United States v. Celaj

10-2792-cr
United States v. Celaj
UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2
August Term 2010 3
(Argued: May 18, 2011 Decided: August 22, 2011) 4
Docket No. 10-2792-cr 5
U NITED S TATES , 6
Appellee, 7
– v. – 8
DIN CELAJ , 9
Defendant-Appellant. 10
Before: M INER , CABRANES , AND S TRAUB, Circuit Judges. 11
Appeal from a judgment entered July 7, 2010, in the United States District Court for the 12 Southern District of New York (Patterson, J.), convicting defendant-appellant, after a jury trial, of, 13 inter alia, Hobbs Act violations predicated on robbery, and sentencing defendant principally to an 14 aggregate term of 601 months’ imprisonment, where the defendant-appellant challenges Hobbs Act 15 jurisdiction after stipulating that “marijuana is grown outside of the state of New York and travels in 16 interstate and foreign commerce to arrive in the New York City area” and also challenges the 17 District Court’s denial of his Rule 29(a) motion for a judgment of acquittal as to one of his Hobbs 18 Act attempted robbery counts. 19
20 Affirmed. 21
W ILLIAM O. S CHARF , Harvard Law School, Cambridge, 22 Massachusetts, for Defendant-Appellant. *
23
Marc L. Greenwald and Jake M. Shields, Quinn Emanuel 24 Urquhart & Sullivan, LLP, New York, New York , for 25 Defendant-Appellant. 26
J OHN T. ZACH , Assistant United States Attorney (Arlo 27 Devlin-Brown and Andrew L. Fish, Assistant United States 28 Attorneys, of counsel), for Preet Bharara, United States 29 Attorney for the Southern District of New York, New York, 30 New York, for Appellee. 31
* Law Student Admitted Pursuant to Local Rule 46(e).
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M INER , Circuit Judge: 1
Defendant-appellant Din Celaj appeals from a judgment of conviction entered July 7, 2010, 2
following a jury trial, in the United States District Court for the Southern District of New York 3
(Patterson, J.), convicting him of eleven counts of a thirteen-count Indictment, including several 4
Hobbs Act violations predicated on robbery and conspiracy to commit robbery, and sentencing him 5
principally to a 601-month term of imprisonment. The government did not present any witnesses as 6
to the required interstate jurisdictional element under the Hobbs Act, but the parties entered into a 7
stipulation that “marijuana is grown outside of the state of New York and travels in interstate and 8
foreign commerce to arrive in the New York City area.” After the close of evidence, Celaj made a 9
Rule 29(a) motion for a judgment of acquittal, which the District Court denied, finding that there 10
was sufficient evidence to sustain a conviction. Celaj now challenges the sufficiency of the evidence 11
to support his conviction on the Hobbs Act counts and associated weapons charges. The 12
government contends on appeal that the stipulation is sufficient to support the required 13
jurisdictional element under the Hobbs Act. Celaj also argues that the District Court erred in 14
denying his Rule 29(a) motion as to one of his Hobbs Act attempted robbery convictions. We 15
affirm for the reasons set forth below. 16
BACKGROUND 17
I. Underlying Criminal Activity1
18
Beginning at least in 2007, Celaj headed a New York City criminal gang that engaged in car 19
thefts, drug dealing, and armed robberies. Celaj’s “crew” of associates included Jason Montello, 20
Moheed Oasman, Ali Zherka, Rabindra Singh, Robert Melville, and Darren Moonan, a former New 21
York Police Department (“NYPD”) police officer. 22
1 Our recitation of the facts relies essentially on the trial testimony that the jury reasonably could have
credited in reaching the verdict that it rendered and, as recounted here, is not contested on appeal. See
United States v. Arena, 180 F.3d 380, 391 (2d Cir. 1999) (holding that on sufficiency-of-the-evidence
challenges, we “view the evidence in the light most favorable to the government”) (internal quotation marks
omitted).
