United States v. Lee

requirements for removal of conditions on 1186a(e)(2)(B). §

status. 8 U.S.C.

IV

Finally, Severino the IJ

erred when permitted government, he

during the immigration March 2006 hear-

ing, to amend the Notice to Appear to

allege that permanent his conditional resi-

dent status had been terminated on Febru-

ary 2000. Severino failed to raise this BIA,

claim before the and we therefore jurisdiction

lack to consider it. 8 U.S.C. 1252(d)(1).

CONCLUSION reasons, foregoing

For the deny we Sev- petition review,

erino’s except

degree jurisdiction lack we over his claims,

unexhausted respect which

dismiss. America,

UNITED STATES of

Appellee, LEE, Larry Williams,

Ibn Defendants-

Appellants. (L),

Docket Nos. 05-1684-cr (Con).

05-6851-cr

United States Court of Appeals,

Second Circuit.

Argued: Dec. 2007.

Decided: Dec.

HAIGHT, Judge: District appeals Defendant Ibn Lee from a judg- ment of conviction and sentence entered the United States District Court for the (Alvin Southern District of New York K. Hellerstein, Judge). Lee was convicted of conspiracy murder for hire in violation of § being U.S.C. 1958 and a felon in possession of a firearm in violation of 18 § 922(g)(1), and U.S.C. sentenced to a term of Larry 240 months. Defendant appeals judgment Williams from a of con- court, viction the same having after been convicted of murder for hire conspir- acy in violation of 18 U.S.C. sentenced to a term of 120 months. appeal, argue On Lee and Williams the district court erred violation of the Sixth Amendment’s Confrontation Clause by admitting a recounting detective’s of a Clarke, statement made Maurice alleged participant in the murder for hire conspiracy who testify did not himself at trial, requires this error conspiracy murder for hire convictions to be vacated. The Government concedes Moore, Julian J. Assistant United States that the admission of the Clarke statement (Michael Garcia, Attorney J. United States violated the Confrontation Clause under Attorney for the Southern District of New Washington, Crawford York, Kolodner, Jonathan S. Assistant (2004), S.Ct. 158 L.Ed.2d 177 which counsel, Attorney, United States on the trial, subsequent was decided to the but brief), York, NY, Appellee. New for argues that such admission was harmless error in this case. Defendants further Alfieri, Plains, NY, Katherine White for contend that the legally evidence was in- Defendant-Appellant Lee. Ibn support sufficient to the murder for hire Heit, York, NY, Julia Pamela New for conspiracy convictions. Lee raises addi- Defendanb-Appellant Larry Williams. tional challenges jury selection, relating to

the trial process, and ineffective assistance of counsel. STRAUB, HALL, Before: Circuit Judges, HAIGHT,* Judge. District We hold that the district court’s errone-

ous admission of the Clarke statement was Judge part concurs in STRAUB beyond doubt, not harmless a reasonable part separate opinion. dissents in in a and therefore vacate the mur- defendants’ * Jr., York, Haight, sitting by designation. Honorable Charles S. United Newof States District Court for the Southern District handgun. How- discovered a Smith & Wesson convictions. hire der for ever, reverse those convictions Lee was then arrested. When Lee was we do not handcuffed, at trial— he said he had the presented the evidence because “protection.” admitted Clarke including improperly Finally, legally sufficient. statement —was 8-10, 2001, Around November court we conclude that the district

because Lawton, called Jason member of felon in respect err with did not crew, drug Williams’s and demanded that against a firearm count possession of a gun Lawton return to Williams because against Lee on we affirm the conviction bit,” “just got meaning Lee had that he that count. (Lawton just had been stabbed or shot. had borrowed the some time earlier to BACKGROUND attempt person shoot and to kill another Lawton.) call, Summary attacked After the Factual who had I. Lawton met with Williams and returned con- drug was a dealer who gun. in the crack-cocaine trade certain trolled supplied Bronx. He various

areas of the 23, 2002, January On Maurice Clarke paid and them with crack cocaine dealers possession was arrested the NYPD for it. Lee was a member of Williams’s to sell During of a firearm. an interview after crew, sold crack cocaine drug and arrest, his told NYPD Detective Bronx. Mazzei that been Joseph he had hired to Ellis, kill point and at some he was 2001, 9, a alter- Lee had violent

