11-1035-cr(L)
United States v. Anderson (Grimes)


                                 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, at 40 Foley Square, in the City of New York, on
the 28th day of April, two thousand seventeen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         DENNIS JACOBS,
         DEBRA ANN LIVINGSTON,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                                 v.                                   No. 11-1035-cr(L)
                                                                      No. 13-3224-cr(con)
DAVID ANDERSON, a/k/a Day Day, JEFFREY
ANDERSON, JULIET ANDERSON, KEVIN LOUIS
ANDERSON, a/k/a Glasses, MARLON ANDERSON, a/k/a
Cash, KEITH BENJAMIN, a/k/a KB, DANIEL BRIGGS,
a/k/a Tre Pound, SHANDRELL DAWSON, DEREK
GREEN, a/k/a “D”, MADELINE SANCHEZ, HOWARD
TAYLOR, a/k/a Jay,

                                Defendants,

WILLIE GRIMES, a/k/a Chill, KEVIN
LAMONT ANDERSON, a/k/a Cuda,

                     Defendants-Appellants.
_____________________________________________
For Defendant-Appellant           MATTHEW D. NAFUS, Law Office of Matthew D. Nafus, Esq.,
Willie Grimes:                    Scottsville, NY.

For Defendant-Appellant           LAWRENCE D. GERZOG, Law Offices of Lawrence D. Gerzog,
Kevin Lamont Anderson:            New York, NY.

For Appellee:                     FRANK T. PIMENTEL, Assistant United States Attorney, for
                                  James P. Kennedy, Jr., Acting United States Attorney for the
                                  Western District of New York, Buffalo, NY.


        Appeal from the United States District Court for the Western District of New York

(Siragusa, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgments of the district court are AFFIRMED.

        Defendants Willie Grimes and Kevin Lamont Anderson appeal from judgments of

conviction and sentence entered against them by the United States District Court for the Western

District of New York (Siragusa, J.). On October 26, 2009, a jury convicted Grimes of conspiracy

to distribute, and to possess with intent to distribute, 50 grams or more of cocaine base and

between 500 grams and less than 5 kilograms of cocaine, in violation of 21 U.S.C. § 846. The

jury convicted Anderson of conspiracy to distribute, and to possess with intent to distribute, 50

grams or more of cocaine base and 5 kilograms or more of cocaine, in violation of 21 U.S.C.

§ 846. It also convicted Anderson of renting, using, and maintaining premises for the purpose of

manufacturing and distributing cocaine base, in violation of 21 U.S.C. § 856(a), and of money

laundering conspiracy, in violation of 18 U.S.C. § 1956(h). Finally, the jury found by special

verdict that Anderson’s assets were subject to forfeiture in the amount of $1 million. Grimes was

sentenced principally to 168 months’ imprisonment and Anderson was sentenced principally to




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life imprisonment.1 We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       Both defendants contend on appeal that the district court erred in denying their motion for

a new trial alleging juror misconduct without holding an evidentiary hearing. We review a

district court’s denial of a motion brought pursuant to Federal Rule of Criminal Procedure 33 for

abuse of discretion, United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009), as we do “a

trial judge’s handling of juror misconduct,” United States v. Abrams, 137 F.3d 704, 708 (2d Cir.

1998) (per curiam). The defendants’ argument is based on a juror’s post-verdict assertions that

two other jurors were using the internet during trial and deliberations to learn information that

was not properly before the jury. In particular, the juror avers that one juror learned that

Anderson’s grandmother (Juliet Anderson, a co-defendant) was going to testify on Anderson’s

behalf and that another juror somehow knew Juliet Anderson’s income. As the district court

observed, the first allegation lacked credibility because no public report could be located

suggesting that the defense was going to call Juliet Anderson, and the second allegation was

based on the mistaken premise that no information regarding Juliet Anderson’s income was in

evidence. Thus, we find no abuse of discretion.

       Grimes makes two arguments specific to his appeal: first, that the evidence was

insufficient to support the jury’s finding that he willfully participated in the charged conspiracy,

and second, that the district court erred in assigning criminal history points for a 2001

misdemeanor conviction. Beginning with the first argument, “[w]e review a claim of insufficient

evidence de novo, but must uphold the jury verdict if drawing all inferences in favor of the

prosecution and viewing the evidence in the light most favorable to the prosecution, any rational

1
  The district court subsequently granted Grimes’s motion for a sentence reduction based on a
retroactive amendment to the Sentencing Guidelines. Grimes is now serving a 135-month term.