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Between January and July 2007, Celaj, Singh, and Zherka together stole over 20 high-end 1
vehicles. After he stole a vehicle, Celaj would take it to a scrap processing center in the Bronx where 2
he would sell it to the yard manager who was, in fact, an undercover NYPD officer. In total, Celaj 3
brought 23 stolen cars to the undercover officer between January and July 2007. Celaj often told the 4
undercover officer that he “was in the business of dealing in late model vehicles” and, on one 5
occasion, broke into three separate Lexus vehicles in front of the officer to demonstrate his abilities. 6
In addition to discussing stolen vehicles, Celaj told the undercover officer about his other 7
criminal activities, including selling marijuana. He told the officer that he obtained his supply “from 8
Florida or from Michigan through contacts in Canada.” He also described to the officer how he 9
stole marijuana from drug dealers. Celaj said that he would rob marijuana from drug dealers by 10
impersonating an agent from the Drug Enforcement Administration (the “DEA”) and “knock[ing] 11
down [the] doors” of those drug dealers. 12
In one recorded conversation on June 14, 2007, Celaj told the undercover officer, “I get 13
weed once a month — in like any quantity.” Celaj continued, “but see the thing is this, I’m not 14
buying it, I’m stealing it. So . . . there could be fuckin’ Arizona or it could be haze. You never 15
know.” Celaj went on to say that he had gotten 248 pounds of marijuana by “kicking the fuckin’ 16
doors in and that’s it.” Celaj also explained that the robbery crew posed as law enforcement officers, 17
saying, “we walk in there DEA nobody mo[ve]—.” One such robbery and two such attempted 18
robberies are the subject of this appeal. The facts giving rise to these robberies are as follows. 19
In April 2007, Celaj and his crew — Moonan, Montello, Melville, and Celaj’s brother, Jerry 20
Celaj — planned to rob a Bronx drug dealer named “George.” Prior to setting out on the robbery, 21
Celaj informed Melville that George was a drug dealer whom he had robbed before. The crew then 22
drove to George’s home in the Bronx. When they arrived, Moonan and Celaj, both of whom had 23
firearms and wore police shields around their necks, approached the door to the home with Melville 24
accompanying them. Jerry Celaj stayed behind in the car. Celaj then knocked on George’s door, 25
and eventually a man (who was apparently George’s brother) answered. At that point, Celaj 26
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announced that he was a police officer, brandished his gun, pointed it at the man who answered the 1
door, and told him to subdue a dog that was barking from within the home. Celaj, Moonan, and 2
Melville then entered the home. 3
Once inside, Celaj and Moonan took George’s brother to the living room and forced him to 4
sit on the floor. Meanwhile, Melville proceeded to a room identified as George’s room and began 5
searching for drugs, money, and guns. Melville located approximately one pound of marijuana, 6
some cash, and a firearm. Melville gave the money to Celaj and kept the marijuana and gun for 7
himself. Celaj and the crew then went to a warehouse that Celaj believed to be a “stash house” 8
where George and his associates stored marijuana for their drug dealing business. At the warehouse, 9
Celaj used a screwdriver to break into the building. After entering, Celaj and his crew found a room 10
containing approximately 100–150 pounds of marijuana and $300–400 in single dollar bills. They 11
took the marijuana to Melville’s home in Queens. Over the course of the following weeks, the crew 12
sold the marijuana in the New York City area. 13
Following the robbery of George’s home (and the theft from the warehouse), Celaj and his 14
crew continued to search for other drug dealers to rob. After a series of failed attempts to find a 15
viable target, Montello proposed robbing a drug dealer named Bobby Brown who lived on Long 16
Island. Montello had learned from an individual named “Mike” that Brown was a drug dealer.1
17
Montello previously had passed by Brown’s home with an eye towards robbing it, but he was unable, 18
for a variety of reasons, to find an opportunity to carry out the robbery. With Celaj, Montello 19
guided the crew — including Moonan, Melville, and “Ro,” an associate of Montello’s — to Brown’s 20
home. Celaj and Moonan approached the house with guns in their waistbands and police shields 21
around their necks. Melville joined them on the way up to the door, “dressed as [an] undercover 22
police officer[ ].” Montello stayed behind in the car, and Ro parked the car “several blocks away” to 23
act as an additional look-out. After reaching the house, Celaj knocked on the door, while both he 24
1 The government did not call “Mike” to testify at trial, and Celaj did not object to Montello’s testimony
regarding information allegedly provided to him by “Mike.”
