23-6771 United States v. Simmons
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 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 26th day of February, two thousand twenty-five.
PRESENT:
RICHARD J. SULLIVAN, ALISON J. NATHAN, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 23-6771
STEPHEN SIMMONS,
Defendant-Appellant. _____________________________________ For Defendant-Appellant: SARAH BAUMGARTEL, Assistant Federal Defender, Federal Defenders of New York, New York, NY.
For Appellee: COURTNEY HEAVEY (Jamie Bagliebter, Nathan Rehn, on the brief), Assistant United States Attorneys, for Matthew Podolsky, Acting United States Attorney for the Southern District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Valerie E. Caproni, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the July 12, 2023 judgment of the district court
is AFFIRMED.
Stephen Simmons appeals from a judgment of conviction following a jury
trial in which he was found guilty of possessing ammunition as a felon under 18
U.S.C. § 922(g)(1) during the course of a shooting in the Bronx. Although the
shooting did not constitute an element of the count of conviction, the district court
concluded that the shooting constituted attempted murder and thus applied the
Sentencing Guideline for attempted murder before sentencing Simmons to 120
months’ incarceration. On appeal, Simmons challenges both his conviction under
section 922(g)(1) and his sentence under the attempted murder Guideline. We
2 assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal.
I. Jury Instructions
Simmons raises two challenges to the jury instructions, neither of which he
preserved below. When a challenge to a jury instruction was raised before the
district court, we review the instruction de novo. See United States v. Rommy, 506
F.3d 108, 118 (2d Cir. 2007). But when the challenge was not preserved, we
review it only for plain error. See Fed. R. Crim. P. 52(b). We will correct such an
error only when it is “clear and obvious, affected the defendant[’s] substantial
rights, and seriously affected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Mehta, 919 F.3d 175, 180 (2d Cir. 2019). To
be clear or obvious, an error must be “clear under current law,” which generally
requires “binding precedent from the Supreme Court or this Court” that dictates
a different conclusion. United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004). In
order to show that the error affected his “substantial rights,” the defendant has the
burden of establishing a “reasonable probability that the error affected the
outcome of the trial.” United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014)
(internal quotation marks omitted).
3 A. Jury Instruction Regarding Immunized Witness Testimony
Simmons first argues that the district court plainly erred in giving a charge
that “did not instruct the jury to scrutinize immunized witness testimony with
care.” Simmons Br. at 29. At trial, the government relied heavily on testimony
by Jonas Bolden – the shooting victim – and his associate Joe Holloway, each of
whom testified that Simmons had followed Bolden into an elevator and shot him
at close range while Holloway looked on. Because their testimony revealed that
they were involved in drug trafficking, both Bolden and Holloway testified
pursuant to immunity agreements. The government thus proposed an
immunized witness charge – “[a]dapted” from a model jury instruction – that the
district court largely adopted without objection from Simmons. App’x at 900–02
(citing Sand, Modern Federal Jury Instructions - Criminal, Instr. 7–8 (2023)). As
delivered, the instruction explained that “[t]wo witnesses testified under a grant
of immunity” and directed the jury to consider “whether the fact that the
witness[es] w[ere] immunized ha[d] intentionally or otherwise colored or
distorted [their] testimony.” App’x at 849.
Simmons argues that this charge was incorrect because – unlike the model
instruction – it did not direct the jury to “examine[]” the testimony of an
4 immunized witness with “greater care than the testimony of an ordinary witness”
or to “scrutinize [the testimony] closely.” Simmons Br. at 19–20. But we cannot
agree that this was plain error, for the simple reason that no “binding precedent”
has found error where a district court failed to instruct the jury that it must use
greater scrutiny when inspecting the testimony of an immunized victim. Whab,
355 F.3d at 158. In fact, we have never imposed that level of scrutiny on testimony
by cooperating witnesses, who may have an even greater “interest in currying favor
with the prosecutor” than immunized victims. United States v. Vaughn, 430 F.3d
518, 524 (2d Cir. 2005) (requiring only that district courts “identify” for the jury
any “possible motivations” that a cooperating witness may have and stating that
courts need not “over-emphasize the obvious [fact]” that cooperators are biased).