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trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”

United States v. Cuti, 720 F.3d 453, 461 (2d Cir. 2013) (internal quotation marks and citation

omitted). That standard is easily met here, as various witnesses testified to Grimes’s involvement

with Anderson and his crack cocaine distribution activities. For example, one government

witness testified that Grimes “work[ed]” for Kevin Lamont Anderson, the orchestrator of the

conspiracy, “[p]ick[ing] up money and drop[ping] off drugs.” Joint App. 377–78.

       Grimes’s argument regarding his criminal history score turns on whether the district court

clearly erred in determining that the conduct underlying his 2001 misdemeanor conviction for

attempted criminal possession of marijuana in the fourth degree was not “relevant conduct” to

the instant offense within the meaning of § 1B1.3 of the United States Sentencing Guidelines.

See United States v. LaBarbara, 129 F.3d 81, 86 (2d Cir. 1997) (“Appellate review of a district

court’s determination of whether particular acts are relevant conduct for purposes of Section

1B1.3 employs clear-error analysis.”); U.S.S.G. § 4A1.2 cmt. n.1. The district court reasoned

that the 2001 offense was not “relevant conduct” to the instant offense because it involved

marijuana rather than cocaine and involved possession rather than distribution. Though Grimes

asserts that his 2001 offense was relevant conduct to his instant conviction because it involved

the distribution of illegal drugs, we are not persuaded. We find no clear error in the district

court’s determination.

       Turning to Anderson’s arguments, Anderson first submits that the district court abused its

discretion in denying a series of Rule 33 motions he filed contending that his trial was tainted by

perjury on the part of cooperating witnesses. In exercising the “broad discretion” conferred by

Rule 33, a district court may “weigh the evidence and in so doing evaluate for itself the

credibility of the witnesses.” United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)



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(internal quotation marks omitted). Here, the district court carefully analyzed the specific

instances of alleged perjury identified in Anderson’s Rule 33 motion and concluded that the

defendant had failed to establish perjury in each instance. Finding no error in these

determinations, we find no abuse of discretion in the district court’s denial of the Rule 33

motion. See United States v. Diaz, 176 F.3d 52, 106 (2d Cir. 1999) (providing for clear error

review of district court findings of fact in the context of Rule 33 motions).

        Moreover, even assuming arguendo that some of the possible inconsistencies Anderson

now highlights for the first time on appeal amount to perjury, and assuming that these are

properly before us, Anderson’s challenge fails because he makes no persuasive showing “that the

jury probably would have acquitted in the absence of the false testimony.” Sanchez, 969 F.2d at

1414. That stray pieces of testimony over the course of a six-week trial may have been false does

not show how Anderson would likely have been acquitted in the absence of such testimony. Nor

has Anderson made any nonconclusory showing that the government should have known that its

witnesses were committing perjury, such that Anderson would need only to demonstrate that the

jury might have acquitted in order to be entitled to a new trial. See id. (“It is only in the rare

instance where it can be shown that the prosecution knowingly used false testimony that we

would apply a less stringent test and permit the granting of [a] new trial where the jury ‘might’

have acquitted absent the perjury.”).

        Anderson also contends that, because of the supposed pervasive unreliability of the

testimony, the evidence was legally insufficient to support his conviction and that the conviction

was entered in violation of his Fifth Amendment right to due process. As for the challenge to the

sufficiency of the evidence, “resolv[ing] all inferences from the evidence and issues of credibility

in favor of the verdict,” we conclude that “a rational trier of fact could . . . have found the



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essential elements of the crime beyond a reasonable doubt.” United States v. Howard, 214 F.3d

361, 363 (2d Cir. 2000) (internal quotation marks omitted); see also United States v. Triumph

Capital Grp., 544 F.3d 149, 158–59 (2d Cir. 2008) (“In order to avoid usurping the role of the

jury, courts must defer to the jury’s assessment of witness credibility and the jury’s resolution of

conflicting testimony when reviewing the sufficiency of the evidence.” (internal quotation marks

and citations omitted)). Anderson’s vaguely sketched constitutional argument fails for

substantially the same reasons that Anderson’s challenge to the denial of his Rule 33 motions

fails.

