15-3578
United States v. Davis

                     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.

         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 18th day of April, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             ROSEMARY S. POOLER,
                           Circuit Judges.
             GEOFFREY W. CRAWFORD,*
                           District Judge.

    - - - - - - - - - - - - - - - - - - - -X
    UNITED STATES,
             Appellee,

                 -v.-                                               15-3578

    MATTHEW DAVIS,
             Defendant-Appellant.**
    - - - - - - - - - - - - - - - - - - - -X




           *
             The Honorable Geoffrey W. Crawford, United States
    District Court of Vermont, sitting by designation.
           **
             We respectfully direct the Clerk of Court to amend
    the caption.
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FOR APPELLANT:             WALTER MACK, Doar Rieck Kaley &
                           Mack, New York, NY.

FOR APPELLEES:             JESSICA LONERGAN (with Abigail
                           Kurland and Margaret Garnett on
                           the brief), for Preet Bharara,
                           United States Attorney for the
                           Southern District of New York.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Forrest, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Matthew Davis appeals from the judgment of the United
States District Court for the Southern District of New York
(Forrest, J.), convicting him, after a jury trial, of one
count of conspiracy to distribute five kilograms or more of
cocaine and 280 grams or more of crack cocaine, in violation
of 21 U.S.C. § 846. He challenges the sufficiency of
evidence and various evidentiary rulings; asserts vindictive
prosecution; and challenges the government’s summation. We
assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for review.

     1. We review an insufficiency challenge de novo.
United States v. Sabhnani, 

, 241 (2d Cir. 2010).

     A criminal conviction must be affirmed if “any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 

, 319 (1979) (emphasis in original). Moreover, this
Court must “review all of the evidence presented at trial in
the light most favorable to the government, crediting every
inference that the jury might have drawn in favor of the
government.” United States v. Walker, 

, 333 (2d
Cir. 1999) (internal quotation marks omitted).

     We conclude that the jury was presented with enough
evidence from which it could determine that Davis was a
member of a drug distribution conspiracy headed by a man




                             2
named Roger Key.1 A witness testified that Key ordered a
drug wholesaler named Jermaine Smalls (a.k.a. “Pudge”) to
store a kilogram or more of cocaine at Davis’s house, and
that Pudge paid Davis to store the cocaine. The same
witness testified that Pudge stated that Davis had sold
drugs as part of Key’s network in the past, and that witness
personally observed Pudge deliver 200 grams of crack to
Davis for future sale.

     Separately, the government introduced evidence that,
after Pudge was later murdered, Davis participated in
organizing an investigation into the killing and the
whereabouts of a kilogram of cocaine that had gone missing
in connection with Pudge’s murder. One witness testified
that Davis had stated that he would kill the man he
suspected of stealing the missing drugs. The prosecution
also introduced statements Davis made after his arrest
suggesting that Davis had substantial knowledge of the inner
workings of Key’s conspiracy.

     Whether this testimony is to be credited is a matter
for the jury. See United States v. O’Connor, 

,
855 (2d Cir. 2011). And if found by the jury to be
credible, it provides sufficient evidence, along with other
evidence introduced by the government, to support Davis’s
conviction.

     2. Davis argues that evidence relating to the murder
of Terry Harrison was improperly before the jury. Davis had
been indicted on four counts related to an alleged murder-
for-hire conspiracy to kill Harrison, and on one count of
murder in connection with a drug conspiracy. The district
court dismissed the charges relating to the murder-for-hire
conspiracy for lack of evidence, and the jury hung on the
remaining murder count. Davis seems to argue that the
district court’s dismissal of the counts relating to Davis’s
participation in the murder-for-hire conspiracy rendered all
evidence relating to the Harrison murder irrelevant and
prejudicial. This argument lacks merit. The district court
dismissed the murder-for-hire charges because the government
had failed to demonstrate evidence supporting the pecuniary
element of the crime, but the district court did not dismiss


    1
       Davis argues that much of the government’s evidence
was improperly admitted. As discussed below, Davis’s
admissibility arguments are meritless.
                             3
Count Six, which charged Davis with murder in connection
with a drug conspiracy. Since the jury was still
considering this count, evidence relating to Harrison’s
murder was properly before it.

     3. Davis next challenges the admission of out-of-court
statements made by Pudge, the murdered drug wholesaler, that
(inter alia) Davis had stored and sold drugs for Key in the
past. We review challenges to the admission of evidence for
abuse of discretion. United States v. Nektalov, 

, 318 (2d Cir. 2006).

     A statement is non-hearsay if it is “made by [a]
party’s coconspirator during and in furtherance of the
conspiracy.” Fed. R. Evid. 801(d)(2)(E). A statement may
be admitted under this hearsay exception if the district
court “finds by a preponderance of the evidence (a) that
there was a conspiracy, (b) that its members included the
declarant and the party against whom the statement is
offered, and (c) that the statement was made during the
course of and in furtherance of the conspiracy.” United
States v. Coppola, 

, 246 (2d Cir. 2012)
(internal quotation marks omitted). A statement is “in
furtherance of the conspiracy” if it informs a conspirator
of “the identity and activities of . . . coconspirators,”
United States v. Rastelli, 

, 837 (2d Cir. 1989),
or if it “inform[s] [a coconspirator] as to the progress or
status of the conspiracy,” United States v. Desena, 

, 158 (2d Cir. 2001) (quoting United States v. SKW Metals
& Alloys, Inc., 

, 88 (2d Cir. 1999)).

