20-3630 United States v. Jefferys

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 17th day of October, two thousand twenty-two.

PRESENT: JON O. NEWMAN JOHN M. WALKER, JR., EUNICE C. LEE, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 20-3630

DEVONE JEFFERYS, AKA MONEYBAGS,

Defendant-Appellant. _____________________________________

For Defendant-Appellant: JILLIAN S. HARRINGTON, Law Office of Jillian S. Harrington, Monroe Township, New Jersey.

For Appellee: SARITHA KOMATIREDDY, (Ryan C. Harris, on the brief) for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, New York.

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

York (Matsumoto, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part and VACATED and

REMANDED in part.

On July 17, 2018, Defendant-Appellant Devone Jefferys was charged with conspiracy to

commit Hobbs Act robbery in violation of

(a) (“Count 1”), attempt to commit

Hobbs Act robbery in violation of

(a) and 2 (“Count 2”), and possessing and

brandishing a firearm during a crime of violence, predicated on Count 2, in violation of

(c)(1)(A)(i) and 924(c)(l)(A)(ii) and 2 (“Count 3”). The charges stemmed from an

attempted robbery of a Brooklyn apartment for narcotics and money.

The Government’s theory at trial was that on July 30, 2015, Jefferys and four other

individuals, including Ronell Peterkin, made plans to rob an apartment in Brooklyn where Josie

Taveras, a heroin dealer, lived with his mother, Haydee Cordero, and his sister, Sheila Tavera.

Josie’s pregnant girlfriend, Jaime Arriaga, and one of Josie’s friends were also at the apartment.

That night, Jefferys and the others gained access to the apartment building by following a woman

through the front door; they then knocked on the apartment door, announced that they were police,

and displayed a police badge. Someone inside the apartment proceeded to open the door, and

Jefferys and Peterkin rushed in.

Upon entering the apartment, Jefferys began duct taping Josie and his friend. While

holding a gun, Peterkin ordered the three women, Sheila, Arriaga, and Cordero, to lie on the floor.

Peterkin started searching the rooms in the apartment, and Jefferys asked Josie where the drugs

were, pointing a gun at Arriaga’s stomach. Sheila and Josie begged that no one be harmed and

told Peterkin and Jefferys that the drugs had been thrown out of the window. Sheila then offered

2 to take them to the location of the drugs. Jefferys and Sheila proceeded to the basement next to

the apartment to search for the drugs; however, the drugs could not be accessed because they had

landed behind a locked gate. When Sheila failed to retrieve the drugs, Jefferys forced her, at gun

point, to perform oral sex on him and then raped her. After hearing a whistle, Jefferys returned

to the apartment building and eventually left. When Peterkin left the apartment, Cordero called

911.

At trial, the Government offered: the testimony of multiple witnesses including Sheila,

Cordero, Arriaga, and Peterkin; surveillance footage that showed Jefferys at the apartment

building, as well as photographs from the apartment and back alley; physical evidence recovered

at the scene; Cordero’s 911 call; testimony from Jefferys’s ex-girlfriend, Keyanna Williams, who

testified that Jefferys had indicated he was wanted by law enforcement for a robbery and that

Peterkin was involved; and evidence of Jefferys’s evasion of law enforcement, as well as

incriminating conversations between Jefferys and third parties, including Williams, recorded while

Jefferys was detained at the Metropolitan Detention Center.

Jefferys was convicted on all counts; however, the jury did not find that Jefferys brandished

a firearm, only that he possessed one, in connection with Count 2. Jefferys was sentenced to 164

months’ imprisonment on Counts 1 and 2 and 60 months’ imprisonment on Count 3, to be served

consecutively to the sentences on Counts 1 and 2, to run concurrently, followed by five years of

supervised release. Jefferys timely appealed. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

On appeal, Jefferys raises four arguments. First, Jefferys argues that the district court

erred in permitting testimony regarding the sexual assault that allegedly occurred during the

3 robbery. Before trial, the district court denied the Government’s motion in limine to admit

evidence that Jefferys raped Sheila after they went to the basement to locate the drugs, finding that

although the evidence of the assault constituted direct evidence of the charged offenses because

the assault occurred during the robbery and against a victim of the robbery, the probative value of

the evidence was substantially outweighed by a danger of unfair prejudice.

At trial, however, on cross-examination of Cordero, defense counsel elicited testimony that

during the robbery, Josie told Peterkin not to harm anyone. Defense counsel then followed up:

“And in fact, nobody was harmed?” to which Cordero responded, “No.” Government App’x

164:13-14. The Government objected and during a sidebar explained that the question was

misleading because based on the district court’s previous ruling prohibiting mention of the assault,

Cordero could not state that anyone was hurt; therefore, the jury was left with the false impression

that no one was harmed during the robbery. The district court found that defense counsel had

opened the door to evidence of the assault, and to correct the misimpression created by defense

counsel, allowed Cordero to testify that she was aware that her daughter was assaulted. Cordero

did not testify that the assault was a sexual assault.

The district court also permitted Sheila to testify that she was physically assaulted.

During direct examination, Sheila described that when she went to show Jefferys where the drugs

were, he accused her of playing games with him, held a gun to her head, and told her to get on her

knees. The following colloquy ensued:

Q: And did he then physically assault you? A: Yes. Q: And then what happened? A: So then after like a minute, he goes and pushed me towards the tunnel area. . . .