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and Moonan drew their guns and yelled that they were the “police.” Eventually, Brown opened the 1
door and began asking, “[w]hat did I do wrong, Officer?” Celaj and Moonan then forced Brown 2
down on the floor at gunpoint to check for weapons. Almost immediately thereafter, an alarm went 3
off in Brown’s home. The alarm startled Celaj, Moonan, and Melville, and they quickly ran from 4
Brown’s home out of concern that actual police officers would soon arrive. They then fled the 5
scene in Montello’s car and did not return. 6
The next day, the same crew (except for Ro) drove to Sayville, on Long Island, to a house 7
that they had “looked at the night before.” Montello identified Eric Knierim, who lived in Sayville, 8
as a robbery target. Montello had learned from a woman called “MJ,” Knierim’s girlfriend, that 9
Knierim owned a big glass company, from which he had cash-on-hand, and that he also sold 10
marijuana and cocaine. MJ apparently informed Montello that money and drugs were hidden in a 11
safe in Knierim’s home. 2 Because the narcotics and cash were locked in the safe, the crew agreed 12
that Knierim would need to be home to open the safe. The crew then drove together to the site of 13
the proposed robbery. 14
After they arrived at Knierim’s home, Celaj, Moonan, and Montello approached the home 15
together, and Melville stayed behind in the car. Celaj and Moonan had guns and police shields, and 16
all three (including Montello) were dressed as undercover police officers. When they got to the 17
door, they knocked and announced themselves as the “police.” Knierim, however, did not answer 18
the door because he was not at home. Instead, his cleaning lady Karen Hans unexpectedly came to 19
the door. She offered to call Knierim so that he could return to the house. However, since Hans 20
was at the house and Knierim was not, Celaj, Moonan, and Montello decided that their plan would 21
not work, and they left the premises. 22
Celaj was later arrested on July 8, 2007, and remanded to custody. 23
2 The government did not call MJ to testify at trial, and Celaj did not object to Montello’s testimony regarding
information allegedly provided to him by MJ.
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II. Proceedings in the District Court 1
Celaj was indicted on August 24, 2009, by a Grand Jury impaneled in the Southern District 2
of New York, on thirteen counts including: one count of conspiracy to commit Hobbs Act robbery, 3
in violation of 18 U.S.C. § 1951; two counts of Hobbs Act attempted robbery, in violation of 18 4
U.S.C. §§ 1951–2; two counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951–2; four 5
counts of brandishing or unlawfully possessing a firearm in relation to a crime of violence, in 6
violation of various subsections of 18 U.S.C. § 924(c); one count of conspiracy to distribute and to 7
possess with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 846; 8
one count of conspiracy to transport and to sell motor vehicles, in violation of 18 U.S.C. § 371; one 9
count of transporting stolen vehicles, in violation of 18 U.S.C. §§ 2312 and 3; and one count of 10
conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1341. 11
The case proceeded to a nine-day jury trial in September–October 2009. The government’s 12
evidence included court-authorized wire interceptions of Celaj and others, various recorded 13
conversations between Celaj and the aforementioned undercover officer, and the testimony of four 14
witnesses — the undercover officer, Melville, Montello, and Moonan. Celaj did not testify and did 15
not call any witnesses on his behalf. After the government had presented its case, the parties 16
submitted a stipulation that stated: “It is hereby stipulated and agreed . . . that marijuana is grown 17
outside of the state of New York and travels in interstate and foreign commerce to arrive in the 18
