17‐3559‐cr United States v. Lee

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of December, two thousand eighteen.

PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 17‐3559‐cr

DONTE LEE, Defendant‐Appellant.

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FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

FOR DEFENDANT‐APPELLANT: MARC FERNICH, Law Office of Marc Fernich, New York, New York.

Appeal from the United States District Court for the Western District of

New York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Donte Lee appeals from a judgment entered October

31, 2017, convicting him of one count of felon in possession of a firearm and

ammunition, in violation of

(g)(1) and 924(a)(2) (ʺCount Oneʺ), and one

count of possession of marijuana, in violation of the Controlled Substances Act (the

ʺCSAʺ),

(a) and 851 (ʺCount Twoʺ). Lee was sentenced principally to a

term of 54 monthsʹ imprisonment on Count One and 36 monthsʹ imprisonment on

Count Two, to run concurrently, followed by three years of supervised release on Count

One and one year of supervised release on Count Two, to run concurrently. On appeal,

Lee presents four challenges to his conviction: (1) the sufficiency of the evidence as to

Count One; (2) the admissibility of evidence related to his initial buccal swab; (3)

ineffective assistance of counsel; and (4) the constitutionality of 21 U.S.C § 844(a). We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

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I. Sufficiency of Evidence as to Count One

The district court did not err in denying Leeʹs motion for judgment of

acquittal because the government presented sufficient evidence that Lee unlawfully

possessed a firearm. We review a district courtʹs denial of a Rule 29 motion de novo and

will uphold a juryʹs verdict if ʺany rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.ʺ United States v. Alston,

(2d Cir. 2018) (internal quotation marks omitted). The defendantʹs burden in

challenging the sufficiency of the evidence after conviction is heavy, and we view the

evidence in the light most favorable to the government, drawing all inferences in the

governmentʹs favor and deferring to a juryʹs assessments of the witnessesʹ credibility.

See id.; United States v. Baker,

(2d Cir. 2018).

Lee has not demonstrated that the governmentʹs evidence is ʺnonexistent

or so meagerʺ that no reasonable juror could agree with the governmentʹs proposed

inferences. See United States v. Martoma,

(2d Cir. 2017). The government

presented evidence that officers saw Lee flee the scene of a suspected shooting holding

a bagged object in a manner consistent with one holding a firearm. Officers later

recovered a black bag from a tree and a loaded firearm approximately 20 to 25 feet

away from Leeʹs crashed vehicle following a brief vehicle chase between Lee and the

officers.

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As circumstantial evidence, the government also presented

deoxyribonucleic acid (ʺDNAʺ) evidence through expert testimony to support its

argument that Lee had possession of the firearm. Lee principally quarrels with the

expertʹs (1) finding that the major DNA profile found on the firearm matched Leeʹs

known DNA sample, and (2) use of probabilistic genotyping software, STRMix, to

support her conclusion that Lee and two unknown, unrelated individuals probably

contributed to the three‐person mixed DNA profile found on the firearm rather than

three unknown, unrelated individuals. Essentially, Lee disputes the reliability of DNA

evidence presented at trial and the credibility of the expertʹs testimony, but these were

questions for the jury. See Baker,

(ʺʹWe will not attempt to second‐guess

a juryʹs credibility determination on a sufficiency challenge,ʹ particularly when . . . trial

counsel already presented these same credibility arguments to the jury.ʺ) (internal

quotation marks omitted); United States v. Roman,

(2d Cir. 1989) (ʺThe

weight [of evidence] is a matter for argument to the jury, not a ground for reversal on

appeal.ʺ). Taken together ‐‐ and drawing all inferences in the governmentʹs favor ‐‐

there was sufficient evidence for a reasonable juror to conclude beyond a reasonable

doubt that Lee possessed the firearm.

II. Admissibility of Evidence Related to Leeʹs Initial Buccal Swab

The district court did not impermissibly exclude evidence concerning the

failure of Erie Countyʹs Central Police Serviceʹs Forensic Laboratory (ʺCPS LABʺ) to

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develop a DNA profile from Leeʹs initial buccal swab taken after his arrest. This Court

reviews a district courtʹs evidentiary rulings for abuse of discretion. United States v.

