Defendants-appellants Ledrell Hart and Corneilus Draper appeal from judgments of conviction entered on May 23, 2007 and May 24, 2007, respectively, following a jury trial in the United States District Court for the Eastern District of New York (Dearie, J.) on firearm, narcotics, and witness retaliation and tampering charges. The Court finds plain error in the proceedings below because the jury was improperly charged on the retaliation counts and the evidence presented at trial was insufficient to convict on those counts. The Court thus REVERSES the retaliation convictions and REMANDS to the district court for resentencing.
The opinion of the court was delivered by: Sotomayor, Circuit Judge.
Before NEWMAN, CALABRESI, and SOTOMAYOR, Circuit Judges.
Defendants-appellants Ledrell Hart ("Hart") and Corneilus Draper ("Draper") appeal from judgments of conviction entered on May 23, 2007 and May 24, 2007, respectively, following a jury trial in the United States District Court for the Eastern District of New York (Dearie, J.) on the following witness retaliation, witness tampering, narcotics, and firearm charges: conspiracy to retaliate against a witness, in violation of 18 U.S.C. § 1513(b)(2), (f); retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(2); conspiracy to tamper with a witness, in violation of 18 U.S.C. § 1512(a)(2)(C), (k); tampering with a witness, in violation of 18 U.S.C. § 1512(a)(2)(C); conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846; possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii); and possession of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). In this opinion we address only Hart's and Draper's challenge to the sufficiency of the evidence on the witness retaliation convictions and to the applicability of the firearm convictions in calculating their Criminal History Categories. In a companion summary order we consider, and reject, their challenges to the sufficiency of the evidence supporting the firearm, narcotics, and witness tampering charges.
Hart and Draper argue that the trial evidence was insufficient to sustain the witness retaliation charges under § 1513(b)(2) and (f) because the government did not show that the witness had adequate contacts with federal authorities prior to being attacked. Additionally, Hart and Draper assert that this Court's recent decision in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), precludes imposition of a mandatory five-year consecutive sentence under § 924 (c)(1)(A)(i) because they are already subject to a "greater minimum sentence" provided by another "provision of law."
Because we conclude that the jury was improperly charged on the witness retaliation counts and that the evidence was insufficient to convict Hart and Draper of those offenses, we find plain error and REVERSE the retaliation convictions. We thus REMAND for resentencing and bring Whitley to the district court's attention so that it may consider in the first instance the decision's application to non-firearm offenses and advise us if the sentences it imposes are affected by this issue.
A. Lincoln Road Productions
As established at trial,*fn1 Hart and Draper were members of Lincoln Road Productions ("LRP"), a narcotics gang that dealt in crack cocaine in the Lincoln Road and Flatbush Avenue area of Brooklyn, New York. LRP maintained exclusive dominion over the neighborhood the group claimed as its territory, and members pledged to "keep the block pumping" with drugs.
LRP members also retaliated against and punished those who aided police investigations of the group's activities; the LRP credo was "all informants should be killed."
The attack that led to the applicable convictions stemmed from the police investigation of the murder of Wesley Thomas, who was shot during a robbery at his apartment on July 9, 2001. Hart and Draper were not involved in the murder, but other members of the LRP gang were, including Cory Marcano ("Marcano") and Clinton Davy ("Davy").
B. Witness Clinton Davy's Involvement with Local and Federal Authorities and the Three Assaults
On July 13, 2001, four days after Wesley Thomas's murder, Davy was first "picked up by detectives" and brought to the 71st Precinct in the Brooklyn District Attorney's office. In the early morning hours of July 14, 2001, Davy implicated two "imaginary people" in Thomas's death in a taped statement. Later that day, Davy spoke with Marcano and related the false story he had given police. Hoping Davy would identify the (imaginary) suspects in mug shots, police contacted Davy many times in the weeks that followed. During that time, Marcano became fearful that Davy was cooperating with the police investigation of the Thomas murder. Indeed, Marcano confronted Davy about his frequent police contacts, fearing that Davy was going to "give him up." Marcano also communicated his fear to other LRP members. On August 2, 2001, Davy met with unnamed "police officers," ended his ruse, and advised them that Marcano was involved in the robbery and murder of Wesley Thomas.
On May 8, 2002, approximately nine months after the murder, Davy made another statement to unnamed "police" at the 71st Precinct, again implicating Marcano. On December 7, 2002, after Davy was arrested for an unrelated robbery, Davy gave New York City Police Detective Pete Margraf information allowing him to obtain a search warrant for an apartment used by Marcano. On December 8, 2002, local law enforcement executed the search warrant, and based on the results of the search, Marcano and fellow LRP member Rohan McCrea were arrested and taken to the 71st Precinct.
On December 9, 2002, Marcano was interviewed by a number of city, state, and federal agents: Detective Margraf; New York City Police Department Detective John Lindner, a member of the "Organized Crime Drug Enforcement Strike Force," which coordinated with the Drug Enforcement Administration, the Federal Bureau of Investigation ("FBI"), Immigration and Customs Enforcement, the Internal Revenue Service, the New York City Police, and the New York State Police; Immigration Special Agent Chris Quinn; and FBI Special Agent DeMartino.During his interview, Marcano admitted he sold crack cocaine for Jermaine Dixon, a member of the Patio Crew (the predecessor gang to LRP). Detective Lindner asked Marcano about the Thomas murder, and Marcano replied that he believed that Davy had implicated him in Thomas's death.
Davy was subsequently assaulted on three separate occasions.The first assault occurred on February 3, 2003, when Davy was robbed of money he owed to a drug dealer. One of his assailants told him he was lucky Marcano had not already killed him for snitching. The second assault took place one month later, in March 2003, when Davy met with various LRP members in his mother's restaurant in an effort to resolve differences. Again, his assailants called him a snitch and stated the beating was in retaliation for providing law enforcement with information about Marcano. Hart and Draper were not involved in either of these assaults.
The third and final incident, most relevant here, occurred on April 8, 2003. According to Davy, Hart came to the door of his girlfriend's apartment, where Davy was "laying low." Hart entered the apartment ostensibly to retrieve a video game. When Davy was distracted, Hart opened the door to let Draper and LRP members Andrew Edwards and Zakee Campbell into the apartment. Davy was then brutally assaulted with a clothing iron, electrical cords, and bleach. In addition to demanding money, Davy's assailants derided him for snitching on Marcano. One of the attackers suggested Davy be shot. The police arrived, however, before he was killed. Davy then informed the authorities that he had been a victim of a robbery.
On April 10, 2003, at the direction of the Brooklyn District Attorney's Office, Davy met federal agents at the state court house. He was then brought to the United States Attorney's Office, where he met with federal prosecutors. April 10, 2003 was the first ...