11-2325-cr
United States of America v. Corey Davis

                               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 14th day of August, two thousand thirteen.

PRESENT:

         JOSÉ A. CABRANES,
         RICHARD C. WESLEY,
                     Circuit Judges,
         JESSE M. FURMAN,
                     District Judge.

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UNITED STATES OF AMERICA,

                            Appellee,

                          v.                                                               No. 11-2325-cr

COREY DAVIS,
                           Defendant-Appellant.
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     The Honorable Jesse M. Furman, of the United States District Court for the Southern
District of New York, sitting by designation.
FOR DEFENDANT-APPELLANT:                             TINA SCHNEIDER, Law Office of Tina
                                                     Schneider, Portland, ME, for Corey Davis.
FOR APPELLEE:                                        AMIR H. TOOSSI, Assistant United States
                                                     Attorney (Emily Berger, Assistant United
                                                     States Attorney, on the brief), for Loretta E.
                                                     Lynch, United States Attorney for the
                                                     Eastern District of New York, Brooklyn,
                                                     NY.


       Appeal from a judgment of conviction and imposition of sentence entered on June 7,

2011, by the United States District Court for the Eastern District of New York (Gleeson, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Corey Davis appeals from a June 7, 2011 judgment of the

District Court, convicting him, following a jury trial, of committing an assault resulting in

serious bodily injury, in violation of Title 18, United States Code, Section 113(a)(6). His

principal claim on appeal, which we address in a separate opinion filed today, is that the

evidence presented at trial was insufficient to establish that the crime occurred within the

special maritime and territorial jurisdiction of the United States. In a brief by counsel, Davis

raises two other issues: (1) that the district court erred in instructing the jury on self-defense;

and (2) that the district court erred in refusing to give the jury an adverse inference

instruction. In a pro se brief, he also argues that (3) the admission of a video recording of the

assault violated both the Confrontation Clause and the rule of completeness embodied in

Rule 106 of the Federal Rules of Evidence; (4) he received constitutionally ineffective




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assistance of counsel; and (5) his prosecution was selective and vindictive. For the reasons

that follow, we reject these arguments and therefore affirm.

                                          BACKGROUND

       We assume the parties’ familiarity with the facts and procedural history of this case,

to which we refer only as necessary to explain our decision to affirm. On May 8, 2009, while

he was incarcerated at the Metropolitan Detention Center (“MDC”), a federal prison in

Brooklyn, New York, Davis struck fellow-inmate Robert Wright four times in the face,

breaking Wright’s jaw. Eleven surveillance cameras recorded the activity in the MDC

dormitory unit on a continuous basis and the recordings were stored electronically for

approximately thirty days. In order to preserve any recording beyond that time, the Special

Investigative Service Department (“SIS”) had to download footage manually and store it in a

portable hard-drive. At trial, the jury was shown a five-minute portion of a video recording

from one camera in the dormitory unit; video recordings from other cameras in the unit

were unavailable, having been destroyed in the normal course. The jury found Davis guilty

and the district court sentenced him to sixty months’ imprisonment, to be served

consecutively to the sentence he was already serving, three years’ supervised release, and a

$100 special assessment. This timely appeal followed.

                                          DISCUSSION

A. Jury Instruction

       On appeal, Davis first argues that the trial court gave the jury an erroneous

instruction on self-defense. Appellant Br. 27-34. Without objection, Judge Gleeson

originally charged the jury as follows:
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       The defendant argues that the evidence in the case establishes that he acted in
       self-defense. Mr. Davis contends that he did not unlawfully assault Robert
       Wright on May 8, 2009. Rather, he contends that he acted in self-defense
       responding to an imminent physical threat when Mr. Wright raised his cane
       towards Mr. Davis. The law recognizes the right of a person who is not an
       aggressor to stand his ground and use force to defend himself. There is no
       duty to retreat in the face of an imminent threat. However, a person may only
       use such force as is reasonably necessary to defend himself against the
       imminent use of unlawful force. I remind [you that] the burden of proof
       remains at all times on the government. You may not convict a defendant of
       assault unless you find beyond a reasonable doubt that the government has
       satisfied its burden of proving that the defendant did not act in self-defense.
       If you have a reasonable doubt as to whether the defendant acted in self-
       defense, your verdict must be not guilty.

