United States v. McCoy

995 F.3d 32

UNITED STATES of America, Appellee,

v.Earl MCCOY, aka P, Matthew NIX, aka Meech, aka Mack, aka Mackey, Defendants-Appellants^* .

Docket Nos. 17-3515(L)

17-3516

18-619

18-625

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: October 23, 2019

Final Briefs Submitted: January 3, 2020

Decided: April 22, 2021

ROBERT MARANGOLA, Assistant United States Attorney, Rochester, New York (James P, Kennedy, Jr., United States Attorney for the Western District of New York, Tiffany H. Lee, Assistant United States Attorney, Rochester, New York, on the brief), for Appellee.

ROBERT W. WOOD, Rochester, New York, for Defendant-Appellant Earl McCoy.

MICHAEL JOS. WITMER, Rochester, New York, for Defendant-Appellant Matthew Nix.

Before: KEARSE, PARKER, and SULLIVAN, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Earl McCoy and Matthew Nix appeal in Nos. 17-3515 and 17-3516, respectively, from judgments entered in the United States District Court for the Western District of New York following a jury trial before Elizabeth A. Wolford, Judge , convicting each defendant on one count of Hobbs Act conspiracy, in violation of 18 U.S.C. § 1951(a) ; one count of Hobbs Act robbery and two counts of Hobbs Act attempted robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; four counts of brandishing firearms during and in relation to crimes of violence, to wit, the Hobbs Act conspiracy, Hobbs Act robbery, and Hobbs Act attempted robbery counts, in violation of 18 U.S.C. §§ 924(c)(1)(C)(i) and 2; one count of conspiracy to distribute and to possess with intent to distribute marijuana and heroin, in violation of 18 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(D) ; and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ; convicting McCoy on one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2; and convicting Nix on one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(C)(i) and 2. McCoy and Nix were sentenced principally to imprisonment for 135 years and 155 years, respectively.

In Nos. 18-619 and 18-625, respectively, McCoy and Nix appeal from an order of the district court denying their postjudgment motions for reconsideration of the denial of their postverdict motions seeking a new trial on the ground that one of the jurors had given false responses to voir dire questions with regard to whether he had previously been convicted of a felony.

On appeal, defendants contend principally (a) that they are entitled to a new trial on the ground that the juror's false voir dire responses violated their rights to be tried before a fair and impartial jury (see Part II.A. below); (b) that their firearm brandishing convictions should be reversed, and those counts dismissed, on the ground that none of their Hobbs Act offenses are predicate crimes of violence under 18 U.S.C. § 924(c) (see Part II.B. below); (c) that in light of Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), the trial court erred in failing to instruct the jury on an essential element of the § 922(g)(1) charges of being felons in possession of firearms (see Part II.C.1. below); and (d) that they are entitled to reduction of their sentences under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 ("First Step Act") (see Part II.D. below). Nix also makes brief sufficiency and instructional challenges.

Finding merit in the contention that Hobbs Act conspiracy is not a § 924(c) crime of violence, see , e.g. , United States v. Barrett , 937 F.3d 126 (2d Cir. 2019), we reverse defendants' § 924(c) convictions on Count 2 for brandishing firearms predicated on Hobbs Act conspiracy. Defendants' convictions on all other counts, as well as the denial of their motions for a new trial, are affirmed. The matter is remanded for defendants' resentencing, and for consideration by the district court of what relief, if any, may be appropriate under the First Step Act.

I. BACKGROUND

The present prosecution focused on a series of home invasions in the Rochester, New York area in September and October 2014. The operative superseding indictment ("Indictment") alleged that McCoy and Nix, along with others including Clarence Lambert, Jecovious Barnes, Jessica Moscicki, and Gary Lambert, unlawfully conspired and attempted to rob other persons of commodities that had been shipped and transported in interstate and foreign commerce, such as diamonds, watches, United States currency, and narcotics, and conspired to traffic in the stolen narcotics. Clarence Lambert (or "Clarence") and Gary Lambert (or "Gary") are McCoy's younger brothers.

The government's evidence at the five-week trial of McCoy and Nix principally included testimony by Barnes, Moscicki, and Gary Lambert, who had entered into plea agreements with the government; testimony by victims of four home invasions; and cellular telephone records indicating that McCoy and Nix were in the immediate vicinity of the invasions, corroborating victim testimony about phone calls made during the robberies. Taken in the light most favorable to the government, the evidence included the following.

