UNITED STATES OF AMERICA, Appellee–Cross-Appellant, -v.- SHAMEKE WALKER, Defendant-Appellant–Cross-Appellee.
Nos. 18-1933, 18-2085
United States Court of Appeals For the Second Circuit
Decided: September 11, 2020
August Term, 2019 (Argued: December 6, 2019)
Before: JACOBS, CARNEY, and PARK, Circuit Judges.
Following his arrest for a 2015 attempted robbery of a convenience store in Brooklyn, Defendant-Appellant Shameke Walker was charged with (1) one count of Hobbs Act Robbery, in violation of
Walker timely appealed, challenging his convictions on Counts Three and Four, attacking several evidentiary rulings made by the District Court, and contesting the District Court’s denial of his motion for a new trial. The government cross-appealed, arguing that binding Second Circuit precedent compels the conclusion that New York Robbery in the Second Degree is a “violent felony” within the meaning of the ACCA and that the District Court’s sentence was therefore based on an erroneous legal conclusion. On review, we identify no basis to disturb Walker’s convictions on Counts Three or Four. We similarly discern no abuse of discretion in the District Court’s evidentiary rulings or in its denial of Walker’s motion for a new trial. We conclude, however, that the District Court erred in determining that New York Robbery in the Second Degree is not a “violent felony” for purposes of the ACCA. Accordingly, we AFFIRM Walker’s judgment of conviction and REMAND for RESENTENCING.
AFFIRMED AND REMANDED FOR RESENTENCING.
MICHAEL O. HUESTON, ESQ., Brooklyn, N.Y., for Defendant-Appellant–Cross-Appellee.
ANDREY SPEKTOR, Assistant United States Attorney for the Eastern District of New York (Samuel P. Nitze & Lindsay K. Gerdes, Assistant United States Attorney, on the brief), for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee–Cross-Appellant.
In 2016, Defendant-Appellant Shameke Walker was convicted by a jury of (1) Hobbs Act Robbery, in violation of
Walker attacks his three remaining convictions on several grounds. He first argues that the firearm-in-crime-of-violence count should have been dismissed because (he submits) Hobbs Act robbery is not a “violent crime” within the meaning of
Walker also urges that the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), compels reversal of his conviction on the felon-in-possession count because the District Court lacked jurisdiction over his prosecution, the government adduced insufficient evidence to prove that count, and the related jury instructions were erroneous. Walker further contends that the District Court made numerous erroneous evidentiary rulings, necessitating a new trial. Finally, Walker assails the District Court’s denial of his motion for a new trial under
On its cross-appeal, the government points to several recent decisions by our Court that, in its view, establish that New York Robbery in the Second Degree is a “violent felony” under the ACCA,
For the reasons that follow, we reject each of Walker’s lines of attack. His arguments with respect to Count Three, the firearm-in-crime-of-violence count, are foreclosed by our opinion in United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018), in which we held that Hobbs Act robbery qualifies, categorically, as a crime of violence under the elements clause of
We therefore AFFIRM Walker’s judgment of conviction and REMAND for RESENTENCING.
BACKGROUND1
This appeal stems from Walker’s conviction for the June 13, 2015 robbery of a Brooklyn convenience store. During that robbery, Walker—who was then on supervised release following his conviction for unlawfully possessing a firearm but, nevertheless, had come to the scene equipped
Based on the events of that day, a grand jury returned an indictment charging Walker with Hobbs Act robbery and a related offense (Counts One and Two), as well as crimes relating to his unlawful possession and use of a firearm and ammunition (Counts Three and Four).2 Walker decided to proceed to trial on these charges.
I. Pretrial Proceedings
Before Walker’s trial began, the District Court made several rulings that are relevant to this appeal and that we therefore discuss in some detail.
First, in April 2016, the court denied Walker’s motion to dismiss Count Three (the firearm-in-crime-of-violence count) for failure to state a claim. It reasoned that the question whether Hobbs Act robbery, as charged in Count One, was a crime of violence with the meaning of
Second, the District Court denied Walker’s motion to preclude admission of fingerprint evidence collected from a cigarette carton that, as captured on video by surveillance cameras, Walker had attempted to steal from the convenience store during the robbery. In the period leading up to trial, the government produced to Walker, among other discovery, a report prepared by New York City Police Department (“NYPD”) Detective Patricia Lezcano discussing those fingerprints (the “Fingerprint Report”). The Fingerprint Report advised that the carton contained three latent prints, each of which was matched to Almontaser.
