Opinion
No. 06-5497-cr.
October 31, 2008.
Appeal from the United States District Court for the Southern District of New York (Jones, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREEDthat the judgment of the district court is AFFIRMED.
Appearing for Defendant-Appellant: Sanford Talkin, Talkin, Muccigrosso and Roberts, New York, N.Y.
Appearing for Appellee: Randall W. Jackson, Assistant United States Attorney (Katherine Polk Failla, Assistant United States Attorney, on the brief) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y.
Present: WILFRED FEINBERG ROSEMARY S. POOLER RICHARD C. WESLEY Circuit Judges.
Shawn McCoy appeals from a judgment by the United States District Court for the Southern District of New York, dated and filed on November 9, 2006, convicting him, after a jury trial, of conspiracy to possess with intent to distribute 50 grams or more of crack-cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A), killing Jason Henry in furtherance of a continuing criminal enterprise in violation of 21 U.S.C. § 848(e)(1)(A), using and carrying a firearm in violation of 18 U.S.C. §§ 924(i) and (2), and using, carrying, and discharging a firearm during a narcotics conspiracy in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 18 U.S.C. 924(c)(2). We assume the parties' familiarity with the facts, proceedings below, and specification of issues on appeal.
The trial evidence showed a drug conspiracy that involved operations in Bronx, New York and Newport News, Virginia. Larry Williams was the leader of the conspiracy. Shawn McCoy would recruit drug dealers, transport drugs between the Bronx and Virginia, and transport dealers to locations in Virginia to sell the drugs. In Virginia, the members of the conspiracy used a house as the "main base" for operations. One evening at the house, after Williams berated and injured a dealer that had lost drugs given to him by Williams, McCoy shot the dealer twice in the head, killing him.
We review the district court's evidentiary rulings for abuse of discretion. United States v. Stewart, 433 F.3d 273, 311 (2d Cir. 2006). At trial, McCoy requested that the district court admit the out-of-court statements of Williams and another co-conspirator, who did not testify, to impeach the testimony of two cooperating witnesses. The defense claimed that the statements showed Williams' intent to frame McCoy for the killing, and convince other co-conspirators to do the same. The district court excluded the out-of-court statements because they were irrelevant for purposes of impeaching the witnesses' testimony and invited speculation by the jury.
The out-of-court statements did not support the theory that Williams had influenced the cooperating witnesses to frame McCoy nor undermine their credibility. See United States v. Ebbers, 458 F.3d 110, 123-24 (2d Cir. 2006) (finding that the district court did not abuse its discretion by denying admission of statement that was not "materially inconsistent" with witness testimony). It was thus reasonable for the court to be concerned that admitting those statements might confuse the jury. Even if the court should have admitted the out-of-court statements, this would be harmless error. See Fed.R.Crim.P. 52(a); United States v. Abreu, 342 F.3d 183, 190 (2d Cir. 2003). The out-of-court statements and the witness testimony were consistent in describing the critical fact that McCoy shot the victim twice in the head.
The district court also ruled that the government was permitted to elicit testimony regarding McCoy's involvement in a January 2000 robbery and February 2000 drive-by shooting. Here, although McCoy questions the probative value of these events and argues that they were highly prejudicial, we find that the district court did not abuse its discretion by admitting the evidence. The evidence was probative of McCoy's participation in a violent narcotics enterprise. See United States v. Matera, 489 F.3d 115, 121 (2d Cir. 2007) ("When a defendant engages in a criminal enterprise which involves very serious crimes, there is a likelihood that evidence proving the existence of the enterprise through its acts will involve a considerable degree of prejudice. Nonetheless, the evidence may be of important probative value in proving the enterprise.") Moreover, the evidence of the uncharged acts did not implicate conduct more serious or inflammatory than the shooting of Henry. See United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000) (finding no abuse of discretion when the admitted evidence did not "involve conduct more serious than the charged crime"). We conclude that the district court did not abuse its discretion in its evidentiary rulings.
For these reasons, we AFFIRM the judgment of the district court.