UNITED STATES of America, Appellee, v. Robert Anthony GONZALEZ, Mark Franco, Defendants, Rasheem Richardson, Khalil Williams, Defendants-Appellants.
Nos. 10-2381(L), 10-2945(Con)
United States Court of Appeals, Second Circuit.
Oct. 13, 2011.
II. Membership in the Chinese Democracy Party (“CDP“)
The IJ did not abuse his discretion in refusing to grant a continuance for Ye to obtain additional evidence in support of his CDP claim. See Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.2006) (noting that IJs have “broad discretion” and “are accorded wide latitude in calendar management“). The IJ accepted all evidence and testimony Ye presented at his hearing and he was not required to afford Ye additional time to develop his claim. See id. at 552 (concluding that there was no abuse of discretion where alien was not eligible for relief at the time of the hearing and that alien had “no right to yet another delay ... so that he could attempt to become eligible for such relief“). Moreover, the agency reasonably determined that Ye failed to establish a well-founded fear of future persecution based on his CDP membership, as he did not present any evidence that Chinese officials were aware or likely to become aware of his new membership in the CDP or his participation in one CDP demonstration. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008) (“Put simply, to establish a well-founded fear of persecution in the absence of any evidence of past persecution, an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities.“).
Because Ye was unable to establish his eligibility for asylum, he was necessarily unable to establish his eligibility for withholding of removal based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006). We do not address Ye‘s CAT claim as it is not addressed in his brief and was not raised before the BIA. See Gui Yin Liu v. INS, 508 F.3d at 723 n.6.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with
Bridget M. Rohde, Mintz Levin Cohn Ferris Glovsky and Popeo P.C., New York, NY, for Appellant Khalil Williams.
Jillian B. Berman (Marissa Molé, Michael D. Maimin, on the brief), Assistant United States Attorney, for Preet Bharara, United States Attorney, Southern District of New York, New York, NY, for Appellee.
PRESENT: DENNIS JACOBS, Chief Judge, PETER W. HALL, and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Rasheem Richardson and Khalil Williams appeal from judgments entered in the United States District Court for the Southern District of New York convicting them, following a jury trial, of conspiring and attempting to commit a Hobbs Act robbery and of using, carrying, and possessing a firearm during and in relation to, and in furtherance of, the robbery conspiracy. Williams was also convicted of unlawful possession of a firearm after having been convicted of a felony. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The defendants challenge the denial of their motion to suppress physical evidence obtained as a result of their allegedly unlawful arrests and the subsequent search of the car (a Honda Accord) in which they were found by police. We review a district court‘s ruling on a motion to suppress for clear error as to factual findings, viewing the evidence in the light most favorable to the government, and de novo as to questions of law. United States v. Brown, 52 F.3d 415, 420 (2d Cir.1995).
A warrantless arrest is permissible under the Fourth Amendment if “the police
Both the defendants’ arrests as well as the search of the car were supported by probable cause. The police relied on a tip from a confidential informant, who had provided reliable information in the past, that multiple armed men in a dark colored car were planning to rob Media Plaza, an electronics store, on the night defendants were arrested nearby (or on the following night). See Gates, 462 U.S. at 230 (holding that an informant‘s “veracity, reliability and basis of knowledge” are relevant to a determination of whether a tip establishes probable cause under a totality-of-the-circumstances analysis (internal quotation marks omitted)). The defendants argue that the informant had never provided information regarding a robbery, but that is plainly irrelevant to his veracity or reliability. The informant had provided information about violent and nonviolent crimes that contributed to the convictions of more than twenty people. An informant need not have provided tips in factually identical cases to demonstrate reliability. The reliability of the tip is also not impaired by the informant‘s failure to indicate his source of information. See Draper v. United States, 358 U.S. 307, 309-12, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (finding probable cause to arrest the defendant based on a tip that he would be returning to Chicago carrying drugs where the informant did not explain his basis of knowledge but had previously provided reliable information and the police corroborated the informant‘s description of the defendant‘s clothes, the color of the bag he would be carrying, his physical appearance, and his gait). Moreover, before arresting the defendants, the police independently corroborated a number of the elements of the informant‘s tip: They identified the dark gray Honda; co-defendant Robert Anthony Gonzalez came out of the back seat, indicating that there was at least one other person in the car; and the car was parked across the street from Media Plaza on one of the two nights the robbery was predicted to take place.
The observations of the police during their surveillance of Media Plaza reinforced the reasonableness of their belief that the car contained evidence of a crime and that the defendants were engaged in criminal activity. Gonzalez was observed walking near Media Plaza and peering at
The same information that established probable cause to arrest the defendants also established probable cause to believe that the Honda contained evidence of the planned robbery. In particular, there was a fair probability that the firearms that the informant‘s tip suggested would be used in the robbery might be found in the car along with the other robbers (especially since no gun was found on Gonzalez). Because both the defendants’ arrests and the subsequent search of the car were supported by probable cause, the district court did not err in denying defendants’ motion to suppress.
The defendants challenge their convictions under
Section 924(c) provides for an additional term of imprisonment for “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm....”
