         08-5958-cr, 08-6222-cr, 09-1338-cr, 10-0403-cr
         United States of America v. Donahue Dewar and Sharon King




                                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 29 th day of April, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                JOSEPH M. McLAUGHLIN,
 9                ROBERT D. SACK,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14
15                    Appellee-Cross-Appellant,
16                                                                 08-5958-cr, 08-
17                    -v.-                                         6222-cr, 09-1338-
18                                                                 cr, 10-0403-cr
19       CHARLES ERNEST DEWAR, also known as
20       Trooper,
21
22                    Defendant,
23
24       DONAHUE DEWAR, also known as Blood,
25       also known as Kirk Dawar, and SHARON
26       KING,
27
28                Defendants-Appellants-Cross-
29                Appellees.
30       - - - - - - - - - - - - - - - - - - - -X
 1   APPEARING FOR APPELLANT-   Clinton W. Calhoun, III,
 2   CROSS-APPELLEE DONAHUE     Briccetti, Calhoun & Lawrence,
 3   DEWAR:                     LLP, White Plains, NY.
 4
 5
 6   APPEARING FOR APPELLANT-   Jeremy Gutman, New York, NY.
 7   CROSS-APPELLEE SHARON
 8   KING:
 9
10   APPEARING FOR APPELLEE-    Brent S. Wible, Assistant United
11   CROSS-APPELLANT:           States Attorney (Michael A.
12                              Levy, Assistant United States
13                              Attorney, on the brief), for
14                              Preet Bharara, United States
15                              Attorney, United States
16                              Attorney’s Office for the
17                              Southern District of New York,
18                              New York, NY.
19
20
21        Appeals and cross-appeals from judgments of the United
22   States District Court for the Southern District of New York
23   (Robinson, J.).
24
25        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
26   AND DECREED that the judgments of the district court be
27   AFFIRMED.
28
29        Defendants-appellants-cross-appellees Donahue Dewar and
30   Sharon King appeal from judgments of conviction entered in
31   the United States District Court for the Southern District
32   of New York (Robinson, J.), following a jury trial. The
33   government cross-appeals from the judgments of conviction on
34   a narrow issue relating to the sentences imposed on Dewar
35   and King. We assume the parties’ familiarity with the
36   underlying facts, the procedural history, and the issues
37   presented for review.
38
39        For substantially the reasons stated by the district
40   court in its September 6, 2007 amended decision and order,
41   we reject defendants’ challenges to the evidence recovered
42   from the Lexus automobile (the “Lexus”) and from Apartment 1
43   at 3443 Mickle Avenue (the “Residence”). Reviewing for
44   abuse of discretion, we conclude that the district court

                                  2
 1   properly denied an evidentiary hearing regarding the police
 2   stop of the Lexus because Dewar failed to contest the facts
 3   presented in the declaration of Detective Sergeant Edward
 4   Lucas (the “Lucas Declaration”) and thereby failed to create
 5   a material issue. See United States v. Finley, 245 F.3d
 6   199, 203 (2d Cir. 2001).
 7
 8        Reviewing the district court’s factual findings for
 9   clear error and legal determinations de novo, we conclude
10   that the district court properly denied defendants’ motions
11   to suppress the evidence recovered from the Lexus and the
12   Residence. See United States v. Rodriguez, 356 F.3d 254,
13   257 (2d Cir. 2004). First, the district court properly
14   determined that probable cause supported the Lexus stop and
15   the arrests of Dewar and his brother based on (i) the
16   indicia of reliability of the confidential informant (the
17   “CI”) set forth in the Lucas Declaration, (ii) the monitored
18   and recorded conversations between the CI and defendants,
19   and (iii) police surveillance of the Residence.
20   See Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)
21   (“In general, probable cause to arrest exists when the
22   officers have knowledge or reasonably trustworthy
23   information of facts and circumstances that are sufficient
24   to warrant a person of reasonable caution in the belief that
25   the person to be arrested has committed or is committing a
26   crime.” (internal quotation marks omitted)).
27
28        Second, regarding the Residence, the district court
29   properly rejected defendants’ challenges based on the
30   particularity of the search warrant and the purported
31   staleness of the information described in the affidavit
32   submitted in support of the search warrant. The search
33   warrant--sought by local police and issued by a local judge
34   for purposes of a local investigation--did not have to
35   satisfy the 10-day requirement of the then-current version
36   of Federal Rule of Criminal Procedure 41(e)(2)(A)(i).
37   See United States v. Burke, 517 F.2d 377, 382 (2d Cir.
38   1975). A single sentence in the Statement of Facts of
39   Dewar’s pre-trial motion failed to raise an argument that
40   the seizure of objects beyond the purported scope of the
41   search warrant’s description rendered the police conduct an
42   impermissible general search, and defendants thus waived any
43   such argument pursuant to Federal Rule of Criminal Procedure
44   12(b)(3)(C).

