05-1989
USA v. Stewart
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 - - - - - -
4 August Term, 2006
5 (Argued: January 26, 2007 Decided: May 8, 2007)
6
7 Docket No. 05-1989-cr
8 _________________________________________________________
9 UNITED STATES OF AMERICA,
10 Appellee,
11 - v. -
12 HUMPHREY STEWART,
13 Defendant-Appellant.
14 _________________________________________________________
15 Before: KEARSE and SOTOMAYOR, Circuit Judges, and KOELTL, District
16 Judge*.
17 Appeal from a judgment of the United States District Court
18 for the Eastern District of New York, Raymond J. Dearie, Judge,
19 convicting defendant on eight counts of racketeering, firearms, and
20 narcotics violations, see 18 U.S.C. §§ 1959(a)(5), 1962(c) and (d),
21 922(g)(1), and 924(c)(1)(A)(iii), and 21 U.S.C. §§ 846 and
22 841(a)(1), following a jury trial that included hearsay evidence
*Honorable John G. Koeltl, of the United States District Court for
the Southern District of New York, sitting by designation.
1 admitted on the ground that the declarant was unavailable because
2 his murder had been procured by the defendant.
3 Affirmed.
4 JEFFREY GOLDBERG, Assistant United States
5 Attorney, Brooklyn, New York (Roslynn R.
6 Mauskopf, United States Attorney for the
7 Eastern District of New York, Peter A.
8 Norling, Alyssa A. Qualls, Assistant
9 United States Attorneys, Brooklyn, New
10 York, on the brief), for Appellee.
11 EDWARD D. WILFORD, New York, New York
12 2(Anthony L. Ricco, Steven Z. Legon, New
13 York, New York, on the brief), for
14 Defendant-Appellant.
15 KEARSE, Circuit Judge:
16 Defendant Humphrey Stewart appeals from a judgment entered
17 in the United States District Court for the Eastern District of New
18 York on April 22, 2005, following a jury trial before Raymond J.
19 Dearie, Judge (now Chief Judge), convicting Stewart of racketeering
20 and racketeering conspiracy, in violation of 18 U.S.C. §§ 1962(c)
21 and (d); conspiracy to distribute and possess with intent to
22 distribute five or more kilograms of cocaine, in violation of 21
23 U.S.C. § 846; distribution and possession of five or more kilograms
24 of cocaine, in violation of 21 U.S.C. § 841(a)(1); attempted murder
25 and conspiracy to commit murder in aid of racketeering activity, in
26 violation of 18 U.S.C. § 1959(a)(5); possession, as a convicted
27 felon, of a firearm in violation of 18 U.S.C. § 922(g)(1); and
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1 discharge of a firearm during a violent crime, in violation of 18
2 U.S.C. § 924(c)(1)(A)(iii). Stewart was sentenced principally to
3 life imprisonment on each of the racketeering and narcotics counts
4 and 10 years each on the attempted murder, conspiracy to murder, and
5 § 922(g) firearm counts, with all of those prison terms to be served
6 concurrently, and to a five-year term of imprisonment on the
7 § 924(c) firearm count to be served consecutively to the other
8 prison terms. All of these prison terms were to run consecutively
9 to a state-court sentence Stewart was then serving. On appeal,
10 Stewart contends, inter alia, that the district court violated his
11 rights under the Confrontation Clause of the Sixth Amendment when it
12 allowed certain trial witnesses to describe statements that had been
13 made by a declarant whose murder the court found Stewart had
14 procured. Finding no merit in this or any of Stewart's other
15 contentions, we affirm the judgment.
16 I. BACKGROUND
17 The present prosecution arose out of investigations into
18 the narcotics trafficking activities in Brooklyn, New York, and
19 elsewhere in the United States, of a group of men known as the
20 "Patio Crew." The evidence at Stewart's 2004 trial included
21 testimony from law enforcement officers, cooperating members of the
22 Patio Crew (or "Crew"), and others.
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1 Briefly summarized in the light most favorable to the
2 government, the trial evidence included the following. Stewart and
3 Emile Dixon were members of the Patio Crew, a gang that had
4 controlled narcotics trafficking in the Flatbush section of Brooklyn
5 for more than a decade. The Crew distributed powder cocaine and
6 crack cocaine and was vigilant in protecting its Flatbush territory
7 through the use of threats, assaults, robberies, and murder.