At the time, the parties appear to have understood the Fingerprint Report to mean that the carton contained no other usable prints. This understanding was dispelled, however, when—just days before trial was scheduled to begin—the government met with Lezcano in a witness preparation session and she clarified that the carton contained a fourth print that was in fact usable; she simply had not identified its source. The government then directed Lezcano to perform a comparative analysis between the unidentified fourth print and Walker’s prints and, after doing so, Lezcano determined that the previously unidentified print was Walker’s.
When the government disclosed this new information, Walker responded that the government had violated its Rule 16 obligation to timely comply with discovery requests and asked the District Court “to preclude this fingerprint evidence.” App’x 178. Finding the new evidence too “important” to exclude, the court refused to do so, but signaled that it was willing to provide Walker a lengthy continuance, including to prepare for a Daubert hearing as to whether the report was “unreliable as a class of evidence.” App’x 178-79. Walker instead determined to challenge the fingerprint evidence through the testimony of one Dr. Itiel Dror, an expert in cognitive bias. The District Court allowed Walker to proceed as he proposed, and additionally, accommodated his request for a trial date in July, the month following all of this motions practice.
Fourth, the court found unpersuasive Walker’s motion to preclude Almontaser’s pretrial identification of Walker from a photographic array, in which Walker argued primarily that the fillers (photographs of non-suspects) did not bear sufficient resemblance to him. After examining the array itself, the District Court concluded that the array was “good,” rather than being unduly “suggestive.” App’x 118.
Fifth, and finally, the court precluded the defense’s proposed inquiry into Almontaser’s two prior domestic violence convictions, reasoning that they did not have “anything to do . . . with credibility under Rule 403” of the Federal Rules of Evidence. App’x 191. The District Court did, however, allow Walker to cross-examine Almontaser about his role in selling K2, an illegal strain of synthetic marijuana, from the convenience store, consistent with the defense’s theory that what occurred on July 15, 2018, was not a robbery, but rather a drug deal gone wrong.
II. Phase I of the Trial
Trial began on Monday, July 11, 2016. On Walker’s motion, the District Court had agreed to bifurcate the trial, as described above, separating prosecution of Counts One through Three (the robbery and related firearm charges) from that of Count Four (the felon-in-possession count) so that the jury would learn about Walker’s criminal history only after it had reached a verdict on the robbery-related offenses.
To prove its case with respect to the first three charges, the government relied primarily on testimony from the following witnesses: (1) NYPD Detective Yuan Newton, the lead investigator on the robbery case, who testified about his observations of the crime scene, his conversations with Almontaser regarding the robbery, the video surveillance system used at the store and the footage it captured of many of the events leading up to the robbery and large portions of the robbery itself, the various steps he took to identify a suspect (including the process of generating a photo array), and Walker’s eventual arrest; (2) store clerk Almontaser, who testified about his role as a clerk at the convenience store, the sale of K2 at the store, and his recollection of the events that had occurred on the day of the robbery; (3) NYPD Officer Robert Youngs, who testified about photographing and collecting evidence from the crime scene, including the shell casings that were the basis of the ammunition charge and the cigarette carton bearing Walker’s fingerprint; (4) NYPD Detective Gerald Rex and NYPD Detective Lezcano, both of whom testified about the fingerprint evidence; and finally, (5) Probation Officer Parris, who identified
For his part, Walker mounted his defense primarily through rigorous cross-examinations intended to demonstrate that he was not the robber (a case of mistaken identity) and that Almontaser was not credible (because, as counsel argued, he was “a lying drug dealer”). App’x 918. Indeed, Walker relied heavily on the fact that portions of the surveillance video were inexplicably missing, implying that the police had destroyed footage that lent credence to his alternative theory, including video of Almontaser dealing drugs from the store. To further bolster that theory of the case, Walker attacked the fingerprint evidence through testimony provided by his witness Dr. Dror about the manner in which cognitive and other biases can lead fingerprint examiners to reach inaccurate conclusions.
Following the first phase of the bifurcated trial, which concluded on Friday, July 15, the jury convicted Walker of Counts One, Two, and Three.
III. Phase II of the Trial
During the second phase of the trial—which took place beginning the afternoon of July 15, immediately after the verdicts were rendered on the first three counts—the government read into the record two stipulations: One established the fact of Walker’s prior felony conviction and the other that a cartridge casing recovered from the robbery scene constituted “ammunition” for purposes of the firearm-in-crime-of-violence count. The jury was charged that afternoon, but did not reach a verdict as to Count Four by the end of the day on Friday, so the District Court adjourned the jury’s deliberations until Monday, July 18.
