UNITED STATES OF AMERICA, Appellee, - v. - EARL MCCOY, aka P, MATTHEW NIX, aka Meech, aka Mack, aka Mackey, Defendants-Appellants*
Docket Nos. 17-3515(L), 17-3516, 18-619, 18-625
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2019 (Argued: October 23, 2019 Final Briefs Submitted: January 3, 2020 Decided: April 22, 2021)
KEARSE, PARKER, and SULLIVAN, Circuit Judges.
* The Clerk of Court is instructed to amend the official caption to conform with the above.
Appeals in Nos. 17-3515 and 17-3516 from judgments of the United States District Court for the Western District of New York, Elizabeth A. Wolford, Judge, convicting each defendant of Hobbs Act conspiracy, in violation of
In Nos. 18-619 and 18-625, defendants appeal from an order of the district court denying their postjudgment motions for reconsideration of the denial of their postverdict motions seeking a new trial on the ground that one of the jurors had given false responses to voir dire questions with regard to whether he had previously been convicted of a felony. See United States v. Nix, No. 6:14-CR-06181, 2018 WL 1009282 (W.D.N.Y. Feb. 20, 2018); United States v. Nix, 275 F.Supp.3d 420 (W.D.N.Y. 2017).
On appeal, defendants contend principally (a) that they were entitled to a new trial on the ground that the juror‘s false voir dire responses violated their rights to be tried before a fair and impartial jury; (b) that their firearm-brandishing convictions should be reversed on the ground that none of their Hobbs Act offenses are predicate crimes of violence under
Finding merit in the contention that Hobbs Act conspiracy is not a
Affirmed in part, reversed in part, and remanded for further proceedings with regard to sentencing.
ROBERT MARANGOLA, Assistant United States Attorney, Rochester, New York (James P, Kennedy, Jr., United States Attorney for the Western District of New York, Tiffany H. Lee, Assistant United States Attorney, Rochester, New York, on the brief), for Appellee.
ROBERT W. WOOD, Rochester, New
OPINION
KEARSE, Circuit Judge:
Defendants Earl McCoy and Matthew Nix appeal in Nos. 17-3515 and 17-3516, respectively, from judgments entered in the United States District Court for the Western District of New York following a jury trial before Elizabeth A. Wolford, Judge, convicting each defendant on one count of Hobbs Act conspiracy, in violation of
In Nos. 18-619 and 18-625, respectively, McCoy and Nix appeal from an order of the district court denying their postjudgment motions for reconsideration of the denial of their postverdict motions seeking a new trial on the ground that one of the jurors had given false responses to voir dire questions with regard to whether he had previously been convicted of a felony.
On appeal, defendants contend principally (a) that they were entitled to a new trial on the ground that the juror‘s false voir dire responses violated their rights to be tried before a fair and impartial jury (see Part II.A. below); (b) that their firearm brandishing convictions should be reversed, and those counts dismissed, on the ground that none of their Hobbs Act offenses are predicate crimes of violence under
Finding merit in the contention that Hobbs Act conspiracy is not a
I. BACKGROUND
The present prosecution focused on a series of home invasions in the Rochester,
The government‘s evidence at the five-week trial of McCoy and Nix principally included testimony by Barnes, Moscicki, and Gary Lambert, who had entered into plea agreements with the government; testimony by victims of four home invasions; and cellular telephone records indicating that McCoy and Nix were in the immediate vicinity of the invasions, corroborating victim testimony about phone calls made during the robberies. Taken in the light most favorable to the government, the evidence included the following.
A. Coconspirator Testimony as to Planning and Implementation
Gary Lambert testified that in early 2014 he relocated from Brooklyn to Rochester to be with his brothers. He had known that McCoy and Clarence were engaged in the business of prostitution; when he arrived in Rochester, McCoy and Clarence also told him that “they was doing home invasion robberies, robbing people and selling drugs,” and they recruited him to join their operation. (Trial Transcript (“Tr.“) 2797.)
Gary testified that the robbery operation was led by McCoy and Nix and principally targeted persons who were believed to be drug dealers. McCoy, who was generally called “P,” and Nix, who was generally called “Meech,” had members of their crew, including Clarence, place tracking devices on vehicles driven by the persons targeted. McCoy and Nix were then able to use their phones to track the prospective victims’ whereabouts (see id. at 2867) and tell Gary, Clarence, and the others whether the homes they were about to invade were unoccupied. Nix “was the one to tell us who had what, where to get it and how to get it.” (Id. at 2853.)
Barnes, who was also known as “Bubbs” (see Tr. 1256-58), testified that he had committed some 10-20 “home invasion missions” with Nix (Tr. 1240) and that their targets generally were suspected drug dealers, victims unlikely to report the robberies to the police. Nix would drive Barnes to the locations for the invasions; and although Nix never went inside the homes, he provided weapons and would communicate with Barnes by phone during the robberies. (See, e.g., id. at 1227 (Nix and McCoy supplied their crew with guns).) Nix would determine how the proceeds were distributed. (See id. at 1225-39.)
Moscicki testified that in the summer of 2014 she worked as a prostitute for McCoy, with whom she had a close, but non-romantic relationship; she was the girlfriend of McCoy‘s brother Clarence. Moscicki testified that, except for a 60-day period when she was in jail for shoplifting, she saw Clarence every day; she also saw McCoy about every two days. Much of the time she was living either with McCoy and his girlfriend “Anness” or with Clarence.
She assisted in the robbery operation by receiving on her cellphone messages from Nix to be relayed to Clarence, who did not have a working phone. On at least two occasions, she assisted more directly in invasions, either by knocking at the door of the targeted home to determine whether
Gary described the first home invasion in which he participated, a burglary where no one was at home; Nix told McCoy, Clarence, and Gary that the occupants had a lot of money and marijuana in the house; Nix and McCoy provided information from a tracking device. Gary and Clarence broke in; Gary then let McCoy in; and the three of them searched the house. (See Tr. 2868-71.) They found—as Nix had predicted—substantial amounts of cash (totaling some $64,000) and marijuana (some 24 pounds). All of the proceeds of the robbery were handed over to McCoy and Nix, who divided most of it between themselves and gave the remainder—a total of $6,000 and one-and-a-half pounds of marijuana—to Gary and Clarence. (See id. at 2871-76.) Gary assisted in the sales of McCoy‘s share of the marijuana. (See id. at 2873-79.)
B. Victims’ Testimony and Results of the Invasions
Victims of four home invasions described their losses and/or their treatment by the intruders. In an attempted robbery on September 15, two men with guns broke into a home on Hayward Avenue, demanding drugs and assaulting the adult occupants. No drugs were found. One of the would-be robbers was identified at trial as McCoy. Upon realizing that the residents were not drug dealers as defendants had believed, McCoy had made a phone call stating that “there was nothing in the house, that . . . there was just a woman and a man and a little kid.” (Tr. 1082.)
In another attempted robbery, men broke into a home on Garson Avenue on September 18. They knocked one of the residents down and tied her up, brandished a gun at her mother, and asked “‘Where the money, where the money, and the pills at‘” (Tr. 1710). One of the victims identified Barnes as one of the intruders. Barnes testified that he had been driven to the Garson Avenue location by Nix and had participated in that attempted robbery with Clarence and McCoy. When no money or pills were found there, Barnes called Nix to report that they had found nothing of value.