Because Simmons lacks binding precedent to support his claim of error, he cannot
demonstrate plain error here. 1
1 We also reject Simmons’s argument that the government “misled” the jury about the scope of
Bolden’s and Holloway’s immunity. Simmons Br. at 33. The agreements gave Bolden and Holloway immunity from prosecution based on any evidence that directly or indirectly derived from their testimony. See App’x at 903–06. But both could still be prosecuted with evidence obtained through wholly independent means, as the government argued to the jury. Id. at 827; see also United States v. Allen, 864 F.3d 63, 91–92 (2d Cir. 2017).
5 B. Limiting Instruction Regarding Prior Felony Conviction
Simmons next asserts that the district court should have given a limiting
instruction concerning Simmons’s prior felony conviction. But while Simmons
requested that instruction in his pretrial briefing, he never asked for one at trial.
His argument on appeal is thus subject to plain error review. See United States v.
Crowley, 318 F.3d 401, 413 (2d Cir. 2003) (“[T]he mere fact that a defendant
submitted his proposed language as part of a requested charge does not in itself
preserve the point for appeal.”).
Even assuming that Simmons has established any “clear and obvious” error,
Mehta, 919 F.3d at 180, he falls well short of meeting his burden to show a
“reasonable probability” that a limiting instruction would have led to his acquittal.
Groysman, 766 F.3d at 155 (internal quotation marks omitted). The fact that
Simmons had a prior conviction was introduced by a stipulation and the jury
heard no underlying (and potentially prejudicial) details about it. See App’x at
721. And the government introduced evidence of Simmons’s guilt from a host of
other sources, including Bolden’s and Holloway’s eyewitness identifications,
Simmons’s cell phone records, surveillance video, and testimony from other
witnesses about inculpatory statements made by Simmons about the shooting.
6 Because nothing in the record suggests that a limiting instruction would have
altered the verdict, we reject Simmons’s claim of plain error.
II. Evidentiary Issues
Simmons also challenges two of the district court’s evidentiary decisions.
We review preserved evidentiary challenges for abuse of discretion, under which
we will find error “only where the trial judge ruled in an arbitrary or irrational
fashion.” United States v. Kelley, 551 F.3d 171, 174–75 (2d Cir. 2009) (internal
quotation marks omitted). We review unpreserved evidentiary arguments for
plain error. See United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007).
A. Lay Opinion Testimony Regarding Cell Phone Usage
Simmons first contends that the district court permitted the government to
elicit lay opinion testimony as to Simmons’s physical location at the time of the
shooting based on his cellphone records. He argues that this was improper
because the government witness was not qualified as an expert and because the
witness’s lay opinion testimony usurped the role of the jury. Because Simmons
did not raise this objection at trial, we review for plain error. See id.
Federal Rules of Evidence 701 and 702 permit both lay and expert witnesses
to offer opinion testimony. Rule 701 authorizes a lay witness to offer her opinion
7 about events that she personally perceived, so long as that opinion will assist the
jury and is not based on “specialized knowledge” within the scope of Rule 702.
Fed. R. Evid. 701(c). Rule 702 allows an expert witness to give an opinion based
on her “scientific, technical, or other specialized knowledge,” provided that the
opinion is based on “sufficient facts or data” and is the “product of reliable
principles and methods.” Fed. R. Evid. 702.
At trial, the government introduced several pieces of evidence that linked
Simmons’s cell phone to the shooting, including cell site data that put the phone
in the vicinity of the victim and a brief text conversation shortly before the
shooting in which another user instructed Simmons to “[w]ild . . . up” on an
unnamed person and then notified Simmons that “[h]e rite here.” App’x at 685–
89, 763. After Simmons suggested that other individuals sometimes used the cell
phone – and may have had it when the shooting occurred on June 16, 2022 – the
government called an FBI agent to discuss Simmons’s call records. The
government never qualified the agent as an expert witness under Rule 702 and
instead presented her as a summary witness. The agent testified that the two
most frequent callers on June 16 were the same top callers in the weeks before and
after the shooting, and also noted that other contacts who were apparently related
8 to Simmons – such as “My Pops” and “Skiesia My Daughter” – regularly called
the phone on both June 16 and the surrounding weeks. Id. at 344. From this
evidence, the agent concluded that the individual using the phone during those
weeks – i.e., Simmons – was “likely . . . the same person” who was using the phone
on the day of the shooting. Id.
