19-1585
United States v. Brooks
                              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 23rd day of September, two thousand twenty.

        PRESENT: RICHARD J. SULLIVAN,
                         MICHAEL H. PARK,
                         WILLIAM J. NARDINI.
                                 Circuit Judges.
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        UNITED STATES OF AMERICA,

                          Appellee,

                   v.                                                        No. 19-1585

        JOHN BROOKS,

                          Defendant-Appellant.

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        FOR APPELLANT:                                   BENJAMIN W. HILL, Capezza Hill,
                                                         LLP, Albany, NY.
           FOR APPELLEE:                        RAJIT S. DOSANJH, Assistant United
                                                States Attorney, for Grant C. Jaquith,
                                                United States Attorney for the
                                                Northern District of New York,
                                                Syracuse, NY.

           Appeal from judgment of the United States District Court for the Northern

District of New York (Gary L. Sharpe and Mae A. D’Agostino, Judges).

           UPON     DUE    CONSIDERATION,           IT    IS    HEREBY       ORDERED,

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

AFFIRMED.

           Defendant-Appellant John L. Brooks appeals from his conviction for

evidence tampering, in violation of 18 U.S.C. § 1512(c)(1), following a four-day jury

trial. 1    On appeal, Brooks contends that (1) there was insufficient evidence

supporting his conviction, (2) the district court deprived him of the right to a fair

trial by admitting evidence about grand jury proceedings that occurred after the

alleged evidence tampering, (3) the government constructively amended the

indictment, and (4) various statements and evidence should have been

suppressed. We assume the parties’ familiarity with the underlying facts, the




1 Judge Sharpe decided Brooks’s motions to dismiss the indictment and to suppress evidence.
Judge D’Agostino presided at trial and sentencing, and decided Brooks’s pre-trial motion to
exclude evidence and post-trial motions.


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record of prior proceedings, and the issues on appeal, to which we refer only as

necessary to explain our decision.

                         I. Sufficiency of the Evidence

      We review Brooks’s preserved sufficiency claim de novo. See United States v.

Pierce, 

, 837 (2d Cir. 2015). A defendant challenging the sufficiency of

the evidence bears “a very heavy burden,” United States v. Desena, 

,

177 (2d Cir. 2002), as we must uphold the jury’s verdict so long as “any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt,” Jackson v. Virginia, 

, 319 (1979). Brooks fails to meet

this high standard.

      Section 1512 makes it illegal to “corruptly” “conceal[]” or attempt to conceal

an “object” with the “intent to impair the object’s integrity or availability for use

in an official proceeding.” 18 U.S.C. § 1512(c)(1). A “proceeding before . . . a

Federal grand jury” is an “official proceeding.”

prove a

violation of section 1512, “the government must show that there was a nexus

between the defendant’s conduct and the pending, or foreseeable, official

proceeding.” United States v. Pugh, 

, 21 (2d Cir. 2019) (internal quotation

marks omitted).




                                          3
       Brooks contends that there was insufficient evidence of a nexus between his

acts and the two official proceedings at issue – two future grand jury investigations

– since, at most, he “knew his actions could potentially affect an ongoing

investigation.” Brooks’s Br. at 14. But it is well established that a defendant need

not know about a specific grand jury investigation for one to be foreseeable. See

United States v. Binday, 

, 590–91 (2d Cir. 2015). Rather, a grand jury

proceeding is foreseeable if “the defendant was aware ‘that he was the target of an

investigation.’”

(quoting United States v. Persico, 

, 108 (2d Cir.

2011)). 2

       Here, there was more than sufficient evidence for the jury to conclude that

Brooks knew that his actions were likely to affect an ongoing investigation. Brooks

bought 13 guns at a gun show in Akron, Ohio for Marcel Hooks (“Marcel”), and

learned shortly thereafter that Marcel would take the guns to New York. [App’x

898] He knew that purchasing the guns for Marcel was illegal under federal law

at the time he did it, since he completed a form falsely attesting that he was the



2Brooks seems to overlook that foreseeability is the touchstone here: Showing that a defendant
knew he was a target of an investigation is just one way to prove foreseeability – but it is by no
means a required showing. To hold otherwise would inject a degree of formalism neither called
for by the statute nor consistent with our precedent. Brooks’s suggestion that we define “target”
as it is defined in the Department of Justice’s Justice Manual would, if adopted, only worsen that
problem. See U.S. Dep’t of Justice, Justice Manual, tit. 9, ch. 9-11.151.


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“actual transferee/buyer” of the guns, which specifically warned him that a false

attestation that one is the “transferee/buyer is a crime punishable as a felony under

Federal law.” App’x 744–45, 750–51, 757–58, 760–61. And, as in Binday, Brooks

knew that officials were investigating that straw purchasing scheme “in which he

participated and about which he possessed incriminating 

. The evidence showed that Marzette Hooks, with whom Brooks had also

colluded to buy the guns, called Brooks to inform him that the stash house in

Albany, New York where one of the guns was stored had been searched, and

warned Brooks that he might have to “pay a fine” and “appear in court.” App’x

866. Not long after, another member of the colluding team attended a proffer

session, where an investigator introduced himself as an ATF agent and another

ATF officer explained “the details of what we had learned from our investigation.”

App’x 437–38. Later that same day, Marcel told Brooks to “come get [the guns]

now” because “the heat was on.” App’x 878. Brooks did so, believing that the

men in New York were being surveilled by law enforcement. He then returned to

Ohio with the guns, which enabled him to falsely assert that the firearms had never

left his possession and that the forms he completed at the time of purchase were

accurate. Indeed, when confronted by ATF agents in Ohio, Brooks repeatedly lied




                                         5
about the scheme and the fact that he had sold the firearms to Marcel and others

so that they could take them to New York.