New York City area.” According to the government, it entered into the stipulation in lieu of calling 19
a DEA agent as an expert witness to testify about the interstate nature of the marijuana trade. Celaj 20
thereafter moved pursuant to Federal Rule of Criminal Procedure 29(a) to dismiss the indictment, 21
including all the Hobbs Act and 924(c) counts. The District Court denied the motion from the 22
bench. 23
After both parties had rested, the District Court instructed the jury, inter alia, as to the 24
Hobbs Act requirement that a robbery affect or potentially affect “in some way commerce within 25
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one state that goes through any place outside that state.” In relevant part, the court instructed the 1
jury that: 2
it is not necessary for you to find that the defendant intended or anticipated that the 3 effect of his acts would be to affect commerce or that he had a purpose to affect 4 commerce. All that is necessary is that the natural effect of the acts committed in 5 furtherance of the crime charged in each count would in any way have affected 6 commerce. 7
Thus . . . if you find beyond a reasonable doubt that the defendant believed 8 that the robbery victim possessed narcotics to be distributed or the proceeds derived 9 from the sale of narcotics, you must determine whether the effect of the defendant’s 10 actions was or would be to actually or potentially affect commerce in narcotics in any 11 way or degree, whether that effect was harmless or not. 12
The jury began its deliberation on October 1, 2009. The following day, it returned a verdict 13
of guilty on all counts except Counts Eight and Nine (a robbery and associated firearms charge not 14
at issue on appeal). 15
Prior to sentencing, the United States Probation Office prepared a Presentence Investigation 16
Report (the “PSR”). In that report, the Probation Office noted that Celaj began his career as a 17
criminal at the age of 12 when he was convicted for attempted grand larceny in connection with 18
attempted extortion of his victim. From that point forward, Celaj engaged in a variety of crimes, 19
including home invasion robberies, drug dealing, and firearms trafficking. The PSR further noted 20
that Celaj became involved in the instant offenses less than two years after his release from prison 21
on prior unrelated charges. After considering these factors, the District Court sentenced Celaj to an 22
aggregate term of 601 months’ imprisonment. Thereafter, judgment was entered, and on July 13, 23
2010, Celaj filed a timely notice of appeal. 24
On appeal, Celaj contends principally that the admissible evidence, including the stipulation 25
regarding the interstate nature of marijuana, was not sufficient to support the jurisdictional element 26
required under the Hobbs Act. Celaj also argues that his conviction as to the attempted robbery of 27
Eric Knierim cannot be sustained because Knierim was not present at his home when Celaj 28
attempted to rob him. This argument is based on the contention that Congress, in enacting the 29
Hobbs Act, adopted the New York Court of Appeals’ decision in People v. Rizzo, 246 N.Y. 334 30
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(1927), which was not to allow a Hobbs Act conviction in such circumstances. Thus as to this 1
conviction for the Hobbs Act attempted robbery of Knierim, Celaj contends that the District Court 2
erred by denying his Rule 29(a) motion. 3
ANALYSIS 4
I. Standard of Review 5
We review de novo a claim of insufficient evidence and a denial by a district court of a 6
Federal Rule of Criminal Procedure 29(a) motion, applying the same standards as the District Court. 7
See, e.g., United States v. Yannotti, 541 F.3d 112, 120–21 (2d Cir. 2008). “[W]e must credit every 8
inference that could have been drawn in the government’s favor, and we must view the evidence as a 9
whole.” United States v. Applins, 637 F.3d 59, 76 (2d Cir. 2011). A conviction must be upheld if 10
