18-1933 (L) United States v. Walker

In the United States Court of Appeals For the Second Circuit ______________

August Term, 2019

(Argued: December 6, 2019 Decided: September 11, 2020)

Nos. 18-1933, 18-2085 ______________

UNITED STATES OF AMERICA,

Appellee–Cross-Appellant,

–v.–

SHAMEKE WALKER,

Defendant-Appellant–Cross-Appellee. ______________

B e f o r e:

JACOBS, CARNEY, and PARK, Circuit Judges. ______________

Following his arrest for a 2015 attempted robbery of a convenience store in Brooklyn, Defendant-Appellant Shameke Walker was charged with (1) one count of Hobbs Act Robbery, in violation of

(a) (“Count One” or the “Hobbs Act robbery count”); (2) one count of Committing Physical Violence in Furtherance of a Hobbs Act Robbery, in violation of

(a) (“Count Two” or the “violence-in-Hobbs Act robbery count”); (3) one count of Possessing, Brandishing, and Discharging a Firearm During a Crime of Violence, in violation of

(c) (“Count Three” or the “firearm-in-violent-crime count”); and (4) one count of being a Felon in Possession of Ammunition, in violation of

(g)(1) (“Count Four” or the “felon-in- possession count”). Walker proceeded to trial by jury, which the United States District Court for the Eastern District of New York (Weinstein, J.) bifurcated. The first phase was limited to prosecution of Counts One, Two, and Three; the second, to Count Four. The jury convicted Walker on all counts. At sentencing, the District Court dismissed the violence-in-Hobbs Act robbery count as duplicative of the Hobbs Act robbery count and then rejected the government’s argument that the Armed Career Criminal Act (the “ACCA”),

(e), mandated imposition of a 15-year minimum incarceratory sentence on Walker. The court reasoned that Walker’s predicate convictions did not support the proposed mandatory minimum sentence because, in its view, New York Robbery in the Second Degree was not a “violent felony” within the meaning of the ACCA. The court imposed a sentence of time served for Counts One and Four, and the ten-year mandatory minimum for Count Three that applied to a defendant with Walker’s criminal history.

Walker timely appealed, challenging his convictions on Counts Three and Four, attacking several evidentiary rulings made by the District Court, and contesting the District Court’s denial of his motion for a new trial. The government cross-appealed, arguing that binding Second Circuit precedent compels the conclusion that New York Robbery in the Second Degree is a “violent felony” within the meaning of the ACCA and that the District Court’s sentence was therefore based on an erroneous legal conclusion. On review, we identify no basis to disturb Walker’s convictions on Counts Three or Four. We similarly discern no abuse of discretion in the District Court’s evidentiary rulings or in its denial of Walker’s motion for a new trial. We conclude, however, that the District Court erred in determining that New York Robbery in the Second Degree is not a “violent felony” for purposes of the ACCA. Accordingly, we AFFIRM Walker’s judgment of conviction and REMAND for RESENTENCING.

AFFIRMED AND REMANDED FOR RESENTENCING. ______________

MICHAEL O. HUESTON, ESQ., Brooklyn, N.Y., for Defendant- Appellant–Cross-Appellee.

ANDREY SPEKTOR, Assistant United States Attorney for the Eastern District of New York (Samuel P. Nitze & Lindsay K. Gerdes, Assistant United States Attorney,

2 on the brief), for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee–Cross-Appellant. ______________

CARNEY, Circuit Judge:

In 2016, Defendant-Appellant Shameke Walker was convicted by a jury of

(1) Hobbs Act Robbery, in violation of

(a) (“Count One” or the “Hobbs

Act robbery count”); (2) Committing Physical Violence in Furtherance of a Hobbs Act

Robbery, in violation of

(a) (“Count Two” or the “violence-in-Hobbs Act

robbery count,” which is not challenged on appeal); (3) Possessing, Brandishing, and

Discharging a Firearm During a Crime of Violence, in violation of

(c)

(“Count Three” or the “firearm-in-crime-of-violence count”); and (4) Being a Felon in

Possession of Ammunition, in violation of

(g)(1) (“Count Four” or the

“felon-in-possession count”), all in connection with his 2015 robbery of a convenience

store in Brooklyn, New York. After dismissing the violence-in-Hobbs Act robbery count

as duplicative of the Hobbs Act robbery count, the United States District Court for the

Eastern District of New York (Weinstein, J.) sentenced Walker to ten years of

incarceration—the mandatory minimum sentence associated with the firearm-in-crime-

of-violence count—to run consecutive to a sentence of time served on Counts One and

Four. We now resolve Walker’s appeal and the government’s cross-appeal.

Walker attacks his three remaining convictions on several grounds. He first

argues that the firearm-in-crime-of-violence count should have been dismissed because

(he submits) Hobbs Act robbery is not a “violent crime” within the meaning of

(c). On the same rationale, he maintains that the District Court’s jury instructions

regarding the firearm-in-crime-of-violence count were erroneous, warranting vacatur.

3 Walker also urges that the Supreme Court’s decision in Rehaif v. United States,

(2019), compels reversal of his conviction on the felon-in-possession count because

the District Court lacked jurisdiction over his prosecution, the government adduced

insufficient evidence to prove that count, and the related jury instructions were

erroneous. Walker further contends that the District Court made numerous erroneous

evidentiary rulings, necessitating a new trial. Finally, Walker assails the District Court’s

denial of his motion for a new trial under Federal Rule of Criminal Procedure 33,

charging several different errors that in his view require retrial.

