10-2381 (L)
     United States v. Gonzalez


                          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 13th day of October, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                GERARD E. LYNCH,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      UNITED STATES OF AMERICA,
14
15                   Appellee,
16
17                   -v.-                                               10-2381(L)
18                                                                      10-2945(Con)
19      ROBERT ANTHONY GONZALEZ, MARK FRANCO,
20
21                   Defendants,
22
23      RASHEEM RICHARDSON, KHALIL WILLIAMS,
24
25                   Defendants-Appellants.
26
27      - - - - - - - - - - - - - - - - - - - -X


                                                 1
 1
 2   FOR APPELLANT RASHEEM RICHARDSON:
 3                               Louis R. Aidala
 4                               New York, NY
 5
 6   FOR APPELLANT KHALIL WILLIAMS:
 7                               Bridget M. Rohde,
 8                               Mintz Levin Cohn Ferris Glovsky
 9                               and Popeo P.C.
10                               New York, NY
11
12   FOR APPELLEE:
13                              Jillian B. Berman (Marissa Molé,
14                              Michael D. Maimin, on the
15                              brief), Assistant United States
16                              Attorney, for Preet Bharara,
17                              United States Attorney,
18                              Southern District of New York,
19                              New York, NY
20
21
22        Appeal from judgments of the United States District
23   Court for the Southern District of New York (Jones, J.).
24
25        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
26   AND DECREED that the district court’s judgments are
27   AFFIRMED.
28
29        Rasheem Richardson and Khalil Williams appeal from
30   judgments entered in the United States District Court for
31   the Southern District of New York convicting them, following
32   a jury trial, of conspiring and attempting to commit a Hobbs
33   Act robbery and of using, carrying, and possessing a firearm
34   during and in relation to, and in furtherance of, the
35   robbery conspiracy. Williams was also convicted of unlawful
36   possession of a firearm after having been convicted of a
37   felony. We assume the parties’ familiarity with the
38   underlying facts, the procedural history, and the issues
39   presented for review.
40
41   [1] The defendants challenge the denial of their motion to
42   suppress physical evidence obtained as a result of their
43   allegedly unlawful arrests and the subsequent search of the
44   car (a Honda Accord) in which they were found by police. We

                                   2
 1   review a district court’s ruling on a motion to suppress for
 2   clear error as to factual findings, viewing the evidence in
 3   the light most favorable to the government, and de novo as
 4   to questions of law. United States v. Brown, 

,
 5   420 (2d Cir. 1995).
 6
 7        A warrantless arrest is permissible under the Fourth
 8   Amendment if “the police have probable cause when the
 9   defendant is put under arrest to believe that an offense has
10   been or is being committed.” United States v. Cruz, 834

, 50 (2d Cir. 1987). Probable cause exists if “the
12   facts and circumstances within their [the officers’]
13   knowledge and of which they had reasonably trustworthy
14   information [are] sufficient in themselves to warrant a man
15   of reasonable caution in the belief that an offense has been
16   or is being committed.” 

original)
17   (quoting Brinegar v. United States, 

, 175-76
18   (1949)) (internal quotation marks omitted). A readily
19   mobile automobile may be searched without first obtaining a
20   warrant provided that there is probable cause to believe
21   that the vehicle contains contraband or other evidence of a
22   crime. See United States v. Gaskin, 

, 456 (2d
23   Cir. 2004). Probable cause in this context “does not demand
24   certainty but only a ‘fair probability’ that contraband or
25   evidence of a crime will be found.” 

(quoting
26   Illinois v. Gates, 

, 238 (1983)). In addition,
27   an automobile may be searched incident to the arrest of an
28   occupant even after the arrestee has been secured and cannot
29   access the interior of the vehicle as long as “it is
30   reasonable to believe that evidence of the offense of arrest
31   might be found in the vehicle.” Arizona v. Gant, 

  1710, 1714 (2009).
33
34        Both the defendants’ arrests as well as the search of
35   the car were supported by probable cause. The police relied
36   on a tip from a confidential informant, who had provided
37   reliable information in the past, that multiple armed men in
38   a dark colored car were planning to rob Media Plaza, an
39   electronics store, on the night defendants were arrested
40   nearby (or on the following night). See 

