15‐1089‐cr United States v. Herron

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 February, two thousand nineteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 15‐1089‐cr

RONALD HERRON, also known as RA, also known as RA DIGGS, also known as RA DIGGA, also known as RAHEEM, Defendant‐Appellant,

* Judge Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation. TYRONE WILSON, also known as BISCUIT, also known as YOUNG BRICKY, JOSEPH GARCIA, also known as JO JO, MUSA MARSHALL, also known as SLIM, CRYSTAL LEWIS, also known as EBB, VERDREEA OLMSTEAD, also known as AUNTIE, JOSEPH RANDOLPH, also known as RIZZLE, JOSEPH VALENTIN, also known as J, TYHE WALKER, also known as G.I.B., also known as GUY IN THE BUSHES, ALGENIS CARABELLO, also known as HIGH‐HENNY, JORGE MEJIA, also known as MOOSE, also known as MUSSOLINI, SHONDELL WALKER, also known as M‐DOT, Defendants.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: J.E. SHREVE ARIAIL, Assistant United States Attorney (Susan Corkery, Samuel P. Nitze, Rena T. Paul, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: KELLEY J. SHARKEY, Law Office of Kelley J. Sharkey, Esq., Brooklyn, New York.

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

New York (Garaufis, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Defendant‐appellant Ronald Herron appeals from a judgment of

conviction, entered April 8, 2015, after a five‐week jury trial. Herron was convicted of 2

murder, firearms, racketeering, robbery, and drug offenses arising out of activities

associated with the ʺMurderous Mad Dogs Bloodsʺ gang (the ʺMMDBʺ) and its control

of the drug trade in the Wyckoff and Gowanus Houses in Brooklyn, New York. He was

sentenced principally to life imprisonment plus 105 years.1 We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

The government presented evidence that, from the late 1990s until 2011,

Herron headed a drug distribution and racketeering conspiracy centered around the

Wyckoff and Gowanus Houses. The evidence showed that:

 Herron ran a cocaine distribution business out of 423 Baltic Street in Brooklyn,

where he lived with his mother.

 Herron murdered a drug dealing competitor, Frederick Brooks, by shooting him

in the head in 2001. Although Herron was later acquitted of the murder, he and

his associates threatened key witnesses, who stopped cooperating with the state

prosecution as a result. Herron was convicted, however, on a related drug

charge in November 2002, and remained in prison until 2007, during which time

he became a high‐ranking member of the MMDB.

 Upon his release from prison in 2007, Herron robbed Joseph Garcia at gunpoint

in an effort to reestablish control over the 423 Baltic drug market.

1 Herronʹs convictions carried with them several life sentences, running consecutively to some counts and concurrently with others, as well as mandatory minimum consecutive sentences for certain gun counts. 3

 Herron murdered Richard Russo by shooting him in the head on May 9, 2008.

Russo had told Herronʹs associates that he would kill Herron if he ever

confronted him.

 Herron murdered Victor Zapata at 185 Nevins Street, after Zapata attacked and

shot one of Herronʹs top lieutenants, Jorge Mejia. Herronʹs presence at the

murder scene was established through government cell‐site evidence.

Herron took the stand and denied murdering Brooks or engaging in any

illegal activity after his November 2002 conviction on drug charges. Instead, he testified

that he tried to turn his life around in prison and that upon his release in 2007, he

devoted himself to a rap career. He admitted joining the MMDB, but only to protect

himself while in prison and to further his music career, rather than for any illegal

purpose.

Herron raises a host of issues on appeal: (1) he was denied his Sixth

Amendment right to compulsory process with respect to two witnesses who invoked

their Fifth Amendment right against self‐incrimination; (2) music and promotional

videos related to his rap music career were erroneously admitted into evidence; (3) the

district court erred in denying his motion to suppress cell‐site evidence; and (4) his

predicate convictions were improperly considered ʺcrimes of violenceʺ under

(c). Addressing each issue in turn, we conclude that Herronʹs challenges lack

merit.

4

I. Sixth Amendment

Herron argues that the district court violated his Sixth Amendment right

to compulsory process by permitting two witnesses, Diane Flowers and Stacey Knight,

to invoke their Fifth Amendment privilege against self‐incrimination without adequate

inquiry into the basis of their claim of privilege.