On Monday morning, one of the jurors wrote a note to the court explaining that she had a nightmare over the weekend about potential retribution for her jury service and describing how the trial was causing her fear and anxiety. This emotional reaction was tied to a robbery that happened some time ago, she said. The resulting fear was significant enough that she sought to be excused from the jury.
The court determined to dismiss the juror. Walker then sought to have the jury’s verdict from the first phase of the trial set aside in light of the excused juror’s participation. The District Court denied the motion, noting that the juror had the nightmare over the weekend, after the jury delivered its verdict on the first three counts. Later on Monday afternoon, the remaining eleven members of the jury convicted Walker on Count Four.
IV. Sentencing
When Walker was sentenced almost two years after his conviction, two motions were pending before the District Court. One was a Rule 33 motion for a new trial asserting that law enforcement destroyed exculpatory portions of the surveillance video, assailing the District Court’s instruction to the jury that Hobbs Act Robbery is a crime of violence, and making arguments about the excused fearful juror. The second was a Rule 29 motion for a judgment of acquittal on Count Two (the violence-in-Hobbs Act robbery count), arguing that it was duplicative of Count One (the Hobbs Act robbery count). The District Court denied the first motion but granted the second, reasoning that Counts One and Two were duplicative because “violence in furtherance of Hobbs Act Robbery necessarily requires proof of the same elements as Hobbs Act Robbery.” App’x 1183.
Turning at last to the sentence itself, the court sentenced Walker to time served on each count except Count Three (the firearm-in-crime-of-violence count), which carried
Walker and the government timely noticed their appeals.
DISCUSSION
On appeal, Walker reiterates the arguments that he made to the District Court and that we described above. We address each of his challenges in turn before considering the government’s claim that the District Court twice erred in its sentencing determination.
I. Conviction on Count Three, the Firearm-in-Crime-of-Violence Count3
Walker first suggests that the District Court erred by denying his motion to dismiss Count Three. Walker premised his motion on the theory that Hobbs Act robbery “categorically fails to constitute a crime of violence” under
under
II. Conviction on Count Four, the Felon-in-Possession Count
Several weeks before the scheduled oral argument on this appeal, we granted Walker’s motion for leave to file supplemental briefing on the question whether the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), compels
reversal of his conviction on Count Four. We directed both parties to make submissions addressing the issue.5 See Dkt No. 120.
In his supplemental submission, Walker urges that Rehaif has several important effects. In his view, it means (1) that the District Court lacked jurisdiction over his prosecution on Count Four because the indictment does not allege that he knew he belonged to the relevant category of persons barred from possessing ammunition (i.e., that he knew he had been convicted of a “crime punishable by imprisonment for a term exceeding one year,”
The parties agree that plain error review applies. On plain error review, we consider whether “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Miller, 954 F.3d 551, 557-58 (2d Cir. 2020).
Walker’s jurisdictional argument is foreclosed by our decision in United States v. Balde, 943 F.3d 73, 92 (2d Cir. 2019), in which we held that an “indictment’s failure to allege that [a defendant] knew that he was [in a prohibited category, e.g., a felon] . . .
was not a jurisdictional defect.” With respect to his two remaining arguments, we have little difficulty in concluding that he cannot satisfy the final prong of the plain error standard—requiring him to show that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings—because evidence available to the government for use at trial indicates persuasively that Walker was well aware of his status as a felon. That evidence includes Walker’s conviction of at least five prior felonies, including, most
We therefore conclude that the District Court had jurisdiction over Count Four, that Walker’s conviction on this count did not violate his due process rights, and that the erroneous related jury instructions did not amount to plain error requiring reversal. See generally id. at 557-60.
III. Evidentiary Rulings
Walker argues that the District Court abused its discretion by: (1) permitting the government to introduce certain fingerprint evidence; (2) allowing Probation Officer Parris to identify, in court, Walker as appearing on video surveillance footage of the robbery; (3) admitting into evidence the robbery victim’s testimony to his out-of-court identification of Walker; and (4) precluding Walker from cross-examining Almontaser about Almontaser’s prior domestic violence convictions. On this basis, Walker urges that his convictions must be vacated.
