18-3849
United States v. Frye
                         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 TO 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 8th day of September, two thousand twenty.

PRESENT: DENNIS JACOBS,
                 RICHARD J. SULLIVAN,
                         Circuit Judges,
                 JESSE M. FURMAN,
                         District Judge. ∗
--------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                        v.                                       No. 18-3849-cr

QUINCEY FRYE,
                                 Defendant-Appellant.

∗
 Judge Jesse M. Furman of the United States District Court for the Southern District of
New York, sitting by designation.
--------------------------------------------------------------

        FOR APPELLANT:                                    MARTIN VOGELBAUM, Assistant
                                                          Federal Public Defender, for Marianne
                                                          Mariano, Federal Public Defender,
                                                          Buffalo, NY.

        FOR APPELLEE:                                     MONICA JEANETTE RICHARDS,
                                                          Assistant United States Attorney
                                                          (Tiffany H. Lee, Assistant United
                                                          States Attorney, on the brief), for James
                                                          P. Kennedy, United States Attorney
                                                          for the Western District of New York,
                                                          Buffalo, NY.

        Appeal from a judgment of the United States District Court for the Western

District of New York (Frank Paul Geraci, Jr., Judge).

        UPON         DUE       CONSIDERATION,                    IT   IS   HEREBY    ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED in part and DISMISSED in part.

        Defendant Quincey Frye appeals from a judgment of conviction following a

jury trial for a single count of possessing a firearm and ammunition after

conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), for which

he was sentenced to 40 months’ imprisonment, to be followed by three years of

supervised release. On appeal, Frye contends that the district court (Geraci, J.) (1)

erred in denying his motions to suppress the gun evidence and to reopen the


                                                     2
suppression hearing, (2) incorrectly permitted testimony regarding a recorded

phone call, (3) failed to afford him a meaningful opportunity to challenge

allegations regarding his purported gang affiliation, (4) erred in failing to instruct

the jury that it was required to find that Frye knew he was a felon while in

possession of the gun, and (5) erred in imposing a standard risk condition that

improperly delegated judicial authority to the U.S. Probation Office. We assume

the parties’ familiarity with the underlying facts, procedural history of the case,

and the issues on appeal, which we note only to the extent necessary to explain

our decision.

      I.     Frye’s Motions to Suppress the Gun and Reopen the Suppression
             Hearing
      Frye contends that the district court erred when it denied his motion to

suppress the gun that was seized after Tiffany Granderson, with whom Frye had

been staying while on parole, consented to parole officers’ request to search her

apartment. “In an appeal from a district court’s ruling on a motion to suppress,

we review legal conclusions de novo and findings of fact for clear error[,]” United

States v. Freeman, 

, 95 (2d Cir. 2013), giving “due weight to inferences

drawn from those facts by resident judges and local law enforcement officers,”

Ornelas v. United States, 

, 699 (1996). We review the district court’s


                                          3
denial of a motion to reopen a suppression hearing for abuse of discretion. See

United States v. Oliver, 

, 260 (2d Cir. 1980).

      “[A] search authorized by consent is wholly valid” under the Fourth

Amendment. Schneckloth v. Bustamonte, 

, 222 (1973). “[W]hen a

prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has

the burden of proving that the consent was, in fact, freely and voluntarily given.”

North Carolina, 

, 548 (1968)). Whether consent

to a search “was in fact voluntary or was the product of duress or coercion, express

or implied, is a question of fact to be determined from the totality of all the

circumstances.”

(internal quotation marks omitted). “Consent can be

found from an individual’s words, acts[,] or conduct.” Krause v. Penny, 

, 597 (2d Cir. 1988).

      Frye argues that the officers’ inability to recall the precise words used by

Granderson prior to the search necessarily precluded a finding of voluntary

consent. But numerous officers testified that, although Granderson initially stated

that she could not give them permission to enter, she subsequently opened the

door, stood to the side, and verbally indicated that they could enter the premises.

As the district court noted, there was nothing in the record during the suppression



                                           4
hearing to suggest that this consent was coerced, since the officers clearly

announced their presence, explained the purpose of their visit, and refrained from

using forceful language when communicating with Granderson. Because we must

“pay special deference to the district court’s factual determinations going to

witness credibility,” United States v. Jiau, 

, 151 (2d Cir. 2013), Judge

Geraci’s finding that the officers’ testimony was credible is entitled to substantial

weight.