Transcript of the Trial of Corey Davis (Nov. 9, 2010) (“Trial Tr.”) at 267. Later, during

deliberations, the jury asked for a definition of self defense and reasonable force. The court

informed counsel that it planned to instruct the jury “that it’s an objective standard . . . . [It

is] governed by what a reasonable person who found himself in the same position and

circumstances as the defendant would have reasonably believed.” Trial Tr. at 278. Defense

counsel objected to this instruction, requesting that the court add “balancing” language

concerning what the jury should do if it found that the defendant’s belief about his personal

safety was reasonable. Id. at 280. After repeating the instruction quoted above, the court

instructed the jury that the standard by which it should be governed “is what a reasonable

person who found himself in the same situation and circumstances would have reasonably

believed, not the defendant’s subjective belief . . . . [I]f the defendant’s conduct was

reasonably justified in the circumstances, then the defense is available to him.” Id. at 283.

      Davis did not object to that supplemental charge, and so we review his challenge only

for plain error. See United States v. White, 552 F.3d 240, 249 (2d Cir. 2009). Relief is therefore

                                                 4
available only if there is “(1) error, (2) that is plain, and (3) affects substantial rights” and

which (4) “‘seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” United States v. Bell, 584 F.3d 478, 484 (2d Cir. 2009) (quoting United States v.

Weintraub, 273 F.3d 139, 145 (2d Cir. 2001)). For an error to “affect substantial rights,” it

generally must “affect[ ] the outcome of the district court proceedings,” meaning “there

must be a reasonable probability that the error affected the outcome of the trial.” United

States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (internal quotation marks omitted).

      Applying that standard, Davis’s challenge fails. As the law pertaining to self-defense,

or justification, “is a matter of federal common law,” we look to state court decisions for

guidance. United States v. Desinor, 525 F.3d 193, 199 (2d Cir. 2008). Under New York law,

the defense of justification involves both subjective and objective elements. See People v.

Goetz, 68 N.Y.2d 96, 114-15 (1986). That is, the defense is available only to the defendant

who “reasonably believes [physical force] to be necessary to defend himself, herself or a

third person from what he or she reasonably believes to be the use or imminent use of

unlawful physical force by such other person.” N.Y. Penal Law § 35.15(1) (McKinney 2004).

Here, although the district court instructed the jury that Davis’s subjective belief should not

“govern” its decision, the charge as a whole adequately conveyed that the test included both

objective and subjective elements. Further, even assuming the court’s instructions could

have been clearer, Davis has not shown a “reasonable probability” that any error altered the

outcome of the trial. Marcus, 130 S. Ct. at 2164.




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B. Adverse Inference Instruction

       Davis next argues that the district court erred when it failed to give an adverse

inference instruction in response to the erasure of the second video recording of the assault.

Appellant Br. 35-38. “‘[A] party seeking an adverse inference instruction based on the

destruction of evidence must establish (1) that the party having control over the evidence

had an obligation to preserve it at the time it was destroyed; (2) that the records were

destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to

the party’s claim or defense such that a reasonable trier of fact could find that it would

support that claim or defense.’” Chin v. Port Auth., 685 F.3d 135, 162 (2d Cir. 2012)

(alteration in original) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,

107 (2d Cir. 2002)). We review a district court’s decision on a motion for discovery

sanctions for abuse of discretion, and “‘[a]bsent a showing of prejudice, the jury’s verdict

should not be disturbed.’” Id. (quoting Residential Funding, 306 F.3d at 112).