On June given gun, a driven around a vehicle Ellis, during with Kawaine which cation (who found), looking for Ellis was not and Lee in the chest. Ellis was Ellis stabbed paid for his time.1 As Clarke later indicat- mur- charged attempted with arrested ed that he would invoke his Fifth Amend- Attorney’s by the Bronx District Of- der rights testify, hearsay ment if called to this fice. presented through was Detec- 2001, Lee was the vic- Around October against penal Mazzei as a statement tive shooting. tim of an unrelated of an witness. interest unavailable 2001, November Williams rented On Gordon, February In late Orlando Airport in three cars at the Newark New marijuana crack from and sold bought who Jersey. evening, Later that Lee was driv- “Mel,” Lee, assaulted a member was neighborhood of the cars in his ing one thereafter, drug crew. Gor- of Lee’s Soon approached by was the Bronx when he respective their spoke don with Lee about NYPD officers because he was double assailants, proposed Ellis and Mel. Lee blocking traffic. parked and When “body body” agreement, for Gordon registra- for Lee’s license and police asked meaning exchange which Gordon tion, Lee stated that his friend had rented Lee would deliver Ellis to would it to Airport given car at Newark Mel to Gordon. deliver evening. Lee to drive for the The officers conversation to reported find Gordon looked in the car’s center console to direction) (at Mazzei, provid- and Detective to whom Gordon registration statement, comply original ed reference to Lee so as to Clarke’s which stated to omit 1. States, person Lee who hired him to kill that Ellis, with v. United Bruton gun, him with a and drove S.Ct. 20 L.Ed.2d 476 looking with him for was redact- around “body body” ed information as confidential informant. Gordon and the scheme later, 8, 2002, was not mentioned. days A few on March Detec- recording gave tive Mazzei Gordon de- History II. Procedural him speak with Lee vice and instructed trial, After the first phase of the Lee if would discuss the murder to see Lee and Williams were convicted of murder for plot. evening, Later that Gordon met with hire on December 2002. their Lee and recorded conversation. phase The second trial bifurcated During meeting, plan Lee discussed a (with jury) the same dealt with the felon- Gordon, with in which Gordon would lure in-possession charge against Lee. At the location, a particular Ellis to where Lee phase, conclusion of this bifurcated attempt would have someone shoot and jury found guilty being a felon-in- Gordon, talking kill As he was Ellis. possession of a firearm on December a call placed (apparently to the shoot- er) and stated: conviction, After his Williams moved some, some, him I Tell I have have a pursuant to Rule 29 of the Federal Rules um, um, I a favor a favor need to be of Criminal a judgment Procedure for of him, Alright? taken care of. Tell tell or, acquittal, alternative, in the for a new him, him I that it’s that favor told favor trial pursuant to Rule 33. ar Williams me, gonna you he do for said he was gued that the evidence was insufficient to know? You heard? Tell him it’s a favor conviction, sustain the and raised various him, get, Tell Alright? get for a favor. other claims. The District Court denied right at him now and tell him to call me the motion in a Memorandum and Order cell, my alright? back on April dated It held that “[t]he clearly supported finding message, After he left the Lee told Gordon Williams knowingly involved himself in Ibn him my that he would call “as soon as plan get back at Ellis shooting ready peoples is and then we could execute him” jury and that reasonably “[a] could Later, problem.” Lee warned that [procured have inferred that Williams shit,” meaning “this ain’t like no scar gun] rental car and a knowledge with the cut he wanted shoot not him. Lee planned that Lee to commit a murder-for- not to be in car warned Gordon when sought hire and in fulfilling assist Lee shooting started because his shoot- objective.” this United States v. “gorillas”' Lee called ers—whom —“ain’t (S.D.N.Y. 2003). *2 Apr.1, WL at got “gonna up,” aim” and were lit the car rejected The District Court Williams’s oth or the car with In riddle bullets. between arguments. er discussing plot to kill Ellis pur- and Gordon, marijuana chasing from Lee told Following Supreme Court’s decision “spending Gordon that Lee was more mon- Crawford, which was decided after the ey.” point, car, At this Gordon left the jury’s verdict, Lee moved to set aside the marijuana went to his stash hidden in a verdict based on the introduction building, marijuana, retrieved some through Clarke’s statement Detective Maz- sold it to Lee. Lee then told Gordon that zei. The Government conceded that “[bjetween tomorrow, today gonna it’s admission of the statement was error un- happen,” and promised to call Gordon. Crawford, der argued but the error Gordon, But Lee did not call plan and the beyond was harmless a reasonable doubt. During was never executed. the following The agreed, District Court finding that days, purchased marijuana twice from guilt “[t]he evidence of Lee’s over- Lombardozzi, plain to the error standard. See even without reference whelming,” Lee, 491 at 72.2 States v. F.3d statement. United Clarke (S.D.N.Y. Feb.25, 476189, at *3 2005 WL properly preserve To the issue for 2005). District Court also concluded appeal, objection defense counsel’s must references Government’s “put trial court on [the] notice that Con addresses were sim- statement its frontation Clause concerns implicat [are] all the “thorough of a review of ply part ” Hardwick, ed.’ United States v. thus evidence.” Id. The District Court (2d Cir.2008) 94, 98 (quoting United was cumu- held that “the Clarke statement Dukagjini, any of all the evidence” and that lative Cir.2003)).3 case, although the de was harmless be- error in its admission explicitly fendants did not raise a Con yond doubt. Id. reasonable objection frontation Clause to the Clarke trial, statement when it was introduced at DISCUSSION sufficiently put defense counsel the trial first address defendants’ claim We court on notice that Confrontation Clause of the Clarke the district court’s admission (1) implicated concerns were through: violated the Sixth Amendment’s statement motion, pre-trial explicit Williams’s which Clause, that the error Confrontation ly argued that admission the Clarke Second, we address was not harmless. statement would violate Williams’s Sixth presented at trial whether the evidence (2) confrontation, right Amendment prove that Lee and was sufficient argument during counsel for Lee’s in a murder for hire participated pre-trial relating conference to the “basic Finally, we consider various conspiracy. fundamental issue” raised the defen arguments posses- related to Lee’s felon in inability Clarke, dant’s to cross-examine of a firearm conviction. sion (3) objection and the defense at trial that have an opportunity defendants “won’t to 1. Confrontation Clause Claim Thus, cross-examine Maurice Clarke.” we A. Standard of Review properly conclude that the defendants preserved their Confrontation Clause ob appellate If for properly preserved jection apply harmless error review. review, Clause violations are Confrontation concedes that the subject to harmless error review. See As Government Lombardozzi, statement violated United States v. admission of the Clarke 61, If Amendment’s Confrontation 76 the defendant Sixth preserve Crawford, an under the issue is wheth- properly failed to issue Clause review, appellate the erroneous admission er that error was harmless. We have explained: a generally previously is reviewed under plain super- question we conclude that "When the source of error is a decide this because 2. decision, applies vening error review in this case. ha[s] Second harmless [the Circuit] employed plain a modified error standard government whereby the bears the burden of Dukagjini, In the court noted: "We adhere 3. that, matter, proving principal general that the error did not affect the defen- as a a Lombardozzi, rights.” hearsay objection by dant’s substantial 491 itself does not automati- However, cally preserve F.3d at 74 n. 4. whether the Second a Confrontation Clause claim. sure, plain hearsay testimony objection Circuit's modified error standard has To be an to States, way put been overruled v. United Johnson could as to a trial be stated such 117 S.Ct. 137 L.Ed.2d court on notice that Confrontation Clause (1997), Dukagjini, open question. implicated an See are as well.” 718 remains concerns Hardwick, 4. We 326 F.3d at 523 F.3d at 98 n. need not someone,” whether an error was who Clarke then identified as determining [I]n must, of the harmless, upon review “Q”; that Kawaine known as record, “beyond a rea- be satisfied entire attempt “had driven around to locate complained that the error doubt sonable victim, and shoot the intended and that he contribute to the verdict not of ... did supplied was also with a firearm while 377 F.3d at obtained.” McClain> so”; doing that Clarke had not driven [] omitted). (internal In marks quotation around”; and that himself but was “driven words, find the erroneous ad- other paid “he was for his time after the fact.” plea allo- co-defendant’s] [the mission of See United WL harm- ] violation [in cution Crawford (S.D.N.Y. 2005). Feb.25, at *1 exam- We must be able to conclude less “we ine the statement with re- impact ‘unimpor- have been would the evidence spect separately. Williams and Lee everything else the tant in relation question, on issue jury considered ” in the record.’ United as revealed 1. Williams Quiroz, States view, In our the Clarke statement Cir.1993) Evatt, (quoting Yates v. certainly almost contributed to the verdict 391, 403, 111 S.Ct. against other evidence es Williams. The (1991)). L.Ed.2d 432 that, tablished November likely impact an error’s on assessing (and nondescript provided rented a car it Supreme Court has found jury, “the Lee), ... factors to be relevant a firearm following retrieved from (1) strength prosecu- of the the overall drug member of his crew because Lee had (2) case; prosecutor’s conduct tion’s “just been bit.” defense improperly admitted respect to the with Williams could have rented the nondes (3) evidence; importance cript provided car and it to Lee in further (4) testimony; admitted wrongly drug trafficking ance of activities and cumulative whether such Williams could have admitted evidence.” properly of other (or protection provided Lee for could have York, v. New 468 Zappulla response it to Lee in to the unrelated Cir.2004). (2d strength pros- shooting, rather than October the however, case, probably “is the ecution’s stabbing). light June 2001 But of critical factor.” single most United testimony, juror Clarke’s a reasonable Reifler, States could have that concluded Williams rented Cir.2006) (internal quotation marks provided gun the car and the to Lee to omitted). past, In the this Court has help get revenge on the Ellis for June admissions of evidence generally found stabbing. the Clarke testi Without in violation of to be harmless Crawford mony, absolutely there is no indication that only remaining the admissible ev- where the November 2001 car and gun incidents “overwhelming.” was See idence a McClain, involved hired killer. 377 F.3d at 222. 491 F.3d at 76.