“any rational trier of fact could have found the essential elements of the crime beyond a reasonable 11
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). A verdict may be 12
based entirely on circumstantial evidence. United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir. 13
1994). In assessing the sufficiency of the evidence, a reviewing court must consider all of the 14
evidence admitted at trial, whether or not the evidence was properly admitted. United States v. 15
Hardwick, 523 F.3d 94, 101 (2d Cir. 2008). 16
II. Hobbs Act 17
A. Relevant Law 18
The Hobbs Act provides that “[w]hoever in any way or degree obstructs, delays, or affects 19
commerce or the movement of any article or commodity in commerce, by robbery or extortion or 20
attempts or conspires so to do” has committed a crime. 18 U.S.C. § 1951(a) (2006). In a Hobbs Act 21
prosecution, “[p]roving an effect on interstate commerce is . . . an element of a Hobbs Act offense, 22
which must be proven beyond a reasonable doubt to a jury.” United States v. Parkes, 497 F.3d 220, 23
227 (2d Cir. 2007). However, “it is well established that the burden of proving a nexus to interstate 24
commerce is minimal.” United States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002); see also Parkes, 497 25
F.3d at 230 (“[T]he required showing of an effect on interstate commerce is de minimis.”). In fact, 26
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“if the defendant[’]s conduct produces any interference with or effect upon interstate commerce, 1
whether slight, subtle, or even potential, it is sufficient to uphold a prosecution under the Hobbs 2
Act.” United States v. Perrotta, 313 F.3d 33, 36 (2d Cir. 2002) (internal quotation marks and 3
alterations omitted). Moreover, “[t]he required evidence of an effect need not take any particular 4
form or be offered in any particular quantum — direct, indirect, or circumstantial evidence could 5
suffice. It is a case-by-case inquiry.” Parkes, 497 F.3d at 231 n.11. 6
As to the jurisdictional element in a Hobbs Act prosecution for robbery of narcotics, a jury 7
may assume that cocaine and heroin travel in interstate commerce because those drugs cannot be 8
grown, processed, and sold entirely within the state of New York. United States v. Needham, 604 9
F.3d 673, 680 (2d Cir. 2010). However, because marijuana can be “grown, processed, and sold” 10
entirely within New York, a jury cannot assume an interstate nexus simply based on the presence of 11
marijuana alone. Id. at 681. Rather, “the jury [must] determine, beyond a reasonable doubt, whether 12
the [defendant’s] conduct affected, or would have affected, interstate commerce.” Parkes, 497 F.3d 13
at 230. 14
B. Celaj’s Challenge 15
Celaj challenges the sufficiency of the evidence upon which he was convicted, arguing that 16
the stipulation at issue was insufficient to establish the requisite jurisdictional element.3 In his view, 17
the stipulation “established [only] the uncontroversial point that, as a general matter, marijuana 18
travels in interstate commerce” and, as such, it failed to provide “particularized evidence that the 19
alleged Hobbs Act crimes affected interstate commerce” in this case. In determining that the 20
stipulation provided sufficient evidence that Celaj’s conduct had, at a minimum, a de minimis effect 21
on interstate commerce, we review some of our precedent in which we have examined the effect of 22
a Hobbs Act drug robbery on interstate commerce. 23
3 Celaj also contends that there was no admissible evidence at trial that narcotics actually were present
during the attempted robberies, arguing that the only evidence on this issue was in the form of “inadmissible
hearsay” from out-of-court declarants “Mike” and “MJ.” The actual presence of marijuana need not be
shown to convict for these Hobbs Act violations, and there was sufficient evidence of Celaj’s intent to rob
drug dealers to fulfill the requirements for the convictions.
