UNITED STATES of America, Appellee, v. Gurmeet Singh DHINSA, Defendant-Appellant.
Docket No. 99-1682.
United States Court of Appeals, Second Circuit.
Argued Sept. 8, 2000. Decided March 21, 2001.
243 F.3d 635
Accordingly, the motion for assignment of counsel is denied without costs.
Benton J. Campbell, Ronald White, Assistant United States Attorneys, Eastern District of New York, (Loretta E. Lynch, United States Attorney, Peter A. Norling, David C. James, Assistant United States Attorneys, Eastern District of New York, Brooklyn, NY, of counsel), for Appellee.
Before MESKILL, CALABRESI and KATZMANN, Circuit Judges.
MESKILL, Circuit Judge:
This appeal arises out of the prosecution of appellant Gurmeet Singh Dhinsa (Dhin-
On appeal, Dhinsa raises the following challenges to his convictions: (1) the district court erred by admitting the hearsay statements of two murder victims pursuant to United States v. Mastrangelo, 693 F.2d 269 (2d Cir.1982), and its progeny, and
BACKGROUND
Because Dhinsa appeals his convictions following a jury trial, “our statement of the facts views the evidence in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor.” United States v. Salameh, 152 F.3d 88, 107 n. 1 (2d Cir.1998) (per curiam), cert. denied, 525 U.S. 1112 (1999); see also United States v. Mussaleen, 35 F.3d 692, 697 (2d Cir.1994) (denial of a motion to suppress evidence).
I. The Singh Enterprise
Dhinsa was the self-professed leader of the “Singh Enterprise,” a vast racketeering organization built around a chain of fifty-one gasoline stations that Dhinsa owned and operated throughout the New York City metropolitan area under the name “Citygas.” The enterprise was funded by a pump-rigging scheme that overcharged Citygas customers through the use of an elaborate electronic device located beneath the gasoline pumps at the various Citygas stations. Operated via remote control, the rigging mechanism overcharged each customer by about six to seven percent on each purchase. During the enterprise‘s ten year existence, the pump-rigging scheme generated tens of millions of dollars, which were used, inter alia, to bribe public officials, purchase weapons and carry out crimes of violence aimed at protecting the enterprise‘s operations and its profits.
As the leader of the Singh Enterprise, Dhinsa maintained an “inner management circle” consisting of his cousin Gulzar Singh (Gulzar), his brother Gogi Singh (Gogi) and Citygas employee Babu Singh (Babu). Gulzar and Gogi supervised and trained the Citygas employees on the pump-rigging scheme, and, along with Babu, collected proceeds from the various Citygas stations and assisted Dhinsa in carrying out his violent criminal activities. Equally vital to the enterprise‘s operations were Antonio and Otilio Galvan, the designers of the pump-rigging mechanism and Marvin Dodson (Dodson), Walter “Jazz” Samuels (Samuels) and Evans Alonzo Powell (Powell), the group of hitmen employed by Dhinsa in connection with the murders of former Citygas employees Manmohan Singh (Manmohan) and Satinderjit Singh (Satinderjit).
Manmohan and Satinderjit were both murdered on Dhinsa‘s orders. Prior to his death, Manmohan made numerous inquiries, and confronted various members of the Singh Enterprise, about the July 1995 disappearance of his brother Kulwant, a Citygas employee.3 Dhinsa ordered Satinderjit murdered after learning that he was cooperating with police regarding, inter alia, Kulwant‘s disappearance, Manmohan‘s murder, and the enterprise‘s pump-rigging scheme. Dhinsa also employed Dodson, Samuels and Powell in an unsuccessful plot to kill Sarvjeet Singh (Sarvjeet), who witnessed a murder allegedly committed by Dhinsa‘s brother Gogi in 1991.
In an effort to conceal his pump-rigging scheme from the Department of Consumer Affairs (DCA) (the city agency responsible for oversight of gasoline stations), Dhinsa regularly bribed DCA inspector Lawrence 3
II. Crimes Charged at Trial
A. The Murders of Manmohan and Satinderjit and the Plot to Kill Sarvjeet
Dhinsa was convicted for his role in the murders of Manmohan and Satinderjit and the plot to kill Sarvjeet. Each was targeted by Dhinsa because of his active or potential cooperation with the police. Although their stories differ, they share a common theme—each posed a threat to the continued operation of the Singh Enterprise and the millions of dollars of profits generated each year by the enterprise‘s criminal activities.
The events leading up to Manmohan‘s murder began with the disappearance of his brother Kulwant in July 1995, when Kulwant was observed getting into a Citygas truck with Dhinsa‘s cousin Gulzar and Gulzar‘s brother Gurdial Singh (Gurdial). In March 1997, Manmohan was marked for death after he confronted Dhinsa and other key members of the Singh Enterprise about their involvement in Kulwant‘s disappearance. Around that same time, Dhinsa arranged to meet with Dodson across from the gas station where Manmohan worked and instructed Dodson to kill Manmohan. Operating on Gulzar‘s identification, Dodson returned to Manmohan‘s gas station armed with a gun supplied by Dhinsa and in a Citygas truck driven by Powell. After accompanying Manmohan to an office area at the station under the pretext that he needed a can of oil, Dodson ordered Manmohan to kneel down near a bench and proceeded to fire two shots into the back of Manmohan‘s head, killing him. Dodson and Powell then drove to Dodson‘s apartment, where Dodson changed his clothes and telephoned Dhinsa to inform him of the murder. Dhinsa paid Dodson $4,000 for the murder and instructed him to take the Citygas truck to a body shop located at one of Dhinsa‘s gas stations in order to have it repainted.
At Manmohan‘s funeral, the police initiated contact with Satinderjit, who offered to cooperate with police about Manmohan‘s murder, Kulwant‘s disappearance and the Citygas pump-rigging scheme. Satinderjit also made efforts to contact Dhinsa‘s brother Gogi, who was a suspect in a 1991 homicide. Satinderjit persuaded Sarvjeet, a witness to that homicide, to cooperate with the police. Apparently aware of Satinderjit‘s involvement with the police, Dhinsa (identifying himself as “Gurmeet Singh“) made two threatening telephone calls to Julie Uberoi (Uberoi), Satinderjit‘s girlfriend, stating that he would kill Satinderjit and Uberoi if Satinderjit continued to inquire into his business or cooperate with the police.
In May 1997, Satinderjit informed the police that Gogi would be at the Citygas corporate offices in Brooklyn, New York. Based on that information, Satinderjit and Sarvjeet accompanied the police to the Brooklyn offices, presumably to identify Gogi. After Gogi arrived and was identified by Sarvjeet, police entered the Citygas offices and arrested Gogi. Also present were Dhinsa‘s cousin Gulzar and Babu, a Citygas employee, both of whom were arrested on weapons charges relating to guns found inside the building. During a sweep of the Brooklyn offices, police uncovered two handguns and a bullet proof vest inside a Citygas armored van. A trace of one of the handguns revealed that it was part of a shipment of handguns stolen in 1996. Dhinsa arrived a short time later and was also arrested on weapons charges. Following his arrest, Dodson testified that Dhinsa purchased firearms from him on two previous occasions.
After posting bail, Dhinsa contacted Dodson and ordered that Satinderjit, who
Satinderjit was not the only current threat to Dhinsa and the Singh Enterprise. About the same time, Dhinsa also arranged with Samuels and Powell to kill Sarvjeet, who Dhinsa believed witnessed the 1991 murder allegedly committed by Gogi. After securing Sarvjeet‘s address, Dhinsa dispatched two Citygas employees to rent an apartment across from Sarvjeet‘s residence, presumably to monitor his movements. Dhinsa then took Samuels and Powell to Sarvjeet‘s home, at which time he pointed out the apartment he rented across from Sarvjeet‘s home, and instructed them on the manner in which Sarvjeet should be killed. Dhinsa also made numerous inquiries regarding Sarvjeet‘s whereabouts.
Growing impatient with Dodson in light of court proceedings pending against Gogi, Dhinsa instructed Dodson to kill Satinderjit within a few days. On June 18, 1997, Dhinsa telephoned Dodson from Satinderjit‘s neighborhood and arranged for Dodson, Samuels and Powell to meet him across from Satinderjit‘s home. By early afternoon, the trio arrived at Satinderjit‘s home and met Dhinsa. Dhinsa supplied them with a Citygas van and instructed Samuels and Powell to go to a nearby Citygas station to have the van‘s license plates changed. Earlier, Dhinsa telephoned Santokh Singh (Santokh), a Citygas mechanic, instructing him to change the van‘s license plates. When Samuels and Powell arrived, Santokh replaced the van‘s New York license plate with a Pennsylvania license plate. When Samuels and Powell returned, they noticed Dhinsa in his car, and Dodson and another person in a separate car, both parked across the street from Satinderjit‘s home.
Dhinsa‘s plan was set into action when Satinderjit and his cousin Kirpal Singh emerged from Satinderjit‘s home and entered Satinderjit‘s livery cab. Dodson positioned himself around the corner of Satinderjit‘s home, armed with a handgun purchased by Dhinsa a few days earlier. When Satinderjit attempted to drive away, Powell (Samuels had exited the van a few minutes earlier) drove the Citygas van alongside Satinderjit in order to block his exit and to provide Dodson sufficient time to get into position. Dhinsa, also present at the scene and driving a black Lexus sedan, apparently blocked Satinderjit‘s car from behind. As Satinderjit pulled around the Citygas van and turned the corner, Dodson approached Satinderjit, who was seated in the driver‘s seat. Dodson fired multiple shots at Satinderjit, killing him on the scene. Kirpal, crouched below the dashboard, was not killed.
