17‐2900 United States v. Coll

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 COURT’S 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 “SUMMARY ORDER”). 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 21st day of February, two thousand and nineteen.

Present: JOSÉ A. CABRANES, RICHARD C. WESLEY, Circuit Judges.* ______________________

UNITED STATES of America,

Appellee,

v. 17‐2900

Brian COLL,

Defendant‐Appellant,

* Judge Debra A. Livingston, originally a member of this panel, recused herself from consideration of this matter. The remaining members of this panel, who agree on the outcome, have decided this case pursuant to Second Circuit Internal Operating Procedure E(b). Anthony Torres, Byron Taylor, Defendants. ______________________

For the Defendant‐Appellant: DONNA ALDEA (Bruce Barket, on the brief), Barket Epstein & Kearon LLP, Garden City, NY.

For the Appellee: JEANNETTE A. VARGAS, (Martin S. Bell, Andrew D. Beaty, on the brief), Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. ______________________

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

We assume the parties’ familiarity with the matter and discuss the underlying facts

and law only as necessary to resolve the issues before us. Defendant Brian Coll, a former

Rikers Island correction officer, appeals from a judgment of the United States District

Court for the Southern District of New York (Preska, J.). The Government charged Coll

under

with violating the civil rights of Ronald Spear, a pretrial detainee

at Rikers, and with causing Spear’s death by repeatedly kicking him in the head while

two other correction officers restrained him on the floor. The Government also charged

Coll with obstructing and conspiring to obstruct justice by covering up the circumstances

surrounding Spear’s death. Following a trial, a jury convicted Coll and the district court

sentenced him to 360 months’ imprisonment.

2 ANALYSIS

Coll makes three arguments on appeal: (1) that the jury lacked sufficient evidence

to find that his kicks caused Spear’s death; (2) that the district court erroneously

instructed the jury on the “death resulting” element of the

charge; and (3)

that his 360‐month sentence is both procedurally and substantively unreasonable.

I. The Evidence Was Sufficient for the Jury to Find that Coll Caused Spear’s Death by Repeatedly Kicking Him in the Head.

“We review a claim of insufficient evidence de novo.” United States v. Novak,

(2d Cir. 2006) (quoting United States v. Lewter,

(2d Cir.

2005)). However, a defendant who challenges a jury verdict “faces a heavy burden,

because we must view the evidence in the light most favorable to the government and

ask only whether a rational jury could find beyond a reasonable doubt that the

[defendant] intended or contemplated some harm to the [victim].”

(quoting United

States v. Frank,

(2d Cir. 1998) (per curiam)).

In Burrage v. United States,

(2014), the Supreme Court interpreted the

phrase “results from” in the Controlled Substances Act,

(b)(1)(A), as

carrying its “ordinary meaning[:] . . . actual causality.”1 Burrage, 571 U.S. at 210–11.

Burrage explained that an act is the but‐for cause of death when it “combines with other

1 Both sides agree that Burrage controls here. We assume without deciding that it does.

3 factors to produce the result, so long as the other factors alone would not have done so.”

.

The Government presented unrebutted evidence that Coll repeatedly kicked Spear

in the head. One witness testified that Coll kicked Spear, “with a lot of force,” like “he

was kicking a field goal.” Trial Tr. 200, 320. One of the Government’s medical experts

testified that Spear would have lived had he not suffered blunt force trauma to the head

and that these kicks, without any preceding takedown, would have been independently

sufficient to cause even a healthy person to suffer a fatal cardiac arrhythmia. Trial Tr. 751‐

52. Viewing the evidence in the light most favorable to the Government, we conclude that

a rational jury could have found beyond a reasonable doubt that Coll’s kicks were the

actual cause of Spear’s death.

II. The Jury Instructions Conveying the Legal Standard for the “Death Resulting” Element Were Not Plainly Erroneous.

Coll next argues that the jury instructions improperly conveyed the standards for

proximate and but‐for causation, both of which the Government must prove to establish

that “death result[ed]” from Coll’s conduct.2 See

.

