United States v. Stewart

280 F. App'x 44
Court of Appeals for the Second Circuit·Decided May 29, 2008·No. No. 06-3209-cr·Published

Opinion

SUMMARY ORDER

Defendant-appellant Antoine Stewart appeals from a judgment of conviction entered on June 28, 2006. Following a jury trial, defendant was convicted of conspiracy to murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5); murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1), (2); conspiracy to distribute at least fifty grams of crack cocaine in violation of 21 U.S.C. § 846; murder in connection with a narcotics conspiracy in violation of 21 U.S.C. §§ 848(e)(1)(A) and 18 U.S.C. § 2; discharge of a firearm in connection with a narcotics conspiracy in violation of 18 U.S.C. §§ 924(c)(l)(A)(iii) and 2; and murder with a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 924(j) and 2. Defendant was sentenced principally to a term of life imprisonment plus ten years. On appeal, defendant argues that (1) there was insufficient evidence to sustain his conviction for participation in the narcotics conspiracy; (2) the District Court erroneously admitted evidence of prior crimes and bad acts in violation of Federal Rule of Evidence 404(b); and (3) the District Court erred in declining to give the jury a “multiple conspiracy charge.” We assume the parties’ familiarity with the facts and procedural history of the ease.

When considering a challenge to the sufficiency of the evidence, we “view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a [46] reasonable doubt.” United States v. Rosa, 11 F.3d 315, 337 (2d Cir.1993) (internal citations omitted). We review a district court’s evidentiary rulings for abuse of discretion. See, e.g., United States v. Germosen, 139 F.3d 120, 127 (2d Cir.1998). When a defendant has not raised objections to the admission of the disputed evidence before the District Court, we review the District Court’s ruling under the plain error standard. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). When a defendant’s failure to object is based on a tactical decision, “that action constitutes a true ‘waiver,’ which will negate even plain error review.” United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir.1995). We review challenges to jury instructions de novo, reversing “only if all of the instructions taken as a whole caused [the] defendant prejudice.” United States v. Bok, 156 F.3d 157, 160 (2d Cir.1998).

We conclude that defendant has failed to establish that there was insufficient evidence to sustain his conviction for participation in the narcotics conspiracy. While there may have been no direct evidence that defendant knew that the murder-for-hire he performed was in furtherance of the drag conspiracy, there was ample circumstantial evidence presented at trial “from which it [could] reasonably be inferred that the [defendant] knew of the existence of the [drug conspiracy] alleged in the indictment and knowingly joined and participated in it.” United States v. Sanchez Solis, 882 F.2d 693, 696 (2d Cir.1989); see also United States v. Samaria, 239 F.3d 228, 234 (2d Cir.2001) (“A defendant’s participation in a criminal conspiracy may be established entirely by circumstantial evidence.” (internal quotation marks omitted)).

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United States v. Stewart, 280 F. App'x 44 (2d Cir. 2008).

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