After the shooting, Dhinsa instructed Dodson and Powell to follow him to a nearby Citygas station, where they were later joined by Samuels. When Dodson and Powell arrived in the Citygas van, Dhinsa instructed Santokh to replace the van‘s license plate. Dhinsa later met up with Dodson, Samuels and Powell at Dodson‘s residence, at which time he congratulated them on their success and paid them each $5,000.
B. The Kidnapping of Muchtir Ghuman
Dhinsa was also convicted for his role in the kidnapping of Muchtir Ghuman (Ghuman). Ghuman was an investor in a local Indian restaurant. Following an internal dispute between Ghuman and the other investors in the restaurant, Chandi, one of the investors, solicited the help of “Steve” and “Allen,” alleged members of organized crime, to threaten Ghuman. Steve and Allen warned Ghuman that they would kill him if he did not relinquish his interest in
When Ghuman exited the restaurant, he noticed Gogi, who was seated in an armored Citygas van outside the restaurant. Ghuman approached Gogi to inform him about the events inside the restaurant. On Gogi‘s demand, Ghuman entered the van. Ghuman was joined in the van by Babu, who was seated in the driver‘s seat, and an unidentified third person. Gogi pointed a gun directly at Ghuman and threatened to kill him unless he kept quiet. After briefly entering the restaurant, Gogi returned to the van and the three men, along with Ghuman, drove to a Citygas truck stop in New Jersey. During the trip, Gogi refused Ghuman‘s pleas to be released.
After arriving at the New Jersey truck stop, Gogi questioned Ghuman at gunpoint, telling him that he had lied and insulted Dhinsa. After Ghuman pleaded with Gogi to spare his life, Gogi informed Ghuman that he would not be killed, but that he had to leave New York and would be killed if he returned or reported the incident to anyone. Ghuman, Gogi and the others drove back to a Citygas station in New York City where Dhinsa was present. Dhinsa told Ghuman that Steve and Allen wanted to kill him, but that he “fixed” the problem. After warning Ghuman that he and other members of the Singh Enterprise killed many people in the same spot in New Jersey where he had just driven from, Dhinsa also warned Ghuman to leave New York. Following his release, Ghuman abandoned his investment in the restaurant and, along with his family, fled New York. Although Ghuman eventually returned to New York, he did not return to his restaurant or confront Dhinsa or other members of the Singh Enterprise.
C. The Threat to Kill Balwant and the July 1, 1997 Stop of Dhinsa‘s Car
Following Satinderjit‘s murder in June 1997, police increased their protection of Sarvjeet, making it difficult for Dhinsa to reach him. In an effort to locate Sarvjeet, Dhinsa dispatched Surander Parmar (Parmar), one of his associates, to Satinderjit‘s funeral in order to make contact with Balwant, a known friend of Sarvjeet. During a heated exchange, Parmar conveyed a message from Dhinsa requesting that Balwant take Parmar to Sarvjeet. After Balwant refused, Parmar informed him that Dhinsa would have him killed.4 A few days later, Dhinsa, driving a green Lincoln, pulled up alongside Balwant‘s van as he drove to work. In fear for his life, Balwant drove home and reported the incident to the police. Later that evening, detectives Brian Quinn and Louis Pia were dispatched to Balwant‘s home to investigate the death threats made by Dhinsa. The events surrounding the detectives’ July 1, 1997 visit to Balwant‘s home, which led to the stop and search of Dhinsa‘s car and the first of two suppression motions decided by the district court, are set out in detail in our earlier decision in this matter, see Dhinsa, 171 F.3d at 722-24, familiarity with which is assumed. A few days later, the police arrested Dodson, who was plotting with Dhinsa to kidnap Balwant by having Dodson and Samuels pose as police officers driving cars purchased by Dhinsa a few days earlier.
D. The July 7, 1997 Arrest of Dhinsa and Subsequent Inventory Search of His Car
The events surrounding Dhinsa‘s arrest and the subsequent inventory search of his car, which were the subject of the district
On July 7, 1997, the police arrested Dhinsa at one of his Citygas stations in Brooklyn, New York. That same day, detectives seized Dhinsa‘s black Lexus, which they believed was used in connection with Satinderjit‘s murder. The detectives were supplied with information describing Dhinsa‘s role in ordering Satinderjit‘s murder and his presence at the murder scene. In seizing Dhinsa‘s car, detectives relied on information that Dhinsa aided Dodson and the other hitmen in carrying out Satinderjit‘s murder by positioning his black Lexus behind Satinderjit‘s car and blocking him in from the rear. The detectives then transported Dhinsa and the black Lexus to their precinct, and detectives Rakesh Verma (Verma) and Jim Tampellini (Tampellini) were instructed by Sergeant Conroy to conduct an inventory search of the contents of Dhinsa‘s car. Verma, however, mistakenly believed that he could also perform an investigatory search of the car because it was allegedly used during the commission of a crime. To that end, Verma testified that the purpose of the search was to safeguard the car and its contents, as well as to look for evidence of an investigatory or evidentiary value.
Verma and Tampellini conducted a search of the car‘s passenger area, glove compartment, console, trunk and “stash” or “trap” compartment (a hollow area that initially contained an airbag). The detectives were permitted to search these areas pursuant to New York City Police Department procedures governing inventory searches. During the course of the search, Verma discovered the following items: a piece of paper bearing the name of a detective with whom Verma worked and the voucher number for the vehicle taken from Dodson at the time of his arrest; a piece of paper bearing Dodson‘s name; a life insurance policy issued to Gurdial Singh, a former Citygas employee whose murder was the subject of a pending police investigation; a piece of paper with Sarvjeet‘s address; a piece of paper bearing Balwant‘s name and the names of his friends and family; and DCA and New York City Consumer Affairs inspection stickers and seals. Verma also retrieved a wallet, numerous business cards, two telephone books, a cellular telephone bill addressed to DCA Inspector Woods, a briefcase containing an electronic diary and a blank fire department inspection report. After briefly examining the loose papers and business cards found inside the car, Verma brought most, if not all, of the materials and papers into the precinct, presumably to catalog the items. Verma made copies of the written materials and the credit cards found in Dhinsa‘s wallet. At some point after Verma began to catalog the items taken from the car, Verma was assigned to another task and, thus, did not complete an inventory list. The items were turned over to other officers and the inventory list was completed by FBI agent James Glynn, the case agent for the investigation.
III. The District Court‘s Suppression Rulings and Our Prior Decision on Appeal
In pretrial motions, Dhinsa moved, inter alia, to suppress the fruits of both the July 1, 1997 car stop and search and the July 7, 1997 inventory search. After conducting hearings, the district court granted both motions, albeit for differing reasons. The district court suppressed the fruits of the July 1, 1997 stop and search because both detectives testified that, although they observed Dhinsa commit a traffic violation, it was not the basis of their decision to stop him. See Dhinsa, 171 F.3d at 722. With regard to the events on July 7, 1997, the district court held that the seizure of Dhinsa‘s car was “entirely appropriate” because the police had “probable cause to believe that [the car] was used in the commission of a murder or an attempted murder,” and “not seizing the car gives the defendant or
The district court found that the search of Dhinsa‘s car was lawful because “(1) Conroy directed Verma to conduct an inventory search; (2) Verma erroneously believed he could conduct an investigatory search; and (3) regardless of Verma‘s intent or belief, the scope of the search he conducted did not exceed the permissible bounds of an inventory search until items he observed in plain view supplied him with probable cause to conduct a more extensive search.” Dhinsa, 171 F.3d at 724. Despite express findings of fact and law that supported a denial of Dhinsa‘s suppression motion, the district court nevertheless suppressed the fruits of the July 7, 1997 search, stating that it presented a “close question of law,” and reasoning that by placing the issue in an “appealable posture” Dhinsa would not have to wait until the end of the trial in order to seek appellate review of the district court‘s denial of the suppression motion.
On appeal, we reversed both suppression orders. With respect to the July 1, 1997 stop, we held that “an observed traffic violation legitimates a stop even if the detectives do not rely on the traffic violation” as a basis for the stop. Dhinsa, 171 F.3d at 725 (footnote omitted). We went on to hold that the Supreme Court‘s decision in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), “and other Fourth Amendment cases require that we judge the reasonableness of an officer‘s actions based on the objective circumstances surrounding her actions and not on her subjective intent.” Id. (citing Whren, 517 U.S. at 814). Accordingly, because Dhinsa‘s traffic violation was “an objective circumstance that justifie[d] a traffic stop,” we held that the stop was lawful notwithstanding the officers’ subjective intent. Id. Next, we summarily reversed the July 7, 1997 suppression order because it “directly contradict[ed] [the district court‘s] findings of fact and conclusions of law,” but permitted Dhinsa to challenge the admission of the evidence of the July 7 search in his post-trial appeal. Id. at 728. Accordingly, we left Dhinsa‘s challenge to the constitutionality of that search to any post-trial appeal. That appeal is currently before us.
DISCUSSION
I. Standards of Review
Dhinsa‘s challenges to the sufficiency of the evidence supporting a number of his convictions and to various evidentiary rulings made by the district court require us to apply varying standards on appeal. For convenience, we detail those standards here.
A defendant challenging a conviction based on a claim of insufficiency of the evidence bears a heavy burden. See United States v. Walsh, 194 F.3d 37, 51 (2d Cir.1999). The evidence presented at trial should be viewed “in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government.” United States v. Walker, 191 F.3d 326, 333 (2d Cir.1999) (quotation marks omitted), cert. denied, 529 U.S. 1080 (2000). We consider the evidence presented at trial “in its totality, not in isolation,” but “may not substitute our own determinations of credibility or relative weight of the evidence for that of the jury.” United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). “We defer to the jury‘s determination of the weight of the evidence and the credibility of the witnesses, and to the jury‘s choice of the competing inferences that can be drawn from the evidence.” United States v. Mor-rison, 153 F.3d 34, 49 (2d Cir.1998). Accordingly, we will not disturb a conviction on grounds of legal insufficiency of the evidence at trial if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Naiman, 211 F.3d 40, 46 (2d Cir.2000).
