09-3984-cr
     United States v. Barnes



                          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 11 th day of January, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROBERT D. SACK,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               09-3984-cr
17
18       DAWUD BARNES, also known as Wop,
19       YUSUF BARNES, also known as Simie,
20       BRYAN CONKLIN, also known as Wiz,
21       also known as Shapiro, JASON CONKLIN,
22       EARL EVANS, BOBBY GONZALEZ, also
23       known as Dough Boy, also known as
24       Felix, NIGEL T. JONES, also known as
25       Nige, ANTHONY PAULINO, also known as
26       Toast, MARCUS POWELL, also known as
27       Geech, WILLIE SIMMS, also known as
28       Dr. God, JAHMAR SMITH, DAVE WOODTON,
 1   TUERE BARNES, also known as Tuere
 2   Barnes, also known as Mark,
 3            Defendants,
 4
 5   KHALID BARNES, also known as Big
 6   Homie, also known as Lid,
 7            Defendant-Appellant.
 8   - - - - - - - - - - - - - - - - - - - -X
 9
10   FOR APPELLANT:    Joshua L. Dratel (David A. Ruhnke, Ruhnke
11                     & Barrett, Montclair, New Jersey, on the
12                     brief), Law Offices of Joshua L. Dratel,
13                     P.C., New York, New York.
14
15   FOR APPELLEE:     Andrew S. Dember, Assistant United States
16                     Attorney (Michael A. Levy, Assistant
17                     United States Attorney, on the brief),
18                     for Preet Bharara, United States Attorney
19                     for the Southern District of New York.
20
21        Appeal from a judgment of conviction in the United
22   States District Court for the Southern District of New York
23   (Robinson, J.).
24
25        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
26   AND DECREED that the judgment of the district court be
27   AFFIRMED.
28
29        Defendant-Appellant Khalid Barnes (“Barnes”) appeals
30   from a conviction for racketeering, narcotics distribution,
31   kidnapping, felon-in-possession of a firearm, use of a
32   firearm in connection with narcotics distribution and
33   kidnapping, and murder. Barnes argues that the district
34   court committed several errors, including: (1) admitting
35   evidence obtained from a wiretap when the supporting
36   affidavit contained material misrepresentations and
37   omissions; (2) admitting DNA evidence notwithstanding the
38   government’s failure to preserve the evidence; (3) admitting
39   as hearsay evidence location data placing Barnes in
40   particular vicinities that was obtained via cell phone
41   towers; and (4) admitting expert testimony concerning
42   ballistics testing without conducting a hearing pursuant to
43   Daubert v. Merrell Dow Pharms., Inc., 

(1993).
44   We assume the parties’ familiarity with the underlying
45   facts, the procedural history, and the issues presented for
46   review.

                                  2
 1   [1] “[W]e grant considerable deference to the district
 2   court’s decision whether to allow a wiretap, ensuring only
 3   that ‘the facts set forth in the application were minimally
 4   adequate to support the determination that was made.’”
 5   United States v. Concepcion, 

, 217 (2d Cir.
 6   2009) (quoting United States v. Miller, 

, 663
 7   (2d Cir. 1997) (internal quotation marks omitted)); see
 8   United States v. Torres, 

, 231 (2d Cir.), cert.
 9   denied, 

(1990) (“The role of an appeals court
10   in reviewing the issuance of a wiretap order . . . is not to
11   make a de novo determination of sufficiency as if it were a
12   district judge . . . .” (internal quotation marks omitted)).
13   Because Barnes argues that the affidavit in support of the
14   wiretap contained material misrepresentations and omissions,
15   we review de novo the untainted portions of the affidavit to
16   determine whether probable cause exists. United States v.
17   Canfield, 

, 717 (2d Cir. 2000). “The ultimate
18   inquiry is whether, after putting aside erroneous
19   information and [correcting] material omissions, there
20   remains a residue of independent and lawful information
21   sufficient to support probable cause.” 

(internal
22   quotation marks omitted).
23
24        Title III of the Omnibus Crime Control and Safe Streets
25   Act of 1968 (“Title III”), 18 U.S.C. §§ 2510 et seq., allows
26   for wiretaps in limited circumstances. Law enforcement must
27   apply for a court order before conducting such surveillance,
28   18 U.S.C. § 2518, and set forth “a full and complete
29   statement as to whether or not other investigative
30   procedures have been tried and failed or why they reasonably
31   appear to be unlikely to succeed if tried or to be too
32   dangerous,” 

“[G]eneralized and conclusory
33   statements that other investigative procedures would prove
34   unsuccessful” do not satisfy Title III. United States v.
35   Lilla, 

, 104 (2d Cir. 1983). At the same time,
36   the government is not precluded from resorting to
37   wiretapping “‘until after all other possible means of
38   investigation have been exhausted by investigative agents;
39   rather, [the statute] only require[s] that the agents inform
40   the authorizing judicial officer of the nature and progress
41   of the investigation and of the difficulties inherent in the
42   use of normal law enforcement methods.’” Torres, 

  at 231 (quoting United States v. Vazquez, 

,
44   1282 (2d Cir. 1979)).
45
46        The government’s affidavits must include more than
47   “generalized and conclusory statements” or “skimpy” details

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 1   about the specific alternative techniques tried and why they
 2   failed or were likely to fail. 

