USA v. Stewart, No. 05-1989 (2d Cir. 2007)

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05-1989 USA v. Stewart 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2006 5 (Argued: January 26, 2007 Decided: May 8, 2007) 6 7 8 9 10 Docket No. 05-1989-cr _________________________________________________________ UNITED STATES OF AMERICA, Appellee, 11 - v. - 12 13 14 HUMPHREY STEWART, 15 Before: 16 Judge*. Defendant-Appellant. _________________________________________________________ KEARSE and SOTOMAYOR, Circuit Judges, and KOELTL, District 17 Appeal from a judgment of the United States District Court 18 for the Eastern District of New York, Raymond J. Dearie, Judge, 19 convicting defendant on eight counts of racketeering, firearms, and 20 narcotics violations, see 18 U.S.C. §§ 1959(a)(5), 1962(c) and (d), 21 922(g)(1), 22 841(a)(1), following a jury trial that included hearsay evidence and 924(c)(1)(A)(iii), and 21 U.S.C. §§ 846 and *Honorable John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation. 1 admitted on the ground that the declarant was unavailable because 2 his murder had been procured by the defendant. 3 Affirmed. 4 5 6 7 8 9 10 JEFFREY GOLDBERG, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Peter A. Norling, Alyssa A. Qualls, Assistant United States Attorneys, Brooklyn, New York, on the brief), for Appellee. 11 12 13 14 EDWARD D. WILFORD, New York, New York 2(Anthony L. Ricco, Steven Z. Legon, New York, New York, on the brief), for Defendant-Appellant. 15 KEARSE, Circuit Judge: 16 Defendant Humphrey Stewart appeals from a judgment entered 17 in the United States District Court for the Eastern District of New 18 York on April 22, 2005, following a jury trial before Raymond J. 19 Dearie, Judge (now Chief Judge), convicting Stewart of racketeering 20 and racketeering conspiracy, in violation of 18 U.S.C. §§ 1962(c) 21 and (d); 22 distribute five or more kilograms of cocaine, in violation of 21 23 U.S.C. § 846; distribution and possession of five or more kilograms 24 of cocaine, in violation of 21 U.S.C. § 841(a)(1); attempted murder 25 and conspiracy to commit murder in aid of racketeering activity, in 26 violation of 18 U.S.C. § 1959(a)(5); possession, as a convicted 27 felon, of a firearm in violation of 18 U.S.C. § 922(g)(1); and conspiracy to distribute -2- and possess with intent to 1 discharge of a firearm during a violent crime, in violation of 18 2 U.S.C. § 924(c)(1)(A)(iii). 3 life imprisonment on each of the racketeering and narcotics counts 4 and 10 years each on the attempted murder, conspiracy to murder, and 5 § 922(g) firearm counts, with all of those prison terms to be served 6 concurrently, 7 § 924(c) firearm count to be served consecutively to the other 8 prison terms. 9 to a state-court sentence Stewart was then serving. and to a Stewart was sentenced principally to five-year term of imprisonment on the All of these prison terms were to run consecutively On appeal, 10 Stewart contends, inter alia, that the district court violated his 11 rights under the Confrontation Clause of the Sixth Amendment when it 12 allowed certain trial witnesses to describe statements that had been 13 made by a declarant whose murder the court found Stewart had 14 procured. 15 contentions, we affirm the judgment. Finding no merit in this or any of Stewart's other 16 I. BACKGROUND 17 The present prosecution arose out of investigations into 18 the narcotics trafficking activities in Brooklyn, New York, and 19 elsewhere in the United States, of a group of men known as the 20 "Patio Crew." 21 testimony from law enforcement officers, cooperating members of the 22 Patio Crew (or "Crew"), and others. The evidence at -3- Stewart's 2004 trial included 1 Briefly summarized in the light most favorable to the 2 government, the trial evidence included the following. 3 Emile Dixon were members of the Patio Crew, a gang that had 4 controlled narcotics trafficking in the Flatbush section of Brooklyn 5 for more than a decade. 6 crack cocaine and was vigilant in protecting its Flatbush territory 7 through the 8 Stewart and 9 particularly inclined towards violence. use of Dixon The Crew distributed powder cocaine and threats, were Stewart and assaults, regarded by robberies, other Crew and murder. members as The Crew had a code of 10 vengeance 11 authorities; 12 Jamaican nationals, the "rule" was "informer for dead," meaning that 13 if an informer "cooperated with the police," the "[i]nformer must 14 die." 15 ("[i]nformers must dead"); Stewart brief on appeal at 4 ("[T]he 16 credo of the streets" included the rule "keep your mouth shut! 17 Never become an informant! 