United States v. Stewart

*Honorable John G. Koeltl, of the United States District Court for
the Southern District of New York, sitting by designation.
05-1989
USA v. Stewart
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
- - - - - - 3
August Term, 2006 4
(Argued: January 26, 2007 Decided: May 8, 2007) 5
6
Docket No. 05-1989-cr 7
_________________________________________________________ 8
UNITED STATES OF AMERICA, 9
Appellee, 10
- v. - 11
HUMPHREY STEWART, 12
Defendant-Appellant. 13
_________________________________________________________ 14
Before: KEARSE and SOTOMAYOR, Circuit Judges, and KOELTL, District 15
Judge*. 16
Appeal from a judgment of the United States District Court 17
for the Eastern District of New York, Raymond J. Dearie, Judge, 18
convicting defendant on eight counts of racketeering, firearms, and 19
narcotics violations, see 18 U.S.C. §§ 1959(a)(5), 1962(c) and (d), 20
922(g)(1), and 924(c)(1)(A)(iii), and 21 U.S.C. §§ 846 and 21
841(a)(1), following a jury trial that included hearsay evidence 22

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admitted on the ground that the declarant was unavailable because 1
his murder had been procured by the defendant. 2
Affirmed. 3
JEFFREY GOLDBERG, Assistant United States 4
Attorney, Brooklyn, New York (Roslynn R. 5
Mauskopf, United States Attorney for the 6
Eastern District of New York, Peter A. 7
Norling, Alyssa A. Qualls, Assistant 8
United States Attorneys, Brooklyn, New 9
York, on the brief), for Appellee. 10
EDWARD D. WILFORD, New York, New York 11
2(Anthony L. Ricco, Steven Z. Legon, New 12
York, New York, on the brief), for 13
Defendant-Appellant. 14
KEARSE, Circuit Judge: 15
Defendant Humphrey Stewart appeals from a judgment entered 16
in the United States District Court for the Eastern District of New 17
York on April 22, 2005, following a jury trial before Raymond J. 18
Dearie, Judge (now Chief Judge), convicting Stewart of racketeering 19
and racketeering conspiracy, in violation of 18 U.S.C. §§ 1962(c) 20
and (d); conspiracy to distribute and possess with intent to 21
distribute five or more kilograms of cocaine, in violation of 21 22
U.S.C. § 846; distribution and possession of five or more kilograms 23
of cocaine, in violation of 21 U.S.C. § 841(a)(1); attempted murder 24
and conspiracy to commit murder in aid of racketeering activity, in 25
violation of 18 U.S.C. § 1959(a)(5); possession, as a convicted 26
felon, of a firearm in violation of 18 U.S.C. § 922(g)(1); and 27

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discharge of a firearm during a violent crime, in violation of 18 1
U.S.C. § 924(c)(1)(A)(iii). Stewart was sentenced principally to 2
life imprisonment on each of the racketeering and narcotics counts 3
and 10 years each on the attempted murder, conspiracy to murder, and 4
§ 922(g) firearm counts, with all of those prison terms to be served 5
concurrently, and to a five-year term of imprisonment on the 6
§ 924(c) firearm count to be served consecutively to the other 7
prison terms. All of these prison terms were to run consecutively 8
to a state-court sentence Stewart was then serving. On appeal, 9
Stewart contends, inter alia, that the district court violated his 10
rights under the Confrontation Clause of the Sixth Amendment when it 11
allowed certain trial witnesses to describe statements that had been 12
made by a declarant whose murder the court found Stewart had 13
procured. Finding no merit in this or any of Stewart's other 14
contentions, we affirm the judgment. 15
I. BACKGROUND 16
The present prosecution arose out of investigations into 17
the narcotics trafficking activities in Brooklyn, New York, and 18
elsewhere in the United States, of a group of men known as the 19
"Patio Crew." The evidence at Stewart's 2004 trial included 20
testimony from law enforcement officers, cooperating members of the 21
Patio Crew (or "Crew"), and others. 22

