15‐958‐cr(L)
United States v. Lyle & Van Praagh
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
Argued: January 12, 2017
Final Submission: July 6, 2018
Decided: April 1, 2019
Docket Nos. 15‐958‐cr(L), 15‐1175‐cr(CON)
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES LYLE, AKA SEALED DEFENDANT 3, MICHAEL VAN PRAAGH, AKA SEALED
DEFENDANT 1,
Defendants‐Appellants,
ANTHONY TARANTINO, AKA SEALED DEFENDANT 2,
Defendant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
RAGGI, CHIN, AND LOHIER, Circuit Judges.
Consolidated appeals from judgments of the United States District
Court for the Southern District of New York (Crotty, J.) entered after defendants‐
appellants James Lyle and Michael Van Praagh were convicted at trial of charges
relating to drug trafficking. Lyle challenges the admission of (1) physical
evidence obtained pursuant to warrantless searches and (2) his post‐arrest and
proffer statements. Van Praagh challenges (1) the sufficiency of the evidence of
conspiracy, (2) the admission of Lyleʹs post‐arrest and proffer statements in their
joint trial, and (3) the reasonableness of his sentence.
AFFIRMED.
MICHAEL FERRARA, Assistant United States
Attorney (Brendan F. Quigley, Assistant
United States Attorney, on the brief), for
Geoffrey S. Berman, United States Attorney
for the Southern District of New York, New
York, New York, for Appellee.
DANIEL S. NOOTER (Thomas H. Nooter, on the
brief), Freeman Nooter & Ginsberg, New
York, New York, for Defendant‐Appellant
James Lyle.
2
MARSHA R. TAUBENHAUS, Law Offices of
Marsha R. Taubenhaus, New York, New
York, for Defendant‐Appellant Michael Van
Praagh.
CHIN, Circuit Judge:
Defendants‐appellants James Lyle and Michael Van Praagh appeal
from judgments of the United States District Court for the Southern District of
New York (Crotty, J.) convicting them on charges relating to the distribution of
methamphetamine. Lyle challenges the admission at trial of evidence seized
during a December 11, 2013 inventory search of a rental car and a January 9, 2014
search of his hotel room. He also challenges the admission at trial of certain post‐
arrest and proffer statements. Van Praagh challenges the sufficiency of the
evidence of his participation in a methamphetamine distribution conspiracy, the
admission of Lyleʹs post‐arrest and proffer statements in their joint trial, and the
reasonableness of his sentence. Because we conclude that the evidence at trial
was sufficient to support all convictions, the challenged searches and seizures
did not violate the Fourth Amendment, the admission of Lyleʹs statements did
not violate the Fifth Amendment, and Van Praaghʹs sentence was reasonable, we
affirm the judgments of the district court.
3
BACKGROUND
I. The Facts
Because Van Praagh and Lyle appeal convictions following a jury
trial, we view the evidence in ʺthe light most favorable to the government,
crediting any inferences that the jury might have drawn in its favor.ʺ United
States v. Rosemond, 841 F.3d 95, 99‐100 (2d Cir. 2016) (quoting United States v.
Dhinsa, 243 F.3d 635, 643 (2d Cir. 2001)).
A. Overview
Throughout 2013, Van Praagh regularly sold pound quantities of
methamphetamine. These deals generally occurred once a week and often took
place in Manhattan hotels. Van Praagh also sold smaller quantities of
methamphetamine out of his apartment in Queens and through in‐person
deliveries to his customers. Brandon Hodges, an Arizona‐based
methamphetamine supplier, sent Van Praagh methamphetamine on three or four
occasions during this time, with the largest shipment containing four ounces of
methamphetamine. Van Praagh regularly sold methamphetamine to Lyle, who
was also a methamphetamine dealer in the New York area. Lyle regularly sold
methamphetamine to Anthony Tarantino. Tarantino initially purchased
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methamphetamine for personal use, but eventually started selling small
quantities of methamphetamine to his own clients. Both Hodges and Tarantino
cooperated with the government and testified at trial.
In January 2013, Lyle introduced Tarantino to Van Praagh.
Tarantino accompanied Lyle to Van Praaghʹs apartment so that Lyle could
restock his methamphetamine supply. While at Van Praaghʹs apartment,
Tarantino saw Lyle purchase methamphetamine from Van Praagh, which Lyle
later sold to Tarantino. In April 2013, Lyle took Tarantino to Van Praaghʹs
apartment a second time, where Tarantino again observed Lyle ʺre‐up,ʺ i.e.,
purchase methamphetamine, from Van Praagh. After this second visit,
Tarantino and Van Praagh became romantically involved, and eventually
Tarantino moved in with Van Praagh and began helping him sell
methamphetamine.
B. The Seizure of Methamphetamine from Van Praaghʹs Hotel Room
On May 29, 2013, Van Praagh and Tarantino checked into the Out
Hotel in midtown Manhattan. That night, they sold pound quantities of
methamphetamine to several customers, including Lyle. The next day, they
checked out of the hotel but accidentally left approximately a pound of
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methamphetamine and $20,000 cash in the hotel room safe. Hotel staff found the
drugs and money and called the New York City Police Department (ʺNYPDʺ),
and officers arrived to seize the drugs and cash. After Van Praagh realized his
mistake later that day, he returned to the hotel, where he was arrested by the
NYPD. During the arrest, the officers seized a cellular phone and over $1,000
cash from Van Praaghʹs pocket. The officers also searched Van Praaghʹs Vespa
scooter parked outside the hotel, where they found part of and packaging for a
digital scale.
Soon thereafter, Tarantino brought Lyle money to give to Van
Praaghʹs father to bail Van Praagh out of jail. The day after Van Praagh got out
of jail, he and Tarantino flew to Arizona to ensure that Van Praaghʹs
methamphetamine suppliers would continue to sell to him. Van Praagh and
Tarantino returned to New York and continued their sale of methamphetamine.
C. Lyleʹs Arrests
On December 11, 2013, NYPD officers observed Lyle park and exit a
car in midtown Manhattan. The officers noticed a knife clipped to Lyleʹs pants,
which they later determined to be an illegal gravity knife. The officers
approached Lyle as he was closing the trunk of the car. Lyle told the officers that
6
he was legally permitted to carry a gravity knife because he was a member of the
stagehands union and used the knife to perform his job. Lyle initially said he
had not driven the car but when the officers informed him that they had seen
him driving it, Lyle admitted as much. When asked for identification, Lyle
produced a New York State ID with the expiration date scratched off. The
officers confirmed that Lyleʹs driverʹs license was suspended. The officers also
determined that the vehicle Lyle was driving was a rental car and that Lyle was
not an authorized driver under the rental agreement. Lyle claimed that his
girlfriend had rented the car and had given him permission to drive it. The
officers arrested Lyle for driving with a suspended license and for possessing an
illegal knife.
Before heading to the station for processing, Lyle asked if the car
could be left at the location and stated that his girlfriend would pick it up. The
officers denied the request and impounded the vehicle. At the police precinct, an
inventory search was conducted. Over one pound of methamphetamine and
approximately $39,000 cash were found in the trunk of the car.
The following day ‐‐ December 12, 2013 ‐‐ Lyle was brought to the
District Attorneyʹs Office where he made certain statements in custody after
7
being read his Miranda rights. When asked about the methamphetamine that
was in the trunk of the rental car, Lyle stated that ʺan individual . . . had
contacted him and asked him to hold something for him.ʺ Tr. 435.1 He stated
that upon meeting with that individual and another individual, he stayed in the
car and did not see what was placed in the trunk but presumed it to be drugs
because the individual that he was meeting with was known to distribute large
quantities of methamphetamine in the New York area. When asked about his
relationship with these two individuals, Lyle stated that he was friends with
them, and had eventually begun working with one of them in delivering
methamphetamine to the individualʹs customers.