We review a district court’s evidentiary rulings for abuse of discretion. United States v. Boles, 914 F.3d 95, 109 (2d Cir. 2019). A district court abuses its discretion when it acts “arbitrarily or irrationally,” United States v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006), or premises its decision on an error of law, United States v. Figueroa, 548 F.3d 222, 226 (2d Cir. 2008). Further, “even when an evidentiary ruling is manifestly erroneous, the defendant will not receive a new trial if admission of the evidence was harmless.” United States v. Siddiqui, 699 F.3d 690, 702 (2d Cir. 2012).
A. Fingerprint Evidence
Walker contests the admission of certain fingerprint evidence because, he argues, the government was negligent in fulfilling its discovery obligations and that negligence led to an inexcusably late disclosure to him of the fingerprint evidence. The reader will recall that the evidence concerned the presence of a fourth fingerprint on a carton of cigarettes and Detective Lezcano’s identification of the print as belonging to Walker.
As a general rule, “[a] district court’s decision not to exclude evidence that was the subject of a
That the admitted fingerprint evidence damaged Walker’s defense does not mean its admission resulted in substantial unfair prejudice to him under Lee; he must also show that its admission affected his trial strategy. United States v. Miller, 116 F.3d 641, 681 (2d Cir. 1997). This he cannot do. The record establishes that Walker “was not prevented from pursuing his strategy of claiming” misidentification, id.; to the contrary, misidentification was the defense he presented to the jury, see App’x 279-85 (arguing that, while Walker “was at home, somebody else was going into that store”); see also App’x 923-58. Moreover, the government’s case against Walker was strong even without the fingerprint: The robbery was captured on video, and multiple witnesses identified Walker as the robber. Cf. Lee, 834 F.3d at 158-61 (explaining that late admission of defendant’s post-arrest statement did not “substantially prejudice the defense so as to require reversal” where the government generally put on a strong case and so the conviction did not hinge on the challenged post-arrest statement).
Further, when the government violates Rule 16, the “district court has broad discretion in fashioning a remedy,” id. at 158, including by granting the defense a continuance, see
Finally, we note that the District Court went to great lengths to mitigate any prejudice to Walker arising from the late disclosure and admission of the fingerprint evidence: It precluded the government from calling the fingerprint expert whom Walker had hired to conduct a separate analysis of the fingerprint and who had reached the same conclusion as the government’s expert (i.e., that the fourth fingerprint was a match for Walker’s), and it allowed Walker to attack the reliability of the fingerprint evidence through the testimony of a separate, additional expert. In sum, Walker was not substantially prejudiced by the fingerprint evidence and the court did not abuse its discretion in admitting it.
B. In-Court Identification
Next, Walker contends that his probation officer should not have been permitted to testify that Walker was the man whose image appeared in surveillance video footage of the robbery, both because that testimony was cumulative of other identification testimony and because the jury was capable of making the identification itself. Neither argument is convincing.
According to Walker, “[t]he robber did not disguise his appearance and was clearly visible on the surveillance video,” which “showed clear and complete views of the offender’s full face, head, hands and gait.” Appellant’s Br. at 44-45. Walker further represents that, at the time of the trial, his own “appearance had not substantially changed since the robbery.” Appellant’s Br. at 45. His assertions are belied, however, by the trial testimony, and were accordingly rejected by the District Court: the court found that the robber wore a black hooded sweatshirt, with the hood up much of the time, see App’x 333-60; the robber was not wearing glasses in the video, whereas Walker wore glasses throughout trial, see App’x 313; as Walker’s own trial counsel also observed, the man who committed the robbery was “at least fifty pounds heavier than Mr. Walker,” App’x 279; and “the video is not as crystal clear as [Walker] suggest[s],” including because “[e]verybody is hurried and harried,” App’x 167. Walker’s probation officer, on the other hand, who provided testimony on the identification, had spent many hours with Walker leading up to the time of the robbery and had the opportunity to observe physical traits such as his gait, which were on display in the surveillance video but not at trial. Given these circumstances, the District Court did not abuse its discretion in admitting the testimony on the ground that the probation officer’s opinion was likely to be helpful to the jury.
Walker also maintains that his probation officer’s testimony “carried a high risk of unfair prejudice that substantially outweighed its limited probative value,” and so should have been excluded under
Identification testimony from law enforcement or corrections personnel may increase the possibility of prejudice to the defendant either by highlighting the defendant’s prior contact with the criminal justice system, if the witness’s occupation is revealed to the jury, or by effectively constraining defense counsel’s ability to undermine the basis for the witness’s identification on cross-examination, if the witness’s occupation is to remain concealed.