ʺWe review [Herronʹs] constitutional claim[] de novo, but accept [the]

district courtʹs factual findings unless they are clearly erroneous.ʺ United States v.

Desena,

(2d Cir. 2002). ʺTo establish a Sixth Amendment violationʺ in

this context, ʺa defendant must demonstrate that he was deprived of the opportunity to

present a witness who would have provided testimony that was both material and

favorable to his defense,ʺ Howard v. Walker,

(2d Cir. 2005) (internal

quotations omitted), ʺin ways not merely cumulative to the testimony of available

witnesses,ʺ United States v. Ginsberg,

(2d Cir. 1985) (quoting United

States v. Valenzuela‐Bernal,

(1982)).

Relying on United States v. Zappola, Herron argues that the district court

erred by failing to ʺundertake a particularized inquiryʺ to determine whether the Fifth

Amendment assertions by Flowers and Knight were ʺfounded on a reasonable fear of

prosecution as to each of the . . . questionsʺ defense counsel sought to ask.

(2d Cir. 1981).

5

As to Flowers, Herronʹs Sixth Amendment claim was waived. On advice

of counsel, Flowers indicated that she would not appear voluntarily and she would

invoke the Fifth Amendment in response to any questions inquiring into a privileged

subject area. Herronʹs counsel indicated on the record that it was not his ʺintention to

put [Flowers] on the stand under subpoenaʺ and it was his understanding ʺthat [as to]

the specific questions [defense counsel was] going to put to her,ʺ i.e., ʺwhether or not

she received a gun [or] handed guns to somebody else, that she would invoke the Fifth

Amendment with respect to those questions.ʺ G. App. at 127. On that basis, counsel for

Herron indicated that he was ʺfinish[ed] with that witness.ʺ

Herron never

attempted to subpoena Flowers. Therefore, he cannot now complain that he was

denied process to compel Flowers to testify.

As to Knight, Herron argues that the district courtʹs consideration of

Knightʹs invocation of the Fifth Amendment was pro forma. There was sufficient

evidence in the record, however, to support the district courtʹs conclusion that Knight

had a valid basis to invoke the Fifth Amendment. For example, evidence presented at

trial indicated that Knight was a ʺgodfatherʺ to the MMDB (i.e., the gangʹs top leader),

Herron was a ʺgeneralʺ for Knight in the MMDB, and Herron and certain of his

associates had visited Knight in prison and had corresponded with him. Such facts

formed a valid basis for the district court to conclude that Knightʹs answer to any

substantive question about his relationship to Herron would expose him to a

6

ʺsubstantial and real . . . hazard[] of incrimination.ʺ United States v. Rodriguez,

(2d Cir. 1983) (internal quotation marks omitted). Therefore, the district court did

not err in concluding that Knightʹs invocation of the Fifth Amendment was proper.

Moreover, even if the district court did err in this respect, Herron has not shown that

Knightʹs testimony ʺwould have been material and favorable to his defense, in ways not

merely cumulative to the testimony of available witnesses.ʺ Ginsberg,

.

II. Rap and Promotional Videos

Herron argues that the district court erred by admitting into evidence

certain music and promotional videos related to his rap music career on grounds that

the evidence violated (1) his First Amendment right of free expression and (2) Federal

Rule of Evidence 403.

The First Amendment limits the governmentʹs ability to regulate the

content of speech. See Turner Broad. Sys., Inc. v. FCC,

(1994). It does

not, however, ʺprohibit the evidentiary use of speech to establish the elements of a

crime or to prove motive or intent.ʺ Wisconsin v. Mitchell,

(1993).

ʺEvidence of a defendantʹs previous declarations or statements is commonly admitted

in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the

like.ʺ

We review a district courtʹs evidentiary rulings for abuse of discretion.

United States v. Curley,

(2d Cir. 2011). ʺ[S]o long as the district court has

7

conscientiously balanced the proffered evidenceʹs probative value with the risk for

prejudice,ʺ a Rule 403 determination ʺwill be disturbed only if it is arbitrary or

irrational.ʺ United States v. Awadallah,

(2d Cir. 2006). We will vacate a

conviction only if the error is not harmless. See United States v. Mercado,

(2d Cir. 2009).

