United States v. Donahue Dewar and Sharon King

08-5958-cr, 08-6222-cr, 09-1338-cr, 10-0403-cr United States of America v. Donahue Dewar and Sharon King 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 29 th day of April, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 JOSEPH M. McLAUGHLIN, 9 ROBERT D. SACK, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 15 Appellee-Cross-Appellant, 16 08-5958-cr, 08- 17 -v.- 6222-cr, 09-1338- 18 cr, 10-0403-cr 19 CHARLES ERNEST DEWAR, also known as 20 Trooper, 21 22 Defendant, 23 24 DONAHUE DEWAR, also known as Blood, 25 also known as Kirk Dawar, and SHARON 26 KING, 27 28 Defendants-Appellants-Cross- 29 Appellees. 30 - - - - - - - - - - - - - - - - - - - -X 1 APPEARING FOR APPELLANT- Clinton W. Calhoun, III, 2 CROSS-APPELLEE DONAHUE Briccetti, Calhoun & Lawrence, 3 DEWAR: LLP, White Plains, NY. 4 5 6 APPEARING FOR APPELLANT- Jeremy Gutman, New York, NY. 7 CROSS-APPELLEE SHARON 8 KING: 9 10 APPEARING FOR APPELLEE- Brent S. Wible, Assistant United 11 CROSS-APPELLANT: States Attorney (Michael A. 12 Levy, Assistant United States 13 Attorney, on the brief), for 14 Preet Bharara, United States 15 Attorney, United States 16 Attorney’s Office for the 17 Southern District of New York, 18 New York, NY. 19 20 21 Appeals and cross-appeals from judgments of 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 judgments of the district court be 27 AFFIRMED. 28 29 Defendants-appellants-cross-appellees Donahue Dewar and 30 Sharon King appeal from judgments of conviction entered in 31 the United States District Court for the Southern District 32 of New York (Robinson, J.), following a jury trial. The 33 government cross-appeals from the judgments of conviction on 34 a narrow issue relating to the sentences imposed on Dewar 35 and King. We assume the parties’ familiarity with the 36 underlying facts, the procedural history, and the issues 37 presented for review. 38 39 For substantially the reasons stated by the district 40 court in its September 6, 2007 amended decision and order, 41 we reject defendants’ challenges to the evidence recovered 42 from the Lexus automobile (the “Lexus”) and from Apartment 1 43 at 3443 Mickle Avenue (the “Residence”). Reviewing for 44 abuse of discretion, we conclude that the district court 2 1 properly denied an evidentiary hearing regarding the police 2 stop of the Lexus because Dewar failed to contest the facts 3 presented in the declaration of Detective Sergeant Edward 4 Lucas (the “Lucas Declaration”) and thereby failed to create 5 a material issue. See United States v. Finley, 245 F.3d 6 199, 203 (2d Cir. 2001). 7 8 Reviewing the district court’s factual findings for 9 clear error and legal determinations de novo, we conclude 10 that the district court properly denied defendants’ motions 11 to suppress the evidence recovered from the Lexus and the 12 Residence. See United States v. Rodriguez, 356 F.3d 254, 13 257 (2d Cir. 2004). First, the district court properly 14 determined that probable cause supported the Lexus stop and 15 the arrests of Dewar and his brother based on (i) the 16 indicia of reliability of the confidential informant (the 17 “CI”) set forth in the Lucas Declaration, (ii) the monitored 18 and recorded conversations between the CI and defendants, 19 and (iii) police surveillance of the Residence. 20 See Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) 21 (“In general, probable cause to arrest exists when the 22 officers have knowledge or reasonably trustworthy 23 information of facts and circumstances that are sufficient 24 to warrant a person of reasonable caution in the belief that 25 the person to be arrested has committed or is committing a 26 crime.” (internal quotation marks omitted)). 27 28 Second, regarding the Residence, the district court 29 properly rejected defendants’ challenges based on the 30 particularity of the search warrant and the purported 31 staleness of the information described in the affidavit 32 submitted in support of the search warrant. The search 33 warrant--sought by local police and issued by a local judge 34 for purposes of a local investigation--did not have to 35 satisfy the 10-day requirement of the then-current version 36 of Federal Rule of Criminal Procedure 41(e)(2)(A)(i). 37 See United States v. Burke, 517 F.2d 377, 382 (2d Cir. 38 1975). A single sentence in the Statement of Facts of 39 Dewar’s pre-trial motion failed to raise an argument that 40 the seizure of objects beyond the purported scope of the 41 search warrant’s description rendered the police conduct an 42 impermissible general search, and defendants thus waived any 43 such argument pursuant to Federal Rule of Criminal Procedure 44 12(b)(3)(C). 