Lombardozzi The Clarke statement itself not ex- did B. the Admission of the Lee, Williams, Whether plicitly reference or the No- Statement Was Harmless However, vember 2001 incidents. it alone

Error that, January revealed sometime before 23, 2002, Ellis, hired to kill Clarke was trial that Detective Mazzei testified at given hired to kill a in a vehicle gun, Clarke told him “he was driven around (who found), recording was not of Lee’s conversation looking for Ellis with Gor- juror time. A reasonable paid for his don March 2002 makes clear that Lee inferred that the Clarke state- orchestrating plot could have was a to have Ellis shot. However, ment related to the November 2001 ambiguity there is some as to gun involving car and incidents Lee and whether the shooter in the March 2002 Williams, prosecutor’s in fact the promised incident was something “pecu- jurors opening encouraged statement 1958(a). niary § value.” See 18 U.S.C. precisely to draw such an inference. The during When called the shooter his prosecutor stated: Gordon, conversation with Lee referred to Now, all Ibn Lee was himself when shooting of Ellis as “a favor for a him police found on November favor.” Under Framp United States v. gun. you’re going with a But to ton, (2d Cir.2004), prom F.3d 213 during investigation hear that of this ise of an unspecified “favor” is not suffi case, police interviewed hired killer pecuniary cient to meet the value element. who told that he was driven the[m] (“[W]e See id. at 219 hold that consider early around on November 7 or Novem- ation in the form of a ‘favor’ is insufficient 2001, looking “Q” gun. ber with a support a conviction under at Thus, Tr. the Clarke statement least in the suggesting absence jury the context which the within could that either had an party understanding as have concluded November take.”). to the form that it actually would car incidents involved hired discussing plot between to kill Ellis killer. marijuana Gordon, and purchasing from depiction This of the November 2001 however, Lee told Gordon that Lee was incidents was critical to Williams’s convic- “spending money.” more The Government implicated tion because was not phrase this referred to Lee Lee’s conversations with Gordon Feb- spending money to kill and reason ruary plot and March 2002 about the juror certainly able could have reached have inci- Ellis shot.4 The November 2001 this conclusion because the pre discussion only dents were the basis for the ceding phrase focused on the arrange conclude that Williams was involved in a killing. Perhaps ments for the is the conspiracy; murder for hire and the likely interpretation. most But on the oth only piece Clarke statement was the hand, juror er a reasonable also could have evidence that could have linked those inci- found phrase money” that the “more relat Thus, to a dents hired killer. we cannot marijuana purchase ed from beyond find a reasonable doubt that Gordon, the right which occurred after the testimony Clarke did not contribute to the phrase light ambigui was used. In of the against verdict obtained Williams. ty money” of the “more phrase on the 2002 recording, jury may March the have 2. Lee degree relied to some on the Clarke state The issue of whether the pecuniary admission ment to find the value element of the statement against closing Clarke Lee was of the crime satisfied. In his state ment, question. harmless error is a prosecutor argued closer The that engage 4. That Williams and Lee continued to in March 2002. Nor does Williams’ involve- drug trafficking together through gun in March ment in the November 2001 car and implicate 2002 does not Williams in Lee's incidents establish his involvement in the Gordon) (involving scheme to have Ellis shot March 2002 scheme. reasons, referred to Lee For these the admission of money” phrase “more error, money to have Ellis killed. not harmless Clarke statement was spending Moreover, closing state- prosecutor’s judgments and the defendants’ of convic- repeated reference made for murder for hire must ments also tion “paid” was a “hired killer” who be vacated. example, kill Ellis. For to hunt down Sufficiency the Evidence II. Claim argued: prosecutor Ibn Lee and know do we How reviewing challenge In a to the sufficien part- criminal and their Larry Williams evidence, cy we view the joined together, have plotted, ners light govern “in the most favorable to the Ellis, ... “Q,” murdered? You Kawaine ment” and draw all reasonable inferences killer, you heard a hired know it because Gaskin, in its favor. States v. United Clarke, being admit to hired to Maurice (2d Cir.2004). addition, 438, F.3d In fact, Ellis, and, put in was

