19-189-cr United States v. Griffin
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 ASUMMARY 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 30th day of April, two thousand twenty.
PRESENT: GUIDO CALABRESI, RICHARD C. WESLEY, RICHARD J. SULLIVAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 19-189-cr
JUNIOR GRIFFIN,
Defendant-Appellant,
MARC BENVENUTTI, VERDELL PICKNEY, AKA VERDELL DAVIS, AKA V-12, PAUL GIST, AKA PEEWEE, AKA SWEET PEA, ROBERT GIST, AKA G-BABY, CICERO WILLIAMS, AKA TUBES, JOSEPH ENCARNACION, AKA CABEZA, KELVIN POLANCO, AKA PSYCHO, AKA FRESH, JABARI ADAMS, AKA FLEA, AKA BARI, BRANDON SMITH, AKA SKILLZ, JOSEPH RIVERA, AKA JOJO, CYNTHIA WOODS, AKA BROOKLYN, KEITH NESBITT, AKA BALDY, GREGORY HERNANDEZ, AKA KANE, EDUARDO ROSA, AKA LIL BRO ED, LUIS CABAN, AKA JAY, DANIEL RENVIL, AMANDA LOPEZ, MADELINE OLIVARES, LANCE WRIGHT, KENNETH LACEN, AKA MONTANA, JONATHAN PEREZ, MALIK ABDUL,
Defendants.
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FOR APPELLANT: JAMES E. NEUMAN, Law Office of James E. Neuman, New York, NY.
FOR APPELLEE: DANIELLE R. SASSOON, Assistant United States Attorney (Michael K. Krouse, Jacob Warren, Won S. Shin, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
2 Appeal from a judgment of the United States District Court for the
Southern District of New York (Gregory H. Woods, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Junior Griffin appeals from a judgment of the district court (Woods, J.)
following a jury trial in which Griffin was convicted of one count of conspiracy to
distribute or possess with intent to distribute 280 grams or more of cocaine base
and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846, and one count of
distribution or possession with intent to distribute a quantity of cocaine in
violation of 21 U.S.C. § 841(b)(1)(C). On appeal, Griffin argues that the district
court erred in denying his motion to sever Counts One and Two under Federal
Rules of Criminal Procedure 8(a) and 14(a), and in excluding certain recorded
communications under Federal Rule of Evidence 807’s residual hearsay exception.
We assume the parties’ familiarity with the underlying facts and the record of
prior proceedings, to which we refer only as necessary to explain our decision to
affirm.
3 1. Severance of Counts
“We review the District Court’s denial of a Rule 8(a) motion to sever counts
de novo, and conduct a twofold inquiry: whether joinder of the counts was
proper, and if not, whether misjoinder was prejudicial to the defendant.” United
States v. Litwok, 678 F.3d 208, 216 (2d Cir. 2012) (internal quotation marks and
citations omitted). As relevant here, joinder under Rule 8(a) is appropriate where
counts “are of the same or similar character.” Fed. R. Crim. P. 8(a). “‘Similar’
charges include those that are ‘somewhat alike,’ or those ‘having a general
likeness’ to each other.” United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008).
We find no error in joining the two counts at issue here. Counts One and Two
are clearly “somewhat alike,” as they both involved the sale and purchase of the
same narcotic, in the same city, within the same approximately one-year period.
Id. Although the counts involved sales to different individuals, and Count One
charges a conspiracy while Count Two charges a single substantive sale, they share
a “general likeness,” making joinder appropriate. Id.
Notwithstanding proper joinder, a court may sever counts to prevent
prejudice to a party pursuant to Rule 14. “The denial of a motion to sever under
4 Rule 14 is reviewed for abuse of discretion.” United States v. Sampson, 385 F.3d
183, 190 (2d Cir. 2004). To succeed on appeal, Griffin must demonstrate that
joinder caused “substantial prejudice in the form of a miscarriage of justice.”
United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (internal quotation marks
omitted). Griffin cannot show such prejudice. Notably, evidence of the
substantive sale would likely have been admissible in a separate trial for Count
One – and similarly, evidence of his participation in the narcotics conspiracy
would likely have been admissible in a separate trial for Count Two – under
Federal Rule of Evidence 404(b) as evidence of intent, knowledge, or opportunity.
