard, viewing

21   the evidence “in the light most favorable to the government, drawing all inferences in the

22   government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.” United




                                                       4
 1   States v. Parkes, 497 F.3d 220, 225 (2d Cir. 2007) (internal quotation marks omitted); see United

 2   States v. Millar, 79 F.3d 338, 344-45 (2d Cir. 1996).

 3          We find that Needham’s multiple conspiracies challenge fails this demanding standard. The

 4   proof at trial amply demonstrated that she served as a “santero,” or “tipster,” for the robbery crew,

 5   providing crucial information about marijuana dealers and their locations. Indeed, the jury found

 6   her guilty of two substantive robbery offenses, including the robbery at 4434 Baychester Avenue.

 7   Several days before this robbery, Needham provided information about the target to the

 8   government’s cooperating witness. She carried out the robbery with several co-conspirators who

 9   impersonated police officers and held four individuals in the targeted apartment at gunpoint. Once

10   the robbery crew had made their escape, Needham was given a share of the $600,000 proceeds.

11   Many of the other robberies described at trial hewed closely to the same pattern. This proof was

12   consistent with the robbery conspiracy charged in the indictment.

13          Needham argues that evidence of robberies targeting cocaine and heroin dealers, in which

14   she was not a participant, showed a separate conspiracy at variance with the indictment. But “a

15   single conspiracy is not transposed into a multiple one simply by lapse of time, change in

16   membership, or a shifting emphasis in its locale of operations.” United States v. Cambindo

17   Valencia, 609 F.2d 603, 625 (2d Cir. 1979). Nor must a defendant participate in, or even agree to,

18   every act undertaken on behalf of the alleged conspiracy in order to be culpable as a member. See

19   United States v. Bernstein, 533 F.2d 775, 792-93 (2d Cir. 1976). “A single conspiracy may be found

20   where there is mutual dependence and assistance among the participants, a common aim or purpose

21   or a permissible inference, from the nature and scope of the operation, that each actor was aware of

22   his part in a larger organization where others performed similar roles equally important to the success

23   of the venture.” United States v. Vanwort, 887 F.2d 375, 383 (2d Cir. 1989) (internal quotation


                                                       5
 1   marks and alterations omitted). The evidence amply showed a long-running scheme to rob drug

 2   dealers, in which Needham was a key player – proof that the jury credited. Simply because Needham

 3   did not participate in every robbery undertaken by her counterparts does not establish multiple,

 4   separate conspiracies in the face of the jury’s verdict.

 5          C.      Robles’s Sentencing

 6          Robles contends that the district court erroneously applied a four-level role enhancement

 7   when computing his Guidelines range, arguing that he was a mere “middleman” and did not plan the

 8   robberies, receive a greater share of the proceeds of the conspiracy, or identify the robbery targets

 9   or locations. He also argues that his sentence violates the Sixth Amendment because the district

10   court applied sentencing enhancements that increased his Guidelines range beyond the base offense

11   level provided in U.S.S.G. § 2B3.1.

12          Neither of these challenges has merit. The sentencing court’s fact-finding was supported by

13   the record and its application of the role enhancement consistent with both the United States

14   Sentencing Guidelines and the Sixth Amendment. See U.S.S.G. § 3B1.1 & cmt. 4; United States v.

15   Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005) (“Judicial authority to find facts relevant to

16   sentencing by a preponderance of the evidence survives Booker.”).

17          D.      Conclusion

18          For the foregoing reasons, the judgments of the district court are affirmed with respect to the

19   issues treated herein.
20
21
22
23                                                                 FOR THE COURT:
24                                                                 Catherine O’Hagan Wolfe,
25                                                                 Clerk of Court
26
27
28



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