18 saying on the street, 'snitches for dead', which was a warning that 19 meant death to informants.").) against in anyone the who cooperated vernacular of the with Crew law enforcement members, who were (Trial Transcript ("Tr.") at 110; see also id. at 312 Never snitch! There was even a popular 20 In the summer of 1999, Stewart became aware that marijuana 21 was being sold at one of the Crew's locations by Robert Thompson 22 (a/k/a "Ragga"), who was not a member of the Crew. 23 1999, complaining of Ragga's competition in front of Stewart's 24 building (see Tr. 137), Stewart approached other Patio Crew members -4- On July 29, 1 and asked if anyone had a "fire stick," meaning a gun (Tr. 136, 2 341). Later that day, Ragga was shot several times. 3 seriously injured, but recovered. He was 4 Ragga at first refused to reveal the identity of his 5 assailant to the police (see, e.g., Tr. 727-28); he would say only 6 that he had been in his jeep stopped at a red light when a man ran 7 up, opened the door, and started firing a gun at him (see id. at 8 739-40). 9 shooter had been Stewart; Ragga so testified before a grand jury in Eventually, however, Ragga informed the police that the 10 March 2000. 11 including his girlfriend, his brother Steven, and the mother of two 12 of his children, that he had been shot by Stewart. In the meantime, Ragga had told several others, 13 Immediately after the shooting of Ragga, Stewart had fled 14 Brooklyn for Buffalo, New York, where he continued to participate in 15 the Crew's narcotics distributions. 16 arrested 17 eventually returned to Brooklyn to face outstanding charges with 18 respect to an unrelated 1995 shooting in Brooklyn. 19 greater detail in Part II.A. below, Stewart, while being detained 20 first in Buffalo and then in Brooklyn, sent several messages to 21 Ragga urging him not to identify Stewart in a lineup and not to 22 testify against him with respect to the 1999 shooting of Ragga. 23 Ragga was undeterred, and in late March 2000 he informed a police 24 detective that Stewart was the person who had shot him. Thereafter, in Buffalo on New York -5- In January 2000, Stewart was State drug charges; he was As discussed in 1 Stewart had several telephone conversations with Dixon, who urged 2 Ragga not to testify against Stewart. 3 testify. 4 by Dixon. Ragga refused to agree not to On July 26, 2000, in a drive-by shooting, Ragga was killed 5 Dixon and Stewart were eventually indicted on federal 6 charges, including several relating to the murder of Ragga. Stewart 7 was charged with conspiring between July 1999 and July 2000 to 8 murder Ragga and with attempting to murder Ragga on July 29, 1999, 9 for the purpose of maintaining and increasing his position in the 10 Patio Crew, a racketeering enterprise, in violation of 18 U.S.C. 11 § 1959(a)(5). 12 against Dixon for the actual murder, the two defendants were tried 13 separately. 14 introduce 15 witnesses that Ragga had told them that the man who shot him on July 16 29, 1999, was Stewart. 17 Stewart was convicted on the § 1959 counts, as well as the other 18 counts described above. Because the government sought the death penalty At Stewart's trial, the government was allowed to evidence from 19 20 a police appeal, and several other (See, e.g., Tr. 739-40, 991, 1098, 1309.) II. On detective Stewart DISCUSSION contends, inter alia, that the 21 admission of testimony that Ragga had identified him as the July 29, 22 1999 shooter violated his rights under the Confrontation Clause. -6- 1 His other contentions include a challenge to the sufficiency of the 2 evidence to support his conviction on one count and a contention 3 that the district court failed to consider the appropriate factors 4 in imposing sentence. 5 affirm the judgment. 6 A. Finding no merit in his contentions, we The Confrontation Clause: Forfeiture of the Right 7 The Confrontation Clause of the Sixth Amendment provides 8 that "[i]n all criminal prosecutions, the accused shall enjoy the 9 right . . . to be confronted with the witnesses against him." U.S. 10 Const. amend. VI. 11 to take advantage of his own wrong,'" United States v. Mastrangelo, 12 693 F.2d 269, 272 (2d Cir. 1982) ("Mastrangelo") (quoting Diaz v. 13 United States, 223 U.S. 442, 458 (1912) (other internal quotation 14 marks omitted)) (brackets ours), and it is thus well established, as 15 a matter of "[s]imple equity" and "common sense," that the right to 16 confrontation is forfeited if the defendant has "wrongfully procured 17 the witnesses' silence through threats, actual violence or murder," 18 United States v. Dhinsa, 243 F.3d 635, 651 (2d Cir.) ("Dhinsa") 19 (internal quotation marks omitted), cert. denied, 534 U.S. 897 20 (2001). 