Lyle stated that the person in charge had a source of supply in
Arizona named either Brendan or Brandon. Lyle also ʺprovided a few namesʺ of
other people in the New York area who distributed large quantities of
methamphetamine. Tr. 436.
On January 9, 2014, police in East Windsor, New Jersey responded
to an anonymous call that people were using methamphetamine in a hotel room.
1 Lyle identified this individual as Van Praagh, but at trial, ʺindividualʺ
was substituted for Van Praaghʹs name pursuant to Bruton v. United States, 391 U.S. 123
(1968).
8
When they got to the hotel room, Lyle opened the door and invited the officers
inside. The officers heard the toilet flush and saw Lyleʹs girlfriend come out of
the bathroom. The officers observed a torch lighter on the bathroom shelf, a
small clear bag next to the trash can, and a partial clear straw wrapper containing
white residue on the bathroom floor. Additionally, they observed a towel under
the bathroom doorway. In the bedroom, the officers noticed that a clear bag had
been affixed to the smoke detector with rubber bands.
Officers then performed a consent search of the room, and found
approximately fourteen grams of methamphetamine, $3,270 cash, a digital scale,
and numerous plastic baggies. Lyle and his girlfriend were both arrested.
II. The Proceedings Below
A. The Indictment and Van Praaghʹs Arrest
Van Praagh, Lyle, and Tarantino were indicted on March 20, 2014.
On March 31, 2014, Drug Enforcement Administration (ʺDEAʺ) agents arrested
Van Praagh at his apartment. After receiving consent to search the apartment,
agents found tools used to sell drugs, including a heat‐sealer, packaging
materials, and multiple scales, and a note from Hodges asking Van Praagh to
have Lyle call him.
9
On April 6, 2013, Van Praagh called his father from jail and told him,
in a recorded call, ʺthey got nothing . . . . I sterilized the house like I told you.ʺ
Supp. App. 104. He also told him, ʺ[t]hey got Anthony [Tarantino], but Iʹm
expecting that heʹll be disappearing any day now . . . . I believe that he had been
talking.ʺ Supp. App. 105.
B. Lyleʹs Proffer Session
On April 7, 2014, Lyle participated in a proffer session with the
government in hope of reaching a cooperation agreement. A proffer agreement
was executed, stipulating that the government would not use any of Lyleʹs
statements made during the proffer sessions against him, except ʺto rebut any
evidence or arguments offered by or on behalf of [Lyle].ʺ Lyle App. 36.
During the proffer session, Lyle admitted that (1) around 2011 or
2012, he sometimes stayed with Van Praagh while working on projects in New
York City; (2) he observed Van Praagh smoking and using methamphetamine;
(3) he occasionally delivered packages to Van Praaghʹs clients; (4) he
accompanied Van Praagh to deliver methamphetamine thirty to fifty times;
(5) Van Praagh told Lyle his supplier was in Arizona; and (6) on one occasion,
10
Lyle accompanied Van Praagh to pick up methamphetamine from a library in
New York City.
C. The Superseding Indictment and Pretrial Motions
A superseding indictment was filed September 30, 2014, charging
(1) Van Praagh and Lyle with conspiring to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), from
December 2012 to January 2014; (2) Van Praagh with distributing and possessing
with intent to distribute 50 grams or more of methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), on or about May 30, 2013; and (3) Lyle
with distributing and possessing with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), on or
about December 11, 2013.
Before trial, Lyle moved to suppress the physical evidence recovered
from the search of the automobile, as well as his subsequent post‐arrest
statements. In an affidavit filed in support of the motion, Lyle admitted that
(1) just prior to his arrest, he had been driving the car that had been rented by his
girlfriend with her permission; (2) he possessed a gravity knife that day; (3) he
11
initially told the police officers he had not been driving the car but later admitted
to driving the car; and (4) his license was suspended at the time.
On September 11, 2014, the district court held an evidentiary hearing
on the voluntariness of Lyleʹs post‐arrest statements and, on October 1, 2014, the
court denied Lyleʹs motion to suppress. The court found there was probable
cause for Lyleʹs arrest, based on his possession of a gravity knife. The court then
concluded that the search of the rental car was justified on two independent
bases. First, Lyle had no reasonable expectation of privacy in the rental car
because he was not an authorized driver under the rental agreement. Second,
the search of the rental car was a valid inventory search. The court also found
that Lyleʹs post‐arrest statements were made voluntarily and pursuant to a valid
Miranda waiver.
D. The Trial
Lyle and Van Praaghʹs trial began on October 14, 2014, and ended on
October 20, 2014. The government called nineteen witnesses, and introduced
physical evidence consisting of drugs and drug processing materials, text
messages between the defendants, testimony regarding Lyleʹs post‐arrest and
proffer statements, and the recorded call Van Praagh made to his father while
12
incarcerated. Van Praagh called one witness who testified about the
circumstances of Van Praaghʹs March 31, 2014 arrest. Lyle did not put on a case.
During his opening statement, Lyleʹs counsel stated that ʺ[Lyle]
obtained, bought, borrowed, was given methamphetamine for his own use.
Where we dispute is the idea that he was a dealer.ʺ Tr. 28. Later that day, the
government submitted a letter brief, asserting that Lyleʹs counselʹs argument that
Lyle was not a dealer opened the door to Lyleʹs proffer statements about
distributing drugs with Van Praagh.
Lyleʹs statements to law enforcement were admitted in two contexts.
First, the district court allowed testimony regarding Lyleʹs December 12, 2013
post‐arrest statements to law enforcement to be admitted only as against him,
prohibiting mention of Van Praagh. Van Praagh did not object to the redacted
testimony. Government witnesses testified that Lyle admitted that an
ʺindividualʺ for whom he worked as a ʺrunnerʺ ʺasked him to hold something for
himʺ in the trunk of the rental car, which Lyle ʺpresumed . . . to be drugsʺ
because Lyle knew ʺ[t]hat individual along with another individualʺ distributed
ʺlarge quantities of crystal meth in the New York area.ʺ Tr. 435, 534. Lyle was
friends ʺ[m]ore so with the individual that had not placed the drugs in the
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trunk. . . . He said that he began as friends, and eventually he began working
with that individualʺ ‐‐ the ʺindividual who was in chargeʺ‐‐ ʺassisting him in
delivering . . . methamphetamine to that individualʹs customers.ʺ Tr. 435‐36.
Lyle told law enforcement that the individuals for whom he was working as a
runner had a source of supply in Arizona named either Brendan or Brandon.
Lyle also gave law enforcement ʺa few namesʺ of other people in the New York
area who distributed methamphetamine, including the names of three
competitor drug dealers. Tr. 436. On cross‐examination, Lyleʹs attorney elicited
testimony that, during the post‐arrest interview, Lyle ʺgave names of people
during the conversation,ʺ one of which was Brandon or Brendan. Tr. 448.
Second, toward the close of the governmentʹs case, the district court
ruled ‐‐ over Lyleʹs objection ‐‐ that Lyleʹs proffer statements were admissible,
but again prohibited mention of Van Praagh. Van Praagh did not object. The
government witness then testified that Lyle admitted he had ʺfirst become
involved in methamphetamineʺ in 2012 through ʺsomeoneʺ he ʺknew . . . from
work.ʺ Tr. 517‐18. Lyle observed ʺthat person . . . using and distributing crystal
methamphetamine.ʺ Tr. 518. Lyle ʺbegan distributing small packagesʺ for that
person and ʺaccompanying that person on deals as well as picking up crystal
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methamphetamine.ʺ Id. Lyle admitted that ʺhe accompanied this person . . . [on]
between 30 to 50 occasions. And that at one point they had gone to a library in
the New York City area . . . to pick up crystal methamphetamine.ʺ Id. Lyle said
the methamphetamine supplier was in Arizona.