Evidentiary rulings are reviewed for abuse of discretion, see Naiman, 211 F.3d at 51, and the district court‘s application of constitutional standards is reviewed de novo. See United States v. Moskowitz, 215 F.3d 265, 268 (2d Cir.) (per curiam), cert. denied, 121 S.Ct. 571 (2000). “To find such an abuse we must be persuaded that the trial judge ruled in an arbitrary and irrational fashion.” United States v. Pipola, 83 F.3d 556, 566 (2d Cir.1996). In reviewing a suppression order, we review the district court‘s factual findings for clear error and its legal conclusions de novo. See United States v. Miller, 148 F.3d 207, 213 (2d Cir.1998), cert. denied, 525 U.S. 1072 (1999). Under the clear error standard, we reverse “only if left with the definite and firm conviction that a mistake has been committed.” Moskowitz, 215 F.3d at 272 (internal quotation marks omitted). “Where there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The district court is afforded “greater deference” when its findings are based on the credibility of the witnesses. Id. at 575; see also United States v. Milbrand, 58 F.3d 841, 844 (2d Cir.1995) (“Assessment of the credibility of witnesses is peculiarly within the province of the trier of fact and is entitled to considerable deference.“). Accordingly, “when a trial judge‘s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson, 470 U.S. at 575.
The erroneous admission of evidence may nonetheless be harmless if “the appellate court can conclude with fair assurance that th[e] evidence did not substantially influence the jury,” United States v. Jean-Baptiste, 166 F.3d 102, 108 (2d Cir.1999) (citing Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)), and “only if ‘it is highly probable that the error did not contribute to the verdict.‘” Id. (quoting United States v. Colombo, 909 F.2d 711, 713 (2d Cir.1990)); see also United States v. Smith, 987 F.2d 888, 892 (2d Cir.1993). “That standard is met when the court possesses a sure conviction that the error did not prejudice the defendant.” United States v. Saada, 212 F.3d 210, 222 (3d Cir.2000) (internal quotation marks omitted). Thus, in order for an error to be deemed harmless, the reviewing court must conclude beyond a reasonable doubt that a rational jury would have rendered a verdict of guilty absent the alleged error. See Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.“); United States v. Jackson, 196 F.3d 383, 385 (2d Cir.1999), cert. denied, 530 U.S. 1267 (2000).
In undertaking this inquiry, courts weigh various factors to determine whether an alleged constitutional error is harmless. For example, in evaluating whether the erroneous admission of evidence constitutes harmless error, we consider principally whether the government‘s case against the defendant was strong; whether the evidence in question bears on an issue
Jean-Baptiste, 166 F.3d at 108-09 (internal quotation marks and citations omitted); see also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (in applying the harmless error doctrine in the context of Confrontation Clause violations, the reviewing court should consider a “host of factors” that include “the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case“). “The strength of the government‘s case against the defendant is probably the most critical factor in determining whether an error affected the verdict.” Colombo, 909 F.2d at 714; see also Wray v. Johnson, 202 F.3d 515, 526 (2d Cir.2000) (applying harmless error analysis in review of habeas petition); cf. Neder, 527 U.S. at 17 (court‘s failure to instruct on an element of the charged offense deemed harmless in light of the “overwhelming evidence” supporting the jury‘s verdict). Accordingly, a reviewing court may find that the admission of evidence was harmless “where there is sufficient corroborating evidence to support the conviction.” Colombo, 909 F.2d at 714. The beneficiary of the alleged error bears the burden of establishing that such error was harmless. See Chapman, 386 U.S. at 24.
With these standards in mind, we turn to the arguments raised by Dhinsa on appeal.
II. Evidentiary Issues
A. Fed.R.Evid. 804(b)(6) and the Admission of Mastrangelo Evidence
Dhinsa argues that the district court erred by admitting out-of-court statements of Manmohan and Satinderjit, offered through numerous prosecution witnesses, as proof of Dhinsa‘s involvement in the murders of the declarants.5 The gravamen of Dhinsa‘s objection is that the admission of hearsay statements introduced as proof of the declarants’ murders rather than about past events or offenses Dhinsa allegedly committed violated
1. The Confrontation Clause and the Waiver-By-Misconduct Doctrine
We begin with a brief overview of the Confrontation Clause of the Sixth Amend-
Although the confrontation right is of constitutional dimension, it is not absolute, see Maryland v. Craig, 497 U.S. 836, 847-48, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (“[W]e have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant‘s inability to confront the declarant at trial.“), and may be waived by a defendant through a “knowing and intentional relinquishment.” United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.1996); cf. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (“There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege.“) (internal quotation marks and citations omitted). For example, a defendant who enters a plea of guilty waives his rights under the Confrontation Clause. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The Supreme Court has similarly held that a defendant‘s intentional misconduct can constitute a waiver of his rights under the Confrontation Clause. See, e.g., Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (defendant waives his confrontation rights and his right to be present at his trial if he engages in disruptive and disrespectful behavior requiring his removal from the courtroom); Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (“No doubt the privilege [to confront one‘s accusers and cross-examine them] may be lost by consent or at times even by misconduct.“), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); see also Mastrangelo, 693 F.2d at 272 (collecting cases). These cases recognize that although the right of confrontation is an essential trial right, it may be waived by the defendant‘s misconduct.
Consistent with that principle, this Court, as well as a majority of our sister circuits, have also applied the waiver-by-misconduct rule in cases where the defendant has wrongfully procured the witnesses’ silence through threats, actual violence or murder. See, e.g., United States v. Cherry, 217 F.3d 811, 814–15 (10th Cir.2000) (murder); United States v. Emery, 186 F.3d 921, 926 (8th Cir.1999) (murder); United States v. White, 116 F.3d 903, 911 (D.C.Cir.1997) (per curiam) (murder); United States v. Miller, 116 F.3d 641, 667-68 (2d Cir.1997) (murder); Houlihan, 92 F.3d at 1278-79 (murder); United States v. Thai, 29 F.3d 785, 814 (2d Cir.1994) (murder); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir.1992) (written and verbal threats); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir.1982) (“witness was under the control of the defendants who had procured her refusal to testify“); United States v. Carlson, 547 F.2d 1346, 1358-60 (8th Cir.1976) (threats). Recognizing that “[s]imple equity” and “common sense” justify a defendant‘s forfeiture of his confrontation rights under circum-
It is hard to imagine a form of misconduct more extreme than the murder of a potential witness. Simple equity supports a forfeiture principle, as does a common sense attention to the need for fit incentives. The defendant who has removed an adverse witness is in a weak position to complain about losing the chance to cross-examine him. And where a defendant has silenced a witness through the use of threats, violence or murder, admission of the victim‘s prior statements at least partially offsets the perpetrator‘s rewards for his misconduct. We have no hesitation in finding, in league with all circuits to have considered the matter, that a defendant who wrongfully procures the absence of a witness or potential witness may not assert confrontation rights as to that witness.
White, 116 F.3d at 911. Relying on the maxim that “the law [will not] allow a person to take advantage of his own wrong,” Mastrangelo, 693 F.2d at 272 (quoting Diaz v. United States, 223 U.S. 442, 458, 32 S.Ct. 250, 56 L.Ed. 500 (1912)), in Mastrangelo and cases following, we have reaffirmed the principle that, where a defendant wrongfully procures the silence of a witness or potential witness, he will be deemed to have “waived his sixth amendment rights and, a fortiori, his hearsay objection” to the admission of the declarant‘s statements. Id. at 272; see also Miller, 116 F.3d at 668; Thai, 29 F.3d at 814; Aguiar, 975 F.2d at 47; accord White, 116 F.3d at 912; Houlihan, 92 F.3d at 1282. We extended that principle to situations where “there was [no] ongoing proceeding in which the declarant was scheduled to testify.” Miller, 116 F.3d at 668; see also Houlihan, 92 F.3d at 1279-80. The application of Mastrangelo under these circumstances is both logical and fair since a contrary rule “would serve as a prod to the unscrupulous to accelerate the timetable and murder suspected snitches sooner rather than later.” Houlihan, 92 F.3d at 1280.
2. Whether Mastrangelo and Fed.R.Evid. 804(b)(6) Contain a Subject Matter Limitation
By its plain terms,
Further, we have declined to read in such a limitation in our pre-Rule 804(b)(6) decisions dealing with Mastrangelo evidence, permitting statements made by the declarant to be admitted where the murder of the declarant was one of the charged offenses. See, e.g., Miller, 116 F.3d at 667-69 (hearsay statement of murdered drug supplier made to his wife); Thai, 29 F.3d at 814-15 (hearsay statement of murdered store owner made to police); cf. Houlihan, 92 F.3d at 1279 (“[A] defendant who wrongfully procures a witness‘s absence for the purpose of denying the government that witness‘s testimony waives his right under the Confrontation Clause to object to the admission of the absent witness‘s hearsay statements.“); Aguiar, 975 F.2d at 47 (“A defendant who procures a witness‘s absence waives the right of confrontation for all purposes with regard to that witness.“) (emphasis added). Because
In sum, based on the plain language of
3. The Requirements Under Mastrangelo in Light of Rule 804(b)(6)
By its plain terms,
4. Lilly v. Virginia
Dhinsa argues that the application of the waiver-by-misconduct rule to allow the admission of hearsay statements of a declarant as evidence of that declarant‘s murder by the defendant is inconsistent with the Supreme Court‘s recent decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion). In response, the government argues that Dhinsa waived his confrontation rights by murdering the declarants and, therefore, the Mastrangelo evidence is not subject to the Lilly test. We find the government‘s argument persuasive.