  230 (holding that an informant’s “veracity, reliability and
42   basis of knowledge” are relevant to a determination of
43   whether a tip establishes probable cause under a totality-
44   of-the-circumstances analysis (internal quotation marks

                                  3
 1   omitted)). The defendants argue that the informant had
 2   never provided information regarding a robbery, but that is
 3   plainly irrelevant to his veracity or reliability. The
 4   informant had provided information about violent and non-
 5   violent crimes that contributed to the convictions of more
 6   than twenty people. An informant need not have provided
 7   tips in factually identical cases to demonstrate
 8   reliability. The reliability of the tip is also not
 9   impaired by the informant’s failure to indicate his source
10   of information. See Draper v. United States, 

,
11   309-12 (1959) (finding probable cause to arrest the
12   defendant based on a tip that he would be returning to
13   Chicago carrying drugs where the informant did not explain
14   his basis of knowledge but had previously provided reliable
15   information and the police corroborated the informant’s
16   description of the defendant’s clothes, the color of the bag
17   he would be carrying, his physical appearance, and his
18   gait). Moreover, before arresting the defendants, the
19   police independently corroborated a number of the elements
20   of the informant’s tip: They identified the dark gray Honda;
21   co-defendant Robert Anthony Gonzalez came out of the back
22   seat, indicating that there was at least one other person in
23   the car; and the car was parked across the street from Media
24   Plaza on one of the two nights the robbery was predicted to
25   take place.
26
27        The observations of the police during their
28   surveillance of Media Plaza reinforced the reasonableness of
29   their belief that the car contained evidence of a crime and
30   that the defendants were engaged in criminal activity.
31   Gonzalez was observed walking near Media Plaza and peering
32   at the store; such behavior is consistent with casing Media
33   Plaza in anticipation of robbing it. The Honda moved from
34   one parking space to another that was closer to the store, a
35   maneuver suggesting that the defendants may have been
36   preparing to rob Media Plaza, and sought proximity to
37   facilitate a quicker entry and exit. When Gonzalez made eye
38   contact with Detective John Badyna, who was crouched in the
39   driver’s seat of an unmarked police car, Gonzalez
40   immediately changed directions and walked away from the
41   police car. “Headlong flight . . . is the consummate act of
42   evasion: It is not necessarily indicative of wrongdoing, but
43   it is certainly suggestive of such.” Illinois v. Wardlow,
44   

, 124 (2000). Gonzalez was also wearing latex

                                  4
 1   gloves, and Detective Badyna noticed that his hands looked
 2   “rubber-like.” Given the informant’s tip that multiple
 3   armed men were planning to rob Media Plaza that night, it
 4   was reasonable for the police to infer a common enterprise
 5   among Gonzalez and the unidentified persons remaining in the
 6   Honda (including defendants Richardson and Williams). Based
 7   on Gonzalez’s behavior at the scene of the suspected
 8   robbery, the tip from an informant with a history of
 9   providing accurate information to the police (and
10   corroboration by the police of significant aspects of that
11   tip), and the apparent connection between Gonzalez and the
12   occupants of the car, there was probable cause to believe
13   that defendants Richardson and Williams were in the process
14   of attempting to rob Media Plaza and, therefore, to arrest
15   them.
16
17        The same information that established probable cause to
18   arrest the defendants also established probable cause to
19   believe that the Honda contained evidence of the planned
20   robbery. In particular, there was a fair probability that
21   the firearms that the informant’s tip suggested would be
22   used in the robbery might be found in the car along with the
23   other robbers (especially since no gun was found on
24   Gonzalez). Because both the defendants’ arrests and the
25   subsequent search of the car were supported by probable
26   cause, the district court did not err in denying defendants’
27   motion to suppress.
28
29   [2]   The defendants challenge their convictions under 18
30   U.S.C. § 924(c) on sufficiency grounds. We review de novo a
31   sufficiency challenge and “‘affirm if the evidence, when
32   viewed in its totality and in the light most favorable to
33   the government, would permit any rational jury to find the
34   essential elements of the crime beyond a reasonable doubt.’”
35   United States v. Yannotti, 