On cross‐examination, Lyleʹs attorney elicited from the witness that
ʺ[Lyle] actually g[a]ve real names of peopleʺ during his proffer session, and
provided ʺsome names of people whose last names he didnʹt know.ʺ Tr. 524.
These names included ʺZaron,ʺ ʺTed,ʺ ʺBob,ʺ and ʺJoe.ʺ Tr. at 525.
At the close of trial, the district court instructed the jury, in pertinent
part: ʺThere has been evidence that Mr. Lyle made statements to law
enforcement authorities . . . . I want to let you know that . . . Mr. Lyleʹs statement
about his own conduct may not be considered or discussed by you with regard
to Mr. Van Praagh.ʺ Tr. 713.
On October 20, 2014, the jury found the defendants guilty on all
counts. On March 25, 2015, the district court sentenced Lyle principally to the
statutory mandatory minimum of 120 monthsʹ imprisonment and, on April 2,
2015, the district court sentenced Van Praagh principally to 144 monthsʹ
imprisonment. In imposing a higher sentence on Van Praagh, the district court
15
concluded that ʺVan Praagh had a higher role, more important role. He dealt in
more drugs than did Mr. Lyle.ʺ Van Praagh App. 62.
These appeals followed. On May 9, 2017, we issued an opinion
affirming the district courtʹs judgments. United States v. Lyle, 856 F.3d 191 (2d
Cir. 2017). Lyle petitioned for and was granted certiorari by the Supreme Court.
On May 21, 2018, the Supreme Court vacated the judgment and remanded the
case for further consideration in light of its intervening decision in Byrd v. United
States, ‐‐‐ U.S. ‐‐‐, 138 S. Ct. 1518 (2018), which addressed the issue of the
reasonable expectation of privacy of an unauthorized driver of a rental car. On
July 6, 2018, the parties submitted letter briefs addressing Byrdʹs impact upon this
case. For the reasons set forth below, we adhere to our original decision.
DISCUSSION
Six issues are presented: (1) the validity of the warrantless search
and seizure of the rental car; (2) the interpretation of Lyleʹs proffer agreement; (3)
the sufficiency of the redactions to Lyleʹs proffer statements; (4) the admissibility
of Lyleʹs New Jersey arrest; (5) the sufficiency of the conspiracy evidence against
Van Praagh; and (6) the reasonableness of Van Praaghʹs sentence. We address
each issue in turn.
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I. Warrantless Search of Rental Car
We review a district courtʹs ruling on a suppression motion for clear
error as to factual findings, ʺgiving special deference to findings that are based
on determinations of witness credibility,ʺ and de novo as to questions of law.
United States v. Hussain, 835 F.3d 307, 312‐13 (2d Cir. 2016) (quoting United States
v. Lucky, 569 F.3d 101, 106 (2d Cir. 2009)). We conclude that Lyleʹs motion was
properly denied for two independent reasons: first, Lyle had no reasonable
expectation of privacy in the rental car, and, second, the inventory search of the
rental car was reasonable.
A. Applicable Law
i. Reasonable Expectation of Privacy in Rental Car
The Fourth Amendment guarantees citizens the ʺright . . . to be
secure in their . . . effects, against unreasonable searches and seizures.ʺ U.S.
Const. amend. IV. To prove that a search violated the Fourth Amendment, ʺan
accused must show that he had a legitimate expectation of privacy in a searched
place or item.ʺ United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987) (citing
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980)). The person challenging the search
must demonstrate a subjective expectation of privacy in the place searched, and
17
that expectation must be objectively reasonable. United States v. Paulino, 850 F.2d
93, 97 (2d Cir. 1988).
When we previously ruled in this case, the question of whether an
unauthorized driver has a reasonable expectation of privacy in a rental car
divided the various circuit courts, resulting in at least three approaches. See Lyle,
856 F.3d at 200‐01 (reviewing circuit split). We did not rule on the question, as
we decided the appeal on other grounds, as discussed below.
The Supreme Courtʹs recent decision in Byrd v. United States resolved
the circuit split, holding that the ʺmere fact that a driver in lawful possession or
control of a rental car is not listed on the rental agreement will not defeat his or
her otherwise reasonable expectation of privacy.ʺ 138 S. Ct. at 1531. The Court
rejected the governmentʹs suggestion of a per se rule that unauthorized drivers
ʺalways lack an expectation of privacy in the automobile based on the rental
companyʹs lack of authorization alone.ʺ Id. at 1527. Drawing from property
principles, the Supreme Court reasoned that ʺ[o]ne of the main rights attaching
to property is the right to exclude others, and, in the main, one who owns or
lawfully possesses or controls property will in all likelihood have a legitimate
expectation of privacy by virtue of the right to exclude.ʺ Id. at 1527 (quoting
18
Rakas v. Illinois, 439 U.S. 128, 144 n. 12 (1978) (internal quotation marks omitted)).
It further noted, however, that the concept of lawful possession is central to the
expectation of privacy inquiry, for a ʺʹwrongfulʹ presence at the scene of a search
would not enable a defendant to object to the legality of the search.ʺ Id. at 1529
(quoting Rakas, 439 U.S. at 141 n. 9). Thus, ʺa person present in a stolen
automobile at the time of the search may [not] object to the lawfulness of the
search of the automobileʺ regardless of his level of possession and control over
the automobile. See id.
ii. Community Caretaking Function
It is well established that police have the authority, despite the
absence of a warrant, to seize and remove from the streets automobiles in the
interests of public safety and as part of their community caretaking functions ‐‐
an authority that is beyond reasonable challenge. South Dakota v. Opperman, 428
U.S. 364, 368‐69 (1976). In Colorado v. Bertine, the Supreme Court explained that,
under this community caretaking exception to the warrant requirement, police
officers may exercise their discretion in deciding whether to impound a vehicle,
ʺso long as that discretion is exercised according to standard criteria and on the
basis of something other than suspicion of evidence of criminal activity.ʺ 479
19
U.S. 367, 375 (1987). The question of whether Bertine and similar Supreme Court
precedent require an officerʹs decision to impound a car to be made pursuant to
standardized criteria, a question we have not addressed, has created a split
among the circuits.
Relying on a stricter interpretation of Bertine, two circuits have
concluded that an officerʹs decision to impound a vehicle as part of its role as a
community caretaker must be guided by a standardized procedure. See United
States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004) (holding that ʺ[s]ome degree of
standardized criteria or established routine must regulate these police actions . . .
to ensure that impoundments and inventory searches are not merely a ruse for
general rummaging in order to discover incriminating evidenceʺ (internal
quotation marks omitted)); United States v. Duguay, 93 F.3d 346, 351 (7th Cir.
1996) (ʺAmong those criteria which must be standardized are the circumstances
in which a car may be impounded.ʺ). Taking a slightly different approach, the
D.C. Circuit has held that ʺif a standard impoundment procedure exists, a police
officerʹs failure to adhere thereto is unreasonable and violates the Fourth
Amendment.ʺ United States v. Proctor, 489 F.3d 1348, 1354 (D.C. Cir. 2007). The
Tenth Circuit has held that standardized procedures are not required where an
20
officer exercises ʺthe community‐caretaking functions of protecting public safety
and promoting the efficient movement of traffic,ʺ but are required in other cases.