kill Kawaine totality, we “consider the evidence in its car, and driven around given gun, in a isolation, government and the need not kill hunt down and Kawaine Ellis. every theory negate not of innocence.” Autuori, States v. F.3d

United Clarke.... Who is he? This is Maurice (2d Cir.2000). United killer. This is an assassin. He is a hired Hardwick, recently explained we somebody kill paid to someone. This is government circumstances where “some paid to kill? Kawaine Ellis. is he Who admitted, erroneously evidence was of Detective Remember concerning must make our determination Mazzei. sufficiency taking into consideration even

the improperly admitted evidence.” 523 Cruz, (quoting F.3d at 101 United States v. say? does he He [Clarke] else What (2d Cir.2004)). past that in the he’s admits —remember if “any evidence is sufficient rational trier that, January before arrested —that fact could have found the essential ele kill hired to someone. Whom he was beyond ments of crime a reasonable Ellis, Q. kill? he hired to Kawaine Virginia, doubt.” Jackson only he tell us? did else does Not What (1979) 319, 99 61 L.Ed.2d 560 S.Ct. him to kill Kawaine someone hire Finally, (emphasis original). a convic car, him in put put but someone may entirely tion be based on circumstan Clarke, killer, Maurice this hired tial evidence. See United States v. D Am assassin, that someone who hired him ato, 1249, 1256 car, gave in a him a put Maurice Clarke Q, looking and drove him around To a defendant convict under looking for Kawaine Ellis. party Government must show one clearly agreed Tr. 1106-07. Given how to commit a in exchange murder pecuni- party’s provision established the for another Clarke statement or future ary and the contextual ambi- or promise payment “anything pecu value element guity money niary reference in the March and that the uti conspiracy of the value” “facility we find that the Govern- a recording, 2002 lized interstate commerce.” 1958(a); beyond ment has not established a reason- See 18 U.S.C. United States Perez, Cir.2005), 414 n. 4 able doubt that the Clarke statement did F.3d denied, jury’s against cert. not contribute to the verdict S.Ct. Lee. 164 L.Ed.2d 246 statement included found that money” phrase With the “more in the analysis, in the there was sufficient evi recording to spending money referred Lee jury a to find that and dence for Williams Ellis, on hit men to kill satisfying the participated in a murder for hire con pecuniary value element. And a reason- that, in spiracy. The evidence established juror able could have found the interstate rented a nondes November Williams commerce element satisfied because Lee car, cript provided which he to and phone used a cell to contact the shooter. retrieved a firearm from a member of his Thus, we conclude that the evi “just drug crew because Lee had been including the Clarke statement— dence— A bit.” reasonable trier of fact could have was sufficient to demonstrate that Lee and car found Williams rented the participated in a murder for hire part to Lee as for plan conspiracy.5 aWhere error re Crawford get revenge Lee to on Ellis for the June quires a conviction to be vacated but the stabbing. The Clarke statement re- evidence improperly is “sufficient when the that, January vealed sometime before admitted evidence is equa included kill given Clarke was hired to tion, ... retrial rather than acquittal is the gun, looking driven around in a vehicle Hardwick, (in remedy.” 523 F.3d at 101 (who found), paid Ellis was not for his omitted). quotations ternal and citations juror time. A reasonable could have found directly that the Clarke statement re- Challenges III. Lee’s to His Felon in gun-and-car lated to the November 2001 Possession of Firearm Convic- involving incidents Williams and Lee. tion Thus, juror a reasonable could have found In light of our conclusion that the mur- that Lee and Williams were involved in a der for hire conspiracy convictions must be conspiracy pay Clarke murder Ellis. vacated, we need not address various addi- Finally, juror a reasonable could have arguments tional raised Lee and found that the interstate commerce ele- Williams for vacating those convictions. ment was satisfied because Lee and However, we must address various other Williams drove from the Bronx to New arguments Jersey apply to obtain raised Lee which rental cars from Newark possession his felon in Airport. of a firearm convic- tion. case, In Lee’s relating conversations with Gordon Febru- Challenge A. Lee’s Batson ary plot and March 2002 about the to have the District independently provided

