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United States v. Lee

United States Court of Appeals, Second Circuit

August 24, 2016

United States of America, Appellee
v.
HISAN LEE, also known as Ice, also known as Devontea Clark, DELROY LEE, also known as Specs, also known as DJ, LEVAR GAYLE, also known as Train, SELBOURNE WAITE, also known as Silky, Defendants-Appellants, HIBAH LEE, MARK GABRIEL, also known as Bubbles, BOBBY MOORE, JR., also known as Pops, ANDRE DAVIDSON, also known as O Dog, BOBBY SAUNDERS, also known as Bobby Moore, CARMEN MOORE, also known as Munchie, TYRONE MOORE, also known as Puss, ROBERT MORRISON, also known as Chips, DAKWAN EDWARDS, also known as Doc, MARQUISH JONES, also known as Lunchbox, MARK HART, also known as Movements, RAHEEM TUCKER, also known as Ras, DEMETRI YOUNG, also known as Walter Malone, CHRISTOPHER DIAZ, also known as X Box, ANTHONY MICHAEL DIAZ, also known as Little X, PAUL LOVE, AARON BIRCH, also known as A, KEVIN BECKFORD, also known as Carl Beckford, JERMELL FALZONE, also known as Mel, Defendants

          Argued: December 10, 2015

         Several defendants appeal from convictions for racketeering, narcotics conspiracy, Hobbs Act conspiracy, and various substantive counts of Hobbs Act robbery and associated firearms and murder counts. In this opinion, we hold that the evidence offered at trial to prove the interstate commerce element of the challenged Hobbs Act robberies was sufficient to support the guilty verdicts, because the evidence permitted the jury to conclude beyond a reasonable doubt that the robberies targeted suspected marijuana dealers for their drugs or the proceeds from the sale of drugs. Additionally, we reject defendant Levar Gayle's due process and evidentiary challenges to his convictions resulting from the robbery and murder of Oneil Johnson. For the reasons set forth in this opinion and in an accompanying summary order, the judgment of the district court is AFFIRMED in all respects, save that Selbourne Waite's case is REMANDED for resentencing, for reasons set forth in the summary order.

          B. ALAN SEIDLER, New York, NY, for defendant-appellant Hisan Lee.

          WINSTON LEE, New York, NY, for defendant-appellant Delroy Lee.

          RUTH M. LIEBESMAN, Paramus, NJ, for defendant-appellant Levar Gayle

          SUSAN V. TIPOGRAPH, New York, NY, for defendant-appellant Selbourne Waite

          MARGARET GARNETT, Assistant United States Attorney (Jessica Fender, Won Shin, David Zhou, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

          Before CABRANES, POOLER, and LYNCH, Circuit Judges.

          Gerard E. Lynch, Circuit Judge:

         Several defendants appeal from convictions on various charges of racketeering, narcotics conspiracy, Hobbs Act conspiracy, and substantive counts of Hobbs Act robbery and associated firearms and murder counts. We reject most of defendants' challenges to their convictions in an accompanying summary order, in which we also conclude that defendant Selbourne Waite's case must be remanded for resentencing. In this opinion, we hold, following the Supreme Court's recent decision in Taylor v. United States, 136 S.Ct. 2074 (2016), that the evidence offered at trial to prove the interstate commerce element of the challenged Hobbs Act robbery convictions was sufficient to support the guilty verdicts, because the evidence permitted the jury to conclude beyond a reasonable doubt that the robberies targeted suspected marijuana dealers for their drugs or the proceeds from the sale of drugs. We also reject defendant Levar Gayle's due process and evidentiary challenges to his conviction on charges arising from the robbery and murder of Oneil Johnson. We therefore AFFIRM the judgment of the district court, except to the extent that defendant Waite's case is REMANDED for resentencing for reasons set forth in the accompanying summary order.

         BACKGROUND

         Hisan Lee, Delroy Lee, Selbourne Waite, and Levar Gayle appeal from judgments of conviction in the United States District Court for the Southern District of New York (Barbara S. Jones, J.), following a six-week jury trial. The jury found the defendants guilty of all counts against them, except that it acquitted Selbourne Waite of the counts related to the murder of Bunny Campbell. As noted above, we resolve most of the issues on appeal in the accompanying summary order. Below, we address the challenges made by all four defendants to the sufficiency of the evidence on the interstate commerce element for the Hobbs Act robberies, and Gayle's arguments that the district court's rulings caused him substantial prejudice requiring reversal of his convictions in connection with the robbery and murder of Oneil Johnson.