On September 23, there was a burglary of a house on Maple Street where no one was at home. The victim testified that in 2014 he was a seller of marijuana and cocaine and kept a number of guns in the house. He described returning home at the end of his work day and finding that his drugs, money, and guns were gone. (See Tr. 1803, 1816.)
Moscicki testified that that Maple Street burglary was the first of defendants’ invasions in which she had a direct role, ordered by McCoy to accompany him and Clarence. McCoy drove them to a spot near Maple Street, where they met up with Nix, who had brought Barnes. McCoy conferred with Nix, who said he had been monitoring the house to determine the owner‘s pattern of comings and goings. (See Tr. 519-26, 686.) McCoy instructed Moscicki to knock on the door of the targeted house to learn whether anyone was there. After Moscicki found the right
Barnes testified that on that day, Nix had brought him to Maple Street; that McCoy and Clarence had arrived separately; and that McCoy and Nix told Barnes that the targeted home had heroin and cocaine hidden in the walls. Barnes and Clarence, armed, broke into the house and found 10-12 large ziplock bags of marijuana, $7-10,000 in cash, and a half dozen guns. Barnes telephoned Nix and said, “We hit the jackpot” (Tr. 1321). Barnes and Clarence delivered everything they found to Nix. McCoy and Barnes subsequently “bought capsules to package the” marijuana for sale. (Tr. 1332.)
On October 7, there was an invasion of a house on Polo Place in the Rochester suburb of Greece, New York, occupied by a jewelry wholesaler and his wife, who were at home. The jeweler testified that he ran his business from his home. He testified that after the men broke into his house, he and his wife were threatened and repeatedly pistol-whipped. He estimated that the men stole $20,000 in cash, along with jewelry whose wholesale value was approximately $200,000. (See Tr. 1926-27.)
Barnes and Gary testified that they and Clarence were the ones who had conducted that robbery. Moscicki testified that several days earlier, she had gone to Polo Place with McCoy, Nix, Barnes, and Clarence, and had knocked at the jeweler‘s door to see whether anyone was at home. After the jeweler answered the knock (and tried his best to help Moscicki find the person or place she claimed to be seeking), the crew regrouped and considered whether to do the robbery that day. Nix said no, which ended the discussion.
Barnes testified that they returned on October 7 to rob the house on Polo Place. Moscicki, driving a car belonging to McCoy‘s girlfriend, waited in the driveway; McCoy and Nix were parked nearby. Barnes and Clarence, along with Gary who had not been on the previous trip, broke into the house. Barnes and Gary testified that they threatened the couple with guns (and BB guns), and pistol-whipped the jeweler to get him to reveal the location of his money and open his safe. When they had collected all the cash, gold coins, watches, and jewelry they could find, they left and sped off in the car driven by Moscicki. They soon met up with McCoy and Nix, and Nix demanded that all of the loot be transferred to his vehicle.
As usual, McCoy and Nix were “the ones that did the splitting and division of” the loot (Tr. 2912). They divided most of it between themselves; they gave Barnes, Clarence, and Gary $3,300 each and allowed each to take a watch. (See id. at 2911-15.)
Defendants’ operation began to unravel shortly thereafter when Clarence—despite admonitions by McCoy and Nix not to try to sell the watches in or near Rochester—tried a week later to pawn his chosen watch in Rochester.
C. The Defense Case
Neither McCoy nor Nix testified at trial. They called two witnesses from law enforcement who described possible inconsistencies between various witnesses’ trial testimony and their respective prior statements. A Special Agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified that Gary Lambert, in response to postarrest questioning about the Polo Place robbery, did not mention McCoy except to say that McCoy did not enter the building; and that Gary did not
D. Jury Instructions and the Verdicts
In charging the jury, the district judge segmented its deliberations, giving instructions first on Counts 1-8 and 11-12, leaving Counts 9 and 10, which charged Nix and McCoy, respectively, with firearm possession as a convicted felon, for later consideration.
As to the first group of counts to be considered, the court described the subject of each count of the Indictment, to wit: Count 1, conspiracy to commit Hobbs Act robbery; Count 2, brandishing firearms during and in relation to that conspiracy; Counts 3 and 5, the Hobbs Act attempted robberies at Hayward Avenue and Garson Avenue, respectively; Counts 4 and 6, brandishing firearms during and in relation to the Hobbs Act robbery attempts charged in Counts 3 and 5, respectively; Count 7, the narcotics possession-and-distribution conspiracy; Count 8, possession of firearms in furtherance of the Count 7 narcotics conspiracy; Count 11, the Hobbs Act robbery at Polo Place; and Count 12, brandishing firearms during and in relation to the Polo Place robbery.
With respect to Count 1, the court explained that conspiracy to commit a crime is itself a crime separate from and independent of the crime that is the objective of the conspiracy; that the government was required to prove beyond a reasonable doubt that “the minds of at least two alleged conspirators met in an understanding way to meet the objectives of the conspiracy” (Tr. 3767); and that the objectives alleged in this case were
the robbery of diamonds, watches and United States currency from a person engaged in the business of buying and selling diamonds, watches and other items shipped and transported in interstate and foreign commerce; and the robbery of controlled substances and United States currency from persons engaged in or believed to be engaged in the unlawful possession and distribution of controlled substances,
(id. at 3768-69). The court reiterated that in order to find a defendant guilty on Count 1, the jury must find that “the defendant under consideration knowingly and willfully became a participant in or member of the conspiracy.” (Tr. 3769.)
With respect to Counts 2, 4, 6, and 12, charging defendants with brandishing firearms during a crime of violence (the “brandishing counts“), the court instructed that the government was required to prove that each defendant committed the predicate crime of violence, i.e., the Hobbs Act offenses alleged in Counts 1, 3, 5, and 11, respectively; and it instructed that “Hobbs Act conspiracy, attempted Hobbs Act robbery and Hobbs Act robbery all constitute crimes of violence.” (Tr. 3787.) However, the court instructed that if the jury found a given defendant not guilty on a particular Hobbs Act count, the jury was not to consider against that defendant the brandishing count for which that Hobbs Act count was a predicate.
The court also instructed that, except with respect to the counts charging defendants with conspiracy or with firearm possession as a convicted felon, the Indictment
In addition, with respect to the substantive crimes alleged in Counts 2-6, 8, and 11-12, the court—over defendants’ objections—gave a Pinkerton charge, see Pinkerton v. United States, 328 U.S. 640 (1946), instructing the jury that, as to “reasonabl[y] foreseeable acts” of any member of the conspiracy (Tr. 3804), [i]f you find beyond a reasonable doubt that the defendant whose guilt you are considering was a member of the conspiracy charged in the indictment, then any acts done or statements made in furtherance of the conspiracy by persons also found by you to have been members of the conspiracy may be considered against that defendant. This is so even if such acts were done and statements were made in a defendant‘s absence and without his knowledge (id. at 3804-05).
The jury after deliberating for less than three hours, found McCoy and Nix guilty on Counts 1-8 and 11-12.
The court then turned to Counts 9 and 10, which charged Nix and McCoy, respectively, with being a felon in possession of firearms on September 23, 2014. It informed the jury that defendants and the government had “stipulated that prior to September 23, 2014,” Nix and McCoy had each “been convicted of a crime punishable by imprisonment for a term exceeding one year.” (Tr. 3873.) The court instructed that “[i]t is not necessary that the government prove that a defendant knew that the crime was punishable by imprisonment for more than one year.” (Id. at 3874.) After brief deliberations, the jury returned verdicts of guilty on both counts.
