19-1585 United States v. Brooks 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 TO 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, 40 Foley Square, in the City of New York, on the 23rd day of September, two thousand twenty.
PRESENT: RICHARD J. SULLIVAN, MICHAEL H. PARK, WILLIAM J. NARDINI. Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 19-1585
JOHN BROOKS,
Defendant-Appellant.
------------------------------------------------------------------
FOR APPELLANT: BENJAMIN W. HILL, Capezza Hill, LLP, Albany, NY. FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY.
Appeal from judgment of the United States District Court for the Northern
District of New York (Gary L. Sharpe and Mae A. D’Agostino, Judges).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-Appellant John L. Brooks appeals from his conviction for
evidence tampering, in violation of 18 U.S.C. § 1512(c)(1), following a four-day jury
trial. 1 On appeal, Brooks contends that (1) there was insufficient evidence
supporting his conviction, (2) the district court deprived him of the right to a fair
trial by admitting evidence about grand jury proceedings that occurred after the
alleged evidence tampering, (3) the government constructively amended the
indictment, and (4) various statements and evidence should have been
suppressed. We assume the parties’ familiarity with the underlying facts, the
1 Judge Sharpe decided Brooks’s motions to dismiss the indictment and to suppress evidence. Judge D’Agostino presided at trial and sentencing, and decided Brooks’s pre-trial motion to exclude evidence and post-trial motions.
2 record of prior proceedings, and the issues on appeal, to which we refer only as
necessary to explain our decision.
I. Sufficiency of the Evidence
We review Brooks’s preserved sufficiency claim de novo. See United States v.
Pierce, 785 F.3d 832, 837 (2d Cir. 2015). A defendant challenging the sufficiency of
the evidence bears “a very heavy burden,” United States v. Desena, 287 F.3d 170,
177 (2d Cir. 2002), as we must uphold the jury’s verdict so long as “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). Brooks fails to meet
this high standard.
Section 1512 makes it illegal to “corruptly” “conceal[]” or attempt to conceal
an “object” with the “intent to impair the object’s integrity or availability for use
in an official proceeding.” 18 U.S.C. § 1512(c)(1). A “proceeding before . . . a
Federal grand jury” is an “official proceeding.” Id. § 1515(a)(1)(A). To prove a
violation of section 1512, “the government must show that there was a nexus
between the defendant’s conduct and the pending, or foreseeable, official
proceeding.” United States v. Pugh, 945 F.3d 9, 21 (2d Cir. 2019) (internal quotation
marks omitted).
3 Brooks contends that there was insufficient evidence of a nexus between his
acts and the two official proceedings at issue – two future grand jury investigations
– since, at most, he “knew his actions could potentially affect an ongoing
investigation.” Brooks’s Br. at 14. But it is well established that a defendant need
not know about a specific grand jury investigation for one to be foreseeable. See
United States v. Binday, 804 F.3d 558, 590–91 (2d Cir. 2015). Rather, a grand jury
proceeding is foreseeable if “the defendant was aware ‘that he was the target of an
investigation.’” Id. at 590 (quoting United States v. Persico, 645 F.3d 85, 108 (2d Cir.
2011)). 2
Here, there was more than sufficient evidence for the jury to conclude that
Brooks knew that his actions were likely to affect an ongoing investigation. Brooks
bought 13 guns at a gun show in Akron, Ohio for Marcel Hooks (“Marcel”), and
learned shortly thereafter that Marcel would take the guns to New York. [App’x
898] He knew that purchasing the guns for Marcel was illegal under federal law
at the time he did it, since he completed a form falsely attesting that he was the
2Brooks seems to overlook that foreseeability is the touchstone here: Showing that a defendant knew he was a target of an investigation is just one way to prove foreseeability – but it is by no means a required showing. To hold otherwise would inject a degree of formalism neither called for by the statute nor consistent with our precedent. Brooks’s suggestion that we define “target” as it is defined in the Department of Justice’s Justice Manual would, if adopted, only worsen that problem. See U.S. Dep’t of Justice, Justice Manual, tit. 9, ch. 9-11.151.