      On this record, the jury was surely justified in finding that Brooks possessed

the requisite wrongful intent under section 1512.

               II. Evidence Regarding Subsequent Grand Juries

      Brooks next contends that the district court deprived him of his right to a

fair trial by admitting prejudicial evidence regarding two grand juries, neither of

which was convened until after he concealed the guns. Under Federal Rule of

Evidence 403, a court “may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

      There was no “clear abuse of discretion” – nothing “arbitrary and irrational”

– in the district court’s decision to admit evidence about the ATF investigations

and the two grand jury proceedings. United States v. Gupta, 

, 132 (2d

Cir. 2014) (internal quotation marks omitted). While not determinative, the fact of

a grand jury proceeding is logically related to whether such a proceeding was

foreseeable. Moreover, the government was required to show that the “official

proceeding” was federal in character, see 18 U.S.C. § 1515(a)(1)(A), and was




                                         6
permitted to rebut the defense’s argument that no federal proceeding was

foreseeable because the only relevant investigation was entirely local in character.

      We also reject Brooks’s contention that he was forced to defend the Ohio

charge on the merits. The government referenced only the existence of the Ohio

grand jury – not that it had indicted Brooks – and the district court made clear that

Brooks was “not on trial for what he did in Ohio” but “only . . . the crime charged

in the indictment.” App’x 305. Juries are presumed to follow their instructions,

see United States v. Downing, 

, 59 (2d Cir. 2002), and we have no reason

to find that they did not do so here.

                          III. Constructive Amendment

      Brooks also urges us to find that the government constructively amended

his indictment during the trial. “A constructive amendment occurs when the

charge upon which the defendant is tried differs significantly from the charge

upon which the grand jury voted,” either “where (1) an additional element,

sufficient for conviction, is added, or (2) an element essential to the crime charged

is altered.” United States v. Dove, 

, 146 (2d Cir. 2018) (internal citations

omitted).    In assessing such challenges, we have “consistently permitted

significant flexibility in proof, provided that the defendant was given notice of the




                                           7
core of criminality to be proven at trial.” United States v. Patino, 

, 266

(2d Cir. 1992) (internal quotation marks omitted).

      Brooks was on clear notice of what would be proven. The indictment

charged that, “[o]n or about April 29, 2017, in Albany County . . . and elsewhere,

. . . [Brooks] attempt[ed] to corruptly conceal . . . one or more firearms he

purchased on March 18 and 19, 2017” with the “intent to impair the [guns’]

availability for use in an official proceeding.”      17-cr-402, Doc. No. 1.     The

government did not add or alter an essential element of the charge by referring to

the grand jury proceeding in Ohio, since the indictment was not limited to New

York. In fact, the government notified Brooks in its pretrial submissions that the

“official proceedings” it would prove were grand jury investigations in both Ohio

and New York. Nor did the evidence regarding the straw purchases somehow

change the “core of criminality”; Brooks was charged with concealing those very

guns, so evidence of that underlying scheme was directly relevant to his

prosecution under section 1512. Finally, it cannot be said that the government’s

arguments to the jury about Brooks lying to investigators altered the government’s

theory as to the “core of criminality” at issue here. We therefore reject Brooks’s

constructive amendment argument in its totality.




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                          IV. Suppression of Evidence

      Brooks next challenges the district court’s denial of his motion to suppress

the statements he made during his interview with investigators on May 3, 2017,

and the firearms they seized that day from his home.

      Statements made during a           custodial interrogation are generally

inadmissible unless the defendant receives certain procedural protections.

Miranda v. Arizona, 

, 444 (1966). Since it is undisputed that Brooks did

not receive a Miranda warning before his May 3, 2017 statements, we consider only

whether he was in “custody” for Miranda purposes – which requires that we look

to “all the surrounding circumstances” to decide if “a reasonable person”

(1) “would have thought he was [not] free to leave the police encounter at issue”

and (2) “would have understood his freedom of action to have been curtailed to a

degree associated with formal arrest.” United States v. Faux, 

, 135 (2d

Cir. 2016) (internal quotation marks omitted).

      We agree with the district court that this was not a custodial interview.

After the ATF agents contacted Brooks, he elected to meet with them, chose the

meeting location, met them in a public parking lot, and agreed to talk to them in a

rental car. The investigators’ weapons were not visible, and the car doors were




                                         9
not locked. And, as the district court found, the interview was conducted in a

calm, professional manner.         Under these circumstances, a reasonable person

would have no reason to believe that they were not free to leave. 3

       We also agree with the district court that the search of Brooks’s home was

voluntary.     “The ultimate question presented is whether the officer had a

reasonable basis for believing that there had been consent to the search.” United

States v. Isiofia, 

, 231 (2d Cir. 2004) (internal quotation marks and

brackets omitted). Brooks himself asked the officers if they wanted to see the

firearms at his house and welcomed them inside, and the only “restraint” that the

officers imposed on Brooks – requesting that he not handle the firearms himself –

did not somehow undermine the voluntariness of that search.

       We have considered Defendant’s remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the district

court is AFFIRMED.

                                           FOR THE COURT:

                                           Catherine O’Hagan Wolfe, Clerk of Court




3 In light of our conclusion, we reject Brooks’s argument that a later Miranda warning was
“ineffective because the prior May 3, 2017 statements were obtained in violation of Miranda and
thereby tainted the second interrogation.” Brooks’s Br. 35–36.


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