8 Stewart and Dixon were regarded by other Crew members as
9 particularly inclined towards violence. The Crew had a code of
10 vengeance against anyone who cooperated with law enforcement
11 authorities; in the vernacular of the Crew members, who were
12 Jamaican nationals, the "rule" was "informer for dead," meaning that
13 if an informer "cooperated with the police," the "[i]nformer must
14 die." (Trial Transcript ("Tr.") at 110; see also id. at 312
15 ("[i]nformers must dead"); Stewart brief on appeal at 4 ("[T]he
16 credo of the streets" included the rule "keep your mouth shut!
17 Never become an informant! Never snitch! There was even a popular
18 saying on the street, 'snitches for dead', which was a warning that
19 meant death to informants.").)
20 In the summer of 1999, Stewart became aware that marijuana
21 was being sold at one of the Crew's locations by Robert Thompson
22 (a/k/a "Ragga"), who was not a member of the Crew. On July 29,
23 1999, complaining of Ragga's competition in front of Stewart's
24 building (see Tr. 137), Stewart approached other Patio Crew members
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1 and asked if anyone had a "fire stick," meaning a gun (Tr. 136,
2 341). Later that day, Ragga was shot several times. He was
3 seriously injured, but recovered.
4 Ragga at first refused to reveal the identity of his
5 assailant to the police (see, e.g., Tr. 727-28); he would say only
6 that he had been in his jeep stopped at a red light when a man ran
7 up, opened the door, and started firing a gun at him (see id. at
8 739-40). Eventually, however, Ragga informed the police that the
9 shooter had been Stewart; Ragga so testified before a grand jury in
10 March 2000. In the meantime, Ragga had told several others,
11 including his girlfriend, his brother Steven, and the mother of two
12 of his children, that he had been shot by Stewart.
13 Immediately after the shooting of Ragga, Stewart had fled
14 Brooklyn for Buffalo, New York, where he continued to participate in
15 the Crew's narcotics distributions. In January 2000, Stewart was
16 arrested in Buffalo on New York State drug charges; he was
17 eventually returned to Brooklyn to face outstanding charges with
18 respect to an unrelated 1995 shooting in Brooklyn. As discussed in
19 greater detail in Part II.A. below, Stewart, while being detained
20 first in Buffalo and then in Brooklyn, sent several messages to
21 Ragga urging him not to identify Stewart in a lineup and not to
22 testify against him with respect to the 1999 shooting of Ragga.
23 Ragga was undeterred, and in late March 2000 he informed a police
24 detective that Stewart was the person who had shot him. Thereafter,
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1 Stewart had several telephone conversations with Dixon, who urged
2 Ragga not to testify against Stewart. Ragga refused to agree not to
3 testify. On July 26, 2000, in a drive-by shooting, Ragga was killed
4 by Dixon.
5 Dixon and Stewart were eventually indicted on federal
6 charges, including several relating to the murder of Ragga. Stewart
7 was charged with conspiring between July 1999 and July 2000 to
8 murder Ragga and with attempting to murder Ragga on July 29, 1999,
9 for the purpose of maintaining and increasing his position in the
10 Patio Crew, a racketeering enterprise, in violation of 18 U.S.C.
11 § 1959(a)(5). Because the government sought the death penalty
12 against Dixon for the actual murder, the two defendants were tried
13 separately. At Stewart's trial, the government was allowed to
14 introduce evidence from a police detective and several other
15 witnesses that Ragga had told them that the man who shot him on July
16 29, 1999, was Stewart. (See, e.g., Tr. 739-40, 991, 1098, 1309.)
17 Stewart was convicted on the § 1959 counts, as well as the other
18 counts described above.
19 II. DISCUSSION
20 On appeal, Stewart contends, inter alia, that the
21 admission of testimony that Ragga had identified him as the July 29,
22 1999 shooter violated his rights under the Confrontation Clause.
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1 His other contentions include a challenge to the sufficiency of the
2 evidence to support his conviction on one count and a contention
3 that the district court failed to consider the appropriate factors
4 in imposing sentence. Finding no merit in his contentions, we
5 affirm the judgment.
6 A. The Confrontation Clause: Forfeiture of the Right
7 The Confrontation Clause of the Sixth Amendment provides
8 that "[i]n all criminal prosecutions, the accused shall enjoy the
9 right . . . to be confronted with the witnesses against him." U.S.
10 Const. amend. VI. Nonetheless, "'the law [will not] allow a person
11 to take advantage of his own wrong,'" United States v. Mastrangelo,
12 693 F.2d 269, 272 (2d Cir. 1982) ("Mastrangelo") (quoting Diaz v.
