United States v. Lewis

111 F. App'x 52
Court of Appeals for the Second Circuit·Decided October 5, 2004·No. Nos. 01-1215, 01-1240, 01-1242, 01-1374, 01-1577·Published·Cited by 2 cases

Opinion

SUMMARY ORDER

Five defendants: John Foster, Aaron Harris, Rasheen Lewis, Kenneth Richardson, and Luke Jones, appeal from the judgments of conviction and their sentences entered in the United States District Court for the District of Connecticut (Nevas, J.) on June 21, 2001, April 6, 2001, March 26, 2001, April 4, 2001, and October 29, 2001, respectively. A jury convicted Foster, Harris, Lewis and Richardson of conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. § 846 in December 2000 and Jones pled guilty to unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in September 2000.

The parties’ familiarity with the facts and procedural history of the case, as well as with the rulings of the district court and issues on appeal, is here assumed. We address the following challenges of defendant Harris and defendant Lewis to these judgments in a separate opinion filed today: (1) whether it was error for the district court to increase Harris’ sentence for use of a minor pursuant to U.S.S.G. § 3B1.4; and (2) whether it was error for the district court to deny Lewis’ motion to suppress evidence seized from his bedroom. The remaining issues raised on appeal are discussed in this summary order. For the reasons that follow, we affirm the judgments of conviction and sentences of the district court.

(1) With respect to defendant John Foster, the district court committed no error in disqualifying juror number 152 because a defendant’s acceptance into Connecticut’s accelerated pretrial rehabilitation program, Conn. GemStat. § 54-56e (1999), does not suspend the charges “pending” [55]*55against the defendant for purposes of 28 U.S.C. § 1865(b)(5) (2000), but only suspends the adjudication of those charges. The charges therefore remain pending against the defendant until the rehabilitation term is complete. See United States v. Bishop, 264 F.3d 535, 556 (5th Cir.2001) (“Until supervision is complete ... the deferred adjudication is treated as a pending charge.”).

In light of Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), we do not address or decide whether Foster’s sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Rather, for the reasons stated in the opinion accompanying this order, the mandate of this Court shall be held pending the Supreme Court’s decision in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105.

(2) With respect to defendant Aaron Harris, the district court committed no error in disqualifying juror number 152 for the reasons just stated with respect to defendant Foster. The district court did not err under Federal Rule of Evidence 608(b) when it permitted the government to call Carolyn Jackson, Demetrius Brown, and George Jascewsky as part of its rebuttal case. It was within the discretion of the district court to conclude that the testimony of these witnesses refuted specific misstatements made by Harris on direct examination. See United States v. Beverly, 5 F.3d 633, 639 (2d Cir.1993) (“Once a defendant has put certain activity in issue by offering innocent explanations for or denying wrongdoing, the government is entitled to rebut by showing [through extrinsic evidence] that the defendant has lied.”). The district court did not violate Harris’ Sixth Amendment right to confront the witnesses against him by limiting the scope of Harris’ cross-examination of Eugene Rhodes and Demetrius Brown, because the limits imposed did not deny the jury exposure to facts sufficient “to make a discriminating appraisal of the ... witness’s credibility,” United States v. Laljie, 184 F.3d 180, 192 (2d Cir.1999), and were reasonably calculated to avoid harassment, prejudice, confusion of the issues, and irrelevant interrogation. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

It was not an abuse of the district court’s discretion to admit Exhibits 56 and 56-A into evidence because the government introduced proof sufficient to allow a reasonable juror to find them authentic. See United States v. Ruggiero, 928 F.2d 1289, 1303-04 (2d Cir.1991). Nor did the district court err in instructing the jury regarding Harris’ interest in the outcome of the trial because even compared with the significant interests of the cooperating witnesses, Harris’ interest was singular. See Reagan v. United States, 157 U.S. 301, 304-05, 15 S.Ct. 610, 39 L.Ed. 709 (1895). Further, the district court properly denied Harris’ motion to suppress the evidence seized in connection with the stop of the vehicle he was driving and his subsequent arrest on October 8, 1998, because the police had probable cause to believe the vehicle contained evidence of a crime (ie., cash to purchase drugs) and that Harris was committing an offense. The search was therefore lawful pursuant to the automobile exception, as well as incident to Harris’ arrest.

Moreover, it was not an abuse of discretion for the district court to enhance Harris’ offense level based on his leadership role because the evidence established that Harris, who served as the drug network’s main source of supply, exercised a high degree of discretion in participating in the conspiracy, was involved at the highest level in planning and organizing the [56]*56offense, and had authority and control over other members of the conspiracy. See United States v. Beaulieau, 959 F.2d 375, 379-80 (2d Cir.1992) (finding that the district court properly applied the leadership-role enhancement to a defendant who acted as the conspiracy’s main source of supply)-

As with Foster’s sentence, in light of Blakely, we do not address or decide whether Hams’ sentence was imposed in violation of Apprendi. Rather, for the reasons stated in the opinion accompanying this order, the mandate of this Court shall be held pending the Supreme Court’s decision in Booker and Fanfan.

All of Harris’ other challenges, aside from his challenge to the district court’s increase of his sentence under U.S.S.G. § 3B1.4, which is addressed in the opinion filed concurrently with this order, are without merit.

(3) With respect to defendant Luke Jones, the district court did not err by increasing Jones’ offense level for possession of a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(5).

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United States v. Lewis, 111 F. App'x 52 (2d Cir. 2004).

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