14-1908(L) United States v. McIntosh

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED 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 25th day of January, two thousand twenty-three.

PRESENT: JOHN M. WALKER, JR., RAYMOND J. LOHIER, JR., Circuit Judges, TIMOTHY C. STANCEU, * Judge. ----------------------------------------------------------------------- UNITED STATES OF AMERICA, Appellee-Cross-Appellant,

v. Nos. 14-1908, 14-3922, 17-2623

LOUIS MCINTOSH, AKA Lou D, AKA Lou Diamond, AKA G, Defendant-Appellant-Cross-Appellee,

*Senior Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation.

1 EDWARD RAMIREZ, AKA Taz, TERRENCE DUHANEY, AKA Bounty Killer, TURHAN JESSAMY, AKA Vay, QUINCY WILLIAMS, AKA Capone, TYRELL ROCK, AKA Smurf, NEIL MORGAN, AKA Steely, Defendants.

----------------------------------------------------------------------- APPEARING FOR APPELLANT: STEVEN YUROWITZ, Newman & Greenberg LLP, New York, NY.

APPEARING FOR APPELLEE: SARAH KRISSOFF, Assistant United States Attorney (Thomas McKay, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a ruling of the United States District Court for the Southern

District of New York (Sidney H. Stein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the amended judgment entered on August 8, 2017 is in part

AFFIRMED and in part VACATED. The judgment of acquittal entered on

January 17, 2014 is in part AFFIRMED and in part REVERSED. The case is

REMANDED to the district court for resentencing. 1

1This summary order was originally filed on January 31, 2022, with a concurrently filed opinion. See United States v. McIntosh,

(2d Cir. 2022); United States v. McIntosh,

2 Appellant Louis McIntosh appeals from a 2017 amended judgment of

conviction following a 2014 trial for several Hobbs Act robberies. The government

cross-appeals from a district court judgment of acquittal vacating two counts of

McIntosh’s conviction. McIntosh raises several issues for review, three of which

the government does not contest. McIntosh’s uncontested arguments are: first,

that his conviction on Count Two of the indictment was improper because

conspiring to commit Hobbs Act robbery is not a crime of violence; second, that

he was improperly sentenced because the district court did not take account of his

firearm mandatory minimum sentence when calculating his predicate offense

sentences; and, third, that the district court improperly found him jointly and

severally liable for the robberies’ proceeds.

No. 14-1908,

(2d Cir. Jan. 31, 2022). On July 26, 2022, McIntosh filed a petition for a writ of certiorari with the Supreme Court. On November 7, 2022, the Supreme Court granted McIntosh’s petition for a writ of certiorari, vacated our judgment, and remanded the case for further consideration in light of United States v. Taylor,

(2022), which held that attempted Hobbs Act robbery is not a crime of violence under

(c). See McIntosh v. United States,

(2022). Because United States v. Taylor only affects our analysis as to Count Six, and McIntosh has not yet been resentenced, see United States v. McIntosh, No. 7:11-cr-500-1 (SHS), Dkt. No. 387 (S.D.N.Y. Nov. 10, 2022) (adjourning resentencing to February 14, 2023), we now issue this amended summary order, which is substantively unchanged except as to our analysis regarding Count Six.

3 In addition, McIntosh claims that he was improperly convicted of Counts

Seven and Eight because venue was not proper in the Southern District of New

York and because the robbery at issue did not have a connection to interstate

commerce. And, finally, he argues that the forfeiture and restitution orders should

be vacated because he was not present when they were imposed and the amount

calculated was not proven beyond a reasonable doubt. In its cross appeal,

meanwhile, the government argues that the district court erred when it ruled that

there was not enough evidence to convict McIntosh on Counts Five and Six.

This summary order addresses the above arguments. In addition, McIntosh

argues that his forfeiture should be vacated because the district court did not enter

a preliminary forfeiture order prior to sentencing, as required by Federal Rule of

Criminal Procedure 32.2. He also asserts that he was improperly convicted of

possessing firearms as a felon, Counts Twelve through Fourteen, because the

government did not prove that he knew that he was a felon. A separate opinion

issued concurrently with this summary order addresses these arguments.