       Here, the district court did not abuse its discretion in declining to give the jury an

adverse inference instruction. The second video was automatically purged from the system,

and there is no evidence to support a finding of culpability. Additionally, Davis can only

speculate that the video possessed exculpatory value. Further, the district court permitted

the parties to argue to the jury the significance or lack thereof of the missing video, and

allowed the jury to reach its own conclusion. Cf. United States v. Mundy, 539 F.3d 154, 157

(2d Cir. 2008) (“Absent unusual circumstances, what inferences are suggested, or

conclusively established, by the evidence are matters to be argued to the jury by counsel. . . .

In contemporary administration of justice, what conclusions should, or should not, be drawn
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from the evidence are generally left to counsel to argue.”). Although “[t]he sanction of an

adverse inference may be appropriate in some cases involving the negligent destruction of

evidence,” Residential Funding, 306 F.3d at 108, even then such a sanction is not mandatory.

For these reasons, the district court did not abuse its discretion in concluding that such a

remedy was inappropriate in this case.

C. Confrontation Clause and Rule of Completeness

      Davis next argues, in a pro se supplemental brief, that his Confrontation Clause rights

were violated when the Government failed to call the technician who prepared the video

surveillance footage for trial. Pro Se Appellant Br. 1-8. Davis failed to preserve this

objection and so we review it only for plain error. See United States v. Dukagjini, 326 F.3d 45,

59 (2d Cir. 2002).

      The Confrontation Clause bars admission of testimonial, out-of-court statements

where the declarant is not present at trial and the defendant has not had a prior opportunity

for cross examination. See Crawford v. Washington, 541 U.S. 36, 68 (2004). To be

“testimonial,” a statement must have a “‘primary purpose’” of “‘establish[ing] or prov[ing]

past events potentially relevant to later criminal prosecution.’” Bullcoming v. New Mexico, 131

S. Ct. 2705, 2714 n.6 (2011) (alterations in original) (quoting Davis v. Washington, 547 U.S.

813, 822 (2006)). When the “primary purpose” of a statement is “not to create a record for

trial, the admissibility of [the] statement is the concern of state and federal rules of evidence,

not the Confrontation Clause.” Id. at 2720 (Sotomayor, J., concurring) (citation and

quotation marks omitted). Business and public records “‘are generally admissible absent

confrontation . . . because — having been created for the administration of an entity’s affairs
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and not for the purpose of establishing or proving some fact at trial — they are not

testimonial.’” Id. (alteration in original) (quoting Meléndez-Díaz v. Massachusetts, 557 U.S. 305,

324 (2009)).

      Here, Davis’s Confrontation Clause challenge fails at the first step, as the videotape is

not testimonial. Instead, its primary purpose related to the safety and security of the MDC,

not to establishing or proving some fact at trial. That the raw video footage was edited does

not change that fact; the act of editing the video is not an out-of-court statement at all. See,

e.g., United States v. Keck, 643 F.3d 789, 797 (10th Cir. 2011) (denying a Confrontation Clause

claim and explaining that “[i]n the context of electronically-stored data, the business record

is the datum itself, not the format in which it is printed out for trial or other purposes”); see

also United States v. Cameron, 699 F.3d 621, 642 (1st Cir. 2012) (holding that computer data

was not testimonial because it was preserved to “serve business functions . . . totally

unrelated to any trial or law enforcement purpose: namely, to provide reliable data about [the

company’s] customer accounts”).

      Davis further argues that the video should not have been admitted because it violated

the rule of completeness set forth in Rule 106. Pro Se Appellant Br. 9-23. Under the rule of

completeness, “[i]f a party introduces all or part of a writing or recorded statement, an

adverse party may require the introduction, at that time, of any other part — or any other

writing or recorded statement — that in fairness ought to be considered at the same time.”