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Briefly summarized in the light most favorable to the 1
government, the trial evidence included the following. Stewart and 2
Emile Dixon were members of the Patio Crew, a gang that had 3
controlled narcotics trafficking in the Flatbush section of Brooklyn 4
for more than a decade. The Crew distributed powder cocaine and 5
crack cocaine and was vigilant in protecting its Flatbush territory 6
through the use of threats, assaults, robberies, and murder. 7
Stewart and Dixon were regarded by other Crew members as 8
particularly inclined towards violence. The Crew had a code of 9
vengeance against anyone who cooperated with law enforcement 10
authorities; in the vernacular of the Crew members, who were 11
Jamaican nationals, the "rule" was "informer for dead," meaning that 12
if an informer "cooperated with the police," the "[i]nformer must 13
die." (Trial Transcript ("Tr.") at 110; see also id. at 312 14
("[i]nformers must dead"); Stewart brief on appeal at 4 ("[T]he 15
credo of the streets" included the rule "keep your mouth shut! 16
Never become an informant! Never snitch! There was even a popular 17
saying on the street, 'snitches for dead', which was a warning that 18
meant death to informants.").) 19
In the summer of 1999, Stewart became aware that marijuana 20
was being sold at one of the Crew's locations by Robert Thompson 21
(a/k/a "Ragga"), who was not a member of the Crew. On July 29, 22
1999, complaining of Ragga's competition in front of Stewart's 23
building (see Tr. 137), Stewart approached other Patio Crew members 24

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and asked if anyone had a "fire stick," meaning a gun (Tr. 136, 1
341). Later that day, Ragga was shot several times. He was 2
seriously injured, but recovered. 3
Ragga at first refused to reveal the identity of his 4
assailant to the police (see, e.g., Tr. 727-28); he would say only 5
that he had been in his jeep stopped at a red light when a man ran 6
up, opened the door, and started firing a gun at him (see id. at 7
739-40). Eventually, however, Ragga informed the police that the 8
shooter had been Stewart; Ragga so testified before a grand jury in 9
March 2000. In the meantime, Ragga had told several others, 10
including his girlfriend, his brother Steven, and the mother of two 11
of his children, that he had been shot by Stewart. 12
Immediately after the shooting of Ragga, Stewart had fled 13
Brooklyn for Buffalo, New York, where he continued to participate in 14
the Crew's narcotics distributions. In January 2000, Stewart was 15
arrested in Buffalo on New York State drug charges; he was 16
eventually returned to Brooklyn to face outstanding charges with 17
respect to an unrelated 1995 shooting in Brooklyn. As discussed in 18
greater detail in Part II.A. below, Stewart, while being detained 19
first in Buffalo and then in Brooklyn, sent several messages to 20
Ragga urging him not to identify Stewart in a lineup and not to 21
testify against him with respect to the 1999 shooting of Ragga. 22
Ragga was undeterred, and in late March 2000 he informed a police 23
detective that Stewart was the person who had shot him. Thereafter, 24

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Stewart had several telephone conversations with Dixon, who urged 1
Ragga not to testify against Stewart. Ragga refused to agree not to 2
testify. On July 26, 2000, in a drive-by shooting, Ragga was killed 3
by Dixon. 4
Dixon and Stewart were eventually indicted on federal 5
charges, including several relating to the murder of Ragga. Stewart 6
was charged with conspiring between July 1999 and July 2000 to 7
murder Ragga and with attempting to murder Ragga on July 29, 1999, 8
for the purpose of maintaining and increasing his position in the 9
Patio Crew, a racketeering enterprise, in violation of 18 U.S.C. 10
§ 1959(a)(5). Because the government sought the death penalty 11
against Dixon for the actual murder, the two defendants were tried 12
separately. At Stewart's trial, the government was allowed to 13
introduce evidence from a police detective and several other 14
witnesses that Ragga had told them that the man who shot him on July 15
29, 1999, was Stewart. (See, e.g., Tr. 739-40, 991, 1098, 1309.) 16
Stewart was convicted on the § 1959 counts, as well as the other 17
counts described above. 18
II. DISCUSSION 19
On appeal, Stewart contends, inter alia, that the 20
admission of testimony that Ragga had identified him as the July 29, 21
1999 shooter violated his rights under the Confrontation Clause. 22