         Anderson next argues that his sentence is procedurally unreasonable because the district

court erred in applying the “murder cross-reference” found in § 2D1.1(d)(1) of the Sentencing

Guidelines. The application of the cross-reference was based on the district court’s finding that

Anderson preemptively murdered two individuals that he believed intended to rob him in order

to protect his drug trafficking activity. “This Court reviews a district court’s application of the

Guidelines de novo, while factual determinations underlying a district court’s Guidelines

calculation are reviewed for clear error.” United States v. Cramer, 777 F.3d 597, 601 (2d Cir.

2015). “A district court commits procedural error where it . . . makes a mistake in its Guidelines

calculation . . . .” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Section

2D1.1 of the Guidelines, which covers drug trafficking offenses, provides that if a victim was

murdered, the sentencing court should apply the applicable murder Guideline in calculating the

defendant’s Guidelines range (assuming the resulting offense level is greater). U.S.S.G.

§ 2D1.1(d)(1). The murder cross-reference applies only if the “murder is relevant to [the

defendant’s] offense of conviction under guideline § 1B1.3.” United States v. Taylor, 813 F.3d

1139, 1150 (8th Cir. 2016). Here, it is undisputed that the district court invoked the wrong



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paragraph of § 1B1.3 in finding the cross-reference applicable. In particular, the district court

stated prior to announcing its finding that “[w]hat must be shown is that the murders were part of

a common plan or scheme as the offense charged in the indictment,” paraphrasing the language

of § 1B1.3(a)(2). Gov’t App. 249. That provision, by its terms, only applies where the relevant

conduct constitutes an offense that the Guidelines would require to be grouped—a circumstance

that does not obtain here. See U.S.S.G. § 1B1.3(a)(2).

       Contrary to Anderson’s contention, however, a different standard for relevant conduct

could apply. See U.S.S.G. § 1B1.3(a)(1)(A) (classifying as relevant conduct “all acts and

omissions committed . . . by the defendant . . . that occurred during the commission of the

offense of conviction [or] in preparation for that offense”). Though facially expansive, this Court

has explained that “[t]o qualify as ‘relevant conduct’ [under § 1B1.3(a)(1)], the conduct must

occur in the course of commission of the offense of conviction.” United States v. Wernick, 691

F.3d 108, 115 (2d Cir. 2012) (emphasis added). We need not determine whether

§ 1B1.3(a)(1)(A) would apply here, however, because even assuming arguendo that it did not,

the error would be harmless because Anderson’s offense level and Guidelines range would

remain unchanged. Cramer, 777 F.3d at 603 (“An error in Guidelines calculation is harmless if

correcting the error would result in no change to the Guidelines offense level and sentencing

range.”). Anderson’s total offense level with the application of the murder cross-reference

exceeded 43, but was treated as 43 pursuant to the Guidelines. See U.S.S.G. Ch. 5, Pt. A, cmt.

n.2 (“An offense level of more than 43 is to be treated as an offense level of 43.”). In the absence

of the cross-reference, Anderson’s base offense level would have been 38 in light of the quantity

of cocaine base involved in the offense. His total offense level would have been 46, however, in

light of a four-level enhancement for leadership role, a two-level enhancement for possession of



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a firearm, and a two-level enhancement for obstruction of justice—all of which the district court

found applicable. Thus, even without the murder cross-reference, Anderson’s offense level

would still be treated as 43, and his Guidelines range would remain life imprisonment.

       Anderson argues that a retroactive amendment to U.S.S.G § 2D1.1 has increased the

threshold drug quantity needed to support a base offense level of 38 from 8.4 kilograms of

cocaine base to 25.2 kilograms, such that we should remand for the district court to reconsider

the Guidelines calculation in light of the amendment. This is unnecessary for two reasons. First,

in finding that Anderson’s offense involved “well beyond” 8.4 kilograms of cocaine base, the

district court credited a witness’s testimony that Anderson and his accomplices were distributing

about 2 kilograms of cocaine base per week in the late 1990s. Gov’t App. 312–13. The district

court thus effectively found that the offense involved far more than 25.2 kilograms of cocaine

base. Second, even assuming a lower base offense level of 36 (the base offense level now

associated with at least 8.4 but less than 25.2 kilograms of cocaine base, see U.S.S.G.