21 misconduct 22 witness. . . . 23 circuits Nonetheless, "'the law [will not] allow a person See, e.g., id. at 652 ("'It is hard to imagine a form of to more extreme than the murder of a potential We have no hesitation in finding, in league with all have considered the -7- matter, that a defendant who 1 wrongfully procures the absence of a witness or potential witness 2 may not assert confrontation rights as to that witness.'" (quoting 3 United States v. White, 116 F.3d 903, 911 (D.C. Cir.), cert. denied, 4 522 U.S. 960 (1997))); United States v. Miller, 116 F.3d 641, 667-68 5 (2d Cir. 1997), cert. denied, 524 U.S. 905 (1998); United States v. 6 Thai, 29 F.3d 785, 814 (2d Cir.), cert. denied, 513 U.S. 977 (1994); 7 United 8 Mastrangelo, 693 F.2d at 272-73; United States v. Cherry, 217 F.3d 9 811, 814-15 (10th Cir. 2000); Steele v. Taylor, 684 F.2d 1193, 10 1201-02 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); United 11 States v. Carlson, 547 F.2d 1346, 1358-60 (8th Cir. 1976), cert. 12 denied, 431 U.S. 914 (1977). 13 U.S. 36, 62 (2004) ("the rule of forfeiture by wrongdoing (which we 14 accept) extinguishes confrontation claims on essentially equitable 15 grounds"). States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); See also Crawford v. Washington, 541 16 In 1997, the Federal Rules of Evidence were amended to 17 "recognize[] the need for a prophylactic rule to deal with [this 18 type of] abhorrent behavior 'which strikes at the heart of the 19 system of justice itself.'" 20 Note (1997) (quoting Mastrangelo, 693 F.2d at 273). 21 heading "Forfeiture by wrongdoing," Rule 804(b)(6) provides that the 22 hearsay rule does not require the exclusion of "[a] statement 23 offered against a party that has engaged or acquiesced in wrongdoing 24 that was intended to, and did, procure the unavailability of the Fed. R. Evid. 804 Advisory Committee -8- Under the 1 declarant as a witness." 2 Accordingly, the district court may admit hearsay evidence as to 3 statements 4 preponderance of the evidence, see Fed. R. Evid. 804 Advisory 5 Committee Note (1997); Fed. R. Evid. 104(a), that (a) the "party 6 against whom the out-of-court statement is offered[] was involved 7 in, 8 declarant through knowledge, complicity, planning or in any other 9 way," and (b) that party "acted with the intent of procuring the 10 declarant's unavailability as an actual or potential witness," 11 Dhinsa, 243 F.3d at 653-54 (internal quotation marks omitted). or by an responsible Fed. R. Evid. 804(b)(6) (emphasis added). unavailable for, declarant procuring the if it finds unavailability by of a the 12 In the present case, the district court found that the 13 government had shown "by a preponderance of the evidence that Mr. 14 Stewart acted through Mr. Dixon to secure the absence of the 15 witness, Robert Thompson, and that [he did] so with intent to do 16 just that." 17 points out that he "was in custody at the time the murder was 18 committed," arguing that there was no "direct evidence that [he] 19 commanded or directed that Mr. Dixon shoot the witness." 20 brief on appeal at 16.) 21 evidence, either direct or circumstantial, that [he] acted with the 22 intent required under the second prong of Dhinsa." (Id.) Stewart's 23 challenge is both legally flawed and contradicted by the record. 24 (Tr. 738.) Stewart challenges these findings. He (Stewart And he argues that there was "no competent First, the government was not required to show Stewart's -9- 1 involvement in Dixon's murder of Ragga by "direct evidence." 2 the existence of a conspiracy and a given defendant's participation 3 in it with the requisite knowledge and criminal intent may be 4 established through circumstantial evidence. 5 States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, 6 498 U.S. 991 (1990); United States v. Tutino, 883 F.2d 1125, 1129 7 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990); United States v. 8 Young, 745 F.2d 733, 762 (2d Cir. 1984), cert. denied, 470 U.S. 1084 9 (1985). Both See, e.g., United Here the record contains ample circumstantial evidence of 10 Stewart's involvement in Ragga's murder, principally in the form of 11 telephone records and testimony from Stewart confidantes. 