On its cross-appeal, the government points to several recent decisions by our

Court that, in its view, establish that New York Robbery in the Second Degree is a

“violent felony” under the ACCA,

(e). See, e.g., United States v. Moore,

(2d Cir. 2019); United States v. Thrower,

(2d Cir. 2019); United States

v. Pereira-Gomez,

(2d Cir. 2018). These decisions necessitate a remand to the

District Court for resentencing, in the government’s view.

For the reasons that follow, we reject each of Walker’s lines of attack. His

arguments with respect to Count Three, the firearm-in-crime-of-violence count, are

foreclosed by our opinion in United States v. Hill,

(2d Cir. 2018), in which

we held that Hobbs Act robbery qualifies, categorically, as a crime of violence under the

elements clause of

(c). His jurisdictional challenge to his conviction on

Count Four, the felon-in-possession count, is similarly foreclosed by our opinion in

United States v. Balde,

(2d Cir. 2019), and he cannot establish that the

asserted evidentiary and other failures on the part of the government and the District

Court amount to plain error requiring vacatur or reversal. As discussed in detail below,

the District Court acted well within the permissible bounds of its discretion in its

4 various evidentiary rulings and in denying Walker’s motion for a new trial. As to the

government’s cross-appeal, however, we agree that our recent precedents confirm that

New York Robbery in the Second Degree falls within the ACCA’s definition of “violent

felony” and that, accordingly, resentencing is required.

We therefore AFFIRM Walker’s judgment of conviction and REMAND for

RESENTENCING.

BACKGROUND 1

This appeal stems from Walker’s conviction for the June 13, 2015 robbery of a

Brooklyn convenience store. During that robbery, Walker—who was then on

supervised release following his conviction for unlawfully possessing a firearm but,

nevertheless, had come to the scene equipped with a firearm—attempted to shoot the

store’s clerk, Bazel Almontaser. Walker missed. His shot instead struck an uninvolved

security guard standing across the street.

Based on the events of that day, a grand jury returned an indictment charging

Walker with Hobbs Act robbery and a related offense (Counts One and Two), as well as

crimes relating to his unlawful possession and use of a firearm and ammunition

(Counts Three and Four). 2 Walker decided to proceed to trial on these charges.

1Because Walker appeals his conviction by a jury, “our statement of the facts views the evidence in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor.” United States v. Rosemond,

(2d Cir. 2016). Unless otherwise noted, when quoting cases in this Opinion, all alterations, brackets, citations, and internal quotation marks have been omitted.

2With respect to Count Four, the government charged Walker with possession of ammunition as opposed to a firearm because no gun was recovered from the crime scene; only a shell casing was found.

5 I. Pretrial Proceedings

Before Walker’s trial began, the District Court made several rulings that are

relevant to this appeal and that we therefore discuss in some detail.

First, in April 2016, the court denied Walker’s motion to dismiss Count Three

(the firearm-in-crime-of-violence count) for failure to state a claim. It reasoned that the

question whether Hobbs Act robbery, as charged in Count One, was a crime of violence

with the meaning of

(c)—a question that was being litigated when

Walker sought Count Three’s dismissal—was not dispositive of the motion because

committing physical violence in furtherance of a Hobbs Act robbery, as charged in

Count Two, was such a crime.

Second, the District Court denied Walker’s motion to preclude admission of

fingerprint evidence collected from a cigarette carton that, as captured on video by

surveillance cameras, Walker had attempted to steal from the convenience store during

the robbery. In the period leading up to trial, the government produced to Walker,

among other discovery, a report prepared by New York City Police Department

(“NYPD”) Detective Patricia Lezcano discussing those fingerprints (the “Fingerprint

Report”). The Fingerprint Report advised that the carton contained three latent prints,

each of which was matched to Almontaser.

At the time, the parties appear to have understood the Fingerprint Report to

mean that the carton contained no other usable prints. This understanding was

dispelled, however, when—just days before trial was scheduled to begin—the

government met with Lezcano in a witness preparation session and she clarified that

the carton contained a fourth print that was in fact usable; she simply had not identified

its source. The government then directed Lezcano to perform a comparative analysis

6 between the unidentified fourth print and Walker’s prints and, after doing so, Lezcano

determined that the previously unidentified print was Walker’s.

When the government disclosed this new information, Walker responded that

the government had violated its Rule 16 obligation to timely comply with discovery

requests and asked the District Court “to preclude this fingerprint evidence.” App’x

178. Finding the new evidence too “important” to exclude, the court refused to do so,

but signaled that it was willing to provide Walker a lengthy continuance, including to

prepare for a Daubert hearing as to whether the report was “unreliable as a class of

evidence.” App’x 178-79. Walker instead determined to challenge the fingerprint

evidence through the testimony of one Dr. Itiel Dror, an expert in cognitive bias. The

District Court allowed Walker to proceed as he proposed, and additionally,

accommodated his request for a trial date in July, the month following all of this

motions practice.

Third, the court permitted Officer Tanya Parris of the U.S. Probation and Pretrial

Services Office (“Probation”) to make an in-court identification of Walker. Parris had

supervised Walker, in connection with a prior conviction, for a year before the robbery.