Under the Pinkerton doctrine, “a conspirator ‘can be held responsible for the substantive crimes committed by his co-conspirators to the extent those offenses were reasonably foreseeable consequences of acts furthering the unlawful agreement, even if he did not himself participate in the substantive crimes.’ ” United States v. Romero, 897 F.2d 47, 51 (2d Cir.1990) (quoting United States v. Bru-no, 873 F.2d 555, 560 (2d Cir.1989)). The evidence introduced at trial was sufficient for a rational jury to conclude beyond a reasonable doubt that: (1) Williams and Richardson entered into a Hobbs Act conspiracy with co-defendants Mark Franco and Gonzalez to rob Media Plaza, (2) the agreement contemplated the use of two armed shooters, and (3) Franco possessed a .45-caliber pistol to be used in the robbery, which he concealed under the floor mat of the driver‘s side of the Honda. Franco‘s possession of the gun to be used in the robbery was thus both in furtherance of the robbery conspiracy and entirely foreseeable; there was therefore sufficient evidence to convict defendants Williams and Richardson of Franco‘s substantive Section 924(c) offense.1
Richardson also argues that there was insufficient evidence of attempted robbery. To be guilty of attempt, a defendant must have (1) intended to commit the crime and (2) “engaged in conduct amounting to a ‘substantial step’ towards the commission of the crime.” United States v. Martinez, 775 F.2d 31, 35 (2d Cir.1985). A substantial step requires “something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime.” Id. (quoting United States v. Manley, 632 F.2d 978, 987-88 (2d Cir.1980)). The trial evidence, including Franco‘s testimony and the physical evidence obtained at the crime scene, established that at the time they were arrested the defendants (1) intended to rob Media Plaza, (2) were in possession of the tools necessary to do so (including guns, latex gloves, duct tape, and ski masks), and (3) had arrived at the scene of the planned robbery. The evidence also showed that the defendants and their co-conspirators had cased Media Plaza; indeed, by the time the defendants were arrested Gonzalez had exited the car twice to scope out the area. Moreover, Gonzalez had already put on latex gloves, from which the jury could reasonably infer that the robbery was imminent. Defendants’ reconnoitering at the scene of the contemplated crime while in possession of paraphernalia which, under the circumstances, could serve no lawful purpose (including a real firearm, a starter pistol, and ski masks) constitutes a substantial step, and amply corroborates their criminal purpose. See United States v. Jackson, 560 F.2d 112, 120-21 (2d Cir.1977). Therefore, the evidence was sufficient to convict the defendants of attempted robbery.
Richardson also challenges the sufficiency of the evidence of the requisite effect on interstate commerce to sustain defendants’ Hobbs Act convictions. “In a Hobbs Act prosecution, proof that ‘commerce [wa]s affected is critical since the Federal Government‘s jurisdiction of this crime rests only on that inference.’ ” United States v. Elias, 285 F.3d 183, 188 (2d Cir.2002) (alteration in original) (quoting Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)). “At the same time, it is well established that the burden of proving a nexus to interstate commerce is minimal” and a “very slight effect on interstate commerce” is sufficient. Id. The interstate commerce element of a Hobbs Act offense is satisfied if the robbery involves a store or business that sells products that are produced in another state or country. See id. at 188-89; United States v. Mapp, 170 F.3d 328, 336 n. 13 (2d Cir.1999).
Finally, Williams argues that the district court failed to provide an adequate jury instruction on the need to corroborate Franco‘s testimony as an accomplice and cooperating witness. A challenge to jury instructions is reviewed de novo and we reverse only where all the instructions, taken as a whole, prejudiced the defendant. United States v. Bok, 156 F.3d 157, 160 (2d Cir.1998). Where, as here, a defendant fails to object to the district court‘s jury instructions at trial, those instructions are reviewed for plain error. United States v. Middlemiss, 217 F.3d 112, 121 (2d Cir.2000).
In instructing a jury as to the possible motivations of a cooperating witness, “district courts need only fairly put the issue of a cooperating witness‘s possible motivations to the jury for its consideration and need not over-emphasize the obvious—that cooperators may have an interest in currying favor with the prosecutor that could affect the substance of their testimony.” United States v. Vaughn, 430 F.3d 518, 523-24 (2d Cir.2005). “As long as district courts intelligibly identify a cooperating witness‘s possible motivations for the jury‘s consideration, the cautionary charge given to the jury regarding a cooperating witness‘s testimony is sufficient.” Id.
The district court instructed the jury to scrutinize the testimony of each witness, to consider whether the witness has a relationship with the government that might affect his or her testimony, and to particularly scrutinize the testimony of cooperating witnesses. This was sufficient to flag Franco‘s possible motivations for the jury‘s consideration. Moreover, the defendants challenged Franco‘s credibility on cross examination and during summations. So the defendants cannot show that any alleged inadequacies in the jury instruction “affected [their] substantial rights” as they must to prove plain error. United States v. Marcus, — U.S. —, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010); see also United States v. Velez, 652 F.2d 258, 261 n. 5 (2d Cir.1981) (noting that the district court‘s failure to charge the jury regarding the credibility of a cooperating witness was not prejudicial because “defense counsel forcefully argued [the witness‘s] lack of credibility in his summation“).
We have considered the defendants’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgments of the district court are hereby AFFIRMED.