4 Q: And what happened next? A: So he had the head towards, like, my head, and then to my back and at this time me and him is arguing. He basically bended me over. Q: And did he physically assault you? A: Yes.

Government App’x 291:19-23, 292:2-7.

Jefferys makes numerous arguments as to why admission of the assault testimony was

improper. “We review the district court’s evidentiary rulings for abuse of discretion.” United

States v. Willis,

(2d Cir. 2021). Here, even assuming the admission of this

evidence was improper—though it likely was not, given that defense counsel opened the door, see

United States v. Gambino,

(2d Cir. 1995) (“Otherwise inadmissible testimony

may be received . . . in order to rebut a false impression created by an opposing party.”), and that

the testimony was sanitized —we find that its admission was harmless. Although Jefferys argues

that “[f]rom the point that the jury was told the details of this alleged assault, the trial, for all intents

and purposes, was over,” Appellant Br. 35–36, in fact, the details of the assault were not told to

the jury. Jefferys points out that the assault was then mentioned multiple times throughout

closing argument, however, given the overwhelming evidence against Jefferys, including

eyewitness and accomplice testimony, video surveillance from the outside of the apartment

building, and incriminating telephone calls between Jefferys and third parties, “it is highly

probable” that the assault evidence “did not contribute to the verdict,” and therefore was harmless.

United States v. Gatto,

(2d Cir. 2021) (internal quotation marks omitted).

Second, Jefferys argues that the district court abused its discretion in refusing to declare a

mistrial after it was discovered that three Government exhibits with a notation of “Rape 1” on the

5 labels had been sent into the jury deliberation room. We review the district court’s denial of a

motion for a mistrial for an abuse of discretion. United States v. Deandrade,

(2d Cir. 2010). At the outset, we note that defense counsel’s declining of the district court’s offer

to inspect the evidence before it went to the jurors, may have resulted in waiver, requiring Jefferys

to show that “the evidence was so prejudicial that [he] was denied a fair trial.” United States v.

Camporeale,

(2d Cir. 1975).

Regardless, even assuming waiver is not implicated, we find that Jefferys is not entitled to

a new trial because Jefferys was not prejudiced. Although a defendant’s Sixth Amendment rights

are implicated and prejudice is presumed when a jury is exposed to extra-record evidence, “that

presumption may be rebutted by a ‘showing that the extra-record information was harmless.’”

United States v. Farhane,

(2d Cir. 2011) (quoting Bibbins v. Dalsheim,

(2d Cir. 1994)). Here, such a presumption is rebutted because there was no indication that

the jurors considered the evidence. See United States v. Hansen,

(2d Cir.

2010) (finding that “extra-record evidence was not prejudicial because there was no indication that

the jury actually considered it”). At the Government’s request, the district court polled the jurors

and asked whether they had read the labels. None of the jurors indicated that they had, and the

labels were subsequently redacted. The district court’s decision to credit the jurors’ responses is

entitled to substantial weight and defeats a presumption of prejudice. See id.; United States v.

Weiss,

, 783 & n.2 (2d Cir. 1985) (“The trial judge is uniquely qualified to appraise

the probable effect of information on the jury, the materiality of the extraneous material, and its

prejudicial nature.”) (citation omitted); United States v. Hillard,

(2d Cir.

6 1983) (“the trial court has wide discretion in deciding how to pursue an inquiry into the effects of

extra-record information”).

Third, Jefferys argues that his trial counsel was ineffective based on her question to

Cordero that opened the door to the assault testimony, counsel’s insistence on a jury instruction

regarding flight as evidence of consciousness of guilt, and counsel’s failure to inspect the trial

exhibits before they went into the jury deliberation room. This Court may, in its discretion,

“entertain an ineffective assistance of trial counsel claim on direct appeal in a narrow category of

cases where: (1) as here, the defendant has a new counsel on appeal; and (2) argues no ground of

ineffectiveness that is not fully developed in the trial record.” United States v. Yauri,

(2d Cir. 2009) (internal quotation marks omitted). Given that Jefferys’s appellate

counsel conceded at argument that no further development of the record was necessary, we resolve

this claim. We conclude that even assuming Jefferys’s trial counsel’s performance was deficient,

in light of strong evidence presented against Jefferys at trial, Jefferys’s claim fails because he did

not show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” United States v. DiTomasso,

(2d Cir. 2019) (citation omitted).

Finally, Jefferys argues that should the Supreme Court hold that attempted Hobbs Act

robbery is not a crime of violence, his conviction under Count 3 for violation of

(c)(1)(A)(i) cannot stand because both Count 1 and Count 2 would no longer qualify as crimes

of violence. As noted in Jefferys’s Rule 28(j) letter, the Supreme Court, in United States v.

Taylor, 20-1459 (June 21, 2022), decided the issue and held that attempted Hobbs Act robbery is

7 not a crime of violence. The Government agrees that in light of Taylor, Count 3 should be

vacated. We therefore vacate Jefferys’s conviction under Count 3 and remand for resentencing.

* * *

We have considered Jefferys’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court in part and VACATE and REMAND

in part consistent with this order.

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

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