United States v. McBride

• Court: Court of Appeals for the Second Circuit
• Decided: June 30, 2023
• Docket: 22-814
• Status: Unpublished

Opinion

22-814 United States v. McBride

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 30th day of June, two thousand twenty-three. 4 5 PRESENT: 6 MICHAEL H. PARK, 7 WILLIAM J. NARDINI, 8 ALISON J. NATHAN, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 22-814 17 18 Judon McBride, 19 Defendant-Appellant. 20 _____________________________________ 21 22 FOR APPELLEE: MARGUERITE B. COLSON (Hagan Scotten, on 23 the brief), Assistant United States Attorneys, 24 for Damian Williams, United States 25 Attorney for the Southern District of New 26 York, New York, NY. 27 28 FOR DEFENDANT-APPELLANT: THOMAS H. NOOTER, Freeman Nooter & 29 Ginsberg, New York, NY. 30 1 Appeal from a judgment of the United States District Court for the Southern District of

2 New York (Castel, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court is AFFIRMED.

5 Judon McBride was charged with possessing ammunition knowing that he had been

6 previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The government alleged

7 that McBride fired eight rounds in one shooting in the Bronx, then soon after fired three rounds in

8 a second shooting. Its evidence at trial included surveillance videos of a man wearing distinctive

9 clothing, identified by witnesses as McBride, going to and from the sites of the shootings. The

10 government argued that this man was the shooter using (1) a video of him carrying a handgun en

11 route to the shooting, (2) a 911 call identifying the shooter as wearing the man’s distinctive

12 clothing, and (3) a video, government exhibit (“GX”) 106, displaying one of the shootings. GX

13 106 was insufficiently clear for the witnesses to identify McBride from that tape alone. The

14 government also introduced expert testimony from Detective Shaun Jaikissoon, a putative “expert

15 in the field of ballistics analysis and microscopic comparison,” that the eleven shell casings

16 recovered from the two sites were fired by the same weapon. Appellee’s Br. at 6. A jury

17 convicted McBride after a brief trial.

18 At sentencing, the district court (Castel, J.) applied sentencing enhancements for unlawful

19 possession of ammunition in connection with attempted first-degree murder, under United States

20 Sentencing Guidelines §§ 2K1.1(c), 2X1.1, and 2A2.1(a)(1), and for causing serious bodily injury

21 in connection with the attempted murder, under United States Sentencing Guidelines

22 § 2A2.1(b)(1)(B). The government supported these enhancements with police reports relating

2 1 that a victim reported that McBride shot him in the leg following an argument, and that his injury

2 required surgery. The district court sentenced McBride to 120 months’ incarceration, the

3 statutory maximum. McBride appeals both his conviction and his sentence. He argues that (1)

4 the witnesses’ inability to identify him in GX 106 deprived his conviction of sufficient evidence,

5 (2) the district court abused its discretion by admitting Jaikissoon’s testimony, and (3) the district

6 court procedurally erred at sentencing by finding that he acted with malice aforethought and caused

7 serious bodily injury in shooting the victim.

8 First, we conclude that McBride’s conviction was supported by sufficient evidence. “A

9 defendant challenging the sufficiency of the evidence supporting his criminal conviction bears a

10 heavy burden.” In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 112 (2d

11 Cir. 2008) (cleaned up). “When presented with a sufficiency-of-the-evidence challenge, we must

12 determine whether, after viewing the evidence in the light most favorable to the prosecution, any

13 rational trier of fact could have found the essential elements of the crime beyond a reasonable

14 doubt.” Id. (cleaned up). Although McBride argues that GX 106 was too unclear for a rational

15 jury to convict him, other evidence established his guilt even without reference to GX 106. For

16 example, the 911 caller’s description of the shooter matched that of the man depicted in the other

17 videos of the scene, who the witnesses identified as McBride. In addition, surveillance video

18 showed McBride leaving his apartment with a gun and travelling to and from the scenes of each

19 shooting.

20 Second, McBride contends that the district court abused its discretion in admitting the

21 testimony of Jaikissoon for any of several reasons. See United States v. Romano, 794 F.3d 317,

22 330 (2d Cir. 2015) (admission of expert testimony reviewed for abuse of discretion). But we

3 1 need not decide this issue, because any hypothetical error was harmless. Non-constitutional error

2 is harmless if “the error did not influence the jury, or had but a very slight effect” thereon. United

3 States v. Kaplan, 490 F.3d 110, 122 (2d Cir. 2007) (quoting Kotteakos v. United States, 328 U.S.

4 750, 764 (1946)). “To say that the erroneously admitted testimony did not substantially influence

5 the jury we are not required to conclude that it could not have had any effect whatever; the error

6 is harmless if we can conclude that that testimony was unimportant in relation to everything else

7 the jury considered on the issue in question, as revealed in the record.” United States v. Rea, 958

8 F.2d 1206, 1220 (2d Cir. 1992) (internal quotation marks omitted). Under this standard, we

9 conclude that any error would have been harmless here. As discussed above, extensive video and

10 testimonial evidence established McBride’s guilt even without Jaikissoon’s testimony, which only

11 confirmed that both shootings were carried out using the same gun.

12 Third, we conclude that the district court did not procedurally err in finding that McBride

13 attempted first-degree murder and caused serious bodily injury. “A district court commits

14 procedural error when it . . . rests its sentence on a clearly erroneous finding of fact. The district

15 court must find facts relevant to a sentencing enhancement by a preponderance of the evidence.”

16 United States v. Osuba, 67 F.4th 56, 65 (2d Cir. 2023) (citation omitted). While the police reports

17 submitted by the government suggested that the victim was initially hesitant to provide information

18 to the police and made some inconsistent statements, they also showed that the victim eventually

19 explained that McBride deliberately shot him from close range following an altercation. The

20 district court did not clearly err by relying on this account. Cf. United States v. Martinez, 413

21 F.3d 239, 242 (2d Cir. 2005) (noting that a district court may rely on hearsay evidence at

22 sentencing).

4 1 We have considered all of McBride’s remaining arguments and find them to be without

2 merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court 5