         The evidence at trial showed that Hisan Lee, his brother Delroy Lee, and their cousin Selbourne Waite were all members of a criminal organization centered around DeKalb Avenue in the northern Bronx (the "DeKalb Avenue Crew" or the "Crew"), which engaged in extensive drug dealing, violence, robberies of drug dealers, and murders. Another cousin, Levar Gayle, was not a member of the Crew, but was convicted of participating in a single drug robbery in which the victim, Oneil Johnson, was shot and killed by Hisan Lee.

         The Crew was led primarily by a man named Bobby Saunders, and its activities centered on a triangle of blocks between Van Cortlandt Park and Woodlawn Cemetery. Saunders had a close "father-son" type relationship with Hisan Lee, Delroy Lee, and Waite, and gave them entry-level jobs selling marijuana and crack cocaine on his stretch of DeKalb Avenue in the early 1990s. By the late 1990s, Delroy Lee, Hisan Lee, and Selbourne Waite were all selling crack cocaine on DeKalb Avenue with other members of the Crew. Members of the Crew pooled money to buy from suppliers, split sales, and watched out for the police for one another. By the mid-2000s, the Lee brothers and Waite were primarily involved in selling larger quantities of drugs than before, which they often secured through robberies, many of which are the subject of this appeal. The Lee brothers and Waite regularly carried guns to protect their drugs and themselves while they were selling, and to protect and enforce the exclusive territory of the DeKalb Avenue Crew. The factual background as it relates to each Hobbs Act robbery, and Gayle's involvement in the robbery and murder of Oneil Johnson, is discussed further in context below.

         DISCUSSION

         I. Interstate Commerce Element

         All four defendants challenge the sufficiency of the evidence to prove the interstate commerce element of various charged substantive Hobbs Act robberies: the robbery of Oneil Johnson, in which Johnson was shot and killed, and robberies at 4061 Murdoch Avenue, 2041 Strang Avenue, 2032 Strang Avenue, 3955 Paulding Avenue, and 2930 Hone Avenue. Accordingly, they argue that those substantive robbery convictions, as well as any firearms convictions predicated on them, must be reversed.

         It was stipulated by the parties that all cocaine and some marijuana comes from outside the state of New York. Therefore, if the target of a robbery was cocaine or its proceeds, the interstate commerce element is clearly satisfied, since the cocaine must have been transported in interstate commerce, and a reasonable jury therefore could easily conclude that the robberies affected an interstate, if illicit, commercial operation. But the stipulation that some marijuana has traveled interstate leaves open the possibility that the marijuana targeted in any particular robbery may have been grown, processed, and sold entirely within New York State, unless the government specifically proved otherwise. Accordingly, defendants argue, citing our decisions in United States v. Parkes, 497 F.3d 220 (2d Cir. 2007), and United States v. Needham, 604 F.3d 673 (2d Cir. 2010), that evidence that the defendants' robberies targeted marijuana dealers for their marijuana (or for the proceeds from its sale) is insufficient in itself to permit a jury to find the requisite nexus with interstate commerce under the Hobbs Act, even if "the general activity [of marijuana dealing], taken in toto, has such an effect." Needham, 604 F.3d at 684.

         But the Needham case, on which defendants primarily rely, has been abrogated by the Supreme Court's recent decision in Taylor, which held that where the government proves that a defendant robbed or attempted to rob a marijuana dealer of marijuana or proceeds from its sale, the interstate commerce element of the Hobbs Act is satisfied. Taylor, 136 S.Ct. at 2077-78. Applying this new standard to the various Hobbs Act robbery convictions challenged by the defendants, we conclude that the evidence amply proved that the robberies in question affected interstate commerce within the meaning of the Hobbs Act.

         A. Applicable Law

         The Hobbs Act provides in relevant part that "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery . . . or attempts or conspires so to do . . . shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a). In a Hobbs Act prosecution, "it is well established that the burden of proving a nexus to interstate commerce is minimal." United States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002). But the Act still requires proof beyond a reasonable doubt of an effect on interstate commerce. 18 U.S.C. § 1951(a) (penalizing anyone who, inter alia, "in any way or degree . . . affects commerce . . . by robbery").

