United States v. Blackshear

313 F. App'x 338
CourtCourt of Appeals for the Second Circuit
DecidedMarch 17, 2008
DocketNos. 06-1267-cr(L), 06-3514-cr(CON), 06-3945-cr(CON)
StatusPublished

This text of 313 F. App'x 338 (United States v. Blackshear) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Blackshear, 313 F. App'x 338 (2d Cir. 2008).

Opinion

[341]*341SUMMARY ORDER

Defendant-Appellants Lindsey Ann McDonnell, William Cobb, and Dupree Harris appeal from judgments of the United States District Court for the Eastern District of New York (Ross, J.), entered on March 17, 2006, August 18, 2006, and August 2, 2006, respectively. McDonnell was convicted of two counts of conspiracy to distribute at least 50 grams of crack cocaine (“crack”) in violation of 21 U.S.C. § 846. Cobb was convicted of conspiracy to distribute at least 50 grams of crack in violation of 21 U.S.C. § 846 and distributing an unspecified amount of crack in violation of 21 U.S.C. § 841(a). Hams was convicted of conspiracy to distribute at least 50 grams of crack in violation of 21 U.S.C. § 846, distributing an unspecified amount of crack in violation of 21 U.S.C. § 841(a), and brandishing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(l)(A)(ii). Familiarity by the parties is assumed as to the facts, the procedural context, and the specification of appellate issues.

1. Appellants Motions for Mistrial

Appellants argue that the district court should have ordered a mistrial based on three pieces of allegedly prejudicial testimony: (1) Peter Helm’s statements that Cobb told him that Harris was “his hit man” and that Harris had “killed two”; (2) Darren Barrett’s statement that the government told him that if he was “in fear for [his] life,” he would not “be just blown off’; and (3) Gary Cleveland’s statement that he had “federal agents that protect” him.

Helm’s statements were not grounds for a mistrial, since they were admissible statements made in furtherance of the conspiracy. The record shows that, at the time the statements were made, Helm was buying distribution level amounts of crack from and for Harris and Cobb, demonstrating that he was a member of the conspiracy. Helm told the court that he was positive that he heard these statements directly from Cobb, and there was no basis for concluding that the statement was a reference to Harris’s previous murder indictment.

Barrett’s and Cleveland’s statements were not so prejudicial as to be grounds for a mistrial. Moreover, a curative instruction (drafted by defense counsel) was given following Barrett’s statement and the court offered to give a curative instruction after Cleveland’s statement. The two statements were, at most, ambiguous and veiled references to some federal protection, mentioning no particular defendant and no specific threat. Neither was as severe as others made where mistrials were also held to be inappropriate. See United States v. Fermin, 32 F.3d 674, 677 (2d Cir.1994) (calling witness’s casual mention of the defendants’ “criminal histories” “inadver tent” and “ambiguous”), overruled on other grounds by Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); United States v. Rivera, 971 F.2d 876, 888 (2d Cir.1992) (admitting witness’s cooperation agreement into evidence without redacting a reference to the federal witness protection program caused “no reasonable possibility of prejudice”).

2. Lindsey McDonnell

A. Sufficiency of the Evidence

Questioning the credibility of the government’s witnesses, McDonnell argues that the Government failed to prove her guilt beyond a reasonable doubt. A defendant challenging the sufficiency of the evidence supporting a conviction bears a [342]*342“heavy burden.” United States v. Diaz, 176 F.3d 52, 89 (2d Cir.1999); United States v. Oguns, 921 F.2d 442, 449 (2d Cir.1990). Deference to a jury’s determination of credibility is at the heart of appellate review for sufficiency. See United States v. Roman, 870 F.2d 65, 71 (2d Cir.1989) (“[W]e mil not disturb the jury’s findings with respect to the witnesses’ credibility ... [since] the proper place for a challenge to a witness’s credibility is in cross-examination and in subsequent argument to the jury, not in an appellate brief.” (internal quotation omitted)). Moreover, the fact that some of the testimony came from . accomplices is not relevant, since “[w]hether or not there is corroboration for an accomplice’s testimony, the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal.” United States v. Parker, 903 F.2d 91, 97 (2d Cir.1990). It is clear then, that McDonnell’s credibility argument must fail.

B. Severance

McDonnell also argues that the district court erred in denying her motion for severance under Federal Rule of Criminal Procedure 14, arguing that she would suffer from so-called “spillover prejudice” from evidence introduced against her alleged co-conspirators Cobb and Harris.

Motions for severance are committed to the discretion of the trial court and “the sound exercise of that discretion is virtually unreviewable.” United States v. Amato, 15 F.3d 230, 237 (2d Cir.1994) (quoting United States v. Arocena, 778 F.2d 943, 949 (2d Cir.1985)). A reversal is required only where the defendant suffered from a “prejudice so substantial as to amount to a ‘miscarriage of justice.’ ” United States v. Cervone, 907 F.2d 332, 341 (2d Cir.1990) (citation omitted). We have held that the “fact that testimony against a codefendant may be harmful is not a ground for severance if that testimony would also be admissible against the moving defendant tried separately.” United States v. Rosa, 11 F.3d 315, 341 (2d Cir.1993). This rule makes severance rare in conspiracy cases where the “government'[is] •.. entitled to show the entire range of evidence of the conspiracy against each appellant,” even where “one appellant’s role in the conspiracy may have been smaller or less central than that of certain other co-conspirators.” United, States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir.1987).

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Bluebook (online)
313 F. App'x 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blackshear-ca2-2008.