4 “actual transferee/buyer” of the guns, which specifically warned him that a false
attestation that one is the “transferee/buyer is a crime punishable as a felony under
Federal law.” App’x 744–45, 750–51, 757–58, 760–61. And, as in Binday, Brooks
knew that officials were investigating that straw purchasing scheme “in which he
participated and about which he possessed incriminating [evidence].” 804 F.3d at
591. The evidence showed that Marzette Hooks, with whom Brooks had also
colluded to buy the guns, called Brooks to inform him that the stash house in
Albany, New York where one of the guns was stored had been searched, and
warned Brooks that he might have to “pay a fine” and “appear in court.” App’x
866. Not long after, another member of the colluding team attended a proffer
session, where an investigator introduced himself as an ATF agent and another
ATF officer explained “the details of what we had learned from our investigation.”
App’x 437–38. Later that same day, Marcel told Brooks to “come get [the guns]
now” because “the heat was on.” App’x 878. Brooks did so, believing that the
men in New York were being surveilled by law enforcement. He then returned to
Ohio with the guns, which enabled him to falsely assert that the firearms had never
left his possession and that the forms he completed at the time of purchase were
accurate.
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19-1585 United States v. Brooks 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 TO 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, 40 Foley Square, in the City of New York, on the 23rd day of September, two thousand twenty.
PRESENT: RICHARD J. SULLIVAN, MICHAEL H. PARK, WILLIAM J. NARDINI. Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 19-1585
JOHN BROOKS,
Defendant-Appellant.
------------------------------------------------------------------
FOR APPELLANT: BENJAMIN W. HILL, Capezza Hill, LLP, Albany, NY. FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY.
Appeal from judgment of the United States District Court for the Northern
District of New York (Gary L. Sharpe and Mae A. D’Agostino, Judges).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-Appellant John L. Brooks appeals from his conviction for
evidence tampering, in violation of 18 U.S.C. § 1512(c)(1), following a four-day jury
trial. 1 On appeal, Brooks contends that (1) there was insufficient evidence
supporting his conviction, (2) the district court deprived him of the right to a fair
trial by admitting evidence about grand jury proceedings that occurred after the
alleged evidence tampering, (3) the government constructively amended the
indictment, and (4) various statements and evidence should have been
suppressed. We assume the parties’ familiarity with the underlying facts, the
1 Judge Sharpe decided Brooks’s motions to dismiss the indictment and to suppress evidence. Judge D’Agostino presided at trial and sentencing, and decided Brooks’s pre-trial motion to exclude evidence and post-trial motions.
2 record of prior proceedings, and the issues on appeal, to which we refer only as
necessary to explain our decision.
I. Sufficiency of the Evidence
We review Brooks’s preserved sufficiency claim de novo. See United States v.
Pierce, 785 F.3d 832, 837 (2d Cir. 2015). A defendant challenging the sufficiency of
the evidence bears “a very heavy burden,” United States v. Desena, 287 F.3d 170,
177 (2d Cir. 2002), as we must uphold the jury’s verdict so long as “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). Brooks fails to meet
this high standard.
Section 1512 makes it illegal to “corruptly” “conceal[]” or attempt to conceal
an “object” with the “intent to impair the object’s integrity or availability for use
in an official proceeding.” 18 U.S.C. § 1512(c)(1). A “proceeding before . . . a
Federal grand jury” is an “official proceeding.” Id. § 1515(a)(1)(A). To prove a
violation of section 1512, “the government must show that there was a nexus
between the defendant’s conduct and the pending, or foreseeable, official
proceeding.” United States v. Pugh, 945 F.3d 9, 21 (2d Cir. 2019) (internal quotation
marks omitted).