Defendants thereafter moved for, inter alia, a new trial on the ground that they had recently discovered that one of the jurors was a previously convicted felon and had failed to disclose his criminal history during jury selection. As discussed in Part II.A. below, the district court, following an evidentiary hearing at which the juror testified, denied the motion, see United States v. Nix, 275 F.Supp.3d 420 (W.D.N.Y. 2017) (”Nix I“).
E. Sentencing
Defendants were sentenced in October 2017 under the advisory Sentencing Guidelines (“Guidelines“), pursuant to calculations they do not challenge on appeal. Each was sentenced principally to imprisonment totaling 30 years for Counts 1, 3, 5, 7, 11, and the felon-in-possession counts (Count 9 for Nix, Count 10 for McCoy), to be followed by 25-year terms for each of Counts 2, 4, 6, and 12. Nix, whose prior record included a
Defendants promptly appealed the judgments of conviction. Thereafter they moved in the district court for reconsideration of the denial of their motions for a new trial on the ground of juror misconduct. Following the denial of reconsideration, see United States v. Nix, No. 6:14-CR-06181, 2018 WL 1009282 (W.D.N.Y. Feb. 20, 2018) (”Nix II“), each defendant appealed that denial, and their four appeals were consolidated. Defendants filed their opening briefs, principally pursuing the contention that they are entitled to a new trial because of juror misconduct, and contending that their convictions on the brandishing counts should be reversed on the ground that the Hobbs Act conspiracy and robbery offenses of which they were convicted are not crimes of violence.
Thereafter, prior to the oral argument of their appeals, defendants sought and received permission to file supplemental briefs to contend that, in light of the Supreme Court‘s decision in United States v. Davis, 139 S. Ct. 2319 (2019), Hobbs Act conspiracy is not a crime of violence within the meaning of
II. DISCUSSION
On these appeals, defendants contend principally (1) that the juror‘s misconduct violated their Sixth Amendment rights to an impartial jury and entitled them to a new trial on all viable counts; (2) that none of the Hobbs Act offenses of which they were convicted qualifies as a crime of violence under
Several of defendants’ contentions are raised for the first time on these appeals. An error that has not been preserved by timely objection in the district court may be reviewed on appeal if it is “[a] plain error that affects substantial rights.”
“before an appellate court can correct an error not raised [in the district court], there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.‘”
United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (”Groysman“) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997) (which was quoting United States v. Olano, 507 U.S. 725, 732 (1993))).
The burden is on the appellant to meet all four criteria. See, e.g., United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004); Groysman, 766 F.3d at 155; United States v. Dussard, 967 F.3d 149, 156 (2d Cir. 2020). If all four are met, we have discretion to grant relief despite the defendants’ failure to preserve the issue in the district court for normal appellate review. See, e.g., Johnson, 520 U.S. at 467; Olano, 507 U.S. at 732.
For the reasons that follow, we find merit only in defendants’ contention that Hobbs Act conspiracy is not a crime of violence within the meaning of
A. The Motion for a New Trial Based on Juror Misconduct
About a month after the jury‘s final verdicts were returned, and prior to the imposition of sentences, McCoy and Nix moved pursuant to
1. The Juror Questionnaire and Voir Dire Proceedings
Prior to any oral voir dire at defendants’ trial, a questionnaire had been mailed by the court to prospective jurors. Question 6 asked: “Have you ever been convicted, either by your guilty or nolo contendere plea or by a court or jury trial, of a state or federal crime for which punishment could have been more than one year in prison?” J.B. answered this question by checking “No.” Nix I, 275 F.Supp.3d at 445 & n.4.
In addition, during the oral voir dire--to the extent “relevant to these post-verdict motions,” id. at 426 n.6--the court addressed the following questions to a panel of 36 prospective jurors who had been placed under oath, including J.B.:
(1) “Has anyone ever been the victim of a home robbery?” ([Tr.] 97);
(2) “Has anyone ever served on a jury before?” (id. at 205);
(3) “Has anyone ever been a defendant in a criminal case?” (id. at 214);
(4) “Has anyone ever visited a jail or correctional facility other than in connection with . . . your educational curriculum” (id. at 229);
(5) “Has anyone had anyone close to them, other than what we already discussed, . . . anyone close to them convicted of a crime?” (id. at 239).
Nix I, 275 F.Supp.3d at 426. Juror No. 3 “did not respond” to any of these questions. Id. at 425-26.
Similarly, Juror No. 3 did not offer any information in response to the Court‘s “catch-all” questions asked toward the end of voir dire: whether there was “anything in fairness to both sides that you think we should know that we haven‘t covered already” ([Tr.] 221), and “[i]s there anything that you think we should know that we haven‘t covered up to this point?” (id. at 257). Nix I, 275 F.Supp.3d at 426.
In support of their new-trial motion, defendants produced public records showing,
The district court ordered an evidentiary hearing (“Hearing“) at which Juror No. 3 testified, represented by appointed counsel. (See New Trial Hearing Transcript, June 12 and 14, 2017 (“H.Tr.“).) The government granted Juror No. 3 immunity with regard to any nonperjurious testimony he would give at the Hearing.
2. The Hearing
In response to questioning by the court at the Hearing, Juror No. 3 acknowledged that he had answered Question 6 on the preliminary questionnaire incorrectly. He testified that he had not been aware that his answer was incorrect. Age 46 when defendants’ trial proceedings began, Juror No. 3 testified that he had responded that he had no prior felony convictions because he assumed that the question referred only to crimes committed after the age of 21; that he was 17 or 18 at the time he was convicted; and that he believed convictions entered when he was younger than 21 had been expunged from his record. He also testified that he had not believed that his 1989 conviction for burglary required an affirmative answer because, although the sentence was two-to-four years, he “was offered six months in shock camp” and that is how he satisfied the sentence (H.Tr. 72-75); he testified that he did not “know that [he] actually had a felony” (id. at 83).
In addition, while conceding that the district court had not stated that its voir dire questions applied only to one‘s experiences over the age of 21, Juror No. 3 testified that he had also believed the five questions quoted above did not apply to crimes, convictions, or experiences prior to the age of 21. Juror No. 3 also testified that at the time of trial, he did not know his son had been convicted of a crime; he had not spoken to his son for several years prior to that time and learned of the conviction only a month before the Hearing. Juror No. 3 conceded that his failure to respond to the above five questions posed to the panel as whole was incorrect. (See id. at 83-85, 89-92, 168-69, 172-75; see also id. at 97-98 (stating that he had answered questions on previous calls for jury duty in the same way, on the assumption that they concerned events and experiences after the age of 21).)
