UNITED STATES OF AMERICA, Appellee, v. TYRONE FELDER, AKA MAN MAN, Defendant-Appellant, KAREEM MARTIN, AKA JAMAL WALKER, TAKIEM EWING, AKA MULLA, TOMMY SMALLS, AKA TOMMY GUNS, Defendants.*
No. 19-897-cr
In the United States Court of Appeals for the Second Circuit
DECIDED: MARCH 31, 2021
AUGUST TERM 2020
ARGUED: OCTOBER 21, 2020
Before: RAGGI, SULLIVAN, and BIANCO, Circuit Judges.
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
Defendant Tyrone Felder appeals from a judgment of the United States District Court for the Southern District of New York (Briccetti, J.), convicting him of two counts of carjacking resulting in death, see
AFFIRMED.
CELIA V. COHEN, Assistant United States Attorney (Danielle R. Sassoon, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, New York, for Appellee.
BENJAMIN A. SILVERMAN (Andrew G. Patel, Esq., New York, New York, on the brief), Law Office of Benjamin Silverman, New York, New York, for Defendant-Appellant.
Within the span of eight days in August 2014, defendant Tyrone Felder killed two livery cab drivers by shooting each in the head while stealing their cabs for use in armed robberies. Based on this conduct, Felder now stands convicted after a jury trial of nine crimes: two counts of carjacking resulting in death, see
In appealing this conviction, Felder argues that the district court erred in (1) instructing the jury as to the elements of carjacking resulting in death, (2) allowing the government to elicit expert opinion testimony that an object shown in Felder‘s hand on surveillance video was a firearm, (3) relying on the good-faith exception to the exclusionary rule to admit historical cell-site location information obtained with a warrant not supported by probable cause, and (4) admitting unduly prejudicial photographic and testimonial evidence of Felder‘s relationship with co-conspirators in the charged crimes. Felder further maintains (5) that carjacking resulting in death and substantive Hobbs Act robbery cannot categorically satisfy the crime-of-violence element of the firearms offenses for which he stands convicted. For the reasons explained in this opinion, we reject these arguments and, accordingly, affirm the judgment of conviction on all counts.
BACKGROUND
Because Felder “appeals a judgment of conviction following a jury trial, we summarize the evidence adduced in the light most favorable to the prosecution.” United States v. Ng Lap Seng, 934 F.3d 110, 116 (2d Cir. 2019). That evidence was extensive, including hours of surveillance video from dozens of different private and public surveillance cameras, historical cell-site location records, various forensics reports, and testimony from numerous witnesses. One of these witnesses, Tommy Smalls, participated directly in the charged crimes with Felder, Kareem Martin, and Takiem Ewing. These four conspirators had known each other since childhood, having grown up together in the same Bronx apartment complex.
I. The August 5, 2014 Crimes
Smalls testified that, in early August 2014, Felder proposed robbing a McDonald‘s restaurant in the Bronx. On the evening of August 4, the four conspirators
Leaving Kane‘s dead body on Hunter Avenue, Felder took the wheel of the livery cab and drove his three confederates to the targeted McDonald‘s. Upon seeing a nearby police station and passing police car, however, the men abandoned their original plan and, instead, drove to Yonkers. There, as Felder waited in the cab, Smalls, Martin, and Ewing entered a convenience store and, at gunpoint, forced occupants to the floor, emptied the cash register, and stole cash and bottles of bleach. Surveillance video captured the entire robbery, including Felder at one point opening the targeted store‘s front door and exhorting his confederates to hurry up.
As the conspirators drove away from the first robbery scene, they spotted a Dunkin’ Donuts store and decided to rob it too. Again, Felder waited in the cab while Smalls, Martin, and Ewing entered the store armed with guns. Once again, surveillance video captured the crime, showing terrified employees fleeing into a back room while Martin and Ewing emptied the cash register.
Following the second robbery, the conspirators drove to the vicinity of Yankee Stadium, where they abandoned the stolen livery cab after wiping it down with the stolen bleach to eliminate any incriminating evidence. Surveillance video from the surrounding streets shows the men walking several blocks before catching a cab back to Ewing‘s apartment. There, the conspirators threw the clothes and gloves worn during the night‘s crimes down a garbage chute and divided the money taken in the two robberies.