Although the Supreme Court has recognized that the hearsay rules and the Confrontation Clause “are generally designed to protect similar values,” Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), it never has equated the two to suggest that “the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions.” California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); see also Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality opinion). As such, the Confrontation Clause may “bar[] the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Wright, 497 U.S. at 814; see also Green, 399 U.S. at 155-56; United States v. Torrez-Ortega, 184 F.3d 1128, 1132 n. 2 (10th Cir.1999). Because “[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact,” Lilly, 527 U.S. at 123-24 (quotation marks omitted), the determination of whether an out-of-court statement violates the Confrontation
In Lilly, a four justice plurality of the Supreme Court reaffirmed the rule summarized roughly twenty years earlier in Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), that “the veracity of hearsay statements is sufficiently dependable to allow the untested admission of such statements against an accused when (1) the evidence falls within a firmly rooted hearsay exception or (2) it contains particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.” 527 U.S. at 124-25, 119 S. Ct. 1887 (plurality opinion of Stevens, Souter, Ginsburg and Breyer, JJ.) (internal quotation marks omitted). The concurring opinion of Justice Thomas and the concurring opinion of Chief Justice Rehnquist, joined by Justices O‘Connor and Kennedy, also referenced the Roberts dual inquiries. See id. at 144, 148-49, 119 S. Ct. 1887; see also Moskowitz, 215 F.3d at 269. In determining whether a statement contains a “particularized guarantee of trustworthiness” sufficient to permit its admission without violating the defendant‘s confrontation rights, the trial court should consider the totality of those circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” Wright, 497 U.S. at 819, 110 S. Ct. 3139; see also Bryce, 208 F.3d at 351; Mingo v. Artuz, 174 F.3d 73, 77 (2d Cir. 1999) (requiring a court to “carefully examine each instance of incriminating hearsay in the light of all the circumstances“).
Implicit in the application of the Lilly test is a presumption that the defendant has not waived his confrontation rights with respect to the declarant‘s statements. However, “[o]nce the confrontation right is lifted from the scales by operation of the accused‘s waiver of that right,” Houlihan, 92 F.3d at 1281, the district court is not required to assess independently the reliability of those statements under the rubric set forth in Lilly. See White, 116 F.3d at 913 (rejecting defendants’ claim that the trial court “should have looked for the sort of indicia of trustworthiness that often support an exception to the confrontation or hearsay rules” where the defendants forfeited their right under the hearsay rule); Houlihan, 92 F.3d at 1281 (“[Defendants‘] misconduct waived not only their confrontation rights but also their hearsay objections, thus rendering a special finding of reliability superfluous.“).
This does not, however, mean that the declarant‘s statements will be admitted automatically. As discussed supra, after the district court finds by a preponderance of the evidence that the hearsay statement is admissible under
Dhinsa argues that the district court‘s failure to make a finding that he intended to “eliminate the declarant[s] as ... witness[es]” prior to the admission of the Mastrangelo statements was not harmless error. Dhinsa further argues that the admission of such evidence was not harmless under the present circumstances. We disagree.
A violation of a defendant‘s confrontation rights does not, standing alone, require reversal of a judgment of conviction. Rather, the Supreme Court has held that violations of the Confrontation Clause are subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 306-07, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (noting that the harmless error analysis has been applied to a wide range of constitutional errors); Van Arsdall, 475 U.S. at 684, 106 S. Ct. 1431; see also Lilly, 527 U.S. at 143, 119 S. Ct. 1887 (Scalia, J., concurring in part and concurring in the judgment). We have similarly applied a harmless error analysis in evaluating violations of the Confrontation Clause, see, e.g., Moskowitz, 215 F.3d at 270; United States v. Gallego, 191 F.3d 156, 168 (2d Cir. 1999) (“Even were we to conclude that the district court erred by admitting [the] plea allocution into evidence, the record before us makes clear that any such error would have been harmless.“), cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 252 (2000); United States v. Aulicino, 44 F.3d 1102, 1109 (2d Cir. 1995); United States v. Williams, 927 F.2d 95, 99 (2d Cir. 1991), and, specifically, we have applied harmless error analysis where the trial court failed to hold a Mastrangelo hearing. See Miller, 116 F.3d at 669; see also Emery, 186 F.3d at 927. Thus, notwithstanding the requirement that the trial court hold an evidentiary hearing prior to the admission of the challenged witness statements, the failure to do so may constitute harmless error if the evidence presented at trial sufficiently establishes that the defendant was involved in, and intended to procure, the unavailability of the declarants as witnesses.
In the present case, the parties acknowledge that the district court made the requisite finding under Mastrangelo that Dhinsa was responsible for the murders of Manmohan and Satinderjit. The parties also agree that
As an initial matter, Dhinsa cannot credibly maintain that his involvement in organizing and facilitating the murders of Manmohan and Satinderjit does not establish that he “engaged or acquiesced in wrongdoing” within the meaning of
With respect to Manmohan, Dhinsa feared that Manmohan would go to the police regarding Dhinsa‘s involvement in Kulwant‘s disappearance. This fear was well founded in light of Manmohan‘s repeated confrontations with Dhinsa and other members of the Singh Enterprise in which he accused them of being responsible for his brother‘s disappearance. Dodson also testified that Dhinsa ordered Manmohan murdered because he had “seen [Dhinsa] and Gogi shoot somebody, and the police [were] getting close to the guy.” Thus, Dhinsa believed that Manmohan posed a threat to the Singh Enterprise and to Dhinsa and Gogi personally by his cooperation with the police. See, e.g., Houlihan, 92 F.3d at 1280-81; Thai, 29 F.3d at 815 (defendant motivated by declarant‘s cooperation with police).
With respect to Satinderjit, the evidence presented at trial established that Satinderjit was in fact cooperating with the police at the time Dhinsa ordered Dodson to kill him, providing police with information regarding Manmohan‘s murder, Kulwant‘s disappearance and the Citygas pump-rigging scheme. Satinderjit‘s active involvement with the police is evidenced by his presence at the May 1997 raid of the Citygas offices in Brooklyn, New York during which Dhinsa, Gogi and other members of the Singh Enterprise were arrested. Dodson testified that Dhinsa ordered Satinderjit murdered because he was “a witness against his brother.” Dodson also testified that Dhinsa was upset that he was taking too long to murder Satinderjit and ordered Dodson to act quickly since Satinderjit was “supposed to go to see the [g]rand [j]ury.” Powell and Samuels, the other members of the group of hitmen hired by Dhinsa, similarly testified that Dhinsa wanted Satinderjit murdered quickly to prevent him from testifying against Gogi and himself. Dhinsa also made threatening calls to Manmohan warning him to cease his efforts to locate his brother and similar calls to Uberoi, Satinderjit‘s girlfriend, warning her that they would both be shot “if [Satinderjit] did not stop messing around with his case and did not stay out of his business.” Thus, there was sufficient support in the record to establish that Dhinsa murdered Manmohan and Satinderjit because he believed that they both had knowledge concerning his criminal activities, as well as those of other members of the Singh Enterprise, and, therefore, could cooperate in a police investigation targeting Dhinsa and the Singh Enterprise.7 See Thai, 29 F.3d at 815. We also find that the admission of these statements under
B. Testimony of Julie Uberoi
Dhinsa argues that the district court improperly admitted the testimony of Uberoi, Satinderjit‘s girlfriend, regarding threatening telephone calls she received from an individual identifying himself as “Gurmeet Singh.” We find that there was a sufficient basis for the district court to conclude that the telephone calls were adequately authenticated under
Dhinsa objected to the admission of Uberoi‘s testimony, arguing that the telephone calls were not properly authenticated. This prompted the district court to hold a hearing outside the presence of the jury, during which Uberoi testified about the two telephone calls she allegedly received from Dhinsa. In the first call, Uberoi testified that an individual, speaking in a mix of Punjabi and English, identified himself as “Gurmeet Singh” and asked Uberoi if she would convey a message to Satinderjit, whom he referred to as “Ladu.” The caller stated that he would have Satinderjit and Uberoi shot if Satinderjit did not “stay out of his business and not mess around with the case.” Uberoi agreed to relay the message to Satinderjit, and did so later that day. A few days later, Uberoi received a second telephone call from an individual again identifying himself as Gurmeet Singh. The caller inquired about whether Uberoi conveyed his earlier message. Uberoi indicated that she had conveyed the message, but that Satinderjit “didn‘t have much to say about it.” The caller then asked Uberoi if “[she] told [Satinderjit] that he would have us shot if [Satinderjit] didn‘t stop messing around and to stay out of his business.” After Uberoi informed Satinderjit about the second call, he instructed her not to take similar calls in the future.
“A telephone conversation is admissible in evidence if the identity of the speaker is satisfactorily established.” United States v. Albergo, 539 F.2d 860, 863-64 (2d Cir. 1976). “While a mere assertion of identity by a person talking on
Following a hearing during which Uberoi testified, the district court ruled that there was sufficient evidence for a jury to conclude that Dhinsa, or someone acting on his behalf, made the threatening telephone calls to Uberoi. Specifically, the district court concluded that the telephone calls were adequately authenticated based on, inter alia, (1) the fact that the caller identified himself as the defendant; and (2) the need for Dhinsa to identify himself in order to receive the “benefit” of the threat. Because we are not persuaded that the district court abused its discretion in admitting Uberoi‘s testimony regarding the threatening telephone conversations, we reject Dhinsa‘s challenge. See Morrison, 153 F.3d at 56; Khan, 53 F.3d at 516.