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His other contentions include a challenge to the sufficiency of the 1
evidence to support his conviction on one count and a contention 2
that the district court failed to consider the appropriate factors 3
in imposing sentence. Finding no merit in his contentions, we 4
affirm the judgment. 5
A. The Confrontation Clause: Forfeiture of the Right 6
The Confrontation Clause of the Sixth Amendment provides 7
that "[i]n all criminal prosecutions, the accused shall enjoy the 8
right . . . to be confronted with the witnesses against him." U.S. 9
Const. amend. VI. Nonetheless, "'the law [will not] allow a person 10
to take advantage of his own wrong,'" United States v. Mastrangelo, 11
693 F.2d 269, 272 (2d Cir. 1982) ("Mastrangelo") (quoting Diaz v. 12
United States, 223 U.S. 442, 458 (1912) (other internal quotation 13
marks omitted)) (brackets ours), and it is thus well established, as 14
a matter of "[s]imple equity" and "common sense," that the right to 15
confrontation is forfeited if the defendant has "wrongfully procured 16
the witnesses' silence through threats, actual violence or murder," 17
United States v. Dhinsa, 243 F.3d 635, 651 (2d Cir.) ("Dhinsa") 18
(internal quotation marks omitted), cert. denied, 534 U.S. 897 19
(2001). See, e.g., id. at 652 ("'It is hard to imagine a form of 20
misconduct more extreme than the murder of a potential 21
witness. . . . We have no hesitation in finding, in league with all 22
circuits to have considered the matter, that a defendant who 23

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wrongfully procures the absence of a witness or potential witness 1
may not assert confrontation rights as to that witness.'" (quoting 2
United States v. White, 116 F.3d 903, 911 (D.C. Cir.), cert. denied, 3
522 U.S. 960 (1997))); United States v. Miller, 116 F.3d 641, 667-68 4
(2d Cir. 1997), cert. denied, 524 U.S. 905 (1998); United States v. 5
Thai, 29 F.3d 785, 814 (2d Cir.), cert. denied, 513 U.S. 977 (1994); 6
United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); 7
Mastrangelo, 693 F.2d at 272-73; United States v. Cherry, 217 F.3d 8
811, 814-15 (10th Cir. 2000); Steele v. Taylor, 684 F.2d 1193, 9
1201-02 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); United 10
States v. Carlson, 547 F.2d 1346, 1358-60 (8th Cir. 1976), cert. 11
denied, 431 U.S. 914 (1977). See also Crawford v. Washington, 541 12
U.S. 36, 62 (2004) ("the rule of forfeiture by wrongdoing (which we 13
accept) extinguishes confrontation claims on essentially equitable 14
grounds"). 15
In 1997, the Federal Rules of Evidence were amended to 16
"recognize[] the need for a prophylactic rule to deal with [this 17
type of] abhorrent behavior 'which strikes at the heart of the 18
system of justice itself.'" Fed. R. Evid. 804 Advisory Committee 19
Note (1997) (quoting Mastrangelo, 693 F.2d at 273). Under the 20
heading "Forfeiture by wrongdoing," Rule 804(b)(6) provides that the 21
hearsay rule does not require the exclusion of "[a] statement 22
offered against a party that has engaged or acquiesced in wrongdoing 23
that was intended to, and did, procure the unavailability of the 24

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declarant as a witness." Fed. R. Evid. 804(b)(6) (emphasis added). 1
Accordingly, the district court may admit hearsay evidence as to 2
statements by an unavailable declarant if it finds by a 3
preponderance of the evidence, see Fed. R. Evid. 804 Advisory 4
Committee Note (1997); Fed. R. Evid. 104(a), that (a) the "party 5
against whom the out-of-court statement is offered[] was involved 6
in, or responsible for, procuring the unavailability of the 7
declarant through knowledge, complicity, planning or in any other 8
way," and (b) that party "acted with the intent of procuring the 9
declarant's unavailability as an actual or potential witness," 10
Dhinsa, 243 F.3d at 653-54 (internal quotation marks omitted). 11
In the present case, the district court found that the 12
government had shown "by a preponderance of the evidence that Mr. 13
Stewart acted through Mr. Dixon to secure the absence of the 14
witness, Robert Thompson, and that [he did] so with intent to do 15
just that." (Tr. 738.) Stewart challenges these findings. He 16
points out that he "was in custody at the time the murder was 17
committed," arguing that there was no "direct evidence that [he] 18
commanded or directed that Mr. Dixon shoot the witness." (Stewart 19
brief on appeal at 16.) And he argues that there was "no competent 20
evidence, either direct or circumstantial, that [he] acted with the 21
intent required under the second prong of Dhinsa." (Id.) Stewart's 22
challenge is both legally flawed and contradicted by the record. 23
First, the government was not required to show Stewart's 24

