United States v. Rosemond

958 F.3d 111

UNITED STATES of America, Appellee,

v.James J. ROSEMOND, Defendant-Appellant,Derek Andre English; Rodney Johnson, also known as Rodney T. Hibbert, Toree Johnson; Ronald Anderson; Brian McCleod, also known as Slim, Brian Connelly, Joseph King, Brian Conley, John A. Conley; Derrick Grant ; Shawn Williams, also known as William Shawn; Jason Williams, Defendants.

Docket No. 18-3561-cr

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: December 10, 2019

Decided: May 1, 2020

Elizabeth Hanft, Assistant United States Attorney (Samson Enzer, Drew Skinner, and Karl Metzner, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Michael E. Rayfield (Scott A. Chasin and Shai M. Silverman, on the brief), Mayer Brown LLP, New York, NY, for Defendant-Appellant.

Before: Sack, Chin, and Bianco, Circuit Judges.

Chin, Circuit Judge:

In this case, defendant-appellant James Rosemond was charged with murder-for-hire, conspiracy to commit murder-for-hire, possession of a firearm during a murder-for-hire conspiracy, and murder through use of a firearm, in violation of 18 U.S.C. §§ 1958, 924(c)(1)(A)(iii), and 924(j). These charges stemmed from the death of Lowell Fletcher. The government alleged that Rosemond hired others to kill Fletcher, who had previously assaulted Rosemond's teenage son. At trial, Rosemond's counsel conceded in summation that Rosemond hired individuals to shoot Fletcher, but he argued that the government failed to prove that Rosemond intended for Fletcher to be killed. The jury was not persuaded, and it returned a guilty verdict. The district court eventually sentenced Rosemond to imprisonment for life plus 30 years.

On appeal, Rosemond argues that he was deprived of his Sixth Amendment rights to autonomy and effective assistance of counsel because his lawyer conceded that he hired individuals to shoot Fletcher over his objection. He also argues that the district court improperly admitted uncharged prior bad-act evidence under Federal Rule of Evidence 404(b)(1). For the reasons set forth below, we AFFIRM .

BACKGROUND

I. The Facts

On appeal from a conviction following a jury trial, the "facts are drawn from the trial evidence and described in the light most favorable to the government." United States v. Wilson , 709 F.3d 84, 85 (2d Cir. 2013).

A. The Feud

Rosemond owned Czar Entertainment ("Czar"), a Manhattan-based music management company that represented hip-hop, rap, and R&B artists. Czar's office was located across the street from a rival record label, Violator Records ("Violator"). From as early as 2002, when Rosemond paid his associate Derrick Grant "half a kilo of cocaine" to shoot the awning on Violator's office building, App'x at 1004, the two music companies were engaged in a contentious, often-violent rivalry.¹ In 2003, Rosemond himself shot a parked car that belonged to Violator owner Christopher Lighty because Lighty was slow to return Rosemond's phone calls.

The rivalry intensified in February 2005. At that time, Czar represented rapper Jayceon Taylor, also known as "The Game." Despite being individually represented by Czar, Taylor was a member of G-Unit, a rap group managed by Violator and run by one of G-Unit's members, Curtis Jackson, also known as "50 Cent." While appearing as a guest on Hot 97, a New York-based radio station, Jackson insulted Taylor and ousted him from G-Unit. After hearing this transpire on the radio, Rosemond directed Mohammed Stewart, a Czar associate, to accompany Taylor to the Hot 97 studio to confront Jackson. When they arrived, Taylor, Stewart, and their entourage were shot at and retreated to Czar's office, but not before one of Taylor's friends was struck by a bullet. In retaliation, Stewart and one of his friends shot at the Violator building and were rewarded with a $2,000 payment, arranged by Rosemond.

The violence continued to escalate. In 2006, at an awards ceremony at the Apollo Theater in Harlem, New York, Rosemond got into an altercation with another G-Unit member, Marvin Bernard, also known as "Tony Yayo." Following a brief exchange in the lobby, several G-Unit associates followed Rosemond and others to the mezzanine of the theater where the G-Unit associates pulled out a gun and threatened violence. Rosemond and his Czar associates left the theater and went into Khalil Abdullah's car. Abdullah, one of Rosemond's associates, called his friend and told him to bring over some guns. The friend complied, and when Bernard and his crew left the Apollo Theater later that night, Abdullah directed the friend to shoot at Bernard's car while Rosemond looked on. Abdullah later learned that a bullet struck a passenger in the vehicle.

