     08-4882-cr (L); 08-4887-cr (CON); 08-4888-cr (CON); 08-4889-cr (CON)
     United States of America v. Brown, et al

                          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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23 rd day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                GUIDO CALABRESI,
10                              Circuit Judges,
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15                                                                 08-4882-cr     (L);
16                    -v.-                                         08-4887-cr     (CON);
17                                                                 08-4888-cr     (CON);
18                                                                 08-4889-cr     (CON)
19       DAMIAN BROWN, also known as BOSSY,
20       FRANZ GOLDING, SHAWN PETERKIN, also
21       known as SHAWN JAMES, DWAYNE PALMER,
22                Defendants-Appellants.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       APPEARING FOR APPELLANTS:              Allan P. Haber, New York, NY
26                                              (for Damian Brown); Arza
27                                              Feldman, Feldman and Feldman,
28                                              Uniondale, NY (for Franz

                                                  1
 1                               Golding); Bruce R. Bryan, Esq.,
 2                               Syracuse, NY (for Shawn
 3                               Peterkin); David A. Ruhnke
 4                               (Andrew G. Patel, law office of
 5                               Andrew G. Patel, New York, NY on
 6                               the brief), Ruhnke & Barrett,
 7                               Montclair, NJ (for Dwayne
 8                               Palmer).
 9
10   APPEARING FOR APPELLEES:    Jessica A. Masella (Michael Q.
11                               English, Michael D. Maimin
12                               Assistant United States
13                               Attorneys on the brief)
14                               Assistant United States
15                               Attorney, on behalf of Preet
16                               Bharara, United States Attorney
17                               for the Southern District of New
18                               York, New York, NY.
19
20       Appeals from judgments of the United States District

21   Court for the Southern District of New York (Rakoff, J.).

22       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

23   AND DECREED that the judgments of the district court be

24   AFFIRMED.

25       Damian Brown, Franz Golding, Shawn Peterkin, and Dwayne

26   Palmer appeal from judgments of conviction entered on

27   October 2, 2008 in the United States District Court for the

28   Southern District of New York (Rakoff, J.) following a two-

29   week jury trial.   Each of the four co-defendants was

30   convicted of charges of conspiracy to distribute and possess

31   with intent to distribute 100 kilograms or more of marijuana

32   (Count One), see 21 U.S.C. § 846, of using a firearm to

33   commit murder in relation to Count One’s marijuana


                                   2
1    conspiracy (Count Two), see 18 U.S.C. §§ 924(j)(1) & 2, and

2    of using and carrying firearms during and in relation to

3    Count One’s marijuana conspiracy (Count Three), see 18

4    U.S.C. § 924(c)(1)(A)(iii) & 2; each was additionally

5    convicted individually of being either a felon (Peterkin) or

6    an alien (Brown, Golding, Palmer) in possession of a firearm

7    (Counts Four through Seven), see 18 U.S.C. §§ 922(g)(1),

8    922(g)(5)(A), & 2.    The appellants raise a number of

9    challenges to their convictions and sentences.

10       Appellants argue that there was insufficient evidence

11   to establish that the murder charged in Count Two was

12   committed in relation to the marijuana conspiracy charged in

13   Count One.    “A court may overturn a conviction on this basis

14   only if, after viewing the evidence in the light most

15   favorable to the Government and drawing all reasonable

16   inferences in its favor, it finds that no rational trier of

17   fact could have concluded that the Government met its burden

18   of proof.”    United States v. Triumph Capital Group, Inc.,

19   544 F.3d 149, 158 (2d Cir. 2008) (internal quotation marks

20   omitted).    There was clearly sufficient evidence for the

21   jury to have inferred that Peterkin was robbed of 25 pounds

22   of marijuana and $47,000 in cash by the victim.    The jury

23   could have inferred that the purpose of the murder was to

24   settle the dispute caused by the theft of drugs and drug

                                    3
1    proceeds.     “Because narcotics conspiracies are illicit

2    ventures, disputes are frequently settled by force or the

3    threat of force.     Consequently, advancing the aim of a

4    narcotics conspiracy can involve performing ancillary

5    functions such as enforcing discipline and chastising

6    rivals.”     United States v. Santos, 541 F.3d 63, 72 (2d Cir.

