United States v. Brown , 374 F. App'x 208 ( 2010 )

08-4882-cr (L); 08-4887-cr (CON); 08-4888-cr (CON); 08-4889-cr (CON)
United States of America v. Brown, et al
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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 GUIDO CALABRESI,
10 Circuit Judges,
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15 08-4882-cr (L);
16 -v.- 08-4887-cr (CON);
17 08-4888-cr (CON);
18 08-4889-cr (CON)
19 DAMIAN BROWN, also known as BOSSY,
20 FRANZ GOLDING, SHAWN PETERKIN, also
21 known as SHAWN JAMES, DWAYNE PALMER,
22 Defendants-Appellants.
23 - - - - - - - - - - - - - - - - - - - -X
24
25 APPEARING FOR APPELLANTS: Allan P. Haber, New York, NY
26 (for Damian Brown); Arza
27 Feldman, Feldman and Feldman,
28 Uniondale, NY (for Franz
1
1 Golding); Bruce R. Bryan, Esq.,
2 Syracuse, NY (for Shawn
3 Peterkin); David A. Ruhnke
4 (Andrew G. Patel, law office of
5 Andrew G. Patel, New York, NY on
6 the brief), Ruhnke & Barrett,
7 Montclair, NJ (for Dwayne
8 Palmer).
9
10 APPEARING FOR APPELLEES: Jessica A. Masella (Michael Q.
11 English, Michael D. Maimin
12 Assistant United States
13 Attorneys on the brief)
14 Assistant United States
15 Attorney, on behalf of Preet
16 Bharara, United States Attorney
17 for the Southern District of New
18 York, New York, NY.
19
20 Appeals from judgments of the United States District
21 Court for the Southern District of New York (Rakoff, J.).
22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23 AND DECREED that the judgments of the district court be
24 AFFIRMED.
25 Damian Brown, Franz Golding, Shawn Peterkin, and Dwayne
26 Palmer appeal from judgments of conviction entered on
27 October 2, 2008 in the United States District Court for the
28 Southern District of New York (Rakoff, J.) following a two-
29 week jury trial. Each of the four co-defendants was
30 convicted of charges of conspiracy to distribute and possess
31 with intent to distribute 100 kilograms or more of marijuana
32 (Count One), see 21 U.S.C. § 846, of using a firearm to
33 commit murder in relation to Count One’s marijuana
2
1 conspiracy (Count Two), see 18 U.S.C. §§ 924(j)(1) & 2, and
2 of using and carrying firearms during and in relation to
3 Count One’s marijuana conspiracy (Count Three), see 18
4 U.S.C. § 924(c)(1)(A)(iii) & 2; each was additionally
5 convicted individually of being either a felon (Peterkin) or
6 an alien (Brown, Golding, Palmer) in possession of a firearm
7 (Counts Four through Seven), see 18 U.S.C. §§ 922(g)(1),
8 922(g)(5)(A), & 2. The appellants raise a number of
9 challenges to their convictions and sentences.
10 Appellants argue that there was insufficient evidence
11 to establish that the murder charged in Count Two was
12 committed in relation to the marijuana conspiracy charged in
13 Count One. “A court may overturn a conviction on this basis
14 only if, after viewing the evidence in the light most
15 favorable to the Government and drawing all reasonable
16 inferences in its favor, it finds that no rational trier of
17 fact could have concluded that the Government met its burden
18 of proof.” United States v. Triumph Capital Group, Inc.,
19 544 F.3d 149, 158 (2d Cir. 2008) (internal quotation marks
20 omitted). There was clearly sufficient evidence for the
21 jury to have inferred that Peterkin was robbed of 25 pounds
22 of marijuana and $47,000 in cash by the victim. The jury
23 could have inferred that the purpose of the murder was to
24 settle the dispute caused by the theft of drugs and drug
3
1 proceeds. “Because narcotics conspiracies are illicit
2 ventures, disputes are frequently settled by force or the
3 threat of force. Consequently, advancing the aim of a
4 narcotics conspiracy can involve performing ancillary
5 functions such as enforcing discipline and chastising
6 rivals.” United States v. Santos, 541 F.3d 63, 72 (2d Cir.