Herronʹs First Amendment challenge ʺis meritless . . . because here the

speech is not ʹitself the proscribed conduct.ʹʺ United States v. Pierce,

(2d

Cir. 2015) (quoting United States v. Caronia,

(2d Cir. 2012)). Herronʹs

rap videos were ʺused to establish the existence of, and [his] participation in, the alleged

RICO enterprise,ʺ and thus the First Amendment is not implicated. Pierce,

.

The videos ‐‐ offered as evidence of Herronʹs participation in the charged

conspiracies and crimes, his position as a leader of the MMDB, his familiarity with

firearms and the drug trade, and his relationship to certain cooperating witnesses ‐‐ are

plainly relevant.2 The district court balanced the risk of prejudice from the profanity

and offensive conduct in the videos against their probative value in concluding that

Rule 403 did not bar their admission into evidence. See United States v. Herron, No. 10‐

2 The videos portray, inter alia, Herron and his affiliates glorifying their past crimes and prison sentences, bragging about their domination of the drug trade in the housing projects they controlled, threatening rival gangs with violence, and using firearms at a firing range. In one video, Herron is approached by a woman looking to buy drugs from him. 8

cr‐615,

, at *4‐5 (E.D.N.Y. May 8, 2014). Accordingly, the district court

did not abuse its discretion in admitting the evidence under Rule 403. See Pierce,

(ʺRap lyrics . . . are properly admitted . . . where they are relevant and their

probative value is not substantially outweighed by the danger of unfair prejudice.ʺ).

III. Cell‐Site Evidence

Herron next argues that the district court erred in denying his motion to

suppress certain cell‐site evidence that placed him in the vicinity of the Wyckoff Houses

when Victor Zapata was murdered there in 2009.

ʺWe review de novo the legal issues raised in a motion to suppress

evidence.ʺ In re Terrorist Bombings of U.S. Embassies in E. Afr.,

(2d Cir.

2008). ʺWe review a district courtʹs factual findings for clear error, viewing the evidence

in the light most favorable to the government.ʺ

Herron contends that the governmentʹs use in 2009 of an order issued

under the Stored Communications Act (the ʺSCAʺ),

, to obtain cell‐site

records for his mobile phone violated his Fourth Amendment right to be free from

warrantless searches and seizures. The SCA permits the government to obtain such

information, without a warrant, if it offers ʺspecific and articulable facts showing that

there are reasonable grounds to believe that the contents of a wire or electronic

communication, or the records or other information sought, are relevant and material to

an ongoing criminal investigation.ʺ

(d).

9

Herron argues that the governmentʹs obtaining of 43 days of cell‐site

records amounted to a search within the meaning of the Fourth Amendment, and thus

required a warrant supported by probable cause. The Supreme Court has recently

instructed that the government must generally obtain a warrant, based on a probable

cause showing, to obtain cell‐cite records from a third party. Carpenter v. United States,

‐‐ U.S. ‐‐,

(2018). Nevertheless, the good faith exception to the

exclusionary rule applies here. See United States v. Zodhiates,

(2d Cir.

2018) (holding that the good faith exception to the exclusionary rule applies to cell‐cite

location information obtained in 2010 pursuant to § 2703(d) of the SCA because the

search was made in ʺobjectively reasonable reliance on appellate precedent existing at

the time of the searchʺ); see also United States v. Curtis,

(7th Cir. 2018)

(ʺ[T]hough it is now established that the Fourth Amendment requires a warrant for the

type of cell‐phone data present here, exclusion of that information was not required

because it was collected in good faith.ʺ).

The good faith exception applies unless § 2703(d) was ʺclearly

unconstitutionalʺ with respect to cell‐cite records at the time the government applied for

the order in 2009. Illinois v. Krull,

, 349‐50 (1987). Herron, however, only

points to post‐2009 cases in support of his argument. He has failed to establish that

§ 2703(d) was clearly unconstitutional as applied to him in 2009, when the government

applied for the order in accordance with the statute and obtained the records. Id. at 350

10

(ʺIf the statute is subsequently declared unconstitutional, excluding evidence obtained

pursuant to it prior to such a judicial declaration will not deter future Fourth

Amendment violationsʺ and, thus, the exclusionary rule does not apply).