When questioned further about his own prior record, Juror No. 3 also initially claimed that he had been falsely accused of both of the felonies of which he was convicted, and he claimed to have at best a hazy memory of events that had occurred 28 years earlier, when he was 17 or 18. He said he did not remember how many times he had been convicted of crimes punishable by more than one year in prison. And while he recalled being convicted of breaking into a clothing store when he was 17 or 18, and serving six months in “shock camp” for that crime, he did not remember such aspects as the location of the shock camp, the names of all of his codefendants, whether the prosecution was state or federal, or whether he had pleaded guilty or gone through a trial. (See id. at 72-76.) However, on the second day of the Hearing, Juror No. 3 was confronted with his signed confessions in both the burglary case and the stolen property case, and he
When asked whether he had wanted to serve as a juror in this case, Juror No. 3 three times responded “Yes” (H.Tr. 93, 96); when asked why, he stated it was because he was picked, and he believed it was his right and his duty (see id. at 93). He stated that he is able to vote, and he did not know that having a prior felony conviction disqualified him from serving as a juror. (See id. at 82.) However, when later again asked whether he had wanted to serve as a juror in this case, Juror No. 3 answered “No” (id. at 97, 235, 242, 243). He testified he had answered yes to that question previously because he was “confused about the question” (id. at 242). He said that he had not been happy to receive a summons for jury duty; that his false or inaccurate answers to the voir dire questions were not given out of any desire to serve on the jury (see id. at 94, 233-34); and that if he had known that by telling the court about his past experiences with the law he would have been excused, he would have done so (see id. at 97, 240, 243).
Juror No. 3 answered “No” to all questions as to whether his prior experiences with the law had caused him to be biased for or against the defendants or for or against the government, or had given him reason to credit the testimony of cooperating witnesses against the defendants.
3. The District Court‘s Ruling
In a thorough opinion, Nix I, 275 F.Supp.3d 420, the district court denied defendants’ motion for a new trial based on juror misconduct. It rejected their contention that Juror No. 3‘s felony conviction, absent any showing of bias, automatically warranted the granting of a new trial based on the statutory disqualification of convicted felons from serving on federal juries, see
Rather, pointing to “the Sixth Amendment‘s guarantee to a trial by an impartial jury,” and noting that “‘[a]n impartial jury is one in which all of its members, not just most of them, are free of interest and bias,‘” Nix I, 275 F.Supp.3d at 424 (quoting United States v. Parse, 789 F.3d 83, 111 (2d Cir. 2015) (”Parse“))--but that a defendant is “‘entitled to a fair trial but not a perfect one, for there are no perfect trials,‘” Nix I, 275 F.Supp.3d at 424 (quoting McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (”McDonough“))--the district court noted that
the Second Circuit has adopted a two-part test that a defendant must establish in order to justify granting a new trial based upon incorrect responses by a juror during voir dire: (1) the defendant must first demonstrate that the juror “failed to answer honestly a material question on voir dire“; and (2) the defendant then must also demonstrate that “a correct response would have provided a valid basis for a challenge for cause“--in other words, the juror would have been excused for bias based on the correct voir dire response. Langford, 990 F.2d at 68-69 (quoting McDonough, 464 U.S. at 556-58 . . . ).
Nix I, 275 F.Supp.3d at 437 (emphases ours). The district court stated that under the first part of this test
the Court must assess whether Juror No. 3 deliberately lied or consciously deceived the Court, as opposed to providing inaccurate responses as a result of a mistake, misunderstanding or embarrassment. See McDonough, 464 U.S. at 555, 104 S.Ct. 845; Langford, 990 F.2d at 69-70 (finding where a juror‘s intentionally false statements at voir dire were caused by embarrassment, and there was no evidence “that she gave false answers because of any desire to sit on the jury,” it was proper for the district court to deny the defendant‘s motion for a new trial . . . .
Nix I, 275 F.Supp.3d at 437-38 (emphasis ours).
The court here found that Juror No. 3 had made some intentionally false statements at voir dire; but it found that they were in no way motivated by a desire to sit on the jury:
The Court does not doubt that Juror No. 3‘s inaccurate testimony regarding his criminal record was due, in part, to the age of the convictions. However, given Juror No. 3‘s false testimony during the evidentiary hearing about his culpability for the two felony convictions, the Court does not credit Juror No. 3‘s explanation that he was confused by the voir dire questions or thought that the questions applied to criminal convictions only after the age of 21. Based on Juror No. 3‘s continued refusal to disclose the full extent of his criminal history during the evidentiary hearing--until faced with documentary evidence of the same--the Court concludes that Juror No. 3 failed to respond truthfully to the juror questionnaire and the Court‘s voir dire questions as they pertained to both his criminal convictions and his exposure to a jail.
However, this finding does not mean that the Court concludes that Juror No. 3 provided false information about his criminal record in an effort to intentionally deceive the Court so as to be selected to serve on the jury. Here, Juror No. 3 did not lie “for the purpose of securing a seat on the jury,” Parse, 789 F.3d at 111, nor can his lies be characterized as “premeditated and deliberate” so as to hide his true identity and ensure his selection on the jury, id. at 92-93.
Nix I, 275 F.Supp.3d at 447-48 (emphases ours).
The court found that the very fact that Juror No. 3 continued to lie about his criminal history at the evidentiary Hearing, after having been granted immunity for nonperjurious Hearing testimony, indicated he had a persisting motive for refusing to be honest about his criminal past at the Hearing until confronted with documentary evidence. The court was persuaded that “his motives had nothing to do with securing a seat on this jury.” Id. at 448. While the court was “not persuaded that Juror No. 3 misunderstood the scope of the questions as only applying to convictions at the age of 21 and older, when responding to either this Court or other courts in the past,” id., it found that Juror No. 3‘s motivation for the inaccurate responses was not nefarious, but
rather, . . . more likely originates from the simple fact that, at 47 years old, Juror No. 3 would prefer to shut out any recollection of his criminal history--the most recent of which (if [a] domestic violence incident from 1999 is included) was about 20 years ago, and most of which occurred when he was a teenager.
Id. Thus, although the court found “that Juror No. 3 testified falsely about certain
reject[ed] the notion that Juror No. 3 intentionally deceived the Court during voir dire as to his criminal history so as to gain a seat on the jury. Although Juror No. 3‘s voir dire answers regarding his criminal history were inaccurate, the Court cannot conclude that they rise to the level of intentional falsehood necessary to satisfy the first prong of the McDonough test.
Id. (emphases added).
The court further saw no evidence from which to find or infer that Juror No. 3 had had any bias, whether actual, implied, or inferred. As to actual bias, i.e., “‘the existence of a state of mind that leads to an inference that the person will not act with entire impartiality,‘” Nix I, 275 F.Supp.3d at 449 (quoting United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (”Torres“), cert. denied, 523 U.S. 1065 (1998)), the court found that
[t]his was plainly not a case of Juror No. 3 wanting to hide information about his past to make himself more marketable as a juror, like the juror in Parse. Early in the voir dire, Juror No. 3 expressed reservations about serving because of his job responsibilities. (Dkt. 328 at 41). During the jury selection, Juror No. 3 was frustrated with the Court about the length of the proceedings (see Dkt. 359 at 238-39), and in fact, once selected to serve, he left the courtroom as the Court was still informing the jurors about some housekeeping matters (see Dkt. 327 at 32).
Nix I, 275 F.Supp.3d at 450 (emphasis added). Further, there was
no evidence that Juror No. 3 knew that disclosure of his criminal record would have disqualified him from jury service. The Court believes that if Juror No. 3 had known this information, his reluctance to be honest about his criminal history would have likely been overcome by a desire to avoid jury service. In sum, the Court finds that there is no evidence of actual bias on the part of Juror No. 3, in favor of or against either the Government or Defendants. Even evaluating the facts in the light most favorable to Defendants (which is not the standard), no actual bias has been shown in this case. There is just no proof that Juror No. 3 intentionally lied to smuggle his way onto the jury.
Id. at 451 (emphases added).