United States v. Sanders, 796 F.3d 1241, 1245 (10th Cir. 2015).
The First, Third, and Fifth Circuits, however, have rejected the
standardized criteria requirement, and instead focus their inquiry on the
reasonableness of the impoundment under the circumstances. See United States v.
McKinnon, 681 F.3d 203, 208 (5th Cir. 2012) (per curiam) (hinging analysis upon
ʺthe reasonableness of the ʹcommunity caretakerʹ impound viewed in the context
of the facts and circumstances encountered by the officerʺ (citation omitted));
United States v. Smith, 522 F.3d 305, 314 (3d Cir. 2008) (declining to adopt ʺthe
more structured approach . . . requiring that there be standardized police
procedures governing impoundmentsʺ); United States v. Coccia, 446 F.3d 233, 239
(1st Cir. 2006) (ʺ[I]mpoundments of vehicles for community caretaking purposes
are consonant with the Fourth Amendment so long as the impoundment decision
was reasonable under the circumstances.ʺ). These circuits read Bertine ʺto
indicate that an impoundment decision made pursuant to standardized
procedures will most likely, although not necessarily always, satisfy the Fourth
Amendment.ʺ Coccia, 446 F.3d at 238.
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B. Application
i. Reasonable Expectation of Privacy in Rental Car
In our prior decision, we specifically declined to decide whether an
unauthorized driver ever has a reasonable expectation of privacy in a rental car.
Instead, we concluded, and now reaffirm, that Lyle lacked standing not just
because he was an unauthorized driver, but because he was an unlicensed one.
Accordingly, Lyleʹs use of the rental car was both unauthorized and unlawful.
See N.Y. Vehicle & Traffic Law § 511 (prohibiting operating a car without a valid
license). Lyle should not have been driving any car because his license was
suspended, and a rental company with knowledge of the relevant facts certainly
would not have given him permission to drive its car nor allowed a renter to let
him do so. Under these circumstances, Lyle did not have a reasonable
expectation of privacy in the rental car. See United States v. Haywood, 324 F.3d
514, 516 (7th Cir. 2003) (declining to resolve circuit split over whether
unauthorized driver had reasonable expectation of privacy in rental car, because
unauthorized driver also had suspended license and the combination resulted in
no reasonable expectation of privacy); cf. United States v. Tropiano, 50 F.3d 157,
161 (2d Cir. 1995) (ʺ[W]e think it obvious that a defendant who knowingly
22
possesses a stolen car has no legitimate expectation of privacy in the car.ʺ); United
States v. Ponce, 947 F.2d 646, 649 (2d Cir. 1991) (ʺTo mount a challenge to a search
of a vehicle, defendants must show, among other things, a legitimate basis for
being in it, such as permission from the owner.ʺ).
Byrd does not require a different result. The Court there held that an
unauthorized driver in sole possession of a rental car could have a legitimate
expectation of privacy in the vehicle because even an unauthorized driver, in the
right circumstances, could have ʺlawful possession and control and the attendant
right to exclude.ʺ 138 S. Ct. at 1528. The Court noted that ʺthere may be
countless innocuous reasons why an unauthorized driver might get behind the
wheel of a rental car and drive it ‐‐ perhaps the renter is drowsy or inebriated.ʺ
Id. at 1529.
This reasoning does not apply to the circumstances here, where Lyle
was not only the driver of the vehicle but the sole occupant. Because Lyle did
not have a valid driverʹs license, it was unlawful for him to be operating the
vehicle. He did not have lawful possession and control of the vehicle in the sense
that he unlawfully drove the vehicle onto the scene and could not lawfully drive
it away. See id. (reaffirming conclusion in Rakas v. Illinois that ʺʹwrongfulʹ
23
presence at the scene of a search would not enable a defendant to object to the
legality of the search,ʺ ʺ[n]o matter the degree of [a defendantʹs] possession and
control.ʺ). While the absence of a valid license alone may not destroy an
unauthorized driverʹs expectation of privacy, Lyleʹs possession and control of the
car was unlawful the moment he started driving it. Just as a car thief would not
have a reasonable expectation of privacy in a stolen car, id., an unauthorized,
unlicensed driver in sole possession of a rental car does not have a reasonable
expectation of privacy in the vehicle. Therefore, because Lyleʹs operation of the
car rendered his possession and control unlawful, Byrd is distinguishable.
Further, unlike the Eighth and Ninth Circuits, which have held that
a defendant may have standing to challenge a search of a rental car despite
lacking a valid license and authorization under the rental agreement if he
received an authorized driverʹs permission, United States v. Best, 135 F.3d 1223
(8th Cir. 1998); United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006), we conclude
that an authorized renterʹs permission is not determinative of whether a
defendant has a reasonable expectation of privacy. Indeed, Byrd explicitly
rejected the notion that legitimate presence alone affords a defendant with a
reasonable expectation of privacy. 138 S. Ct. at 1527 (quoting Rakas, 439 U.S. at
24
148 (noting that legitimate presence is relevant, but not controlling)). While a
defendant does not lose all his Fourth Amendment rights simply by engaging in
illegal acts, he may still lack standing to challenge a search when the law
prevents him from being there in the first place, even with the ownerʹs
permission. See United States v. Schram, 901 F.3d 1042, 1045 (9th Cir. 2018)
(rejecting argument that defendant had standing to object to the search of his
girlfriendʹs house because the no‐contact order prohibiting him from contacting
his girlfriend was vitiated by her consent to enter the property). Here, even
assuming that, under different circumstances, an unlicensed driver may have an
expectation of privacy in a rental car, Lyleʹs possession and control was unlawful
while driving the rental car both without a license and without authorization. Cf.
United States v. Walton, 763 F.3d 655, 663 (7th Cir. 2014) (holding that defendant,
who was passenger at time of search and sole authorized driver listed on rental
agreement, had reasonable expectation of privacy in rental car despite lacking
driverʹs license because ʺ[a] driver of a car does not lose all Fourth Amendment
protections simply because his license is invalid,ʺ but observing that conclusion
would not obtain if person were both unlicensed and unauthorized).
25
Lyle argues that he was not operating the vehicle when he was
arrested and that he lawfully possessed the vehicle. These arguments ignore the
fact that Lyle was seen by the agents driving the vehicle, and, indeed, he
eventually admitted as much. Because he was driving the vehicle illegally, Lyle
did not have lawful possession or control of the vehicle and he does not have
standing to challenge the search.
Lyleʹs reliance on the Sixth Circuitʹs decision in United States v.
Smith, 263 F.3d 571, 586 (6th Cir. 2001), is misplaced. Smith presented unique
facts. Specifically, Smith was not only the husband of the renter, but he also ʺhad
a business relationship with the rental companyʺ because he had ʺcalled the
rental company to reserve the rental vehicle,ʺ ʺwas given a reservation number,ʺ
and ʺprovided the company with his credit card number, and that credit card
was subsequently billed for the rental of the vehicle.ʺ Id. In light of these facts,
the Sixth Circuit determined that ʺSmith was the de facto renter of the vehicleʺ
and that, therefore, he had a legitimate expectation of privacy in the rental car.
Id. at 586‐87. Lyle was not the de facto renter of the car at issue here. Moreover,
the Sixth Circuit also noted that Smith was a licensed driver. Id. at 586 (ʺSmith
26
was a licensed driver . . . . Therefore, it was not illegal for Smith [to] drive the
vehicle.ʺ). For these reasons, Smith is distinguishable.