A. Coconspirator Testimony as to Planning and Implementation

Gary Lambert testified that in early 2014 he relocated from Brooklyn to Rochester to be with his brothers. He had known that McCoy and Clarence were engaged in the business of prostitution; when he arrived in Rochester, McCoy and Clarence also told him that "they was doing home invasion robberies, robbing people and selling drugs," and they recruited him to join their operation. (Trial Transcript ("Tr.") 2797.)

Gary testified that the robbery operation was led by McCoy and Nix and principally targeted persons who were believed to be drug dealers. McCoy, who was generally called "P," and Nix, who was generally called "Meech," had members of their crew, including Clarence, place tracking devices on vehicles driven by the persons targeted. McCoy and Nix were then able to use their phones to track the prospective victims' whereabouts (see id . at 2867) and tell Gary, Clarence, and the others whether the homes they were about to invade were unoccupied. Nix "was the one to tell us who had what, where to get it and how to get it." (Id . at 2853.)

Barnes, who was also known as "Bubbs" (see Tr. 1256-58), testified that he had committed some 10-20 "home invasion missions" with Nix (Tr. 1240) and that their targets generally were suspected drug dealers, victims unlikely to report the robberies to the police. Nix would drive Barnes to the locations for the invasions; and although Nix never went inside the homes, he provided weapons and would communicate with Barnes by phone during the robberies. (See , e.g. , id . at 1227 (Nix and McCoy supplied their crew with guns).) Nix would determine how the proceeds were distributed. (See id . at 1225-39.)

Moscicki testified that in the summer of 2014 she worked as a prostitute for McCoy, with whom she had a close, but non-romantic relationship; she was the girlfriend of McCoy's brother Clarence. Moscicki testified that, except for a 60-day period when she was in jail for shoplifting, she saw Clarence every day; she also saw McCoy about every two days. Much of the time she was living either with McCoy and his girlfriend "Anness" or with Clarence.

She assisted in the robbery operation by receiving on her cellphone messages from Nix to be relayed to Clarence, who did not have a working phone. On at least two occasions, she assisted more directly in invasions, either by knocking at the door of the targeted home to determine whether anyone was there or by driving a getaway car. She testified that she had been aware of the robbery operations conducted by McCoy and Nix, in which Clarence participated, because "Clarence would come back" to where they were staying "with a whole bunch of stuff, money, drugs, electronics" (Tr. 514). Clarence told her he was participating in home invasions with McCoy, Nix, Barnes, and Gary (see id . at 515) and described the tracking devices they used on the cars of their prospective victims. Clarence said Nix told the crew which places to rob. Moscicki also heard Clarence discussing such invasions with Gary, Barnes, McCoy, and Nix.

Gary described the first home invasion in which he participated, a burglary where no one was at home; Nix told McCoy, Clarence, and Gary that the occupants had a lot of money and marijuana in the house; Nix and McCoy provided information from a tracking device. Gary and Clarence broke in; Gary then let McCoy in; and the three of them searched the house. (See Tr. 2868-71.) They found-as Nix had predicted--substantial amounts of cash (totaling some $64,000) and marijuana (some 24 pounds). All of the proceeds of the robbery were handed over to McCoy and Nix, who divided most of it between themselves and gave the remainder--a total of $6,000 and one-and-a-half pounds of marijuana--to Gary and Clarence. (See id . at 2871-76.) Gary assisted in the sales of McCoy's share of the marijuana. (See id . at 2873-79.)

B. Victims' Testimony and Results of the Invasions

Victims of four home invasions described their losses and/or their treatment by the intruders. In an attempted robbery on September 15, two men with guns broke into a home on Hayward Avenue, demanding drugs and assaulting the adult occupants. No drugs were found. One of the would-be robbers was identified at trial as McCoy. Upon realizing that the residents were not drug dealers as defendants had believed, McCoy had made a phone call stating that "there was nothing in the house, that ... there was just a woman and a man and a little kid." (Tr. 1082.)

In another attempted robbery, men broke into a home on Garson Avenue on September 18. They knocked one of the residents down and tied her up, brandished a gun at her mother, and asked " ...