Nor did the court find any basis to find “implied bias“--a concept that is “reserved for ‘extreme situations‘” warranting a conclusive presumption of bias as a matter of law. Id. (quoting United States v. Greer, 285 F.3d 158, 172 (2d Cir. 2002) (”Greer“)); see, e.g., Torres, 128 F.3d at 45. Implied bias generally “‘deals mainly with jurors who are related to the parties or who were victims of the alleged crime itself.‘” Nix I, 275 F.Supp.3d at 451 (quoting Greer, 285 F.3d at 172 (other internal quotation marks omitted)). The court found that Juror No. 3 had no relationships with any of the parties, victims, witnesses, or attorneys; and it saw “no [other] fact in the record which, had it been elicited during jury selection, would have required the Court to automatically assume bias on the part of Juror No. 3 or that Juror No. 3 was prejudiced against Defendants or in favor of the Government.” Nix I, 275 F.Supp.3d at 451.
Finally, the district court found no evidence from which it should “infer” bias. It noted that
“[b]ias may be inferred when a juror discloses a fact that
bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.”
Id. at 453 (quoting Torres, 128 F.3d at 47 (emphases ours)); see, e.g., Greer, 285 F.3d at 172 (findings as to inferred bias lie “within the discretion of the trial court“). After reviewing all of the evidence and defense contentions before it, the court concluded that there was no evidence to support defendants’ contention that Juror No. 3 had “had bad experiences with law enforcement” or that his experiences would cause him to be biased against defendants; and it found no evidence to support their contention that because Juror No. 3 had pleaded guilty in a case in which he had codefendants, he would be predisposed to credit the views of cooperating witnesses and thus be biased against defendants. Id. (internal quotation marks omitted). The court also deemed the mere existence of Juror No. 3‘s criminal history--nearly three decades old--too remote to warrant inferring bias.
The district court further found that defendants’ own jury selection strategy strongly suggested the absence of reason to infer that Juror No. 3 was biased against defendants based on his criminal record: When the government moved, during jury selection, to dismiss a prospective juror (“T.P.“) for cause upon learning that T.P. had prior felony convictions that he had not disclosed, defendants vigorously objected to T.P.‘s dismissal. Nix I, 275 F.Supp.3d at 426-27, 429; see also id. at 453 (“McCoy even admits that it would have been the Government who challenged Juror No. 3 for cause if his criminal history had been revealed.“).
In sum, the court concluded that defendants also failed to meet the second prong of the McDonough test because it concluded that
[t]here is no actual bias because there is no finding of partiality based upon either the juror‘s own admission or the judge‘s evaluation of the juror‘s demeanor and credibility following voir dire questioning as to bias,
id. at 453 (internal quotation marks and emphasis omitted); that
there is no implied bias because the disclosed fact does not establish the kind of relationship between the juror and the parties or issues in the case that mandates the juror‘s excusal for cause,
id. (internal quotation marks and emphasis omitted); and that
the record does not provide a basis to infer bias. Even if the first prong of the McDonough test was satisfied, there is no evidence of extreme deceit (such as in Parse) that would support the showing required under McDonough‘s second prong. Put simply, the Court does not believe that the deliberateness of [Juror No. 3‘s] particular lies evidenced partiality . . . ; and even if Juror No. 3 did intentionally attempt to deceive the Court, the deliberateness of his lies is not sufficiently intentional or premeditated so as to, in and of themselves, establish bias under the second prong,
Nix I, 275 F.Supp.3d at 454 (internal quotation marks omitted (emphases added)).
4. Abuse-of-Discretion Review
A district court‘s denial of a Rule 33 motion for a new trial is reviewable for abuse of discretion. See, e.g., Parse, 789 F.3d at 110. A court abuses its discretion if (1) it takes an erroneous view of the law, (2) its decision rests on a clearly erroneous finding of fact, or (3) its decision “cannot be located within the range of permissible decisions.” Id. We see no such flaws in the denial at issue here.
First, we see no error in the district court‘s ruling that the statutory disqualification
In light of the procedural limitations imposed by
In Silverman, which concerned a juror who was disqualified under
The district court instead properly turned to the question of whether the presence of Juror No. 3 on the jury violated defendants’ rights under the
As was well within its prerogative as finder of fact, the court found Juror No. 3 to have been truthful in some parts of his testimony while not in others. The court here relied on, inter alia, its observation of Juror No. 3‘s “facial expressions, demeanor, and intonation“; it noted that Juror No. 3 appeared to be unsophisticated and had demonstrable “problems understanding the questions and expressing himself clearly,” Nix I, 275 F.Supp.3d at 440; and it drew permissible inferences both with respect to the likely truthfulness of Juror No. 3‘s explanations for his inaccuracy about, for example, the life experiences of his relatives, and with respect to the likely motivation for Juror No. 3‘s false statements at the Hearing and on voir dire about his own criminal history. Although defendants view Juror No. 3‘s statements as “dubious” or “not ring[ing] true” (McCoy brief on appeal at 69, 70), the court explored the possible sources of bias on the part of Juror No. 3 and found none. The record does not support a conclusion that the court erred in its assessments of Juror No. 3‘s credibility or in its ultimate conclusion that his false statements as to his criminal history were not motivated by any desire to serve as a juror in the present case.
Accordingly, we see no error of law or clearly erroneous finding of fact, and no other basis for overturning the district court‘s ruling that the record does not suggest that Juror No. 3 had any bias against defendants or in favor of the government, and its consequent denial of defendants’ juror-misconduct-based motion for a new trial.
5. Defendants’ Postjudgment Motion for Reconsideration
Nor is there merit in defendants’ appeals from the denial of their postjudgment motion for reconsideration of the denial of their Rule 33 new-trial motion. A motion for reargument, while proper for calling to the court‘s attention controlling decisions or data the court has overlooked, is inappropriate for the presentation of new facts or contentions, or for an attempt to reargue old ones. See, e.g., Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). The denial of a motion for reconsideration is reviewable only for abuse of discretion. See, e.g., United States v. Bayless, 201 F.3d 116, 131 (2d Cir.), cert. denied, 120 S. Ct. 1571 (2000).
The district court denied defendants’ motion for reargument in part because it was based on supposedly new evidence that was not new; and it was unaccompanied by a showing of diligence as to why the evidence had not been sought or discovered earlier. See Nix II, 2018 WL 1009282, at *3-*4. The court also found that what defendants proffered was not sufficiently significant to influence the decision of the Rule 33 motion.
What defendants sought to introduce as new evidence was “actual evidence” that Juror No. 3 had been “arrested” for burglary in 1989. Nix II, 2018 WL 1009282, at *5. The record is clear, however, that “[i]n rendering its decision [in Nix I], the Court was already aware that there was some evidence that Juror No. 3 was arrested for a home burglary in May of 1989,” Nix II, 2018 WL 1009282, at *5; see, e.g., Nix I, 275 F.Supp.3d at 453 n.30 (“There is some evidence in the record that Juror No. 3 may have been arrested for burglarizing a home in May of 1989 (when he was 19 years old). . . . Juror No. 3 had no recollection of this alleged incident, and there is no evidence that he was convicted of this crime.” (emphasis added)).
Thus, defendants’ “new” evidence concerned an arrest that had in fact been discussed at the Hearing. And defendants’ desire to renew a challenge to Juror No. 3‘s claimed lack of memory--of an arrest not shown to have led to a conviction--hardly seems likely to shed light on the material issue of whether Juror No. 3‘s failure to disclose any part of his criminal history was motivated by a desire to be seated as a juror for the trial in this case.