II. The August 12, 2014 Crimes
Felder and his confederates soon planned another armed robbery, again to be preceded by a carjacking. Surveillance video, recorded on August 12, 2014, shows Felder, Smalls, Martin, and Ewing exiting Ewing‘s apartment building and entering a livery cab driven by Aboubacar Bah. The conspirators directed Bah to drive to the Hunts Point section of the Bronx. There, on a quiet block, Felder pointed his gun at Bah‘s head and instructed him to exit the vehicle. Instead, Bah quickly accelerated the cab, whereupon Felder shot him once in the head, killing him. Surveillance video shows the livery cab—with Bah dead behind the wheel and Felder and his co-conspirators in pursuit on foot—rolling down the street and crashing into parked cars before coming to a halt. The video shows Felder and his confederates then pulling Bah‘s dead body out of the vehicle and leaving it in the street before driving off in the cab.
The men soon grew concerned that police were following them, and so they abandoned their robbery plan and left the carjacked livery cab on a residential street in the Bronx. Surveillance video captures all four men exiting the vehicle and fleeing on foot, Felder with a dark object in his hand. At trial, a police firearms expert identified this object as a gun. Still other surveillance videos show the conspirators throwing
There, the men decided they needed to return to the abandoned vehicle to ensure that it contained no incriminating evidence. When Felder, Smalls, and Martin did so, they saw police already at the scene. Street surveillance videos show the conspirators retrieving their clothing and gloves from the dumpster where they had earlier placed them. The men failed, however, to retrieve gloves worn by Martin, thereby allowing authorities to recover the gloves and obtain incriminating DNA evidence.
Within days, authorities arrested all four conspirators. Smalls, Ewing, and Martin would eventually plead guilty, with Felder alone opting to stand trial.1 After the jury found Felder guilty of all nine crimes charged in this case, the district court imposed a total prison sentence of life plus 34 years.2 This timely appeal followed.
DISCUSSION
I. Jury Instructions as to Carjacking Resulting in Death
Felder stands convicted on two counts of carjacking resulting in death in violation of
Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall— . . .
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.
Felder argues that the jury was erroneously instructed as to the mens rea and causation elements of this crime. Because “[t]he propriety of a jury instruction is a question of law,” we review Felder‘s claim de novo. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (internal quotation marks omitted). To secure reversal, Felder must demonstrate that the instruction given was erroneous, i.e., that when viewed as a whole, the instruction misled or inadequately informed the jury “as to the correct legal standard.” Id. (internal quotation marks omitted). Felder must also show that the instruction he requested was correct in all respects, and that he suffered ensuing prejudice. See United States v. Fazio, 770 F.3d 160, 166 (2d Cir. 2014). Here, Felder cannot demonstrate either error or prejudice.
In charging the mens rea element of federal carjacking, the district court instructed the jury as follows:
The third element the Government must prove beyond a reasonable doubt is that the Defendant acted with intent to cause death or serious bodily harm. To establish this element, the Government must prove that at the moment the Defendant, or those he is alleged to have aided and abetted, demanded or took control of the vehicle, the Defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car or for any other reason. A Defendant may intend to engage in certain conduct only if a certain event occurs. In this case, the Government contends that the Defendant intended to cause death or serious bodily harm if the victim refused to turn over his car. If you find beyond a reasonable doubt that the Defendant had such an intent, the Government has satisfied this element of the offense.
Trial Tr. at 1322 (emphasis added).
Felder argues that the district court erred in including the italicized language despite his request that it be omitted. He maintains that a defendant can only be guilty of violating
Felder‘s arguments fail because he cannot show either error or prejudice. While we would normally address these points in that order, because lack of prejudice is quickly demonstrated, we discuss that first. Felder cannot demonstrate prejudice because the case was, in fact, submitted to the jury on the theory he urged. When the quoted mens rea charge is considered as a whole, it is evident that, although the jury was told that the murderous or injurious intent required by
Second, and more to the point of Felder‘s claim, the district court committed no error when it charged
This conclusion is, moreover, compelled by the Supreme Court‘s decision in Holloway v. United States, 526 U.S. 1 (1999). At issue in that case was not whether an “unconditional” intent to kill or injure—even if unnecessary to effect the carjacking—could satisfy the mens rea element of
The intent requirement of
§ 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver‘s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car (or, alternatively, if unnecessary to steal the car).