Herron further argues that the government is not entitled to the good faith

exception because its § 2703(d) application failed to disclose that it sought his cell‐site

records to investigate the murder of Victor Zapata, rather than the drug distribution

conspiracy detailed in the application. Zapataʹs murder, however, was bound up in the

conspiracy. Furthermore, Herron has not shown that the alleged omission in any way

ʺknowingly misledʺ the issuing magistrate judge such that the good faith exception

should not apply. United States v. Falso,

(2d Cir. 2008).3

IV. Crime of Violence

Lastly, Herron challenges his firearms convictions on Counts Seven, Ten,

Fourteen, and Nineteen on the grounds that the ʺrisk‐of‐force clauseʺ of

(c)(3)(B) is unconstitutionally vague and New York State murder and Hobbs Act

robbery are not ʺcrimes of violenceʺ because they do not satisfy § 924(c)(3)(A)ʹs ʺforce

clause.ʺ He must be correct in both respects to prevail on appeal.

3 In a letter dated July 29, 2018, filed pursuant to Federal Rule of Appellate Procedure 28(j), Herron, for the first time, argues that a Sixth Circuit opinion precludes application of the exclusionary rule. Warshak v. United States,

(6th Cir. 2007). That panel decision, however, was subsequently vacated en banc by the Sixth Circuit. Warshak v. United States,

(6th Cir. 2008) (en banc). 11

We review questions of law de novo. United States v. Fullwood,

(2d Cir. 1996). Section 924(c) prohibits the use or carrying of a firearm in relation to,

or possession of a firearm in furtherance of, a ʺcrime of violence.ʺ

(c)(1)(A). A ʺcrime of violenceʺ is defined as a felony that (1) ʺhas as an element

the use, attempted use, or threatened use of physical force against the person or

property of anotherʺ (the ʺforce clauseʺ) or (2) ʺby its nature . . . involves a substantial

risk that physical force against the person or property of another may be used in the

course of committing the offenseʺ (the ʺrisk‐of‐force clauseʺ).4

§ 924(c)(3)(A)‐(B).

Two of our recent decisions are relevant to Herronʹs arguments. In United

States v. Hill,

(2d Cir. 2018), we applied the force clause of § 924(c) to a

conviction for Hobbs Act robbery. We held that Hobbs Act robbery categorically

qualifies as a ʺcrime of violenceʺ within the meaning of § 924(c)(3)(A). Id. at 60. In

United States v. Barrett,

(2d Cir. 2018), we held that (1) Hobbs Act robbery

conspiracy categorically qualifies as a ʺcrime of violenceʺ within the meaning of § 924(c)

without implicating the concerns raised by the Supreme Court in Johnson v. United

States,

(2015), and Sessions v. Dimaya,

(2018); and (2)

§ 924(c)(3)(B) can be applied in a ʺcase‐specificʺ way that ʺavoids both the Sixth

4 The risk‐of‐force clause is sometimes referred to as the ʺresidual clause.ʺ See, e.g., United States v. Barrett,

(2d Cir. 2018). 12

Amendment right‐to‐trial and due process vagueness concernsʺ that animated Johnson

and Dimaya.

at 177‐78.

As to Herronʹs § 924(c) conviction on Count Ten, which is predicated on

Hobbs Act robbery, Herronʹs argument that his § 924(c) conviction should be vacated

because § 924(c)ʹs force clause does not apply to Hobbs Act robbery is foreclosed by our

decision in Hill. Hill makes clear that Hobbs Act robbery is categorically a crime of

violence under § 924(c)(3)(A). Hill,

. Thus, Herronʹs argument as to Count

Ten fails.