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

history, and arguments on appeal, to which we refer only as necessary to explain

our decision.

4 I. McIntosh’s Uncontested Arguments

McIntosh first argues that his conviction on Count Two of the indictment

was improper. Count Two alleged that he violated

(c) by carrying

firearms in furtherance of a conspiracy to commit Hobbs Act robbery. Section

924(c) criminalizes the use of firearms in furtherance of “any crime of violence.”

(c)(1)(A). We have since held, however, that conspiring to commit

Hobbs Act robbery is not a “crime of violence” under § 924(c). See United States v.

Barrett,

(2d Cir. 2019) (“Davis precludes us from concluding, as

we did in our original opinion, that Barrett’s Hobbs Act robbery conspiracy crime

qualifies as a § 924(c) crime of violence.” (citing United States v. Davis,

(2019))). As a result, McIntosh’s conviction on Count Two is vacated.

McIntosh next challenges his sentence on the basis that the district court did

not consider the severity of the mandatory minimum sentence imposed by

McIntosh’s firearm convictions when calculating his sentence for the Hobbs Act

offenses. In doing so, the court followed our then controlling precedent. See

United States v. Chavez,

(2d Cir. 2008). Subsequently, however,

the Supreme Court held that a sentencing court is permitted to consider the

mandatory minimum resulting from such offenses, abrogating Chavez. See Dean v.

5 United States,

(2017). We remand the case for resentencing in light

of Dean.

Finally, McIntosh objects to being held jointly and severally liable for the

proceeds of the robberies. At sentencing, the district court ordered McIntosh to

pay $75,000 in forfeiture, the total amount stolen in the robberies, even though the

evidence suggests that he received only a portion of that amount. In Honeycutt v.

United States, the Supreme Court held that a different forfeiture statute precluded

joint and several liability among conspirators.

(2017). We

conclude and the government now concedes that Honeycutt’s reasoning applies

with equal force to the forfeiture statute at issue here,

(a)(1)(c).

Accordingly, the forfeiture order is vacated, and the issue is remanded to be

recalculated consistent with the understanding that Honeycutt prohibits joint and

several liability under

(a)(1)(c). 2

2Given the government’s concession, “we need not here decide whether Honeycutt’s reasoning applies equally in all respects to forfeiture orders under

(a)(1)(C).” United States v. Gil-Guerrero,

, 18 n.8 (2d Cir. 2018).

6 II. McIntosh’s Contested Arguments

a. Counts Seven and Eight

McIntosh’s first contested argument is that he was improperly convicted of

Counts Seven and Eight, which allege the robbery of loan shark and wholesale ice

cream salesman Robert Rizzatti in Lynbrook, Long Island. McIntosh contends that

the Southern District of New York was not the appropriate venue for these counts

and that the prosecution failed to establish the robbery’s required connection to

interstate commerce.

Venue “is not an element of a crime,” and so it need only be proved by a

preponderance of the evidence. United States v. Rommy,

(2d Cir.

2007) (quotation marks omitted). For Hobbs Act robbery and related firearms

charges, venue is “proper in any district where interstate commerce is affected or

where the alleged acts took place.” United States v. Davis,

(2d Cir.

2012) (quotation marks and citation omitted).

In this case, the government sufficiently established venue. Rizzatti

purchased ice cream for his business from a distributor located in the Southern

District. The distributor, in turn, sourced the product from a factory in New Jersey.

A loss of capital likely affected Rizzatti’s future purchases, in turn affecting

7 interstate commerce. The government also introduced evidence showing that

McIntosh took substantial steps toward the completion of the Lynbrook robbery

in the Southern District, including meeting with and recruiting co-conspirators,

gathering weapons beforehand, and dividing the proceeds of the robbery. See

United States v. Davis,

(2d Cir. 2012) (holding that a defendant’s

telephone call to the Southern District to recruit co-conspirators contributed to

making the district a proper venue for prosecution for attempted robbery). Both

the effect on interstate commerce and the steps taken in the district are enough to

establish proper venue in the Southern District of New York. Our precedent here

is well-established and binding, and we decline McIntosh’s invitation to have us

reexamine it.