, 120 (2d Cir. 2008)
36   (quoting United States v. Geibel, 

, 689 (2d Cir.
37   2004)).
38
39        Section 924(c) provides for an additional term of
40   imprisonment for “any person who, during and in relation to
41   any crime of violence or drug trafficking crime . . . uses
42   or carries a firearm, or who, in furtherance of any such
43   crime, possesses a firearm . . . .” 18 U.S.C. §
44   924(c)(1)(A). The district court instructed the jury on

                                  5
 1   three theories of liability: direct or constructive
 2   possession, aiding and abetting liability, and liability
 3   under a Pinkerton theory. Because the evidence was
 4   sufficient to convict the defendants on a Pinkerton theory,
 5   we affirm on that basis. See United States v. Masotto, 73
 

, 1241 (2d Cir. 1996).
 7
 8        Under the Pinkerton doctrine, “a conspirator ‘can be
 9   held responsible for the substantive crimes committed by his
10   co-conspirators to the extent those offenses were reasonably
11   foreseeable consequences of acts furthering the unlawful
12   agreement, even if he did not himself participate in the
13   substantive crimes.’” United States v. Romero, 

,
14   51 (2d Cir. 1990) (quoting United States v. Bruno, 

  555, 560 (2d Cir. 1989)). The evidence introduced at trial
16   was sufficient for a rational jury to conclude beyond a
17   reasonable doubt that: (1) Williams and Richardson entered
18   into a Hobbs Act conspiracy with co-defendants Mark Franco
19   and Gonzalez to rob Media Plaza, (2) the agreement
20   contemplated the use of two armed shooters, and (3) Franco
21   possessed a .45-caliber pistol to be used in the robbery,
22   which he concealed under the floor mat of the driver’s side
23   of the Honda. Franco’s possession of the gun to be used in
24   the robbery was thus both in furtherance of the robbery
25   conspiracy and entirely foreseeable; there was therefore
26   sufficient evidence to convict defendants Williams and
27   Richardson of Franco’s substantive Section 924(c) offense.1
28
29   [3] Richardson also argues that there was insufficient
30   evidence of attempted robbery. To be guilty of attempt, a
31   defendant must have (1) intended to commit the crime and (2)
32   “engaged in conduct amounting to a ‘substantial step’
33   towards the commission of the crime.” United States v.
34   Martinez, 

, 35 (2d Cir. 1985). A substantial
35   step requires “something more than mere preparation, yet may

          1
           Because Richardson’s argument concerning the
     duplicitousness of Count Three of the indictment has been
     waived, we do not consider it. See Fed. R. Crim. P.
     12(b)(3)(B) (a motion alleging a defect in the indictment
     must be raised before trial); United States v. Berardi, 

, 729 (2d Cir. 1980) (an objection that an
     indictment is duplicitous is “generally deemed to be waived
     if not properly raised before trial”).
                                  6
 1   be less than the last act necessary before the actual
 2   commission of the substantive crime.” 

 3   States v. Manley, 

, 987-88 (2d Cir. 1980)). The
 4   trial evidence, including Franco’s testimony and the
 5   physical evidence obtained at the crime scene, established
 6   that at the time they were arrested the defendants (1)
 7   intended to rob Media Plaza, (2) were in possession of the
 8   tools necessary to do so (including guns, latex gloves, duct
 9   tape, and ski masks), and (3) had arrived at the scene of
10   the planned robbery. The evidence also showed that the
11   defendants and their co-conspirators had cased Media Plaza;
12   indeed, by the time the defendants were arrested Gonzalez
13   had exited the car twice to scope out the area. Moreover,
14   Gonzalez had already put on latex gloves, from which the
15   jury could reasonably infer that the robbery was imminent.
16   Defendants’ reconnoitering at the scene of the contemplated
17   crime while in possession of paraphernalia which, under the
18   circumstances, could serve no lawful purpose (including a
19   real firearm, a starter pistol, and ski masks) constitutes a
20   substantial step, and amply corroborates their criminal
21   purpose. See United States v. Jackson, 

