22-639 United States v. Davis
United States Court of Appeals For the Second Circuit
August Term 2023
Submitted: February 5, 2024 Decided: November 26, 2024
No. 22-639
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW DAVIS, a.k.a. Steven Williams, a.k.a. Andrew Carter, a.k.a. Cordel Freckleton, a.k.a. Jeremy Belk, a.k.a. Big Man,
Defendant-Appellant. ∗
Appeal from the United States District Court for the District of Connecticut No. 17-cr-26, Alvin W. Thompson, Judge.
Before: LEVAL, CARNEY, and SULLIVAN, Circuit Judges.
Andrew Davis appeals from his conviction after trial for conspiracy to distribute and to possess with intent to distribute marijuana; possession with intent to distribute marijuana; possession of firearms in furtherance of a drug
∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. trafficking crime; and conspiracy to commit money laundering. On appeal, Davis – through counsel – contends that the evidence presented at trial was insufficient to support his conviction for conspiracy to commit money laundering. Separately, Davis raises ten additional arguments across two supplemental briefs filed pro se. We conclude that the evidence at trial was sufficient to support Davis’s conviction for conspiracy to commit money laundering, and we further conclude that Davis’s pro se arguments either lack merit, have been forfeited, or are premature. Accordingly, we affirm the district court’s judgment.
Judge Sullivan concurs in a separate opinion.
AFFIRMED.
Jamesa J. Drake, Drake Law, LLC, Auburn, ME, Andrew Davis, pro se, Ayer, MA, for Defendant- Appellant.
Jessica Casey, Sandra S. Glover, Assistant United States Attorneys, for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee.
PER CURIAM:
Andrew Davis appeals from the March 18, 2022 judgment of the district
court (Thompson, J.) following his conviction at trial for conspiracy to distribute
and to possess with intent to distribute 100 kilograms or more of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846; possession with intent
to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C); possession of firearms in furtherance of a drug trafficking
2 crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), (c)(2); and conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (h). The district
court sentenced Davis to 295 months’ imprisonment. On appeal, Davis – through
counsel – contends that the evidence presented at trial was insufficient to support
his conviction for conspiracy to commit money laundering. Separately, Davis
raises ten additional arguments across two supplemental briefs filed pro se. We
conclude that the evidence at trial was sufficient to support Davis’s conviction for
conspiracy to commit money laundering, and we further conclude that Davis’s pro
se arguments either lack merit, have been forfeited, or are premature.
Accordingly, we affirm the district court’s judgment.
I. BACKGROUND
Working with a team of co-conspirators, Andrew Davis trafficked large
quantities of marijuana for nearly a decade in Bridgeport, Connecticut. He had a
consistent method: travel to California to buy and package marijuana, ship it by
FedEx to various addresses in Bridgeport, and then have his inside man at FedEx
intercept the packages before delivery. Davis sold the trafficked marijuana in
Bridgeport and out-of-state, often by the pound and sometimes in quantities as
large as forty or fifty pounds. When he was finally arrested in 2017, he was found
with over 136 pounds of marijuana, numerous handguns, and approximately
3 $412,000 in cash across his multiple apartments and his storage unit. One of his
co-conspirators immediately began cooperating with the government, and Davis
was convicted at trial on four counts of drug, firearms, and money laundering
offenses. The district court sentenced him to 295 months’ imprisonment.
On appeal, Davis contends that the evidence presented at trial was
insufficient to support his conviction for conspiracy to commit money laundering.
Davis has also submitted supplemental pro se briefs in which he argues that: (1)
his counsel was ineffective in not challenging the conspiracy charges based on the
applicable statute of limitations; (2) his counsel was ineffective in failing to argue
that his drug offenses were not “drug trafficking crimes” as defined in 18 U.S.C.
§ 924(c)(2); (3) the evidence was insufficient to support his conviction for
conspiracy to launder money (for a different reason than the one given in his
counseled brief); (4) the evidence was insufficient to support his conviction for
conspiracy to distribute and to possess with intent to distribute marijuana; (5) his
drug convictions were duplicative in violation of the Double Jeopardy Clause; and
(6) the district court’s imposition of a four-level enhancement under the United
States Sentencing Guidelines for his role in the offense was error. In his pro se
reply brief, Davis adds still more arguments, including that: (7) a cooperator’s
4 testimony at trial was fabricated and coached; (8) paying for necessities is not
money laundering; (9) he was not a large-scale drug dealer; and (10) his counsel
provided ineffective assistance by failing to show him the presentence report until
shortly before sentencing.