;
 3   

. Barnes argues that the
 4   accompanying affidavits at issue failed to give a “a full
 5   and complete statement as to whether or not other
 6   investigative procedures have been tried and failed or why
 7   they reasonably appear to be unlikely to succeed if tried or
 8   to be too dangerous.” 18 U.S.C. § 2518(c). However, the
 9   government does not have to conduct an exhaustive
10   investigation in order to comply with the necessity
11   requirement. Here, the government’s two affidavits indicate
12   the limited success of each other investigatory method and
13   why the particular methods were inadequate in this case.
14   The government’s applications thus adequately “inform[ed]
15   the authorizing judicial officer of the nature and progress
16   of the investigation and of the difficulties inherent in the
17   use of normal law enforcement methods,” and therefore
18   satisfied the “minimally adequate” standard. Torres, 

(internal quotation marks omitted).
20
21        With respect to material omissions, Barnes argues that
22   the government’s failure to disclose the existence of
23   concurrent state wiretaps (which, in part, targeted Barnes)
24   requires suppression of the evidence obtained from the
25   federal wiretaps. Section 2518(1)(e) of Title III mandates
26   that a wiretap application include “a full and complete
27   statement of the facts concerning all previous [wiretap]
28   applications known to the individual authorizing and making
29   the application.” However, nothing in the record suggests
30   that the government’s affiant was aware of the state
31   wiretaps, which were applied for after the state and federal
32   investigations were severed. Barnes contends that it was
33   nevertheless implausible for the government to be unaware of
34   the state wiretaps given the overlap of the state and
35   federal investigations. Such conjecture is insufficient to
36   demonstrate a knowing omission on the part of the
37   government. Thus, the affiant’s omission “was not
38   intentional, but inadvertent” and does not violate
39   § 2518(e). United States v. Bianco, 

, 1128 (2d
40   Cir. 1993), abrogated on other grounds, Groh v. Ramirez, 540

(2004).
42
43   [2] The district court admitted evidence that the murder
44   victim’s DNA was found on two bills which were seized at
45   Barnes’s apartment. Barnes contends that ruling was in
46   error because the government lost the evidence before Barnes
47   could conduct his own DNA analysis. We review a district

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 1   court’s evidentiary rulings for abuse of discretion.   United
 2   States v. Yousef, 

, 156 (2d Cir. 2003).
 3
 4        “‘Spoliation is the destruction or significant
 5   alteration of evidence, or failure to preserve property for
 6   another's use as evidence in pending or reasonably
 7   foreseeable litigation.’” Allstate Ins. Co. v. Hamilton
 8   Beach/Proctor Silex, Inc., 

, 457 (2d Cir. 2007)
 9   (quoting West v. Goodyear Tire & Rubber Co., 

,
10   779 (2d Cir. 1999)). “The obligation to preserve evidence
11   arises when the party has notice that the evidence is
12   relevant to litigation or when a party should have known
13   that the evidence may be relevant to future litigation.”
14   Fujitsu Ltd. v. Fed. Express Corp., 

, 436 (2d
15   Cir. 2001). “Once a court has concluded that a party was
16   under an obligation to preserve the evidence that it
17   destroyed, it must then consider whether the evidence was
18   intentionally destroyed, and the likely contents of that
19   evidence.” 

on a claim that missing
20   evidence would play a significant role in his defense and
21   was thus ‘material,’ a defendant must meet the two-pronged
22   materiality standard established in California v. Trombetta,
23   

(1984)[,] as well as show that the government
24   acted in bad faith. Under the Trombetta materiality test,
25   ‘the evidence must both possess an exculpatory value that
26   was apparent before the evidence was destroyed, and be of
27   such a nature that the defendant would be unable to obtain
28   comparable evidence by other reasonably available means.’”
29   United States v. Rastelli, 

, 833 (2d Cir. 1989)
30   (parallel citations omitted) (quoting 

  489). With respect to loss of evidence in the possession of
32   the government, “sanctions depend[] on the Government’s
33   culpability for the loss and its prejudicial effect.”
34   United States v. Rahman, 

, 139 (2d Cir. 1999). A
35   prior inquiry, however, is whether the defendant shows that
36   evidence has been lost and that this loss is “chargeable to
37   the State.” Colon v. Kuhlmann, 