Id. at 12 (emphasis added). That is effectively what the district court charged here and, thus, we identify no error.
As the First Circuit has observed, the Holloway parenthetical “implies that the Court saw a distinction between killing for its own sake and willingness to kill to effect the theft, and that it deemed both circumstances as meeting the intent standard of
Further, the cases cited by Felder do not support his argument that only a conditional intent to kill or injure satisfies
The problem, however, was not with the conditionality of the Applewhaite defendant‘s intent but, rather, with the lack of a nexus between the defendant‘s violence and his taking of the victim‘s van. As the court observed, the defendant “clearly intended to seriously harm or kill” his victim. Id. at 685. But no record evidence existed to show that, at the moment he used force and violence against the victim, the defendant had any intention of taking the victim‘s car. Instead, the defendant used force and violence “solely for the purpose
of bludgeoning” his victim; he took the vehicle “as an afterthought in an attempt to get [the victim‘s] limp body away from the crime scene.” Id. at 685-86. In this factual context, the Third Circuit observed that “under Holloway, unless the threatened or actual force is employed in furtherance of the taking of the car, there is no carjacking within the meaning of
Felder‘s case is distinguishable from Applewhaite in that, here, the two stolen cabs were plainly carjacked by means of force and violence or intimidation. Specifically, Felder demanded each cab at the point of his gun. Holloway makes plain that, where a vehicle is thus demanded or taken, a defendant is guilty of carjacking under
As for United States v. Harris, 420 F.3d 467 (5th Cir. 2005), the Fifth Circuit there reversed a
Felder does not—and cannot—argue that the jury here was not properly charged on the need for the government to prove that he possessed the requisite murderous or injurious intent “at the moment”
In sum, the district court correctly instructed the jury that to prove the mens rea element of carjacking in violation of
B. The “Death Results” Instruction
Section 2119 prescribes enhanced penalties for federal carjacking of up to life imprisonment or death, “if death results.”
Now, if, and only if, you find the Defendant guilty of Counts One or Seven [the carjacking counts] as I just explained to you, then you must make a special finding on each of those Counts, Counts One and Seven, for which you found the Defendant guilty. Specifically, you must determine whether or not death resulted from the actions of the Defendant, or the actions of people the Defendant is alleged to have aided and abetted. In order to establish that the conduct of the Defendant, or those he is alleged to have aided and abetted, resulted in the death of the victim, the Government
must prove beyond a reasonable doubt that but for the actions of the Defendant, or those he is alleged to have aided and abetted, the victim would not have died. The Government is not required to prove that the Defendant, or those he is alleged to have aided and abetted, intended to cause the death of the victim. Your finding that death resulted must be beyond a reasonable doubt. In addition, it must be unanimous, in that all of you must agree that death resulted.
Trial Tr. at 1323-24 (emphasis added).6
Felder argues that the district court erred in charging but-for causation
considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause.” Burrage v. United States, 571 U.S. 204, 210 (2014). Thus, “[w]hen a crime requires ‘not merely conduct but also a specified result of conduct,’ a defendant generally may not be convicted unless his conduct is ‘both (1) the actual cause, and (2) the “legal” cause (often called the “proximate cause“) of the result.‘” Id. (quoting 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(a) (2d ed. 2003)).