Accordingly, we adhere to our original conclusion that Lyle lacked a
reasonable expectation of privacy in the rental car, and the district court did not
err in denying his motion to suppress.
ii. Impoundment of Rental Car
Even assuming Lyle had a legitimate privacy interest in the rental
car, his challenge to the inventory search fails on the merits as the impoundment
of the rental car did not violate the Fourth Amendment.2 The Supreme Court has
repeatedly held that the touchstone of the Fourth Amendment is reasonableness,
see United States v. Ramirez, 523 U.S. 65, 71 (1998), which ʺin turn, is measured in
objective terms by examining the totality of the circumstances,ʺ Ohio v. Robinette,
519 U.S. 33, 39 (1996). Thus, in line with the First, Third, and Fifth Circuits, we
conclude that ʺwhether a decision to impound is reasonable under the Fourth
2 Some courts have concluded that there are two inquiries: first, whether
the impoundment of a car is reasonable; and second, if so, whether the subsequent
search of the car after the impoundment is reasonable. See, e.g., Duguay, 93 F.3d at 351
(ʺ[T]he decision to impound (the ʹseizureʹ) is properly analyzed as distinct from the
decision to inventory (the ʹsearchʹ).ʺ); Coccia, 446 F.3d at 237 n. 5 (same). Here, Lyle has
challenged only the impoundment and not the subsequent search of the rental vehicle.
Hence, we need not reach the second inquiry.
27
Amendment is based on all the facts and circumstances of a given case.ʺ Coccia,
446 F.3d at 239. While the existence of and an officerʹs adherence to a
standardized criteria may be helpful in evaluating the reasonableness of an
impoundment, we decline to adopt a standardized impoundment procedure
requirement.
Using a totality of the circumstances analysis, we conclude that the
impoundment here was reasonable under the Fourth Amendment even absent
standardized procedures. Here, at the time of his arrest for driving with a
suspended license and for possessing an illegal knife, Lyle was the rental carʹs
driver and sole occupant. As there was no third party immediately available to
entrust with the vehicleʹs safekeeping, the officers could not be certain how long
the rental car would be unattended in Lyleʹs absence. Even if Lyle did not expect
to be in custody long, Lyle would not have been able to operate the car himself
upon release due to his suspended license. Although Lyle asked for the
opportunity to arrange for his girlfriend, the authorized driver under the rental
agreement, to remove the rental car, the police were not required to grant the
request. See Bertine, 479 U.S. at 374‐75; see also Duguay, 93 F.3d at 353 & n. 2
(holding impoundment of car unconstitutional when the vehicleʹs other occupant
28
was present at the arrest and could ʺprovide for the speedy and efficient removal
of the car from public thoroughfares,ʺ but noting that the Seventh Circuit has
affirmed impoundments where the arrestee is the vehicleʹs sole occupant and is
legitimately arrested). Instead, by impounding the vehicle, the officer ensured
that the rental vehicle was not left on a public street in a busy midtown
Manhattan location where it could have become a nuisance or been stolen or
damaged and could have become illegally parked the next day. See Opperman,
428 U.S. at 368‐69 (describing as ʺbeyond challengeʺ the authority of police ʺto
seize and remove from the streets vehicles impeding traffic or threatening public
safety and convenience,ʺ such as vehicles that ʺviolate parking ordinancesʺ);
Sanders, 796 F.3d at 1249 (ʺOpperman establishes that if a vehicle is obstructing or
impeding traffic on public property, it can be impounded regardless of whether
the impoundment is guided by standardized procedures.ʺ). Moreover, there is
no indication that the officers did not act in good faith or solely for the purpose
of investigation in exercising their discretion to impound the rental car.
Our decision in United States v. Lopez, 547 F.3d 364 (2d Cir. 2008), is
instructive. There, although our discussion primarily concerned the
constitutionality of the inventory search itself, we concluded that the
29
circumstances called for the impoundment of Lopezʹs car despite any showing of
a standardized impoundment policy. Id. at 372. Similar to Lyle, Lopez was
arrested and there was no one immediately available to move his car for
safekeeping in Lopezʹs case because the only other passenger was also arrested.
See id. at 366‐67. Moreover, like Lyleʹs car, Lopezʹs car was parked on a city
street. Id. at 366.
Thus, even if Lyle had a reasonable expectation of privacy in the
rental car, the district court did not err in denying his motion to suppress.
II. The Proffer Agreement Waiver
We review the district courtʹs interpretation of the scope of a proffer
agreement waiver de novo and its evidentiary rulings for abuse of discretion.
Rosemond, 841 F.3d at 107.
A. Applicable Law
Ordinarily, a ʺstatement made during plea discussions with an
attorney for the prosecuting authorityʺ that does not result in a guilty plea is not
admissible against the defendant who made the statement. Fed. R. Evid.
410(a)(4). The protections provided by Rule 410, however, can be waived,
including in a proffer agreement with the government, provided that such
30
waiver is knowing and voluntary. Rosemond, 841 F.3d at 107; United States v.
Velez, 354 F.3d 190, 194‐95 (2d Cir. 2004).
To determine whether a proffer agreementʹs waiver provision
applies, we ask first whether the defendant has offered any evidence or made a
factual assertion that would trigger the Rule 410 waiver, and, ʺif so, whether the
proffer statement ʹfairly rebut[s]ʹ the fact asserted or evidence offered or elicited.ʺ
Rosemond, 841 F.3d at 107. If the waiver has been triggered and the proffer
statement properly rebuts the assertion triggering the waiver, the government
may offer the proffer statement. Id.
In Rosemond, we gave examples of factual assertions that will trigger
the proffer waiver, including ʺasserting, in an opening statement, that someone
other than the defendant was the real perpetrator of the crime,ʺ id. at 109 (citing
United States v. Barrow, 400 F.3d 109, 114, 119 (2d Cir. 2005)), and ʺarguing that a
shooting was ʹan intended kidnapping gone wrong,ʹ when the defendant
admitted in a proffer session that the shooting was ʹan intentional murder,ʹʺ id. at
110 (quoting United States v. Gomez, 210 F. Supp. 2d 465, 472 (S.D.N.Y. 2002)).
B. Application
The district court properly held that the waiver was triggered by
Lyleʹs counselʹs statement during opening argument that ʺwe dispute [] the idea
31
that [Lyle] was a dealer.ʺ Tr. 28. Lyleʹs proffer agreement contained a waiver
that allowed his statements to come in ʺto rebut any evidence or arguments
offered by or on behalf of [Lyle].ʺ Lyle App. 36.
As this Court has recognized, a defense argument does not trigger a
waiver if it ʺsimply challenge[s] the sufficiency of government proof on [the]
elements.ʺ Barrow, 400 F.3d at 119. But ʺa statement of fact in a defense opening,
such as [a] statement . . . unequivocally identifying [someone other than
defendant] as the real perpetrator of the charged crimes,ʺ is a factual assertion
that would trigger a waiver provision. Id. Here, defense counsel did not ascribe
the charged crime to someone else, but he did more than challenge the
sufficiency of the governmentʹs proof. Rather than argue that the government
would not adduce credible evidence that Lyle was a drug dealer, counsel
disputed the very idea that Lyle was a dealer. This is the functional equivalent of
an affirmative statement that Lyle, in fact, did not deal methamphetamine. This
assertion was belied by Lyleʹs proffer admissions and, thus, triggered the waiver
provision in the proffer agreement.