7    2008) (alterations, internal quotation marks, and internal

8    citations omitted).     Ample evidence supported the jury’s

9    verdict.

10       Brown argues that the district court erred by admitting

11   evidence of what he characterizes as unrelated drug

12   ownership.     “We review evidentiary rulings for abuse of the

13   district court’s broad discretion, reversing only when the

14   court has acted arbitrarily or irrationally.”     United States

15   v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006) (internal

16   quotation marks omitted).     Evidence that Brown owned

17   marijuana and scales used for weighing marijuana during the

18   period he was alleged to have participated in a marijuana

19   distribution conspiracy rendered more probable the fact of

20   his membership in that conspiracy.     See Fed R. Evid. 401.

21   Brown was permitted to argue that the drugs were for his

22   personal use or were to be sold in an unrelated scheme; such

23   arguments go to weight, not admissibility.     The district

24   court did not err by admitting this evidence.

                                     4
1          Peterkin challenges the admission of a gun found in the

2    bathroom of his motel room during a post-arrest protective

3    sweep.    See generally Maryland v. Buie, 494 U.S. 325, 334

4    (1990).     The officers had sufficient reasonable suspicion to

5    perform a protective sweep of the bathroom: several

6    suspected killers were staying in the motel and not all had

7    been accounted for; Peterkin was arrested immediately

8    outside his motel room; and the light in the bathroom was

9    on.   Cf. United States v. Mickens, 926 F.2d 1323, 1328 (2d

10   Cir. 1991).     Since the police were permitted to enter the

11   bathroom and since the gun was found to have been in plain

12   sight upon entry, it was properly seized and admitted.     See

13   Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).

14         Palmer challenges the admission into evidence of his

15   co-defendants’ statements on the theory that they implicitly

16   referenced him.     “The crux of [the Confrontation Clause] is

17   that the government cannot introduce at trial statements

18   containing accusations against the defendant unless the

19   accuser takes the stand against the defendant and is

20   available for cross examination.”     United States v. Jass,

21   569 F.3d 47, 55 (2d Cir. 2009) (internal quotation marks

22   omitted).     “[T]he Confrontation Clause is not violated by

23   the admission of a nontestifying codefendant’s confession

24   with a proper limiting instruction when . . . the confession

                                     5
1    is redacted to eliminate not only the defendant’s name, but

2    any reference to his or her existence.”       Richardson v.

3    Marsh, 481 U.S. 200, 211 (1987).       “[W]hat Bruton[ v. United

4    States, 391 U.S. 123, 135-37 (1968),] and its progeny demand

5    is a redaction and substitution adequate to remove the

6    ‘overwhelming probability’ that a jury will not follow a

7    limiting instruction that precludes its consideration of a

8    redacted confession against a defendant other than the

9    declarant.”   Jass, 569 F.3d at 60.

10       To determine if a redacted confession may be admitted,

11   “we examine first whether [the] redacted confession

12   indicated to the jury that the original statement contained

13   actual names and, second, whether the redacted confession,

14   even if the very first item introduced at trial[,] would

15   immediately inculpate [the non-declarant defendant] in the

16   charged crime.”   Jass, 569 F.3d at 61 (internal citations

17   and quotation marks omitted).       “[T]he appropriate analysis

18   to be used when applying the Bruton rule requires that we

19   view the redacted confession in isolation from the other

20   evidence introduced at trial.”       United States v. Williams,

21   936 F.2d 698, 700 (2d Cir. 1991).       As Palmer argues, the

22   revised statements of Brown, Golding, and Peterkin are

23   stilted by removal of so many appellations and the

24   substitution of generic references (“the guy,” the “other

                                     6
1    person,” etc.).   But the revisions did not indicate names

2    were omitted; moreover, the redacted statements--considering

3    each statement alone, apart from all other trial evidence

4    including the other statements, as we must--did not

5    immediately inculpate Palmer.       Therefore, the statements

6    were not admitted in error with these redactions.

7        Finding no merit in any of the appellants’ remaining

8    arguments, we hereby AFFIRM the judgments of the district

9    court.

10
11
12                               FOR THE COURT:
13                               CATHERINE O’HAGAN WOLFE, CLERK
14




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