Because of her familiarity with Walker—including with his general appearance at the

time of the robbery—the government sought to adduce her testimony that Walker was

the very person captured on the convenience store surveillance video in the middle of

committing the robbery in question. The District Court agreed that such an

identification would be probative, but it also recognized that it would be prejudicial to

Walker should the jury learn that Parris knew him only in her capacity as his probation

officer. It therefore precluded any testimony relating to the precise circumstances under

which Walker and Parris had become acquainted, ordering Parris that she should

7 “inform the jury on direct examination” only “that she ‘works for an agency to which

Mr. Walker has to report.’” App’x 174.

Fourth, the court found unpersuasive Walker’s motion to preclude Almontaser’s

pretrial identification of Walker from a photographic array, in which Walker argued

primarily that the fillers (photographs of non-suspects) did not bear sufficient

resemblance to him. After examining the array itself, the District Court concluded that

the array was “good,” rather than being unduly “suggestive.” App’x 118.

Fifth, and finally, the court precluded the defense’s proposed inquiry into

Almontaser’s two prior domestic violence convictions, reasoning that they did not have

“anything to do . . . with credibility under Rule 403” of the Federal Rules of Evidence.

App’x 191. The District Court did, however, allow Walker to cross-examine Almontaser

about his role in selling K2, an illegal strain of synthetic marijuana, from the

convenience store, consistent with the defense’s theory that what occurred on July 15,

2018, was not a robbery, but rather a drug deal gone wrong.

II. Phase I of the Trial

Trial began on Monday, July 11, 2016. On Walker’s motion, the District Court

had agreed to bifurcate the trial, as described above, separating prosecution of Counts

One through Three (the robbery and related firearm charges) from that of Count Four

(the felon-in-possession count) so that the jury would learn about Walker’s criminal

history only after it had reached a verdict on the robbery-related offenses.

To prove its case with respect to the first three charges, the government relied

primarily on testimony from the following witnesses: (1) NYPD Detective Yuan Newton,

the lead investigator on the robbery case, who testified about his observations of the

crime scene, his conversations with Almontaser regarding the robbery, the video

8 surveillance system used at the store and the footage it captured of many of the events

leading up to the robbery and large portions of the robbery itself, the various steps he

took to identify a suspect (including the process of generating a photo array), and

Walker’s eventual arrest; (2) store clerk Almontaser, who testified about his role as a

clerk at the convenience store, the sale of K2 at the store, and his recollection of the

events that had occurred on the day of the robbery; (3) NYPD Officer Robert Youngs,

who testified about photographing and collecting evidence from the crime scene,

including the shell casings that were the basis of the ammunition charge and the

cigarette carton bearing Walker’s fingerprint; (4) NYPD Detective Gerald Rex and NYPD

Detective Lezcano, both of whom testified about the fingerprint evidence; and finally, (5)

Probation Officer Parris, who identified Walker in the surveillance video as the person

robbing the store.

For his part, Walker mounted his defense primarily through rigorous cross-

examinations intended to demonstrate that he was not the robber (a case of mistaken

identity) and that Almontaser was not credible (because, as counsel argued, he was “a

lying drug dealer”). App’x 918. Indeed, Walker relied heavily on the fact that portions

of the surveillance video were inexplicably missing, implying that the police had

destroyed footage that lent credence to his alternative theory, including video of

Almontaser dealing drugs from the store. To further bolster that theory of the case,

Walker attacked the fingerprint evidence through testimony provided by his witness

Dr. Dror about the manner in which cognitive and other biases can lead fingerprint

examiners to reach inaccurate conclusions.

Following the first phase of the bifurcated trial, which concluded on Friday, July

15, the jury convicted Walker of Counts One, Two, and Three.

9 III. Phase II of the Trial

During the second phase of the trial—which took place beginning the afternoon

of July 15, immediately after the verdicts were rendered on the first three counts—the

government read into the record two stipulations: One established the fact of Walker’s

prior felony conviction and the other that a cartridge casing recovered from the robbery

scene constituted “ammunition” for purposes of the firearm-in-crime-of-violence count.

The jury was charged that afternoon, but did not reach a verdict as to Count Four by the

end of the day on Friday, so the District Court adjourned the jury’s deliberations until

Monday, July 18.

On Monday morning, one of the jurors wrote a note to the court explaining that

she had a nightmare over the weekend about potential retribution for her jury service

and describing how the trial was causing her fear and anxiety. This emotional reaction

was tied to a robbery that happened some time ago, she said. The resulting fear was

significant enough that she sought to be excused from the jury.

The court determined to dismiss the juror. Walker then sought to have the jury’s

verdict from the first phase of the trial set aside in light of the excused juror’s

participation. The District Court denied the motion, noting that the juror had the

nightmare over the weekend, after the jury delivered its verdict on the first three counts.

Later on Monday afternoon, the remaining eleven members of the jury convicted

Walker on Count Four.

IV. Sentencing

When Walker was sentenced almost two years after his conviction, two motions

were pending before the District Court. One was a Rule 33 motion for a new trial

asserting that law enforcement destroyed exculpatory portions of the surveillance

10 video, assailing the District Court’s instruction to the jury that Hobbs Act Robbery is a

crime of violence, and making arguments about the excused fearful juror. The second

was a Rule 29 motion for a judgment of acquittal on Count Two (the violence-in-Hobbs

Act robbery count), arguing that it was duplicative of Count One (the Hobbs Act

robbery count). The District Court denied the first motion but granted the second,

reasoning that Counts One and Two were duplicative because “violence in furtherance

of Hobbs Act Robbery necessarily requires proof of the same elements as Hobbs Act

Robbery.” App’x 1183.

