United States v. Trantham , 446 F. App'x 339 ( 2011 )

10-2647-cr
USA v. Tribble
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 14th day of November, two thousand eleven.
Present: JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
____________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- No. 10-2647-cr
RICHARD TRANTHAM, AKA KB, TORIANO TRANTHAM,
Defendants,
IZZADINE TRIBBLE, AKA IZZY,
Defendant-Appellant.
____________________________________________________________
For Defendant-Appellant: MICHAEL ANTHONY MARINACCIO, Culleton &
Marinaccio, White Plains, N.Y.
For Appellee: LICHA M. NYIENDO (Emily Berger, on the brief),
Assistant United States Attorney, for Loretta E. Lynch,
United States Attorney for the Eastern District of New
York, Brooklyn, N.Y.
Appeal from the United States District Court for the Eastern District of New York
(Weinstein, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Izzadine Tribble appeals from a June 23, 2010 judgment of the
United States District Court for the Eastern District of New York (Weinstein, J.) convicting
defendant, following a jury trial, of one count of conspiracy to interfere with commerce by
robbery, in violation of 18 U.S.C. § 1951(a), and one count of possession of a firearm in relation
to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). We assume the parties’
familiarity with the underlying facts and procedural history of this case.
Tribble first challenges the sufficiency of the evidence against him on Count 1, which
charged him with conspiracy to rob a drug trafficker in Queens. On such a challenge, a
defendant “bears a heavy burden because a reviewing court must consider the evidence ‘in the
light most favorable to the prosecution’ and uphold the conviction if ‘any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” United States
v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “To be guilty of conspiracy, ‘there must be some evidence from which it can
reasonably be inferred that the person charged with conspiracy knew of the existence of the
scheme alleged in the indictment and knowingly joined and participated in it.’” United States v.
Morgan, 385 F.3d 196, 206 (2d Cir. 2004) (quoting United States v. Gaviria, 740 F.2d 174, 183
(2d Cir. 1984)).
Tribble contends that there existed two independent conspiracies: an abandoned scheme
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to rob a stash house in Washington Heights, in which he joined, and the scheme to rob a stash
house in Queens, for which he was convicted. He argues that there was insufficient evidence to
establish that he knowingly engaged in the latter scheme. Although Tribble was not present at
the recorded February 15, 2007 meeting during which the changed location of the planned
robbery was discussed, the evidence is nonetheless more than sufficient to support the finding
that he joined in the conspiracy for which he was convicted. In particular, Tribble’s black
Maxima was observed leaving the meeting location on February 15 shortly before the recorded
meeting; co-defendant Richard Trantham stated during the February 15 meeting that Tribble
would act as the driver during the robbery; and, on February 21, the night of the planned
robbery, Tribble arrived at the rendezvous point in Queens and brought duffel bags, consistent
with the plan that was discussed on February 15.
Tribble next argues that the indictment was constructively amended or prejudicially
varied by the evidence presented at trial. A constructive amendment challenge is reviewed de
novo, and constructive amendment is a per se violation of the Fifth Amendment’s Grand Jury
Clause requiring reversal. United States v. Rigas, 490 F.3d 208, 225-26 (2d Cir. 2007). “An
indictment has been constructively amended ‘[w]hen the trial evidence or the jury charge
operates to broaden[ ] the possible bases for conviction from that which appeared in the
indictment.’” Id. at 225 (quoting United States v. Milstein, 401 F.3d 53, 65 (2d Cir. 2005))
(alterations in original) (internal quotation marks omitted). In contrast, “‘[a] variance occurs
when the charging terms of the indictment are left unaltered, but the evidence offered at trial
proves facts materially different from those alleged in the indictment.’ A defendant alleging
variance must show ‘substantial prejudice’ to warrant reversal.” Id. at 226 (alteration in
original) (quoting United States v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003)) (other citations
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and internal quotation marks omitted). “[W]e will reverse on account of a variance only if it
prejudices the defendant by infringing on the ‘substantial rights’ that indictments exist to
protect—‘to inform an accused of the charges against him so that he may prepare his defense and
to avoid double jeopardy.’” United States v. Kaplan, 490 F.3d 110, 129 (2d Cir. 2007) (quoting
United States v. Dupre, 462 F.3d 131, 140 (2d Cir. 2006)). In evaluating substantial prejudice
where the proof showed multiple conspiracies, the essential question is whether “the evidence
proving the conspiracies in which the defendant did not participate prejudiced the case against
him in the conspiracy to which he was a party.” United States v. Johansen, 56 F.3d 347, 351 (2d
Cir. 1995).
This challenge is essentially a variation on Tribble’s sufficiency challenge, as Tribble
once again contends that the government’s evidence at trial established only his involvement in
the uncharged conspiracy to commit a robbery in Washington Heights, not the Queens
conspiracy for which he was indicted. Accordingly, for the same reasons that we find the
evidence sufficient to sustain the Count 1 conviction, we conclude that the evidence did not
constructively amend or prejudicially vary the indictment.