Fed. R. Evid. 106. Omitted portions of the “statement must be placed in evidence if

necessary to explain the admitted portion, to place the admitted portion in context, to avoid

misleading the jury, or to ensure fair and impartial understanding of the admitted portion.”
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United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) (alteration and quotation marks

omitted). “The completeness doctrine does not, however, require the admission of portions

of a statement that are neither explanatory of nor relevant to the admitted passages.” Id.

(quotation marks omitted).

      Reviewing the district court’s decision to admit the tape for abuse of discretion, see

United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011), we conclude that there is no basis to

Davis’s challenge. Davis argues that the “deleted footage was needed to place the admitted

portion of the video into context,” because “[t]he footage offered only shows the fight and

nothing . . . that preceded it.” Pro Se Appellant Br. 9. But no further footage was needed to

explain the assault, to ensure a fair and impartial understanding of the assault, or to correct a

misleading impression that might arise from what occurred. 1

D. Ineffective Assistance of Counsel

      Davis also argues in his pro se brief that he received constitutionally ineffective

assistance of counsel, both because his counsel acquiesced to the court’s proposed charge on

self-defense and because his counsel prevented him from testifying by presenting him “with

the impermissible choice of committing perjury, or completely contradicting trial counsel’s

position.” Pro Se Appellant Br. 48 (citation omitted). “When faced with a claim for

ineffective assistance on direct appeal,” we “may: (1) decline to hear the claim, permitting the


1       To the extent that Davis alleges that destruction of the second videotape violated
Brady v. Maryland, 373 U.S. 83 (1963), his claim is also without merit. As we explained in
United States v. Bakhtiar, 994 F.2d 970, 975 (2d Cir. 1993), a case that also involved the loss of
tapes, a due process claim arising in these circumstances should be treated as a claim for loss
or destruction of evidence rather than as a Brady claim.

                                                9
appellant to raise the issue as part of a subsequent petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary

factfinding; or (3) decide the claim on the [existing] record . . . .” United States v. Morris, 350

F.3d 32, 39 (2d Cir. 2003). In light of our “baseline aversion to resolving ineffectiveness

claims on direct review,” United States v. Salameh, 152 F.3d 88, 161 (2d Cir. 1998), and the

Supreme Court’s direction that “in most cases a motion brought under § 2255 is preferable

to direct appeal for deciding claims of ineffective-assistance,” Massaro v. United States, 538

U.S. 500, 504 (2003), we decline to consider Davis’s ineffective assistance claims in this

appeal. Accordingly, we dismiss those portions of the appeal without prejudice to Davis

raising them pursuant to Title 28, United States Code, Section 2255.

E. Selective and Vindictive Prosecution

      Finally, Davis claims in his pro se brief that he was improperly selected for prosecution

and that the prosecution was vindictive. Pro Se Appellant Br. 24-38. Specifically, he argues

that the Government has a de facto policy of not prosecuting inmate-on-inmate fist fights

occurring at the MDC and that the “sole motivation” for his prosecution was to retaliate

against him for appealing his sex trafficking conviction in the District of Connecticut. Pro Se

Appellant Reply Br. 17. As we have explained, “because the United States Attorneys are

charged with taking care that the laws are faithfully executed, there is a ‘presumption of

regularity supporting their prosecutorial decisions and, in the absence of clear evidence to

the contrary, courts presume that they have properly discharged their official duties.’” United

States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008) (alteration omitted) (quoting United States v.

Armstrong, 517 U.S. 456, 464 (1996)). In the present case, Davis has not even come close to
                                                 10
overcoming that presumption of regularity, as he offers nothing more than assertions and

generalized allegations of improper motives to support his claims. See, e.g., id. at 671

(“Generalized allegations of improper motive do not disturb the presumption of

regularity.”); United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992) (“Mere assertions and

generalized proffers on information and belief are insufficient.”).

                                       CONCLUSION

         We have reviewed the record and the parties’ arguments on appeal. For the reasons

set forth above, and in the accompanying opinion, we AFFIRM the judgment of the district

court.

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




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