Turning at last to the sentence itself, the court sentenced Walker to time served

on each count except Count Three (the firearm-in-crime-of-violence count), which

carried a ten-year mandatory minimum sentence. In imposing that ten-year sentence,

the District Court determined that the ACCA’s enhanced penalty provision—which sets

a fifteen-year mandatory minimum sentence if, at the time a defendant violates

(g), he has three or more prior convictions for violent felonies, see

(e)(1)—did not apply. Walker’s prior convictions include a 1991 conviction for

Robbery in the Second Degree under New York law; a 1999 conviction for Strong Arm

Robbery under South Carolina law; and a 2011 conviction for Aiding and Abetting

Assault under federal law. The court concluded that New York Robbery in the Second

Degree did not constitute a violent felony under the ACCA, leaving Walker without the

minimum three violent felony convictions that would have triggered the fifteen-year

mandatory minimum sentence. The court explained that it did not “review [Walker’s]

other possible predicate convictions” because it did not think that it needed to do so.

App’x 1191.

Walker and the government timely noticed their appeals.

11 DISCUSSION

On appeal, Walker reiterates the arguments that he made to the District Court

and that we described above. We address each of his challenges in turn before

considering the government’s claim that the District Court twice erred in its sentencing

determination.

I. Conviction on Count Three, the Firearm-in-Crime-of-Violence Count 3

Walker first suggests that the District Court erred by denying his motion to

dismiss Count Three. Walker premised his motion on the theory that Hobbs Act

robbery “categorically fails to constitute a crime of violence” under

(c).

Appellant’s Br. at 32-37; see also Appellant’s Reply Br. at 6-16. He advances this

argument notwithstanding his concession, see Appellant’s Br. at 32-34, that our Circuit

has now ruled that Hobbs Act robbery qualifies, categorically, as a crime of violence

under the elements clause of

(c). See Hill,

(“[W]e agree

with all of the circuits to have addressed the issue, and hold that Hobbs Act robbery has

as an element the use, attempted use, or threatened use of physical force against the

person or property of another.”); see also United States v. Barrett,

(2d

Cir. 2019) (stating that Hobbs Act Robbery “can be identified as a crime of violence

3We review de novo the District Court’s denial of Walker’s motion to dismiss Count Three. United States v. Greenberg,

(2d Cir. 2016). As to Walker’s challenge to the jury instructions given in connection with that count, the parties disagree on the applicable standard of review: The government points out that Walker did not object to the jury instructions below, see Gov’t Br. at 30 n.8, and argues that this Court should therefore review this issue for plain error, see United States v. Vilar,

(2d Cir. 2013). Walker maintains, however, that the Court should review the jury instructions de novo, urging that “the government was on notice regarding the issue because Walker moved to dismiss the 924(c) count.” Appellant’s Br. 38. We need not decide this question, however, because Walker’s claim fails under either standard.

12 under § 924(c)(3)(A) applying the traditional, elements only, categorical approach”).

Because “prior opinions of a panel of this court are binding upon us in the absence of a

change in the law by higher authority or our own in banc proceeding (or its

equivalent),” United States v. Moore,

(2d Cir. 1991), Hill controls this case.

The District Court correctly recognized that Hill was controlling and denied Walker’s

motion to dismiss Count Three on this ground.

Walker’s challenge to the District Court’s jury instructions on Count Three rests

on the same mistaken argument: that Hobbs Act robbery is not a crime of violence

under

(c). Thus, we identify no error in the District Court’s jury

instructions. 4

II. Conviction on Count Four, the Felon-in-Possession Count

Several weeks before the scheduled oral argument on this appeal, we granted

Walker’s motion for leave to file supplemental briefing on the question whether the

Supreme Court’s decision in Rehaif v. United States,

(2019), compels

4In suggesting that the District Court “charged that the jury could find Walker conspired to commit or committed the Hobbs Act robberies,” Appellant’s Br. at 38, Walker misstates the record. Although the District Court read aloud from the indictment the text of the statutory provision charged, which criminalizes conspiracy, the court explicitly instructed the jury that it could convict Walker only if it found the government had proved beyond a reasonable doubt “that Mr. Walker knowingly obtained or took the personal property of another, the owner of the store, and that includes money and other tangible and intangible things of value capable of being possessed and transferred from one person to another which would include cigarettes or things of that nature.” App’x 1042.

13 reversal of his conviction on Count Four. We directed both parties to make submissions

addressing the issue. 5 See Dkt No. 120.

In his supplemental submission, Walker urges that Rehaif has several important

effects. In his view, it means (1) that the District Court lacked jurisdiction over his

prosecution on Count Four because the indictment does not allege that he knew he

belonged to the relevant category of persons barred from possessing ammunition (i.e.,

that he knew he had been convicted of a “crime punishable by imprisonment for a term

exceeding one year,”

(g)(1)). Therefore, he contends, the indictment does

not allege all the statutory elements of a § 922(g) offense. Further, he says, Rehaif means

(2) that his conviction violated his due process rights because the government did not

prove that he knew he was a felon. Finally, he urges that Rehaif requires us to find (3)

that the District Court erred by failing to instruct the jury that it was required to find

that Walker had knowledge of his status.

The parties agree that plain error review applies. On plain error review, we

consider whether “(1) there is an error; (2) the error is clear or obvious, rather than

subject to reasonable dispute; (3) the error affected the appellant’s substantial rights;

and (4) the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Miller,

(2d Cir. 2020).