         Exactly how much of an effect on interstate commerce is required is a vexing issue. On the one hand, our cases are replete with statements that the effect on interstate commerce need only be "slight, subtle or even potential, " United States v. Perrotta, 313 F.3d 33, 36 (2d Cir. 2002) (internal quotation marks omitted). Further, the post-New Deal standard for congressional regulatory jurisdiction under the commerce clause has been expansive. See, e.g., Wickard v. Filburn, 317 U.S. 111, 128-29 (1942). While the Supreme Court has in recent years attempted to draw some limits to that power, see, e.g., United States v. Lopez, 514 U.S. 549 (1995), the Court has specifically upheld expansive congressional authority over controlled substances. Most notably, because Congress has undertaken comprehensive regulation of controlled substances, based on a finding that the traffic in such substances, in the aggregate, has significant effects on interstate commerce, the Court has upheld federal prohibitions on even the personal possession or cultivation of small amounts of marijuana. Gonzales v. Raich, 545 U.S. 1 (2005).

         As regards the interaction between this expansive federal interstate commerce jurisdiction over controlled substances and the Hobbs Act, this Circuit has followed a somewhat meandering course. We concluded in 2002 that evidence that a defendant believed he was robbing the "proceeds of a drug deal" constituted "sufficient evidence to support Hobbs Act jurisdiction" as a matter of law, because "drug proceeds affect interstate commerce." United States v. Fabian, 312 F.3d 550, 555 (2d Cir. 2002). But in 2007, we held that even as to drug robberies, the jury was still required to make an independent finding of an effect on interstate commerce as part of its verdict. Parkes, 497 F.3d at 229-30. We reaffirmed the holding of Parkes in Needham, and went further, holding that to support such a jury finding, more specific proof of the effect of the particular robbery on interstate commerce is required: "In every [Hobbs Act] case, the government must prove that the alleged offense had some effect on interstate commerce - not simply that the general activity, taken in toto, has such an effect." Needham, 604 F.3d at 684. "The purpose of this requirement [was] to avoid transforming every robbery and extortion, which are quintessential state crimes, into federal offenses." Id. In other words, prior to the Supreme Court's recent decision in Taylor, the law in this Circuit was that while the evidence may be slight, there must be some evidence of an interstate nexus beyond merely proof that drugs or drug proceeds were the target of a robbery.

         Relying on that Circuit case law, defendants argue that the evidence of an effect on interstate commerce in the robberies in this case was insufficient, because there was no evidence that any marijuana involved in the robberies derived from interstate commerce - and indeed, in some of the robberies there was no evidence that marijuana or money attributable to the sale of marijuana was obtained at all.[1]

         The Supreme Court, however, has now clarified that "a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction." Taylor, 136 S.Ct. at 2080. In Taylor, petitioner Taylor was indicted on two counts of Hobbs Act robbery for his participation in two home invasions targeting marijuana dealers for their marijuana and proceeds from its sale. Taylor argued that the government had not satisfied the commerce element of the Hobbs Act, because it had not shown "(1) that the particular drugs in question originated or were destined for sale out of State or (2) that the particular drug dealer targeted in the robbery operated an interstate business." Id.

         The Court rejected that argument, noting that Gonzalez v. Raich "reaffirmed 'Congress'[s] power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce.'" Id. (quoting Raich, 545 U.S. at 17). The Court described its holding in Taylor as "straightforward and dictated by our precedent, " id. at 2077, stating that its conclusion

requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act. The Hobbs Act criminalizes robberies affecting "commerce over which the United States has jurisdiction." [18 U.S.C.] § 1951(b)(3). Under Raich, the market for marijuana, including its intrastate aspects, is "commerce over which the United States has jurisdiction." It therefore follows as a simple matter of logic that a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction.

Id. at 2080. The Supreme Court thus held, in short, that where a robber attempts to steal marijuana or marijuana proceeds from a marijuana dealer, proof of such an attempt in itself supports the conclusion that the robber attempted to affect interstate commerce, and the robber is therefore convictable under the Hobbs Act. See id.

         Applying Taylor, we hold that the evidence was sufficient to prove the interstate commerce element of the Hobbs Act with respect to each of the challenged robberies, because in each instance, the target was a marijuana dealer's marijuana or ...


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