Ellis shot suffi- in concluding cient Court erred that the Govern support evidence to Lee’s murder for peremptory hire ment’s exercise of two chal conviction. The March recording lenges against only African-American revealed Lee was orchestrating plot to have Ellis mur- men in the venire did not violate the juror dered. A Equal reasonable could have Protection Clause Fourteenth verdict, inconsistency 5. There is no between this find- evidence "contributed” to the ing the evidence even without generally only such errors are found harmless —that Clarke statement was sufficient convict remaining where the admissible evidence is Lee—and our earlier conclusion that the ad- Here, "overwhelming.” we conclude that the mission of the Clarke statement was not properly against admitted evidence Lee was analy- harmless as to Lee. The error harmless sufficient, overwhelming. but not erroneously sis the looks whether admitted as, inter in which the Government described Amendment, interpreted Batson v. as 79, 1712, alia, “anti[-]government newspaper.” 106 S.Ct. an Kentucky, 476 U.S. a defendant Where L.Ed.2d 69 declined to undertake a The District Court ruling trial court’s Batson the challenges policy examination of the editorial detailed court erred in that ground News, on of The Amsterdam but noted defendant failed to car- that the concluding order, summary unpublished United discriminatory proving ry his burden (2d Russell, 125 F.3d 845 Cir. deference” to the intent, “great give we 1997), in stated which the Second Circuit ruling appeal. on Brown v. trial court’s reasonably in might that trial court “[a] Cir.1992) (in- 116, 120 Kelly, 973 F.2d fer, case, regular in a that a reader given omitted). See also marks quotation ternal News could be ex ] Amsterdam [The York, v. New Hernandez negative feelings against pected harbor (1991) 1859, 114 L.Ed.2d 395 111 S.Ct. Id. at *2. government’s witnesses.” (“[Evaluation state of prosecutor’s hold that the District Court had We credibility and mind based on demeanor accept sufficient basis Government’s judge’s the trial within ‘peculiarly lies “credible,” “plausible” reasons as ”). not overturn a trial We do province.’ had not carried his bur to find the issue of discriminato- finding court’s on proving discriminatory den of intent under clearly it is erroneous. ry intent unless Batson. Hernandez, at S.Ct. See Brown, 1859; F.2d at 121-22. B. Lee’s Motion Severance record, reviewing the After challenges Lee also the Dis that the District Court’s Batson conclude trict denial of his motion to sever Court’s clearly In re not erroneous. ruling was conspiracy the murder for hire count from challenge, to Lee’s Batson sponse in possession the felon firearm count. legitimate, with came forward Government We review the District Court’s order to non-discriminatory reasons its decision joinder allow of the two counts de novo.6 at venire members issue to exclude both Feyrer, See United States v. Specifically, one member appeal. this We conclude that the selection, was twice late not District Court did err because response questions, little information supporting against facts the two counts familiar Hill that he was with and stated parts of a common “constitute[d] Homes, alleged the area which the side 8(a), plan,” scheme or Fed.R.Crim.P. activity criminal occurred. These race- “in occurred the same series of acts or were sufficient for the neutral rationales 8(b). transactions,” Fed.R.Crim.P. to conclude the Gov District Court handgun by police found the rental car not based on challenge was ernment’s driving Lee was on November member, the race. As to the other venire instrumentality both an of the murder for that it stated was concerned Government hire and the basis for the felon- listed The Amsterdam News he had reads, publications in-possession charge. he Given these over- as one of the news where, here, challenge appellant only was the 6. Lee states in his brief Criminal charged sought rests on Federal Rule of Procedure defendant with the count he 8(b), acknowledges he also that the Dis- but We do not reach the issue of to be severed. brief, 8(a). applied trict Rule In its Court applies challenge which Rule because Lee’s previ- argues that we have not Government under either Rule. fails applies ously Rule to a situation held which times, possession their relevance to both count. At facts and various lapping District District charges against Court Court ordered counsel to read cer- verbatim, him in tain charges against portions testimony tried both of properly ad- “editorialize,” trial. monished counsel not to pre- the same vented from making counsel “redundant” Proceedings C. The Bifurcated summaries, or irrelevant and reminded the jury they could ask any to have testi- vein, challenges In a similar mony read them during back to their de- order to bifurcate the two District Court’s Furthermore, liberations. the District charged against him into two trial counts Court asked Lee whether he wanted to counsel in the second phases and to allow any introduce or witnesses additional evi- summarize, only rather than phase to trial, phase dence the second of his verbatim, read relevant from sum, Lee declined. we conclude that phase. Specifically, the first the District Court’s bifurcation order and violated his Confrontation this order regarding presentation related orders rights Process un- Compulsory Clause and of evidence did not violate Lee’s Sixth his der the Sixth Amendment because However, rights. Amendment to the ex- counsel could neither recall nor cross-ex- arguably tent that may these orders have phase amine witnesses in the second violation, such a any constituted error was authority support trial. Lee offers no harmless grounds and thus is not for a argument that the District Court’s bi- his retrial. his Amend- furcation order violated Sixth rights.