Herron also argues that his § 924(c) convictions on Counts Seven,

Fourteen, and Nineteen do not categorically constitute crimes of violence under

§ 924(c)(3)(A). These counts are predicated on murder‐in‐aid‐of‐racketeering and drug‐

related murder, which themselves are federal crimes predicated on New York State

murder. Because an individual can intentionally kill using, for example, poison,

starvation, or exposure to hazardous materials, Herron argues that New York State

murder does not require ʺphysical force.ʺ There exist at least two paths of analysis for

considering whether Herronʹs predicate acts are ʺcrimes of violenceʺ for purposes of

§ 924(c): (1) the categorical approach under § 924(c)(3)(A), the force clause, or (2) the

13

case‐specific approach under § 924(c)(3)(B), the risk‐of‐force clause, as adopted in

Barrett. Here, we apply the second approach.5

Barrett instructs that § 924(c)(3)(B) ʺcan be applied to a defendantʹs case‐

specific conduct, with a jury making the requisite findings about the nature of the

predicate offense and the attending risk of physical force being used in its commission.ʺ

Barrett,

. Although the jury did not make a conduct‐specific § 924(c)(3)(B)

determination here, any error in failing to require the jury to make such a finding was

harmless beyond a reasonable doubt. See id. at 184.

Herronʹs conduct attributable to the murder‐in‐aid‐of‐racketeering and

drug‐related murder counts underlying Counts Seven, Fourteen, and Nineteen

constitute crimes of violence under Barrettʹs conduct‐specific approach to § 924(c)(3)(B)ʹs

risk‐of‐force clause. The jury convicted Herron of both murder‐in‐aid‐of‐racketeering

and drug‐related murder for each of Frederick Brooks, Richard Russo, and Victor

5 As to the first approach, we have not held in a precedential opinion that New York State murder is categorically a crime of violence under § 924(c)(3)(A), although we have done so in summary orders. See United States v. Praddy, 729 Fed. Appʹx 21, 24 (2d Cir. 2018) (summary order) (noting that ʺattempted murder is a crime unmistakably involving an attempted use of physical forceʺ under § 924(c)(3)(A) (internal quotation marks omitted)); United States v. Scott, 681 Fed. Appʹx 89, 95 (2d Cir. 2017) (summary order) (ʺAttempted murder in the second degree is a crime unmistakably involving an attempted use of physical force within § 924(c)(3)(A).ʺ (internal quotation marks omitted)). Application of the categorical approach to the risk‐of‐force clause is unavailable to us. Although we did not expressly hold in Barrett that § 924(c)(3)(B) is unconstitutionally vague when applied as part of the categorical approach, we did hold that the principle of constitutional avoidance dictates that ʺidentification of a crime of violence under § 924(c)(3)(B) is properly made by a jury on a conduct‐specific basisʺ and, thus, not categorically by the court. Barrett, 903 F.3d at 182‐83. 14

Zapata. Count Seven corresponds to the murder of Brooks, Count Fourteen

corresponds to the murder of Russo, and Count Nineteen corresponds to the murder of

Zapata. Herron murdered Brooks by shooting him with a firearm in the neck, back, and

face on June 16, 2001, following a dispute over territory. Herron murdered Russo by

shooting him with a firearm in the head on May 9, 2008, after concluding that Russo

had disrespected him. Herron murdered Zapata by shooting him with a firearm

multiple times in the torso and head on September 27, 2009, in retaliation for a shooting

that Zapata committed against one of Herronʹs associates. The verdict sheet containing

special interrogatories makes clear that the jury found that the government proved

beyond a reasonable doubt that Herron ʺdischarged a firearmʺ in connection with each

murder. Because the jury found that the actions taken by Herron underlying each of his

§ 924(c) convictions involved the actual use of physical force ‐‐ firing a gun one or more

times at the person of another, leading to that personʹs death ‐‐ the ʺevidence can only

support a finding that the charged [crimes], by [their] nature, involved a substantial risk

of the use of physical force.ʺ Barrett,

(internal quotation marks omitted).

Thus, Herronʹs arguments as to Counts Seven, Fourteen, and Nineteen fail under a case‐

specific application of § 924(c)(3)(B).

* * *

15

We have considered Herronʹs remaining arguments and find them to be

without merit. For the reasons set forth above, we AFFIRM the district courtʹs

judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

16