United States v. Dore, Todd
586 F. App'x 42
2d Cir.2014Background
- Defendants Jermaine Dore and Taijay Todd were charged in a multi-defendant superseding indictment with Hobbs Act robbery conspiracies and related firearms offenses; Dore also faced a § 924(j) charge for causing a death with a firearm.
- Todd pleaded guilty and received a 264-month sentence; Dore was convicted at trial on all counts and sentenced to a 65-year term.
- Todd challenged the procedural reasonableness of his sentence, arguing the district court erred after a Fatico hearing in finding he assaulted an inmate in the MCC and for imposing an above-Guidelines sentence based on that finding.
- Dore appealed, arguing (1) government summation remarks violated his Fifth Amendment right against self-incrimination, (2) the district court erred in denying suppression of historical cell-site records obtained from T‑Mobile, and (3) without those records the evidence was insufficient.
- The Second Circuit reviewed factual sentencing findings for clear error and prosecutorial-summation claims for plain error where not objected to, and affirmed both defendants’ judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court clearly erred in finding Todd assaulted an inmate (Fatico hearing) | Government: district court’s credibility findings were supported by witness testimony and permissible weighing of evidence | Todd: inmate witness had motive to fabricate; other testimony undermined finding | No clear error; credibility and weight assessments are for the district court; finding sustained |
| Whether government summation comments violated Dore’s Fifth Amendment right | Government: comments were fair comments on weakness of defense and defense counsel’s explanations, not a comment on defendant’s silence | Dore: summation invited jury to draw adverse inference from his failure to testify | No plain error; comments did not naturally and necessarily refer to defendant’s silence and jury instructions cured any potential prejudice |
| Whether Dore had standing to challenge historical cell-site records (Fourth Amendment) | Government: Dore failed to establish a legitimate expectation of privacy in the phones/records | Dore: sought suppression of cell-site records as unlawfully obtained | Dore lacked standing (no affidavit or assertion of ownership); suppression denial affirmed |
| Whether evidence was insufficient without cell-site records | Dore: without cell-site evidence, prosecution’s case was inadequate | Government: co-conspirator testimony and other evidence sufficed | Evidence was sufficient; co-conspirator testimony alone could sustain conviction; conviction affirmed |
Key Cases Cited
- United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979) (procedures for factfinding at sentencing hearings)
- United States v. Rubenstein, 403 F.3d 93 (2d Cir. 2005) (clear-error standard for factual findings at sentencing)
- United States v. Cuevas, 496 F.3d 256 (2d Cir. 2007) (deference to district court credibility assessments)
- Anderson v. City of Bessemer City, 470 U.S. 564 (U.S. 1985) (standard for reviewing factual findings)
- United States v. Chalarca, 95 F.3d 239 (2d Cir. 1996) (two permissible views of evidence preclude clear error)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on commenting on defendant’s failure to testify)
- United States v. McDermott, 918 F.2d 319 (2d Cir. 1990) (distinguishing permissible comments on failure to call witnesses from impermissible comments on silence)
- Rawlings v. Kentucky, 448 U.S. 98 (U.S. 1980) (standing and legitimate expectation of privacy)
- United States v. Watson, 404 F.3d 163 (2d Cir. 2005) (standing to challenge searches and privacy expectations)
- United States v. Farhane, 634 F.3d 127 (2d Cir. 2011) (standard for reversing based on prosecutorial summation misconduct)