Lyleʹs proffer statements fairly rebut his counselʹs opening argument
that Lyle was not a dealer. The proffer statements at issue included that (1) Lyle
32
repeatedly distributed ʺsmall packagesʺ of methamphetamine; (2) Lyle
accompanied another person to obtain and deliver methamphetamine; and
(3) Lyle knew the location of the methamphetamine supplier. Taken together,
these statements imply participation in a drug distribution operation and thus
fairly rebut Lyleʹs counselʹs argument in his opening statement that Lyle was a
mere user of methamphetamine and not a dealer. See Barrow, 400 F.3d at 120‐21
(emphasizing that ʺproper rebuttal is not limited to direct contradictionʺ but
ʺencompasses any evidence that the trial judge concludes fairly counters and
casts doubt on the truthfulness of factual assertions advanced, whether directly
or implicitly, by an adversaryʺ).
Hence, we conclude that the district court did not abuse its
discretion in admitting Lyleʹs proffer statements.
III. The Admission of Lyleʹs Redacted Statements
A. Applicable Law
In Bruton v. United States, 391 U.S. 123, 135‐36 (1968), the Supreme
Court held that admission of a non‐testifying co‐defendantʹs confession naming
the defendant as a perpetrator at their joint trial violates the latterʹs Sixth
Amendment right to cross‐examination. The Court later made clear that a non‐
33
obvious redaction of a co‐defendantʹs confession to eliminate any references to
the defendant will eliminate any Bruton problem. See Gray v. Maryland, 523 U.S.
185, 195‐97 (1998); Richardson v. Marsh, 481 U.S. 200, 208‐09 (1987).
We have consistently held that the introduction of a co‐defendantʹs
confession with the defendantʹs name replaced by a neutral noun or pronoun
does not violate Bruton. See, e.g., United States v. Jass, 569 F.3d 47, 58 (2d Cir.
2009) (noting that operative questions when evaluating Bruton claim are ʺ(1) did
the redacted statement give any indication to the jury that the original statement
contained actual names, and (2) did the statement standing alone otherwise
connect co‐defendants to the crimesʺ (internal quotation marks and ellipsis
omitted)). In United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989), for example, we
affirmed a conviction based in part on a co‐defendantʹs statement that was
redacted to reference ʺothers,ʺ ʺother people,ʺ and ʺanother person.ʺ Id. at 1135.
To determine whether a redaction is sufficient under Bruton, we
view the redacted statement separate and apart from any other evidence
admitted at trial. Id. (citing United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.
1985)); see also United States v. Williams, 936 F.2d 698, 700‐01 (2d Cir. 1991) (ʺ[T]he
appropriate analysis to be used when applying the Bruton rule requires that we
34
view the redacted confession in isolation from the other evidence introduced at
trial. If the confession, when so viewed, does not incriminate the defendant, then
it may be admitted with a proper limiting instruction even though other
evidence in the case indicates that the neutral pronoun is in fact a reference to the
defendant.ʺ).
B. Application
Van Praagh contends that his constitutional rights were violated by
the admission of Lyleʹs redacted proffer and post‐arrest statements. We
ordinarily review evidentiary rulings for abuse of discretion; however, Van
Praagh did not object to the introduction of the redacted statements at trial, and
so we review the admission of this evidence for plain error. See United States v.
Pierce, 785 F.3d 832, 840 (2d Cir.), cert. denied, 136 S. Ct. 172 (2015).3
The redacted statements did not violate Bruton. The neutral terms
ʺindividualʺ and ʺperson,ʺ which were substituted for proper names with the
3 Van Praagh contends that his Bruton argument was preserved by his
counselʹs objection to the admission of Lyleʹs unredacted statements and by Lyleʹs
counselʹs objection to the redacted statements. Admission of unredacted statements,
however, is a different and independent issue, and Van Praagh cites no authority
suggesting that one partyʹs counsel may preserve another partyʹs claim of error when
the other partyʹs counsel fails timely to join in the objection. Accordingly, plain error
review applies.
35
exception of that of a supplier ‐‐ ʺBrendan or Brandon,ʺ Tr. 436, 534 ‐‐ were not so
obvious as to indicate to the jury that the original statements contained actual
names. This was an ongoing criminal enterprise where many people were
involved and the government introduced evidence of methamphetamine dealing
by several people. Thus, the substitutions alone did not necessarily identify Van
Praagh. Further, Lyleʹs redacted statements sounded sufficiently natural. For
instance, he admitted that he had ʺfirst become involved in methamphetamineʺ
through ʺsomeoneʺ he ʺknew . . . from work,ʺ Tr. 517‐18, and that the individual
for whom he worked as a ʺrunnerʺ ʺasked him to hold something for himʺ in the
trunk of the rental car. Tr. 435, 534. Because such statements ʺmight actually
have been said by a person admitting his own culpability in the charged
conspiracy while shielding the specific identity of his confederate,ʺ they do not
violate Bruton. Jass, 569 F.3d at 62. Nor did the redacted statements, viewed in
isolation, contain any information indicating that Van Praagh was the
ʺindividualʺ in question, let alone information that would ʺimmediately
inculpateʺ him. Id. at 61 (internal quotation marks omitted).
Van Praagh relies on United States v. Taylor, 745 F.3d 15 (2d Cir.
2014), to support his contention that the redactions violated Bruton, but Taylor is
36
distinguishable. Taylor involved a single robbery of a drug store by four people.
Id. at 20‐21. One of the four, Luana Miller, became a cooperating witness, and
another, Curtis Taylor, gave post‐arrest confessions. Id. At the trial of Taylor
and the two other co‐defendants, the trial court admitted Taylorʹs post‐arrest
confessions but required their redaction to omit identifications of his two co‐
defendants. In the portions of the confessions that were admitted, Millerʹs name
was mentioned but the names of the two co‐defendants were replaced with ʺtwo
other individuals,ʺ ʺthe person,ʺ and ʺthe driver.ʺ Id. at 29. We determined that
in this circumstance the redactions were so obvious as to violate Bruton. Our
reasoning was as follows. First, Millerʹs name was used throughout and, ʺ[i]f
Taylor had been trying to avoid naming his confederates, he would not have
identified one of them ‐‐ Miller ‐‐ in the very phrase in which the names of the
other confederates are omitted.ʺ Id. Second, the wording of the redacted
statements, i.e., ʺ[t]he robbery was the idea of the person who waited with Luana
Miller and Taylor at the gas station,ʺ was stilted and unnatural. Id. Third, in this
context, the ʺreference to ʹtwo other individualsʹ [was] suspiciously closer to the
speech of a prosecutor than that of a perpetrator.ʺ Id. On the basis of these
factors, we determined that it was obvious that names had been omitted from the
37
statements and, therefore, ʺthe choice of implied identity [was] narrow. The
unnamed persons correspond[ed] by number (two) and by role to the pair of co‐
defendants . . . [and] [t]he jury could immediately infer, on the evidence of the
redacted confession alone, that Taylor had likely named the co‐defendants.ʺ Id.
This case is unlike Taylor. First, Lyleʹs statements referred to multiple
people ‐‐ not only one unnamed person to correspond to the one co‐defendant,
Van Praagh. This did not present the necessary process‐of‐elimination problem
that left the juryʹs ʺchoice of implied identity narrowʺ as in Taylor. Id. Second, in
addition to Van Praaghʹs methamphetamine dealing, the government introduced
evidence of methamphetamine dealing by its two cooperating witnesses ‐‐
Tarantino and Hodges ‐‐ as well as several others. Because Lyleʹs statements did
not reference by name those cooperating witnesses, the jury could reasonably
have inferred that they were the ʺother personsʺ Lyle was referring to in his
redacted statements. Third, Lyleʹs statements referred to people involved in a
conspiracy to engage in ongoing criminal conduct, not a single criminal act like in
Taylor. For all of these reasons, Taylor is inapposite.
We also note that the district court here gave a limiting instruction.