II. DISCUSSION
A. Davis’s conviction for conspiracy to commit money laundering was supported by sufficient evidence.
“We review preserved claims of insufficiency of the evidence de novo.”
United States v. Capers, 20 F.4th 105, 113 (2d Cir. 2021) (internal quotation marks
omitted). 1 Although our review is de novo, “we must view the evidence in the
light most favorable to the government . . . credit[ing] every inference that the jury
might have drawn in favor of the government.” United States v. Atilla, 966 F.3d
118, 128 (2d Cir. 2020) (internal quotation marks omitted). We will uphold the
jury’s verdict “if any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted).
Upon reviewing the record, we conclude that sufficient evidence supported
Davis’s conviction for conspiracy to commit money laundering.
1 At trial, Davis moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which the district court denied. He therefore preserved his insufficiency claim.
5 Section 1956(h) prohibits conspiracy to commit money laundering as
defined in section 1956(a). Section 1956(a)(1) provides that a person is guilty of
money laundering if he (1) “conducts or attempts to conduct . . . a financial
transaction,” (2) “which in fact involves the proceeds of specified unlawful
activity,” (3) while “knowing that the property involved in [the] financial
transaction represents the proceeds of some form of unlawful activity,” (4) “with
the intent to promote the carrying on of specified unlawful activity.” 18 U.S.C.
§ 1956(a)(1) (emphasis added).
Davis focuses on the second element, arguing that the government failed to
introduce evidence sufficient to allow a reasonable jury to conclude that he
conspired to conduct a financial transaction that “in fact involve[d] the proceeds
of specified unlawful activity.” Id. Davis contends that the government’s
evidence merely showed that his girlfriend used large amounts of cash to purchase
vehicles, some of which were then employed in his drug trafficking operations.
He argues that the government did not prove that the cash was in fact proceeds
from his drug sales, and that the government’s reliance on Davis’s and his
girlfriend’s lack of legitimate income improperly shifted the burden of proof to
6 them to establish that the cash was derived from legitimate commercial activity.
We are not persuaded.
At trial, the jury heard that Davis sold marijuana in bulk for approximately
$1,000 per pound and that searches of his storage unit and apartments turned up
approximately 136 pounds of marijuana and approximately $412,000 in cash. The
jury also heard testimony from a cooperating witness that Davis was not
employed and did not have the necessary credit or income history to rent the
apartment in which he lived. The evidence at trial showed that Davis’s girlfriend
earned only eleven dollars per hour at her job and that her total quarterly wages
ranged from $0 to $3,908.75; despite these modest earnings, the evidence further
showed that she deposited cash totaling $59,129.50 into her bank account between
January 2014 and November 2016. Finally, the jury heard that Davis’s girlfriend
used thousands of dollars of cash to make down payments on cars that Davis used
in his drug trafficking operations, and that the subsequent loan payments on those
cars were made using money orders. The trial record included no evidence
whatsoever to rebut the obvious inference that the cash for those down payments
and money orders came from the proceeds of Davis’s drug trafficking operations.
7 While “the government is required to link the moneys in question to
specified unlawful activities,” we have expressly held that “this link can be made
through circumstantial evidence.” United States v. Gotti, 459 F.3d 296, 337 (2d Cir.
2006); see also United States v. Viserto, 596 F.2d 531, 536 (2d Cir. 1979) (“[P]roof of
the availability of cash by defendants with no legitimate occupation is permitted
as tending to show that it was derived from ill-gotten gains.”). Here, the
unrebutted circumstantial evidence was overwhelming. We conclude that a
reasonable jury could have found beyond a reasonable doubt that the transactions
in question “involve[d] the proceeds of specified unlawful activity,” 18 U.S.C.
§ 1956(a)(1), and that Davis conspired to commit money laundering in violation of
section 1956(h). The evidence was therefore sufficient to support his conviction
for that offense.
B. Davis’s pro se arguments likewise fail.
In addition to the argument in his counseled brief, Davis raises ten
arguments in pro se supplemental briefs. As discussed below, these arguments
are either meritless, premature, or forfeited.
8 1. Davis’s ineffective assistance of counsel claims are meritless or premature.
“When faced with a claim for ineffective assistance of counsel on direct
appeal, we may: (1) decline to hear the claim, permitting the appellant to raise
the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28
U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding;
or (3) decide the claim on the record before us.” United States v. Tarbell, 728 F.3d
122, 128 (2d Cir. 2013) (internal quotation marks omitted). We decide two of
Davis’s claims of ineffective assistance and decline to hear the third.