United States v. Pierce, 136 F.3d 770, 776 (11th Cir. 1998); accord United States v. Pace, 10 F.3d 1106, 1114-16 (5th Cir. 1993). Critically, however, courts have not found that admission of such testimony was an abuse of discretion where the district court “directed the government not to delve into the circumstances of the parole officers’ relationships with the defendant,” leaving to the defendant the decision whether to reveal his criminal history as the basis for the relationship. United States v. Farnsworth, 729 F.2d 1158, 1161 (8th Cir. 1984); accord United States v. Contreras, 536 F.3d 1167, 1171-72 (10th Cir. 2008); United States v. Beck, 418 F.3d 1008, 1013-15 (9th Cir. 2005); United States v. Garrison, 849 F.2d 103, 107 (4th Cir. 1988).
We think our sister Circuits that we have cited saw the risk of such testimony, but we also think it within a district court’s discretion to manage that risk. Thus, we place great weight on the District Court’s instruction to counsel here that Walker’s probation officer not be identified as a probation officer (i.e., her profession was not to be mentioned), and the fact that the government complied with this instruction. Nor did the government elicit any testimony about Walker’s criminal history in connection with the probation officer’s testimony. Walker was free to cross-examine his probation officer about the nature of their relationship (to attempt to show, for example, that she was biased against him, or for any other reason), but chose not to do so. Cf. Farnsworth, 729 F.2d at 1162 (“The defendant himself chose to avoid an extensive cross-examination as a matter of strategy.”).
Because of the practical constraints on a defendant’s cross-examination in these circumstances, courts must carefully consider whether to allow lay opinion identification by probation officers. See generally United States v. Calhoun, 544 F.2d 291, 296 (6th Cir. 1976) (“The knowledge that [a defendant] was on parole at the time of the alleged offense could also arouse an emotional reaction among the jurors, especially those who harbor strong feelings about recidivism and the premature release of those in prison for crimes.”). But where, as here, the probation officer’s identification testimony was highly probative, and the record does not appear to contain other adequate identification testimony, a district court does not abuse its discretion in allowing the probation officer to testify and imposing related limitations to mitigate associated risks.
C. Out-of-Court Identification
Walker contends that the admission of Almontaser’s out-of-court identification of Walker in a photographic array was unduly prejudicial because: even non-suggestive photo arrays such as those at issue here have “long been known to be hazardous”; the identification occurred one month after the robbery, which is “a considerable amount of time”; and the NYPD displayed “Crime Stoppers” posters with a photograph of Walker that had been taken independently of the robbery, a circumstance that could have tainted Almontaser’s recollection if he saw the posters. Appellant’s Br. at 48-49. We do not find his arguments persuasive.
We have long allowed admission of photo-array identifications. See United States v. Anglin, 169 F.3d 154, 161 (2d Cir. 1999) (“An unbroken line of our decisions . . . permits use of a non-suggestive photo array for identification purposes and trial testimony based upon that identification.”). Like other courts, ours has criticized the single-photograph procedure, see Mysholowsky v. New York, 535 F.2d 194, 197 (2d Cir. 1976); see also Simmons v. United States, 390 U.S. 377, 383-84 (1968), but here, the victim was shown an array of six similar-looking people and was told that the perpetrator of the robbery might not be included in the array, see App’x 361-63, 448-49.
Further, we have never suggested that the passage of a month’s time between a crime and a subsequent photo identification is too lengthy to permit its use at trial. We see no reason to suggest such a rule here, where the record provides no basis to conclude the victim’s memory had faded: To the contrary, Almontaser testified
The same rationale applies to Walker’s complaint about possible taint arising from the Crime Stoppers fliers: Almontaser described the robber to law enforcement on the day of the robbery; he then identified Walker consistent with that initial description. Walker had the opportunity to cross-examine Almontaser to highlight the weaknesses he now asserts, but he chose not to do so. Cf. Simmons, 390 U.S. at 384 (explaining that cross-examination is a tool that may be used to determine whether identification is reliable). In any event, any error in admitting this testimony does not provide grounds for a new trial in light of the video evidence and in-court identification of Walker as the robber. See United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011) (explaining that “erroneous evidentiary rulings entitle a defendant to a new trial, unless the error was harmless”).
