Filed: May 14, 2010
Latest Update: Feb. 22, 2020
Summary: 06-5652-cr (L), 07-0112-cr (CON), 07-0196-cr (CON), 07-0294-cr (CON) United States v. Needham, et al. S.D.N.Y. Lynch, J. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 SUMMARY ORDER 5 6 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 7 SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY 8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN 9 CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W IT
Summary: 06-5652-cr (L), 07-0112-cr (CON), 07-0196-cr (CON), 07-0294-cr (CON) United States v. Needham, et al. S.D.N.Y. Lynch, J. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 SUMMARY ORDER 5 6 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 7 SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY 8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN 9 CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH..
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06-5652-cr (L), 07-0112-cr (CON), 07-0196-cr (CON), 07-0294-cr (CON)
United States v. Needham, et al.
S.D.N.Y.
Lynch, J.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
7 SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
9 CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11 “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12 PARTY NOT REPRESENTED BY COUNSEL.
13
14 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
15 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
16 on the 14th day of May, two thousand and ten.
17
18 PRESENT: JOSÉ A. CABRANES,
19 ROBERT A. KATZMANN,
20 BARRINGTON D. PARKER,
21 Circuit Judges.
22 ________________________
23
24 United States of America,
25
26 Appellee,
27 -v.- No. 06-5652-cr
28 SUMMARY ORDER
29 Derrilyn Needham, Javier Robles, Corey Thompson,
30
31 Defendants-Appellants,
32
33 -v.-
34
35 Joey Figueroa, Christian Quinones,
36
37 Defendants.
38
39 For Appellant Needham: Elizabeth E. Macedonio, Bayside, NY.
1 For Appellant Robles: David L. Lewis, Lewis & Fiore, New York, NY.
2
3 For Appellant Thompson: Sanford N. Talkin, Talkin, Muccigrosso & Roberts, LLP, New
4 York, NY.
5
6 For Appellee: David S. Leibowitz, Assistant United States Attorney (Katherine
7 Polk Failla, Assistant United States Attorney, on the brief) for
8 Michael J. Garcia, United States Attorney, Southern District of
9 New York, New York, NY.
10
11 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the judgments of the district court are AFFIRMED.
13 Defendants-appellants Derrilyn Needham and Javier Robles appeal from convictions in the
14 United States District Court for the Southern District of New York (Lynch, J.) finding each guilty
15 of Hobbs Act robbery and related offenses. See 18 U.S.C. §§ 1951, 1952. They challenge these
16 convictions on multiple grounds, claiming that the district court improperly admitted evidence of
17 prior bad acts, and – in Needham’s case – that the government failed to prove a single conspiracy
18 as alleged in its indictment. Robles also attacks the leadership enhancement that the district court
19 applied at his sentencing, and argues that the sentencing judge’s fact-finding was in violation of the
20 Sixth Amendment. We assume the parties’ familiarity with the facts, procedural history, and issues
21 presented on appeal. These are summarized in a contemporaneously issued opinion in this case.
22 A. Evidence of Prior Bad Acts
23 Needham and Robles each argue that the district court erred in admitting evidence of prior
24 bad acts, in violation of Federal Rule of Evidence 404(b). Needham challenges the admission of
25 evidence concerning a robbery and subsequent kidnapping that occurred on January 2, 2004, at 464
26 Commonwealth Avenue. Robles, for his part, challenges evidence showing that he conspired to
27 distribute heroin in Pennsylvania during the period indicted.
2
1 “We review a district court’s evidentiary rulings under a deferential abuse of discretion
2 standard and give district court judges wide latitude in determining whether evidence is admissible
3 at trial.” United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007) (citing Meloff v. New York Life
4 Ins. Co.,
240 F.3d 138, 148 (2d Cir. 2001)) (internal quotation marks omitted). This Court follows
5 “an inclusionary rule, allowing the admission of [prior bad act] evidence for any purpose other than
6 to show a defendant’s criminal propensity, as long as the evidence is relevant and satisfies the
7 probative-prejudice balancing test of Rule 403 of the Federal Rules of Evidence.” United States v.
8 Carboni,
204 F.3d 39, 44 (2d Cir. 2000) (internal quotation marks omitted).
9 In Needham’s case, the district court ruled that evidence of the Commonwealth Avenue
10 robbery was directly relevant to the charged conspiracy. While the robbery took place on January 2,
11 2004, the court found that it was encompassed by the indictment, which charged defendants with
12 participating in a robbery conspiracy “[f]rom in or about December 2001, through in or about
13 December 2003.” The district court observed that it was “not a hard call” to find that a robbery
14 committed on January 2, 2004, was within the scope of a conspiracy that allegedly concluded “in or
15 about” December 2003. Nonetheless, the district court excluded any testimony relating to the
16 subsequent kidnapping as unduly prejudicial.
17 We do not consider evidence of uncharged criminal activity to be “other crimes evidence
18 under Fed. R. Evid. 404(b) if it arose out of the same transaction or series of transactions as the
19 charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or
20 if it is necessary to complete the story of the crime on trial.”