First, Davis contends that his counsel was ineffective in not challenging his
conspiracy charges as time barred. But it is well settled that “failure to make a
meritless argument does not amount to ineffective assistance.” United States v.
Regalado, 518 F.3d 143, 149 n.3 (2d Cir. 2008) (alterations accepted and internal
quotation marks omitted). Here, a statute of limitations defense would have been
meritless. A conspiracy is not complete, and the applicable statute of limitations
does not begin to run, “until the purposes of the conspiracy have been
accomplished or abandoned.” United States v. Eppolito, 543 F.3d 25, 47 (2d Cir.
2008) (internal quotation marks omitted); see Toussie v. United States, 397 U.S. 112,
115 (1970). Davis was indicted in 2017 for conspiracies running from 2008 to 2017,
9 and the applicable statute of limitations was five years. See 18 U.S.C. § 3282(a).
His conspiracy charges were therefore not time barred.
Equally meritless is Davis’s assertion that his counsel was ineffective in
failing to challenge his conviction for possession of firearms in furtherance of a
drug trafficking crime on the grounds that his drug offenses were not drug
trafficking crimes. See Regalado, 518 F.3d at 149 n.3. Conspiracy to distribute
marijuana and possession with intent to distribute marijuana are both felonies
punishable under the Controlled Substances Act, so they qualify as drug
trafficking crimes under section 924(c). See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C.
§ 924(c)(2). Davis’s attorney was not ineffective for failing to assert a baseless
claim.
We decline to consider Davis’s third claim – that his trial counsel provided
ineffective assistance by not showing him the presentence report until shortly
before sentencing – because the record is not developed on that issue. See Massaro
v. United States, 538 U.S. 500, 504 (2003) (noting that in most cases an ineffective
assistance claim is best considered in a section 2255 proceeding rather than on
direct appeal). We dismiss the claim without prejudice to its inclusion in a section
2255 petition. See Tarbell, 728 F.3d at 129.
10 2. The trial evidence was sufficient to support Davis’s conspiracy convictions.
Davis contends that the evidence at trial was insufficient to support his
conviction for conspiracy to commit money laundering because the cash from his
marijuana operations was not from a “specified unlawful activity.” 18 U.S.C.
§ 1956(a)(1). But specified unlawful activity is a defined term that includes
“dealing in a controlled substance or listed chemical,” including marijuana. Id.
§ 1961(1); see id. § 1956(c)(7)(A); 21 U.S.C. § 802(6); id. § 812(c), Schedule I(c)(10).
Davis’s assertion that the proceeds from his marijuana operations were not from a
“specified unlawful activity” is therefore contradicted by the statute.
Next, Davis contends that the evidence was insufficient to support his
conviction for conspiracy to distribute and to possess with intent to distribute
marijuana because the government’s proof of an agreement was based on
testimony by cooperating witness Paul Blake, which Davis claims was hearsay.
But Blake’s testimony that Davis agreed to sell certain quantities of marijuana was
not hearsay, as it involved Davis’s own statements made to Blake, was offered by
the government against Davis, and was therefore the statement of an opposing
party. See Fed. R. Evid. 801(d)(2). The law is clear that the testimony of a co-
11 conspirator, by itself, can be sufficient to support a conspiracy conviction. See
United States v. Parker, 903 F.2d 91, 97 (2d Cir. 1990).
3. Davis’s marijuana distribution convictions do not violate the Double Jeopardy Clause.
Davis asserts for the first time on appeal that his convictions for possession
with intent to distribute marijuana and conspiracy to distribute and to possess
with intent to distribute marijuana are duplicative and therefore violate the
Double Jeopardy Clause. But it is well settled that “a conspiracy to commit a
crime is a separate offense from the crime itself.” United States v. Felix, 503 U.S.
378, 391 (1992) (holding that conspiracy to manufacture methamphetamine was
not the “same offen[s]e” for purposes of the Double Jeopardy Clause as attempt to
manufacture methamphetamine); see United States v. Sessa, 125 F.3d 68, 71 (2d Cir.
1997) (“A conspiracy to commit a crime and the substantive crime itself are
different offenses because each requires an element that the other does not.”).
Davis’s argument that his conspiracy and substantive marijuana distribution
convictions violate the Double Jeopardy Clause is therefore baseless.
12 4. The district court did not commit plain error in applying a four-level enhancement for Davis’s role in the offense.