      On appeal, Frye relies on Granderson’s trial testimony to argue that her

consent was not voluntary because the officers threatened to take her children

away if she did not open the door. He also contends that the district court abused

its discretion in denying Frye’s post-trial motion to reopen the suppression

hearing in light of this testimony. But the district court, recognizing that there was

conflicting evidence at the suppression hearing – and having already heard and

considered Granderson’s trial testimony – reasonably concluded that reopening

was not warranted. Again, we defer to the district court’s conclusion that the

officers’ testimony was credible and supported by the record, and that

Granderson’s testimony did not alter this calculus.

      Finally, Frye asserts that the search exceeded the scope of Granderson’s



                                          5
consent. But Frye repeatedly disclaimed any such challenge before the district

court. In doing so, he waived his right to make this challenge on appeal. See United

States v. Agrawal, 

, 259 (2d Cir. 2013) (“[A] strategic decision, evidenced

not merely by silence but by a negative response on the record to a district court

invitation to voice objection, does more than forfeit the unraised objection; it

waives it.”).

      II.       Frye’s Objection to Granderson’s Testimony Regarding the Jail
                Phone Call
      Frye next claims that the district court erred in permitting Granderson to

testify that during a phone call, a recording of which was played to the jury, Frye

admitted to owning the gun. Under Rule 701, “[i]f a witness is not testifying as an

expert, testimony in the form of an opinion is limited to one that is: (a) rationally

based on the witness’s perception; (b) helpful to clearly understanding the

witness’s testimony or to determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.” Fed. R.

Evid. 701. We review a district court’s evidentiary rulings for abuse of discretion,

and will only reverse if there was “manifest error.” United States v. Miller, 

, 687–88 (2d Cir. 2010).

      Frye first argues that Granderson’s testimony was not rationally based on


                                          6
her perception, since she could not initially recall its contents in detail. But as we

have stated previously, a “rational perception is one involving first-hand

knowledge or observation,” United States v. Yannoti, 

, 125 (2d Cir. 2008)

(internal quotation marks omitted), and Granderson was a participant in the

phone call about which she was asked to testify. The fact that Granderson had to

listen to the call to refresh her recollection as to certain details does not alter that

conclusion. Cf. Fed. R. Evid. 612 (providing rules for using a writing to refresh a

witness’s recollection).

      Frye likewise argues that Granderson’s testimony was not helpful to the jury

because it “didn’t assist the jury in independently determining whether that fact

existed.” Frye Br. at 48. But as the district court noted, although the tape was

audible, “the speakers were inarticulate,” App’x 156, and Granderson was

therefore able to help explain what they discussed. Moreover, the district court

specifically instructed the jury that it was “entirely up to [it] to determine based

upon [its] evaluation of the testimony . . . what was actually stated on those

particular phone calls.” App’x 529. Accordingly, it was not “manifest error” to

allow Granderson to testify to the call’s contents.




                                           7
      III.   Frye’s Challenge to the Presentence Report’s Allegations of Gang
             Involvement
      Frye contends that the district court violated his due process rights by failing

to comply with Federal Rule of Criminal Procedure 32, which provides that the

district court “must – for any disputed portion of the presentence report or other

controverted matter – rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). “The district court

is required only to afford the defendant some opportunity to rebut the

[g]overnment’s allegations,” United States v. Massino, 

, 137 (2d Cir.

2008) (internal quotation marks omitted), and has discretion to determine the exact

procedures for doing so, see United States v. Berndt, 

, 257 (2d Cir. 1997).

      During the sentencing proceeding, Frye objected to a statement in his

presentence report (“PSR”) indicating that he was a member of a certain gang. In

response to Frye’s objection, the district court ordered that the PSR be updated to

reflect (1) the source of the information, (2) that the information merely indicated

that Frye was associated in some way with a gang without necessarily being a

member, and (3) that Frye objected to the inclusion of that information. Although

Frye now insists that the district court’s ruling was equivocal, since it failed to


                                          8
conclusively resolve the question of his gang membership, there can be no doubt

that Frye had adequate opportunity to contest the allegations in the PSR, as

required by Rule 32. More importantly, the record as a whole makes clear that the

district court placed no reliance on Frye’s purported gang affiliation when

imposing his sentence. To the contrary, the district court gave a lengthy recitation

of the facts that informed its sentencing decision, including Frye’s extensive

criminal history, and at no point mentioned his alleged (and disputed) gang

affiliation. Therefore, we find that the district court did not err in its resolution of

the contested information in Frye’s PSR.