As to that material issue, the court reaffirmed its Nix I assessment of Juror No. 3‘s credibility and motivation:
Having observed Juror No. 3 firsthand during the course of the trial and the two-day evidentiary hearing, this Court rejects the notion that Juror No. 3 lied during voir dire so as to secure a spot on the jury.
Nix II, 2018 WL 1009282, at *5. The district court correctly stated that “Defendants are not entitled to reconsideration merely because they disagree with the outcome of the Rule 33 Denial Order and the Court‘s determination as to Juror No. 3‘s alleged bias . . . .” Id.
We see nothing in the record to suggest that the denial of defendants’ request for reconsideration of their juror-misconduct-based motion for a new trial constituted an abuse of the district court‘s discretion.
B. Which Hobbs Act Offenses Are Crimes of Violence Within the Meaning of § 924(c)
The crimes on which defendants’ brandishing-count convictions are predicated are offenses proscribed by the Hobbs Act (or
affect[ing] commerce . . . by robbery . . . or attempt[ing] or conspir[ing] to do so, or commit[ting] or threaten[ing] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section.
mean[] the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
McCoy and Nix, convicted of three types of Hobbs Act offenses--robbery (Count 11), conspiracy to commit robbery (Count 1), and attempted robbery (Counts 3 and 5)--contend that none of the Hobbs Act crimes are crime of violence. We agree only with respect to Hobbs Act conspiracy.
1. Hobbs Act Conspiracy
Defendants’ convictions on the brandishing charge in Count 2 of the Indictment were predicated on their convictions of the Hobbs Act conspiracy alleged in Count 1. It is now established that Hobbs Act conspiracy is not a crime of violence within the meaning of
In United States v. Barrett, 903 F.3d 166 (2d Cir. 2018) (”Barrett I“), vacated and remanded for further consideration, 139 S. Ct. 2274 (2019), we had affirmed the defendant‘s convictions on several
While the present appeals were pending, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), ruling that
Accordingly, we conclude, and the government agrees, that defendants’ convictions on Count 2 must be reversed, and the case remanded for resentencing.
2. Hobbs Act Robbery
Defendants’ contention that Hobbs Act robbery is also not a crime of violence within the meaning of
[a]s relevant here, the categorical approach requires us to consider the minimum conduct necessary for a conviction of the predicate offense (in this case, a Hobbs Act robbery), and then to consider whether such conduct amounts to a crime of violence under
§ 924(c)(3)(A) .
We noted that subpart (3)(A) of
Hill‘s conclusion that Hobbs Act robbery is a crime of violence within the meaning of
Although McCoy and Nix contend that Hobbs Act robbery is not categorically a crime of violence even under
In sum, defendants’ contention that Hobbs Act robbery is not a crime of violence within the meaning of
3. Hobbs Act Attempted Robbery
Defendants’ contention that their firearm-brandishing convictions on Counts 4 and 6 should be reversed on the ground that the offense of Hobbs Act attempted robbery (Counts 3 and 5) does not constitute a crime of violence--a contention not raised in the district court, and thus reviewable only under plain-error analysis--is also unpersuasive. We address this issue as to the nature of the Act‘s prohibition of attempted robbery, which is one of first impression in this Circuit, again using the categorical approach.
As set out above, the surviving
“Under federal law, ‘[a] person is guilty of an attempt to commit a crime if he or she (1) had the intent to commit the crime, and (2) engaged in conduct amounting to a “substantial step” towards the commission of the crime.‘” United States v. Thrower, 914 F.3d 770, 776 (2d Cir.) (”Thrower“) (quoting United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985)), cert. denied, 140 S. Ct. 305 (2019). This means that, for substantive crimes of violence that include the use of physical force as an element, defendants also commit crimes of violence when commission of those crimes is attempted--because such attempts necessarily require (a) an intent to complete the substantive crime (including an intent to use physical force) and (b) a substantial step towards completing the crime (which logically means a substantial step towards completion of all of that crime‘s elements, including the use of physical force). See United States v. Taylor, 979 F.3d 203, 209 (4th Cir. 2020) (”Taylor“). Because we held in Hill that Hobbs Act robbery categorically constitutes a crime of violence, see 890 F.3d at 53, it follows as a matter of logic that an “attempt[]” to commit Hobbs Act robbery--which the statute also expressly prohibits, see
McCoy and Nix next argue that Hobbs Act attempted robbery does not categorically constitute a crime of violence because substantive Hobbs Act robbery need not always involve the actual use of force; rather, the statute defines “robbery” as “the unlawful taking . . . of personal property . . . by means of actual or threatened force.”
However, even though it is theoretically possible that a defendant could be charged with Hobbs Act attempted robbery under such an attempt-to-threaten theory, we have made clear that “to show a predicate conviction is not a crime of violence ‘requires more than the application
McCoy and Nix have failed to make such a showing here. They point to no case in which a defendant has been convicted of Hobbs Act attempted robbery premised on an attempted “threat[]” to use force, and we are aware of none. And for good reason: For purposes of the federal crime of attempt, a “substantial step” means conduct (a) that is “planned to culminate in the commission of the substantive crime being attempted,” Farhane, 634 F.3d at 147 (internal quotation marks omitted (emphasis ours)), and (b) that “is strongly corroborative of the criminal intent of the accused,” United States v. Davis, 8 F.3d 923, 927 (2d Cir. 1993). It is difficult even to imagine a scenario in which a defendant could be engaged in conduct that would “culminate” in a robbery and that would be “strongly corroborative of” his intent to commit that robbery, but where it would also be clear that he only “attempt[ed]” to “threaten[],” and neither used nor even actually “threatened” the use of force.
Indeed, in Thrower we made a similar observation when considering whether the New York crime of attempted third-degree robbery involves the “attempted use . . . of physical force” within the meaning of
In sum, we hold that Hobbs Act attempted robbery qualifies as a crime of violence under
4. Liability for Aiding-and-Abetting
Finally, McCoy and Nix contend--for the first time on these appeals--that their
There is no culpable aiding and abetting without an underlying crime committed by some other person; and aiding and abetting itself is not the predicate crime for firearm brandishing under
The crime charged in a prosecution for aiding and abetting a Hobbs Act robbery is thus Hobbs Act robbery. Accord In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016) (“Because an aider and abettor is responsible for the acts of the principal as a matter of law, an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery.“); United States v. Deiter, 890 F.3d 1203, 1215-16 (10th Cir.) (courts should look to “the underlying statute of conviction, rather than § 2, to decide whether [§ 924(c)(3)(A)] is satisfied“), cert. denied, 139 S. Ct. 647 (2018).
If the underlying offense is a crime of violence, it is a predicate for
C. Instructional and Sufficiency Challenges
Defendants also make several other challenges to their convictions, principally contending that, in light of the Supreme Court‘s decision in Rehaif, their
1. The Rehaif Challenges
On Counts 9 and 10, respectively, Nix and McCoy were convicted of having been in possession of firearms on September 23, 2014, in violation of
While the present appeals were pending, the Supreme Court in Rehaif, which involved a defendant convicted under a different
In charging the jury in the present case, the district court instructed that each defendant had “stipulated” with the government “that prior to September 23, 2014,” he had in fact “been convicted of a crime punishable by imprisonment for a term exceeding one year” (Tr. 3873); but it did not instruct that the jury must find that, when they possessed firearms on that date defendants knew they had been convicted of a crime that was punishable by imprisonment for more than one year. Defendants contend that they are thus entitled to have their convictions on Counts 9 and 10 vacated and the matter remanded for further proceedings. We disagree. As defendants neither requested an instruction as to their knowledge of their felony status nor objected to the instructions that were given, we review these challenges only for plain error, and we conclude that defendants do not meet that standard.