When calculating the applicable Sentencing Guidelines range for Davis, the
district court increased Davis’s offense level by four levels under section 3B1.1(a)
to account for his role as “an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). His
lawyer conceded at sentencing the existence of four co-conspirators, but Davis
argues that this enhancement was erroneous because he did not exercise control
over them. Davis raises this control argument for the first time on appeal, so we
review the district court’s application of the Guidelines for plain error. See United
States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009).
We have held that “[a] defendant may be subject to a four-level
enhancement [under section 3B1.1(a)] even if the defendant managed only one
other participant.” United States v. Mi Sun Cho, 713 F.3d 716, 722 (2d Cir. 2013).
Here, the district court was presented with ample evidence establishing that Davis
was the central figure in the drug trafficking operation, and that he managed, at
the very least, his co-conspirator girlfriend by directing her to purchase cars and
title them in her name. We see no error in the district court’s application of the
four-level enhancement for Davis’s role in the offense, much less the “clear or
13 obvious” error required under the plain error standard. United States v.
Villafuerte, 502 F.3d 204, 209 (2d Cir. 2007).
5. Davis’s new arguments in his reply brief are forfeited.
The additional arguments that Davis raises for the first time in his
supplemental reply brief are forfeited. See United States v. Yousef, 327 F.3d 56, 115
(2d Cir. 2003). In light of the fact that we regularly apply this forfeiture rule to
parties proceeding entirely pro se, we have no hesitation in applying it to Davis,
who also had the benefit of appointed counsel. See United States v. Karimu, 470 F.
App’x 45, 46 (2d Cir. 2012) (enforcing reply brief forfeiture rule against appellant
proceeding with hybrid representation).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
14 22-639 United States v. Davis
RICHARD J. SULLIVAN, Circuit Judge, concurring:
I write separately to address our Court’s longstanding practice of permitting
parties who are represented by counsel on appeal, as Davis is, to submit pro se
briefs in addition to their counseled briefs. We are in the minority among our
sister Circuits in allowing such so-called hybrid representation as a matter of
course, despite its tendency to “muddy[] the waters” and, in my view, divert
judicial resources. United States v. Hage, 74 F.4th 90, 94 (2d Cir. 2023) (chambers
opinion of Nardini, J.).
“The requirement of representation by trained counsel . . . tends to benefit
the appellant as well as the court.” Martinez v. Ct. of Appeal of Cal., Fourth App.
Dist., 528 U.S. 152, 163 (2000). An attorney is “an officer of the court, and, like the
court itself, an instrument or agency to advance the ends of justice.” In re Snyder,
472 U.S. 634, 644 (1985) (internal quotation marks omitted). Lawyers bring
“unique[] . . . skill and competence” to the decision of what arguments to press on
appeal, benefitting both their clients and the court. Ennis v. LeFevre, 560 F.2d 1072,
1075 (2d Cir. 1977). Lawyers are bound by ethical rules: they may not
“deliberately mislead the court with respect to either the facts or the law, or
consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 436
(1988). Indeed, an attorney has a duty “to refuse to prosecute a frivolous appeal.”
Smith v. Robbins, 528 U.S. 259, 272 (2000) (internal quotation marks omitted).
To be sure, the Constitution guarantees a criminal defendant the right to
forgo counsel entirely and represent himself at trial. See Faretta v. California, 422
U.S. 806, 807 (1975) (holding that a state cannot “constitutionally hale a person into
its criminal courts and there force a lawyer upon him”); see also 28 U.S.C. § 1654
(allowing parties to proceed “personally or by counsel” “[i]n all courts of the
United States”). Nevertheless, our caselaw is clear that “[a] defendant has a right
either to counsel or to proceed pro se.” United States v. Rivernider, 828 F.3d 91, 108
(2d Cir. 2016) (emphasis added) (citing Faretta, 422 U.S. at 834). He “has no right
to hybrid representation, in which he is represented by counsel” yet “slip[s] into
pro se mode for selected presentations.” Id. (internal quotation marks omitted).
While district courts have discretion to allow hybrid representation, see United
States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), in practice, the district courts in
our Circuit regularly deny such requests, see, e.g., United States v. Helbrans, No. 19-
cr-497 (NSR), 2022 WL 562930, at *7–8 (S.D.N.Y. Feb. 22, 2022); United States v.
Wilburn, 19-cr-108 (MKB), 2021 WL 6143591, at *2–3 (E.D.N.Y. Dec. 30, 2021).