Simmons argues that this lay opinion “usurped” the jury’s role because it
was the jury’s function to “review the[] records and determine what, if any,
inferences to draw from them.” Simmons Br. at 47. But even if it could be
argued that the agent improperly drew conclusions better left for the jury, we
cannot agree that the opinion itself was so prejudicial as to affect Simmons’s
substantial rights, as is required to show plain error. See Groysman, 766 F.3d at
157 (placing the burden on defendant to show “reasonable probability” that error
affected outcome). The government introduced the call frequency records as
evidence and presented them to the jury during the agent’s testimony. Because
the jury was able to review the underlying evidence and reach its own conclusions
as to the inferences to be drawn therefrom, it is unlikely that the jury was unduly
swayed by the agent’s brief statement about the phone’s user. The facts here
readily distinguish this case from others where the jury did not see all of the
9 underlying evidence, see United States v. Grinage, 390 F.3d 746, 747–48 (2d Cir. 2004)
(only thirteen out of 2,000 phone calls played to jury), or where the offered opinion
relied on reasoning outside the ken of a lay juror, see United States v. Garcia, 413
F.3d 201, 215–17 (2d Cir. 2005) (narcotics agent testifying about operational
practices of drug dealers). Nor is this a case in which the opinion was the
lynchpin of the government’s case, given that the government presented a
plethora of evidence – including eyewitness identifications, surveillance video,
and Simmons’s own inculpatory statements – to establish Simmons’s guilt.
Accordingly, we are not persuaded that the agent’s brief statement about the
phone’s likely user at the time of the shooting substantially affected Simmons’s
rights. We thus reject Simmons’s claim of plain error.
B. Evidence Concerning Internet Search History
Simmons next argues that the district court wrongly admitted evidence that
Simmons’s cell phone was used to perform an internet search for the query “Glock
22.” Because Simmons objected to this evidence at trial, we review for abuse of
discretion. See Kelley, 551 F.3d at 174–75. Evidence is relevant – and generally
admissible under Rule 402 – if it has any tendency to make the existence of any
material fact more or less probable. See United States v. Abu-Jihaad, 630 F.3d 102,
10 132 (2d Cir. 2010). Even “[n]onconclusive evidence should still be admitted if it
makes a proposition more probable than not.” United States v. Schultz, 333 F.3d
393, 416 (2d Cir. 2003) (internal quotation marks omitted). Relevant evidence
may nonetheless be excluded under Rule 403 if its probative value is substantially
outweighed by the risk of prejudice. See United States v. Awadallah, 436 F.3d 125,
131 (2d Cir. 2006) (citing Fed. R. Evid. 403). We are particularly deferential to a
district court’s evidentiary rulings under Rule 403, “because a district court is
obviously in the best position to do the balancing mandated by Rule 403.” United
States v. Contorinis, 692 F.3d 136, 144 (2d Cir. 2012) (alterations and internal
quotation marks omitted).
We see no abuse of discretion in the district court’s decision to admit the
internet search data. As the district court explained, the internet search was
probative of Simmons’s ammunition charge because a “Glock 22” firearm shoots
the same caliber bullet as the one that struck Bolden; the internet search therefore
supported an inference that Simmons knowingly acquired the ammunition that
was used to shoot Bolden. See App’x at 60–61. This evidence was therefore
relevant – and admissible under Rule 402 – because it rebutted Simmons’s defense
that he was not the shooter and in fact never possessed the ammunition in
11 question. Given that relevance and the fact that the internet search was far less
inflammatory than the evidence of the shooting that was already before the jury,
we likewise reject Simmons’s argument that the admission of such evidence was
unduly prejudicial under Rule 403. See United States v. Roldan-Zapata, 916 F.2d
795, 804 (2d Cir. 1990).