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involvement in Dixon's murder of Ragga by "direct evidence." Both 1
the existence of a conspiracy and a given defendant's participation 2
in it with the requisite knowledge and criminal intent may be 3
established through circumstantial evidence. See, e.g., United 4
States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, 5
498 U.S. 991 (1990); United States v. Tutino, 883 F.2d 1125, 1129 6
(2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990); United States v. 7
Young, 745 F.2d 733, 762 (2d Cir. 1984), cert. denied, 470 U.S. 1084 8
(1985). Here the record contains ample circumstantial evidence of 9
Stewart's involvement in Ragga's murder, principally in the form of 10
telephone records and testimony from Stewart confidantes. 11
For example, Stewart's cousin Devon Tate testified that 12
after Stewart was arrested in Buffalo, Stewart made a number of 13
telephone calls to Tate from jail. Tate testified, "[Stewart] asked 14
me to get in touch with Ragga's mother . . . to tell her to have 15
[Ragga] not go to the identification line-up . . . ." (Tr. 433.) 16
Tate passed that message to Ragga's brother Delroy and received a 17
return call from Ragga's mother (id. at 433-34), who advised Tate 18
not to be involved and said that Ragga would "go forward" (id. at 19
435). Tate testified that he relayed that response to Stewart; 20
Stewart subsequently "told [Tate] that [Stewart] was ID-d by Ragga 21
and he's an informer and informer must die." (Id.) 22
Susan Sanchez, a girlfriend of Stewart's, testified that 23
while Stewart was in custody, first in Buffalo and then in Brooklyn, 24

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she frequently, at Stewart's behest, arranged untraceable three-way 1
calls between Stewart and others. (See Tr. 921-23.) She arranged 2
such calls between Stewart and Dixon two or three times a week. 3
(See Tr. 923.) 4
Patio Crew member Horace Burrell, one of the witnesses who 5
described the Crew's rule that "[i]nformers must dead" (Tr. 312), 6
testified that he witnessed a conversation between Dixon and Ragga's 7
brother Delroy about Ragga after Stewart was arrested. In that 8
conversation, Dixon said that Stewart had called him and instructed 9
him to tell Delroy to tell Ragga that "he not supposed to go testify 10
against him." (Tr. 342.) Burrell testified that when Delroy did 11
not agree to relay that message to Ragga, "[Dixon] was upset and he 12
was walking away and said tell your brother that if you don't listen 13
to what we say shot will fire." (Tr. 343.) 14
The government also introduced Dixon's cellular telephone 15
records and Stewart's prison telephone records. They showed 16
telephone contacts between Dixon and Stewart in the weeks leading up 17
to the murder and on the day of the murder itself. 18
Thus, before any witnesses were allowed to testify that 19
Ragga told them he had been shot by Stewart, the court heard 20
evidence that Stewart had instructed Dixon and others to try to 21
persuade Ragga not to testify that Stewart was the person who shot 22
him in July 1999, that the Patio Crew's code was that "[i]nformer 23
must dead," and that both Stewart and Dixon had sent the message 24

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that if Ragga insisted on testifying against Stewart, Ragga would be 1
shot. Accordingly, the district court's ruling that the government 2
had established by a preponderance of the evidence that Stewart 3
acted through Dixon to murder Ragga, and did so with the intent to 4
prevent Ragga from testifying against Stewart, was amply supported 5
by the record. 6
Finally, we note that the forfeiture-by-wrongdoing 7
principle made the testimony as to Ragga's statements admissible at 8
Stewart's trial on the present federal charges even though Stewart's 9
efforts had been focused on preventing Ragga from testifying at a 10
different trial, to wit, Stewart's state trial for assault, rather 11
than the trial in the present federal case (which had not yet been 12
initiated). "The text of Rule 804(b)(6) requires only that the 13
defendant intend to render the declarant unavailable 'as a witness.' 14
The text does not require that the declarant would otherwise be a 15
witness at any particular trial . . . . A defendant who wrongfully 16
and intentionally renders a declarant unavailable as a witness in 17
any proceeding forfeits the right to exclude, on hearsay grounds, 18
the declarant's statements at that proceeding and any subsequent 19
proceeding." United States v. Gray, 405 F.3d 227, 241, 242 (4th 20
Cir.) (emphasis in original), cert. denied, 546 U.S. 912 (2005). 21
Indeed, the forfeiture principle applies even to 22
situations where "there was [no] ongoing proceeding 23
in which the declarant was scheduled to testify." 24
Miller, 116 F.3d at 668; see also [United States v.] 25
Houlihan, 92 F.3d [1271, 1279-80 (1st Cir. 1996)]. 26

