21‐1389 United States v. Chambers

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 12th day of October, two thousand and twenty‐two.

PRESENT: Pierre N. Leval, Barrington D. Parker, Steven J. Menashi, Circuit Judges. ____________________________________________

UNITED STATES OF AMERICA, Appellee, v. No. 21‐1389

ERIC CHAMBERS, Defendant‐Appellant.* ____________________________________________

* The Clerk of Court is directed to amend the caption as set forth above. For Appellee: JOCELYN COURTNEY KAOUTZANIS, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief), for Leonard C. Boyle, United States Attorney for the District of Connecticut, New Haven, CT.

For Defendant‐Appellant: DAVID A. RING, Wiggin and Dana LLP, New Haven, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Dooley, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Defendant‐Appellant Eric Chambers appeals the denial of his motions for a

new trial and judgment notwithstanding the verdict after he was convicted of four

separate counts of aiding and abetting Hobbs Act robbery in violation of

, 1951(a). The indictment included six counts, each alleging a different robbery.

The jury found Chambers guilty of four of the charged robberies and not guilty of

the other two. Chambers challenges his convictions on two grounds. First, he

argues that the district court erred when it did not instruct the jury that it could

not infer a pattern from the similarities in the evidence across the different counts 2 in his indictment. Second, he argues that the district court erred when it dismissed

a juror who was revealed to have had a professional relationship with the

government without asking the rest of the jury whether that juror had made any

potentially prejudicial statements.

These arguments are not persuasive. First, the district court did not abuse

its discretion by instructing the jury that it could not infer a criminal propensity

from similarities across the counts, even if the jury could consider evidence across

the counts for other purposes. Second, the district court did not abuse its broad

discretion over management of the jury by conducting a limited inquiry into

whether a dismissed juror had made potentially prejudicial statements to the jury.

We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

I

The government alleged in its second superseding indictment that

Chambers and his younger brother Jachim Brown were involved in a string of

robberies throughout the Bridgeport, Connecticut, area. On each occasion, Brown

would enter a bar or club, brandish a firearm, and demand at gunpoint that

3 employees surrender money hidden in a safe. Chambers would assist the

robberies by helping select the location, driving to the target, and aiding Brown in

escaping after obtaining the money. The targeted locations included places at

which Chambers had previously worked or with which he was familiar because

of his work at affiliated clubs and restaurants. On two occasions, Brown

discharged his firearm, wounding at least one victim.

Over the course of two weeks, the jury received evidence of Chambers’s

participation in each of the robberies, including witness testimony, surveillance

videos, and cell‐site location data. The evidence showed that throughout 2017,

Chambers drove Brown to commit robberies at (1) Nikita’s Bar on September 27,

(2) Avenue Café on November 9, (3) BAR Restaurant on November 14, and

(4) EbLens on November 16. The jury heard testimony that at each robbery,

surveillance video captured Chambers’s “champagne‐colored Nissan Maxima

with a unique elongated sunroof” driving Brown to and from the targeted

locations. United States v. Chambers, No. 3:18‐CR‐00079,

, at *2 n.5

(D. Conn. Feb. 13, 2020).

4 The jury also received evidence of Chambers’s role in planning each of the

robberies. For example, witness and surveillance evidence established that Brown

entered BAR Restaurant on November 14, armed and holding a cellphone to his

ear.

. Witnesses testified that Brown held the phone to his ear as he walked

past the cash register, instead picking up a basket under the cash register that

would normally hold the payroll for employees.

The jury heard evidence that

phone records seized by investigators later confirmed that Brown had been on the

phone with Chambers during the robbery.

The jury saw evidence that

Chambers had visited the bar the Saturday before the robbery and appeared to be

scoping it out for the later robbery.

.

Chambers was eventually convicted of four counts of aiding and abetting

Hobbs Act robbery and acquitted of two. While deliberating, however, the jury

asked the following question of the district court:

Do we look at each offense as separate events or, through common sense, can we use info from one—from other offenses and apply to each offense? As an example, if his car appears at more than one event, can we use that info during our deliberations? We ask because there is a repetitive pattern, yet we want to judge each count separately. Thank you. J. App’x 1591–92.

5 In response to the jury note, Chambers requested that the jury be instructed

that it must consider each count separately and that it should not use “pattern

evidence.” The judge denied Chambers’s request and instead gave the jury the

following supplemental instruction:

We have received your note. I’m going to answer by giving you some instruction you’ve already received and some supplemental instruction that I hope will answer your question. Mr. Chambers has been charged with six offenses. The number of charges is not evidence of guilt and should not influence your decision in any way. You must consider each count separately and return a separate verdict of not guilty or guilty for each count. Whether you find Mr. Chambers not guilty or guilty of one count should not dictate your verdict regarding any other count; however, there may be evidence that you find, within the parameters of my instruction, that goes to one or more of the robberies. Such evidence may be considered by you with respect to these robberies; however, you must not find Mr. Chambers guilty of one count simply because you may have found him guilty of another count. With respect to your inquiry regarding a perceived pattern, you must not base your verdict on any perception that you may have that Mr. Chambers is of bad character or has a propensity to commit crimes.

at 1608–09.