§ 2D1.1(c)(2)), Anderson’s offense level would still exceed 43 with the aforementioned

enhancements. Accordingly, any error in applying the murder cross-reference remains harmless.

       We likewise reject Anderson’s argument that the alleged perjury at trial and during the

sentencing proceedings renders his sentence procedurally and substantively unreasonable. The

district court explicitly found at sentencing that Keith Benjamin, whose testimony supported the

district court’s Guidelines calculation, was credible. That finding was not clearly erroneous.

Anderson also suggests that his sentence was substantively unreasonable because the district

court credited testimonial evidence during the sentencing proceedings without giving Anderson

an opportunity to confront relevant witnesses. However, to the extent Anderson is arguing that

his rights were violated in this manner, “[b]oth the Supreme Court and this Court . . . have



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consistently held that the right of confrontation does not apply to the sentencing context.” United

States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005).

        Finally, Anderson argues that the jury’s forfeiture verdict should be vacated. We review a

district court’s legal conclusions regarding forfeiture de novo and its factual conclusions for clear

error. United States v. Sabhnani, 599 F.3d 215, 261 (2d Cir. 2010). Anderson argues that the

special verdict form submitted to the jury was invalid in two respects. First, he argues that the

form did not comply with Federal Rule of Criminal Procedure 32.2(b)(5)(B) because it did not

“ask[] the jury to determine whether the government has established the requisite nexus between

the property and the offense committed by the defendant.” Fed. R. Crim. Proc. 32.2(b)(5)(B).

Second, he contends that it was error for the jury to determine the amount of money subject to

forfeiture because Rule 32.2 vests that responsibility with the court.

        As a threshold matter, the government’s position that these arguments are waived is

wrong. While Anderson’s counsel did not object to the composition of the special verdict form or

the submission of the quantum issue to the jury, his silence does not amount to the “intentional

relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733

(1993). Rather, where a party does not contemporaneously object to a claimed error, we examine

it on appeal for plain error. See Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir.

2005). “To establish plain error, the defendant must establish (1) error (2) that is plain and (3)

affects substantial rights.” United States v. Villafuerte, 502 F.3d 204, 209 (2d Cir. 2007). “If the

error meets these initial requirements, we then must consider whether to exercise our discretion

to correct it, which is appropriate only if the error seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” Id. (internal quotation marks omitted).




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       Neither of Anderson’s arguments regarding the special verdict satisfies the plain error

standard. With respect to Anderson’s first argument regarding the omitted verbiage, the district

court instructed the jury on what was required to find forfeiture, and Anderson does not contend

the court’s instructions were deficient in any respect. As such, Anderson cannot show that the

claimed error affected substantial rights. See Olano, 507 U.S. at 734 (noting that to “affect

substantial rights,” the claimed error generally “must have affected the outcome of the district

court proceedings” (alteration omitted)). With respect to Anderson’s second argument regarding

the jury’s finding as to the amount of forfeiture, nothing in Rule 32.2 precludes the court from

putting the question to the jury. Thus, the claimed error cannot be deemed “clear or obvious”

(such that it was plain), and Anderson has again made no showing that the claimed error affected

substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).

       Anderson also contends that the district court erred in permitting the government’s efforts

to attach assets of which he was the beneficial owner, specifically, his mother’s life insurance

policy and retirement plan account. But we have clearly held that a money judgment entered

under the criminal forfeiture statute at the time of sentencing “is effectively an in personam

judgment in the amount of the forfeiture order.” United States v. Awad, 598 F.3d 76, 78 (2d Cir.

2010) (per curiam) (internal quotation mark omitted). There was therefore no error in the district

court’s decision to permit the government to pursue these assets.

       We have considered all of the defendants’ arguments on this appeal and find in them no

basis for reversal. Accordingly, we AFFIRM the judgments of the district court.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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