2 Despite requesting a proximate cause instruction at trial, the Government now contends that whether

contains a proximate cause requirement is “unsettled” and suggests that we adopt the reasoning of one of our cases interpreting a similarly worded statute. Gov’t Br. 35; see also Gov’t Jan. 24, 2019 Rule 28(j) Letter at 1. While it is true that we have interpreted the phrase “death results” in

(conspiracy to deprive a citizen of his civil rights) to require proximate cause, see United States v. Guillette,

(2d Cir. 1976), we see no reason to resolve that issue at this time given the Government’s position at trial.

4 A. Proximate Cause Instruction

In the proceedings below, defense counsel made only a blanket objection to the

proximate cause instruction. This objection was not specific enough to put the court on

notice of Coll’s concerns. When the court provided defense counsel an opportunity to

elaborate on the blanket objection, defense counsel raised only an unrelated point.

“[W]here a defendant fails to make a specific and timely objection to a district court’s

legal instructions, we typically review those instructions only for plain error.” United

States v. Bahel,

(2d Cir. 2011). Accordingly, our review is for plain error.3

“For an error to be a plain error or a defect affecting substantial rights, it must be a clear

or obvious deviation from current law that affected the outcome of the district court

proceedings.” United States v. Svoboda,

(2d Cir. 2003) (brackets, quotation

marks, and citations omitted).

Coll contends that the portion of the charge stating that “the government need

only prove that bodily injury or death was a natural and foreseeable result of the acts,”

App. 72, erroneously referenced “bodily injury.” He argues that this language could have

allowed the jury to convict Coll for causing Spear’s death even if it concluded that only

3 In footnotes to his reply brief, Coll argues for the first time that if his counsel in fact failed to raise a specific and timely objection to this portion of the jury charge that we should vacate his conviction for ineffective assistance of counsel. We take no position on this question and instead decline to address it because arguments raised for the first time in a reply brief are not preserved for appeal, DeFabio v. E. Hampton Union Free Sch. Dist.,

(2d Cir. 2010) (per curiam), and arguments raised only in footnotes are not preserved for appeal, United States v. Restrepo,

(2d Cir. 1993) (per curiam).

5 bodily injury, rather than death, was a natural and foreseeable result of Coll’s conduct.

Even assuming for the sake of argument that this language were erroneous, any error

would not have prejudiced Coll because the Government presented overwhelming

evidence that death itself was a natural and foreseeable result of Coll repeatedly kicking

Spear, whom he knew suffered from serious health problems, in the head. We thus find

no plain error in this instruction.

B. But‐for Cause Instruction

Coll asked the district court to instruct the jury on the “independently sufficient

cause” theory as an alternative to but‐for causation. Under this theory, the Government

may prove that a defendant’s actions were the actual cause of someone’s death when

“multiple sufficient causes independently, but concurrently, produce a result.” Burrage,

.

Coll’s proposed independent sufficiency charge included much of the language to

which he now objects. But Coll later submitted a letter to the court proposing several

amendments to this language. He also objected to the independent sufficiency charge “in

its entirety,” arguing that the independent sufficiency language from Burrage was dicta.

App. 53. The district court declined to adopt Coll’s amendments during a charging

conference the following day. Coll objected, but he did not repeat his Burrage argument

or provide any specific reason why the instruction was incorrect. We therefore review for

plain error.

6 Even if it were improper for the district court to instruct the jury on independent

sufficiency, any error in this instruction would not have prejudiced Coll because the

Government presented sufficient evidence that Coll’s conduct was the actual cause of

Spear’s death, rather than one amongst multiple independently sufficient causes.

Accordingly, we find no plain error in the challenged instruction.

III. Coll’s 360‐Month Sentence Was Not Unreasonable.

We review a district court’s sentencing decision under a “deferential abuse‐of‐

discretion standard.” United States v. Cavera,

(2d Cir. 2008) (en banc)

(quoting Gall v. United States,

(2007)). This means “de novo review of

questions of law (including interpretation of the [Sentencing] Guidelines) and clear‐error

review of questions of fact.” United States v. Bonilla,

(2d Cir. 2010)

(quoting United States v. Legros,

(2d Cir. 2008)).

