16-3274-cr (L)
United States v. Taylor

                                 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 11th day of February, two thousand twenty.

PRESENT:             JOSÉ A. CABRANES,
                     ROBERT D. SACK,
                     RAYMOND J. LOHIER, JR.,
                                  Circuit Judges.



UNITED STATES OF AMERICA,

                            Appellee,                           16-3274-cr (L); 16-4088-cr (Con)

                            v.

SHAUN TAYLOR, ALSO KNOWN AS S-DOT,

                            Defendant-Appellant,

D’ANDRE YELVERTON, ALSO KNOWN AS CUBA,
JOSEPH CARMOEGA, ALSO KNOWN AS CHINO,
TIMOTHY PINKNEY, ALSO KNOWN AS LITTLE TIMMY,

                            Defendants.*




     *
         The Clerk is directed to amend the caption as shown above.

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FOR APPELLEE:                                                 David C. James, David C. Pitluck,
                                                              Assistant United States Attorneys, for
                                                              Richard P. Donoghue, United States
                                                              Attorney, Eastern District of New York,
                                                              Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                                      Megan Wolfe Bennett, Kreindler &
                                                              Kreindler LLP, New York, NY.

       Appeal from a November 22, 2016 judgment of the United States District Court for the
Eastern District of New York (Dora L. Irizarry, Judge).

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

         Defendant-Appellant Shaun Taylor (“Taylor”) appeals from a November 22, 2016 judgment
convicting him, following a jury trial, of narcotics distribution conspiracy, distribution of cocaine,
two counts of drug-related murder, two counts of drug-related murder conspiracy, murder-for-hire
conspiracy, use of a facility to commit murder for hire, use and discharge of a firearm during drug-
trafficking crimes and crimes of violence, and firearm-related murder. The District Court sentenced
Taylor principally to life imprisonment plus a consecutive term of 50 years and ordered him to pay
$16,056 in restitution and a special assessment of $12,000.

         On appeal, Taylor, through counsel, disputes a series of evidentiary rulings and contends
that the District Court repeatedly and improperly interrupted his counsel’s cross-examination of
witnesses in violation of his constitutional right to a fair trial. Finally, in a pro se submission, Taylor
also raises various arguments challenging his conviction. We assume the parties’ familiarity with the
underlying facts, procedural history of the case, and issues on appeal.

        I.      District Court’s Evidentiary Rulings

          “We review a district court’s evidentiary rulings under a deferential abuse of discretion
standard, and we will disturb an evidentiary ruling only where the decision to admit or exclude
evidence was ‘manifestly erroneous.’” United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015)
(quoting United States v. Samet, 466 F.3d 251, 254 (2d Cir. 2006)). Where we find an abuse of
discretion, “vacatur is required unless we are ‘convinced that the error was harmless beyond a
reasonable doubt.’” United States v. Mejia, 545 F.3d 179, 199 (2d Cir. 2008) (quoting United States v.
Reifler, 446 F.3d 65, 87 (2d Cir. 2006)).



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         In determining whether an erroneous admission was harmless, we consider: “(1) the overall
strength of the prosecutor’s case; (2) the prosecutor’s conduct with respect to the improperly
admitted evidence; (3) the importance of the wrongly admitted testimony; and (4) whether such
evidence was cumulative of other properly admitted evidence.” United States v. Gomez, 617 F.3d 88,
95 (2d Cir. 2010) (quotation marks and citation omitted). And in determining whether a wrongful
exclusion of evidence was harmless, we consider “‘(1) the importance of . . . unrebutted assertions to
the government’s case; (2) whether the excluded material was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the government’s case on the factual questions
at issue; (4) the extent to which the defendant was otherwise permitted to advance the defense; and
(5) the overall strength of the prosecution’s case.’” United States v. Gupta, 747 F.3d 111, 133–34 (2d
Cir. 2014) (quoting United States v. Oluwanisola, 605 F.3d 124, 134 (2d Cir. 2010)).

        Finally, we review a decision to grant or deny a new trial pursuant to Federal Rule of
Criminal Procedure 33 for abuse of discretion. See United States v. Gramins, 939 F.3d 429, 444 (2d Cir.
2019) (quoting United States v. Robinson, 430 F.3d 537, 542 (2d Cir. 2005)).

                A. Admission of the Confidential Informant’s Metropolitan Detention Center
                   (“MDC”) Recording

        Taylor argues on appeal that the District Court erred when it ruled that the statements in the
MDC recording were admissible as statements against penal interest under Federal Rule of Evidence
804(b)(3) and that the statements did not implicate Taylor’s constitutional rights under the
Confrontation Clause because they were not testimonial. Taylor also argues that, at a minimum, the
MDC recording should have been admitted in its entirety. Finally, Taylor contends that the District
Court erred in denying his motion for a new trial based on newly discovered evidence. We address
each argument in turn.

