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United States of America v. Alton Davis

August 8, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
ALTON DAVIS, RODERICK GUNN, A/K/A ZAPPA, DEFENDANTS-APPELLANTS, DERRILYN NEEDHAM, A/K/A IN-GRID, RONALD KNIBBS, A/K/A BIRDIE, DEFENDANTS.



Appeal from judgments of conviction entered after a jury trial in the United States District Court for the Southern District of New York (William H. Pauley III, Judge), on charges of conspiring and attempting to commit Hobbs Act robberies, see 18 U.S.C. § 1951; using firearms in relation to the attempted robberies, on two occasions causing death, see 18 U.S.C. § 924(c)(1)(A), (j); and conspiring to distribute more than 100 kilograms of marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1), 846. By summary order filed today we reject most of appellants' challenges to these convictions.

The opinion of the court was delivered by: Reena Raggi, Circuit Judge:

10-3424-cr(L)

United States v. Davis

(Argued: June 18, 2012

Before:

LEVAL, RAGGI, and CHIN, Circuit Judges.

This opinion addresses Davis's challenge to venue in the Southern District of New York for a substantive Hobbs Act count and two firearms counts pertaining to the attempted robbery of a residence in the Eastern District of New York.

AFFIRMED.

Defendants Alton Davis and Roderick Gunn appeal from judgments entered against them on August 24, 2010, in the United States District Court for the Southern District of New York (William H. Pauley III, Judge), convicting them of conspiracy to commit Hobbs Act robberies of suspected drug dealers, see 18 U.S.C. § 1951 (Count One); attempting to commit such a robbery on Wickham Avenue in the Bronx ("Wickham robbery"), see id. (Count Three); two counts of using and discharging a firearm during the Wickham robbery, including causing the death of Gary Grey, see id. § 924(c)(1)(A)(iii), (j) (Counts Six and Seven); and conspiracy to distribute and possess with intent to distribute more than 100 kilograms of marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1), 846 (Count Eight). Davis also appeals his convictions for attempting to commit a Hobbs Act robbery in Elmont, Long Island ("Elmont robbery"), see 18 U.S.C. § 1951 (Count Two), and two counts of using and discharging a firearm during the Elmont robbery, including causing the death of Stephanie Laing, see id. § 924(c)(1)(A)(iii), (j) (Counts Four and Five).

In this opinion, we explain why we reject Davis's challenge to venue in the Southern District of New York for Counts Two, Four, and Five, the Hobbs Act and firearms counts relating to the Elmont robbery. By separate order filed today, we summarily reject defendants' remaining challenges to their convictions. Accordingly, we affirm the challenged judgments in all respects.

I. Factual Background

A. Defendants' Criminal Conduct

1. The Robbery Scheme

Over the course of an eight-day trial, at which approximately 40 witnesses testified, the prosecution proved that between mid-2002 and early 2003, defendants Davis and Gunn, along with others, participated in a conspiracy to rob suspected drug dealers of money and drugs. Of the six robberies or attempted robberies about which evidence was introduced, three occurred in the Bronx, one in Queens, one on Long Island, and one in Maryland. During the Maryland robbery, in which Davis, but not Gunn, participated, approximately $1,000,000 was stolen. In committing robberies, one or more of the conspirators usually was armed with a gun, such that during the Elmont robbery, which targeted a Bronx drug dealer named Robert DeLeon, Davis shot and killed DeLeon's common-law wife, Stephanie Laing, and during the Wickham robbery, Davis shot and killed the robbery target, Gary Grey. Insofar as this opinion focuses on Davis's venue challenge to the substantive counts pertaining to the attempted Elmont robbery, we limit our further discussion of facts to those charges.

2. The Elmont Robbery

In the fall of 2002, Gunn spoke with confederate Derrilyn Needham about robbing "Bobby Sox," whom he identified as a "big-time drug dealer." Trial Tr. 373, 380. Gunn directed Needham to locate "Bobby Sox," whose real name was Robert DeLeon, and to secure his license plate number.*fn1 Sometime thereafter, Needham spotted DeLeon in a car parked on White Plains Road in the Bronx. After Needham copied DeLeon's license plate number, she and Gunn enlisted a contact with access to records from the New York State Department of Motor Vehicles to "run" the plate. Id. at 377. The conspirators thus learned that the vehicle was registered to Stephanie Laing at 194 Locustwood Boulevard in Elmont, Long Island, within the Eastern District of New York. Together with three other persons, Gunn surveyed the Elmont address and concluded that a robbery "was doable." Id. at 380-81. Lacking confidence in his cohort, however, Gunn asked Needham to secure Davis's participation in the robbery, which she did. At this point in the conspiracy, Davis had already participated with Gunn and Needham in one successful robbery in the Bronx, as well as in failed robbery attempts in the Bronx and Queens. He had also participated successfully with Needham in the Maryland robbery.

Testifying for the prosecution, Robert DeLeon stated that in the summer and fall of 2002, he lived with Stephanie Laing and their children at 194 Locustwood Boulevard in Elmont. During that time, he sold large quantities of marijuana in the Bronx and Manhattan. DeLeon explained that, approximately three times per month, he received 500 to 800 pounds of marijuana from California at his Elmont home. There, he would break down the shipments into smaller packages that he personally delivered in his car to customers in the Bronx and Manhattan approximately "six times a week." Id. at 238-39. DeLeon would bring the money earned from these transactions back to Elmont. On October 31, 2002, the date of the planned robbery, DeLeon had neither drugs nor large amounts of money in his Elmont home, having received and distributed a shipment of marijuana the week before.

Early on the morning of October 31, Davis armed himself with a .45 caliber handgun and went to the targeted residence to commit the robbery. Not finding either Gunn or another confederate--each of whom was supposed to serve as a lookout--at the scene, Davis called Needham at her home in the Bronx and asked her to contact the two missing men to find out where they were. Needham did so and reported back to Davis that neither man could participate in the robbery that morning. Davis then asked Needham to come to Elmont and ...


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