2 On appeal, the right of self-representation is not constitutional and is subject
to the Court’s rules. See Martinez, 528 U.S. at 161; 28 U.S.C. § 1654. Nevertheless,
we regularly allow hybrid representation. In contrast, the majority of our sister
circuits have either entirely prohibited supplemental pro se filings by represented
parties or established strong presumptions against the practice. The Third, Fifth,
and Eleventh Circuits have adopted local rules prohibiting represented parties
from filing pro se supplemental briefs. See United States v. Turner, 677 F.3d 570, 578
(3d Cir. 2012) (construing 3d Cir. L.A.R. 31.3); United States v. Polidore, 690 F.3d 705,
721 n.19 (5th Cir. 2012) (citing 5th Cir. R. 28.6); United States v. Weathers, 815 F.
App’x 414, 422 n.16 (11th Cir. 2020) (discussing 11th Cir. R. 25-1). The Fourth,
Sixth, and Tenth Circuits have established strong presumptions against hybrid
representation on appeal. See, e.g., United States v. Miller, 54 F.4th 219, 227 n.10 (4th
Cir. 2022); United States v. Wilder, 87 F.4th 816, 821 (6th Cir. 2023); United States v.
Pemberton, 94 F.4th 1130, 1144 n.11 (10th Cir. 2024). The Seventh, Eighth, and Ninth
Circuits have in various cases stated that they do not allow hybrid representation
on appeal, see, e.g., United States v. Oreye, 263 F.3d 669, 673 (7th Cir. 2001); United
States v. Montgomery, 701 F.3d 1218, 1220 n.2 (8th Cir. 2012); United States v. Ortiz-
Martinez, 593 F. App’x 649, 650 n.2 (9th Cir. 2015), but, in practice, seem to allow it
3 with some frequency, see, e.g., United States v. Eads, 729 F.3d 769, 775 (7th Cir. 2013);
United States v. Miranda-Zarco, 836 F.3d 899, 901–02 (8th Cir. 2016); United States v.
Boykin, 785 F.3d 1352, 1359 (9th Cir. 2015). The First and D.C. Circuits have, to my
knowledge, established no rules or presumptions against hybrid representation
and regularly consider pro se filings from represented parties. See, e.g., United
States v. Gonzalez-Gonzalez, 136 F.3d 6, 12 (1st Cir. 1998); Waters v. Lockett, 896 F.3d
559, 572 (D.C. Cir. 2018). Nevertheless, the D.C. Circuit has, at least on occasion,
refused to allow hybrid representation. See Sturdza v. United Arab Emirates, 281
F.3d 1287, 1293 (D.C. Cir. 2002).
There is good reason to be skeptical of hybrid representation. As already
noted, declining to consider pro se supplemental briefs on appeal “promotes
effective advocacy because it prevents counsel from allowing frivolous arguments
to be made by the client.” Turner, 677 F.3d at 579. This winnowing generally
benefits the defendant, since “brief[ing] that raises every colorable issue runs the
risk of burying good arguments . . . in a verbal mound made up of strong and
weak contentions.” Jones v. Barnes, 463 U.S. 745, 753 (1983). Moreover, the practice
of allowing hybrid representation has repercussions beyond the cases in which it
is requested. Judicial resources are not unlimited. To permit as a matter of course
4 a party to submit supplemental briefs on top of the briefs already filed by his
counsel is to allow that party to unilaterally divert the Court’s attention from other
appeals. Our practice of granting such requests is effectively a loophole through
our other procedural rules, such as page limits and filing deadlines, that function
to allocate the Court’s limited resources among the many deserving appellants
who seek our review. While it is possible that denial of such requests to file
supplemental pro se briefs will leave some appellants with the feeling that they
have not been heard fully, there is no constitutional right to be heard on appeal at
all, see Abney v. United States, 431 U.S. 651, 656 (1977), much less a right to pursue
one’s appeal unconstrained by the Court’s basic ground rules.
To be clear, given our longstanding practice of granting such requests, I do
not fault the Applications Judge for granting Davis’s request in this case. Nor do
I suggest that we should decline to consider Davis’s pro se arguments now, since
he submitted them with our Court’s express permission. I fully join in the per
curiam opinion, which resolves all of Davis’s arguments – whether counseled or
pro se – on the merits. I write separately only to take stock of where we stand
relative to other Circuits in allowing hybrid representation and to express my view
that, going forward, we should consider curtailing the practice. While litigants
5 undeniably have the right to counsel or to proceed pro se, it would seem to me
“[o]bvious[] . . . those rights cannot be both exercised at the same time.” United
States v. Mitchell, 137 F.2d 1006, 1010 (2d Cir. 1943).