        On review, we conclude that the District Court did not abuse its discretion in admitting the
MDC recording pursuant to Rule 804(b)(3).1 As a threshold matter, at the time the district court
ruled on the recording’s admissibility, the declarant, Timothy Pinkney, was unavailable to testify
because he was a co-defendant in the same case. See United States v. Stratton, 779 F.2d 820, 828 (2d
Cir. 1985) (stating that the declarant was indeed “unavailable” because he “was a defendant” and




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       An unavailable declarant’s statement is admissible where: “(A) a reasonable person in the
declarant’s position would have made [the statement] only if the person believed it to be true
because, when made, it . . . had so great a tendency. . .to expose the declarant to civil or criminal
liability; and (B) [the statement] is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal
liability.” Fed. R. Evid. 804(b)(3).

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“could not be called by the Government as a witness”).2 Furthermore, Pinkney made various
statements on the MDC recording that were against his own penal interest, including confessing to
three homicides and that Taylor hired Pinkney to kill Taylor’s former drug supplier. These self-
incriminating statements “contain particularized guarantees of trustworthiness” because: (1) Pinkney
inculpated himself as much (if not more) than Taylor in the murder; (2) Pinkney had no self-
interested motive in confessing to the murder, other than perhaps to brag about his criminal past to
increase his clout in prison; (3) Pinkney was not coerced in confessing to the murder; and (4)
Pinkney was not attempting to curry favor with the Government when he confessed to his cellmate,
who turned out to be a confidential informant. See United States v. Saget, 377 F.3d 223, 230 (2d Cir.
2004).

        We also agree with the District Court’s conclusion that Pinkney’s statements were not
testimonial and, thus, did not implicate Taylor’s Confrontation Clause rights. See Whorton v. Bockting,
549 U.S. 406, 420 (2007) (stating that a defendant’s right to confront the witnesses against him in a
criminal prosecution does not apply to non-testimonial statements). Pinkney’s statements in the
MDC recording are not testimonial because he was not aware that he was speaking to a confidential
informant or that his statements could be used at a trial. See Saget, 377 F.3d at 229 (stating that “a
declarant’s statements to a confidential informant, whose true status is unknown to the declarant, do
not constitute testimony” for purposes of the Confrontation Clause.).




    2
       A handwritten letter purportedly written by Pinkney in 2015 indicating that he would be willing
to testify at a new trial does not undermine the District Court’s ruling. That letter, which was written
after Taylor’s trial and Pinkney’s own guilty plea and sentencing, does not change the fact that no
contemporaneous evidence was presented to contravene the District Court’s reasonable conclusion
that Pinkney’s status as a co-defendant rendered him unavailable to testify.

        After the district court had ruled on the admissibility of the recording but before the trial
began, Pinkney withdrew his plea of not guilty and entered a plea of guilty. Taylor did not renew his
objection or challenge the unavailability of Pinkney as a witness under Rule 804(a)(1). Therefore,
“we review the admission of this evidence for plain error.” United States v. Lyle, 919 F.3d 716, 734 (2d
Cir. 2019).

         Pinkney maintained his Fifth Amendment right because his plea had not been accepted and
he had not been sentenced. See United States v. Jackson, 335 F.3d 170, 177 n.1 (2d Cir. 2003). He was
not required to appear in court and invoke that right to be unavailable for purposes of Rule
804(a)(1). See, e.g., United States v. Williams, 927 F.2d 95, 99 (2d Cir. 1991). And we have upheld a
district court’s authority to determine unavailability based on facts known to it or representations
made by counsel. See Davis v. Velez, 797 F.3d 192, 201–02 (2d Cir. 2015); United States v. Bakhtiar, 994
F.2d 970, 977 (2d Cir. 1993). The record here could support a finding that Pinkney was an
unavailable witness based on his privilege not to testify. There is thus no error, much less “plain
error.” See Lyle, 919 F.3d at 734.

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        We also reject Taylor’s argument that the District Court abused its discretion in admitting a
redacted version of the MDC recording. The District Court carefully explained that certain redacted
parts were irrelevant, prejudicial, or could cause confusion to the jury. Finally, we conclude that the
District Court did not abuse its discretion in denying Taylor’s Rule 33 motion for a new trial and, on
review, affirm the order for substantially the reasons given by the District Court in its thorough
September 9, 2016 Memorandum and Order. See Memorandum and Order, United States v. Taylor, 10-
cr-268 (DLI) (S.D.N.Y. Sept. 9, 2016), ECF No. 343, in Special App’x 56–65.

                B. Exclusion of Evidence About the Terrance Barnett Shooting

        Taylor also disputes the District Court’s decision to preclude his counsel from eliciting
evidence about the police investigation into the Terrance Barnett shooting and from presenting
information about Barnett’s criminal history. We find no error in the District Court’s evidentiary
ruling. Even assuming, for the sake of argument only, that the District Court erred in wrongfully
excluding this evidence, any such error would have been harmless in light of: (1) the strength of the
Government’s case; (2) Pinkney’s own confession and Tyler Briggs’s corroborating testimony; (3)
Taylor’s undisputed right to call witnesses that participated in the police investigation to show that
someone other than Pinkney had committed the murder; and (4) the minimal probative value of
Barnett’s criminal history. See Gupta, 747 F.3d at 133–34.