On March 20, 2007, as Bernard and at least two other G-Unit associates -- including Fletcher -- were leaving Violator's office, they saw a 14-year-old boy wearing a "Czar" sweatshirt. The men confronted the boy by surrounding him, pushed him up against a wall, slapped him, and threatened him with what appeared to be a gun. The boy was Rosemond's son. Later that day, after Rosemond learned what happened, he and a group of Czar associates were gathered outside of Czar's office when they saw Lighty's brother walking by. Stewart wanted to exact some immediate revenge on Rosemond's behalf, and, using a razor provided by Rosemond, slashed Lighty's brother in the face.

More violence ensued, as Rosemond continued to commit and order violent acts against G-Unit. In April 2007, Rosemond shot at Bernard's mother's house while several of Bernard's family members, including a baby, were inside. In early 2008, Rosemond paid Stewart to shoot at a Violator associate's house in Staten Island. Other Czar acts of violence included throwing a Molotov cocktail at a G-Unit associate's truck, attempting to shoot Jackson, hiring an arsonist to burn one of Jackson's cars, trying to lure Lighty to a restaurant where he would be shot, and shooting at a van filled with G-Unit associates in an attempt to "make it a coffin." App'x at 311.

Rosemond told an associate he did not plan to stop until somebody was killed. In September 2009, someone was killed.

B. The Murder-for-Hire Conspiracy

Brian McCleod met Rosemond in jail in the late 1990s. While there, McCleod introduced Rosemond to Grant, and the three of them grew friendly. In 2002, after all three were released, Rosemond gave McCleod and Grant jobs at his music label, which was then called Henchmen Entertainment (and later became Czar). McCleod was hired to supervise the activity at the studio, and Grant was hired to accompany Rosemond to events and serve as "muscle." App'x at 1003. In 2003, McCleod stopping working at the record label, but he remained in contact with Rosemond. On August 9, 2004, McCleod received a call from Rosemond asking McCleod, in coded language, to go to an apartment in Queens to remove money and drugs. Shortly after McCleod arrived at the house, where there were 40 kilograms of cocaine and $450,000 in cash, he was arrested. McCleod did not cooperate with law enforcement or implicate Rosemond, and he was ultimately convicted and sentenced to a term of imprisonment.

McCleod spent a portion of his jail sentence at Mohawk Correctional Facility ("Mohawk") in Rome, New York. A month before McCleod was released, Fletcher was transferred from another prison to Mohawk. While there, he bragged about slapping Rosemond's son. McCleod did not reveal to Fletcher that he was connected to Rosemond. On August 10, 2009, McCleod was released from jail. A few days later, as partial payment for McCleod not cooperating with law enforcement, Rosemond arranged for McCleod to receive $5,000.

Shortly thereafter, McCleod met Rosemond in Central Park and told him he had "a line on the guy that slapped your son," App'x at 1028, indicating he knew an inmate still in prison with Fletcher. Rosemond said that he would have paid $10,000 for someone to "cut" Fletcher in jail, App'x at 1029, and he expressed interest in Fletcher's whereabouts because he was having trouble sleeping ever since Fletcher assaulted his son.

Rosemond and McCleod met up again around a week-and-a-half later. They talked more about "the line" McCleod had on Fletcher, and Rosemond said: "I have $30,000 for anybody who brings him to me cause I'mma hit him so hard and so fast he's not gonna see it coming." App'x at 1034. After Rosemond said he was considering "doing this" himself, he asked for McCleod's thoughts. App'x at 1057. McCleod believed it was unwise for Rosemond to be involved in any violence himself, so he mentioned involving Grant. Rosemond instructed McCleod to see whether Grant would be interested. Grant was, but he wanted more than $30,000. McCleod agreed with Grant that a larger fee was required because the $30,000 was McCleod's fee for luring Fletcher to an attack, and Grant would need "at least twice that amount, if not more, maybe even close to a hundred [thousand dollars]" to be the shooter. App'x at 1068. McCleod then informed Rosemond that Grant was now involved in the plan.

McCleod learned from his contact in jail that Fletcher was being released on September 11, 2009. Rosemond instructed McCleod and Rosemond's chauffeur -- Jason Williams -- to go to Long Island City, New York, where Fletcher would be released. After just missing Fletcher's release from jail, McCleod called Fletcher's lawyer, who happened to be with Fletcher.² The lawyer put Fletcher on the phone with McCleod, who introduced himself as "Slim," a friend-of-a-friend. App'x at 1076. McCleod pretended to want to help Fletcher land on his feet by offering him financial assistance. He also gave him his cell phone number. McCleod did this to earn Fletcher's trust so he would eventually be able to lure Fletcher to a location where he would be shot. When McCleod relayed his conversation with Fletcher to Rosemond, Rosemond ordered Jason Williams to give...