United States v. Polk

• Court: Court of Appeals for the Second Circuit
• Decided: March 27, 2023
• Docket: 20-864
• Status: Unpublished

Opinion

20-864-cr United States v. Polk

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.

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 27th day of March, two thousand twenty-three.

PRESENT: Pierre N. Leval, Barrington D. Parker, Steven J. Menashi, Circuit Judges. ____________________________________________

UNITED STATES OF AMERICA, Appellee,

v. No. 20-864

TERRELL POLK, Defendant-Appellant. * ____________________________________________

* The Clerk of Court is directed to amend the caption as set forth above. For Appellee: NICHOLAS FOLLY (Stephen J. Ritchin, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

For Defendant-Appellant: SEAN MICHAEL MAHER, Law Offices of Sean M. Maher, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Daniels, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Terrell Polk appeals his criminal convictions for

conspiracy to distribute and possess with intent to distribute 280 grams or more of

crack cocaine (as well as a quantity of marijuana); distribution and possession with

intent to distribute crack cocaine; using, carrying, and possessing firearms, during

and in relation to, and in furtherance of, the narcotics conspiracy; and possession

of ammunition after being convicted of a crime punishable by imprisonment for a

term exceeding one year. 1 He argues that (1) the jury did not have sufficient

1 These charges were Counts One, Two, Three, and Four, respectively, in the indictment.

2 evidence to find him guilty on Counts One, Three, and Four and (2) the district

court abused its discretion in denying his motion for a new trial. We disagree and

affirm the district court’s judgment. We assume the parties’ familiarity with the

facts and procedural history.

I

The evidence at trial showed that Polk was a member of a drug-distribution

gang responsible for selling cocaine and marijuana in the Bronx’s Highbridge

neighborhood. 2 Witness testimony indicated that members of the gang shared

weapons, information, drugs, and customers. According to witness testimony,

Polk joined the gang’s drug conspiracy upon his 2014 release from prison for

unrelated crimes.

On July 25, 2015, a man known as “Euro” was shot in front of 1055

University Avenue. Cicero Williams, a former member of the drug-distribution

gang and an eyewitness for the government, testified that Polk shot Euro for

selling marijuana at 1055 University Avenue, which Williams’s crew considered

to be within their exclusive drug-selling territory. Williams further testified that,

2 Polk maintains that he was not a member of the gang.

3 after the shooting, members of the crew threatened Euro’s “baby mother” not to

call the police, then returned to the scene of the shooting to dispose of the evidence.

Ten days later—on August 4, 2015—a second rival drug dealer known as

“Ryan” was shot outside a store on 162nd Street and Anderson Avenue, wounding

both Ryan and a bystander. According to Williams, Ryan had been involved in a

confrontation with Polk and other members of the crew a few days before the

shooting. Although Williams was not present for this shooting, he testified that

Polk had told him that Polk shot Ryan using a sawed-off shotgun that the crew

shared for their enterprise. Williams’s accounts of the shootings were corroborated

by photographs of the crime scene, testimony from one of the victims of the second

shooting, and surveillance video.

On August 26, 2015, Polk was arrested after the police found a loaded gun

in the backseat armrest of a car that Polk was driving. The DNA of two of Polk’s

accomplices was found on the gun, but Polk’s DNA was not found on the gun.

Williams was arrested in November 2016 for drug and firearms offenses.

Williams began cooperating with the government in its investigation of his crew

and he served as a key witness for the government in the trial against Polk and

other crew members. Williams testified that although Polk had his own source for

4 drugs, the crew as a whole shared guns, territory, and information in their efforts

to sell narcotics in their part of the Bronx. Williams testified that he was present at

the shooting of a rival drug dealer on July 25, 2015, when Polk shot a rival drug

dealer for treading on Polk’s crew’s turf. Williams also testified that Polk confided

in him about his role in the shooting of Ryan on August 4, 2015.