, 120-21
22   (2d Cir. 1977). Therefore, the evidence was sufficient to
23   convict the defendants of attempted robbery.
24
25   [4] Richardson also challenges the sufficiency of the
26   evidence of the requisite effect on interstate commerce to
27   sustain defendants’ Hobbs Act convictions. “In a Hobbs Act
28   prosecution, proof that ‘commerce [wa]s affected is critical
29   since the Federal Government’s jurisdiction of this crime
30   rests only on that inference.’” United States v. Elias, 285

, 188 (2d Cir. 2002) (alteration in
32   original)(quoting Stirone v. United States, 

,
33   218 (1960)). “At the same time, it is well established that
34   the burden of proving a nexus to interstate commerce is
35   minimal” and a “very slight effect on interstate commerce”
36   is sufficient. 

commerce element of a
37   Hobbs Act offense is satisfied if the robbery involves a
38   store or business that sells products that are produced in
39   another state or country. See 

United States
40   v. Mapp, 

, 336 n.13 (2d Cir. 1999).
41
42        The government called several witnesses at trial who
43   testified that they had seen Samsung and Sharp televisions
44   for sale at Media Plaza, including Franco who testified that

                                  7
 1   he had seen a Sharp Aquos television, which he intended to
 2   steal, shortly before the arrest. The defendants stipulated
 3   to the fact that neither brand of television had ever been
 4   manufactured in New York. Richardson’s argument that the
 5   Sharp and Samsung televisions sold by Media Plaza may have
 6   been counterfeits is sheer speculation. The jury could
 7   reasonably infer that Media Plaza stocked foreign-made
 8   televisions during the period in question. Viewing the
 9   evidence in the light most favorable to the government,
10   there was sufficient evidence of the necessary de minimis
11   effect on interstate commerce to sustain the defendants’
12   Hobbs Act convictions.
13
14   [5] Finally, Williams argues that the district court failed
15   to provide an adequate jury instruction on the need to
16   corroborate Franco’s testimony as an accomplice and
17   cooperating witness. A challenge to jury instructions is
18   reviewed de novo and we reverse only where all the
19   instructions, taken as a whole, prejudiced the defendant.
20   United States v. Bok, 

, 160 (2d Cir. 1998).
21   Where, as here, a defendant fails to object to the district
22   court’s jury instructions at trial, those instructions are
23   reviewed for plain error. United States v. Middlemiss, 217

, 121 (2d Cir. 2000).
25
26        In instructing a jury as to the possible motivations of
27   a cooperating witness, “district courts need only fairly put
28   the issue of a cooperating witness’s possible motivations to
29   the jury for its consideration and need not over-emphasize
30   the obvious--that cooperators may have an interest in
31   currying favor with the prosecutor that could affect the
32   substance of their testimony.” United States v. Vaughn, 430

, 523-24 (2d Cir. 2005). “As long as district
34   courts intelligibly identify a cooperating witness’s
35   possible motivations for the jury’s consideration, the
36   cautionary charge given to the jury regarding a cooperating
37   witness’s testimony is sufficient.” 

       The district court instructed the jury to scrutinize
40   the testimony of each witness, to consider whether the
41   witness has a relationship with the government that might
42   affect his or her testimony, and to particularly scrutinize
43   the testimony of cooperating witnesses. This was sufficient
44   to flag Franco’s possible motivations for the jury’s

                                  8
 1   consideration. Moreover, the defendants challenged Franco’s
 2   credibility on cross examination and during summations. So
 3   the defendants cannot show that any alleged inadequacies in
 4   the jury instruction “affected [their] substantial rights”
 5   as they must to prove plain error. United States v. Marcus,
 6   

, 2164 (2010); see also United States v.
 7   Velez, 

, 261 n.5 (2d Cir. 1981) (noting that the
 8   district court’s failure to charge the jury regarding the
 9   credibility of a cooperating witness was not prejudicial
10   because “defense counsel forcefully argued [the witness’s]
11   lack of credibility in his summation”).
12
13        We have considered the defendants’ remaining arguments
14   and find them to be without merit. For the foregoing
15   reasons, the judgments of the district court are hereby
16   AFFIRMED.
17
18
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
22
23
24
25




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