But Burrage offers no further guidance relevant here. In that case—which concerned language in the Controlled Substances Act prescribing an enhanced 20-year mandatory minimum sentence for defendants who unlawfully distributed covered drugs when “death or serious bodily injury results from the use of such substance,”
Both before and after Burrage, however, every court of appeals to address the question has concluded that
The Tenth Circuit decision in Burkholder detailed the reasoning informing these decisions. Starting with the statutory text, Burkholder highlighted Congress’ use of the phrase “results from” rather than “causes,” observing that “resulting in death and causing death are not equivalents.” United States v. Burkholder, 816 F.3d at 614 (internal alterations and quotation marks omitted). The court explained that “[g]enerally, . . . the ordinary meaning of ‘results from’ imposes a requirement of actual or but-for causation” — the Burrage conclusion — “and not proximate causation.” Id. (internal alterations and quotation marks omitted). Next, the Tenth Circuit noted Congress’ use of the passive
To be sure, Burkholder, Harden, and the other cases just cited were discussing a death-results-from enhancement in the Controlled Substances Act, not the death-results-from enhancement in the federal carjacking statute. But Burkholder‘s reasoning applies as much in the latter context as in the former and we therefore adopt it as our own in concluding that the district court did not err in charging the jury of the need to find but-for causation as to the carjacking victims’ deaths, without further charging that the deaths must have been reasonably foreseeable to the defendant. That conclusion is only reinforced with respect to
In urging otherwise, Felder emphasizes that federal carjacking resulting in death exposes a defendant to capital punishment, and the Supreme Court has held that the death penalty cannot be imposed on a defendant for “killings that he did not commit and had no intention of committing or causing.” Appellant Br. at 32 (quoting Enmund v. Florida, 458 U.S. 782, 801 (1982)). Whatever the merits of this argument, any heightened mens rea or causation requirement for the death penalty can be submitted to the jury at the capital sentencing phase. Additionally, no Enmund concern arises here because the government did not seek the death penalty against Felder.
Finally, even if a foreseeability instruction had been warranted in Felder‘s case,
In sum, Felder‘s jury-charge challenges, both as to mens rea and causation, fail for lack of both merit and prejudice.
II. Expert Opinion Testimony
Among the many surveillance videos introduced into evidence by the government at trial was one recorded on August 12, 2014 — the date of the second carjacking — which showed Felder and his co-conspirators fleeing down an alley after abandoning Aboubacar Bah‘s livery cab on a Bronx street. Felder argues that the district court erred in allowing a prosecution firearms expert, New York City Police Detective Jonathan Fox, to testify that, in his opinion, a dark object visible in Felder‘s hand on this video was a firearm.
“We review a district court‘s evidentiary rulings under a deferential abuse of discretion standard,” United States v. Litvak, 889 F.3d 56, 67 (2d Cir. 2018) (internal quotation marks omitted), “and such rulings will only be overturned if they are ‘arbitrary and irrational,‘” United States v. Gatto, 986 F.3d 104, 117 (2d Cir. 2021). Even where we identify evidentiary error, however, we will not reverse a conviction if the error was harmless. See United States v. Siddiqui, 699 F.3d 690, 703 (2d Cir. 2012). These principles apply equally whether a witness is testifying based on personal knowledge or special expertise. See, e.g., United States v. Romano, 794 F.3d 317, 330 (2d Cir. 2015) (reviewing decision to admit or exclude expert testimony for abuse of discretion). Before admitting expert opinion testimony, however, the trial judge must determine that the expert possesses “specialized knowledge [that] will assist the trier of fact, i.e., will be not only relevant, but reliable.” Id. Such specialized knowledge can be grounded in scientific or other particularized training, but it can also derive
The government first attempted — unsuccessfully — to have an FBI agent identify the object shown in Felder‘s hand in the August 12 surveillance footage as a firearm. That agent had viewed the video numerous times before trial but, apparently, only realized that the object in Felder‘s hand was a gun during a break in his direct examination. When the district court expressed doubt about such a belated identification being admitted as expert opinion, the government maintained that it could be received as lay opinion. Compare
(“Your Honor, the government agrees with your point that it‘s clearly not expert testimony. Special Agent Kenney will be testifying on the basis of his personal experience, both observing individuals carrying firearms and personally carrying a firearm.“). The district court precluded the agent‘s opinion testimony finding its probative value weak in light of its recent provenance and outweighed by potential prejudice. See
Subsequently, the government called Fox who, after being recognized by the court — without objection — as a firearms expert, testified to differences between certain firearms and to the types of ammunition used in each. Shown surveillance footage from the August 5 convenience store robbery, Fox testified that, in his opinion, all three robbers captured on the video (i.e., Smalls, Martin, and Ewing) were holding semiautomatic handguns. Explaining his conclusion, Fox pointed out for the jury the firearms’ components that he perceived in the video, specifically, slides, sights, and ejection ports.
