12-539-cr
United States v. McCullough
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 23rd day of April, two thousand thirteen.
Present: PIERRE N. LEVAL,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
____________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- No. 12-539-cr
JERRY N. McCULLOUGH,
Defendant-Appellant.
____________________________________________________________
For Appellee: Seth D. DuCharme and David C. James, Assistant United
States Attorneys, for Loretta E. Lynch, United States Attorney
for the Eastern District of New York, Brooklyn, NY
For Defendant-Appellant: Steven G. Brill, Sullivan & Brill, LLP, New York, NY
Appeal from the United States District Court for the Eastern District of New York
(Townes, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-Appellant McCullough appeals from a December 9, 2011, judgment of
conviction entered by the United States District Court for the Eastern District of New York
(Townes, J.) following a jury trial. McCullough was convicted of robbing a post office,
conspiring to rob a post office, and unlawfully using a firearm in connection with a crime of
violence. We assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal.
First, McCullough contends that the district court erred by admitting into evidence
records that reflected the location of McCullough’s cell phone (“cell-site records”). However,
McCullough did not timely move to suppress the records pursuant to Federal Rule of Criminal
Procedure 12(b)(3)(c). He consequently has waived the argument. Fed. R. Crim. P. 12(e).
While the district court in some situations “may grant relief from the waiver,” id., it may not do
so where, as here, a defendant “has not provided, much less established, any reasonable excuse
for his failure to” raise the suppression issue in a timely fashion, United States v. Yousef, 327
F.3d 56, 125 (2d Cir. 2003). McCullough’s failure to move to suppress the evidence forecloses
even plain error review. Id.
Second, McCullough contends that his trial counsel’s failure to move to suppress the cell-
site records constituted ineffective assistance of counsel. To prevail on an ineffective assistance
of counsel claim, McCullough must show that “identified acts or omissions [taken by his
counsel] were outside the wide range of professionally competent assistance,” Strickland v.
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Washington, 466 U.S. 668, 690 (1984), and must also “affirmatively prove prejudice,” id. at 693.
McCullough cannot demonstrate prejudice. Even if McCullough’s counsel had moved to
suppress the records, such a motion would have lacked merit. Under the good faith exception to
the exclusionary rule, evidence obtained by an officer acting in objectively reasonable reliance
on a statute will be admitted unless the statute was “clearly unconstitutional” at the time that the
officer obtained the evidence. Illinois v. Krull, 480 U.S. 340, 349-50 (1987). Law enforcement
officers here relied on 18 U.S.C. § 2703(c) and (d) when they compelled McCullough’s cellular
service provider to produce the cell-site records. McCullough does not point to any case law
predating the government’s acquisition of the records that rendered 18 U.S.C. § 2703(c) and (d)
“clearly unconstitutional” when applied to the acquisition of historic cell-site records.
McCullough argues that law enforcement was not relying on 18 U.S.C. § 2703(c) and (d)
when it compelled his cell-site records because the statute refers to “electronic communication,”
18 U.S.C. § 2703(c), and “electronic communication” is defined to exclude “any communication
from a tracking device,” 18 U.S.C. § 2510(12)(c). “Tracking device” is defined to mean “an
electronic or mechanical device which permits the tracking of the movement of a person or
object.” 18 U.S.C. § 3117(b). McCullough contends that because historic cell-site records
reveal such movement, “by the language of the [statute] itself, historical cell site data is not the
type of data which Congress sought to allow the Government to obtain under the lower standard
of specific and articulable facts.” Reply Brief for Defendant-Appellant McCullough at 4.
McCullough misreads the statute. Section 2703(c) refers to records pertaining to a
subscriber or customer of an “electronic communication service.” (emphasis added).
“Electronic communication service” is defined as “any service which provides to users thereof
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the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15).
McCullough’s cell-phone service provided to him the ability to receive wire communications;
consequently, he was a subscriber to an electronic communication service pursuant to 18 U.S.C.
§ 2703(c). See In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n
Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 310 (3d Cir. 2010) (“[E]ven if the record
of a cell phone call does indicate generally where a cell phone was used when a call was made,
so that the resulting [cell site location information] was information from a tracking device, that
is irrelevant here because the [cell site location information] derives from a ‘wire
communication’ and not an ‘electronic communication.’”). We are therefore unpersuaded that
law enforcement officials did not act in reliance on 18 U.S.C. § 2703(c) and (d) when they
compelled McCullough’s cell-phone service provider to produce records pertaining to
McCullough.
Finally, McCullough contends that the evidence presented at trial was insufficient to
support a guilty verdict. In reviewing a challenge to the sufficiency of the evidence, “the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). There was more
than sufficient evidence here. In particular, McCullough’s co-conspirator, Derek Cochran,
testified about McCullough’s involvement in the robbery. Even “the uncorroborated testimony
of a single accomplice” is sufficient evidence “if that testimony is not incredible on its face and
is capable of establishing guilt beyond a reasonable doubt.” United States v. Parker, 903 F.2d
91, 97 (2d Cir. 1990). Cochran’s testimony met those requirements. Moreover, his testimony
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was corroborated by the cell-site records, the surveillance video from the post office, and the
testimony of three postal service employees. We consequently decline McCullough’s invitation
to disturb the jury’s conclusions and the judgment of conviction imposed on him.
We have considered McCullough’s remaining arguments and find them to be without
merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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