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In Parkes, the defendant was convicted on multiple counts, including Hobbs Act attempted 1
robbery, “arising out of his participation in a botched robbery targeting drugs and drug proceeds.” 2
497 F.3d at 223. After proceeding to a jury trial, a properly-instructed jury convicted the defendant 3
on the Hobbs Act attempted robbery count based on evidence that included (1) testimony that a 4
“small but going” marijuana enterprise was the intended object of the robbery; (2) “one large bag 5
containing marijuana, 58 smaller ‘nickel bags,’ and $4,000 in cash”; and (3) testimony of an 6
experienced narcotics investigator that “marijuana is almost exclusively trucked into the United 7
States, predominantly through Mexico and that very little marijuana is grown in New York.” Id. at 8
231 (alterations and internal quotation marks omitted). We sustained the defendant’s conviction, 9
holding that based on the “limited evidence adduced at Parkes’s trial, . . . a reasonable juror, hearing 10
[the foregoing] evidence, could have found that the attempted robbery of [the robbery target’s] 11
marijuana or proceeds would have affected interstate commerce ‘in any way or degree.’” Id. 12
(quoting 18 U.S.C. § 1951(a) (footnotes omitted)). 13
In Needham, the defendant participated in “a series of violent robberies targeting narcotics 14
dealers in the New York City area” and thereafter was charged with, inter alia, Hobbs Act attempted 15
robbery and robbery. 604 F.3d at 676. At trial, the jury was improperly instructed (but consistent 16
with the law of this Circuit at that time) that all drug trafficking activity has an effect on interstate 17
commerce. Id. at 678 (noting that the law “has since changed” and that “[p]roof of drug trafficking 18
is no longer regarded as automatically affecting interstate commerce”). The defendant was then 19
convicted on the robbery counts. In reviewing for whether the error in the jury instruction affected 20
the defendant’s substantial rights, we determined that the evidence offered by the government at 21
trial did not meet the “modest threshold” of proving a connection to interstate commerce. As to 22
that required jurisdictional element, we explained: 23
Apart from the simple amount of money obtained [i.e. approximately $600,000], 24 the government offered no evidence to support an interstate nexus for the completed 25 robberies. It presented no proof that the marijuana sold by the victims had originated 26 out of state, that it was sold to out-of-state customers, that the victims themselves 27 crossed state lines in conducting their business, or that the robbery depleted assets that 28 would have purchased goods in interstate commerce. 29
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Id. at 681. We further noted that the government did not offer any testimony about the production 1
and trafficking of marijuana in New York. Id. 2
Guided by Parkes and Needham, we now conclude that the evidence proffered by the 3
government in this case achieves the same effect as the evidence offered in Parkes, in which case the 4
evidence was sufficient to sustain the interstate element of the Hobbs Act attempted robbery count 5
at issue. The key evidence in Parkes was the narcotics investigator’s testimony that “marijuana is 6
almost exclusively trucked into the United States, predominantly through Mexico and that very little 7
marijuana is grown in New York.” 497 F.3d at 231. In this case, the stipulation entered into by the 8
parties — that “marijuana is grown outside of the state of New York and travels in interstate and 9
foreign commerce to arrive in the New York City area” — conveys the same information about the 10
interstate nature of the marijuana trade. Moreover, unlike Needham, where the sole evidence 11
offered as to the jurisdictional element was drug money, here, the government offered not only the 12
stipulation but also Celaj’s statement to the undercover police officer that he was in the business of 13
stealing marijuana and his concession at trial that he had been a marijuana dealer. Together, this 14
evidence permitted the jury reasonably to conclude that Celaj’s criminal actions had a nexus with 15
interstate commerce.4
16
III. The Rizzo Rule 17
Celaj argues that his Hobbs Act attempted robbery conviction as to Knierim should be 18
vacated for the independent reason that Celaj was never in Knierim’s presence, which Celaj claims is 19
a necessary predicate to a conviction, citing People v. Rizzo, 246 N.Y. 334 (1927). Unfortunately for 20
Celaj, he provides no federal authority in support of such a novel interpretation. Moreover, Rizzo is 21
inapposite and not inconsistent with federal authority in any event. 22
4 The stipulation also provides us with an independent reason to affirm Celaj’s conviction — namely that
Celaj waived any challenge to the sufficiency of the evidence that a robbery of a marijuana dealer would affect
interstate commerce by entering into a factual stipulation that marijuana traveled in interstate and foreign
commerce to arrive in New York. See, e.g., United States v. Quinones, 511 F.3d 289, 320–21 (2d Cir. 2007)
(explaining the concept of “true waiver”).