See Taylor, 745 F.3d at 28 (ʺIt matters that the district court gave limiting
38
instructionsʺ because ʺ[w]e normally assume that jurors follow limiting
instructionsʺ). The district court specifically instructed the jury that ʺLyleʹs
statement about his own conduct may not be considered or discussed by you
with regard to Mr. Van Praagh.ʺ Tr. 713.
Finally, Van Praaghʹs constitutional rights were not violated by
Lyleʹs counsel eliciting testimony on cross‐examination that his clientʹs
statements had been redacted for presentation at trial and that his client had
indeed provided actual names in his proffer and post‐arrest statements. Again,
because Van Praagh did not object during Lyleʹs attorneyʹs cross‐examination,
we review for plain error. In urging error, Van Praagh relies on Gray v.
Maryland, 523 U.S. 185 (holding that ʺconsidered as a class, redactions that . . .
notify the jury that a name has been deletedʺ violated the Confrontation Clause).
But Grayʹs focus was on the inadequacy of the governmentʹs redaction. Van
Praagh can point to no case plainly identifying Bruton error when a defendant,
whose post‐arrest statements are being offered against him, elicits the fact of
redaction, or elicits parts of the redacted statement.
Van Praagh fails to show plain error here. First, his case is
distinguishable from Gray in that there the redaction inadequacy was attributable
39
to the prosecution. In any event, Van Praagh cannot satisfy the prejudice prong
of plain error because in his case the redacted statements referred to multiple
ʺindividuals,ʺ which means the revelation could not have been immediately
inculpatory. See Jass, 569 F.3d at 61.
Further, during cross‐examination, Lyleʹs attorney elicited from the
same witness several of the names that Lyle mentioned during his post‐arrest
and proffer statements, including ʺZaron,ʺ ʺTed,ʺ ʺBob,ʺ and ʺJoe.ʺ Tr. 525. In
our view, that testimony made it less, not more, obvious to the jury that Lyle had
also mentioned Van Praagh. Van Praaghʹs name was not mentioned at all, and
Lyleʹs counselʹs elicitation of other names suggested that the ʺother personsʺ
mentioned were the individuals whose names Lyleʹs counsel elicited, not Van
Praagh. For all of these reasons, the admission of Lyleʹs redacted statements was
not plainly erroneous.
IV. Admissibility of Lyleʹs New Jersey Arrest
We review a district courtʹs evidentiary rulings for abuse of
discretion, which we will find only if the district court ʺacted arbitrarily and
irrationally.ʺ United States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011) (quoting
United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)).
40
A. Applicable Law
Federal Rule of Evidence 404(b) provides:
Evidence of a crime, wrong, or other act is not admissible to prove a
personʹs character in order to show that on a particular occasion the
person acted in accordance with the character.
Fed. R. Evid. 404(b). ʺThe Second Circuitʹs ʹinclusionary ruleʹ allows the
admission of such evidence ʹfor any purpose other than to show a defendantʹs
criminal propensity, as long as the evidence is relevant and satisfies the
probative‐prejudice balancing test of Rule 403 of the Federal Rules of Evidence.ʹʺ
Greer, 631 F.3d at 614 (quoting United States v. Inserra, 34 F.3d 83, 89 (2d Cir.
1994)).
Not all evidence of uncharged misconduct, however, is prohibited
by Rule 404(b). Rather,
[E]vidence of uncharged criminal activity is not considered other
crimes evidence . . . if it arose out of the same transaction or series of
transactions as the charged offense, if it is inextricably intertwined
with the evidence regarding the charged offense, or if it is necessary
to complete the story of the crime on trial.
United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (internal quotation marks
omitted); see also Inserra, 34 F.3d at 89 (ʺ[E]vidence of other bad acts may be
41
admitted to provide the jury with the complete story of the crimes charged by
demonstrating the context of certain events relevant to the charged offense.ʺ).
B. Application
The district court did not abuse its discretion in admitting the
evidence seized during the New Jersey arrest in January 2014. First, that
evidence was not barred by Rule 404(b) because the arrest ʺarose out of the same
transaction or series of transactions as the charged offense.ʺ Carboni, 204 F.3d at
44. Specifically, as discussed above, Lyle argued at trial that he was only a
methamphetamine user ‐‐ not a dealer. The government rebutted that argument
with evidence of Lyleʹs New Jersey arrest. In summation, the government
argued:
14 or 15 grams [of methamphetamine] is still many hundreds, if not
thousands, of dollars of meth. . . . Also, you know what else was in
that room? A dozen baggies, a scale, $3,000 in cash. He was not
weighing out meth for his own personal use. That was meth he was
going to sell.
Tr. 629. In other words, the evidence seized pursuant to the New Jersey arrest
was not evidence of other crimes; it was evidence of the very crime charged in
count one of the indictment, a conspiracy involving Lyle, Van Praagh, and others
to distribute methamphetamine from in or about December 2012 through in or
42
about January 2014. Accordingly, evidence of the New Jersey arrest was
admissible as direct proof of the methamphetamine distribution conspiracy.
Second, and in any event, the evidence of the New Jersey arrest fits
within the Rule 404(b) inclusionary rule because it shows Lyleʹs knowledge and
intent regarding the contents of the rental car. Because Lyle argued throughout
trial that he did not know what was in the trunk of the rental car, his knowledge
and intent were at issue. United States v. Ramirez, 894 F.2d 565, 568 (2d Cir. 1990)
(ʺWhen the defendant disavows awareness that a crime was being perpetrated,
and the government bears the burden of proving the defendantʹs knowing
possession as an element of the crime, knowledge is properly put in issue.ʺ). The
fact that Lyle was in possession of 14‐15 grams of methamphetamine and tools of
the drug trade less than a month after he was arrested with the rental car is
probative of his knowledge and intent regarding the contents of the rental car. In
addition, the probative value of this evidence was not ʺsubstantially outweighedʺ
by the risk of unfair prejudice as it ʺdid not involve conduct any more
sensational or disturbing than the crimes with which [Lyle was] charged.ʺ United
States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (quoting United States v. Roldan‐
Zapata, 916 F.2d 795, 804 (2d Cir. 1990)). Accordingly, the district court acted
43
well within its discretion in finding that the probative value of the evidence
outweighed the threat of unfair prejudice.
V. Sufficiency of the Conspiracy Evidence
We review Van Praaghʹs challenge to whether the evidence was
sufficient to support his conspiracy conviction de novo, ʺview[ing] the evidence in
the light most favorable to the government, crediting every inference that could
have been drawn in the governmentʹs favor, and deferring to the juryʹs
assessment of witness credibility and its assessment of the weight of the
evidence.ʺ Rosemond, 841 F.3d at 113 (quoting United States v. Coplan, 703 F.3d 46,
62 (2d Cir. 2012)). We must affirm if ʺany rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.ʺ Id. (quoting
United States v. Vernace, 811 F.3d 609, 615 (2d Cir. 2016)).
The crux of a conspiracy is an agreement between two or more
persons to join together to accomplish something illegal. United States v. Parker,
554 F.3d 230, 234 (2d Cir. 2009) (ʺTo prove a conspiracy, the evidence must show
that ʹtwo or more persons agreed to participate in a joint venture intended to
commit an unlawful act.ʹʺ (quoting United States v. Desimone, 119 F.3d 217, 223
(2d Cir. 1997))). We have recognized a ʺnarrow exceptionʺ to the conspiracy rule
44
for a transaction between a buyer and seller of drugs. Id. Under this exception,
ʺthe existence of a buyer‐seller relationship does not itself establish a conspiracy;
however, where there is additional evidence showing an agreement to join
together to accomplish an objective beyond the sale transaction, the evidence
may support a finding that the parties intentionally participated in a conspiracy.ʺ
United States v. Hawkins, 547 F.3d 66, 72 (2d Cir. 2008); see also United States v.