Coll contends that his 360‐month sentence is procedurally unreasonable because

the district court erroneously calculated the Guidelines range for his crime by reference

to the base offense level for second‐degree murder, when it should have used the base

offense level for involuntary manslaughter or criminally negligent homicide.

Section 2H1.1(a)(1) of the Guidelines requires the district court to apply the

greatest applicable base offense level when sentencing individuals convicted under

. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2H1.1(a)(1) (U.S.

Sentencing Comm’n 2016). The district court applied the base offense level for second‐

7 degree murder upon finding that Coll had acted with malice aforethought. See

(a) (requiring “malice aforethought” for second‐degree murder). After accounting

for Coll’s criminal history level of 1 and various enhancers, the Guidelines recommend a

sentence of life imprisonment. See U.S.S.G. § 5A.

We find no clear error in the district court’s selection of second‐degree murder as

the most serious underlying offense. The Government presented ample evidence that

Coll waited several minutes after an initial altercation before repeatedly kicking Spear—

who was fully restrained and lying prone on the floor—in the head. Even if Coll did not

intend to kill or seriously injure Spear, his conduct clearly manifested a reckless

indifference to whether Spear lived or died. Moreover, the alleged provocation offered

by an already frail Spear—specifically, the push to Coll’s chest and the kicks to his shins—

was not objectively sufficient to arouse the passions of a reasonable correction officer.

Thus, the district court correctly concluded that Coll acted with malice aforethought. See

United States v. Velazquez,

(2d Cir. 2001) (“Extremely negligent conduct,

which creates what a reasonable man would realize to be not only an unjustifiable but

also a very high degree of risk of death or serious bodily injury to another or to others—

though unaccompanied by any intent to kill or do serious bodily injury—and which

actually causes the death of another, may constitute murder.” (quoting 2 Wayne R.

LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.4, at 200 (2d ed. 1986))).

8 Coll also argues that the district court procedurally erred by applying a

“vulnerable victim” enhancement to his sentence. See U.S.S.G. § 3A1.1(b)(1). Coll

contends that he was unaware of the full extent of Spear’s health problems and that, in

his view, Spear was the initial aggressor. The vulnerable‐victim enhancement applies

when a defendant harms someone “who is unusually vulnerable due to age, physical or

mental condition, or who is otherwise particularly susceptible to the criminal conduct.”

Id. § 3A1.1(b)(1) & cmt. n.2. Coll knew Spear was housed in an infirmary unit, that he

walked with a cane, and that he received regular dialysis treatment. Coll also attacked

Spear while two other correction officers held Spear to the ground, leaving Spear unable

to defend himself. Thus, even if Spear had been the “initial aggressor” in his altercation

with Coll, Spear was vulnerable when Coll assaulted him. We thus find no clear error in

the court’s decision to apply this enhancement.

Finally, Coll argues that his below‐Guidelines sentence was substantively

unreasonable because it was disproportionately severe and the district court gave

insufficient weight to certain factors outlined in

(a). A substantively

unreasonable sentence is one that is “shockingly high, shockingly low, or otherwise

unsupportable as a matter of law” such that allowing it to stand would “damage the

administration of justice.” United States v. Broxmeyer,

(2d Cir. 2012)

(quoting United States v. Rigas,

(2d Cir. 2009)). The record demonstrates

that the district court thoughtfully and carefully considered the

(a)

9 factors. Moreover, the district court acknowledged Coll’s sentencing‐disparity argument,

but it nevertheless determined Coll deserved a lengthy sentence because of “the

particular wantonness and callousness and viciousness of [his] attack.” App. 218. Based

on the gravity of Coll’s crimes, we hold that his sentence is not substantively

unreasonable.

CONCLUSION

We have considered Coll’s remaining arguments and find that none warrant

reversing his conviction or vacating his sentence. Accordingly, we AFFIRM the judgment

of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

10