Williams also gave extensive testimony about the drug conspiracy. He

testified that the conspiracy enabled him to sell 100 or more grams of crack cocaine

per month. He explained that he and Polk worked with other associates to sell

drugs. Williams testified that on multiple occasions, he supplied Polk with crack

cocaine to sell—about 15 or 20 grams four or five separate times. That Polk also

sold drugs was corroborated by the fact that police found 3.5 grams of crack

cocaine, packaged for distribution, in Polk’s dwelling during a search on February

3, 2017.

After a three-day trial, a jury found Polk guilty of all four counts that the

government charged: (1) conspiracy to possess and distribute marijuana and crack

cocaine, (2) possession and distribution of crack cocaine, (3) possession and use of

a firearm, and (4) possession of ammunition by a felon. On November 2, 2018, Polk

filed a motion before the district court to vacate the jury’s guilty verdict on the first

5 and fourth counts for insufficient evidence and to order a new trial on the third

count. The district court denied this motion.

On May 20, 2019, about eight months after the trial concluded, the

government informed Polk and the district court that a cooperating witness in an

unrelated case stated in a proffer to the government that he had heard that

Williams was involved in the murder of a man named Frank Jones in the Bronx.

This cooperating witness was in jail at the time of the murder and had heard of

Williams’s responsibility from others. In interviews with the government,

Williams disclaimed any responsibility. Polk renewed his motion on December 9,

2019, for a new trial in light of the revelations, arguing that Williams’s potential

responsibility for the murder undermined his credibility in Polk’s trial. The district

court denied the renewed motion, noting that other material evidence—including

audio recordings, surveillance videos, and DNA and ballistics evidence—

corroborated Williams’s testimony against Polk. The district court also observed

that, even if Williams were responsible for Jones’s murder, it was unlikely that the

revelation would have swayed the jury, which had found Williams’s testimony

credible despite its awareness of his commission of other violent crimes.

6 Polk timely appealed the denial of his post-conviction motions. On appeal,

Polk argues that (1) the trial evidence was insufficient to convict him of drug

conspiracy; (2) the trial evidence was insufficient to support a finding that he

illegally possessed ammunition while a felon; (3) because Count Three depended

on the existence of the narcotics conspiracy charged in Count One, the evidence

was likewise insufficient to support the jury’s verdict on this count; and (4) the

district court abused its discretion by denying Polk’s Rule 33(b) motion for a new

trial after a cooperating witness reported having heard that Williams committed a

murder. We conclude that the trial evidence was sufficient to convict Polk of the

offenses for which he was convicted and that the district court did not abuse its

discretion in denying Polk’s motion for a new trial.

II

“We review de novo challenges to the sufficiency of the evidence.” United

States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010). Nevertheless, a defendant-

appellant bears a heavy burden in a sufficiency-of-the-evidence challenge. “A jury

verdict must be upheld if, ‘after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” United States v. Gahagen, 44 F.4th 99, 108

7 (2d Cir. 2022) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “This Court will

defer to the jury’s assessment of witness credibility, even when those witnesses

have testified pursuant to cooperation agreements with the government.” Id.

(internal quotation marks and alteration omitted).

A

Polk first argues that the government did not present enough evidence to

prove that he was part of a conspiracy to distribute significant sums of crack

cocaine and marijuana. Relying on the so-called “buyer-seller” exception, he

argues that—while he was in a buyer-seller relationship with one of the alleged

conspirators—the evidence did not show that he joined with the conspirators in a

conspiracy to distribute their drugs or that they had joined with him in a

conspiracy to sell his own. See, e.g., United States v. Dove, 884 F.3d 138, 151 (2d Cir.

2018). Polk submits that he and Williams could not have been part of a drug

conspiracy because they had independent sources of drugs, did not share profits,

did not coordinate specific drug sales with each other, did not cook cocaine into

crack together, and did not know where the other stored his drugs. We disagree.

We have explained that the buyer-seller exception is “narrow” and “stands only

for the proposition that ‘the mere purchase and sale of drugs does not, without

8 more, amount to a conspiracy to distribute narcotics.’” Id. (quoting United States v.