D. Domestic Violence Convictions
Finally, Walker asserts that the District Court erred by precluding him from cross-examining Almontaser about Almontaser’s two prior convictions for domestic violence—one for felony attempted assault and one for misdemeanor attempted assault. See
District courts have broad discretion to impose reasonable limits on cross-examination based on, inter alia, unfair prejudice or marginal relevance. See
Walker does not present any arguments that the domestic violence convictions were relevant to Almontaser’s truthfulness or that their admission would not be unduly prejudicial. Instead, he observes that the Federal Rules of Evidence distinguish between prior convictions of defendants and those of witnesses. True enough. The District Court, too, recognized that distinction and then appropriately performed a Rule 403 balancing test. On the facts presented here, we find no merit in Walker’s claim that the District Court abused its discretion in limiting cross-examination as it did. And in any event, any potential error was harmless considering the District Court allowed Walker to impeach Almontaser by asserting that he was a drug-dealer, in support of Walker’s alternative narrative that the encounter between Walker and Almontaser was not a robbery but a drug deal gone bad. See United States v. Flaharty, 295 F.3d 182, 191 (2d Cir. 2002).
With respect to his motion for a new trial, Walker reasserts on appeal the arguments he made in the District Court.8 We find those arguments no more persuasive than did that court.
A. Spoliation
The thrust of Walker’s spoliation argument derives from the serious accusation that either Almontaser or the police “destroyed parts of the [surveillance] video” that “could have provided a key to understanding what actually transpired between [Almontaser] and his assailant, including the nature of their relationship, and if this was
a robbery at all.” Appellant’s Br. at 53-54. Walker specifically references “28 seconds from an outside surveillance video that begins to show what transpired immediately between the perpetrator and [the victim] after the ‘robbery,’” but that was unavailable for unknown reasons. Appellant’s Reply Br. at 21.
This Court has defined spoliation to be “the destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” United States v. Odeh (In re Terrorist Bombings of U.S. Embassies in E. Africa), 552 F.3d 93, 148 (2d Cir. 2008). Even when the government is under an obligation to preserve relevant recordings, which it may well have been here, where a defendant “has pointed to no evidence that the tapes were intentionally destroyed,” their destruction “could not have amounted to spoliation.” Id. Similarly, in the context of a motion to dismiss an indictment for spoliation, we have held that a criminal defendant must show: (1) “that the evidence possessed exculpatory value that was apparent before it was destroyed”; (2) that the evidence “was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means”; and (3) “bad faith on the part of the [g]overnment.” Greenberg, 835 F.3d at 303. The “[f]ailure to satisfy any of these requirements, including a failure to show the Government’s bad faith, is fatal to a defendant’s spoliation motion.” Id.
Walker does not assert that he knows what the missing video footage contained, let alone that the missing footage was exculpatory other than insofar as it portrayed a further brief interaction between the robber and the victim. Indeed, the footage Walker references pertains to the moments after the robbery was completed, and Walker does not explain what kind of
B. Impaired Juror
Walker also contends that the District Court abused its discretion when—rather than declaring a mistrial—it decided to dismiss a juror who advised the court that she had a nightmare after the close of the first phase of the trial, before the first set of verdicts was reached. He asserts that the episode reflects bias on the part of the excused juror, and therefore indelible taint in the proceedings leading up to her dismissal.
The District Court acted well within its discretion in denying Walker’s motion for a new trial on the basis of the excused juror’s hypothetical bias. The court reasonably considered the possibility of bias and found none, concluding that Walker was not, and had not been, harmed by the excused juror’s participation to that point. The juror stated under oath that she had been reminded of a long-ago robbery only after deliberations for the first phase of the trial had concluded and the verdict was announced; she had reported her concerns at the earliest possible opportunity; and she averred that she had not mentioned her dream to any of the other jurors. As the Supreme Court has explained, “the Constitution does not require a new trial every time a juror has been placed in a potentially compromising situation.” Rushen v. Spain, 464 U.S. 114, 118 (1983). We see no basis to conclude that the District Court abused its discretion in its handling of this juror.
V. Sentence
We turn finally to the government’s cross-appeal of the District Court’s determination that the ACCA’s enhanced penalty provision does not apply to Walker. This Court “review[s] de novo all questions of law relating to the district court’s application of a federal sentence enhancement.” United States v. Beardsley, 691 F.3d 252, 257 (2d Cir. 2012).
Since Walker’s sentencing, we have ruled—and Walker now concedes, as he must—that New York Robbery in any degree is a violent felony, both for purposes of
CONCLUSION
Accordingly, the judgment of conviction entered by the District Court hereby is AFFIRMED and the cause is REMANDED
CARNEY
CIRCUIT JUDGE