      IV.    Frye’s Knowledge of His Prior Felony Conviction

      Frye also insists – for the first time on appeal – that the district court erred

by failing to instruct the jury that it was required to find that he knew he had a

felony conviction when he possessed the gun. Specifically, Frye relies on the

Supreme Court’s decision in Rehaif v. United States, ––– U.S. ––––, 

(2019) – decided after Frye’s sentencing – which held that to obtain a conviction

pursuant to 18 U.S.C. § 922(g), the government must prove not only that the

defendant knew that he possessed a firearm, but also that he “knew he belonged

to the relevant category of persons barred from possessing a firearm.” 

at 2200. Accordingly, although Frye had stipulated at trial that he had previously

been convicted of a crime punishable by imprisonment for a term exceeding one

year, that stipulation failed to address his knowledge of the prior conviction or its

potential penalties at the time he possessed the firearm. Because Frye challenges

the district court’s instruction for the first time on appeal, we review that

instruction “for plain error, considering 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, 

, 557–58 (2d Cir. 2020) (internal quotation marks omitted).

      Frye’s argument is foreclosed by our decision in Miller. Like Frye, the

defendant in Miller stipulated to his qualifying status, presumably to prevent the

jury from learning potentially prejudicial facts concerning the defendant’s prior

conviction; indeed, as we noted in Miller, had the government sought to introduce

evidence of the defendant’s prior conviction, the district court likely would have

excluded it “as unnecessary and prejudicial embellishment on his stipulation.”

In light of the stipulation, we found that the district court did not commit

plain error when instructing the jury that the government was not required to



                                         10
prove that the defendant knew of his status as a felon, since the PSR showed that

he was sentenced to, and actually served, more than one year in prison for a prior

felony conviction.

Given those facts, we concluded that the error

did not “seriously affect the fairness, integrity, or public reputation of judicial

proceedings,” since, “had the Rehaif issue been foreseen by the district court, [the

defendant] would have stipulated to knowledge of his felon status to prevent the

jury from hearing evidence of his actual sentence.”

      The same is true here. Like the PSR in Miller, Frye’s PSR shows that he was

sentenced to, and served, more than one year’s imprisonment for a felony

conviction.   Specifically, he pleaded guilty to attempted burglary, and was

sentenced to three years’ imprisonment, of which he served a little over two years.

Moreover, Frye finished serving that sentence only about five months before the

date on which he was found to be in possession of a gun. We thus conclude that

the error here, as in Miller, was not plain, since it did not “seriously affect the

fairness, integrity, or public reputation of judicial proceedings.”

      V. 
     Standard Risk Condition

      Finally, Frye challenges one of the conditions of his supervised release,

arguing that the district court’s imposition of a third-party risk notification



                                          11
condition impermissibly delegated judicial authority to his probation officer. In

United States v. Boles, 
914 F.3d 95 
(2d Cir. 2019), we held that same risk condition

was vague and impermissibly delegated power to the probation officer. After

Boles, the District Court for the Western District of New York issued a standing

order amending the Judgment and Commitment order in all criminal cases,

replacing the problematic condition with the following:

      If the court determines in consultation with you[r] probation officer
      that, based on your criminal record, personal history and
      characteristics, and the nature and circumstances of your offense, you
      pose a risk of committing further crimes against another person
      (including an organization), the probation officer may require you to
      notify the person about the risk and you must comply with that
      instruction. The probation officer may contact the person and confirm
      that you have notified the person about the risk.
Gov. Br. at 35. Frye nevertheless argues that the new condition continues to

improperly delegate authority to the probation officer, as it “differs from the one

disapproved in Boles only in that it properly commits to the [d]istrict [c]ourt the

authority to determine that a defendant represents a risk,” but “continues to . . .

grant[] Probation the authority to curb the defendant’s liberty by deciding that he

must notify third parties of the risk the [d]istrict [c]ourt has determined he poses.”

Frye Reply at 31.

      In our recent decision in United States v. Traficante, 
966 F.3d 99 
(2d Cir. 2020),


                                          12
we held that a defendant cannot challenge the amended condition as improper

unless and until such a delegation occurs. As we explained in Traficante, “the

supposed delegation is conditioned on the district court finding, during [the

defendant’s] term of supervised release, that he poses a risk of committing further

crimes against another person” – an event that might never occur.
 Id. at 106–07.
And even if the district court were to make such a risk determination, it “still might

directly order [the defendant] to notify the at-risk individual, or alternatively,

order the probation officer to require [the defendant] to so notify the potential

victims,” meaning that the “allegedly impermissible delegation would . . . never

have materialized.”
 Id. at 107. 
We therefore conclude that Frye’s challenge to the

standing order, as in Traficante, is not ripe.

      We have considered the rest of Frye’s arguments and conclude that they are

without merit. Accordingly, we DISMISS Frye’s challenge to the standard risk

condition, but AFFIRM the judgment of the district court in all other respects.

                                  FOR THE COURT:
                                  Catherine O’Hagan Wolfe, Clerk of Court




                                           13