C. July 7, 1997 Inventory Search of Dhinsa‘s Car
Dhinsa argues that the district court erred by admitting certain evidence discovered during a search of his car conducted after Dhinsa was arrested in connection with Satinderjit‘s murder. On appeal, Dhinsa asks that we examine the legality of both the warrantless seizure and search of his car, a task we did not undertake in our prior decision, and reverse his convictions for racketeering and mail fraud, the murders of Manmohan and Satinderjit, conspiring to murder Sarvjeet and threatening to murder Balwant. Because we now conclude beyond a reasonable doubt that the jury verdict on these counts would have been the same absent the alleged error, we need not opine on whether the district court erred by admitting the evidence obtained during the July 7, 1997 search of Dhinsa‘s car.8 See, e.g., Pluta, 176 F.3d at 51.
It is beyond cavil that most constitutional errors occurring during trial may be deemed harmless and, thus, not require automatic reversal of a conviction. See Neder, 527 U.S. at 8, 119 S. Ct. 1827; Fulminante, 499 U.S. at 306, 111 S. Ct. 1246. Categorized as “trial errors,” these errors typically arise “during the presentation of the case to the jury,” Fulminante, 499 U.S. at 307, 111 S. Ct. 1246, and are suited for harmless error analysis because such
In analyzing this class of constitutional errors, we must apply the harmless error standard set forth in
1. Murders of Manmohan and Satinderjit
Assuming arguendo that the district court erred in admitting the items discovered during the search of Dhinsa‘s car, we conclude that such error was harmless beyond a reasonable doubt in light of the “direct and overwhelming evidence,” Moskowitz, 215 F.3d at 270, of Dhinsa‘s participation in the murders of Manmohan and Satinderjit. We analyze the evidence presented by the government with respect to these murders separately.
Numerous witnesses testified that Manmohan was actively investigating his brother Kulwant‘s disappearance from a Citygas station on or about July 1995. To that end, Manmohan confronted Gulzar and other members of the Singh Enterprise and planned to confront Gulzar and Dhinsa directly concerning their role in Kulwant‘s disappearance at the time he was murdered. Manmohan‘s attempts to meet with Gulzar were independently corroborated by telephone records of calls made to Gulzar‘s beeper from the gas station where Manmohan worked. Thus, a jury reasonably could infer that Manmohan‘s inquiries posed a threat to Dhinsa, Gulzar and other members of the Singh Enterprise, as well as to the continued operations of the Singh Enterprise.
The strongest evidence of Dhinsa‘s involvement in Manmohan‘s murder came from the testimony of Dodson and Powell, Dhinsa‘s co-conspirators in the murder of Manmohan, and the cellular telephone records that established Dhinsa‘s contact with Dodson and the other hitmen around the time and location of Manmohan‘s murder. Dodson testified that Dhinsa arranged to meet with him near the gas station where Manmohan worked a few days before Manmohan was murdered. During that meeting, Dhinsa instructed Dodson to kill Manmohan because he was cooperating with the police in a murder investigation involving his brother Gogi. After identifying Manmohan as one of the attendants working at the gas station where they met, Dhinsa told Dodson to check with Gulzar to confirm the victim‘s identity and directed Dodson to go to a nearby Citygas sta-
Powell‘s testimony and cellular telephone and pager records corroborate Dodson‘s version of the events surrounding Manmohan‘s murder. The telephone records establish that Dodson made numerous attempts to contact Dhinsa and Gulzar during the period March 14 through March 16, 1997, the day Manmohan was murdered. These records also indicate that Dodson called Dhinsa and Gulzar within hours after Manmohan was murdered, presumably to inform them of his success. The government also presented evidence that the vehicle driven by Dodson during the murder was registered to a company owned by Dhinsa, and that Dhinsa arranged to have the truck repainted and re-registered following Manmohan‘s murder.
The evidence of Dhinsa‘s involvement in Satinderjit‘s murder is equally overwhelming. Numerous witnesses testified that Satinderjit was actively cooperating with police in an investigation of Dhinsa and the Singh Enterprise at the time he was murdered. Uberoi, Satinderjit‘s girlfriend, testified that Dhinsa contacted her twice, threatening to have her and Satinderjit shot if Satinderjit continued to assist the police in its investigation of Dhinsa. Dodson testified that Dhinsa ordered Satinderjit murdered shortly after the July 1997 police raid of his Citygas offices in Brooklyn, New York. Dodson further testified that Dhinsa drove him to Satinderjit‘s neighborhood and identified his apartment. A short time later, Dhinsa provided Dodson with a photograph of Satinderjit and a printout of the registration and license plate for Satinderjit‘s car. An employee of the insurance company testified that she ran the check on Satinderjit‘s car at the request of Antonio Galvan, an employee of Citygas.
Similar to Manmohan‘s murder, cellular telephone records corroborate Dodson‘s version of Satinderjit‘s murder. These records show that Dhinsa made in excess of thirty telephone calls to Dodson in the days and weeks before Satinderjit was murdered and establish a sequence of calls between Dhinsa, Samuels and Powell on June 18, 1997, the day Satinderjit was murdered. The telephone records confirm Dhinsa‘s presence in calling areas near the location where Satinderjit was murdered. The government also presented testimony from Samuels and Powell, who corroborated Dodson‘s version of Satinderjit‘s murder, and from Santokh, an employee at a Citygas station owned by Dhinsa, who testified that Dhinsa directed him to change the license plate on the van used by Dodson during Satinderjit‘s murder.
Viewing the trial record as a whole, we conclude that the items recovered during the search of Dhinsa‘s car relating to the murders of Manmohan and Satinderjit were at most only cumulative and corroborative evidence of Dhinsa‘s involvement in these murders. The government presented extensive evidence, including testimony from Dodson, Samuels and Powell, Dhinsa‘s co-conspirators in the murders, cellular telephone and site records and other documentary evidence, that “provid[ed] ample independent basis for [Dhinsa‘s] convictions.” Gallego, 191 F.3d at 169. The items obtained during the search that related to these murders—a piece of paper bearing Dodson‘s name and a piece of paper bearing the name of the detective that arrested Dodson and the voucher number of the car Dodson was driving at the time of his arrest—were only a minor part of the overwhelming evidence presented by the government establishing Dhinsa‘s guilt for these murders. See Neder, 527 U.S. at 17, 119 S. Ct. 1827; Moskowitz, 215 F.3d at 270; United States v. Lyles, 593 F.2d 182, 196 (2d Cir. 1979); cf. Colombo, 909 F.2d at 714 (evidence of defendant‘s guilt passed the sufficiency of the evidence test by a “hair‘s breadth“) (quotation marks omitted). Further, the government did not “continuously and repeatedly impress[ ] [upon] the jury” that Dhinsa should be found guilty on the basis of the items obtained during the search of Dhinsa‘s car. Chapman, 386 U.S. at 25, 26, 87 S. Ct. 824 (holding that a “machine-gun repetition of a denial of constitutional rights” was not harmless); see also Lyles, 593 F.2d at 196. Rather, the government argued that the jury consider that evidence as corroboration of the testimony of Dhinsa‘s co-conspirators and the cellular telephone records that clearly established Dhinsa‘s involvement in the murders of Manmohan and Satinderjit. Thus, even if we were to view the admission of the contents of the July 7 search as erroneous, it is clear beyond a reasonable doubt that “the outcome would not have been altered.” United States v. Joyner, 201 F.3d 61, 76 (2d Cir. 2000).10
2. Plot to Murder Sarvjeet
The decision to murder Sarvjeet was the result of Sarvjeet‘s cooperation with the police in an investigation of a homicide allegedly committed by Gogi in 1991. A few weeks after Gogi was arrested at Dhinsa‘s Citygas offices in Brooklyn based on Sarvjeet‘s identification, Gurdial, Dhinsa‘s cousin and a Citygas employee, rented an apartment directly across from where Sarvjeet lived. Notably, Dhinsa was listed as the guarantor on the lease for that apartment. Numerous witnesses, including the person living in Sarvjeet‘s home, testified that Dhinsa was actively looking for Sarvjeet around that same time. Further, Samuels and Powell testified that Dhinsa instructed them to kill Sarvjeet, taking them to Sarvjeet‘s home and directing their escape route following the murder. Samuels and Powell also testified as to the manner in which Dhinsa instructed them to carry out Sarvjeet‘s murder.
Even excluding the piece of paper bearing Sarvjeet‘s address that was discovered during the search of Dhinsa‘s car, the evidence of Dhinsa‘s role in the plot to murder Sarvjeet was overwhelming. Similar to the items relating to the murders of Manmohan and Satinderjit, the piece of paper with Sarvjeet‘s address merely corroborated the testimony of Samuels and Powell, Dhinsa‘s co-conspirators in that murder plot, and numerous witnesses that testified regarding Dhinsa‘s efforts to locate Sarvjeet following Gogi‘s arrest in May 1997. Dhinsa‘s status as the guarantor on the lease for the apartment across from where Sarvjeet lived that was presumably used to monitor Sarvjeet‘s movements is further evidence of his involvement in the plot to murder Sarvjeet. Contrary to Dhinsa‘s description of the paper bearing Sarvjeet‘s address as a “smoking gun,” a careful reading of the record reveals that the piece of paper “constituted but a small part of the government‘s proof.” United States v. Langford, 990 F.2d 65, 70 (2d Cir. 1993); see also United States v. Nivica, 887 F.2d 1110, 1115 (1st Cir. 1989). Given the strength of the government‘s proof on Dhinsa‘s involvement in the plot to kill Sarvjeet, we conclude that any error resulting from the district court‘s admission of the evidence relating to that crime obtained during the search of Dhinsa‘s car amounted, at most, to harmless error.