                                  3
 1
 2        We reject defendants’ challenges to the jury
 3   instructions. The district court properly instructed the
 4   jury regarding Dewar’s knowledge and intent. See United
 5   States v. Gilliam, 994 F.2d 97, 102 (2d Cir. 1993) (“[T]he
 6   cases interpreting [Federal Rule of Evidence] 404(b) allow
 7   the district court to do essentially what was done in this
 8   case: the defendant does not challenge the element of the
 9   crime, the jury is told that the element of the crime is
10   met, but no extraneous evidence to prove that element is
11   introduced.”); accord United States v. Tarricone, 996 F.2d
12   1414, 1421 (2d Cir. 1993); United States v. Colon, 880 F.2d
13   650, 659 (2d Cir. 1989). Because both Dewar and King were
14   convicted of the conspiracy charged in Count One of the
15   relevant indictment, Defendants cannot demonstrate plain
16   error based on the district court’s omission of an
17   instruction that the CI could not be a co-conspirator during
18   his cooperation with the investigation. Similarly,
19   Defendants cannot establish plain error based on the
20   district court’s omission of specific unanimity charges as
21   to (i) the object of the conspiracy for Count One in light
22   of the jury’s unanimous finding that the conspiracy involved
23   five or more kilograms of cocaine; (ii) the predicate drug
24   offense for Count Five in light of the jury’s unanimous
25   conviction on each of the three predicate offenses, see
26   United States v. Gomez, 580 F.3d 94, 103-04 (2d Cir. 2009);
27   or (iii) the particular firearm for Count Five, see, e.g.,
28   United States v. Perry, 560 F.3d 246, 257 (4th Cir. 2009);
29   United States v. Wise, 515 F.3d 207, 214-15 (3d Cir. 2008);
30   United States v. Hernandez-Albino, 177 F.3d 33, 40 (1st Cir.
31   1999); United States v. Morin, 33 F.3d 1351, 1353-54 (11th
32   Cir. 1994); United States v. Correa-Ventura, 6 F.3d 1070,
33   1075-87 (5th Cir. 1993).
34
35        Assuming King’s severance motion was properly
36   presented, and reviewing for abuse of discretion, the
37   district court properly denied it. See United States v.
38   Yousef, 327 F.3d 56, 150 (2d Cir. 2003). The district court
39   carefully instructed the jury that King contested the
40   knowledge and intent element of the charged offenses,
41   thereby minimizing any prejudice arising from the jury
42   instructions regarding Dewar’s knowledge and intent.
43   See United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006)
44   (“As the Supreme Court has frequently observed, the law

                                  4
 1   recognizes a strong presumption that juries follow limiting
 2   instructions.”).
 3
 4        We reject Dewar’s challenges relating to the
 5   government’s filing of a prior felony information. Although
 6   the district court omitted the colloquy required under 21
 7   U.S.C. § 851(b), it did not rely on the prior felony
 8   information in sentencing Dewar:
 9
10            [I]t is my view that a sentence of twenty years or
11            240 months was or is the appropriate sentence
12            regardless of what the mandatory minimum is; that
13            in light again of this defendant’s history and
14            characteristics and the circumstances of this
15            offense, that some very significant punishment
16            needs to be put in place. And, so, whether a ten
17            or a twenty-year mandatory minimum sentence were
18            found, I would have imposed a sentence of 240
19            months, and I just want that to be clear.
20
21   This lucid statement renders any error harmless.  See United
22   States v. Deandrade, ---- F.3d ----, 2010 WL 842324, at *4
23   (2d Cir. Mar. 12, 2010). Moreover, Dewar failed to rebut
24   the “presumption of regularity” attaching to the
25   government’s filing of the prior felony information. United
26   States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008).
27
28        The government cross-appeals the district court’s
29   decisions not to impose consecutive sentences for Dewar and
30   King’s 18 U.S.C. § 924(c) convictions. The government
31   concedes that the district court complied with the law of
32   this Circuit, but contends that the law of this Circuit is
33   error. See United States v. Williams, 558 F.3d 166 (2d Cir.
34   2009); United States v. Whitley, 529 F.3d 150 (2d Cir.
35   2008). As a preliminary matter, the government requests
36   that we defer ruling on the cross-appeals until the legal
37   issue has been clarified by the Supreme Court, as the
38   government expects. We are aware that the Supreme Court has
39   granted two petitions for writs of certiorari on this issue.
40   See United States v. Gould, 329 Fed. App’x 569 (5th Cir.
41   2009), cert. granted, 130 S. Ct. 1283 (Jan. 25, 2010) (No.
42   09-7073); United States v. Abbott, 574 F.3d 203 (3d Cir.
43   2009), cert. granted, 130 S. Ct. 1284 (Jan. 25, 2010) (No.
44   09-479). However, a “panel is bound by prior decisions of

                                  5
 1   this court unless and until the precedents established
 2   therein are reversed en banc or by the Supreme Court.”
 3   United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009).
 4   Accordingly, we conclude that the district court properly
 5   declined to impose the consecutive sentences provided in §
 6   924(c).
 7
 8        We have considered all of the contentions in these
 9   appeals and cross-appeals and have found them to be without
10   merit. Accordingly, the judgments of the district court are
11   hereby AFFIRMED.
12
13                              FOR THE COURT:
14                              CATHERINE O’HAGAN WOLFE, CLERK
15




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