                C. Admission of Evidence of Taylor’s Prior Arrests, Guilty Pleas, and
                   Involvement in Two Non-Fatal Shootings

         Taylor argues that the District Court improperly admitted certain evidence of Taylor’s prior
arrests, guilty pleas, and criminal acts under Federal Rule of Evidence 404(b). But the District Court
did not admit that evidence under Rule 404(b). Rather, the evidence was admitted as direct proof of
the charged narcotics conspiracy. Taylor fails to contest the relevance of this evidence in his briefs.

        Instead, and in reply, Taylor argues that the evidence is unduly prejudicial and therefore
inadmissible under Rule 403. We conclude that the District Court’s analysis under Rule 403, which is
entitled to considerable deference on appeal, see United States v. Greer, 631 F.3d 608, 614 (2d Cir.
2011) (citation omitted), was reasonable in light of the highly probative value of the challenged
evidence and the fact that the evidence was no more inflammatory than the charged conduct,
including Taylor’s involvement in the Barnett murder. Therefore, the District Court did not abuse its
discretion in admitting this evidence at trial.

        II.     The District Court’s Interruption of Taylor’s Defense

        Taylor contends that the District Court’s repeated interruption of defense counsel’s cross-
examinations in front of the jury violated Taylor’s constitutional right to a fair trial. It is well
established that the District Court had “broad discretion over the scope [and conduct] of cross-


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examination” and that we “will not overturn an exercise of that discretion absent a clear showing of
abuse.” United States v. Bari, 750 F.2d 1169, 1178 (2d Cir. 1984) (citations omitted). Specifically, we
will not vacate a conviction and order a new trial absent a showing by the defendant that the judge’s
“behavior was so prejudicial that it denied” him a “fair, as distinguished from a perfect, trial.” United
States v. Robinson, 635 F.2d 981, 984 (2d Cir. 1980).

         On review, we conclude that the District Court’s interruptions to admonish defense counsel
about the form of his questions did not deprive Taylor of his right to a fair trial. Even if we were to
assume, for the sake of argument only, that the District Court’s repeated admonitions were
improper and unwarranted, the admonitions did not impress on the jury a belief of the defendant’s
guilt or a view about the credibility of the defendant or any of the witnesses. Cf. United States v. Filani,
74 F.3d 378, 385–86 (2d Cir. 1996) (involving extensive questioning of the defendant by the court to
create the impression that the court disbelieves defendant’s testimony). The District Court’s
admonitions, even if “curt and critical,” did not suggest any “endorsement of any witness’s
testimony or reveal[ ] any bias against” Taylor. United States v. Rosa, 11 F.3d 315, 343 (2d Cir. 1993).

        Moreover, we note that defense counsel was permitted to rephrase his questions and that the
District Court instructed the jury not to draw any inferences from its rulings on objections or its
colloquies with counsel. Accordingly, we conclude that, under the circumstances presented, the
District Court’s admonitions did not deprive Taylor of his right to a fair trial.

        III.    Taylor’s Pro Se Challenge to His Conviction

         In his pro se briefs, Taylor argues, among other things, that: (1) the Government violated its
obligations under Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing statements in Pinkney’s
plea allocution that allegedly exonerated Taylor of Barnett’s murder; (2) his trial counsel was
ineffective in failing to call certain witnesses at trial; and (3) the third amended indictment was null
and void.3

         When reviewing an alleged Brady violation, we examine the record de novo to determine if
“there is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Fuentes v. T. Griffin, 829 F.3d 233, 246 (2d Cir. 2016)
(quotation marks and citation omitted). On de novo review, we conclude that the Government did not
violate its Brady obligations. Pinkney’s statement at the plea allocution that he had conspired “with
other people” is not exculpatory of Taylor, see App’x at 263, and is hardly “material” given Pinkney’s




    3
     Taylor also reiterates his counsel’s challenge to the admission of the MDC recording, which we
already rejected above.

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own statements in the MDC recording about Taylor’s involvement in the murder, United States v.
Rowland, 826 F.3d 100, 112 (2d Cir. 2016) (internal quotation marks and citation omitted).

        Furthermore, we decline to consider Taylor’s claim of ineffective assistance of counsel as the
record on appeal is insufficient to adjudicate the claim. Rather, we adhere to our preference to hear
such claims in the context of a motion brought under 28 U.S.C. § 2255, rather than on direct appeal.
United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). Accordingly, Taylor is free to pursue his claim
of ineffective assistance of counsel in a future § 2255 petition. Finally, we reject Taylor’s argument
regarding the third indictment as meritless because he was tried on the second superseding
indictment.

                                          CONCLUSION

        We have reviewed all of the arguments raised by Taylor on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the November 22, 2016 judgment of the
District Court.



                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk of Court




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