United States v. Barnes

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., 509 U.S. 579 (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, 579 F.3d 214, 217 (2d Cir. 6 2009) (quoting United States v. Miller, 116 F.3d 641, 663 7 (2d Cir. 1997) (internal quotation marks omitted)); see 8 United States v. Torres, 901 F.2d 205, 231 (2d Cir.), cert. 9 denied, 498 U.S. 906 (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, 212 F.3d 713, 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.” Id. at 718 (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,” id. § 2518(1)(c). “[G]eneralized and conclusory 33 statements that other investigative procedures would prove 34 unsuccessful” do not satisfy Title III. United States v. 35 Lilla, 699 F.2d 99, 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, 901 F.2d 43 at 231 (quoting United States v. Vazquez, 605 F.2d 1269, 44 1282 (2d Cir. 1979)). 45 46 The government’s affidavits must include more than 47 “generalized and conclusory statements” or “skimpy” details 3 1 about the specific alternative techniques tried and why they 2 failed or were likely to fail. Lilla, 699 F.2d at 104; 3 Concepcion, 579 F.3d at 215. 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, 901 19 F.2d at 231 (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, 998 F.2d 1112, 1128 (2d 40 Cir. 1993), abrogated on other grounds, Groh v. Ramirez, 540 41 U.S. 551 (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 4 1 court’s evidentiary rulings for abuse of discretion. United 2 States v. Yousef, 327 F.3d 56, 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., 473 F.3d 450, 457 (2d Cir. 2007) 9 (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 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., 247 F.3d 423, 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.” Id. “To succeed 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, 23 467 U.S. 479 (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, 870 F.2d 822, 833 (2d Cir. 1989) 30 (parallel citations omitted) (quoting Trombetta, 467 U.S. at 31 489). 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, 189 F.3d 88, 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, 865 F.2d 29, 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, 609 F.3d 556, 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, 490 F.3d 110, 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, 490 F.3d 208, 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.” Daubert, 509 U.S. at 597. 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, 239 F.3d 415, 423 (2d 15 Cir. 2000) (holding that an argument not raised below is 16 ordinarily waived). Cf. Nimely v. City of New York, 414 17 F.3d 381, 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, 506 F.3d 151, 162 (2d Cir. 2007), and “consider[s] 34 the use of ballistic expert testimony in other cases,” id. 35 at 161, the court has “effectively fulfilled its gatekeeping 36 function under Daubert” and the “formality of a separate 37 hearing [i]s not required,” id. 38 39 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 7