Chambers argues that the district court erred in issuing this instruction

rather than the one he requested and that the error requires vacating his

convictions. We disagree. We vacate the judgment of a district court only if,

6 “considering the instruction as a whole, the cited errors were not harmless.”

Crigger v. Fahnestock & Co.,

(2d Cir. 2006). Chambers cannot

demonstrate that he was prejudiced by any purported error in the jury

instructions. Even if the jury had been instructed as he preferred, the evidence

against him was significant and would have supported his conviction. We do not

think “there is a reasonable likelihood that the jury understood the instructions to

allow conviction based on proof insufficient to meet the … standard … that the

government must prove beyond a reasonable doubt every element of a charged

offense.” United States v. Birbal,

(2d Cir. 1995).

Indeed, we do not think the district court’s instructions were erroneous at

all. When the government charges multiple instances of criminal behavior, Rule

404(b)’s prohibition on the admission of propensity evidence does not preclude

the receipt of evidence that directly shows the commission of the multiple charged

crimes. While the jury could not rely on Chambers’s conduct from one incident to

make inferences about his character, it could rely on evidence that was common

to proving the multiple charged robberies to make conclusions about Chambers’s

participation in each one. Some evidence concerning Chambers’s participation in

7 one robbery was “inextricably intertwined with the evidence” concerning his

participation in the others. United States v. Towne,

(2d Cir. 1989).

The jury could consider these similarities to “complete the story” of Chambers’

participation in each crime.

The district court properly sought to mitigate any prejudice arising from the

similarities between robberies by correctly instructing the jury not to infer that

Chambers was more likely to assist a robbery merely because he was “of bad

character or has a propensity to commit crimes.” J. App’x 1609. The district court

also instructed the jury that it must consider each count of the indictment

separately. Moreover, while Chambers could have moved to sever the counts in

the indictment before trial, he did not do so.

Chambers’s requested instruction—that the court forbid the jury from using

pattern evidence—did not correctly state the law. The jury was entitled under Rule

404(b) to consider Chambers’s behavior as evidence of “intent, preparation, plan,

[or] knowledge.” There is no law that forbids the use of patterns of behavior to

support findings on those issues.

8 Chambers further argues that the government did not comply with the

requirement of Rule 404(b) that, in certain circumstances, the government must

give pretrial notice of its intent to offer “evidence of other crimes” to prove

“motive, opportunity, [or] intent” to commit a charged crime. Chambers argues

that the district court’s supplemental instruction “opened the door” to the jury

considering whether pattern evidence could prove motive and intent. He contends

that the government was obligated to give notice of its intent to use evidence for

that purpose, but it did not do so.

We are not persuaded. While the rule in certain circumstances conditions

the admissibility of evidence of “other crimes” to prove “motive, opportunity, [or]

intent,” on the “prosecution[’s] … provid[ing] reasonable notice in advance of

trial,” that notice requirement is not implicated here. Here, the issue was not the

admissibility of otherwise inadmissible evidence. The evidence was properly

admitted as direct evidence of Chambers’s commission of the several charged

offenses. Its admission into evidence did not depend on Rule 404(b).

9 II

Chambers additionally objects to the district court’s denial of his motion for

a new trial. He argues that the district court erred in dismissing a juror with a

previously undisclosed conflict without also questioning the entire jury about its

possible interactions with that juror. We do not agree. After it was revealed that

the juror had a possible bias because of previous work with the government, the

district court asked that juror whether he had spoken to the other jurors about the

case. The juror informed the district court that he had not spoken about the case

“with anybody in the jury room or outside the jury room.” J. App’x 563. After

consulting with counsel for Chambers and the government, the district court

concluded that simply dismissing the conflicted juror was sufficient to avoid any

possible bias.

The handling of allegations of juror misconduct and bias is entrusted to the

sound discretion of the trial court. United States v. Thai,

(2d Cir.

1994); United States v. Farhane,

(2d Cir. 2011). Here, the district

court acted reasonably to ensure the fairness of the trial. It questioned the

conflicted juror and was assured that the rest of the jury was not affected. The

10 district court did not abuse its discretion when it determined that the additional

measures Chambers suggested were unnecessary.

* * *

We have considered Chambers’ remaining arguments, which we conclude

are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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