The government then advised the district court that it wished also to ask Fox about the August 12 alley surveillance video. The
government reported that Fox first saw this video earlier that morning and identified the dark object in Felder‘s hand as a firearm. Felder objected, noting, among other things, that he had not received
When Fox‘s examination resumed, the detective testified without further objection that, in his opinion, one person seen running down an alley on the August 12 video — earlier identified by other witnesses as Felder — was carrying a semiautomatic handgun in his left hand. The detective indicated that the video (and the still images captured from it) showed that “the front of the firearm,” i.e., “the muzzle,” was “pointed in a downward direction.” Id. at 1076–77. Fox further identified for the jury a perceived “slide” at the top of the firearm and, in “the middle,” what “appear[ed] to be possibly an ejection port.” Id. at 1077. Shown a different angle of these moments in the alley taken by another surveillance camera, Fox again identified
the object in Felder‘s left hand as a firearm, which was “pointing towards the ground” and “mov[ing] up and down” as Felder ran. Id. at 1077-78.
On appeal, Felder maintains that Fox should not have been allowed to testify to this opinion because (1) the government failed to provide adequate notice and (2) the testimony was argument, not expert opinion, which (3) usurped the fact finding role of the jury. The government counters that Fox‘s testimony was properly admitted expert opinion, or alternatively, lay opinion, and that Felder waived any objection to admission.
As an initial matter, we note that the government mistakenly characterizes the testimony it sought to elicit — first, unsuccessfully from an FBI agent, and then, successfully from Fox — as lay opinion evidence. In doing so, it repeats an error previously identified by this court in United States v. Garcia, 413 F.3d at 215 (explaining that “lay opinion must be the product of reasoning processes familiar to the average person in everyday life,” and that an opinion “rest[ing] in any way upon scientific, technical, or other specialized knowledge” can only be admitted as expert testimony (internal quotation marks omitted)). Fox‘s opinion that Felder held a gun in his hand was not based on any personal knowledge of the events at issue, i.e., Fox had not been on the scene when Felder ran down the alley on August 12. See id. at 212 (observing that lay opinions about events directly experienced can reflect insights that “you had to be there” to appreciate). Nor was his opinion the product of reasoning or experiences familiar to the average person. See id. at 215. To the contrary, the government offered the detective‘s opinion precisely
because he had specialized knowledge of, and long experience with, firearms and their component parts, which went well beyond that of an average person and which afforded him expert insights helpful to a jury in identifying objects in grainy surveillance images. Thus, in considering Felder‘s evidentiary challenge to Fox‘s testimony, we examine it as expert, not lay, opinion testimony.
Nor can Felder demonstrate that Fox‘s challenged testimony usurped the role of the jury. See United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (“[T]he use of expert testimony is not permitted if it will usurp . . . the role of the jury in applying th[e] law to the facts before it. When an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert‘s judgment for the jury‘s.” (emphasis in original) (internal citations and quotation marks omitted)). Fox testified to his opinion about what was shown in Felder‘s hand on the grainy August 12 video and, in particular, to what he saw in the video that informed that opinion. He did not “tell the jury what result to
reach” with respect to any of the charges at issue in the case. Moreover, the jury remained free to accept or reject Fox‘s opinion based on its assessment of the sufficiency of the data and experience informing the proffered opinion, Fox‘s credibility generally, and the jury‘s own evaluation of the video. See In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 725 F.3d 65, 114 (2d Cir. 2013) (identifying no error where “jury is free to accept or reject expert testimony, and is free to draw its own conclusion” (internal alterations and quotation marks omitted)). Indeed, the district court specifically instructed the jury of its right to “disregard” expert opinion “entirely or in part.” Trial Tr. at 1348.