Carboni, 204 F.3d at 44 (internal
21 quotation marks omitted). The Commonwealth Avenue robbery, which involved four of the same
22 participants as the other robberies and occurred within the same time-frame, plausibly arose out of
23 the same series of transactions as the alleged conspiracy. Moreover, the district court carefully
3
1 limited the scope of the testimony to any avoid undue prejudice related to the kidnapping allegations.
2 On this record, we find no error. See United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006).
3 Likewise, the district court did not abuse its discretion under Federal Rules of Evidence
4 404(b) and 403 by admitting evidence of Robles’s prior heroin conspiracy conviction in
5 Pennsylvania. It properly followed the four steps required before admitting evidence under Rule
6 404(b), and justifiably concluded that the prior conviction was admissible to show motive. See
7 United States v. Gilan,
967 F.2d 776, 780 (2d Cir. 1992) (describing four-step test).
8 B. Multiple Conspiracies
9 Needham further argues that the Government failed to put forward sufficient evidence
10 proving the existence of a single robbery conspiracy in which she was a participant. Instead, she
11 claims that the proof at trial showed multiple conspiracies, contrary to the indictment, and that this
12 variance prejudiced her defense.
13 Generally, “[w]hether the government’s proof shows a single conspiracy or multiple
14 conspiracies is a question of fact for a properly instructed jury.” United States v. Berger,
224 F.3d
15 107, 114 (2d Cir. 2000) (internal quotation marks omitted). In this case, the district court delivered
16 precisely such a precautionary instruction. Thus, to secure the reversal of a conviction on a multiple
17 conspiracies theory, Needham must show both that (1) “the indictment charged a single conspiracy,
18 but the proof disclosed several independent conspiracies, and (2) [the] defendant was so prejudiced
19 by this variance as to be denied a fair trial.” United States v. Desimone,
119 F.3d 217, 226 (2d Cir.
20 1997). In our analysis of the first prong, we apply a sufficiency of the evidence standard, viewing
21 the evidence “in the light most favorable to the government, drawing all inferences in the
22 government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.” United
4
1 States v. Parkes, 497 F.3d 220, 225 (2d Cir. 2007) (internal quotation marks omitted); see United
2 States v. Millar,
79 F.3d 338, 344-45 (2d Cir. 1996).
3 We find that Needham’s multiple conspiracies challenge fails this demanding standard. The
4 proof at trial amply demonstrated that she served as a “santero,” or “tipster,” for the robbery crew,
5 providing crucial information about marijuana dealers and their locations. Indeed, the jury found
6 her guilty of two substantive robbery offenses, including the robbery at 4434 Baychester Avenue.
7 Several days before this robbery, Needham provided information about the target to the
8 government’s cooperating witness. She carried out the robbery with several co-conspirators who
9 impersonated police officers and held four individuals in the targeted apartment at gunpoint. Once
10 the robbery crew had made their escape, Needham was given a share of the $600,000 proceeds.
11 Many of the other robberies described at trial hewed closely to the same pattern. This proof was
12 consistent with the robbery conspiracy charged in the indictment.
13 Needham argues that evidence of robberies targeting cocaine and heroin dealers, in which
14 she was not a participant, showed a separate conspiracy at variance with the indictment. But “a
15 single conspiracy is not transposed into a multiple one simply by lapse of time, change in
16 membership, or a shifting emphasis in its locale of operations.” United States v. Cambindo
17 Valencia,
609 F.2d 603, 625 (2d Cir. 1979). Nor must a defendant participate in, or even agree to,
18 every act undertaken on behalf of the alleged conspiracy in order to be culpable as a member. See
19 United States v. Bernstein,
533 F.2d 775, 792-93 (2d Cir. 1976). “A single conspiracy may be found
20 where there is mutual dependence and assistance among the participants, a common aim or purpose
21 or a permissible inference, from the nature and scope of the operation, that each actor was aware of
22 his part in a larger organization where others performed similar roles equally important to the success
23 of the venture.” United States v. Vanwort,
887 F.2d 375, 383 (2d Cir. 1989) (internal quotation
5
1 marks and alterations omitted). The evidence amply showed a long-running scheme to rob drug
2 dealers, in which Needham was a key player – proof that the jury credited. Simply because Needham
3 did not participate in every robbery undertaken by her counterparts does not establish multiple,
4 separate conspiracies in the face of the jury’s verdict.
5 C. Robles’s Sentencing
6 Robles contends that the district court erroneously applied a four-level role enhancement
7 when computing his Guidelines range, arguing that he was a mere “middleman” and did not plan the
8 robberies, receive a greater share of the proceeds of the conspiracy, or identify the robbery targets
9 or locations. He also argues that his sentence violates the Sixth Amendment because the district
10 court applied sentencing enhancements that increased his Guidelines range beyond the base offense
11 level provided in U.S.S.G. § 2B3.1.
12 Neither of these challenges has merit. The sentencing court’s fact-finding was supported by
13 the record and its application of the role enhancement consistent with both the United States
14 Sentencing Guidelines and the Sixth Amendment. See U.S.S.G. § 3B1.1 & cmt. 4; United States v.
15 Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005) (“Judicial authority to find facts relevant to
16 sentencing by a preponderance of the evidence survives Booker.”).
17 D. Conclusion
18 For the foregoing reasons, the judgments of the district court are affirmed with respect to the
19 issues treated herein.
20
21
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe,
25 Clerk of Court
26
27
28
6