3. Pump-Rigging Scheme
The evidence presented by the government in connection with Dhinsa‘s pump-rigging scheme and the bribes made to corrupt DCA inspector Woods was equally overwhelming. Dozens of former Citygas employees and gasoline attendants testified as to the existence of the pump-rigging device and how it operated. In
DCA inspector Woods testified that he regularly received payments from Dhinsa in exchange for information regarding DCA investigations involving Citygas and future field visits scheduled at Citygas stations. Dhinsa‘s connection to Woods was established independently through bank records and records maintained at the Citygas offices in Brooklyn, New York showing that Dhinsa paid Woods’ cellular telephone bills. The government also presented an audio tape of a conversation between Dhinsa and Gulzar during which they discussed payment of Woods’ cellular telephone bill and a videotape of Antonio Galvan making a payment to Woods.
The evidence obtained from the search of Dhinsa‘s car related to the pump-rigging scheme and Dhinsa‘s arrangement with Woods consisted principally of DCA seals and stickers, a cellular telephone bill addressed to Woods and various papers bearing Woods’ name. In light of the extensive evidence of the pump-rigging scheme and the bribes made by Dhinsa to Woods, we need not pause in concluding that any possible error in failing to suppress the challenged evidence was harmless as a matter of law.
The last issue that we must address concerns statements made by the district court in connection with its ruling on Dhinsa‘s suppression motion. Specifically, Dhinsa points to the district court‘s statement that a denial of his motion to suppress the fruits of the July 7, 1997 search of his car would not constitute harmless error.
We are unprepared to say that the government‘s attempts before the district court and this Court to introduce the items obtained during the search of Dhinsa‘s car leads to the conclusion that the government placed a “heavy reliance” on that evidence. As a matter of course, most suppression motions are decided early on during a criminal proceeding, before the parties have had the opportunity to present their case before the jury. Accordingly, assessments made at that time regarding the importance of evidence that is the subject of a suppression motion may vary when evaluated against the trial record as a whole. See United States v. Annigoni, 96 F.3d 1132, 1144 (9th Cir. 1996) (en banc) (noting that in conducting harmless error analysis, a court has the “entire trial record as a frame of reference against which to compare the erroneously admitted [evidence]“). That conclusion is reinforced in cases like the present where the trial record contains voluminous testimony and exhibits. On a similar note, surely the government‘s decision to appeal an adverse suppression ruling, which was contrary to the district court‘s express findings of fact and conclusions of law and made before the government presented its case-in-chief, does not automatically lead to the conclusion that admission of the evidence subject to the suppression order is not harmless as a matter of law. A contrary result would hamstring the government‘s ability to appeal an adverse suppression ruling made early on during the trial by forcing the government to forego such an appeal in order to avoid a later determination that the evidence subject to the suppression ruling was essential to its case and, thus, its admission could not be harmless.
To the extent the district court commented on the significance of the evidence
III. Amendment of the Indictment
Dhinsa next argues that the district court impermissibly allowed the government to amend the indictment near the end of the trial to substitute federal kidnapping charges under the Lindbergh law,
The indictment, as originally filed, charged Dhinsa with kidnapping and conspiring to kidnap Ghuman in aid of racketeering under
THE COURT: Again, but there is a Federal kidnapping statute.
MR. SHARGEL: —it violates the Lindbergh law.
AUSA CAMPBELL: We didn‘t charge the ... Federal kidnapping statute.
THE COURT: Why?
AUSA CAMPBELL: Chose not.
THE COURT: I mean, do we—it would have been too easy. I don‘t understand. Why isn‘t the Federal statute applicable here?
MR. SHARGEL: The Federal kidnapping statute?
THE COURT: Yes.
MR. SHARGEL: Because that‘s not the way it was charged. The underlying kidnapping is a State kidnapping.
The government did not move to amend the indictment at that time. Following a voir dire of Ghuman by the parties regarding Ghuman‘s abandonment of his interest in the restaurant, the district court ruled that the government could introduce evidence regarding Ghuman‘s fear of reporting the incident and that the “interstate commerce issue” could go to the jury.
The issue of amending the indictment arose a second time on the following day, absent any motion by the government seeking to amend the indictment:
THE COURT: The Grand Jury that returned the superseding indictment is still sitting?
AUSA CAMPBELL: Yes.
THE COURT: Then it may not be too late to fix this kidnapping count. It only needs one additional element to make out a federal kidnapping violation. . . . I don‘t know why you didn‘t indict it. My recollection is—I haven‘t looked at the statute in a long time—it‘s not just for ransom.
MR. SHARGEL: That would be a novel approach.
. . . .
THE COURT: I can‘t think of any reason why an indictment can‘t be amended, particularly, since the gist of what happened here is charged. I mean it‘s only a question of, you know, of revising what has essentially been charged and proven. So, you should think about it. I don‘t have to decide that now but I just think this charge, as it exists now, is sort of tenuous.
MR. SHARGEL: I don‘t want my silence to suggest that I think this is a good idea or [a] constitutional process.
. . . .
THE COURT: You‘ve had—the substance of this crime has been charged. . . . I‘m not suggesting that in the middle of trial, they add a count that‘s totally out of the blue. You look at this count, the only thing that‘s really missing is that they moved him . . . across state lines.
. . . .
MR. SHARGEL: One [other] problem might be the Court‘s sua sponte suggestion—
THE COURT: I don‘t even know if the guys in his office have the courage to do it.
AUSA CAMPBELL: I don‘t either.
. . . .
MR. SHARGEL: I‘m entitled, I think, to go to trial on the indictment that the Grand Jury voted . . . to put the Government through the test of proving this by sufficient evidence and meet or survive a Rule 29 motion and by going back to the Grand Jury, I‘m deprived of that process to which I am due.
A few days later, after the government stated that it “[c]ouldn‘t find a man of courage” to amend the indictment, the district court again raised the issue of amending the indictment, and Dhinsa preserved his right to make a Rule 29 motion
At the close of that day‘s proceedings, Dhinsa raised specific arguments in connection with his Rule 29 motion. In particular, Dhinsa argued that the government failed to establish that the Ghuman kidnapping charges were committed in furtherance of the racketeering enterprise. At that time, the issue of amending the indictment again arose:
THE COURT: You‘re going to leave [the indictment] the way it is, I take it?
AUSA CAMPBELL: We need to take a look at the case that you gave us.
. . . .
THE COURT: Well, if they amend it there‘s no problem at all.
MR. SHARGEL: Well, you know already that I objected.
THE COURT: I know but the objection has no merit.
Recognizing that the government‘s proof on this point was “very tenuous,” the district court again reserved decision on the matter. The following day, the district court inquired as to what the government intended to do about the kidnapping charges related to Ghuman. The government stated that it would decide the matter by the next day, and asked defense counsel to articulate the prejudice that Dhinsa potentially would suffer as a result of an amendment. The following exchange, similar to the prior exchanges on this issue, ensued between the district court and the parties:
MR. SHARGEL: My point is very simple, that this does not accord with established criminal procedure. . . . [T]here is no authority or basis to amend the indictment by a Grand Jury of an open case.
. . . .
THE COURT: [D]id you notice you didn‘t hear any prejudice?
AUSA CAMPBELL: I was listening.
MR. SHARGEL: I can‘t deal with that because if the indictment had been returned in a timely and proper fashion I would have had the opportunity to see whether or not there were motions addressed to that charge and to have to face new charges—
THE COURT: Well, you can make all of those motions afterwards.
MR. SHARGEL: The difference here is that . . . unlike [in United States v. McGrath, 558 F.2d 1102 (2d Cir. 1977)], in this case [there is] the introduction of a new charge containing different elements—
THE COURT: It‘s not a new charge. One element is different.
. . . .
MR. SHARGEL: [T]he [McGrath] case talks about a very, very slight change to the name of the entity [listed in the indictment].
. . . .
If the Government is permitted to amend an indictment in the middle of a trial that would render [Fed. R. Crim. P.] 12 [a nullity] because that would deprive the defendant of his opportunity to make arguments prior to trial.
The district court rejected Dhinsa‘s arguments, noting that he failed to articulate the prejudice that would result from such an amendment. The following day the government informed the district court that it would request that the Grand Jury amend the indictment. On February 18, 1999, the following day, the government formally amended the indictment to charge kidnapping and conspiracy to kidnap under the federal kidnapping statute,
It is well settled that “[u]nder the Fifth Amendment, a criminal defendant has the right to be tried only on the charges contained in the indictment returned by a grand jury.” Miller, 116 F.3d at 669 (quotation marks omitted); see also Russell v. United States, 369 U.S. 749, 770, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962) (“[A]n indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form.“); Stirone v. United States, 361 U.S. 212, 218, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960) (“The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.“) (footnote omitted); McGrath, 558 F.2d at 1105 n. 3 (“The principal justification for barring amendment by the court or prosecutor is the possibility that the Grand Jury might have voted no bill on the amended facts. When the amendment is made by the Grand Jury, this danger does not exist.“). “The essential purpose of an indictment is to give the defendant notice of the charge so that he can defend or plead his case adequately.” United States v. Neill, 166 F.3d 943, 947 (9th Cir. 1999) (internal quotation marks omitted); cf. United States v. Mollica, 849 F.2d 723, 728-29 (2d Cir. 1988) (discussing three types of variations between a Grand Jury indictment and the evidence presented at trial). In reviewing Dhinsa‘s challenge, we are mindful that cases involving the possible imposition of the death penalty necessitate “special care and deliberation in decisions that may lead to the imposition of that sanction.” Thompson v. Oklahoma, 487 U.S. 815, 856, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988) (O‘Connor, J., concurring in judgment); see also O‘Dell v. Netherland, 521 U.S. 151, 171 n. 3, 117 S. Ct. 1969, 138 L. Ed. 2d 351 (1997) (noting that “the unique character of the death penalty mandates special scrutiny” of trial and sentencing procedures in capital cases) (Stevens, J., joined by Souter, Ginsburg, Breyer, JJ., dissenting); Whitmore v. Arkansas, 495 U.S. 149, 167, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990) (“It is by now axiomatic . . . that the unique, irrevocable nature of the death penalty necessitates safeguards not required for other punishments.“) (Marshall, J., joined by Brennan, J., dissenting). The decision to grant a motion to amend the indictment is reviewed de novo. See Neill, 166 F.3d at 947.