3 Brooks contends that there was insufficient evidence of a nexus between his
acts and the two official proceedings at issue – two future grand jury investigations
– since, at most, he “knew his actions could potentially affect an ongoing
investigation.” Brooks’s Br. at 14. But it is well established that a defendant need
not know about a specific grand jury investigation for one to be foreseeable. See
United States v. Binday, 804 F.3d 558, 590–91 (2d Cir. 2015). Rather, a grand jury
proceeding is foreseeable if “the defendant was aware ‘that he was the target of an
investigation.’” Id. at 590 (quoting United States v. Persico, 645 F.3d 85, 108 (2d Cir.
2011)). 2
Here, there was more than sufficient evidence for the jury to conclude that
Brooks knew that his actions were likely to affect an ongoing investigation. Brooks
bought 13 guns at a gun show in Akron, Ohio for Marcel Hooks (“Marcel”), and
learned shortly thereafter that Marcel would take the guns to New York. [App’x
898] He knew that purchasing the guns for Marcel was illegal under federal law
at the time he did it, since he completed a form falsely attesting that he was the
2Brooks seems to overlook that foreseeability is the touchstone here: Showing that a defendant knew he was a target of an investigation is just one way to prove foreseeability – but it is by no means a required showing. To hold otherwise would inject a degree of formalism neither called for by the statute nor consistent with our precedent. Brooks’s suggestion that we define “target” as it is defined in the Department of Justice’s Justice Manual would, if adopted, only worsen that problem. See U.S. Dep’t of Justice, Justice Manual, tit. 9, ch. 9-11.151.
4 “actual transferee/buyer” of the guns, which specifically warned him that a false
attestation that one is the “transferee/buyer is a crime punishable as a felony under
Federal law.” App’x 744–45, 750–51, 757–58, 760–61. And, as in Binday, Brooks
knew that officials were investigating that straw purchasing scheme “in which he
participated and about which he possessed incriminating [evidence].” 804 F.3d at
591. The evidence showed that Marzette Hooks, with whom Brooks had also
colluded to buy the guns, called Brooks to inform him that the stash house in
Albany, New York where one of the guns was stored had been searched, and
warned Brooks that he might have to “pay a fine” and “appear in court.” App’x
866. Not long after, another member of the colluding team attended a proffer
session, where an investigator introduced himself as an ATF agent and another
ATF officer explained “the details of what we had learned from our investigation.”
App’x 437–38. Later that same day, Marcel told Brooks to “come get [the guns]
now” because “the heat was on.” App’x 878. Brooks did so, believing that the
men in New York were being surveilled by law enforcement. He then returned to
Ohio with the guns, which enabled him to falsely assert that the firearms had never
left his possession and that the forms he completed at the time of purchase were
accurate. Indeed, when confronted by ATF agents in Ohio, Brooks repeatedly lied
5 about the scheme and the fact that he had sold the firearms to Marcel and others
so that they could take them to New York.
On this record, the jury was surely justified in finding that Brooks possessed
the requisite wrongful intent under section 1512.
II. Evidence Regarding Subsequent Grand Juries
Brooks next contends that the district court deprived him of his right to a
fair trial by admitting prejudicial evidence regarding two grand juries, neither of
which was convened until after he concealed the guns. Under Federal Rule of
Evidence 403, a court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.
There was no “clear abuse of discretion” – nothing “arbitrary and irrational”
– in the district court’s decision to admit evidence about the ATF investigations
and the two grand jury proceedings. United States v. Gupta, 747 F.3d 111, 132 (2d
Cir. 2014) (internal quotation marks omitted). While not determinative, the fact of
a grand jury proceeding is logically related to whether such a proceeding was
foreseeable. Moreover, the government was required to show that the “official
proceeding” was federal in character, see 18 U.S.C. § 1515(a)(1)(A), and was
6 permitted to rebut the defense’s argument that no federal proceeding was
foreseeable because the only relevant investigation was entirely local in character.
We also reject Brooks’s contention that he was forced to defend the Ohio
charge on the merits. The government referenced only the existence of the Ohio
grand jury – not that it had indicted Brooks – and the district court made clear that
Brooks was “not on trial for what he did in Ohio” but “only . . . the crime charged
in the indictment.” App’x 305. Juries are presumed to follow their instructions,
see United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002), and we have no reason
to find that they did not do so here.