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In Rizzo, four co-conspirators formed the intent to rob a man named Charles Rao, whom 1
they believed was going to withdraw a substantial sum of money from a bank in New York City. 2
246 N.Y. at 336. The conspirators drove the streets of New York looking for Rao. However, 3
before determining his whereabouts, the conspirators were arrested by police officers (who were 4
apparently hot on their trail) as they approached a bank. Id. The New York Court of Appeals, in 5
ruling that as a matter of law the men were not guilty of an attempted robbery, relied on the fact that 6
“up to the time they were arrested” they had not “discovered [Rao]” and “were still looking for 7
him.” Id. at 336–38. Rao was not present at the bank where the men were arrested. Id. at 338. 8
Thus, “no attempt to rob him could be made, at least until he came in sight.” Id. 9
New York courts have cited Rizzo for the proposition that a defendant must come “very 10
near to the accomplishment of the intended crime” for an attempt conviction to stand. See, e.g., 11
People v. Di Stefano, 38 N.Y.2d 640, 652 (1976); People v. Mahboubian, 74 N.Y.2d 174, 190 (1989) 12
(citing Rizzo when considering the issue of whether a defendant’s conduct came “very near” or 13
“dangerously near” the completion of a crime); People v. Naradzay, 50 A.D.3d 1489, 1490 (4th 14
Dep’t. 2008) (same). These courts have not, however, cited to Rizzo for the proposition that, as a 15
matter of law, a defendant is not guilty of attempted robbery when he has not found the person 16
whose property he intends to steal. Rather, the “rule” to be taken from Rizzo is the uncontroversial 17
principle that New York law requires a defendant to come within a “dangerous proximity” of 18
committing a crime to be guilty of attempt. See Rizzo, 246 N.Y. at 337. 19
New York’s “dangerous proximity” requirement is virtually identical to the federal 20
requirement that a defendant must take a “substantial step” toward the commission of a crime to be 21
guilty of attempt. United States v. Fernandez-Antonia, 278 F.3d 150, 162–63 (2d Cir. 2002) (noting 22
that the distinction between the federal and state requirements is “more semantic than real”).5
23
Under federal law, “[f]or a defendant to have taken a ‘substantial step,’ he must have engaged in 24
5 Because any difference between the New York and federal attempt requirements does not bear on our
holding in this case, we need not and do not address Celaj’s contention that Congress adopted Rizzo when it
looked to New York criminal law to define robbery under the Hobbs Act.
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more than ‘mere preparation,’ but may have stopped short of ‘the last act necessary’ for the actual 1
commission of the substantive crime.” United States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003). 2
Here, Celaj and his associates intended to enter Knierim’s home to rob him of drugs and 3
money hidden in his safe. The drugs and money were not believed to be on Knierim personally. 4
Moreover, Celaj was not “hunting about the streets” looking for his intended target, “not knowing 5
where [he] was.” See Rizzo, 246 N.Y. at 338–39. Rather Celaj and his associates knew the location 6
of Knierim’s home, approached it with guns and police shields, announced themselves as the 7
“police,” and spoke with Knierim’s housekeeper. Given this ample evidence, a rational juror could 8
find that Celaj’s conduct went far beyond “mere preparation” and constituted a “substantial step” 9
toward commission of a robbery. We therefore conclude that the District Court did not err in 10
denying Celaj’s Rule 29(a) motion. 11
* * * 12
We have considered all of Celaj’s other arguments and find them to be without merit. 13
CONCLUSION 14
For the foregoing reasons, we AFFIRM the judgment of the District Court in its entirety. 15
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