12 For example, Stewart's cousin Devon Tate testified that 13 after Stewart was arrested in Buffalo, Stewart made a number of 14 telephone calls to Tate from jail. Tate testified, "[Stewart] asked 15 me to get in touch with Ragga's mother . . . to tell her to have 16 [Ragga] not go to the identification line-up . . . ." 17 Tate passed that message to Ragga's brother Delroy and received a 18 return call from Ragga's mother (id. at 433-34), who advised Tate 19 not to be involved and said that Ragga would "go forward" (id. at 20 435). 21 Stewart subsequently "told [Tate] that [Stewart] was ID-d by Ragga 22 and he's an informer and informer must die." (Tr. 433.) Tate testified that he relayed that response to Stewart; (Id.) 23 Susan Sanchez, a girlfriend of Stewart's, testified that 24 while Stewart was in custody, first in Buffalo and then in Brooklyn, - 10 - 1 she frequently, at Stewart's behest, arranged untraceable three-way 2 calls between Stewart and others. 3 such calls between Stewart and Dixon two or three times a week. 4 (See Tr. 923.) (See Tr. 921-23.) She arranged 5 Patio Crew member Horace Burrell, one of the witnesses who 6 described the Crew's rule that "[i]nformers must dead" (Tr. 312), 7 testified that he witnessed a conversation between Dixon and Ragga's 8 brother Delroy about Ragga after Stewart was arrested. 9 conversation, Dixon said that Stewart had called him and instructed 10 him to tell Delroy to tell Ragga that "he not supposed to go testify 11 against him." 12 not agree to relay that message to Ragga, "[Dixon] was upset and he 13 was walking away and said tell your brother that if you don't listen 14 to what we say shot will fire." 15 (Tr. 342.) In that Burrell testified that when Delroy did (Tr. 343.) The government also introduced Dixon's cellular telephone 16 records 17 telephone contacts between Dixon and Stewart in the weeks leading up 18 to the murder and on the day of the murder itself. and Stewart's prison telephone records. They showed 19 Thus, before any witnesses were allowed to testify that 20 Ragga told them he had been shot by Stewart, the court heard 21 evidence that Stewart had instructed Dixon and others to try to 22 persuade Ragga not to testify that Stewart was the person who shot 23 him in July 1999, that the Patio Crew's code was that "[i]nformer 24 must dead," and that both Stewart and Dixon had sent the message - 11 - 1 that if Ragga insisted on testifying against Stewart, Ragga would be 2 shot. 3 had established by a preponderance of the evidence that Stewart 4 acted through Dixon to murder Ragga, and did so with the intent to 5 prevent Ragga from testifying against Stewart, was amply supported 6 by the record. 7 Accordingly, the district court's ruling that the government Finally, we note that the forfeiture-by-wrongdoing 8 principle made the testimony as to Ragga's statements admissible at 9 Stewart's trial on the present federal charges even though Stewart's 10 efforts had been focused on preventing Ragga from testifying at a 11 different trial, to wit, Stewart's state trial for assault, rather 12 than the trial in the present federal case (which had not yet been 13 initiated). 14 defendant intend to render the declarant unavailable 'as a witness.' 15 The text does not require that the declarant would otherwise be a 16 witness at any particular trial . . . . 17 and intentionally renders a declarant unavailable as a witness in 18 any proceeding forfeits the right to exclude, on hearsay grounds, 19 the declarant's statements at that proceeding and any subsequent 20 proceeding." 21 Cir.) (emphasis in original), cert. denied, 546 U.S. 912 (2005). 22 Indeed, the forfeiture principle applies even to 23 24 25 26 "The text of Rule 804(b)(6) requires only that the A defendant who wrongfully United States v. Gray, 405 F.3d 227, 241, 242 (4th situations where "there was [no] ongoing proceeding in which the declarant was scheduled to testify." Miller, 116 F.3d at 668; see also [United States v.] Houlihan, 92 F.3d [1271, 1279-80 (1st Cir. 1996)]. - 12 - 1 2 3 4 5 6 The application of Mastrangelo under these circumstances is both logical and fair since a contrary rule "would serve as a prod to the unscrupulous to accelerate the timetable and murder suspected snitches sooner rather than later." Houlihan, 92 F.3d at 1280. 7 Dhinsa, 243 F.3d at 652. 8 from such wrongdoing. A defendant will not be allowed to profit 9 In sum, Stewart, by his involvement in the murder of 10 Ragga, forfeited any right to exclude evidence of out-of-court 11 statements by Ragga that he had previously been shot by Stewart. 