III. Constructive Amendment
Brooks also urges us to find that the government constructively amended
his indictment during the trial. “A constructive amendment occurs when the
charge upon which the defendant is tried differs significantly from the charge
upon which the grand jury voted,” either “where (1) an additional element,
sufficient for conviction, is added, or (2) an element essential to the crime charged
is altered.” United States v. Dove, 884 F.3d 138, 146 (2d Cir. 2018) (internal citations
omitted). In assessing such challenges, we have “consistently permitted
significant flexibility in proof, provided that the defendant was given notice of the
7 core of criminality to be proven at trial.” United States v. Patino, 962 F.2d 263, 266
(2d Cir. 1992) (internal quotation marks omitted).
Brooks was on clear notice of what would be proven. The indictment
charged that, “[o]n or about April 29, 2017, in Albany County . . . and elsewhere,
. . . [Brooks] attempt[ed] to corruptly conceal . . . one or more firearms he
purchased on March 18 and 19, 2017” with the “intent to impair the [guns’]
availability for use in an official proceeding.” 17-cr-402, Doc. No. 1. The
government did not add or alter an essential element of the charge by referring to
the grand jury proceeding in Ohio, since the indictment was not limited to New
York. In fact, the government notified Brooks in its pretrial submissions that the
“official proceedings” it would prove were grand jury investigations in both Ohio
and New York. Nor did the evidence regarding the straw purchases somehow
change the “core of criminality”; Brooks was charged with concealing those very
guns, so evidence of that underlying scheme was directly relevant to his
prosecution under section 1512. Finally, it cannot be said that the government’s
arguments to the jury about Brooks lying to investigators altered the government’s
theory as to the “core of criminality” at issue here. We therefore reject Brooks’s
constructive amendment argument in its totality.
8 IV. Suppression of Evidence
Brooks next challenges the district court’s denial of his motion to suppress
the statements he made during his interview with investigators on May 3, 2017,
and the firearms they seized that day from his home.
Statements made during a custodial interrogation are generally
inadmissible unless the defendant receives certain procedural protections.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). Since it is undisputed that Brooks did
not receive a Miranda warning before his May 3, 2017 statements, we consider only
whether he was in “custody” for Miranda purposes – which requires that we look
to “all the surrounding circumstances” to decide if “a reasonable person”
(1) “would have thought he was [not] free to leave the police encounter at issue”
and (2) “would have understood his freedom of action to have been curtailed to a
degree associated with formal arrest.” United States v. Faux, 828 F.3d 130, 135 (2d
Cir. 2016) (internal quotation marks omitted).
We agree with the district court that this was not a custodial interview.
After the ATF agents contacted Brooks, he elected to meet with them, chose the
meeting location, met them in a public parking lot, and agreed to talk to them in a
rental car. The investigators’ weapons were not visible, and the car doors were
9 not locked. And, as the district court found, the interview was conducted in a
calm, professional manner. Under these circumstances, a reasonable person
would have no reason to believe that they were not free to leave. 3
We also agree with the district court that the search of Brooks’s home was
voluntary. “The ultimate question presented is whether the officer had a
reasonable basis for believing that there had been consent to the search.” United
States v. Isiofia, 370 F.3d 226, 231 (2d Cir. 2004) (internal quotation marks and
brackets omitted). Brooks himself asked the officers if they wanted to see the
firearms at his house and welcomed them inside, and the only “restraint” that the
officers imposed on Brooks – requesting that he not handle the firearms himself –
did not somehow undermine the voluntariness of that search.
We have considered Defendant’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
3 In light of our conclusion, we reject Brooks’s argument that a later Miranda warning was “ineffective because the prior May 3, 2017 statements were obtained in violation of Miranda and thereby tainted the second interrogation.” Brooks’s Br. 35–36.