McIntosh also argues that the government did not show an effect on

interstate commerce because it did not prove that the stolen money would have

otherwise been used by Rizzatti to purchase ice cream. By stealing his money,

however, McIntosh reduced Rizzatti’s available funds, which would have at least

marginally affected his ability to purchase ice cream in the future. Venue was

proper in this case.

8 In addition to his venue arguments, McIntosh asserts that the Lynbrook

robbery lacked a sufficient nexus to interstate commerce to satisfy the

jurisdictional element of Hobbs Act robbery. See

(a). In a Hobbs

Act prosecution, the burden of proving a nexus to interstate commerce is minimal

and “may be satisfied by a showing of a very slight effect on interstate commerce.”

United States v. Angelilli,

(2d Cir. 1981). “[A]ll that need be shown

is the possibility or potential of an effect on interstate commerce, not an actual

effect.” United States v. Needham,

(2d Cir. 2010) (abrogated on

other grounds).

The evidence shows that Rizzatti was engaged in two informal businesses

affecting interstate commerce: selling ice cream wholesale that was manufactured

in and purchased from New Jersey, and loaning money to people in New York

who used it for out-of-state contracts. McIntosh specifically sought to steal the

cash Rizzatti used in conducting these enterprises, thus depleting the assets and

affecting Rizzatti’s ability to purchase more ice cream manufactured in New Jersey

and to extend additional loans. See Needham,

.

McIntosh responds that the government did not produce evidence that the

money robbed would have been used in the furtherance of either business. But a

9 “very slight effect” on one’s informal businesses is an inevitable result of

unexpectedly losing a significant amount of money. McIntosh also argues that

Rizzatti’s testimony that his ice cream came from out of state was inadequate

because he based this claim on a 1980s visit to a New Jersey manufacturing facility.

McIntosh analogizes this to cases holding that evidence of a time when federal

deposit insurance covered a bank could not be used to infer earlier or subsequent

coverage. See United States v. Sliker,

(2d Cir. 1984); United States

v. Ali,

(9th Cir. 2001); United States v. Shively,

(7th Cir. 1983). Rizzatti testified, however, that he believed the ice cream was

sourced from New Jersey at the time of the robbery, and no contrary evidence was

introduced. In the cases cited by McIntosh, no testimony was provided about

contemporaneous coverage. As a result, they are inapposite.

The government brought the Lynbrook robbery charges in a proper venue

and sufficiently established the interstate element. Thus, we affirm McIntosh’s

conviction on Counts Seven and Eight.

10 b. The Forfeiture and Restitution Orders

Finally, McIntosh advances three arguments for why the forfeiture and

restitution orders imposed as part of his final judgment should be vacated. In our

accompanying opinion, we deal with the third argument—that the district court’s

failure to comply with a procedural deadline prohibits entry of the forfeiture

order. McIntosh’s other two points are addressed here.

As the government points out, McIntosh’s argument that his presence was

required at the imposition of the orders is moot. This summary order remands the

case for resentencing, and so he will be present for the imposition of the new

judgment. McIntosh also argues that the restitution and forfeiture amounts should

have been calculated beyond a reasonable doubt. McIntosh acknowledges,

however, that this argument is foreclosed by binding Second Circuit case law. See

United States v. Stevenson,

(2d Cir. 2016) (affirming that a forfeiture

amount need not be proven beyond a reasonable doubt); see also United States v.

Bengis,

(2d Cir. 2015) (holding the same in the relevant restitution

context). We affirm the district court on this point.

11 III. The Government’s Cross Appeal

Counts Five and Six of the indictment charged McIntosh with attempting to

rob drug dealers at a dice game on Cliff Street in Yonkers and using a firearm in

the process. The jury convicted him on these counts, but the district court

overturned the verdict in a January 17, 2014 judgment. The court determined that

the evidence was insufficient to establish that McIntosh had “intended to rob” the

dealers, as opposed to just assaulting them.

In our original summary order, we accepted the government’s argument

that the evidence was sufficient and that the district court erred in acquitting

McIntosh on these counts. That analysis remains true, but only as to Count Five.