The government‘s failure to give Felder timely notice of its intent to elicit expert opinion testimony from Fox with respect to the August 12 video also warrants no relief on appeal because the district court fashioned a satisfactory remedy by granting Felder a six-day continuance. See United States v. Ulbricht, 858 F.3d 71, 115 (2d Cir. 2017) (recognizing district court‘s “broad discretion in fashioning a remedy” for
In sum, the challenge to Fox‘s testimony fails because Felder cannot show that (1) the district court abused its discretion in
admitting this expert testimony, (2) the testimony usurped the role of the jury, or (3) he was prejudiced by delayed notice of the testimony.
III. Historical Cell-Site Location Information
Among the evidence offered against Felder at trial were records maintained by telecommunication providers showing historical location and usage data for certain cell phones subscribed to by Felder and other conspirators on the dates of the charged carjackings. The government procured
United States v. Herron, 762 F. App‘x 25, 31 (2d Cir. 2019); United States v. Chambers, 751 F. App‘x 44, 46–48 (2d Cir. 2018).
The identification of
That is not the case where, as here, evidence was procured by complying with existing federal law, specifically by obtaining a judicial order according to terms then specified in the Stored Communications Act. Reliance on a federal statute gives rise to a presumption of good faith unless the statute is “clearly unconstitutional.” Illinois v. Krull, 480 U.S. 340, 349–50 (1987). The Supreme Court has stated that this presumption applies even if “the statute is subsequently declared unconstitutional, [because] excluding evidence obtained pursuant to [the statutory scheme] prior to such a judicial declaration will not deter future
When the government obtained the judicial order here at issue, the Stored Communications Act was not “clearly unconstitutional,”
id. at 349, and was, in fact, wholly consistent with the third-party doctrine, which deems a person to have “no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Smith v. Maryland, 442 U.S. 735, 743–44 (1979); see United States v. Miller, 425 U.S. 435, 443 (1976). Prior to Carpenter, all five courts of appeals to have considered the question
It was on that very basis that this court, in United States v. Zodhiates, 901 F.3d at 144, recognized a good-faith exception to suppression of cell phone records obtained without a warrant pre-Carpenter but pursuant to a subpoena then authorized by the Stored Communications Act, see
In urging otherwise, Felder argues that the government could not, in good faith, have thought it constitutionally permissible to obtain historical cell-site location information without a warrant after United States v. Jones, 565 U.S. 400, 404 (2012) (holding warrantless placement of GPS tracker on defendant‘s vehicle unconstitutional), and Riley v. California, 573 U.S. 373, 386 (2014) (holding warrant required to search cellphone seized during lawful arrest). He is wrong. In neither Jones nor Riley was the challenged evidence procured under the Stored Communications Act or the third-party doctrine. In Jones, the Supreme Court explained that warrantless GPS tracking was unconstitutional because the placement of a tracker on a defendant‘s vehicle constituted a physical trespass. See 565 U.S. at 404 (stating that “[g]overnment physically occupied private property for the purpose of obtaining information“). Here, the government did not trespass onto any property, and certainly not onto Felder‘s property. Nor did it search any property seized from his person as in Riley. See 573 U.S. at 386–87. Rather, the government obtained the data at issue by obtaining a court order as then authorized by the Stored Communications Act, which it served on the third party in possession of the data. These crucial differences prompt us to conclude that, even after Jones and Riley, federal officials could have reasonably relied on this statute and the third-party doctrine to conclude that the requested historical cell-site information could be obtained without a warrant supported by probable cause.12
States v. Goldstein, 914 F.3d 200, 205 (3d Cir. 2019) (holding neither Jones nor Riley precluded good faith reliance on Stored Communications Act).
Indeed, in Carpenter, when the Supreme Court identified historical cell-site data as “qualitatively different” from the “telephone numbers and bank records” to which the third-party doctrine had long applied, it acknowledged that historical cell-site location information “does not fit neatly under existing precedents.” Carpenter v. United States, 138 S. Ct. at 2214-17. This too, then, supports our conclusion that even after Jones and Riley, but before Carpenter, it was objectively reasonable for authorities to think that, if they complied with the requirements of the Stored Communications Act, no warrant based on probable cause was constitutionally required to obtain historical cell-site location information from a third party.