In light of Rehaif, it was error not to instruct that the government was required to prove defendants’ knowledge of their status as convicted felons at the time of their firearm possession; and that error is plain, see, e.g., Henderson v. United States, 568 U.S. 266, 279 (2013) (“it is enough that an error be ‘plain’ at the time of appellate consideration for [t]he second part of the [four-part] Olano test [to be] satisfied” (other internal quotation marks omitted)); United States v. Balde, 943 F.3d 73, 97 (2d Cir. 2019). Thus, the first two prongs of plain-error analysis have been met.
It is also arguable that the third prong of the plain-error test--an error affecting substantial rights--may have been met. The Supreme Court in Rehaif, while noting that, as to the relevant status element of
In the present case, while McCoy and Nix stipulated that they had previously been convicted of crimes punishable by imprisonment for a term exceeding one year, their stipulations neither included acknowledgement that they knew those crimes were punishable to that extent nor specified the length of the sentences actually imposed on them. And the government has not called to our attention any trial evidence from which the jury, if properly instructed, could have found beyond a reasonable doubt that they had such knowledge.
In a case raising post-Rehaif issues similar to those here, we “decline[d] to decide whether a properly-instructed jury would have found that [the defendant] was aware of his membership in
Accordingly, we concluded that the Miller trial court‘s failure to instruct the jury on the element of whether the defendant knew he was a convicted felon “did not rise to the level of reversible plain error” because it does no disservice to the judicial system to hold that a person who was sentenced to and served a prison term of more than one year must have been aware of both the extent of his sentence and the length of time he spent in prison. Id. We have reached the same result in other post-Rehaif cases in which the district court records revealed that the defendant had received, and had served, a prison sentence exceeding one year. See, e.g., United States v. Sandford, 814 F. App‘x 649, 652-53 (2d Cir. 2020); United States v. Smith, 814 F. App‘x 634, 635-36 (2d Cir. 2020); United States v. Goolsby, 820 F. App‘x 47, 50 (2d Cir. 2020); United States v. Johnson, 816 F. App‘x 604, 607-08 (2d Cir. 2020); United States v. Frye, 826 F. App‘x 19, 23-24 (2d Cir. 2020); United States v. Feaster, 833 F. App‘x 494, 497 (2d Cir. 2020).
The district court record in the present case includes PSRs with similar details--unobjected to by McCoy or Nix--as to the sentences actually imposed on them for their prior felony convictions and the amounts of prison time they served for those convictions. McCoy, in 2001, was convicted in New York State court, following his plea of guilty, on two felony counts of criminal possession of controlled substances and was sentenced to a prison term of 54 months to nine years; as a result he was imprisoned for nearly six years. Nix, in 2008, was convicted in federal court, following his plea of guilty, of possession of narcotics with intent to distribute and possession of a firearm in furtherance
On this record, we conclude that there can be no reasonable doubt that each of these defendants knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year. McCoy and Nix thus have not shown that the trial court‘s failure to instruct the jury that it must find that a defendant had such knowledge seriously affected the fairness, integrity, or public reputation of judicial proceedings. The unobjected-to error provides no basis for vacating the convictions on Counts 9 and 10.
2. Nix‘s Sufficiency Challenges
Nix contends that the evidence at trial was insufficient to convict him on Count 7 of the Indictment, which charged the narcotics distribution conspiracy, and on Counts 3 and 4, which concerned the attempted robbery and use of firearms at Hayward Avenue. In considering a challenge to the sufficiency of the evidence to support a conviction, we view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in the government‘s favor, and deferring to the jury‘s assessments of witness credibility and the weight of the evidence. See, e.g., United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019), cert. denied, 140 S. Ct. 846 (2020); United States v. O‘Brien, 926 F.3d 57, 79 (2d Cir. 2019); United States v. Praddy, 725 F.3d 147, 152 (2d Cir. 2013). With the evidence at trial viewed in that light, and considered as a whole rather than piecemeal, see, e.g., United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994), cert. denied, 513 U.S. 1135 (1995); United States v. Brown, 776 F.2d 397, 403 (2d Cir. 1985), cert. denied, 475 U.S. 1141 (1986), a conviction will be upheld so long as, “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 (1979) (emphasis in original).
In a prosecution for conspiracy to possess with intent to distribute a prohibited substance, the element of intent to distribute--as contrasted with an intent to possess only for personal use--“may be inferred from the volume of drugs with which defendant was associated or that was in his actual or constructive possession.” United States v. Anderson, 747 F.3d 51, 62 n.8 (2d Cir. 2014), cert. denied, 574 U.S. 850 (2014); see, e.g., United States v. Brockman, 924 F.3d 988, 993 (8th Cir. 2019) (finding that the district court did not clearly err in determining that “eight ounces [of marijuana] exceeded a user quantity“); United States v. Martinez, 964 F.3d 1329, 1334 (11th Cir. 2020) (“A pound, whether it‘s cocaine, heroin, marijuana, or methamphetamine, is more than personal users typically buy.“). And we have noted quantity is not always dispositive: “[A]ny amount of drugs, however small, will support a conviction when there is additional evidence of intent to distribute.” United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995).
Nix, in challenging the sufficiency of the evidence to support his Count 7 conviction of conspiracy to distribute narcotics, argues that there was no direct testimony that he engaged in narcotics distribution, and that Barnes testified that he never observed Nix engaging in such distribution. (See Nix brief on appeal at 55-56.) Given the record before us, and the fact
First, there was abundant proof of the existence of a robbery conspiracy whose principal members were McCoy, Barnes, Clarence and Gary Lambert, and Nix--who was called “Meech” (Tr. 1223). The evidence included, as described in Part I.A. above, the testimony of Barnes who admitted having engaged in 10-20 home invasions with Nix; and through Nix, Barnes met, and participated in home invasions with, Clarence, Gary, and McCoy. (See Tr. 1240, 1230-31.) Although Nix himself did not enter the invaded homes, he selected the persons to be robbed, conducted preliminary surveillance of targeted premises, planned the invasions, provided guns, and gave the men who would enter information as to what to expect and where to search (see, e.g., id. at 1239 (Barnes: “Meech would tell me the location and take me there and I would go in the house with somebody else“)). And while his associates were inside, Nix would wait for them in the car “either down the street or around the corner” (id. at 1236); the men who had entered would phone Nix to report whether they were finding the expected trove of money and/or drugs (see id. at 1236-37). When the men who had entered emerged with stolen property, they turned it over to Nix who, with McCoy, decided how it would be divided. (See, e.g., id. at 1237-40, 2912.)
Second, there was ample evidence that a principal goal of the conspiracy was to rob drug dealers. Barnes testified that in all but one instance, the residents of the invaded homes were persons Nix believed to be drug dealers. (See Tr. 1228.) And it was understood among the coconspirators that Nix and McCoy intended to sell the narcotics obtained in those robberies. (See, e.g., id. at 1238 (as to drugs obtained in such a robbery, “Meech would take it and sell it and give me what he felt like I should get off those“); id. (“[Meech] would sell the drugs and give me money, bring me money back off the drugs“).) Barnes testified that drug dealers were targeted precisely because they would have “[m]oney, drugs, drugs that we could sell.” (Id. at 1228.)