13 United States, 223 U.S. 442, 458 (1912) (other internal quotation
14 marks omitted)) (brackets ours), and it is thus well established, as
15 a matter of "[s]imple equity" and "common sense," that the right to
16 confrontation is forfeited if the defendant has "wrongfully procured
17 the witnesses' silence through threats, actual violence or murder,"
18 United States v. Dhinsa, 243 F.3d 635, 651 (2d Cir.) ("Dhinsa")
19 (internal quotation marks omitted), cert. denied, 534 U.S. 897
20 (2001). See, e.g., id. at 652 ("'It is hard to imagine a form of
21 misconduct more extreme than the murder of a potential
22 witness. . . . We have no hesitation in finding, in league with all
23 circuits to have considered the matter, that a defendant who
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1 wrongfully procures the absence of a witness or potential witness
2 may not assert confrontation rights as to that witness.'" (quoting
3 United States v. White, 116 F.3d 903, 911 (D.C. Cir.), cert. denied,
4 522 U.S. 960 (1997))); United States v. Miller, 116 F.3d 641, 667-68
5 (2d Cir. 1997), cert. denied, 524 U.S. 905 (1998); United States v.
6 Thai, 29 F.3d 785, 814 (2d Cir.), cert. denied, 513 U.S. 977 (1994);
7 United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992);
8 Mastrangelo, 693 F.2d at 272-73; United States v. Cherry, 217 F.3d
9 811, 814-15 (10th Cir. 2000); Steele v. Taylor, 684 F.2d 1193,
10 1201-02 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); United
11 States v. Carlson, 547 F.2d 1346, 1358-60 (8th Cir. 1976), cert.
12 denied, 431 U.S. 914 (1977). See also Crawford v. Washington, 541
13 U.S. 36, 62 (2004) ("the rule of forfeiture by wrongdoing (which we
14 accept) extinguishes confrontation claims on essentially equitable
15 grounds").
16 In 1997, the Federal Rules of Evidence were amended to
17 "recognize[] the need for a prophylactic rule to deal with [this
18 type of] abhorrent behavior 'which strikes at the heart of the
19 system of justice itself.'" Fed. R. Evid. 804 Advisory Committee
20 Note (1997) (quoting Mastrangelo, 693 F.2d at 273). Under the
21 heading "Forfeiture by wrongdoing," Rule 804(b)(6) provides that the
22 hearsay rule does not require the exclusion of "[a] statement
23 offered against a party that has engaged or acquiesced in wrongdoing
24 that was intended to, and did, procure the unavailability of the
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1 declarant as a witness." Fed. R. Evid. 804(b)(6) (emphasis added).
2 Accordingly, the district court may admit hearsay evidence as to
3 statements by an unavailable declarant if it finds by a
4 preponderance of the evidence, see Fed. R. Evid. 804 Advisory
5 Committee Note (1997); Fed. R. Evid. 104(a), that (a) the "party
6 against whom the out-of-court statement is offered[] was involved
7 in, or responsible for, procuring the unavailability of the
8 declarant through knowledge, complicity, planning or in any other
9 way," and (b) that party "acted with the intent of procuring the
10 declarant's unavailability as an actual or potential witness,"
11 Dhinsa, 243 F.3d at 653-54 (internal quotation marks omitted).
12 In the present case, the district court found that the
13 government had shown "by a preponderance of the evidence that Mr.
14 Stewart acted through Mr. Dixon to secure the absence of the
15 witness, Robert Thompson, and that [he did] so with intent to do
16 just that." (Tr. 738.) Stewart challenges these findings. He
17 points out that he "was in custody at the time the murder was
18 committed," arguing that there was no "direct evidence that [he]
19 commanded or directed that Mr. Dixon shoot the witness." (Stewart
20 brief on appeal at 16.) And he argues that there was "no competent
21 evidence, either direct or circumstantial, that [he] acted with the
22 intent required under the second prong of Dhinsa." (Id.) Stewart's
23 challenge is both legally flawed and contradicted by the record.
24 First, the government was not required to show Stewart's
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1 involvement in Dixon's murder of Ragga by "direct evidence." Both
2 the existence of a conspiracy and a given defendant's participation
3 in it with the requisite knowledge and criminal intent may be
4 established through circumstantial evidence. See, e.g., United
5 States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied,
6 498 U.S. 991 (1990); United States v. Tutino, 883 F.2d 1125, 1129
7 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990); United States v.
8 Young, 745 F.2d 733, 762 (2d Cir. 1984), cert. denied, 470 U.S. 1084
9 (1985). Here the record contains ample circumstantial evidence of
10 Stewart's involvement in Ragga's murder, principally in the form of
11 telephone records and testimony from Stewart confidantes.