In sum, on the facts of this case, the district court did not err in relying on the good-faith exception to the exclusionary rule in admitting historical cell-site location information obtained through a judicial order issued under the Stored Communications Act rather than a warrant supported by probable cause.
IV. Testimony and Photographs of Felder‘s Relationship with Co-Conspirators
Felder argues that the district court abused its discretion in admitting irrelevant and prejudicial character and propensity evidence in violation of
Some of the challenged evidence was photographic, depicting Felder and other persons making gestures and wearing baseball caps, hooded sweatshirts, and t-shirts of different colors. Five of these photographs are at issue on appeal: GX 1100-A (page five); GX 1101-A (page one); GX 1101-A (page two); GX 800-A2; and GX 800-A3.13 At trial, Felder objected only to GX 800-A2.
Some of the challenged evidence was testimonial. Over defense objection, Nenobia Washington, a resident of the Bronx apartment complex where Felder, Smalls, Martin, and Ewing grew up, testified to frequently seeing the four men together at that location and that, it appeared to her, Felder commanded a certain level of respect from his co-conspirators (and others). Also over defense objection, Jorge Figueroa, a security guard at the same apartment complex, testified that, based on his frequent observations of the four conspirators together, Felder appeared to be in charge.
To the extent Felder objected to this photographic and testimonial evidence, we review the district court‘s “evidentiary rulings under a deferential abuse of discretion standard.” United States v. Litvak, 889 F.3d at 67 (internal quotation marks omitted). To
the extent he failed to object, our review is limited to plain error. See United States v. Simels, 654 F.3d 161, 168 (2d Cir. 2011);
First, the district court was careful to exclude from trial any evidence of Felder‘s criminal participation with his co-conspirators in the “YGz” street gang. Second, the challenged photographs depict no weapons, narcotics, or other contraband. Third, the photographs do not depict any obvious indications of gang affiliations. The clothing worn shows no consistent color scheme that might suggest gang membership, and the hand gestures — such as Felder using his thumb and forefinger to form an “L” — would not readily be understood as gang signs by the average person. Indeed, the gesture most frequently depicted — and likely to be recognized — is the offensive
one of extending a middle finger, employed by many people with no gang affiliation. Finally, assuming any of the challenged photographs qualify as bad acts evidence, such evidence may be admitted under this court‘s inclusionary approach to explain or demonstrate a criminal relationship and to help the jury understand the basis for conspirators’ mutual trust. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009); United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996). On this record, we conclude that the district court did not abuse its discretion in admitting the challenged photographs.
As for the testimony from Washington and Figueroa, Felder does not — and cannot — suggest that these witnesses, based on repeated personal observation of all four conspirators, were not competent to offer lay opinions as to the men‘s relationships with each other. See United States v. Garcia, 413 F.3d at 211 (stating that witness may offer lay opinion that “particular participant, ‘X,’ was the person directing the transaction” based on, among other things, witness‘s “personal perception of such subjective factors as the respect various participants showed ‘X,’ [and] their deference to ‘X’ when he spoke“). Felder argues that this testimony was impermissible evidence of a character trait implying criminal leadership. We conclude, however, that the district court acted well within its discretion in ruling that the witnesses’ perception that co-conspirators accorded Felder respect and deference was more probative than prejudicial on the issue of knowledge, see
more plausible conspirators’ intentional participation in the charged crime. See United States v. Dupree, 870 F.3d 62, 76 (2d Cir. 2017) (admitting evidence of defendants’ participation in drug trafficking operation “as probative evidence of defendants’ knowledge of the charged drug- and murder-related acts, their intent to engage in these acts, and the development of their relationships with each other“). Where, as here, the challenged testimonial evidence established the nature of a relationship among conspirators without even referencing any prior crimes, the district court did not abuse its discretion by allowing the jury to hear it.
Felder challenges his
Felder‘s Hobbs Act robbery challenge is defeated by United States v. Hill, 890 F.3d 51 (2d Cir. 2018), which expressly held “that Hobbs Act robbery is a crime of violence under
controls this case.” Id. at 201 (internal citations and quotation marks omitted). This same conclusion applies here.