ment D. Ineffective Assistance of Counsel violation,

findWe no constitutional assuming deciding and even without Lee claims that he from suffered the District Court’s order violated Lee’s ineffective assistance of counsel at trial rights, rejected plea Sixth Amendment such violation because he offer Herbert, was harmless error. See Cotto v. Government based on his counsel’s incor (2d Cir.2003). Although only rect assessment that Lee faced years “ham maximum Lee contends that his counsel was term of 15 instead of 20 years. strung” phase expressed the second of the trial court has a base “[T]his inability resolving his to recall and cross-examine line aversion to ineffectiveness witnesses, opportunity he had the full claims on direct review.” v. United States Khedr, Cir.2003) during such witnesses 99-100 cross-examine (citations Moreover, phase. quotation first Lee does not iden and internal marks omitted). tify any question “germane Supreme to the felon in Court has advised possession sought count” that he to ask— that the district court is “the forum best developing necessary him from suited to prevented the District Court facts during asking phase. determining adequacy representa the first —witnesses Defendant-Appellant during Brief of Ibn Lee at tion an entire trial.” Massaro v. States, 500, 505, procedure employed by 56. The the Dis 123 S.Ct. United nothing trict Court amounted to more than 155 L.Ed.2d 714 Neverthe less, allowing appeal the Government and Lee’s coun we will review claims on direct fully identify portions developed sel to for the those when the record is properly beyond admitted evidence counsel resolution is doubt. See United Garcia, potentially considered relevant F.3d 219 n. 13 States jury’s regarding requirements deliberations the felon-in- As these are here, not met we decline to review Lee’s because of intervening Clause decision point. claim at this Washington, ineffectiveness Crawford (2004), 124 S.Ct. 158 L.Ed.2d 177 but argument, After the Government sub any it contends that error in regard this P. pursuant R.App. mitted letter to Fed. majority was harmless. The concludes 28(j) citing the Court to United States v. otherwise. As I conclude the admission of Jones, error, the Clarke statement was harmless Appellant Lee then moved to strike the I respectfully dissent and would affirm the grounds letter on the that it exceeded the in all respects. District Court material length bounds of Rule both and 28© interim, content. In the this Court has Viewing entirety, the evidence in its I opinion in issued its United States v. beyond am convinced a reasonable doubt (2d Hardwick, Cir.2008), 523 F.3d 94 that the Clarke statement did not contrib- subject which became the of a second ute to the verdict obtained. See United 28(j) Rule letter from the Government. McClain, Hardwick, In held that we where “some Cir.2004). trial, At government pre- government erroneously evidence was ad overwhelming sented evidence other than mitted, we must make our determination the Clarke statement to establish that Lee concerning sufficiency taking into consid conspired and Williams to hire another to eration improperly even the admitted evi Specifically, murder Ellis. the evidence (internal dence.” Id. at 101 quotation (1) demonstrated following: that Lee omitted). marks In view of the Court’s had a motive to kill Ellis because Ellis had recent principle, reaffirmation of this and (2) Lee; previously stabbed that Lee and application our of it in opinion, this Lee’s Williams rented cars from Newark Air- motion to strike is denied as moot. port, despite they the fact that both owned vehicles; (3) police fancier that the arrest-