, 30 (2d Cir.
38   1988).
39
40        It is undisputed that the government had a duty to
41   preserve the evidence and was responsible for the loss of
42   the bills. For the following reasons though, Barnes failed
43   to satisfy the two-pronged test set forth in Trombetta: The
44   district court found that the loss of the evidence was not
45   the product of bad faith, a finding that is not clearly
46   erroneous; Barnes could have challenged the DNA expert’s
47   results by way of cross-examination; and Barnes’s contention

                                  5
 1   that independent DNA testing could have proven that the
 2   victim’s DNA was present on the bills solely as a result of
 3   his handling of the bills would have failed to establish his
 4   innocence. In light of all of this and the adverse-
 5   inference instruction the district court gave the jury, it
 6   did not abuse its discretion in admitting the DNA evidence.
 7
 8   [3] Barnes argues that the district court erred in
 9   admitting cell site information (data retrieved when Barnes
10   made a call from his cell phone), which placed him in the
11   area where he purchased the murder weapon and in the
12   vicinity of the victim’s apartment around the time of the
13   murder. Barnes maintains that the evidence was inadmissible
14   hearsay and, in the alternative, violated his rights under
15   the Confrontation Clause of the Sixth Amendment. Even
16   assuming the district erred in admitting the cell site
17   evidence, the error was harmless. “Error is harmless if it
18   is highly probable that it did not contribute to the
19   verdict.” United States v. Kaiser, 

, 573 (2d
20   Cir. 2010) (internal quotation marks omitted). In
21   determining whether the wrongful admission of evidence
22   constituted harmless error, we consider: “(1) the overall
23   strength of the prosecution’s case; (2) the prosecutor’s
24   conduct with respect to the improperly admitted evidence;
25   (3) the importance of the wrongly admitted [evidence]; and
26   (4) whether such evidence was cumulative of other properly
27   admitted evidence.” United States v. Kaplan, 

,
28   123 (2d Cir. 2007). “Where the erroneously admitted
29   evidence goes to the heart of the case against the
30   defendant, and the other evidence against the defendant is
31   weak, we cannot conclude that the evidence was unimportant
32   or was not a substantial factor in the jury’s verdict.”
33   United States v. Rigas, 

, 222 (2d Cir. 2007).
34
35        During trial, the government offered overwhelming
36   evidence, including: thirty-eight witnesses, one of whom
37   testified that Barnes told him he was not concerned about
38   the murder charges because the government would never find
39   the murder weapon; numerous recorded telephone
40   conversations, including calls made on the night of the
41   murders; physical evidence recovered at the scene of the
42   murders and at Barnes’s apartment; the murder weapon; and
43   ballistics evidence establishing that the bullets recovered
44   from the murder victims’ heads were fired from the murder
45   weapon. Weighed in the balance against all this evidence,
46   any error in admitting cell site evidence that placed Barnes
47   in the vicinity of the victim’s apartment was harmless.

                                  6
 1
 2   [4] Finally, Barnes argues that the district court abused
 3   its discretion in admitting the testimony of the
 4   government’s ballistics expert. The district court is
 5   “assign[ed] . . . the task of ensuring that an expert’s
 6   testimony both rests on a reliable foundation and is
 7   relevant to the task at hand.” 

.
 8
 9        Barnes moved in limine for a Daubert hearing, a motion
10   that was denied without prejudice to reconsideration at
11   trial. However, Barnes raised no objection to admission of
12   the ballistics expert’s testimony at trial, as required by
13   Fed. R. Evid. 103(a)(1). We therefore deem this argument
14   waived. See, e.g., Baker v. Dorfman, 

, 423 (2d
15   Cir. 2000) (holding that an argument not raised below is
16   ordinarily waived). Cf. Nimely v. City of New York, 414

, 397 n.12 (2d Cir. 2005) (concluding that the
18   plaintiff did not waive his Daubert challenges because he
19   brought a “motion in limine [that] clearly raised the issues
20   both of [the expert’s] qualification . . . and of the
21   scientific reliability of the testimony itself”). It is
22   true that even in the absence of objection, we may “tak[e]
23   notice of plain errors affecting substantial rights” Fed.
24   R. Evid. 103(d). But Barnes’s objections, which go to the
25   reliability of ballistics evidence in general, do not
26   persuade us that it was plain error, or indeed error at all,
27   for the district court to allow the testimony.
28
29        Insofar as Barnes appeals from the denial of his motion
30   in limine, the court did not abuse its discretion. When a
31   district court conducts “an extensive consideration of the
32   expert’s credentials and methods,” United States v.
33   Williams, 

, 162 (2d Cir. 2007), and “consider[s]
34   the use of ballistic expert testimony in other cases,” 

161, the court has “effectively fulfilled its gatekeeping
36   function under Daubert” and the “formality of a separate
37   hearing [i]s not required,” 

       We have considered Barnes’s remaining arguments and
40   find them to be without merit. For the foregoing reasons,
41   the judgment of conviction is AFFIRMED.
42
43                              FOR THE COURT:
44                              CATHERINE O’HAGAN WOLFE, CLERK
45
46


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