As for federal carjacking, we note at the outset that this court identified an earlier version of
In United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019), this court rejected a similar challenge to federal bank robbery, a crime that, like federal carjacking, proscribes a taking “by force and violence, or by intimidation.”
victim.” United States v. Hendricks, 921 F.3d at 328 (emphasis in original). This court held that, in fact, to commit the crime by “intimidation,” a defendant “must at least know that his actions would create the impression in an ordinary person that resistance would be met by force.” Id. (emphasis in original) (internal quotation marks omitted). Thus, we joined “every circuit to have addressed the issue” in holding “that bank robbery ‘by intimidation’ under
Hendricks’ reasoning is equally applicable to the federal carjacking statute. Even when committed by intimidation, federal
Here too, in so ruling, we join every other court of appeals to have considered the matter. See Estell v. United States, 924 F.3d 1291, 1293 (8th Cir. 2019) (recognizing federal carjacking as a
In sum, because both Hobbs Act robbery and federal carjacking are categorical crimes of violence, Felder‘s challenges to his
CONCLUSION
To summarize,
- Defendant‘s challenges to the district court‘s instructions on the mens rea and causation elements of carjacking resulting in death, see
18 U.S.C. § 2119(3) , both fail because these claims lack merit and the purported errors were in any event harmless.- As to mens rea, the district court correctly charged that, at the moment defendant demanded or took control of the subject vehicles, defendant had to possess “the intent to seriously harm or kill the driver if necessary to steal the car or for any other reason.” Trial Tr. at 1322 (emphasis added).
- As to causation, the district court correctly charged that the government had to prove beyond a reasonable doubt that “but for” defendant‘s actions, “the victim would not have died.” Id. at 1323-24.
- Even if the district court should have deleted the challenged language from its mens rea charge or required the jury to find proximate causation, the record here permits us confidently to conclude that the jury would have made such findings in any event.
- Defendant‘s evidentiary challenges fail because the district court acted within its discretion in making each of the rulings at issue.
- In allowing a firearms expert to testify that, in his opinion, a dark object in defendant‘s hand on a surveillance video was a gun, the district court (1) did not allow the
witness to usurp the factfinding role of the jury (2) with improper argument, and (3) satisfactorily afforded defendant relief from late notice by granting a six-day continuance. - In admitting into evidence historical cell-site location information obtained without a warrant supported by probable cause, the district court reasonably relied on the good-faith exception to the exclusionary rule because the procurement pre-dated Carpenter v. United States, 138 S. Ct. 2206 (2018), and the government reasonably relied on the Stored Communications Act, see
- In admitting photographic and testimonial evidence of defendant‘s relationship with his co-conspirators, the district court reasonably concluded that such evidence was more probative than prejudicial. See
Fed. R. Evid. 402 ,403 , &404 .
18 U.S.C. § 2703(d) , and the third-party doctrine. - In allowing a firearms expert to testify that, in his opinion, a dark object in defendant‘s hand on a surveillance video was a gun, the district court (1) did not allow the
- Defendant‘s challenge to his firearms convictions under
18 U.S.C. § 924(c)(3)(A) fail because the predicate crimes on which these convictions are based, Hobbs Act robbery, see id.§ 1951 , and federal carjacking, see id.§ 2119(3) , are categorical crimes of violence.
Accordingly, the judgment of conviction is AFFIRMED.
Notes
The final element the government must prove beyond a reasonable doubt is that death (or serious bodily injury) resulted from the defendant‘s actions. In order to establish that the defendant‘s conduct resulted in the death of (or serious bodily injury to) [the victim], the government must prove beyond a reasonable doubt that but for the defendant‘s actions, [the victim] would not have died (or suffered that injury). The government is not required to prove that the defendant intended to cause the death of (or injure) [the victim].
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness‘s perception;
(b) helpful to clearly understanding the witness‘s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
That rule states in pertinent part as follows:
At the defendant‘s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rule[] 702 . . . . The summary provided under this subparagraph must describe the witness‘s opinions, the bases and reasons for those opinions, and the witness‘s qualifications.