United States v. Collins

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United States of America, Appellee, v. Vance Collins, Ramon Ramirez, Defendants-Appellants.^[*]

Nos. 21-1291(L), 21-1305(Con)

United States Court of Appeals, Second Circuit

January 19, 2023

UNPUBLISHED OPINION

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 19^th day of January, two thousand twenty-three.

Appeal from judgments of the United States District Court for the Southern District of New York (P. Kevin Castel, Judge).

For Defendant-Appellant Vance Collins: ERIC R. BRESLIN (Arletta K. Bussiere, on the brief), Duane Morris LLP, Newark, NJ.

For Defendant-Appellant Ramon Ramirez: BEVERLY VAN NESS, New York, NY.

For Appellee: ADAM S. HOBSON (Jamie Bagliebter, Hagan Scotten, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

PRESENT: RICHARD J. SULLIVAN, ALISON J. NATHAN, SARAH A. L MERRIAM, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.

Vance Collins and Ramon Ramirez appeal from judgments of conviction after a jury trial in which both men were found guilty of murder-for-hire and conspiracy to commit murder-for-hire, in violation of 18 U.S.C. § 1958, and Collins was found guilty of possessing a firearm after having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Collins to 144 months' imprisonment, consisting of concurrent sentences of 120 months' imprisonment for the murder-for-hire counts and a consecutive term of twenty-four months' imprisonment for the felon-in-possession charge, and Ramirez to concurrent terms of 120 months' imprisonment for the murder-for-hire counts. On appeal, Collins and Ramirez raise four principal challenges to their convictions and sentences, which we address in turn. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

I. Sufficiency of the Evidence

Ramirez and Collins challenge the sufficiency of the evidence underlying their murder-for-hire convictions in two respects. First, they contend that the evidence produced at trial was not sufficient to show that they hired Jakim Mowatt to kill Eric Santiago. Second, they contend that the government failed to prove that there was a sufficient nexus between the murder plot and the use of a facility of interstate commerce. While we generally review the sufficiency of the evidence de novo, United States v. Yannotti, 541 F.3d 112, 120-21 (2d Cir. 2008), we apply the plain-error standard to this second challenge because the argument pressed on appeal was not raised in the district court. See United States v. James, 998 F.2d 74, 78 (2d Cir. 1993).

"A defendant seeking to overturn a jury verdict on sufficiency grounds bears a heavy burden," because we will "uphold the conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Anderson, 747 F.3d 51, 59 (2d Cir. 2014) (internal quotation marks omitted). When considering a sufficiency challenge, we view the evidence "in its totality, not in isolation," United States v. Huezo, 546 F.3d 174, 178 (2d Cir. 2008) (internal quotation marks omitted), and "in a light that is most favorable to the government, . . . with all reasonable inferences resolved in favor of the government," United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011) (internal quotation marks omitted).

Here, there was more than sufficient evidence for the jury to conclude that Ramirez and Collins hired Mowatt to kill Santiago. The government adduced extensive evidence showing that Ramirez, after learning that Santiago was having an affair with his wife, hatched a plan with Collins to "take care" of the situation. App'x at 1038. At first, their plan was to hire someone to "beat up" Santiago, but the plan escalated to "murder" within months. Id. at 545, 550. The hired hitman, Mowatt, testified that he was promised $25,000 (among other benefits) for the job, and that he, in turn, recruited Barry Johnson to help carry out the hit. The government's theory of the case was also supported by Ramirez's post-arrest statement, Johnson's testimony, Santiago's testimony, telephone records showing frequent contact among the co-conspirators and hitmen, and the contents of Mowatt's cell phone, which included Santiago's home address, photos of Santiago, and videos of the trips that Mowatt and Johnson had conducted to surveil Santiago. While Defendants maintain that Mowatt was not credible and insist that the plan was still to beat up, rather than kill, Santiago, the jury was certainly free to credit Mowatt's testimony that Defendants "wanted [Santiago] dead." Id. at 558. Since we must "defer to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony," we have no basis for disturbing the jury's verdict on appeal. United States v. Triumph Cap. Grp., Inc., 544 F.3d 149, 159 (2d Cir. 2008) (internal quotation marks omitted).

Defendants' next argument - that the government failed to prove that the murder plot involved the use of a facility of interstate commerce - fares no better. Under section 1958, the government must prove that a defendant "use[d] or cause[d] another (including the intended victim) to use . . . any facility of interstate . . . commerce, with intent that a murder be committed." 18 U.S.C. § 1958(a). This jurisdictional element can be proven by, among other things, showing that an intrastate call in furtherance of the murder plot was made on an interstate-telephone network. See United States v. Perez, 414 F.3d 302, 304-05 (2d Cir. 2005); see also United States v. Francisco, 642 Fed.Appx. 40, 44 (2d Cir. 2016) (finding sufficient evidence to satisfy section 1958's jurisdictional element when pay phone was used to discuss murder plot).

Here, there was ample evidence showing that Defendants used their cell phones - which they stipulated operated on national networks - in furtherance of the plot to murder Santiago. App'x at 880-83. For example, Mowatt testified that Collins communicated the plan to kill Santiago by phone "a month or two" after the "summer of 2017," id. at 548, 558, and while Defendants argue that this call was not corroborated by the call records introduced at trial, the jury was free to credit that testimony while making allowances for the possibility that Mowatt may have been mistaken about the precise timing of the call. See United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008) (explaining that we must draw "every inference that could have been drawn in the government's favor"). Mowatt also testified that he often called Collins with status updates concerning the murder-for-hire plot during his surveillance trips. The call records did corroborate these communications, and the government showed that Collins and Ramirez spoke over the phone immediately after many of Mowatt's calls to Collins. And although there was no testimony as to what Collins and Ramirez discussed during these calls, the jury could have reasonably inferred, based on the timing of the calls and Mowatt's testimony, that these calls were made in furtherance of the plot to kill Santiago. We thus have no trouble concluding that the evidence produced at trial was sufficient to prove the jurisdictional element of section 1958.

II. Fourth Amendment

Collins argues that the district court erred in denying his motion to suppress the three firearms seized from his home after he requested that officers permit him to retrieve a coat from his house following his arrest. "In an appeal from a district court's ruling on a motion to suppress, we review legal conclusions de novo and findings of fact for clear error." United States v. Freeman, 735 F.3d 92, 95 (2d Cir. 2013). Under the Fourth Amendment, "a search authorized by consent is wholly valid." Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The question of whether an individual consented to a search often turns on the credibility of witnesses. A district court's "factual determinations [as] to witness credibility" are entitled to "special deference." United States v. Jiau, 734 F.3d 147, 151 (2d Cir. 2013).

Accordingly, when a district court's "finding is based on [its] decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error." Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).

Collins cannot show that the district court erred in determining that he consented to permit the officers to enter his residence and then voluntarily disclosed the location of three firearms. At the suppression hearing, Detective James Menton testified that Collins consented to the search after he was arrested outside his home. According to Menton, Collins was shivering from the cold when he asked if he could grab a jacket from inside his residence,...