Brock, 789 F.3d 60, 63 (2d Cir. 2015)). Here, the evidence suggested that Polk took

actions beyond mere purchases, including efforts to preserve the group’s exclusive

territory in which to sell drugs. In support of these efforts, Polk and other members

of the group shared guns and used those guns to keep rival drug sellers out of

their territory. Given this evidence, “a rational jury could find beyond a reasonable

doubt that [Polk] ha[d] agreed to join and participate in the conspiracy.” United

States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008).

Polk also challenges the sufficiency of the evidence as to the amount of crack

for which he is responsible. We conclude that the evidence was sufficient to

support findings that the amount of crack sold by other members of the group

exceeded 280 grams and that such transactions were “reasonably foreseeable” to

Polk. United States v. Pauling, 924 F.3d 649, 657 (2d Cir. 2019).

The jury therefore had sufficient evidence to find on Counts One and Three

that Polk was guilty of participating in a conspiracy to distribute drugs.

B

The jury also had sufficient evidence to conclude that Polk was guilty of

possessing ammunition while a felon. The parties stipulated that Polk had been

9 previously convicted of a felony, and Polk does not argue that this evidence was

insufficient to show that he was aware of his status as a felon. See Rehaif v. United

States, 139 S. Ct. 2191, 2194 (2019) (“To convict a defendant, the Government …

must show that the defendant knew he possessed a firearm and also that he knew

he had the relevant status when he possessed it.”). He contests only whether the

government proved that he possessed ammunition.

Williams testified that on July 25, 2015, he instructed Polk to cock a gun to

put a bullet into its chamber after the weapon had jammed, then watched Polk fire

the weapon. Law enforcement recovered ammunition casings from the scene, and

the jury saw surveillance video footage of the shooting as well as photographs

showing where the ammunition had been recovered. This evidence was sufficient

for the jury to conclude that Polk possessed ammunition. Polk argues that the

government’s expert witness testified that the casings were inconsistent with

Polk’s weapon, as described by Williams. But the expert witness testified only that

the casings came from a gun with a hemispherical firing pin and that he could not

conclude what type of gun had released the casing. A reasonable trier of fact could

have concluded beyond a reasonable doubt that Polk possessed ammunition.

10 C

In addition, the district court did not abuse its discretion in denying Polk’s

motion for a new trial. Polk made the motion after it was revealed that a

cooperating witness in a separate trial identified Williams, the government’s key

witness, as the culprit in a different murder. Polk’s argument is that because the

accusation—if true—undermines Williams’s credibility as a witness, Polk is

entitled to a new trial.

We disagree. As the district court noted, “it is not as though the Government

provided the jury with an immaculate image of Williams—nearly his entire direct

examination is riddled with references to thorough details of his involvement with

the conspiracy and admissions of drug use and violent crimes.” J. App’x 267.

Under these circumstances, “the jury had a fair opportunity to evaluate the

witness’ credibility.” United States v. Gambino, 59 F.3d 353, 366 (2d Cir. 1995). The

jury nonetheless found Williams’s testimony concerning Polk persuasive.

Moreover, Williams’s testimony about Polk’s criminal conduct was corroborated

by several pieces of evidence, including surveillance video of Polk committing the

shootings, audio recordings, DNA and ballistics evidence, drugs found in Polk’s

bedroom during a police search, and the loaded gun recovered from Polk’s car.

11 In addition, the district court reasonably did not treat the accusation of the

cooperating witness as dispositive. The cooperating witness in the separate case

was in jail when Williams allegedly killed Jones and was merely reporting what

he had heard from others. When Williams was asked about the Jones murder, he

told law enforcement that he was not responsible. While this denial does not

disprove that Williams killed Jones, the cooperating witness’s accusation alone is

not enough to disturb a jury verdict otherwise supported by ample evidence. The

district court did not abuse its discretion in declining to order a new trial.

* * *

We have considered Polk’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we affirm the judgment of the district

court.

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