United States v. Lee, 660 F. App'x 8

Background

Defendants (Hisan Lee, Delroy Lee, Selbourne Waite, Levar Gayle, and others) were convicted after a six-week jury trial for participating in a racketeering enterprise (the "DeKalb Avenue Crew"), narcotics and robbery conspiracies, multiple robberies and murders, and related firearms offenses.
Waite was acquitted of one murder-related count (Bunny Campbell) but convicted on other counts; Gayle had narrower robbery-related charges.
Key contested pretrial and trial issues included: suppression of a five-year-later photo identification; warrantless search and seizure at the site of the Campbell homicide; Brady/Giglio disclosure requests; sufficiency of evidence for RICO, murders, robberies, and firearm ownership; trial management rulings (shackling, juror competence, cross-examination limits); jury instructions (demonstrative phone-chart and reasonable doubt); and sentencing (§ 924(c) stacking and Fair Sentencing Act effects).
The district court denied suppression of the photo ID and the search/seizure; admitted out-of-court and co-conspirator statements; and conducted factual findings after an evidentiary hearing.
On appeal, the Second Circuit affirmed most rulings but remanded only for resentencing of Waite on narcotics conspiracy count because Dorsey required application of the Fair Sentencing Act to post-Act sentencing of pre-Act offenders.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Photo-array identification admissibility	Gov: array was not suggestive; identification admissible	Delroy Lee: five-year delay and short viewing made array suggestive; suppression required	Affirmed denial of suppression — array not unduly suggestive and credibility goes to weight, not admissibility
Warrantless search and seizure at Campbell homicide scene	Gov: ESU protective sweep and exigent circumstances justified entry; later plain-view seizures valid	Delroy Lee: initial warrantless search unlawful; subsequent seizures inadmissible	Affirmed — protective sweep/exigent circumstances justified entry; items later in plain view
Sufficiency for RICO/ murders/ firearms	Gov: co-conspirator statements, confessions, phone/ballistics/corroboration support convictions	Defendants: lack of eyewitness/physical evidence, identifications unreliable	Affirmed — combined testimonial, corroborative and physical evidence sufficient for jury to convict
Use of demonstrative phone-chart and jury access to it	Gov: chart summarized voluminous records; demonstrative was aid only	Delroy Lee: demonstrative implied affiliations as fact and prejudiced jury	Affirmed — court instructed jury chart not evidence and could consult underlying testimony/records
Shackling during trial	Gov: marshals advised restraints for safety; court minimized visibility	Hisan Lee: visible restraints violated due process	Affirmed — court found special need, took precautions, no showing jury saw shackles
Sentencing: § 924(c) stacking and Alleyne challenge	Gov: statutory mandatory consecutive sentences and prior-conviction exception control	Waite/Hisan Lee: Alleyne requires jury to find second/subsequent §924(c) factors; stacking unjust	Affirmed as to Alleyne challenge — prior-conviction exception applies; statutory stacking required; but remand granted for Waite on FSA issue
Fair Sentencing Act retroactivity for Waite	Gov (later): Dorsey requires applying FSA at post-Act sentencing of pre-Act conduct	Waite: FSA reduces applicable mandatory minimum	Remanded — Dorsey controls; district court erred in not applying FSA at sentencing

Key Cases Cited

Perry v. New Hampshire, 132 S. Ct. 716 (2012) (framework for due-process challenge to out-of-court identifications)
United States v. Maldonado-Rivera, 922 F.2d 934 (2d Cir. 1990) (identification admissibility and suggestiveness standard)
United States v. Douglas, 525 F.3d 225 (2d Cir. 2008) (standard of review for identification admissibility findings)
Boyle v. United States, 556 U.S. 938 (2009) (definition and proof of an associated-in-fact RICO enterprise)
Brigham City v. Stuart, 547 U.S. 398 (2006) (exigent-circumstances exception to warrant requirement)
Maryland v. Buie, 494 U.S. 325 (1990) (scope of protective sweeps)
Minnesota v. Dickerson, 508 U.S. 366 (1993) (plain-view/plain-feel seizure doctrine)
Victor v. Nebraska, 511 U.S. 1 (1994) (jury-charge sufficiency and no required form for reasonable-doubt instruction)
Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase mandatory minimums are elements)
Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior-conviction exception to Apprendi rule)
Deal v. United States, 508 U.S. 129 (1993) (mandatory consecutive §924(c) sentences for multiple counts)
Dorsey v. United States, 132 S. Ct. 2321 (2012) (Fair Sentencing Act applies to post‑Act sentencing of pre‑Act offenders)