15-1432-cr
United States v. Williams


                                 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
28th day of February, two thousand nineteen.

Present:    ROSEMARY S. POOLER,
            ROBERT D. SACK,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                            v.                                                  15-1432-cr

JOMO WILLIAMS,

                        Defendant-Appellant.1
_____________________________________________________

Appearing for Appellant:           Robin Christine Smith, San Rafael, CA.

Appearing for Appellee:            Margaret Garnett, Assistant United States Attorney,
                                   (Michael D. Maimin, Kan M. Nawaday, Assistant United States
                                   Attorneys, on the brief), for Preet Bharara, United States Attorney
                                   for the Southern District of New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Torres, J.).

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    The Clerk of Court is respectfully directed to amend the caption as above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant-Appellant Jomo Williams appeals from the April 28, 2015, judgment of
conviction in the United States District Court for the Southern District of New York (Torres, J.)
following an eight-day jury trial. On appeal, Williams principally argues the district court abused
its discretion when it precluded Williams from admitting the entirety of government witness
Joseph Rosario’s videotaped statement of an interview with an Assistant District Attorney. After
oral argument, Williams moved to file a supplemental brief and to stay his appeal while this
Court decided United States v. Hill, 890 F.3d 51 (2d Cir. 2018), and United States v. Barrett, 903
F.3d 166 (2d Cir. 2018), which respectively considered whether Hobbs Act robbery and
conspiracy to commit Hobbs Act robbery were crimes of violence. We granted Williams’s
motion to file a supplemental brief and to stay the appeal pending Hill and Barrett. After Hill and
Barrett were decided, Williams again moved to hold the appeal in abeyance pending the
Supreme Court’s decision on a petition for writ of certiorari in Hill, which we granted. That
petition for certiorari having been denied, we now decide the appeal. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        The government’s second superseding indictment, filed on February 11, 2014, charged
Williams with, among other things, Hobbs Act robbery and aiding and abetting the same, in
violation of 18 U.S.C. §§ 1951 and 2, and the October 11, 2006, murder of D’Angelo Jordan
through the use of a firearm in connection with the robbery, in violation of 18 U.S.C. §§ 924(c)
and 924(j)(1) and (2). Five days after the murder, Williams was arrested in connection with a
separate attempted robbery of a drug dealer. He was arrested after fleeing the scene in a taxi cab
driven by cooperating witness Joseph Rosario. That same day, on October 16, 2006, Rosario
voluntarily gave a videotaped statement to a Bronx County Assistant District Attorney. In his
statement, Rosario stated, among other things, that he had never met Williams before October
16, 2006. In his subsequent testimony at trial, however, Rosario contradicted several statements
that he made in his videotaped statement, including by testifying that he had driven Williams to
the scene of the Jordan murder on October 11, 2006, waited while Williams and two other men
entered a building, heard several gunshots, and then saw Williams “rushing” out the building and
back to Rosario’s vehicle. In response to questions by the prosecution, Rosario admitted that he
did not tell the truth at several points during his videotaped statement, acknowledging, among
other things, that he had in fact previously met Williams before October 16.

        Before trial, Williams sought permission from the district court to admit the videotaped
statement into evidence in its entirety. The government opposed the motion, arguing that
extrinsic evidence of Rosario’s prior inconsistent statements was inadmissible because the
government expected Rosario to admit at trial that he had made the prior inconsistent statements.
The district court ruled that, if Rosario did admit that he made the prior inconsistent statements,
the videotaped statement would be inadmissible as further evidence to impeach Rosario’s
testimony. Only if Rosario denied making the statements, the district court ruled, would the
video statement be admissible, and even then, only “to the extent of the specific questions and
answers that are relevant to the inconsistent statements.” Tr. at 8. After Rosario had finished his
testimony, but before the government had rested, the government informed the court about a


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Second Circuit case, United States v. Strother, 49 F.3d 869 (2d Cir. 1995). In Strother, this Court
indicated that “[e]xtrinsic evidence of a prior inconsistent statement is more persuasive to a jury
than a witness’s acknowledgement of inconsistencies in a prior statement.” 49 F.3d at 876.
Although the government claimed Strother was “distinguishable” from this case, it informed the
court that “in the interest of caution and justice, . . . [it] withdr[ew] its objection to the
introduction of the portions of the Video Statement that constitute prior inconsistent statements.”
App’x at 200. “[I]n light of the government’s submission,” the district court “permit[ted] the
playing of the videotape[,] although [it] d[id] not believe that it [was] necessary.” Tr. at 601.
Williams then introduced the portions of the videotape that were inconsistent with Rosario’s trial
testimony. The district court denied Williams’s renewed request to play the entire twenty-minute
videotaped statement, including portions consistent with Rosario’s trial testimony.

        After Williams was convicted, he filed a motion for a new trial pursuant to Federal Rule
of Criminal Procedure 33, arguing that he had been denied a fair trial because (1) the entire
videotaped statement was relevant and (2) the portions of the videotaped statement that were
admitted were admitted “too late.” App’x at 75-79. Williams alleged that the entire videotaped
statement would have provided the jury with the ability to assess Rosario’s “demeanor” and
whether Rosario had any non-verbal “tells”—exhibited when Rosario was telling the truth or was
lying—which the jury could use to assess the credibility of Rosario’s trial testimony. The district
court assessed whether the evidence was admissible under Rule 403 of the Federal Rules of
Evidence. First, the district court determined that the probative value of the evidence was “very
low” as there was “nothing remarkable about Rosario’s body language or demeanor in the Video
Statement that would have allowed the jury to meaningfully compare it with his body language
or demeanor at trial.” App’x at 162. Next, the district court found that “[p]laying the entire Video
Statement would have confused the issues, been needlessly cumulative, and wasted the jury and
this Court’s time.” App’x at 163.