Walker’s jurisdictional argument is foreclosed by our decision in United States v.

Balde,

(2d Cir. 2019), in which we held that an “indictment’s failure to

allege that [a defendant] knew that he was [in a prohibited category, e.g., a felon] . . .

5The Supreme Court issued its decision in Rehaif on June 21, 2019—nearly three months before Walker filed his reply brief on September 19, 2019. We nevertheless granted his motion, filed on November 18, 2019, to submit additional briefing discussing Rehaif.

14 was not a jurisdictional defect.” With respect to his two remaining arguments, we have

little difficulty in concluding that he cannot satisfy the final prong of the plain error

standard—requiring him to show that the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings—because evidence available to the

government for use at trial indicates persuasively that Walker was well aware of his

status as a felon. That evidence includes Walker’s conviction of at least five prior

felonies, including, most notably, an earlier conviction for being a felon in possession of

a firearm, and his prior sentences, four of which resulted in terms of imprisonment

exceeding one year. 6 Under circumstances such as these, “we do not think that rejecting

[Walker’s] argument will seriously affect the fairness, integrity, or public reputation of

judicial proceedings. To the contrary, we think accepting it would have that effect.”

Miller,

.

We therefore conclude that the District Court had jurisdiction over Count Four,

that Walker’s conviction on this count did not violate his due process rights, and that

the erroneous related jury instructions did not amount to plain error requiring reversal.

See generally

.

6As we have explained, “[m]ost defendants charged with violations of § 922(g)(1) avail themselves of” the Supreme Court’s decision in Old Chief v. United States,

(1997), “in order to keep the nature and details of their prior felony convictions from the jury.” Miller,

n.23. They stipulate to their qualifying status, as Walker did in his case, the result being that “the trial record . . . contain[s] limited evidence regarding the defendant’s knowledge of his felon status.”

at 559 & n.23. Accordingly, “in the limited context of our fourth-prong [of the plain error test] analysis, we will consider reliable evidence in the record on appeal that was not part of the trial record,” including presentence investigation reports.

.

15 III. Evidentiary Rulings

Walker argues that the District Court abused its discretion by: (1) permitting the

government to introduce certain fingerprint evidence; (2) allowing Probation Officer

Parris to identify, in court, Walker as appearing on video surveillance footage of the

robbery; (3) admitting into evidence the robbery victim’s testimony to his out-of-court

identification of Walker; and (4) precluding Walker from cross-examining Almontaser

about Almontaser’s prior domestic violence convictions. On this basis, Walker urges

that his convictions must be vacated.

We review a district court’s evidentiary rulings for abuse of discretion. United

States v. Boles,

(2d Cir. 2019). A district court abuses its discretion when

it acts “arbitrarily or irrationally,” United States v. Nektalov,

(2d Cir.

2006), or premises its decision on an error of law, United States v. Figueroa,

(2d Cir. 2008). Further, “even when an evidentiary ruling is manifestly erroneous,

the defendant will not receive a new trial if admission of the evidence was harmless.”

United States v. Siddiqui,

(2d Cir. 2012).

A. Fingerprint Evidence

Walker contests the admission of certain fingerprint evidence because, he argues,

the government was negligent in fulfilling its discovery obligations and that negligence

led to an inexcusably late disclosure to him of the fingerprint evidence. The reader will

recall that the evidence concerned the presence of a fourth fingerprint on a carton of

cigarettes and Detective Lezcano’s identification of the print as belonging to Walker.

As a general rule, “[a] district court’s decision not to exclude evidence that was

the subject of a Rule 16(a) [of the Federal Rules of Criminal Procedure] violation is not

16 grounds for reversal unless the violation caused the defendant substantial prejudice.” 7

United States v. Lee,

(2d Cir. 2016). To prove substantial prejudice, “the

defendant must demonstrate that the untimely disclosure of the [evidence] adversely

affected some aspect of his trial strategy.”

Walker maintains that his trial counsel had

“assembled a defense for trial that was predicated on a misidentification theory,” and

that “[t]he sudden introduction of new fingerprint evidence significantly[,] and,

unfairly, undermined” that strategy. Appellant’s Br. at 41. We are not persuaded.

That the admitted fingerprint evidence damaged Walker’s defense does not

mean its admission resulted in substantial unfair prejudice to him under Lee; he must

also show that its admission affected his trial strategy. United States v. Miller,

(2d Cir. 1997). This he cannot do. The record establishes that Walker “was not

prevented from pursuing his strategy of claiming” misidentification, id.; to the contrary,

misidentification was the defense he presented to the jury, see App’x 279-85 (arguing

that, while Walker “was at home, somebody else was going into that store”); see also

App’x 923-58. Moreover, the government’s case against Walker was strong even

without the fingerprint: The robbery was captured on video, and multiple witnesses

identified Walker as the robber. Cf. Lee,

(explaining that late

admission of defendant’s post-arrest statement did not “substantially prejudice the

defense so as to require reversal” where the government generally put on a strong case

and so the conviction did not hinge on the challenged post-arrest statement).

7Although Walker’s claim is premised on the notion that the government violated Federal Rule of Criminal Procedure 16, regarding required government disclosures, the District Court did not establish a discovery schedule in this case that the government could have violated.