CONCLUSION ed one of these cars and discovered above, For the reasons discussed (4) inside; a gun that Williams demanded judgments vacate the of conviction entered the return of a from individual by against the District Court Lee and (5) Lawton; named Jason and that conspiracy, Williams for murder for hire Williams told Lawton that he needed the affirm against the conviction Lee on the gun for Lee recently because Lee had count, felon in possession of a firearm addition, stabbed. govern- been. remand to the District for Court further presented ment had evidence that Lee had proceedings. Lee’s motion to strike the proposed “body body” trade to testi- 28(j) Government’s Rule letter denied is fying witness Orlando According Gordon. moot. Gordon’s and recorded con- Lee, involving versations him pro- STRAUB, Judge, concurring Circuit posed that he would lure an individual in part dissenting part: order to be killed in exchange Gordon majority today has vacated the con- luring for Gordon a predetermined Ellis to victions Defendants-Appellants Ibn Lee location in order to be killed and Larry as a Williams result of the associates. In the planning course of District scheme, Court’s admission into evidence of Lee complained that he was the so-called Clarke gov- “spending money.” statement. The more The evidence ernment concedes that the admission of also shows defendants’ involvement in vari- this evidence violated the drug Confrontation ous transactions and the close rela- merely that, and the co- ment tionship among establishes assuming witnesses, Gordon, Lawton and operating that either Lee or Williams were involved why they together would work in a a conspiracy, progressed such it had to to commit murder-for-hire. conspiracy actually hiring point the of Clarke and evidence, body of a Given this reasonable assisting him in finding killing Ellis. jury easily could have found that both significance Given the limited of the Clarke conspired had over several defendants statement, I conclude that its admission months to hire another individual to kill into evidence was harmless error. Ellis. opinion, majority its the focuses on Indeed, the admission of the Clarke the role of the Clarke statement meet- relatively unimportant statement was to ing government’s the burden of proving case. It did not the Government’s connect pecuniary value element of the federal to a murder for hire either defendant con- However, murder for hire statute. I be- spiracy, only rather established but how lieve that this element easily was estab- conspiracy, irrespective far such a of its by complaint lished evidence of Lee’s participants, might progressed. have As Gordon about his “spending money.” more conveyed jury to the via the of context, only Taken reasonable in- Mazzei, Detective the Clarke statement terpretation of Lee’s complaint was that he only provided following with referring hiring to the cost of Ellis’s person an unidentified hired facts: Clarke killer(s), not to the cost of purchasing mar- unspecified at an time to drive around an ijuana unspecified drugs, area to look for and kill or other because the entire “Q”; whom also Clarke knew as Clarke conversation pri- between Lee and Gordon gun had been with for this or to that specific complaint focused on Ellis; purpose; Clarke never found and arrangements for the shooting Lee’s paid Clarke was for his time and efforts. associates of kid who “[t]he stabbed However, the crime with which Lee and [Lee,]” i.e., Ellis. charged Williams had been was murder majority concludes “[w]ithout conspiracy. for hire That crime does not testimony, absolutely there is require that a conspiracy such have actual- no indication that the November 2001 car ly progressed point hiring to the a kill- incidents involved hired killer.” er, only that the defendant has entered However, the Clarke statement does not agreement into an with another for that directly any connect those incidents to purpose. See At bot- U.S.C. Indeed, hired killer. no evidence in the tom, nothing the Clarke statement does explicitly. might record does so Whatever an agreement involving establish such ei- government’s said about the failure Indeed, be ther Lee or Williams. neither de- portion produce conspir- fendant is mentioned in that more direct evidence of a Instead, here, testimony.1 acy my Mazzei’s the state- it is view the admission er, 1. Lee also contends that the Clarke statement Lee concedes that “the Clarke statement alone, standing inculpate was admitted in violation of v. United Bruton does not him.” In- States, deed, redacted, 88 S.Ct. the statement neither refers name, nickname, physical L.Ed.2d "A defendant’s Bruton to Lee nor de- violated, however, rights only scription. only would be if the It is when other evidence of statement, alone, standing clearly participation would in- in the murder-for-hire culpate him without introduction of further is admitted that the Clarke state- Wilkinson, independent inculpates Accordingly, evidence.” U.S. v. ment Lee. Lee’s Bru- argument Howev- avail. ton is no er- at trial. While the circumstances of was harmless statement of the Clarke 16(a) unfortunate, relatively little violation are I can Rule because it added ror jury. presented they not conclude that rise to the neces body prejudice” to sary level of “substantial arguments other I find defendants’ also Salameh, 152 Williams’s defense. See majority did not which unpersuasive, F.3d at 130. it concluded address because have to conspiracy convictions Second, hire argue murder for defendants that the Dis- on the sole basis of the vacated should be trict abused its discretion in admit- Court Clarke statement. of the ting admission evidence of Lee’s November 2001 con- robbery for armed and Lee’s and viction that Dis the begin, To Williams in drug involvement various Williams’s admitting in into evi trict erred Court court’s transactions. We review district to law enforcement dence his statements of discre- evidentiary rulings for abuse to government the failed officials because Edwards, tion. United States v. 342 F.3d pur to Williams such statements disclose specific re- With of under Federal Rule request suant to his prior to of bad acts admit- gard 16(a). “A district Procedure Criminal ted, here, Rule of pursuant to Federal not to exclude evidence court’s decision 404(b), adopted have an “in- Evidence 16(a) subject of a Rule viola the that was clusionary by approach” which district reversal unless the grounds not for tion is courts are allowed to admit such evidence ‘substantial caused the defendant violation ” any purpose for other than to demonstrate Salameh, prejudice.’ United propensity.” “criminal Id. the defendant’s Cir.1998) (noting that a F.3d (internal omitted). quotation marks I con- court has “broad discretion” district properly clude that the ad- District Court remedy), appropriate cert. fashioning an mitted evidence of Lee’s conviction for nom., Abouhalima v. United denied sub robbery purpose showing armed for the of States, 119 S.Ct. knowledge absence of mistake and/or brief, In his L.Ed.2d 785 Williams being possession a felon in of a firearm. consisting that this concedes evidence— See, Brown, e.g., to merely agents his admission of the of (2d Cir.1992) curiam). (per As for Alcohol, Tobacco and Firearms Bureau of in- showing the evidence both defendants’ at least two cars at Newark that he rented transactions, drug volvement in various I November 2001 and then Airport on properly conclude the District Court those cars to unidentified gave keys the to purpose admitted such evidence the of “merely of cumulative” individuals—was explanation jury “an to providing the of other, admitted evidence. More properly relationship [among] the close ... over, assured the the Government District witnesses, cooperating the [and produced it the evidence to Court Gordon,] directly Lawton2 and which was as it became aware of its Williams as soon explaining why they relevant would However, Williams contends existence. together any conspiracy work to commit un that “the admission of the statement in murder-for-hire.” As Government credibility of counsel” [his] dermined contends, testimony, ... jurors “absent this the minds of the because his counsel jury jury opening highly in his would have been left with the had told the statement presented impression that that no such evidence would be distorted Williams and ''bit,” i.e., noted, de- him because Lee had been As Lawton testified Williams that he return the that Williams stabbed. manded incredibly incriminating prior trial was admitted primari- made their plot ly the murder to ran previously admissions about demonstrate Lee was they had no reason dom individuals whom by stabbed Ellis and therefore had a mo- trust, whom, knowledge, to their and to revenge. tive to seek his murder for How- engaged any kind had never themselves ever, proof merely was cumulative of Lasanta, of illicit behavior.” U.S. v. showing other evidence that Lee had been Cf. (2d Cir.1992) (“Our 1300, 1307 stabbed a fact which was essen- specifically approve decisions use tially uncontroverted. Among proof, other prior evidence of a defendant’s narcotics Lawton testified to this fact and Lee and dealings background de delineate it in recording Gordon discussed made jury inform the tails of a prior testimony —to Gordon. Lee’s background conspiracy charged, also admitted to prior establish Lee’s story of the crimes complete robbery armed conviction drug deal- explain charged, help and to ing. This was purpose offered for the illegal relationship between the how demonstrating knowledge Lee’s ab- and/or (in developed.”) in the crime participants being sence of mistake in a felon in posses- omit quotation ternal marks and citations sion of a firearm. As the knowing posses- ted), abrogated grounds by on unrelated sion of a firearm is not element of White, 559, 526 119 Florida v. U.S. S.Ct. murder hire conspiracy, Williams can- (1999). 1555, 143L.Ed.2d 748 The District complain not of its admission. Court, moreover, instructed the on Finally, argues Lee the sentence purposes the limited of such evidence. As imposed on him the District Court was such, I would not disturb the District proeedurally substantively unreason- ruling Court’s on this issue. able. The Presentence Investigation Re- Third, argues that the admis port guidelines calculated the range to be prior testimony sion of Lee’s from the 262-327 months. Lee that the sen- Ellis, in criminal trial of which Lee de him, months, imposed tence on 240 scribed his confrontation with Ellis and proeedurally unreasonable because the stabbing, violated Williams’s Confrontation District Court “failed to articulate con- his rights Washing Clause under v. Crawford 3553(a) requisite sideration of all of the ton, 1354, 541 124 U.S. S.Ct. 158 maximum arriving factors in at the statu- (2004). L.Ed.2d 177 Due to Williams’s However, tory sentence.” we have held object failure to to the admission of this necessary that no such articulation is supervening evidence at trial and the the District Court has fulfilled its decision, apply a “modified Crawford 3553(a) obligation § under long as “the plain-error” govern rule in which “the judge statutory aware of is both the re- ment, defendant, not the bears the burden quirements range and the sentencing or demonstrate the error was harm ranges arguably that are applicable, and Henry, less.” United States v. 325 F.3d (2d Cir.2003) (internal in the record nothing indicates misunder- quotation 100 omitted), nom., standing misper- about such materials or marks cert. denied sub Pa ” States, ception about their relevance.... United nek v. United 203, 157 Fleming, S.Ct. L.Ed.2d 194 Assum Cir.2005). See also United States v. Cros- ing deciding without that the admission of (2d Cir.2005) (refus- prior testimony by, violated Williams’s any rights ing require Confrontation Clause after Craw “robotic incantations” ford, such an error was harmless. Lee’s a district court to demonstrate that it 3553(a) factors), cert.