Rojas, 617 F.3d 669, 674 (2d Cir. 2010) (ʺ[T]he exception does not protect either the
seller or buyer from a charge that they conspired together to transfer drugs if the
evidence supports a finding that they shared a conspiratorial purpose to advance
other transfers, whether by the seller or by the buyer.ʺ (alteration and internal
quotation marks omitted)). The question thus becomes ʺwhether the evidence in
its totality suffices to permit a jury to find beyond a reasonable doubt that the
defendant was not merely a buyer or seller of narcotics, but rather that the
defendant knowingly and intentionally participated in the narcotics‐distribution
conspiracy by agreeing to accomplish its illegal objective beyond the mere
purchase or sale.ʺ Hawkins, 547 F.3d at 73‐74.
Van Praagh did not request a buyer‐seller instruction at trial and so
we review for plain error. Pierce, 785 F.3d at 840. The district court did not
45
plainly err in failing to give a buyer‐seller instruction because the government
presented ample evidence of a narcotics conspiracy beyond a buyer‐seller
relationship between Van Praagh and Lyle.
First, Van Praagh sold methamphetamine not just to Lyle, but to
others. Indeed, he received weekly shipments of methamphetamine, which he
then sold to others. With assistance from Tarantino, he regularly sold
methamphetamine out of his apartment in Queens as well as out of hotels, and
he made deliveries to ʺ[p]robably 50ʺ customers. Tr. 124.
Second, the quantity of drugs was consistent with a drug trafficking
operation. Tarantino testified that Lyle repeatedly purchased pound‐level
quantities of methamphetamine at $19,000 to $25,000 per pound. See United
States v. Contreras, 249 F.3d 595, 600 (7th Cir. 2001) (noting that repeat sales
suggest ʺmore than a transient relationship,ʺ but are ʺby themselvesʺ insufficient
to support an inference of a conspiracy between the supplier and purchaser); see
also United States v. Murray, 618 F.2d 892, 902 (2d Cir. 1980) (ʺ[O]ne who deals in
large quantities of narcotics may be presumed to know that he is a part of a
venture which extends beyond his individual participation.ʺ (quoting United
States v. Magnano, 543 F.2d 431, 433‐34 (2d Cir. 1976)).
46
Accordingly, the district court did not plainly err in failing to sua
sponte give a buyer‐seller instruction. See United States v. Medina, 944 F.2d 60, 65‐
66 (2d Cir. 1991) (holding that the district court was not required to give a buyer‐
seller instruction ʺwhere . . . there is advanced planning among the alleged co‐
conspirators to deal in wholesale quantities of drugs obviously not intended for
personal useʺ because ʺ[u]nder such circumstances, the participants in the
transaction may be presumed to know that they are part of a broader
conspiracyʺ).
VI. Reasonableness of Van Praaghʹs Sentence
We review the substantive reasonableness of a sentence under a
ʺdeferential abuse‐of‐discretion standard.ʺ United States v. Aldeen, 792 F.3d 247,
251 (2d Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). The
question is whether Van Praaghʹs below‐Guidelines sentence of 144 monthsʹ
imprisonment ʺshock[s] the conscience,ʺ constitutes a ʺmanifest injustice,ʺ or is
otherwise substantively unreasonable. Id. at 255 (quoting United States v. Rigas,
583 F.3d 108, 123 (2d Cir. 2009)); see also United States v. Perez‐Frias, 636 F.3d 39, 43
(2d Cir. 2011) (per curiam) (ʺ[I]n the overwhelming majority of cases, a
Guidelines sentence will fall comfortably within the broad range of sentences
that would be reasonable in the particular circumstances. It is therefore difficult
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to find that a below‐Guidelines sentence is unreasonable.ʺ (internal quotation
marks and citation omitted)).
Van Praaghʹs below‐Guidelines sentence of 144 months was
substantively reasonable. The district court fully explained its reasoning. It
considered Van Praaghʹs ʺvery unhappy upbringing,ʺ and the ʺvery positive
changeʺ that Van Praagh ʺseem[ed] to be undergoing.ʺ Van Praagh App. 58‐59.
The district court determined, however, that a 144‐month sentence was sufficient
but not greater than necessary because Van Praagh (1) had committed a ʺvery
seriousʺ crime; (2) had a ʺlong history of drug dealingʺ and ʺplenty of
opportunities to changeʺ; (3) clearly had been ʺin charge of dealing more drugs at
a higher level than [Lyle]ʺ; and (4) had a ʺprior record suggest[ing] that he still
continues to be a danger to the community.ʺ Id.
Van Praaghʹs argument that, like Lyle, he should have been
sentenced to the statutory mandatory minimum of 120 monthsʹ imprisonment is
unavailing. As the district court noted, Van Praagh had a ʺmore important roleʺ
than Lyle. See Van Praagh App. 62. Van Praagh supplied Lyle with pound
quantities of methamphetamine on multiple occasions. Van Praagh had people
working for him to make drug deliveries. Moreover, Van Praaghʹs criminal
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history was clearly more serious than Lyleʹs. Although neither man had
previously served any jail time for his crimes, Van Praaghʹs previous convictions
included crimes relating to methamphetamine, while Lyle had only a violation
for marijuana possession twenty years prior to the instant offense conduct. In
these circumstances, we identify no abuse of the district courtʹs sentencing
discretion and no merit in Van Praaghʹs claim that his sentence is substantively
unreasonable.
CONCLUSION
To summarize, we conclude as follows:
1. Because Lyle was an unlicensed, as well as unauthorized,
driver of the rental car, he had no reasonable expectation of privacy in that car,
and the district court did not err in denying his motion to suppress. Even
assuming Lyle had a legitimate privacy interest, the search and seizure of the
rental car did not violate the Fourth Amendment.
2. Lyleʹs counselʹs statement in his opening argument that ʺwe
dispute [] the idea that [Lyle] was a dealer,ʺ Tr. 28, triggered the waiver in Lyleʹs
proffer agreement, and the proffer statements, taken together, fairly rebutted his
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counselʹs argument that Lyle was a mere user of methamphetamine and not a
dealer.
3. The admission of Lyleʹs redacted proffer and post‐arrest
statements in the defendantsʹ joint trial was not plainly erroneous because the
statements substituted neutral terms for actual names and had no otherwise
identifying information. Further, the district court did not plainly err in allowing
Lyleʹs counsel, without Van Praaghʹs objection, to elicit testimony that Lyleʹs
statements had been redacted, that Lyle had provided actual names in his proffer
and post‐arrest statements, and what several of those names were because those
disclosures did not prejudice Van Praagh and, indeed, made it less obvious to the
jury that Lyle was referring to Van Praagh in his statements.
4. The district court did not abuse its discretion in admitting the
evidence seized during Lyleʹs New Jersey arrest because (a) it was direct
evidence of the conspiracy charged in count one of the superseding indictment,
and (b) even if it was not direct evidence, it was not ʺother crimes evidenceʺ
prohibited by Federal Rule of Evidence 404(b) because it showed Lyleʹs
knowledge and intent regarding the contents of the rental car on December 11,
2013.
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5. The district court did not plainly err in failing to sua sponte
give a buyer‐seller instruction to the jury because the government presented
ample evidence of a narcotics conspiracy.
6. Van Praaghʹs below‐Guidelines sentence of 144 monthsʹ
imprisonment was substantively reasonable.
Accordingly, the judgments of the district court are AFFIRMED.
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