17 Further, when the government violates Rule 16, the “district court has broad

discretion in fashioning a remedy,”

, including by granting the defense a

continuance, see Fed. R. Crim. P. 16(d)(2)(B). That was the course adopted by the District

Court here: After discovery of the fingerprint evidence, it offered Walker a lengthy

continuance as well as a Daubert hearing to allow the defense to seek exclusion of the

fingerprint evidence on reliability grounds. Walker declined both invitations. He insists

that a continuance was an insufficient remedy because it would have interfered with his

liberty interest and right to speedy trial. But when previously given the opportunity to

proceed quickly to trial, Walker declined, and he willingly waived his right to speedy

trial and requested adjournments many times during the trial preparation process.

These decisions seriously undermine his claim that a continuance was inadequate to

address any harm.

Finally, we note that the District Court went to great lengths to mitigate any

prejudice to Walker arising from the late disclosure and admission of the fingerprint

evidence: It precluded the government from calling the fingerprint expert whom

Walker had hired to conduct a separate analysis of the fingerprint and who had reached

the same conclusion as the government’s expert (i.e., that the fourth fingerprint was a

match for Walker’s), and it allowed Walker to attack the reliability of the fingerprint

evidence through the testimony of a separate, additional expert. In sum, Walker was

not substantially prejudiced by the fingerprint evidence and the court did not abuse its

discretion in admitting it.

B. In-Court Identification

Next, Walker contends that his probation officer should not have been permitted

to testify that Walker was the man whose image appeared in surveillance video footage

18 of the robbery, both because that testimony was cumulative of other identification

testimony and because the jury was capable of making the identification itself. Neither

argument is convincing.

Rule 701 of the Federal Rules of Evidence permits lay opinion testimony that is:

“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding

the witness’s testimony or to determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.” See also United

States v. Yannotti,

(2d Cir. 2008) (explaining that “[a] rational

perception is one involving first-hand knowledge or observation”). Where the jury is

“in as good a position as the witness to draw the inference” to which the opinion

relates, the opinion is not helpful and should not be admitted. United States v. Rea,

(2d Cir. 1992). On the other hand, where an opinion is the result of

factors not otherwise possessed by or communicated to the jury, lay opinion testimony

is likely to be helpful. See

According to Walker, “[t]he robber did not disguise his appearance and was

clearly visible on the surveillance video,” which “showed clear and complete views of

the offender’s full face, head, hands and gait.” Appellant’s Br. at 44-45. Walker further

represents that, at the time of the trial, his own “appearance had not substantially

changed since the robbery.” Appellant’s Br. at 45. His assertions are belied, however, by

the trial testimony, and were accordingly rejected by the District Court: the court found

that the robber wore a black hooded sweatshirt, with the hood up much of the time, see

App’x 333-60; the robber was not wearing glasses in the video, whereas Walker wore

glasses throughout trial, see App’x 313; as Walker’s own trial counsel also observed, the

man who committed the robbery was “at least fifty pounds heavier than Mr. Walker,”

19 App’x 279; and “the video is not as crystal clear as [Walker] suggest[s],” including

because “[e]verybody is hurried and harried,” App’x 167. Walker’s probation officer, on

the other hand, who provided testimony on the identification, had spent many hours

with Walker leading up to the time of the robbery and had the opportunity to observe

physical traits such as his gait, which were on display in the surveillance video but not

at trial. Given these circumstances, the District Court did not abuse its discretion in

admitting the testimony on the ground that the probation officer’s opinion was likely to

be helpful to the jury.

Walker also maintains that his probation officer’s testimony “carried a high risk

of unfair prejudice that substantially outweighed its limited probative value,” and so

should have been excluded under Rule 403 of the Federal Rules of Evidence.

Appellant’s Br. at 46-47. We have not had occasion to consider this somewhat thorny

question in a published opinion, but, as other circuits have recognized:

Identification testimony from law enforcement or corrections personnel may increase the possibility of prejudice to the defendant either by highlighting the defendant’s prior contact with the criminal justice system, if the witness’s occupation is revealed to the jury, or by effectively constraining defense counsel’s ability to undermine the basis for the witness’s identification on cross-examination, if the witness’s occupation is to remain concealed.

United States v. Pierce,

(11th Cir. 1998); accord United States v. Pace,

(5th Cir. 1993). Critically, however, courts have not found that

admission of such testimony was an abuse of discretion where the district court

“directed the government not to delve into the circumstances of the parole officers’

relationships with the defendant,” leaving to the defendant the decision whether to

reveal his criminal history as the basis for the relationship. United States v. Farnsworth,

20

(8th Cir. 1984); accord United States v. Contreras,

, 1171-

72 (10th Cir. 2008); United States v. Beck,

(9th Cir. 2005); United

States v. Garrison,

(4th Cir. 1988).

We think our sister Circuits that we have cited saw the risk of such testimony,

but we also think it within a district court’s discretion to manage that risk. Thus, we

place great weight on the District Court’s instruction to counsel here that Walker’s

probation officer not be identified as a probation officer (i.e., her profession was not to

be mentioned), and the fact that the government complied with this instruction. Nor did

the government elicit any testimony about Walker’s criminal history in connection with

the probation officer’s testimony. Walker was free to cross-examine his probation officer

about the nature of their relationship (to attempt to show, for example, that she was

biased against him, or for any other reason), but chose not to do so. Cf. Farnsworth,

(“The defendant himself chose to avoid an extensive cross-examination as a

matter of strategy.”).