The requirement that the Grand Jury amend the indictment is not absolute; the district court or the prosecutor may make “ministerial change[s]” to the indictment, such as to correct a misnomer or typographical errors. McGrath, 558 F.2d at 1105 (collecting cases); see also
Our decision in McGrath, on which the district court placed significant reliance in permitting the government to amend the indictment, is distinguishable from the instant case. In McGrath, the defendant originally was charged “with extorting payments in his capacity as an employee of the ‘Long Island State Parks and Recre-
On appeal, the defendant argued that the Grand Jury was not authorized to correct a misnomer in the indictment. We rejected the defendant‘s challenge on a number of grounds. First, we held that the change to the indictment was “ministerial,” which could “certainly be made by the Grand Jury, as was done here.” Id. at 1105. Second, we held that the defendant “suffered no prejudice from the misnomer” because the original indictment “fully informed [the defendant] of the crime charged and the need to prepare a defense.” Id. The timing of the amendment was also critical in our decision. Specifically, because the amendment was made after both sides made their opening statements but before any witnesses were called, we held that “none of [the defendant‘s] rights [were] affected by the change, and the burden of his defense was not increased.” Id. Finally, we held that the defendant‘s objection to the form of the indictment was untimely under
We find the facts of McGrath distinguishable from the present case on a number of grounds and hold, under the narrow circumstances in this case, and the requirement that “capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness,” Strickland v. Washington, 466 U.S. 668, 704, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (Brennan, J., concurring in part and dissenting in part), that the amendment to the indictment potentially prejudiced Dhinsa‘s defense with respect to the kidnapping counts related to Ghuman, and, thus, was improper.
We emphasize that our holding is limited by the highly unusual circumstances of the case, the first of which is the timing of the amendment. Because the amendment occurred late in the trial, after the government rested its case-in-chief, we cannot, and should not, speculate whether Dhinsa would have chosen a different trial strategy had he been aware that the government intended to charge him under the federal kidnapping statute rather than the VICAR statute. See, e.g., United States v. Wozniak, 126 F.3d 105, 110 (2d Cir. 1997) (vacating drug related convictions where government introduced evidence of drugs other than those alleged in the indictment and trial court instructed the jury that it could convict regardless of the controlled substance involved). By amending the indictment after all of the government‘s witnesses testified—and Dhinsa‘s opportunity to cross-examine them had long passed—Dhinsa was unable to challenge the testimony of the witnesses as it related to the interstate transportation aspect of Ghuman‘s kidnapping. Thus, distinct from McGrath where the amendment occurred early in the trial, here, the timing of the amendment potentially increased the burden on Dhinsa‘s defense with respect to the amended kidnapping charges. See McGrath, 558 F.2d at 1105. Moreover, here, the amendment could not be considered “ministerial” since it modified the federal statute under which Dhinsa was charged in connection with Ghuman‘s kidnapping. See id. (change in official title of defendant‘s employer was ministerial); see also United States v. Delano, 55 F.3d 720, 729-30 (2d Cir. 1995) (change from “City of Buffalo Parks Department” to the “City of Buffalo” did not materially alter the indictment). It does not follow, however, that an amendment to the indictment returned by the Grand Jury at various stages of the trial is per se invalid. See, e.g., McGrath, at 1105-06 (amendment by Grand Jury valid after jury was empaneled and both sides made their opening statements). We confine our holding to the specific facts and procedural posture of this case (i.e., capital proceedings).
We also take note of the context in which the government contends Dhinsa conceded the interstate element of the kidnapping. Specifically, Dhinsa‘s statement that he did not intend to challenge the accuracy of Ghuman‘s version of the kidnapping was made in connection with the government‘s attempt to introduce statements made by Ghuman following the kidnapping to establish his state of mind and, specifically, why Ghuman did not report the kidnapping to the police. Thus, Dhinsa did not dispute the interstate element during trial because he did not have to; the indictment charged that the kidnapping of Ghuman was in aid of the racketeering enterprise and, at that time, transportation in interstate commerce was not an element of the charged offense. Again, we will not speculate as to whether he would have made a similar concession had the government charged him under the federal kidnapping statute at that time.
Although there was considerable discussion before the district court on this issue, much of it came at the district court‘s own prompting. Indeed, the government fervently defended its proof supporting the VICAR kidnapping charges related to Ghuman and sought the amended indictment only after the district court questioned, on numerous occasions, whether the kidnapping was sufficiently related to the alleged racketeering enterprise to support a conviction under
Finally, because the amendment occurred after Dhinsa arguably had conceded an element of the federal kidnapping offense—that he transported Ghuman across state lines—we reject the government‘s contention that the amendment was harmless. See
Our vacatur of Dhinsa‘s convictions on counts 23 and 24 gives rise to a second inquiry: whether Dhinsa‘s substantive RICO and RICO conspiracy convictions may stand notwithstanding that the kidnapping counts involving Ghuman are no longer valid predicate acts supporting the RICO convictions.
The kidnapping counts involving Ghuman were charged as predicate acts under RICO and found to be such by the jury.11
“In some circumstances, the jury‘s findings of two predicate acts, lawfully constituting a RICO pattern, and of the other elements of a RICO offense, will permit affirmance of a RICO conviction notwithstanding the invalidation of other predicate acts.” United States v. Biaggi, 909 F.2+ 662, 693 (2d Cir. 1990); see also United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir. 1984). In the present case, excluding Racketeering Act 9, the jury‘s finding of four other legally sufficient predicate acts, “which suffer no defects, are an ample basis for [Dhinsa‘s] convictions on the RICO counts.” United States v. Paccione, 949 F.2d 1183, 1198 (2d Cir. 1991) (affirming RICO convictions after invalidating one predicate act where the jury found eight additional predicate acts); see also United States v. Coonan, 938 F.2d 1553, 1565 (2d Cir. 1991) (affirming RICO convictions after invalidating one predicate act where the jury found six additional predicate acts). Further, the kidnapping counts involving Ghuman did not “dominate[] this prosecution.” Biaggi, 909 F.2d at 693. The government‘s case centered around the vast pump-rigging scheme, which generated millions of dollars and supported the various crimes of violence committed by members of the Singh Enterprise, and the murders of Manmohan and Satinderjit. As such, the government‘s proof regarding Dhinsa‘s involvement in Ghuman‘s kidnapping “could not rationally have been essential to the RICO conviction[s].” Brennan, 867 F.2d at 115; cf. Delano, 55 F.3d at 728-29 (reversing RICO convictions where the seventeen invalidated predicate acts of larceny by extortion “represented the bulk of th[e] RICO prosecution, eclipsing all else.“); Biaggi, 909 F.2d at 693 (vacatur of federal bribery offenses required reversal of RICO convictions, notwithstanding the jury‘s finding of two other predicate acts of mail fraud). Indeed, Dhinsa concedes that the kidnapping of Ghuman “had little or nothing to do with the RICO enterprise.” Under these circumstances, we conclude that Dhinsa‘s substantive RICO and RICO conspiracy convictions may stand.
IV. Sufficiency of the Evidence Claims
A. Position Related Motivation Requirement Under the VICAR Statute
Dhinsa was convicted by the jury of six counts under the VICAR statute,
In defining the scope of conduct satisfying the position-related motivation requirement under section 1959, we do not write on a blank slate. Our journey begins with Concepcion, where we broadly interpreted the motive requirement:
With respect to the motive element, the legislative history contains no indication that Congress meant to require proof that self-promotion was the defendant‘s only or primary concern. Rather, the history states that this phrase was included as a means of proscribing murder and other violent crimes committed as an integral aspect of membership in such enterprises. Given this explanation and given that Congress intended RICO, which § 1959 complements, to be liberally construed to effectuate its remedial purposes, we reject any suggestion that the “for the purpose of” element requires the government to prove that maintaining or increasing position in the RICO enterprise was the defendant‘s sole or principal motive.
983 F.2d at 381 (internal quotations marks and citations omitted). In Concepcion, and cases following, we consistently have held that the motive requirement is satisfied if “the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership.” Id.; see also United States v. Diaz, 176 F.3d 52, 94-95 (2d Cir. 1999); United States v. Polanco, 145 F.3d 536, 540 (2d Cir. 1998), cert. denied, 525 U.S. 1071, 119 S. Ct. 803, 142 L. Ed. 2d 664 (1999); Thai, 29 F.3d at 817 (holding that the government must prove that “the defendant‘s general purpose in committing the crime of violence was to maintain or increase his position in the enterprise“); Locascio, 6 F.3d at 940. Accordingly, we have affirmed convictions under section 1959(a) for violent crimes committed or sanctioned by high ranking leaders of the enterprise for the purpose of protecting the enterprise‘s operations and furthering its objectives or where the defendant, as a leader within the enterprise, was expected to act based on the threat posed to the enterprise and that failure to do so would have undermined his position within that enterprise. See Diaz, 176 F.3d at 95-96 (defendant sanctioned murder because “it”
Viewing the evidence in the light most favorable to the government, a jury could infer beyond a reasonable doubt that Dhinsa committed the violent crimes charged under section 1959(a) to protect the operations of the Singh Enterprise and to thwart any potential criminal prosecution arising from crimes carried out in furtherance of the enterprise‘s goals and Dhinsa‘s membership in that enterprise. The evidence sufficiently demonstrated that Dhinsa conspired to murder and murdered Manmohan and Satinderjit and conspired to murder Sarvjeet because he suspected that they were cooperating with the police and, therefore, posed a potential threat to the enterprise‘s operations. See, e.g., Diaz, 176 F.3d at 95. Similarly, Dhinsa threatened to murder Balwant after he refused to help Dhinsa in locating Sarvjeet. The jury also could have reasonably believed that Dhinsa‘s actions were motivated by an expectation that, as the leader of the Singh Enterprise, he would take action aimed at protecting the enterprise‘s operations and that a “failure to do so would have undermined his leadership position” within the Singh Enterprise. Id. at 96; see also United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996) (“[R]etaliatory action in behalf of fellow enterprise members was critical to the maintenance of one‘s position in the enterprise.“); Thai, 29 F.3d at 817; Concepcion, 983 F.2d at 382-83. These crimes all shared a common objective: to eliminate threats to the Singh Enterprise and, thus, maintain and further Dhinsa‘s leadership position within that enterprise. Therefore, we find there was sufficient evidence from which the jury could have concluded beyond a reasonable doubt that Dhinsa participated in these violent crimes to maintain or increase his position in the Singh Enterprise and to further its pump-rigging operations.