12 For example, Stewart's cousin Devon Tate testified that
13 after Stewart was arrested in Buffalo, Stewart made a number of
14 telephone calls to Tate from jail. Tate testified, "[Stewart] asked
15 me to get in touch with Ragga's mother . . . to tell her to have
16 [Ragga] not go to the identification line-up . . . ." (Tr. 433.)
17 Tate passed that message to Ragga's brother Delroy and received a
18 return call from Ragga's mother (id. at 433-34), who advised Tate
19 not to be involved and said that Ragga would "go forward" (id. at
20 435). Tate testified that he relayed that response to Stewart;
21 Stewart subsequently "told [Tate] that [Stewart] was ID-d by Ragga
22 and he's an informer and informer must die." (Id.)
23 Susan Sanchez, a girlfriend of Stewart's, testified that
24 while Stewart was in custody, first in Buffalo and then in Brooklyn,
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1 she frequently, at Stewart's behest, arranged untraceable three-way
2 calls between Stewart and others. (See Tr. 921-23.) She arranged
3 such calls between Stewart and Dixon two or three times a week.
4 (See Tr. 923.)
5 Patio Crew member Horace Burrell, one of the witnesses who
6 described the Crew's rule that "[i]nformers must dead" (Tr. 312),
7 testified that he witnessed a conversation between Dixon and Ragga's
8 brother Delroy about Ragga after Stewart was arrested. In that
9 conversation, Dixon said that Stewart had called him and instructed
10 him to tell Delroy to tell Ragga that "he not supposed to go testify
11 against him." (Tr. 342.) Burrell testified that when Delroy did
12 not agree to relay that message to Ragga, "[Dixon] was upset and he
13 was walking away and said tell your brother that if you don't listen
14 to what we say shot will fire." (Tr. 343.)
15 The government also introduced Dixon's cellular telephone
16 records and Stewart's prison telephone records. They showed
17 telephone contacts between Dixon and Stewart in the weeks leading up
18 to the murder and on the day of the murder itself.
19 Thus, before any witnesses were allowed to testify that
20 Ragga told them he had been shot by Stewart, the court heard
21 evidence that Stewart had instructed Dixon and others to try to
22 persuade Ragga not to testify that Stewart was the person who shot
23 him in July 1999, that the Patio Crew's code was that "[i]nformer
24 must dead," and that both Stewart and Dixon had sent the message
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1 that if Ragga insisted on testifying against Stewart, Ragga would be
2 shot. Accordingly, the district court's ruling that the government
3 had established by a preponderance of the evidence that Stewart
4 acted through Dixon to murder Ragga, and did so with the intent to
5 prevent Ragga from testifying against Stewart, was amply supported
6 by the record.
7 Finally, we note that the forfeiture-by-wrongdoing
8 principle made the testimony as to Ragga's statements admissible at
9 Stewart's trial on the present federal charges even though Stewart's
10 efforts had been focused on preventing Ragga from testifying at a
11 different trial, to wit, Stewart's state trial for assault, rather
12 than the trial in the present federal case (which had not yet been
13 initiated). "The text of Rule 804(b)(6) requires only that the
14 defendant intend to render the declarant unavailable 'as a witness.'
15 The text does not require that the declarant would otherwise be a
16 witness at any particular trial . . . . A defendant who wrongfully
17 and intentionally renders a declarant unavailable as a witness in
18 any proceeding forfeits the right to exclude, on hearsay grounds,
19 the declarant's statements at that proceeding and any subsequent
20 proceeding." United States v. Gray, 405 F.3d 227, 241, 242 (4th
21 Cir.) (emphasis in original), cert. denied, 546 U.S. 912 (2005).
22 Indeed, the forfeiture principle applies even to
23 situations where "there was [no] ongoing proceeding
24 in which the declarant was scheduled to testify."
25 Miller, 116 F.3d at 668; see also [United States v.]
26 Houlihan, 92 F.3d [1271, 1279-80 (1st Cir. 1996)].
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1 The application of Mastrangelo under these
2 circumstances is both logical and fair since a
3 contrary rule "would serve as a prod to the
4 unscrupulous to accelerate the timetable and murder
5 suspected snitches sooner rather than later."
6 Houlihan, 92 F.3d at 1280.
7 Dhinsa, 243 F.3d at 652. A defendant will not be allowed to profit
8 from such wrongdoing.