Because of the practical constraints on a defendant’s cross-examination in these

circumstances, courts must carefully consider whether to allow lay opinion

identification by probation officers. See generally United States v. Calhoun,

(6th Cir. 1976) (“The knowledge that [a defendant] was on parole at the time of the

alleged offense could also arouse an emotional reaction among the jurors, especially

those who harbor strong feelings about recidivism and the premature release of those in

prison for crimes.”). But where, as here, the probation officer’s identification testimony

was highly probative, and the record does not appear to contain other adequate

identification testimony, a district court does not abuse its discretion in allowing the

probation officer to testify and imposing related limitations to mitigate associated risks.

21 C. Out-of-Court Identification

Walker contends that the admission of Almontaser’s out-of-court identification

of Walker in a photographic array was unduly prejudicial because: even non-suggestive

photo arrays such as those at issue here have “long been known to be hazardous”; the

identification occurred one month after the robbery, which is “a considerable amount of

time”; and the NYPD displayed “Crime Stoppers” posters with a photograph of Walker

that had been taken independently of the robbery, a circumstance that could have

tainted Almontaser’s recollection if he saw the posters. Appellant’s Br. at 48-49. We do

not find his arguments persuasive.

We have long allowed admission of photo-array identifications. See United States

v. Anglin,

(2d Cir. 1999) (“An unbroken line of our decisions . . .

permits use of a non-suggestive photo array for identification purposes and trial

testimony based upon that identification.”). Like other courts, ours has criticized the

single-photograph procedure, see Mysholowsky v. New York,

(2d Cir.

1976); see also Simmons v. United States,

(1968), but here, the victim

was shown an array of six similar-looking people and was told that the perpetrator of

the robbery might not be included in the array, see App’x 361-63, 448-49.

Further, we have never suggested that the passage of a month’s time between a

crime and a subsequent photo identification is too lengthy to permit its use at trial. We

see no reason to suggest such a rule here, where the record provides no basis to

conclude the victim’s memory had faded: To the contrary, Almontaser testified that he

had seen, and interacted with, Walker several times before the robbery; he described the

robber to the police, including noting that the robber had gold teeth; and, in the photo

array identification, he selected an individual whose characteristics matched the

22 description he gave to the officer (a male whose teeth included some that were gold).

See App’x 408, 445, 497. This proved to be Walker.

The same rationale applies to Walker’s complaint about possible taint arising

from the Crime Stoppers fliers: Almontaser described the robber to law enforcement on

the day of the robbery; he then identified Walker consistent with that initial description.

Walker had the opportunity to cross-examine Almontaser to highlight the weaknesses

he now asserts, but he chose not to do so. Cf. Simmons,

(explaining that

cross-examination is a tool that may be used to determine whether identification is

reliable). In any event, any error in admitting this testimony does not provide grounds

for a new trial in light of the video evidence and in-court identification of Walker as the

robber. See United States v. Cadet,

(2d Cir. 2011) (explaining that

“erroneous evidentiary rulings entitle a defendant to a new trial, unless the error was

harmless”).

D. Domestic Violence Convictions

Finally, Walker asserts that the District Court erred by precluding him from

cross-examining Almontaser about Almontaser’s two prior convictions for domestic

violence—one for felony attempted assault and one for misdemeanor attempted assault.

See Fed. R. Evid. 609(a) (prior felony convictions “must be admitted, subject to Rule 403,

. . . in a criminal case in which the witness is not a defendant” and prior misdemeanor

convictions “must be admitted if the court can readily determine that . . . the crime

required . . . a dishonest act or false statement”).

District courts have broad discretion to impose reasonable limits on

cross-examination based on, inter alia, unfair prejudice or marginal relevance. See Fed.

R. Evid. 403; Figueroa,

. Explaining its decision to preclude this evidence,

23 the District Court commented that “[i]t is dubious whether the convictions are relevant

as assault does not shed light on veracity.” App’x 224. The court further concluded that

mention of the convictions would be unduly prejudicial because “[d]omestic violence is

a disturbing issue.” App’x 224-25. This rationale is consistent with our precedent

establishing that violent crimes, however abhorrent, often are not crimes of dishonesty,

and may not meaningfully reflect on a witness’s truthfulness. See United States v.

Estrada,

(2d Cir. 2005) (discussing “rule of thumb” that “convictions

which rest on dishonest conduct relate to credibility whereas those of violent or

assaultive crimes generally do not”).

Walker does not present any arguments that the domestic violence convictions

were relevant to Almontaser’s truthfulness or that their admission would not be unduly

prejudicial. Instead, he observes that the Federal Rules of Evidence distinguish between

prior convictions of defendants and those of witnesses. True enough. The District Court,

too, recognized that distinction and then appropriately performed a Rule 403 balancing

test. On the facts presented here, we find no merit in Walker’s claim that the District

Court abused its discretion in limiting cross-examination as it did. And in any event,

any potential error was harmless considering the District Court allowed Walker to

impeach Almontaser by asserting that he was a drug-dealer, in support of Walker’s

alternative narrative that the encounter between Walker and Almontaser was not a

robbery but a drug deal gone bad. See United States v. Flaharty,

(2d Cir.

2002).

24 IV. Rule 33 Motion

With respect to his motion for a new trial, Walker reasserts on appeal the

arguments he made in the District Court. 8 We find those arguments no more persuasive

than did that court.

Rule 33(a) of the Federal Rules of Criminal Procedure provides that, on “the

defendant’s motion, the court may vacate any judgment and grant a new trial if the

interest of justice so requires.” In determining whether to grant a Rule 33 motion, “[t]he

ultimate test is whether letting a guilty verdict stand would be a manifest injustice.”

