United States v. Johnson

UNITED STATES OF AMERICA, Appellee, v. LATIQUE JOHNSON, DONNELL MURRAY, AKA DON P., Defendants-Appellants.²

19-3952-cr

19-4357-cr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

June 22, 2021

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 22^nd day of June, two thousand twenty one.

Present: ROSEMARY S. POOLER, WILLIAM J. NARDINI, Circuit Judges, LEWIS A. KAPLAN, District Judge.¹

Appearing for Appellants:

Andrew Levchuk, Amherst, MA, for Defendant-Appellant Latique Johnson.

Bruce R. Bryan, Manlius, N.Y., for Defendant-Appellant Donnell Murray.

Appearing for Appellee:

Allison Nichols, Assistant United States Attorney (Andrew K. Chan, Jessica Feinstein, Karl Metzner, Assistant United States Attorneys, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Gardephe, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Latique Johnson and Donnell Murray (collectively, "Appellants") appeal from judgments of conviction entered on December 23, 2019 and November 15, 2019, respectively, in the United States District Court for the Southern District of New York (Gardephe, J.), following a jury trial. Together, they were convicted of racketeering conspiracy; assault and attempted murder or aiding and abetting the same in aid of racketeering; conspiracy to distribute cocaine, crack cocaine, and heroin; and use and possession of a firearm in connection with a drug trafficking crime. The district court principally sentenced Johnson to 30 years' imprisonment, and Murray to 235 months' imprisonment. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.

Johnson and Murray's convictions stem from their association with a subset of the nationwide gang commonly known as the Bloods. While incarcerated, Johnson founded the unit of the Bloods at issue here, the Blood Hound Brims ("BHB"), in which Murray held various positions. Appellants each present multiple arguments on appeal. For the reasons below, we affirm both judgments.

A. Johnson

Johnson first argues that the evidence supporting his conviction under Count Three, attempted murder in aid of racketeering, was insufficient. Johnson highlights the purportedly contradictory testimony of two cooperating witnesses who were present at the drive-by shooting underlying the charge. This argument fails. The discrepancies Johnson points to are minor and do not undermine the critical facts established at trial—that Johnson commanded another member of BHB to shoot at two nearby members of a rival gang with which BHB was feuding. To the extent Johnson questions the witnesses' credibility, "[i]t is the province of the jury and not of the court to determine whether a witness who may have been inaccurate, contradictory, and even untruthful in some respects was nonetheless entirely credible in the essentials of his testimony." United States v. O'Connor, 650 F.3d 839, 855 (2d Cir. 2011) (internal quotation marks omitted). "[A]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," United States v. Chow, 993 F.3d 125, 135-36 (2d Cir. 2021) (italics and internal quotation marks omitted), so we must uphold the conviction.

Next, Johnson argues that the district court erred in admitting expert ballistics testimony through government witness Detective Jonathan Fox of the New York Police Department. Hecontends in particular that toolmark identification, a methodology used to determine whether pieces of ballistics evidence, such as bullets and casings, were discharged from a given firearm, is insufficiently reliable because there is little or no scientific evidence establishing that toolmarks are unique to each firearm. Federal Rule of Evidence 702 and the Daubert factors do not create "a definitive checklist or test" and allow for the admission of "specialized knowledge" outside of purely scientific or technical fields. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (internal quotation marks omitted). Here, the district court conducted an extensive Daubert hearing, carefully considered Johnson's contentions as well as Detective Fox's testimony, and rendered a thorough, reasoned opinion that took full account of Johnson's contentions.

We review the admission of expert testimony for abuse of discretion. United States v. Romano, 794 F.3d 317, 330 (2d Cir. 2015). We previously have affirmed the admission of toolmark identification expert testimony even where the trial court did not conduct an extensive Daubert hearing, as the court did here. See United States v. Williams, 506 F.3d 151, 160-61 (2d Cir. 2007). In the circumstances, we doubt that admission of Fox's testimony was an abuse of discretion. In any case, however, any error certainly was harmless. Counsel explored the alleged flaws in Fox's opinion in a substantial cross-examination, and the jury was able to draw its own conclusions. See Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002) ("[V]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). At least equally important, multiple witnesses testified that Johnson mimicked shooting the victims, obtained an assault rifle shortly before the shooting, placed Johnson at the shooting and identified him as the shooter, and provided evidence of the motive, i.e., an ongoing rivalry between BHB and another gang.

The district court also did not err in denying Johnson's motion for a new trial. As discussed, Fox's testimony was properly admitted. As for Johnson's conviction on Count Four, conspiracy to distribute controlled substances, "[i]t is well settled that individual defendants are responsible for all reasonably foreseeable quantities of drugs distributed by a conspiracy of which they were members." United States v. Johnson, 633 F.3d 116, 118 (2d Cir. 2011). Ample evidence supported the finding that Johnson, the leader and founder of BHB, was responsible for 5 kilograms or more of cocaine, 280 grams or more of cocaine base, 1 kilogram or more of heroin, and any quantity of marijuana. Indeed, the Elmira portion of BHB's drug operation alone accounted for one kilogram of cocaine every two to three days, half of which was converted to crack cocaine, and 80 grams of heroin on each restock trip to New York City. To the extent Johnson again raises witness credibility issues regarding his Count Four conviction, the jury has already resolved this question, and we may not disturb its judgment.

Johnson also argues that his sentence was unreasonable. "We review a sentence on appeal for procedural and substantive reasonableness." United States v. Seabrook, 968 F.3d 224, 232 (2d Cir. 2020). "A district court commits procedural error when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence." United States v. Alcius, 952 F.3d 83, 87 (2d Cir. 2020) (internal quotation marks omitted). "Our review of a sentence forsubstantive reasonableness is particularly deferential, and we will set aside only those sentences that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice." United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (citation, alteration, and internal quotation marks omitted).

Johnson concedes that he received a below-Guidelines sentence and does not present grounds for finding procedural error. Instead, Johnson argues that his difficult childhood, along with exemplary behavior during incarceration, merited a shorter term of imprisonment. However, the district court took all of this, along with the other Section 3553(a) factors, into consideration at sentencing. Weighing against Johnson were several other factors, including the violent nature of his crimes, his founding and leadership role within BHB, and the high risk of recidivism, given that Johnson founded BHB while he was incarcerated for other crimes. Accordingly, we cannot say the court's 30-year sentence is shockingly high.

B. Murray

Murray argues that the evidence at trial was insufficient to support his convictions for racketeering conspiracy (Count One) and assault and attempted murder in aid of racketeering (Count Two). There was ample evidence to support the jury's finding that Murray participated in a pattern of racketeering based on the narcotics trafficking crimes alone. See United States v. Zemlyanksy, 908 F.3d 1, 11 (2d Cir. 2018) (explaining that racketeering conspiracy requires proof of, inter alia, "two or more predicate acts of racketeering"). For example, witnesses testified that Murray purchased 10 grams of heroin to resell, that Murray had stated he was selling crack near 241st Street and White Plains Road, an area BHB members frequented, and that...