United States v. Black , 677 F. App'x 696 ( 2017 )

15-2942-cr
United States v. Black
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 27th day of January, two thousand seventeen.
Present:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. 15-2942-cr
ZACHARY BLACK, ALSO KNOWN AS TEHUTI B’ATZ
ELOHIM BEY,
Defendant-Appellant.*
For Appellee: Emily Berger, Hiral D. Mehta, Nadia E. Moore, Assistant
United States Attorneys, for Robert L. Capers, United
States Attorney for the Eastern District of New York,
Brooklyn, New York.
For Appellant: Robert J. Boyle, New York, New York.
* The Clerk of Court is respectfully directed to amend the official caption to conform with the above.
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15-2942-cr
United States v. Black
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Irizarry, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment is AFFIRMED.
Black lodges four distinct challenges to his convictions and sentences for
conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846 and
conspiracy to commit money laundering in violation of 18 U.S.C. § 1956. All lack
merit. We assume the parties’ familiarity with the underlying facts, the district
court’s rulings, and the arguments presented on appeal.
I. Motion to Sever
Black first takes issue with the district court’s denial of his pro se motion to
sever Counts I and II (the methylone conspiracy counts) of the fourth superseding
indictment. See United States v. Black, No. 1:13-cr-316 (E.D.N.Y. filed Oct. 20,
2014), ECF No. 133. That motion references both Federal Rule of Criminal
Procedure 8, which concerns joinder of offenses in an indictment, and Federal Rule
of Criminal Procedure 14, which permits relief when joinder appears to be unduly
prejudicial. See id.We review the denial of a Rule 8(a) motion de novo. United States v. Litwok,
678 F.3d 208, 216 (2d Cir. 2012). Joinder is proper if the offenses have a “sufficient
logical connection.” United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990). This
Court conducts a “twofold inquiry: [1] whether joinder of the counts was proper, and
if not, [2] whether misjoinder was prejudicial to the defendant.” Litwok, 678 F.3d at
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United States v. Black
216. Denial of a Rule 14 motion for relief from prejudicial joinder, on the other
hand, is reviewed for abuse of discretion. United States v. Sampson, 385 F.3d 183,
190 (2d Cir. 2004). Rule 14 motions “will not be overturned unless the defendant
demonstrates that the failure to sever caused him ‘substantial prejudice’ in the form
of a ‘miscarriage of justice.’”1 Sampson, 385 F.3d at 190 (quoting United States v.
Blakney, 941 F.2d 114, 116 (2d Cir. 1991)). We need not determine whether Black’s
pro se motion is properly construed as made under Rule 8 or Rule 14 because his
challenge fails even under our more stringent de novo review, and Black has failed
to demonstrate any prejudice whatever.
In dismissing the methylone counts at the close of the Government’s
evidence, the district court recognized that “[t]he evidence . . . as to the [methylone]
goes in as relevant in establishing the relationship between Raddy Breton and
[Black].” Gov’t App’x 2. The district court also gave the following limiting
instruction after trial:
Evidence was presented at trial about methylone, also
known as molly. That evidence may be considered by you
with respect to the relationship between the defendant
and any co-conspirator in connection with the marijuana
and money laundering conspiracies, and as to how the
defendant ultimately came before the Court, but not as
proof that the defendant is little [sic] guilty.
The defendant is charged only with conspiracy to
distribute and to possess with intent to distribute, I
should say or to distribute marijuana, and conspiracy to
commit money laundering.
1 The Government repeatedly misstates the standard governing Rule 8 motions while arguing that
Black’s motion fell under Rule 8. See Appellee’s Br. 27–28, 32, 44. Abuse of discretion review and the
“substantial prejudice in the form of a miscarriage of justice” standard apply to Rule 14 motions, not
Rule 8 motions. See Litwok, 678 F.3d at 216; Sampson, 385 F.3d at 190.
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United States v. Black
J. App’x 61–62.
At one point during deliberations, the jury asked the district court if “the
indictment change[d] over the course of the trial.” J. App’x 109. At that point, the
district court further clarified its limiting instruction:
With respect to your other question about the indictment,
the jury is to consider only the two charges contained in
the indictment that have been submitted to you.
Conspiracy to distribute or to possess with intent to
distribute marijuana and conspiracy to commit money
laundering.
You are not to speculate as to why the other charges were
not submitted to you for your consideration. As I charged
you previously, yesterday, evidence was presented at trial
about methylone, also known as molly. That evidence may
be considered by you with respect to the relationship
between the defendant and any co-conspirator in
connection with the marijuana and the money laundering
conspiracies and as to how the defendant ultimately came
before the court, but not as proof that the defendant is
guilty.
The defendant is charged only with conspiracy to
distribute or possess with intent to distribute marijuana
and conspiracy to commit money laundering.
J. App’x 113–14.
Black was not convicted of the methylone counts, and they were not
submitted to the jury. The submitted evidence relating to the methylone conspiracy
was nonetheless admissible to show Black’s relationships with individuals who were
also part of the marijuana conspiracy, see United States v. Pipola, 83 F.3d 556, 566
(2d Cir. 1996) (explaining that “background information in a conspiracy case” may
be admissible to “help the jury understand the basis for the co-conspirators’
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United States v. Black
relationship of mutual trust”), and the district court issued two specific, adequate
limiting instructions to that end. Therefore, and given the remaining evidence of
guilt was substantial, see United States v. Ong, 541 F.2d 331, 338 (2d Cir. 1976)
(“[W]here untainted evidence of guilt is substantial, a greater demonstration of
prejudice resulting from an erroneous failure to sever must be made before the error
will be considered to require reversal.”), Black has failed to demonstrate any
prejudice resulting from the joinder of the two dismissed methylone counts.