Tribble also contends that the district court erred in its instructions to the jury on aiding
and abetting liability under § 924(c), the Count 2 firearm charge. Although jury instructions are
reviewed generally de novo, reversing only if the defendant was prejudiced by the instructions as
a whole, United States v. Applins, 637 F.3d 59, 72 (2d Cir. 2011), unobjected-to instructions will
be reviewed for plain error, United States v. Wolfson, 642 F.3d 293, 294 (2d Cir. 2011) (per
curiam).
The district court instructed the jury on three theories of § 924(c) liability: (1) personally
carrying or possessing the firearm; (2) aiding and abetting the principal; or (3) entering a
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conspiracy that implied a gun would be used, and a co-conspirator used or possessed the firearm
(so-called Pinkerton liability), see Pinkerton v. United States, 328 U.S. 640 (1946). With respect
to aiding and abetting liability, the district court set forth three questions for the jury to answer:
Was the crime of carrying a firearm in relation to the commission of or
possession of a firearm in furtherance of the crime charged in Count One [robbery
conspiracy]?
Did the defendant participate in the crimes charged in Counts One and
Two as something he wished to bring about?
Did he seek by his actions to make the criminal venture succeed?
App. 784. The jury was then instructed that “[i]f your answer is no to any of those questions as
to a particular defendant, you must find that the defendant was not guilty of aiding and abetting
charged in Count Two.” Id. During jury deliberations, the district court received a jury question
asking “[i]f there's no evidence that a defendant had knowledge that a gun was in the car, could
that defendant be guilty of Count [Two]?” App. 851. In response, the district court essentially
reread its original instruction questions, stating “[i]f your answer is yes to all of those, you can
find that the defendant was an aider and abettor. If the answer is no, you can’t find him guilty.”
App. 858.
Tribble argues that the district court’s post-jury statement erroneously suggested that it
was necessary to answer all three questions in the negative to find him not guilty. Although
defense counsel objected to the rereading of the instructions in answer to the jury question,
counsel did not object to the specific wording used, and accordingly plain error review is
applicable. The district court’s initial instruction was unambiguously clear and legally correct,
and the second instruction, even if marginally ambiguous, would not have prejudiced Tribble
because it was clear even in that instruction that all three questions had to be answered in the
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affirmative to convict him for aiding and abetting.
Tribble next argues that the prosecution engaged in misconduct (1) by presenting
inaccurate testimony from Detective Eugene as to whether Tribble was present at the February
21 meeting, and (2) by misleadingly failing to mention the proposed locations discussed during
the February 1 and subsequent meetings, instead referring interchangeably to “the apartment” or
“the robbery.” “In determining whether an inappropriate remark amounts to prejudicial error,
we look to ‘the severity of the misconduct, the measures adopted to cure the misconduct, and the
certainty of conviction absent the misconduct.’” United States v. Caracappa, 614 F.3d 30, 41
(2d Cir. 2010) (quoting United States v. Spinelli, 551 F.3d 159, 170 (2d Cir. 2008)). “We will
reverse on the ground of prosecutorial misconduct only if that misconduct caused ‘substantial
prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of
due process.’” United States v. Whitten, 610 F.3d 168, 202 (2d Cir. 2010) (quoting United States
v. Elias, 285 F.3d 183, 190 (2d Cir. 2002)). In light of the evidence supporting his conviction on
the conspiracy count, as discussed above, Tribble has failed to establish the requisite prejudice
from any purported misconduct.
Tribble next contends that the district court improperly admitted the handwritten note
containing the address of the Queens rendezvous point that was found in the search of his black
Maxima. In reviewing the denial of a motion to suppress, “[w]e review the district court’s
factual findings for clear error, viewing the evidence in the light most favorable to the
government, and its legal conclusions de novo.” United States v. Rosa, 626 F.3d 56, 61 (2d Cir.
2010). The automobile exception to the Fourth Amendment’s warrant requirement “permits law
enforcement to conduct a warrantless search of a readily mobile vehicle where there is probable
cause to believe that the vehicle contains contraband.” United States v. Navas, 597 F.3d 492,
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497 (2d Cir. 2010). We find no error in the district court’s conclusion that this exception applied
because the Maxima was readily movable and had been used to transport at least one conspirator
to multiple meetings, as well as the duffel bags that were to be used to transport the cash and
drugs that were to be stolen.
Finally, Tribble argues that his trial counsel was ineffective in failing to (1) move for
severance, (2) cross-examine his co-defendants, and (3) argue the multiple conspiracies defense
that he emphasizes on appeal. “To prove such ineffective assistance, a defendant must show: (1)
‘that counsel’s representation fell below an objective standard of reasonableness’; and (2) ‘that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” United States v. Brown, 623 F.3d 104, 112 (2d Cir.
2010) (quoting Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003). Although we prefer not
to address ineffective assistance claims for the first time on direct appeal, see Brown, 623 F.3d at
112, we find that the record is sufficiently clear for this challenge to be rejected now. We
conclude that the decisions not to cross-examine Tribble’s co-defendants or to argue the multiple
conspiracies theory are the sorts of legitimate strategic choices that do not give rise to an
ineffective assistance claim. See Strickland v. Washington, 466 U.S.668, 681 (1984). Nor did
the failure to move for severance amount to ineffective assistance, as the Tranthams went back
and forth on whether they would invoke the entrapment defense and Tribble has not established
that the motion would have been granted or that he was otherwise prejudiced.
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We have considered Tribble’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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