United States v. Babilonia

854 F.3d 163, 2017 WL 1371397, 2017 U.S. App. LEXIS 6515
Court of Appeals for the Second Circuit·Decided April 17, 2017·No. Docket Nos. 14-3739-cr, 15-651-cr, 15-1057-cr·Published·Cited by 40 cases

Opinion

CHIN, Circuit Judge:

Defendant-appellant Roger Key appeals from a judgment of the district court (Stein, J.) convicting him of, inter alia, conspiracy to commit murder-for-hire and several drug- and firearm-related offenses. Key principally challenges the sufficiency of the evidence supporting his conviction for participating in the murder-for-hire conspiracy targeting Terry Harrison and the admission at trial of evidence seized during an August 6, 2012 car stop and search (the “Car Stop”) and a September 19, 2012 search of Key’s apartment (the “Apartment Search”). Because we conclude that the evidence offered at trial to prove the pecuniary value element of Key’s conviction for conspiracy to commit murder-for-hire was sufficient to support the guilty verdict and that the challenged searches and seizures did not violate the Fourth Amendment, we affirm the judgment of the district court.1

BACKGROUND

I. The Facts

Key’s appeal relates to charges arising out of his involvement in a Bronx- and Manhattan-based drug trafficking operation and the murder-for-hire plots targeting Terry Harrison, a rival drug dealer, and Matthew Allen, the abusive boyfriend of defendant-appellant Aisha Babilonia.2 The following facts, generally undisputed, are summarized from the testimony at the suppression hearing, the district court’s factual findings following the suppression hearing, and the transcript of the trial below. With respect to the district court’s factual findings, we review for clear error. United States v. Hussain, 835 F.3d 307, 313 (2d Cir. 2016). With respect to the evidence presented at trial, we construe the facts “in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor.” United States v. Rosemond, 841 F.3d 95, 99-100 (2d Cir. 2016).

A. Background

In 2010, Key was released from prison after serving several years on state manslaughter and federal narcotics convictions. Upon his release, and until his arrest in connection with the instant case in September 2012, Key distributed millions of dollars’ worth of cocaine to drug organizations in the Bronx and upper Manhattan. One of Key’s biggest customers was defendant-appellant Ruben Davis, who led a Harlem-based drug trafficking organization. Key’s distribution operation used multiple stash houses around the Bronx and upper Manhattan and guns to protect their territory and attack rival dealers. Key also oversaw a group of young men who sold crack cocaine for him around the apartment building located at 321 East 153rd Street (“321”).

B. The Murder of Terry Harrison

Terry Harrison, also known as “T-Money,” was another Bronx-based drug dealer and a rival of Key. Key and his associates were involved in an ongoing, violent dispute with Harrison and a local street gang, “GFC,” that sold drugs for him.

In the summer of 2010, Matthew Davis (“Matt”), an associate of Key, approached [169] Kevin Wilson about committing a murder.3 Wilson and Matt knew each other, and Wilson was aware that Matt had recently returned home from prison. While Wilson was leaving his child’s mother’s house, a minivan pulled up, with Matt inside. Matt told Wilson to get into the van. Wilson did so; inside were Matt, the driver, and one or two people in the back.

After exchanging pleasantries, Matt told Wilson that he needed Wilson to “dress someone up” for him. Tr. 907. Matt explained that he needed Wilson to kill someone for him, “like now.” Tr. 907. One of the passengers in the back put a gun to Wilson’s head, while Matt instructed Wilson that “you gonna do it or we gonna kill you.” Tr. 907. Wilson agreed to commit the murder.4 He gave Matt his phone number, and Matt said he would call Wilson. Wilson did not call the police or ask anyone else for help after his conversation with Matt.

Matt called Wilson the next day and then went to meet him. They took a cab to 321, which Matt referred to as “Headquarters.” There, Matt introduced Wilson to Kyle Harris, or “Beans,” another individual who sold drugs for Key. After Beans left, Matt introduced Wilson to Keith Burges, or “Cuzzo,” and the three of them walked into the lobby of 321. Beans returned to the lobby and retrieved two handguns from a staircase. He banged on a mailbox with his fist to open it and put the guns inside.

Wilson spent three or four days with Matt and his associates at 321. During that time, Matt told Wilson that there had been a change of plans; Cuzzo would be the primary shooter, and Wilson would be the backup. Wilson understood this to mean he would be responsible for shooting at anyone who shot at Cuzzo. At no point prior to the murder did Wilson know the target’s identity; he learned Harrison’s name after he was arrested.

Wilson never asked Matt why Matt wanted him to kill someone, who the target was, or what he would get in exchange. Wilson hoped to get money out of his agreement to kill Harrison, but no one discussed a specific dollar amount for Wilson’s compensation prior to the murder. He hoped to become part of a team, with “people by [his] side.” Tr. 919. He further testified that “Matt was basically telling me they was going to hold me down, that I was going to be good.” Tr. 918. Wilson understood this to mean that Matt and his group would “hold me down, give me money, look out for me, watch over me,” and that this meant he would be “accepted with them.” Tr. 918.

A few days prior to the murder, Beans gave Wilson and Cuzzo the guns from the mailbox in the lobby of 321. Wilson received a silver .380 caliber gun and Cuzzo a silver revolver. Wilson and Cuzzo left the building and walked through the housing projects on Courtlandt Avenue. Wilson was carrying the gun in his waistband. Wilson did not know whom they were looking for, so he. just followed Cuzzo. He understood that they were looking for the target of the murder plot. As they walked, a police car drove down the opposite side of the block. The car stopped and the officers jumped out. Wilson and Cuzzo, still carrying the guns from Beans, ran as the officers chased them. At some point, Wilson jumped over a gate and the gun fell to-the ground. He continued to run. He had lost Cuzzo at this point. After waiting a couple of minutes, he returned to Headquarters and told the group, which included Joseph Tarean, or “T,” and a man [170] known as “E-Wop,” that he had dropped the gun.

Matt called Wilson and told him that he would have to pay for the gun if he did not find it. Wilson left the building and ran into T, who told him that the area was clear of police activity. Wilson retraced his steps and found the gun buried in the grass. He picked it up and returned to 321, where Matt, T, Beans, and others were hanging out. Key arrived and began talking to Matt, who then introduced Key to Wilson.

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United States v. Babilonia, 854 F.3d 163, 2017 WL 1371397, 2017 U.S. App. LEXIS 6515 (2d Cir. 2017).

854 F.3d 163 (United States v. Babilonia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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