III. Attempted Murder Enhancement
Simmons next contends that the district court erred when it calculated his
sentencing range on the basis of U.S.S.G. § 2A2.1, the attempted murder Guideline.
We review the district court’s interpretation of the Guidelines de novo and review
its findings of fact for clear error. See United States v. Rubenstein, 403 F.3d 93, 99
(2d Cir. 2005). We will not reverse a district court’s factfinding unless “we are left
with the definite and firm conviction that a mistake has been committed.” United
States v. Reilly, 76 F.3d 1271, 1276 (2d Cir.) (internal quotation marks omitted), aff’d
on reh’g, 91 F.3d 331 (2d Cir. 1996).
When a felon possesses ammunition in connection with an attempted
murder, the Guidelines instruct the district court to sentence the defendant under
U.S.S.G. § 2A2.1(a), the attempted murder Guideline. See U.S.S.G.
§§ 2K2.1(c)(1)(A), 2X1.1(c)(1). To commit attempted murder, the defendant must
12 have acted with the “specific intent to kill.” Braxton v. United States, 500 U.S. 344,
351 n.* (1991) (internal quotation marks omitted).
On appeal, Simmons argues that the district court never found that he acted
with specific intent to kill and at most determined that Simmons acted with
reckless indifference. We disagree. The district court correctly recognized that
section 2A2.1(a) covers “assault with intent to commit murder.” App’x at 910
(emphasis added). Although defense counsel argued that Simmons lacked
“specific intent to kill” because he merely shot Bolden once in the leg, the district
court correctly noted that Simmons “chased the victim into the elevator and shot
him at close range” before leaving “the victim on the ground bleeding from a
wound.” Id. at 911. On this record, the district court was justified in concluding
that Simmons intended to kill Bolden. See Reilly, 76 F.3d at 1276; see also United
States v. Stroman, 498 F. App’x 67, 69–70 (2d Cir. 2012) (affirming finding that
defendant intended to kill when he followed two victims into a grocery store and
fired a gun at them).
IV. Constitutionality of Simmons’s Conviction
Finally, Simmons argues that, in light of the Supreme Court’s decision in
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), his conviction under
13 section 922(g)(1) is constitutionally infirm and must be vacated. Because
Simmons did not raise this argument below, our review is confined to plain error.
As we have explained, “for an error to be plain, it must, at a minimum, be clear
under current law, which means that we typically will not find such error where
the operative legal question is unsettled, including where there is no binding
precedent from the Supreme Court or this Court.” United States v. Napout, 963
F.3d 163, 183 (2d Cir. 2020) (alterations accepted and internal quotation marks
omitted). We upheld the constitutionality of section 922(g)(1) in United States v.
Bogle, 717 F.3d 281, 281–82 (2d Cir. 2013), and neither Bruen nor any other binding
precedent has reached a contrary holding.
Because the constitutional infirmity asserted by Simmons is not clear under
current law, we cannot say that his conviction was plainly erroneous. See United
States v. Brillon, No. 22-2956, 2024 WL 392949, at *1 (2d Cir. Feb. 2, 2024) (rejecting
a post-Bruen challenge to the constitutionality of section 922(g)(1) on plain-error
review); United States v. Ogidi, No. 23-6325, 2024 WL 2764138, at *1 (2d Cir. May
30, 2024) (same); United States v. Barnes, No. 23-6424, 2024 WL 5103316, at *1 (2d
Cir. Dec. 13, 2024) (same); United States v. Caves, No. 23-6176, 2024 WL 5220649, at
*1 (2d Cir. Dec. 26, 2024) (same); United Sates v. Leiser, No. 23-6665, 2024 WL
14 5220689, at *2 (2d Cir. Dec. 26, 2024) (rejecting an as-applied challenge on plain-
error review); United States v. Ruhl, No. 21-2892, 2025 WL 262309, at *1 (2d Cir. Jan.
22, 2025) (same); United States v. Hardee, No. 23-6398, 2025 WL 323339, at *1 (2d Cir.
Jan. 29, 2025) (rejecting a facial challenge on plain-error review). Accordingly, we
see no reason to disturb Simmons’s conviction on appeal.
* * *
We have considered Simmons’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court