9 In sum, Stewart, by his involvement in the murder of
10 Ragga, forfeited any right to exclude evidence of out-of-court
11 statements by Ragga that he had previously been shot by Stewart.
12 B. Other Contentions
13 Stewart also contends that the evidence was insufficient
14 to support his conviction for racketeering conspiracy, that the
15 government failed to disclose exculpatory material, that the
16 district court erred in failing to suppress evidence seized from his
17 automobile, and that the court failed to consider the proper factors
18 in imposing sentence. These contentions lack merit and do not
19 warrant extended discussion.
20 Stewart contends that his conviction on the racketeering
21 conspiracy count should be vacated on the ground that the evidence
22 at trial was insufficient to establish that the Patio Crew was a
23 racketeering enterprise, rather than simply a neighborhood social
24 group. This contention is meritless. The evidence showed, inter
25 alia, that members of the Patio Crew distributed narcotics and
26 shared drug distribution opportunities; that the Crew maintained the
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1 same core membership for some 12 years; that it regulated drug
2 dealing within the territory it controlled; and that the members
3 adhered to rules of conduct. This was ample to permit a rational
4 juror to infer that the Patio Crew constituted a racketeering
5 enterprise within the meaning of 18 U.S.C. § 1962. See, e.g.,
6 United States v. Dixon, 167 F. App'x 841, 843-44 (2d Cir. 2006)
7 (holding that the similar evidence introduced at Dixon's trial was
8 sufficient to show that the Patio Crew was a racketeering
9 enterprise).
10 Stewart also contends that the government violated its
11 duty under Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v.
12 Whitley, 514 U.S. 419 (1995), to turn over evidence that could have
13 been used to impeach the credibility of one of its witnesses, Jimael
14 Allen. Stewart claims that Allen testified that Dixon killed
15 Allen's associate Omar Sutherland, and that the government knew and
16 failed to disclose that someone else had been convicted of that
17 murder. Even assuming that such a conviction could have been
18 considered material evidence with respect to the charges against
19 Stewart, Stewart's factual premises are unsubstantiated. First,
20 Stewart has pointed to no evidence as to another person's conviction
21 for the murder of Sutherland. Second, Stewart has provided no
22 record citation to support his assertion that Allen testified that
23 Sutherland was murdered by Dixon. We have found no such accusation
24 by Allen, who testified as follows:
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1 Q. Did there come a time when Omar was killed?
2 A. Yes.
3 Q. Did you witness the murder?
4 A. No, I didn't. I wasn't there that night.
5 (Tr. 1143.)
6 Stewart's contention that the district court erred in
7 failing to suppress $20,000 in cash that had been found, following
8 his arrest after a routine traffic stop in 1996, in a car Stewart
9 was driving, borders on the frivolous. Stewart waived this argument
10 when he conceded before the district court that the evidence was
11 admissible under the inevitable discovery doctrine (see Tr. 1209).
12 In any event, one of the arresting officers testified, without
13 contradiction, that he and other police officers regularly performed
14 inventory searches of such a vehicle at the scene of a driver's
15 arrest to determine whether the vehicle could safely be left on the
16 street. (See Tr. 1030.) Thus, even without Stewart's concession,
17 the evidence would have been admissible as the fruit of a valid
18 inventory search. See, e.g., United States v. Thompson, 29 F.3d 62,
19 65 (2d Cir. 1994) (postarrest inventory search conducted pursuant to
20 routine standardized practice does not violate Fourth Amendment).
21 Finally, we reject Stewart's claim that the district
22 court, in imposing his sentence, erred by failing to consider the
23 sentencing factors enumerated at 18 U.S.C. § 3553(a). "[W]e
24 presume, in the absence of record evidence suggesting otherwise,
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1 that a sentencing judge has faithfully discharged her duty to
2 consider the statutory factors." United States v. Fernandez, 443
3 F.3d 19, 30 (2d Cir.), cert. denied, 127 S. Ct. 192 (2006). We see
4 nothing in the record to suggest that the district court here failed
5 to discharge this duty. Rather, the district court carefully
6 considered whether the Guidelines sentence it imposed would be
7 appropriate, and we see no basis for finding the sentence
8 unreasonable, see United States v. Booker, 543 U.S. 220, 260-61
9 (2005).
10 CONCLUSION
11 We have considered all of Stewart's arguments on this
12 appeal and have found them to be without merit. The judgment of the
13 district court is affirmed.
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United States v. Stewart
Court: Court of Appeals for the Second Circuit
Date filed: 2007-05-08
Citations: 485 F.3d 666
Copy CitationsCombined Opinion