That there was no prejudice also dooms Black’s retroactive misjoinder
argument. Retroactive misjoinder occurs when “joinder of multiple counts was
proper initially, but later developments—such as a district court’s dismissal of some
counts for lack of evidence or an appellate court’s reversal of less than all
convictions—render the initial joinder improper.” United States v. Jones, 16 F.3d
487, 493 (2d Cir. 1994). Retroactive misjoinder applies where a defendant shows
“compelling prejudice.” United States v. Vebeliunas, 76 F.3d 1283, 1293–94 (2d Cir.
1996) (quoting Jones, 16 F.3d at 493)).
In evaluating “compelling prejudice,” the Court considers: (1) whether “the
evidence introduced in support of the vacated count . . . was of such an
inflammatory nature that it would have tended to incite or arouse the jury into
convicting the defendant on the remaining counts[;]” (2) the degree of overlap and
similarity between the evidence and facts pertaining to the dismissed count and
that pertaining to the remaining counts; and (3) “a general assessment of the
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United States v. Black
strength of the government’s case on the remaining counts.” Id. at 1294 (internal
citations and quotation marks omitted).
The methylone conspiracy evidence was not so inflammatory that it would
incite or arouse the jury because the evidence presented on the counts of conviction
was of a similar nature. See United States v. Hamilton, 334 F.3d 170, 182 (2d Cir.
2003) (evidence not inflammatory where “the evidence that the government
presented on the reversed counts was, as a general matter, no more inflammatory
than the evidence that it presented on the remaining counts.”). Further, the degree
of overlap between the methylone evidence and the marijuana and money
laundering evidence was slight, reducing the risk of prejudice because the jury could
easily separate and decide the counts. See id. at 183. And, as noted, the
Government’s case on the marijuana and money laundering conspiracies was
otherwise strong. Black has thus failed to demonstrate “compelling prejudice,” and
he has accordingly not established retroactive misjoinder.
II. Jury Instruction
Black next challenges the district court’s instruction on his use of multiple
names. We review jury instructions de novo while “viewing the charge as a whole,”
and Black must demonstrate both error and prejudice for the instruction to
constitute reversible error. United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir.
2010) (quoting United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006)). Using
different names can be probative of consciousness of guilt, see United States v.
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United States v. Black
Stevens, 83 F.3d 60, 67 (2d Cir. 1996) (per curiam), and that is the purpose for
which this evidence was admitted.
On appeal, Black argues that the legality of his name change strips any
probative value from his use of either name. The evidence, however, showed that
Black used the names “Zachary Black” and “Tehuti Bey” interchangeably,
depending on his activities. He used Bey when he was stopped by the police in
Oregon but used Black to rent a car, book hotel stays, and maintain bank accounts.
Using different names in different situations may in fact be probative of
consciousness of guilt, and the district court gave a tailored limiting instruction to
that effect. The district court did not err in so instructing the jury.
III. Sentence
We likewise find no error in the imposed sentence. A sentence’s substantive
reasonableness is determined by assessing “the length of the sentence . . . in light of
the factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d
127, 132 (2d Cir. 2006), abrogated on other grounds by Kimbrough v. United States,
552 U.S. 85 (2007). Review for substantive reasonableness is highly deferential and
“akin to review for abuse of discretion.” United States v. Parnell, 524 F.3d 166, 169
(2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir 2006)).
The district court articulated its reasons for departing upward, specifically
the need for punishment, the seriousness of Black’s crime, Black’s criminal history,
his commission of other, uncharged offenses, and his likelihood of recidivism. The
district court further took into account inconsistencies in the presentence report and
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Black’s uncooperative stance in the preparation of that report. The complete
analysis and imposition of sentence were sound exercises of the district court’s
discretion. The sentence was substantively reasonable.
IV. Fine
Finally, we find no error with respect to the $10,000 fine imposed pursuant to
§ 5E1.2(a) of the Sentencing Guidelines, which we review for abuse of discretion,
United States v. Salameh, 261 F.3d 271, 276 (2d Cir. 2001) (per curiam). As Black
acknowledges, he did not file a required list of assets with the Probation Office. See
Appellant’s Br. 55. The district court explicitly noted that his lack of cooperation
with the Probation Office meant that the Office could not corroborate any tax
information or provide any analysis of Black’s finances. Faced with the absence of
any concrete financial information, the district court reasonably based its analysis
on the fact that Black’s criminal enterprise laundered over $2.5 million. Further,
present inability to pay is not necessarily a bar to the imposition of a fine. See
United States v. Thompson, 227 F.3d 43, 45 (2d Cir. 2000) (“Evidence of present
indigence by itself, . . . is not an absolute barrier to the imposition of a fine”); see
also United States v. Kakoullis, 150 F. App’x 80, 82 (2d Cir. 2005) (summary order).
Here, Black failed to meet his burden to show that he was unable to pay and
unlikely to become able to pay the imposed fine.
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15-2942-cr
United States v. Black
We have considered Black’s remaining arguments and find them to be
without merit. Accordingly, the district court’s judgment is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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