United States v. Canova,

(2d Cir. 2005). A court must have “a real

concern that an innocent person may have been convicted” in light of the evidence

presented and the credibility of the witnesses.

District courts have notably broad

leeway in ruling on such motions and we review a district court’s denial of a motion

under Rule 33 for abuse of discretion. United States v. Vinas,

(2d Cir.

2018).

A. Spoliation

The thrust of Walker’s spoliation argument derives from the serious accusation

that either Almontaser or the police “destroyed parts of the [surveillance] video” that

“could have provided a key to understanding what actually transpired between

[Almontaser] and his assailant, including the nature of their relationship, and if this was

8Walker again argues that the indictment did not charge any “crimes of violence” and therefore Count Three (the firearm-in-crime-of-violence count) should have been dismissed and his conviction on that count overturned for failure to state a claim. This attack does no more than repackage his arguments that Hobbs Act Robbery is not a crime of violence. As discussed, those arguments have no merit.

25 a robbery at all.” Appellant’s Br. at 53-54. Walker specifically references “28 seconds

from an outside surveillance video that begins to show what transpired immediately

between the perpetrator and [the victim] after the ‘robbery,’” but that was unavailable

for unknown reasons. Appellant’s Reply Br. at 21.

This Court has defined spoliation to be “the destruction or significant alteration

of evidence, or failure to preserve property for another’s use as evidence in pending or

reasonably foreseeable litigation.” United States v. Odeh (In re Terrorist Bombings of U.S.

Embassies in E. Africa),

(2d Cir. 2008). Even when the government is

under an obligation to preserve relevant recordings, which it may well have been here,

where a defendant “has pointed to no evidence that the tapes were intentionally

destroyed,” their destruction “could not have amounted to spoliation.”

Similarly, in

the context of a motion to dismiss an indictment for spoliation, we have held that a

criminal defendant must show: (1) “that the evidence possessed exculpatory value that

was apparent before it was destroyed”; (2) that the evidence “was of such a nature that

the defendant would be unable to obtain comparable evidence by other reasonably

available means”; and (3) “bad faith on the part of the [g]overnment.” Greenberg,

. The “[f]ailure to satisfy any of these requirements, including a failure to

show the Government’s bad faith, is fatal to a defendant’s spoliation motion.”

Walker does not assert that he knows what the missing video footage contained,

let alone that the missing footage was exculpatory other than insofar as it portrayed a

further brief interaction between the robber and the victim. Indeed, the footage Walker

references pertains to the moments after the robbery was completed, and Walker does

not explain what kind of events recorded then could possibly exculpate him. Nor does

the record support a finding or even a suspicion that the missing footage was

26 unavailable as a result of any bad faith, or an unintentional or even negligent act of

destruction on the part of the government. Accordingly, we have no basis for

concluding that the District Court abused its discretion in denying Walker’s motion for

a new trial based on his speculations about spoliation.

B. Impaired Juror

Walker also contends that the District Court abused its discretion when—rather

than declaring a mistrial—it decided to dismiss a juror who advised the court that she

had a nightmare after the close of the first phase of the trial, before the first set of

verdicts was reached. He asserts that the episode reflects bias on the part of the excused

juror, and therefore indelible taint in the proceedings leading up to her dismissal.

Rule 23(b)(3) of the Federal Rules of Criminal Procedure authorizes the court to

“permit a jury of 11 persons to return a verdict, even without a stipulation by the

parties, if the court finds good cause to excuse a juror.” We review for abuse of

discretion a district court’s handling of juror dismissal, just as we do its denial of a Rule

33 motion. United States v. Farhane,

(2d Cir. 2011).

The District Court acted well within its discretion in denying Walker’s motion

for a new trial on the basis of the excused juror’s hypothetical bias. The court reasonably

considered the possibility of bias and found none, concluding that Walker was not, and

had not been, harmed by the excused juror’s participation to that point. The juror stated

under oath that she had been reminded of a long-ago robbery only after deliberations

for the first phase of the trial had concluded and the verdict was announced; she had

reported her concerns at the earliest possible opportunity; and she averred that she had

not mentioned her dream to any of the other jurors. As the Supreme Court has

explained, “the Constitution does not require a new trial every time a juror has been

27 placed in a potentially compromising situation.” Rushen v. Spain,

(1983). We see no basis to conclude that the District Court abused its discretion in its

handling of this juror.

V. Sentence

We turn finally to the government’s cross-appeal of the District Court’s

determination that the ACCA’s enhanced penalty provision does not apply to Walker.

This Court “review[s] de novo all questions of law relating to the district court’s

application of a federal sentence enhancement.” United States v. Beardsley,

(2d Cir. 2012).

Since Walker’s sentencing, we have ruled—and Walker now concedes, as he

must—that New York Robbery in any degree is a violent felony, both for purposes of

(e)(2)(B)(i) and under an identical clause in the U.S. Sentencing Guidelines,

U.S.S.G. § 2L1.2. United States v. Thrower,

(2d Cir. 2019) (

(e)(2)(B)(i)); United States v. Pereira-Gomez,

(2d Cir. 2018)

(Guidelines). We therefore remand to the District Court so that it may decide whether

Walker’s two other convictions qualify as violent felonies under the ACCA and for

resentencing.

CONCLUSION

Accordingly, the judgment of conviction entered by the District Court hereby is

AFFIRMED and the cause is REMANDED for further proceedings consistent with this

Opinion.

28