Litvak,

(2d Cir. 2018). ʺ[S]o long as the district court has conscientiously

balanced the proffered evidenceʹs probative value with the risk for prejudice, its

conclusion will be disturbed only if it is arbitrary or irrational.ʺ United States v.

Sampson,

(2d Cir. 2018) (quoting United States v. Awadallah,

(2d Cir. 2006)).

On a pretrial motion in limine, the district court examined Leeʹs proposed

evidence regarding forensic biologist Maria Orsinoʹs failed attempt to develop a genetic

profile from Leeʹs first buccal swab or to match it to DNA retrieved from the firearm.

While Lee now argues that the evidence was ʺmaterial, probative and crucially relevant

to attack the labʹs claimed proficiency, integrity and reliability,ʺ the district court

considered the evidence in the context of Leeʹs attempt to undermine the reliability of

the governmentʹs expert on the specific conclusions underlying that expertʹs testimony.

The district court determined that Orsinoʹs testimony would have ʺbarely minimal

probative valueʺ because none of the expertsʹ analyses offered at trial ‐‐ which were

based on a second buccal swab ‐‐ would be based on Orsinoʹs work with the initial

buccal swab. Orsino was also prepared to testify that data used by the governmentʹs

expert was sufficient. The district court subsequently weighed the evidenceʹs minimal

probative value against the risk that the jury would be confused or misled by the

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forthcoming presentation of complex DNA evidence and concluded that Orsinoʹs

testimony or any reference to her efforts should be excluded. See Litvak,

(ʺRelevant evidence may be excluded ʹif its probative value is substantially outweighed

by a danger of . . . confusing the issuesʹʺ or ʺmisleading the jury.ʺ) (quoting Fed. R. Evid.

403). That reasoning was neither arbitrary nor irrational. Consequently, the district

court did not abuse its discretion in excluding evidence related to Leeʹs initial buccal

swab.

III. Ineffective Assistance of Counsel

Lee contends that he received ineffective assistance of counsel because his

trial counsel failed to seek suppression of Leeʹs second buccal swab obtained via search

warrant. When a criminal defendant on direct appeal asserts trial counselʹs ineffective

assistance, we may ʺ(1) decline to hear the claim, permitting the appellant to raise the

issue as part of a subsequent [28 U.S.C.] § 2255 [motion]; (2) remand the claim to the

district court for necessary fact‐finding; or (3) decide the claim on the record before us.ʺ

United States v. Doe,

(2d Cir. 2004) (quoting United States v. Leone,

(2d Cir. 2000)). We have repeatedly expressed a ʺbaseline aversion to

resolving ineffectiveness claims on direct review.ʺ United States v. Levy,

(2d Cir. 2004) (quoting United States v. Morris,

(2d Cir. 2003)).

Similarly, here, we decline to decide Leeʹs claim based on the record before us given

that the constitutional sufficiency of Leeʹs counselʹs performance is ʺunripe for seasoned

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retrospection.ʺ United States v. Salameh,

(2d Cir. 1998). Lee is not

foreclosed from asserting an ineffective assistance of counsel claim in a future motion

under

.

IV. Constitutionality of

(a)

In his final challenge on appeal, Lee asserts that 21 U.S.C § 844(a) is an

unconstitutional exercise of Congressʹs authority under the Commerce Clause in this

case, where Lee was convicted of simple possession of less than one ounce of marijuana,

particularly as public sentiment shifts toward legalizing marijuana. The Supreme Court

has held, however, that ʺ[t]he CSAʹs categorical prohibition of the manufacture and

possession of marijuana as applied to the intrastate manufacture and possession of

marijuanaʺ does not exceed Congressʹs authority under the Commerce Clause. Gonzales

v. Raich,

(2005) (emphasis added); accord Taylor v. United States,

(2016). This Court is bound by Supreme Court precedent, notwithstanding a

partyʹs assertion that the direct, controlling authority ʺwould no longer command a

majority of the United States Supreme Court.ʺ Adams v. Depʹt of Juvenile Justice of City of

N.Y.,

(2d Cir. 1998). Indeed, Lee acknowledges that his argument in this

respect is ʺcurrently foreclosed by [Raich].ʺ Def. Appellantʹs Br. at 73.

* * *

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We have considered Leeʹs remaining arguments and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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