     Davis concedes that Pudge (the declarant) was a member
of Key’s drug conspiracy. And as explained above, there is
sufficient evidence to conclude that Davis is a member of
the same conspiracy. We also find no abuse of discretion in
concluding that Pudge’s statements were made “in furtherance
of the conspiracy.” 

. By stating
that Davis stored drugs at his house, Pudge informed a
fellow drug dealer of “the identity and activities of . . .
[a] coconspirator[].” 

. More
generally, all of the statements “inform[ed]” the drug
dealer “as to the progress or status of the conspiracy.”




                             4


. Therefore, the statements fall
under the coconspirator exception to the hearsay rule.2

     “[T]he Confrontation Clause simply has no application
to nontestimonial statements.” United States v. Feliz, 

, 231 (2d Cir. 2006). The Supreme Court has
“suggest[ed] that the determinative factor in determining
whether a declarant bears testimony is the declarant’s
awareness or expectation that his or her statements may
later be used at trial.” United States v. Saget, 

, 228 (2d Cir. 2004). Davis does not argue that Pudge
had any such “awareness or expectation” that his statements,
delivered to another member of the conspiracy, would later
be used at trial. The Confrontation Clause does not bar
admission of the statement.

     4. Davis challenges the admission of several
statements he made after his arrest, citing his rights under
Miranda v. Arizona, 

, 467-68 (1966). Davis’s
argument is difficult to discern, but he seems to argue (1)
that the government improperly admitted “pedigree
information” about Davis’s address, employment status, and
other information which the police learned of before
informing Davis of his Miranda rights, and (2) that the
government should have ceased questioning Davis until a
lawyer was appointed to assist him. Neither argument has
merit.

     “Pedigree” information is not protected by Miranda.
United States v. Rodriguez, 

, 259 n.2 (2d Cir.
2004) (“Routine questions about a suspect’s identity and
marital status . . . do not pose the dangers Miranda was
designed to check; they are rather the sort of questions
normally attendant to arrest and custody.”) (internal
quotation marks omitted). Such pedigree information
includes “the arrestee’s name, aliases, date of birth,
address, place of employment, and marital status.” United
States v. Chandler, 

, 387 (E.D.N.Y.
2016). Therefore, Davis’s challenge to the introduction of
this pedigree information fails.


    2
       The government argued that the statements could also
be admitted under the hearsay exception regarding statements
against penal interest. Since we find the statements
admissible under the coconspirator exception, we need not
consider this argument.
                             5
     Davis also argues that the government should have
interpreted Davis’s repeated requests to telephone his
mother “as a request for legal counsel,” Appellant’s Br. at
25-26, and therefore the statements he made without an
attorney present should be suppressed. But Miranda’s
prophylactic rule is only triggered if the suspect
“unambiguously requests counsel.” Davis v. United States,

, 459 (1994). Davis’s request to call his
mother is unambiguously something else.

     5. Davis argues that the government’s filing of a
prior felon information and two superseding indictments in
the lead-up to trial constituted vindictive prosecution. An
objection based on vindictive prosecution “must be raised by
pretrial motion if the basis for the motion is then
reasonably available and the motion can be determined
without a trial on the merits.” Fed. R. Crim. P.
12(b)(3)(A)(iv); see United States v. Lopez, 60 Fed. App’x
850, 853-54 (2d Cir. 2003) (finding that a defendant waived
his vindictive prosecution claim by failing to raise it
before trial). Davis does not dispute the government’s
claim that he failed to raise this claim before trial, nor
does he argue that he lacked a basis to bring the motion
before trial. Therefore Davis has forfeited this argument.

     6. Davis argues that the government’s summation could
have improperly misled the jury to think that statements
introduced by trial testimony were derived from intercepted
telephone calls, and thus more credible. Davis failed to
make this objection at trial, so we review only for plain
error.3 United States v. Rivera, 

, 437 (2d Cir.
1994). Davis provides no convincing authority from which
this court could conclude that the government’s inclusion of
both trial testimony and intercepted telephone calls was
improper. He certainly does not show that the alleged error
in the government’s summation was “clear or obvious,” that
it “affected the outcome of the district court proceedings,”
or that it “seriously affected the . . . public reputation


    3
      Davis contends that he did object to the government’s
summation. However, the trial transcript shows that Davis
objected to the government speculating about the contents of
certain telephone calls, not the fact that the jury could be
confused by the mixing of trial testimony and phone call
excerpts.
                             6
of judicial proceedings,” as is required under plain error
review. United States v. Marcus, 

, 262 (2010).

     For the foregoing reasons, and finding no merit in
Davis’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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