B. Balwant Murder Threat
Dhinsa next challenges his conviction on count 11 for threatening to commit murder in violation of
The threat against Balwant arose out of Dhinsa‘s efforts to locate Sarvjeet, who he suspected was cooperating with the police. During Satinderjit‘s funeral service, Parmar, an associate of Dhinsa‘s, approached Balwant to request his assistance in locating Sarvjeet. Balwant apparently was a
The gravamen of Dhinsa‘s challenge is that, because Balwant never gave in to Dhinsa‘s demand that he help locate Sarvjeet, the government failed to meet its burden of establishing that Balwant was compelled or induced to engage in conduct which he had a legal right to abstain from engaging in. See
Both parties cite the decision of the Third Appellate Department of New York in People v. Wager, 199 A.D.2d 642, 604 N.Y.S.2d 1008 (3d Dep‘t 1993), appeal denied, 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502 (1994) (table), as support for their respective positions. In Wager, the defendant grabbed the victim and ordered that she get into her car. See id. at 642, 604 N.Y.S.2d at 1009. As the parties began to struggle, a second car pulled into the parking lot near the defendant and the victim, causing the defendant to release the victim. See id. The defendant was charged with, and convicted of, inter alia, coercion in the first degree. See id. In overturning that conviction, the Third Department held that the victim‘s failure to get into the defendant‘s car negated a finding that she was compelled to engage in conduct which she had a right to abstain from engaging in as required under the statute. See id. at 642-43, 604 N.Y.S.2d at 1009. The Third Department held, however, that the defendant‘s conduct met the statutory requirements of attempted coercion in the first degree and, thus, modified the judgment accordingly and remanded the matter for resentencing. See id. at 643, 604 N.Y.S.2d at 1009 (citing
Because Dhinsa‘s challenge involves an interpretation of New York state criminal law, the decision in Wager interpreting
Recognizing the possible infirmity in the jury‘s conviction for coercion in the first degree, the government argues that, under Wager, there is sufficient evidence to sustain a conviction for attempted coercion in the first degree, which it contends is a crime of violence under New York state law sufficient to sustain a conviction under
Under
If the jury finds the defendant guilty of the greater offense, the trial court may “enter a judgment of conviction on a lesser-included offense when it finds that an element exclusive to the greater offense is not supported by evidence sufficient to sustain the jury‘s finding of guilt on the greater offense.” Government of the Virgin Islands v. Josiah, 641 F.2d 1103, 1108 (3d Cir. 1981); see also LoRusso, 695 F.2d at 52. Similarly, a reviewing court may vacate the conviction and sentence for the greater offense and enter a judgment of conviction on the lesser offense (or, in the alternative, remand the matter to the trial court with instructions to enter a judgment of conviction on the lesser offense) “[w]hen the evidence is insufficient to support the greater offense, but sufficient to support a conviction on the lesser-included offense.” Josiah, 641 F.2d at 1108; see also Rutledge v. United States, 517 U.S. 292, 306, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996); United States v. Dickinson, 706 F.2d 88, 93 (2d Cir. 1983); United States v. Lamartina, 584 F.2d 764, 767 (6th Cir. 1978) (per curiam); United States v. Swiderski, 548 F.2d 445, 452 (2d Cir. 1977). A reviewing court may exercise its authority in this
We begin with the principle that, “[u]nder
Here, however, the district court never instructed the jury on the lesser crime of attempted coercion in the first degree. The government does not dispute that point. Indeed, the government does not directly address Dhinsa‘s contention that the jury must be instructed on the lesser offense as a prerequisite to any modification in a defendant‘s conviction and sentence. Thus, consistent with precedent, and the decisions of our sister circuits that have addressed the issue under similar (although not exact) circumstances, we cannot affirm Dhinsa‘s conviction on count 11 based on the lesser offense of attempted coercion in the first degree because the jury was not instructed on that offense.
The government‘s reliance on Wager to support its position that we may affirm Dhinsa‘s conviction based on the lesser offense of attempted coercion in the first degree is misplaced. In Wager, the Third Department of the Appellate Division reduced the defendant‘s conviction to attempted coercion in the first degree pursuant to the “unique factual review power” available to the New York state appellate courts. People v. Bleakley, 69 N.Y.2d 490, 494, 515 N.Y.S.2d 761, 762, 508 N.E.2d 672, 674 (1987); see also
The government‘s argument that
Accordingly, we vacate the judgment of conviction and the sentence on count 11. Because we vacate Dhinsa‘s conviction on count 11 based on the district court‘s failure to instruct the jury on the lesser predicate offense of attempted coercion in the first degree, we express no view on the issue of whether that offense constitutes a “crime of violence against [an] individual” under the VICAR statute.
C. Felon-In-Possession of a Firearm
Finally, Dhinsa challenges the sufficiency of the evidence supporting his conviction for possession of weapons as a convicted felon under
To sustain a conviction under
Viewing the totality of the evidence presented to the jury in the light most favorable to the government, we conclude that there was sufficient evidence for a reasonable juror to conclude beyond a reasonable doubt that Dhinsa constructively possessed the firearms seized from the Citygas warehouse in Brooklyn, New York. First, Dodson testified that he sold Dhinsa a gun, and arranged for Dhinsa to purchase additional weapons from one of his friends. Second, Dhinsa regularly supplied Dodson and others with guns that were used in connection with the enterprise‘s criminal activities. Specifically, Dodson testified that Dhinsa instructed him to “pick up th[e] gun from [the] Guy Brewer [station]” that would later be used in Manmohan‘s murder. Following the murder, Dodson complied with Dhinsa‘s request that he return the gun to him. Dodson also testified that Dhinsa selected the gun to be used in connection with Satinderjit‘s murder, and, in similar fashion, the gun was returned to Dhinsa upon his request following the murder. Third, Dhinsa does not dispute that he exercised control or dominion over the Citygas offices and warehouse in Brooklyn, New York where the firearms were found. See, e.g., Layne, 192 F.3d at 572; United States v. De Leon, 170 F.3d 494, 497 (5th Cir. 1999), cert. denied, 528 U.S. 863, 120 S. Ct. 156, 145 L. Ed. 2d 133 (1999); United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973). This factor, coupled with Dodson‘s testimony that Dhinsa directed him to a specific Citygas station where he could pick up the gun to be used in the murders of Manmohan and Satinderjit, could reasonably lead the jury to infer that Dhinsa exercised similar control over firearms located at other Citygas facilities. Dhinsa‘s position as the sole leader of the Singh Enterprise reinforces this point. See, e.g., Wight, 968 F.2d at 1398. The fact that other individuals had access to the warehouse and van does not negate a finding that Dhinsa had the “power and the intention at a given time to exercise dominion and control over [these firearms], either directly or through others.” United States v. Pelusio, 725 F.2d 161, 167 (2d Cir. 1983) (internal quotation marks omitted); see also Kitchen, 57 F.3d at 521. Fourth, the armored Citygas van in which the guns were found was regularly used to collect receipts from the various Citygas stations. From this fact, the jury could reasonably infer that Dhinsa was aware that the occupants of the van, who typically wore bulletproof vests, were armed during their pickups. This conclusion is bolstered by the armored van‘s being parked outside Dhinsa‘s office daily. Moreover, in light of Dhinsa‘s specific instructions to Dodson regarding the firearms he used to murder Manmohan and Satinderjit, the jury could infer that Dhinsa similarly instructed the individuals in the van as to which weapons they should carry during their pickups. Thus, viewing the evidence in the aggregate, the jury could reasonably find constructive possession beyond a reasonable doubt. Accordingly, we affirm Dhinsa‘s conviction under
CONCLUSION
We have conducted a thorough review of Dhinsa‘s remaining arguments on appeal and find no basis for reversal in any of them. For the foregoing reasons, we affirm the district court‘s judgment of conviction and sentence on all counts, except counts 11, 23 and 24. We vacate the judg-
CALABRESI, Circuit Judge, concurring:
I join in the Opinion of the Court in all particulars except as to Part IV(B) of the Discussion section (concerning Dhinsa‘s challenge to his conviction on count 11 for threatening to murder Balwant in violation of
The VICAR statute can indeed be read as the majority reads it. It could also be read, however, to make it a federal crime to “attempt[ ] or conspire[ ],” in the relevant situation, to “murder[ ], kidnap[ ], maim[ ], assault[ ] with a dangerous weapon, commit[ ] assault resulting in serious bodily injury, or threaten[ ] to commit a crime of violence against any individual in violation of the laws of any State or the United States.”