UNITED STATES of America, Appellee, v. Gary BOGLE, Defendant-Appellant.
No. 11-349-cr.
United States Court of Appeals, Second Circuit.
May 23, 2013.
Nicholas Pinto, New York, NY, for defendant-appellant.
Present: JOHN M. WALKER, JR., ROBERT A. KATZMANN, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Defendant-Appellant Gary Bogle appeals from a January 11, 2011 judgment of conviction entered by the United States District Court for the Eastern District of New York (Gershon, J.). Following a jury trial, Bogle was convicted of one count of possessing a firearm and ammunition after having been convicted of a felony, in violation of
We begin with Bogle‘s claim that he did not voluntarily and knowingly waive his right to the protection of
With respect to whether Bogle knew the consequences of waiving the protection of Rule 410, the record shows that Bogle‘s previous counsel fully explained to Bogle the nature of the right he was giving up by signing the proffer agreement. Bogle‘s prior counsel testified before the district court that he explained to Bogle that any statements he made during the proffer session could be used against Bogle if he took the stand. In addition, despite Bogle‘s contention on appeal that he was never informed of the specific consequences of the proffer agreement other than what would happen if he testified at his trial, Bogle‘s prior counsel also testified that he explained to Bogle that his proffer statements could be used to rebut any arguments his counsel made at trial that were contrary to statements he made during the proffer session.2 With respect to whether the waiver was coerced, Bogle offers no arguments beyond the “disparity of bargaining power” between a defendant and the government that we have previously held is insufficient to show that a waiver in a proffer agreement was not voluntary. See id. at 195-96. The district
Turning next to Bogle‘s sentencing, Bogle contends that the district court erred in concluding that he was subject to the penalties proscribed in
Bogle argues that two of the three New York Certificates of Disposition that the district court relied on to conclude that he was subject to section 924(e) were not sufficient to establish that he had been convicted of three “violent felonies.” He relies on our opinion in United States v. Green, 480 F.3d 627, 634-35 (2d Cir.2007) (remanding for further factfinding where not clear whether defendant actually convicted of possession of a narcotic with “intent to sell“), where we found that the computer system that stored New York Certificates of Disposition did not accurately reflect which subsection a felon was convicted of for certain Certificates issued prior to the 1990s, and that the computer could incorrectly show that a felon was convicted of a predicate felony using a default subsection of “one or ‘01‘” when the felon in fact fell under a different, nonpredicate subsection.
Here, the two Certificates of Disposition from 1986 that Bogle challenges show that he was previously convicted of attempted robbery and assault, both felonies under New York law. The attempted robbery Certificate states that Bogle was convicted of attempted robbery in the second degree, in violation of
Bogle‘s second 1986 Certificate of Disposition reflects that he was convicted of
Next, both Bogle and his counsel argue that the physical evidence the police recovered from his person and his car—body armor, a live round of ammunition, a loaded handgun, and an extra magazine—should have been suppressed as obtained in violation of the Fourth Amendment. They contend that the police lacked probable cause to stop his vehicle or to arrest him, that the warrantless search of his car at the scene of the arrest was unconstitutional, and that the subsequent searches of his car at the station house in Brooklyn and trap specialist‘s office in Manhattan were not proper inventory searches. Reviewing the district court‘s findings of fact for clear error and legal determinations de novo, we conclude that the challenged evidence was either obtained lawfully or was admissible pursuant to the inevitable discovery doctrine. The district court correctly denied Bogle‘s motion to suppress.
First, the officers had probable cause to stop Bogle‘s Jaguar and arrest him for violating the New York Vehicle and Traffic Law. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (police may stop a vehicle “where [they] have probable cause to believe that a traffic violation has occurred“); United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994) (New York law allows an officer to arrest a person who violates the Vehicle and Traffic Law in the officer‘s presence) (citing
Third, the record is not sufficiently developed as to whether the searches that were conducted by the officers and by a trap specialist in Manhattan subsequent to the initial inventory search, which led to the discovery of the trap in Bogle‘s car containing the handgun and magazine, were lawful inventory searches conducted according to “standardized criteria.” Colorado v. Bertine, 479 U.S. 367, 374 & n. 6, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Nevertheless, the handgun and magazine are also admissible under the inevitable discovery doctrine. Considering the circumstances leading to Bogle‘s arrest, as well as the inevitable discovery of the bullet by the passenger seat of his Jaguar, the officers would have had probable cause to suspect that Bogle‘s car contained evidence of a crime. Because a magistrate judge would have almost certainly issued a warrant to search Bogle‘s impounded vehicle, the inevitable discovery exception applies and the evidence was therefore admissible. See United States v. Heath, 455 F.3d 52, 59-60 (2d Cir.2006) (inevitable discovery doctrine can be invoked for evidence recovered in a warrantless search if court has a “high level of confidence” that a warrant would have issued and the specific evidence would have been obtained by lawful means). In sum, Bogle‘s arguments for suppression all fail.
