899 F.3d 135
2d Cir.2018Background
- Merlin Alston, an NYPD officer (2006–2015), was convicted after a jury trial of (1) conspiracy to distribute/possess with intent to distribute ≥5 kg cocaine and MDMA (21 U.S.C. §§ 841(b)(1)(A), (b)(1)(C), 846) and (2) possession of a firearm in furtherance of a drug trafficking offense (18 U.S.C. § 924(c)).
- The government's key witness, Gabriel Reyes, Alston’s longtime friend, testified that Alston frequently drove him to or from drug transactions (≈30 trips, majority involving cocaine), hid/sealed drug bags, knew of secret car compartments, and benefited from Reyes’s proceeds.
- Reyes testified Alston often carried his service weapon while facilitating transactions and on at least one occasion kept a shotgun nearby during a tense meeting between Reyes and another dealer.
- Post-trial, prosecutors learned Reyes had committed jailhouse misconduct (possession/distribution of contraband while incarcerated); Alston sought relief and discovery based on that and alleged false testimony about Reyes’s employment/car-wash, but the district court denied a new trial and denied further discovery.
- At sentencing the district court applied two-level enhancements for obstruction of justice and abuse of a position of trust, denied a two-level minor-role reduction, and imposed 180 months on the drug count + mandatory consecutive 60 months on § 924(c) (total 240 months). The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Alston) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence for ≥5 kg cocaine conspiracy (§ 841(b)(1)(A)) | Alston lacked knowing participation and did not know conspiracy involved ≥5 kg | Reyes’s testimony and corroborating facts (number of trips, observed quantities, Reyes’s lavish lifestyle) supported knowledge and agreement | Affirmed: evidence sufficient; jury rationally could infer knowing participation and knowledge of quantity |
| § 924(c) liability for carrying service weapon | As an on-duty officer obligated to carry his service weapon, Alston argues he cannot be convicted under § 924(c) for that possession | Government: officer can be convicted if weapon was possessed in furtherance of drug trafficking; jury found possession served that purpose | Affirmed: officer status is not categorical immunity; jury found weapon carried to protect/advance drug activity |
| § 924(c) liability for shotgun at nightclub meeting | The shotgun was for a social/romantic dispute, not drug trafficking | Government: armed presence protected Reyes and facilitated resolution of a dispute that was "bad for business," thus aiding drug operations | Affirmed: sufficient nexus between firearm and drug trafficking to satisfy § 924(c) |
| Brady/Napue/newly discovered evidence and false testimony claims | Failure to disclose or correct Reyes’s alleged false testimony about employment/car-wash and post-trial jail misconduct warrants new trial | Government: car-wash facts were not shown to be false or known by government at trial; jailhouse misconduct occurred post-trial and was disclosed when learned | Affirmed: no Napue/Brady violation; post-trial misconduct not suppressed Brady material and trial counsel had opportunity to impeach on car-wash |
| Sentencing: minor-role reduction under U.S.S.G. §3B1.2 (Amendment 794) | Alston claims he was a minor participant relative to co-conspirators | Government argued defendant’s police role, armed enforcement, and facilitation placed him above a minor role | Affirmed: Amendment 794 requires comparison to co-participants; district court reasonably denied reduction |
| Sentencing: obstruction (§3C1.1) and abuse-of-trust (§3B1.3) enhancements | Obstruction and abuse-of-trust enhancements were improper | Government relied on recorded calls warning co-conspirators and on officer’s misuse of authority to shield Reyes | Affirmed: phone calls supported obstruction; officer status and concrete interventions (PBA card, intervening at stop) supported abuse-of-trust enhancement |
Key Cases Cited
- Tang Yuk v. United States, 885 F.3d 57 (2d Cir. 2018) (view evidence in light most favorable to government on sufficiency review)
- Aguiar v. United States, 737 F.3d 251 (2d Cir. 2013) (heavy burden on Rule 29 sufficiency challenges; defer to jury credibility findings)
- Coplan v. United States, 703 F.3d 46 (2d Cir. 2012) (standard for upholding jury verdict when any rational trier of fact could convict)
- Monaco v. United States, 194 F.3d 381 (2d Cir. 1999) (elements of conspiracy: agreement, knowledge, specific intent, overt act)
- Salameh v. United States, 152 F.3d 88 (2d Cir. 1998) (conspiracy standards)
- Vazquez-Guadalupe v. United States, 407 F.3d 492 (1st Cir. 2005) (officer’s possession of service weapon may support § 924(c) conviction)
- Gonzalez v. United States, 528 F.3d 1207 (9th Cir. 2008) (agency-issued weapon not categorically exempt from § 924(c))
- Lewter v. United States, 402 F.3d 319 (2d Cir. 2005) (possession may be for multiple purposes; employment necessity does not preclude possession in furtherance of another crime)
- Chavez v. United States, 549 F.3d 119 (2d Cir. 2008) (requirement of nexus between firearm and drug trafficking for § 924(c))
- Snow v. United States, 462 F.3d 55 (2d Cir. 2006) (nexus inquiry for § 924(c))
- Napue v. Illinois, 360 U.S. 264 (U.S. 1959) (prosecution may not use false testimony to obtain conviction)
- Wong v. United States, 78 F.3d 73 (2d Cir. 1996) (standard for Napue and new-trial review)
- Rahman v. United States, 189 F.3d 88 (2d Cir. 1999) (prior Second Circuit test comparing defendant to average participant)
- Cassiliano v. United States, 137 F.3d 742 (2d Cir. 1998) (alerting subjects of investigation can constitute obstruction of justice)
- Strickler v. Greene, 527 U.S. 263 (U.S. 1999) (elements of Brady claim)
- Genao v. United States, 869 F.3d 136 (2d Cir. 2017) (district court must calculate Guidelines range correctly)
- Huggins v. United States, 844 F.3d 118 (2d Cir. 2016) (two-prong test for § 3B1.3 abuse-of-trust enhancement)