        This Court reviews a trial court’s evidentiary rulings for abuse of discretion. United
States v. Persico, 645 F.3d 85, 99 (2d Cir. 2011). Rule 403 provides that a trial court may
exclude relevant evidence if its “probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Deference to the district court “is of particular importance with regard to evidentiary rulings
under Rule 403 because a district court is obviously in the best position to do the balancing
mandated by Rule 403.” United States v. Contorinis, 692 F.3d 136, 144 (2d Cir. 2012) (internal
quotation marks and alterations omitted). This Court will not overturn an evidentiary ruling
unless it is “persuaded that the trial judge ruled in an arbitrary and irrational fashion.” United
States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001) (internal quotation marks omitted).

        We conclude the district court did not abuse its discretion. The portions of Rosario’s
videotaped statement that were consistent with his trial testimony would have been of marginal
use to the jury. In any event, “Rosario’s body language and demeanor were apparent to the jury
when he testified at trial.” App’x at 163. Indeed, Williams argued in his summation that
Rosario’s demeanor in the portions of the videotaped statement that were admitted was the
“same demeanor when [Rosario] came here and testified.” Tr. at 740-41. Given the district
court’s thorough and thoughtful decision, we cannot say the district court abused the broad


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discretion it is afforded when weighing the competing interests involved in a Rule 403 analysis.2
See United States v. Robinson, 560 F.2d 507, 515 (2d Cir. 1977).

        Even if the exclusion of the entire videotaped statement was error, we would have no
difficulty finding that the exclusion was harmless. “Reversal is necessary only if the error had a
substantial and injurious effect or influence in determining the jury’s verdict.” United States v.
Dukagjini, 326 F.3d 45, 61-62 (2d Cir. 2003) (internal quotation marks omitted). Given the
significant other evidence in this case, we conclude that the entire videotaped statement was
“unimportant in relation to everything else the jury considered on the issue in question, as
revealed in the record.” United States v. Paulino, 445 F.3d 211, 219 (2d Cir. 2006) (internal
quotation marks omitted).

        After oral argument, Williams filed a supplemental brief in which he argued that his
convictions under 18 U.S.C. § 924(c) and 18 U.S.C. § 924(j) cannot stand because Hobbs Act
robbery is not categorically a crime of violence. Section 924(c) enhances the sentence of a
defendant who uses a firearm in commission of a “crime of violence,” and section 924(j)(1)
likewise enhances the sentence of a defendant who, in the course of committing a “crime of
violence,” commits murder. 18 U.S.C. § 924(c); id. § 924(j)(1). Both provisions define a “crime
of violence” as a felony that either (1) “has as an element the use, attempted use, or threatened
use of physical force against the person or property of another” or (2) “by its nature, involves a
substantial risk that physical force against the person or property of another may be used in the
course of committing the offense.” Id. § 924(c)(3). The two clauses are commonly referred to as
the “force clause” and “risk-of-force clause,” respectively.

        Williams argues in his supplemental brief that Hobbs Act robbery is not a crime of
violence because the risk-of-force clause, 18 U.S.C. § 924(c)(3)(B), is void for vagueness and
because Hobbs Act robbery does not require the use of physical force required by 18 U.S.C.
§ 924(c)(3)(A). In United States v. Hill, we held “that Hobbs Act robbery has as an element the
use, attempted use, or threatened use of physical force against the person or property of another”
and thus was a crime of violence, as defined in section 924(c)(3), as a matter of law. 890 F.3d at
60 (internal quotation marks omitted). Williams was convicted under Section 924(j)(1) for
committing murder with the use of a firearm when he committed Hobbs Act robbery in
connection with a marijuana-distribution conspiracy. Because under Hill, Williams’s conviction


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  The government argued in the district court—and also argues on appeal—that the entire
videotaped statement was inadmissible under Rule 608 of the Federal Rules of Evidence, for the
purpose Williams posited, asserting that Rosario’s “demeanor” and body language in the
videotaped statement is “clearly a collateral matter, which cannot be proved up by extrinsic
evidence.” App’x at 206, 208-10. The district court determined that Rule 608 was not “precisely
on point” because Williams was not seeking “to use the extrinsic evidence to attack or support
Rosario’s character for truthfulness; rather, he sought to use it to highlight Rosario’s demeanor
or body language when lying and/or when being truthful.” App’x at 160-61. We decline to reach
the question of whether the entire videotaped statement would or would not be admissible under
Rule 608. Because we conclude the district court did not abuse its discretion in excluding the
evidence based on Rule 403, we need not opine on the admissibility of that same evidence under
Rule 608.

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of Hobbs Act robbery necessarily was a conviction of a crime of violence, Williams’s
convictions under 18 U.S.C. § 924(c) and § 924(j) are affirmed.

        We have considered the remainder of Williams’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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