3 1 2 We reject defendants’ challenges to the jury 3 instructions. The district court properly instructed the 4 jury regarding Dewar’s knowledge and intent. See United 5 States v. Gilliam, 994 F.2d 97, 102 (2d Cir. 1993) (“[T]he 6 cases interpreting [Federal Rule of Evidence] 404(b) allow 7 the district court to do essentially what was done in this 8 case: the defendant does not challenge the element of the 9 crime, the jury is told that the element of the crime is 10 met, but no extraneous evidence to prove that element is 11 introduced.”); accord United States v. Tarricone, 996 F.2d 12 1414, 1421 (2d Cir. 1993); United States v. Colon, 880 F.2d 13 650, 659 (2d Cir. 1989). Because both Dewar and King were 14 convicted of the conspiracy charged in Count One of the 15 relevant indictment, Defendants cannot demonstrate plain 16 error based on the district court’s omission of an 17 instruction that the CI could not be a co-conspirator during 18 his cooperation with the investigation. Similarly, 19 Defendants cannot establish plain error based on the 20 district court’s omission of specific unanimity charges as 21 to (i) the object of the conspiracy for Count One in light 22 of the jury’s unanimous finding that the conspiracy involved 23 five or more kilograms of cocaine; (ii) the predicate drug 24 offense for Count Five in light of the jury’s unanimous 25 conviction on each of the three predicate offenses, see 26 United States v. Gomez, 580 F.3d 94, 103-04 (2d Cir. 2009); 27 or (iii) the particular firearm for Count Five, see, e.g., 28 United States v. Perry, 560 F.3d 246, 257 (4th Cir. 2009); 29 United States v. Wise, 515 F.3d 207, 214-15 (3d Cir. 2008); 30 United States v. Hernandez-Albino, 177 F.3d 33, 40 (1st Cir. 31 1999); United States v. Morin, 33 F.3d 1351, 1353-54 (11th 32 Cir. 1994); United States v. Correa-Ventura, 6 F.3d 1070, 33 1075-87 (5th Cir. 1993). 34 35 Assuming King’s severance motion was properly 36 presented, and reviewing for abuse of discretion, the 37 district court properly denied it. See United States v. 38 Yousef, 327 F.3d 56, 150 (2d Cir. 2003). The district court 39 carefully instructed the jury that King contested the 40 knowledge and intent element of the charged offenses, 41 thereby minimizing any prejudice arising from the jury 42 instructions regarding Dewar’s knowledge and intent. 43 See United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006) 44 (“As the Supreme Court has frequently observed, the law 4 1 recognizes a strong presumption that juries follow limiting 2 instructions.”). 3 4 We reject Dewar’s challenges relating to the 5 government’s filing of a prior felony information. Although 6 the district court omitted the colloquy required under 21 7 U.S.C. § 851(b), it did not rely on the prior felony 8 information in sentencing Dewar: 9 10 [I]t is my view that a sentence of twenty years or 11 240 months was or is the appropriate sentence 12 regardless of what the mandatory minimum is; that 13 in light again of this defendant’s history and 14 characteristics and the circumstances of this 15 offense, that some very significant punishment 16 needs to be put in place. And, so, whether a ten 17 or a twenty-year mandatory minimum sentence were 18 found, I would have imposed a sentence of 240 19 months, and I just want that to be clear. 20 21 This lucid statement renders any error harmless. See United 22 States v. Deandrade, ---- F.3d ----, 2010 WL 842324, at *4 23 (2d Cir. Mar. 12, 2010). Moreover, Dewar failed to rebut 24 the “presumption of regularity” attaching to the 25 government’s filing of the prior felony information. United 26 States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008). 27 28 The government cross-appeals the district court’s 29 decisions not to impose consecutive sentences for Dewar and 30 King’s 18 U.S.C. § 924(c) convictions. The government 31 concedes that the district court complied with the law of 32 this Circuit, but contends that the law of this Circuit is 33 error. See United States v. Williams, 558 F.3d 166 (2d Cir. 34 2009); United States v. Whitley, 529 F.3d 150 (2d Cir. 35 2008). As a preliminary matter, the government requests 36 that we defer ruling on the cross-appeals until the legal 37 issue has been clarified by the Supreme Court, as the 38 government expects. We are aware that the Supreme Court has 39 granted two petitions for writs of certiorari on this issue. 40 See United States v. Gould, 329 Fed. App’x 569 (5th Cir. 41 2009), cert. granted, 130 S. Ct. 1283 (Jan. 25, 2010) (No. 42 09-7073); United States v. Abbott, 574 F.3d 203 (3d Cir. 43 2009), cert. granted, 130 S. Ct. 1284 (Jan. 25, 2010) (No. 44 09-479). However, a “panel is bound by prior decisions of 5 1 this court unless and until the precedents established 2 therein are reversed en banc or by the Supreme Court.” 3 United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009). 4 Accordingly, we conclude that the district court properly 5 declined to impose the consecutive sentences provided in § 6 924(c). 7 8 We have considered all of the contentions in these 9 appeals and cross-appeals and have found them to be without 10 merit. Accordingly, the judgments of the district court are 11 hereby AFFIRMED. 12 13 FOR THE COURT: 14 CATHERINE O’HAGAN WOLFE, CLERK 15 6