See, e.g., United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (finding that where
the government was required to prove that defendants “knowingly or
intentionally conspired to distribute [a narcotic], or to possess it with intent to
distribute,” “the intent or knowledge of [defendants] were clearly at issue, and
evidence of their involvement in prior narcotics transactions was probative of their
intent or knowledge in connection with the crime charged”); see also United States
v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (noting that under the Second
Circuit’s “inclusionary approach,” evidence of other crimes or acts “is admissible
5 for any purpose other than to show a defendant’s criminal propensity” (internal
quotation marks omitted)). Given the likelihood of admissibility, the district
court’s limiting instructions to the jury to consider the counts separately, and the
fact that the court adjourned the trial by a week to enable Griffin to prepare for the
added count, we cannot say that the district court abused its discretion in denying
the Rule 14 motion.
2. Exclusion of Recordings
At trial, the government introduced text messages and calls between Griffin
and his co-conspirator, Jonathan Perez, to establish that Griffin supplied cocaine
to Perez as part of the conspiracy charged in Count One.
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19-189-cr United States v. Griffin
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 ASUMMARY 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 30th day of April, two thousand twenty.
PRESENT: GUIDO CALABRESI, RICHARD C. WESLEY, RICHARD J. SULLIVAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 19-189-cr
JUNIOR GRIFFIN,
Defendant-Appellant,
MARC BENVENUTTI, VERDELL PICKNEY, AKA VERDELL DAVIS, AKA V-12, PAUL GIST, AKA PEEWEE, AKA SWEET PEA, ROBERT GIST, AKA G-BABY, CICERO WILLIAMS, AKA TUBES, JOSEPH ENCARNACION, AKA CABEZA, KELVIN POLANCO, AKA PSYCHO, AKA FRESH, JABARI ADAMS, AKA FLEA, AKA BARI, BRANDON SMITH, AKA SKILLZ, JOSEPH RIVERA, AKA JOJO, CYNTHIA WOODS, AKA BROOKLYN, KEITH NESBITT, AKA BALDY, GREGORY HERNANDEZ, AKA KANE, EDUARDO ROSA, AKA LIL BRO ED, LUIS CABAN, AKA JAY, DANIEL RENVIL, AMANDA LOPEZ, MADELINE OLIVARES, LANCE WRIGHT, KENNETH LACEN, AKA MONTANA, JONATHAN PEREZ, MALIK ABDUL,
Defendants.
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FOR APPELLANT: JAMES E. NEUMAN, Law Office of James E. Neuman, New York, NY.
FOR APPELLEE: DANIELLE R. SASSOON, Assistant United States Attorney (Michael K. Krouse, Jacob Warren, Won S. Shin, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
2 Appeal from a judgment of the United States District Court for the
Southern District of New York (Gregory H. Woods, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Junior Griffin appeals from a judgment of the district court (Woods, J.)
following a jury trial in which Griffin was convicted of one count of conspiracy to
distribute or possess with intent to distribute 280 grams or more of cocaine base
and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846, and one count of
distribution or possession with intent to distribute a quantity of cocaine in
violation of 21 U.S.C. § 841(b)(1)(C). On appeal, Griffin argues that the district
court erred in denying his motion to sever Counts One and Two under Federal
Rules of Criminal Procedure 8(a) and 14(a), and in excluding certain recorded
communications under Federal Rule of Evidence 807’s residual hearsay exception.
We assume the parties’ familiarity with the underlying facts and the record of
prior proceedings, to which we refer only as necessary to explain our decision to
affirm.
3 1. Severance of Counts
“We review the District Court’s denial of a Rule 8(a) motion to sever counts
de novo, and conduct a twofold inquiry: whether joinder of the counts was
proper, and if not, whether misjoinder was prejudicial to the defendant.” United
States v. Litwok, 678 F.3d 208, 216 (2d Cir. 2012) (internal quotation marks and
citations omitted). As relevant here, joinder under Rule 8(a) is appropriate where
counts “are of the same or similar character.” Fed. R. Crim. P. 8(a). “‘Similar’
charges include those that are ‘somewhat alike,’ or those ‘having a general
likeness’ to each other.” United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008).