“consider[ed]” MANAGEMENT W.R. HUFF ASSET U.S., 915, 127 denied., v. Crosby CO., LLC, Plaintiff-Appellee, (2006). Lee L.Ed.2d 202 S.Ct. sentencing nothing his has identified Court indicating that the District hearing LLP, & Credit DELOITTE TOUCHE factors he con the relevant misunderstood (USA) LLC, Credit Suisse Securities any evidence that misperceived or sidered Royal Branch, Suisse, New York decision. led to his plc, The Bank of Bank of Scotland substantive unreason- to the asserted As Scotia, Dominion Tex Nova Toronto sentence, argues that of his ableness (f/k/a as, Tex LLC Toronto Dominion failing give erred the District Court PLC, Inc.), as, International Mizuho prior to his leniency due him sufficient America, Inc., Banc of ABN AMRO District Attor- the Bronx cooperation with (n/k/a N.A., Securities, Inc. Fleet However, sentencing ney’s Office. N.A.), America, Banc of Bank of stated, accept “I what Court the District LLC, Barclays America Securities D.A., I’ve ac- with the Bronx you’ve done Inc., Barclays PLC, Capital Bank ...,” trying help you’re cepted ][ Inc., Markets, Capital BNY The Bank that the also stated but the District Court Company, Inc., of New York CIBC him required offense” “seriousness CIBC, Inc., Corp., Markets Citi World “just punishment”. Given give bank, N.A., Citigroup Inc., Citicorp upon in the record which that the evidence USA, Inc., Citigroup Markets, Global revealed a its conviction based (n/ Inc., Barney Inc. Salomon Smith multiple plans months-long conspiracy Markets, Inc.), Citigroup Global k/a Ellis, I cannot conclude and kill locate (f/k/a Calyon (USA), Inc. Securities imposed substan- that the District Court (USA) Lyonnais Credit Securities Lee. on tively unreasonable sentence (suc Inc.), Calyon New York Branch by operation cessor of law to Credit sum, arguments all I have considered Lyonnais Branch), York New in this by Lee and Williams presented Brown, Inc., Deutsche Bank Alex. without merit. appeal and find them to be AG, Deutsche Bank Harris Nesbitt arguments considered This includes those JPMorgan Co., Corp., Mor Chase & opinion with rejected by majority Stanley Co., Inc., JPMorgan gan & stated which I for the reasons concur Inc., Capital (USA), Securities Scotia with and therein. I concur Specifically, (f/k/a Inc., Co., Cowen & LLC SG insofar it join majority’s opinion in the Corporation), Cowen Securities So sufficiency relates to both defendants’ Generale, also known ciete challenge, Batson challenges and Lee’s Banking Institution, French Suntrust sever, objection to the bifurcated motion to Inc., Bank, Capital Markets, SunTrust trial, of counsel and ineffective assistance (USA), Inc., ABN TD Securities reasons, I foregoing claim. would For N.V., AMRO Bank BMO Nesbitt judgment affirm of the District Court. (n/k/a Corp. Burns Harris Nesbitt Lyonnais Corp.); Burns Credit Secu (USA) Inc., rities SG Cowen Securities Corp., Ingersoll and Buchanan & Roo ney Corporation, Defen Professional dants-Appellants.

Case Details

Case Name: United States v. Lee

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 3, 2008

Citation: 549 F.3d 84

Docket Number: 18-1682

Court Abbreviation: 2d Cir.