12 B. Other Contentions 13 Stewart also contends that the evidence was insufficient 14 to support his conviction for racketeering conspiracy, that the 15 government 16 district court erred in failing to suppress evidence seized from his 17 automobile, and that the court failed to consider the proper factors 18 in imposing sentence. 19 warrant extended discussion. failed to disclose exculpatory material, that the These contentions lack merit and do not 20 Stewart contends that his conviction on the racketeering 21 conspiracy count should be vacated on the ground that the evidence 22 at trial was insufficient to establish that the Patio Crew was a 23 racketeering enterprise, rather than simply a neighborhood social 24 group. 25 alia, that members of the Patio Crew distributed narcotics and 26 shared drug distribution opportunities; that the Crew maintained the This contention is meritless. - 13 - The evidence showed, inter 1 same core membership for some 12 years; that it regulated drug 2 dealing within the territory it controlled; and that the members 3 adhered to rules of conduct. 4 juror to infer that the Patio Crew constituted a racketeering 5 enterprise within the meaning of 18 U.S.C. § 1962. 6 United States v. Dixon, 167 F. App'x 841, 843-44 (2d Cir. 2006) 7 (holding that the similar evidence introduced at Dixon's trial was 8 sufficient 9 enterprise). to show that This was ample to permit a rational the Patio Crew was a See, e.g., racketeering 10 Stewart also contends that the government violated its 11 duty under Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v. 12 Whitley, 514 U.S. 419 (1995), to turn over evidence that could have 13 been used to impeach the credibility of one of its witnesses, Jimael 14 Allen. 15 Allen's associate Omar Sutherland, and that the government knew and 16 failed to disclose that someone else had been convicted of that 17 murder. 18 considered material evidence with respect to the charges against 19 Stewart, Stewart's factual premises are unsubstantiated. 20 Stewart has pointed to no evidence as to another person's conviction 21 for the murder of Sutherland. 22 record citation to support his assertion that Allen testified that 23 Sutherland was murdered by Dixon. 24 by Allen, who testified as follows: Stewart claims that Allen testified that Dixon killed Even assuming that such a conviction could have been First, Second, Stewart has provided no We have found no such accusation - 14 - 1 Q. Did there come a time when Omar was killed? 2 A. Yes. 3 Q. Did you witness the murder? 4 A. No, I didn't. 5 I wasn't there that night. (Tr. 1143.) 6 Stewart's contention that the district court erred in 7 failing to suppress $20,000 in cash that had been found, following 8 his arrest after a routine traffic stop in 1996, in a car Stewart 9 was driving, borders on the frivolous. Stewart waived this argument 10 when he conceded before the district court that the evidence was 11 admissible under the inevitable discovery doctrine (see Tr. 1209). 12 In any event, one of the arresting officers testified, without 13 contradiction, that he and other police officers regularly performed 14 inventory searches of such a vehicle at the scene of a driver's 15 arrest to determine whether the vehicle could safely be left on the 16 street. 17 the evidence would have been admissible as the fruit of a valid 18 inventory search. See, e.g., United States v. Thompson, 29 F.3d 62, 19 65 (2d Cir. 1994) (postarrest inventory search conducted pursuant to 20 routine standardized practice does not violate Fourth Amendment). (See Tr. 1030.) Thus, even without Stewart's concession, 21 Finally, we reject Stewart's claim that the district 22 court, in imposing his sentence, erred by failing to consider the 23 sentencing 24 presume, in the absence of record evidence suggesting otherwise, factors enumerated at - 15 - 18 U.S.C. § 3553(a). "[W]e 1 that a sentencing judge has faithfully discharged her duty to 2 consider the statutory factors." 3 F.3d 19, 30 (2d Cir.), cert. denied, 127 S. Ct. 192 (2006). 4 nothing in the record to suggest that the district court here failed 5 to discharge this duty. 6 considered whether the Guidelines sentence it imposed would be 7 appropriate, 8 unreasonable, see United States v. Booker, 543 U.S. 220, 260-61 9 (2005). and we see 10 11 United States v. Fernandez, 443 We see Rather, the district court carefully no basis for finding the sentence CONCLUSION We have considered all of Stewart's arguments on this 12 appeal and have found them to be without merit. 13 district court is affirmed. - 16 - The judgment of the

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