We find no error in joining the two counts at issue here. Counts One and Two
are clearly “somewhat alike,” as they both involved the sale and purchase of the
same narcotic, in the same city, within the same approximately one-year period.
Id. Although the counts involved sales to different individuals, and Count One
charges a conspiracy while Count Two charges a single substantive sale, they share
a “general likeness,” making joinder appropriate. Id.
Notwithstanding proper joinder, a court may sever counts to prevent
prejudice to a party pursuant to Rule 14. “The denial of a motion to sever under
4 Rule 14 is reviewed for abuse of discretion.” United States v. Sampson, 385 F.3d
183, 190 (2d Cir. 2004). To succeed on appeal, Griffin must demonstrate that
joinder caused “substantial prejudice in the form of a miscarriage of justice.”
United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (internal quotation marks
omitted). Griffin cannot show such prejudice. Notably, evidence of the
substantive sale would likely have been admissible in a separate trial for Count
One – and similarly, evidence of his participation in the narcotics conspiracy
would likely have been admissible in a separate trial for Count Two – under
Federal Rule of Evidence 404(b) as evidence of intent, knowledge, or opportunity.
See, e.g., United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (finding that where
the government was required to prove that defendants “knowingly or
intentionally conspired to distribute [a narcotic], or to possess it with intent to
distribute,” “the intent or knowledge of [defendants] were clearly at issue, and
evidence of their involvement in prior narcotics transactions was probative of their
intent or knowledge in connection with the crime charged”); see also United States
v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (noting that under the Second
Circuit’s “inclusionary approach,” evidence of other crimes or acts “is admissible
5 for any purpose other than to show a defendant’s criminal propensity” (internal
quotation marks omitted)). Given the likelihood of admissibility, the district
court’s limiting instructions to the jury to consider the counts separately, and the
fact that the court adjourned the trial by a week to enable Griffin to prepare for the
added count, we cannot say that the district court abused its discretion in denying
the Rule 14 motion.
2. Exclusion of Recordings
At trial, the government introduced text messages and calls between Griffin
and his co-conspirator, Jonathan Perez, to establish that Griffin supplied cocaine
to Perez as part of the conspiracy charged in Count One. Griffin unsuccessfully
sought to introduce additional call recordings and text messages between Perez
and other suppliers in order to rebut the government’s position that Griffin had
supplied Perez with cocaine on specific occasions. On appeal, Griffin challenges
the district court’s exclusion of the evidence as inadmissible hearsay, arguing that
the communications should have been admitted under Federal Rule of Evidence
807, the so-called “residual” exception to the rule against hearsay. We review the
6 district court’s evidentiary ruling for abuse of discretion subject to harmless error
analysis. United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001).
“To be admissible pursuant to the residual exception, the evidence must
fulfill five requirements: trustworthiness, materiality, probative importance, the
interests of justice[,] and notice.” Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d
Cir. 1991). “Congress intended that the residual hearsay exceptions will be used
very rarely, and only in exceptional circumstances.” Id. (internal quotation
marks omitted). We find no abuse of discretion in the district court’s
determination that Rule 807’s requirements were not met, including but not
limited to its findings that Griffin failed to satisfy the notice and probative
importance requirements. Since Griffin first requested to introduce the evidence
after the court impaneled the jury and after the government had prepared and
provided its exhibits for trial, the district court reasonably found that Griffin failed
to give sufficient notice to the government of his intent to admit the evidence.
The court also had reason to conclude that Griffin lacked good cause for the delay,
given the extended discovery period and additional time Griffin was afforded to
prepare the case. Nor did the district court abuse its discretion in finding that the
7 evidence was not more probative on the point for which it was offered than other
evidence the defense might have introduced. Because Griffin did not establish
that all five requirements were met, the court permissibly excluded the evidence
under Rule 807.
We have considered Griffin’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