Moving to jurisdiction, Bogle argues that Public Law Number 80-722, by which Congress adopted
Although we address Bogle‘s Second Amendment challenge to section 922(g) in the Opinion filed alongside this Summary Order, Bogle also argues that section 922(g) is not authorized by the Commerce Clause. We rejected this argument in United States v. Santiago, 238 F.3d 213, 216 (2d Cir.2001), citing section 922(g)‘s “express jurisdictional element requiring the government to provide evidence ... of a sufficient nexus between the charged offense and interstate or foreign commerce.” In addition, Bogle contends that the prior felony element of section 922(g) is unconstitutional because it unfairly prejudices the jury against him, denying him the right to a fair trial under the Sixth Amendment. But the Supreme Court has held that such potential prejudice is avoided when the defendant is given the opportunity to admit or stipulate to the prior conviction. Old Chief v. United States, 519 U.S. 172, 185, 192, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Here, Bogle stipulated to his prior conviction at trial. He cannot complain of prejudice.
Additionally, Bogle argues that he was entitled to present to the jury an affirmative defense of necessity to justify his possession of a firearm and body armor. Starting with the firearm charge, we will assume without deciding that a defendant can assert a necessity defense to a section 922(g) charge. See United States v. White, 552 F.3d 240, 246 (2d Cir.2009). Under this theoretically available necessity defense, Bogle must establish that “he did not maintain possession of the weapon at issue any longer than absolutely necessary,” and we construe any such defense “very narrowly.” Id. at 247. Bogle contends only that he kept a loaded firearm in a hidden trap in his car because he and his family had been threatened at home weeks prior. This threat does not constitute the “cognizable ... imminent[] risk to human life,” nor can Bogle show that he kept a gun “only for as long as necessary.” Id. at 247-48 (holding no necessity defense available to defendant who asserted that he took possession of loaded shotgun only to unload it so that the child in the house did not hurt himself because he continued to possess the gun by the time the police arrived in response to a domestic disturbance call). Similarly, turning to the body armor charge, assuming such a necessity defense exists, Bogle does not show there existed an imminent threat that would justify his possession of body armor such that he can invoke the common law defense of necessity. Cf. United States v. Patton, 451 F.3d 615, 638 (10th Cir.2006) (rejecting argument for “modified” necessity defense to a body armor charge that would have relaxed the immediacy requirement to the common law defense of necessity).
Next, Bogle argues that the district court erred in refusing to dismiss the original indictment with prejudice due to the government‘s failure to comply with the Speedy Trial Act. After arresting Bogle on a felony complaint, the government allowed more than thirty days to elapse before it obtained an indictment from the grand jury. The Speedy Trial Act provides that if a defendant is not indicted within thirty days of being arrested on a complaint, “such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.”
Here, the district court squarely addressed all of the factors set forth at section 3162, as supplemented by Supreme Court precedent. The court concluded that because the seriousness of the offense alleged against Bogle was high, because the delay was due to the government‘s good-faith negotiations with defense counsel over a potential cooperation agreement, and because reprosecution would serve the interests of justice and not unfairly prejudice the defendant, the appropriate remedy was to dismiss the indictment without prejudice and allow the prosecution to refile. We see no error in the district court‘s adjudication of the Speedy Trial Act violation. See id. at 342, 108 S.Ct. 2413 (“Dismissal without prejudice is not a toothless sanction: it forces the Government to obtain a new indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on statute of limitations grounds.“).
Finally, Bogle argues that the district court deprived him of his Sixth Amendment right to self-representation by refusing to allow him to serve as “co-counsel” with his attorney. This is not a proper Sixth Amendment claim. Although the Sixth Amendment provides the right for a defendant to represent himself pro se, Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), we have explained that because a defendant must affirmatively waive the right to counsel before exercising the right to self-representation, there is no constitutional or statutory right to “hybrid representation,” United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir.1989). The “decision to grant or deny ‘hybrid representation’ lies solely within the discretion of the trial court.” Id. Bogle offers no compelling reason to justify his appearance as co-counsel. To the contrary, Bogle‘s own counsel objected to his request. His claim is meritless.
We have considered all of the defendant‘s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.