For example, Barnes testified that for the September 23 burglary, Nix drove him to Maple Street and identified the intended house; Nix then phoned McCoy and Clarence. After McCoy and Clarence arrived and got into Nix‘s car, Nix and McCoy told Barnes and Clarence what kind of drugs they would find in the house and said that drugs could be found hidden in the walls. (See Tr. 1312-15.) Barnes testified that the “plan . . . if [they] got drugs from inside that house,” was that “Meech and P was going to sell” the drugs and give Barnes and Clarence some of the proceeds. (Id. at 1316.)
According to plan, Barnes and Clarence, armed with guns, entered the Maple Street house and, as predicted by Nix, found cash and drugs. Barnes phoned Nix from the house and said, “We hit the jackpot“; Nix told him to “Get everything and I‘ll be there . . . I‘m coming.” (Tr. 1321.) What they found in the Maple Street house included 10-12 “large” ziplock bags--an estimated eight inches by six or eight inches--“full of weed.” (Id. 1322-33.) Nix, McCoy, Barnes, and Clarence then went to Barnes‘s then-house, and Nix--who had taken possession of the $7-10,000 in cash that Barnes and Clarence had found--gave Barnes and Clarence each $1,000. “[Nix] took all of the drugs” (Tr. 1332); and McCoy and Barnes subsequently “bought capsules to package the” marijuana “[s]o we could sell it” (id.).
The jury could also infer that the amounts of narcotics stolen by the conspirators
In sum, the evidence was ample to allow the jury to find that Nix was part of a conspiracy whose express goal was to rob drug dealers of narcotics in quantities sufficient to allow members of the conspiracy to be drug dealers themselves.
In challenging his conviction on Counts 3 and 4 with respect to the Hayward Avenue attempted robbery, Nix argues that the cellphone evidence that he was near that location at the time of that event was “dispute[d],” and that “mere presence at the scene of a crime, even when coupled with knowledge that at that moment a crime is being committed is insufficient to establish the defendant‘s participation in criminal activity.” (Nix brief on appeal at 56, 55 (internal quotation marks omitted).) This argument is meritless as well.
As discussed above, coconspirators at trial described the usual operations of the conspiracy, in which Nix organized and planned the home invasions and remained nearby while they took place, and the men who actually entered the homes would telephone Nix after entering and inform him of what they found. One of the armed men who broke into the Hayward Avenue home, expecting to find drugs, was identified at trial as McCoy. After he and the other invader failed to find any drugs, McCoy made a telephone call in which one of the victims heard him report that “there was nothing in the house” (Tr. 1082). Evidence of telephone and cellphone tower records identified calls between phones of McCoy and Nix, both of which were in the immediate vicinity of the Hayward Avenue residence during the time of this robbery attempt; and both defendants’ phones were tracked to the house of Nix‘s mother immediately thereafter. (See, e.g., Tr. 3133-39.)
Thus, although Nix did not himself enter the home, the evidence was plainly sufficient to permit the jury to find him guilty of the Counts 3 and 4 substantive offenses of attempted robbery and firearm use on Hayward Avenue, either by aiding and abetting the attempted robbery (see generally Part II.B.4. above) or on the Pinkerton theory of conspiratorial vicarious liability, to which we now turn.
3. Nix‘s Pinkerton Challenge
Nix contends that it was error for the district court to give the jury a Pinkerton charge, which informs the jury that it may find a defendant guilty of a substantive offense that he did not personally commit if it was committed by a coconspirator in furtherance of the conspiracy, and if commission of that offense was a reasonably foreseeable consequence of the conspiratorial agreement, see Pinkerton, 328 U.S. at 646-48. Nix argues that such an instruction was improper here, claiming that the evidence of conspiracy was “sufficiently thin that the charge invite[d] the jury” to “infer[] the conspiracy from the substantive offense.” (Nix brief on appeal at 60.) This argument lacks any foundation in the evidentiary record or in the instructions as given.
To begin with, the court expressly instructed the jury that, in order to find a defendant guilty of a substantive offense committed by another person on this theory of conspiratorial vicarious liability, it must first find beyond a reasonable doubt that both the defendant and the person
Further, the evidence supporting the charges of conspiracy was anything but “thin.” As discussed above, the testimony of Gary, Moscicki, and Barnes, who were coconspirators of McCoy and Nix--which plainly was credited by the jury--abundantly established the existence of a conspiracy, i.e., an agreement among Nix, McCoy, Gary and Clarence Lambert, Barnes, and others to act together to commit home invasions, principally against persons thought to be drug dealers, and indeed established that Nix was the conspiracy‘s principal leader. We see no Pinkerton error.
D. Resentencing
When the district court sentenced McCoy and Nix in 2017,
In supplemental briefing, defendants argue--in the event that their requests for a new trial and their challenges to the viability of any of their
While defendants’ concept of finality is generally correct, its applicability here is unclear. With respect to the temporal applicability of its provisions, the First Step Act provides that its amendments to
In Davis, the Supreme Court itself described Congress in the First Step Act as having “changed the law . . . going forward.” 139 S. Ct. at 2324 n.1 (emphasis added). However, a week before Davis was filed, the Supreme Court in Richardson II had granted certiorari and remanded, stating, without other substantive comment, “[j]udgment vacated, and case remanded to the United States Court of Appeals for the Sixth Circuit for the court to consider the First Step Act of 2018, Pub. L. No. 115-391 (2018),” 139 S. Ct. at 2713-14--in a case that had been the subject of appellate review in the court of appeals and the Supreme Court for several years with respect to a sentence originally imposed on the defendant in 2013 and reimposed in 2017, see Richardson I, 906 F.3d at 421-22. Nonetheless, the Supreme Court denied further review after the Sixth Circuit, following the Richardson II remand, concluded that retroactive FSA relief was unavailable to Richardson because “[i]n the general context of criminal sentencing, a sentence is ‘imposed’ when the trial court announces it, not when the defendant has exhausted his appeals from the trial court‘s judgment,” United States v. Richardson, 948 F.3d 733, 748 (6th Cir.) (”Richardson III“), cert. denied, 141 S. Ct. 344 (2020) (”Richardson IV“).
In Brown, we quoted the Davis Court‘s “‘changed the law . . . going forward‘” language, but we also stated that “at the resentencing, which will occur as a result of our remand, Brown will have the opportunity to argue that he is nevertheless entitled to benefit from section 403(b) of the [FSA].” 935 F.3d at 45 n.1.
Here too, as we have reversed defendants’ convictions on Count 2 and are remanding for resentencing, we leave it to the district court in the first instance to consider the applicability of the First Step Act to McCoy and Nix in light of the possible temporal limitation on retroactivity dictated by Congress‘s reference to the time when a sentence was “imposed.” We also note that although Nix adopts without elaboration the arguments made by McCoy for First Step Act relief, the results might not be the same for both defendants because, leaving aside common questions as to the FSA‘s temporal applicability, differences in the criminal records of McCoy and Nix (see Part I.E. above) may dictate different outcomes.
CONCLUSION
We have considered all of defendants’ arguments on these appeals and, except as
Should any appeal ensue after resentencing, either party may restore our jurisdiction pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), in which event the appeal will be referred to this panel.