When reviewing a verdict, we are required to uphold the jury’s finding if

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” See Jackson v. Virginia,

(1979). In

making this determination, “we must view the evidence in the light most favorable

to the government, crediting every inference that could have been drawn in the

government’s favor, and deferring to the jury’s assessment of witness credibility

and its assessment of the weight of the evidence.” United States v. Coplan,

(2d Cir. 2012) (quotation marks omitted).

12 Sufficient evidence supported the jury’s finding that McIntosh possessed

the required intent to rob the drug dealers. The jury heard testimony from three

witnesses directly supporting this finding. One witness, Terrence Duhaney, stated

that Ramirez and McIntosh “was [sic] saying the whole plan was to rob the dice

game.” J.A. at 355. Another, Hibah Lee, testified that McIntosh later told him that

he went to his truck “to get the shotgun to go in [Biggs’s] pocket and teach him a

lesson,” which meant to “rob him.” Id. at 372. And, finally, Edward Ramirez

stated that McIntosh was “talking about how . . . we went over [to Cliff Street] to

catch jerks, which in street terms means a robbery, and we didn’t get nothing.” Id.

at 327.

The jury also received circumstantial evidence supporting the conclusion

that McIntosh planned to rob the dealers. First, the jury heard testimony that

McIntosh gave his co-conspirators a “look” during the dice game, which they

understood to mean that “it was going to be something.” Id. at 325. After the

“look,” his co-conspirators began discussing “who was going to rob who for

what,” suggesting that McIntosh intended more than an assault. Id. Second, the

jury received evidence showing that McIntosh initially went to Cliff Street to

commit a different robbery, but that attempt was abandoned because too many

13 people were inside the house. Although evidence of that planned robbery does

not, by itself, establish McIntosh’s intent to rob the dice game, it reinforces the

conclusion that McIntosh decided to seize an opportunity to rob the dice game

instead.

The district court, in finding this evidence inconclusive, emphasized that the

“look” and the initial plan to commit a different robbery are insufficient to

establish McIntosh’s intent beyond a reasonable doubt. The court also noted that

the section of Ramirez’s testimony quoted above could refer to the initial intention

to commit a different robbery. The district court then concluded that the testimony

of Duhaney and Lee, on its own, is not enough to establish McIntosh’s intent. The

district court’s analysis thus separated the individual pieces of evidence, reasoning

that no one piece meets the burden of proof. When reviewing a jury’s finding,

however, the court must take account of “the totality of the government's case”

and not restrict its analysis “to each element, as each fact may gain color from

others.” United States v. Riggi,

(2d Cir. 2008) (quotation mark

omitted). When assessing the evidence holistically, we believe that a rational trier

of fact could have found McIntosh guilty.

14 In his brief, McIntosh reiterates the district court’s reasoning and raises

several issues with the trustworthiness and consistency of the witnesses’

testimony. Such arguments, however, go to the credibility and weight of the

evidence, as to which we defer to the jury. See Coplan,

. The district

court erred when it overturned the jury’s verdict as to Count Five.

As to Count Six, using a firearm during and in relation to a crime of violence

in violation of

(c), we must affirm the district court’s dismissal,

because, regardless of the sufficiency of the evidence, the Supreme Court held in

Taylor v. United States,

(2022) that attempted robbery—the predicate

offense for Count Six—is not a crime of violence under

(c).

Accordingly, the district court’s January 17, 2014 judgment is reversed as to

Count Five and is affirmed as to Count Six.

* * *

McIntosh’s conviction on Count Two is VACATED. The district court’s

judgment dismissing Count Five is REVERSED. The district court’s judgment

dismissing Count Six is AFFIRMED. The district court is AFFIRMED on Counts

Seven and Eight. The district court’s forfeiture order is VACATED as to the issue

of joint and several liability. As explained in the precedential opinion filed

15 simultaneously with this order, the district court is AFFIRMED on the issue of the

deadline under Federal Rule of Criminal Procedure 32.2 and on Counts Twelve

through Fourteen. The case is REMANDED to the district court for resentencing

consistent with this order.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court

16