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The application of Mastrangelo under these 1
circumstances is both logical and fair since a 2
contrary rule "would serve as a prod to the 3
unscrupulous to accelerate the timetable and murder 4
suspected snitches sooner rather than later." 5
Houlihan, 92 F.3d at 1280. 6
Dhinsa, 243 F.3d at 652. A defendant will not be allowed to profit 7
from such wrongdoing. 8
In sum, Stewart, by his involvement in the murder of 9
Ragga, forfeited any right to exclude evidence of out-of-court 10
statements by Ragga that he had previously been shot by Stewart. 11
B. Other Contentions 12
Stewart also contends that the evidence was insufficient 13
to support his conviction for racketeering conspiracy, that the 14
government failed to disclose exculpatory material, that the 15
district court erred in failing to suppress evidence seized from his 16
automobile, and that the court failed to consider the proper factors 17
in imposing sentence. These contentions lack merit and do not 18
warrant extended discussion. 19
Stewart contends that his conviction on the racketeering 20
conspiracy count should be vacated on the ground that the evidence 21
at trial was insufficient to establish that the Patio Crew was a 22
racketeering enterprise, rather than simply a neighborhood social 23
group. This contention is meritless. The evidence showed, inter 24
alia, that members of the Patio Crew distributed narcotics and 25
shared drug distribution opportunities; that the Crew maintained the 26

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same core membership for some 12 years; that it regulated drug 1
dealing within the territory it controlled; and that the members 2
adhered to rules of conduct. This was ample to permit a rational 3
juror to infer that the Patio Crew constituted a racketeering 4
enterprise within the meaning of 18 U.S.C. § 1962. See, e.g., 5
United States v. Dixon, 167 F. App'x 841, 843-44 (2d Cir. 2006) 6
(holding that the similar evidence introduced at Dixon's trial was 7
sufficient to show that the Patio Crew was a racketeering 8
enterprise). 9
Stewart also contends that the government violated its 10
duty under Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v. 11
Whitley, 514 U.S. 419 (1995), to turn over evidence that could have 12
been used to impeach the credibility of one of its witnesses, Jimael 13
Allen. Stewart claims that Allen testified that Dixon killed 14
Allen's associate Omar Sutherland, and that the government knew and 15
failed to disclose that someone else had been convicted of that 16
murder. Even assuming that such a conviction could have been 17
considered material evidence with respect to the charges against 18
Stewart, Stewart's factual premises are unsubstantiated. First, 19
Stewart has pointed to no evidence as to another person's conviction 20
for the murder of Sutherland. Second, Stewart has provided no 21
record citation to support his assertion that Allen testified that 22
Sutherland was murdered by Dixon. We have found no such accusation 23
by Allen, who testified as follows: 24

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Q. Did there come a time when Omar was killed? 1
A. Yes. 2
Q. Did you witness the murder? 3
A. No, I didn't. I wasn't there that night. 4
(Tr. 1143.) 5
Stewart's contention that the district court erred in 6
failing to suppress $20,000 in cash that had been found, following 7
his arrest after a routine traffic stop in 1996, in a car Stewart 8
was driving, borders on the frivolous. Stewart waived this argument 9
when he conceded before the district court that the evidence was 10
admissible under the inevitable discovery doctrine (see Tr. 1209). 11
In any event, one of the arresting officers testified, without 12
contradiction, that he and other police officers regularly performed 13
inventory searches of such a vehicle at the scene of a driver's 14
arrest to determine whether the vehicle could safely be left on the 15
street. (See Tr. 1030.) Thus, even without Stewart's concession, 16
the evidence would have been admissible as the fruit of a valid 17
inventory search. See, e.g., United States v. Thompson, 29 F.3d 62, 18
65 (2d Cir. 1994) (postarrest inventory search conducted pursuant to 19
routine standardized practice does not violate Fourth Amendment). 20
Finally, we reject Stewart's claim that the district 21
court, in imposing his sentence, erred by failing to consider the 22
sentencing factors enumerated at 18 U.S.C. § 3553(a). "[W]e 23
presume, in the absence of record evidence suggesting otherwise, 24

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that a sentencing judge has faithfully discharged her duty to 1
consider the statutory factors." United States v. Fernandez, 443 2
F.3d 19, 30 (2d Cir.), cert. denied, 127 S. Ct. 192 (2006). We see 3
nothing in the record to suggest that the district court here failed 4
to discharge this duty. Rather, the district court carefully 5
considered whether the Guidelines sentence it imposed would be 6
appropriate, and we see no basis for finding the sentence 7
unreasonable, see United States v. Booker, 543 U.S. 220, 260-61 8
(2005). 9
CONCLUSION 10
We have considered all of Stewart's arguments on this 11
appeal and have found them to be without merit. The judgment of the 12
district court is affirmed. 13

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