7 2008) (alterations, internal quotation marks, and internal
8 citations omitted). Ample evidence supported the jury’s
9 verdict.
10 Brown argues that the district court erred by admitting
11 evidence of what he characterizes as unrelated drug
12 ownership. “We review evidentiary rulings for abuse of the
13 district court’s broad discretion, reversing only when the
14 court has acted arbitrarily or irrationally.” United States
15 v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006) (internal
16 quotation marks omitted). Evidence that Brown owned
17 marijuana and scales used for weighing marijuana during the
18 period he was alleged to have participated in a marijuana
19 distribution conspiracy rendered more probable the fact of
20 his membership in that conspiracy. See Fed R. Evid. 401.
21 Brown was permitted to argue that the drugs were for his
22 personal use or were to be sold in an unrelated scheme; such
23 arguments go to weight, not admissibility. The district
24 court did not err by admitting this evidence.
4
1 Peterkin challenges the admission of a gun found in the
2 bathroom of his motel room during a post-arrest protective
3 sweep. See generally Maryland v. Buie, 494 U.S. 325, 334
4 (1990). The officers had sufficient reasonable suspicion to
5 perform a protective sweep of the bathroom: several
6 suspected killers were staying in the motel and not all had
7 been accounted for; Peterkin was arrested immediately
8 outside his motel room; and the light in the bathroom was
9 on. Cf. United States v. Mickens, 926 F.2d 1323, 1328 (2d
10 Cir. 1991). Since the police were permitted to enter the
11 bathroom and since the gun was found to have been in plain
12 sight upon entry, it was properly seized and admitted. See
13 Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).
14 Palmer challenges the admission into evidence of his
15 co-defendants’ statements on the theory that they implicitly
16 referenced him. “The crux of [the Confrontation Clause] is
17 that the government cannot introduce at trial statements
18 containing accusations against the defendant unless the
19 accuser takes the stand against the defendant and is
20 available for cross examination.” United States v. Jass,
21 569 F.3d 47, 55 (2d Cir. 2009) (internal quotation marks
22 omitted). “[T]he Confrontation Clause is not violated by
23 the admission of a nontestifying codefendant’s confession
24 with a proper limiting instruction when . . . the confession
5
1 is redacted to eliminate not only the defendant’s name, but
2 any reference to his or her existence.” Richardson v.
3 Marsh, 481 U.S. 200, 211 (1987). “[W]hat Bruton[ v. United
4 States, 391 U.S. 123, 135-37 (1968),] and its progeny demand
5 is a redaction and substitution adequate to remove the
6 ‘overwhelming probability’ that a jury will not follow a
7 limiting instruction that precludes its consideration of a
8 redacted confession against a defendant other than the
9 declarant.” Jass, 569 F.3d at 60.
10 To determine if a redacted confession may be admitted,
11 “we examine first whether [the] redacted confession
12 indicated to the jury that the original statement contained
13 actual names and, second, whether the redacted confession,
14 even if the very first item introduced at trial[,] would
15 immediately inculpate [the non-declarant defendant] in the
16 charged crime.” Jass, 569 F.3d at 61 (internal citations
17 and quotation marks omitted). “[T]he appropriate analysis
18 to be used when applying the Bruton rule requires that we
19 view the redacted confession in isolation from the other
20 evidence introduced at trial.” United States v. Williams,
21 936 F.2d 698, 700 (2d Cir. 1991). As Palmer argues, the
22 revised statements of Brown, Golding, and Peterkin are
23 stilted by removal of so many appellations and the
24 substitution of generic references (“the guy,” the “other
6
1 person,” etc.). But the revisions did not indicate names
2 were omitted; moreover, the redacted statements--considering
3 each statement alone, apart from all other trial evidence
4 including the other statements, as we must--did not
5 immediately inculpate Palmer. Therefore, the statements
6 were not admitted in error with these redactions.
7 Finding no merit in any of the appellants’ remaining
8 arguments, we hereby AFFIRM the judgments of the district
9 court.
10
11
12 FOR THE COURT:
13 CATHERINE O’HAGAN WOLFE, CLERK
14
7