23-6876-cr United States v. Walker

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 5th day of November, two thousand twenty-four.

PRESENT: PIERRE N. LEVAL, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6876-cr

DONTE WALKER, a.k.a. “Slim,”

Defendant-Appellant,

CLAYTON WILLIAMS, Agent of Dee, KEVIN HINCA,

Defendants. ------------------------------------------------------------------

FOR DEFENDANT-APPELLANT: JONATHAN ROSENBERG, Rosenberg Law Firm, PLLC, Brooklyn, NY

FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney (Katherine A. Gregory, Assistant United States Attorney, on the brief), for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY

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

Western District of New York (John L. Sinatra, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

Donte Walker appeals from a judgment of conviction entered on August 2,

2023 by the United States District Court for the Western District of New York

(Sinatra, Jr., J.) after a jury trial in which Walker was found guilty of ten counts

arising from his participation in a narcotics conspiracy: engaging in a continuing

criminal enterprise, in violation of

(a) (Count One); participating

in a narcotics conspiracy that caused the death of a victim, in violation of

(a)(1), (b)(1)(A) and

(Count Two); murder while

2 engaged in a continuing criminal enterprise and narcotics conspiracy, in

violation of

(e)(1)(A) and

(Count Three); witness

tampering, in violation of

(a)(1)(C), 1512(a)(3)(A) and

(Count Four); and discharging a firearm in furtherance of the conspiracy, in

violation of

(c)(1)(A)(iii), 924(j)(1) and

(Count Five),

as well as a five other counts related to drug storage, possession, and

distribution. The District Court sentenced Walker to an aggregate term of life

imprisonment plus 240 months. We assume the parties’ familiarity with the

underlying facts and the record of prior proceedings, to which we refer only as

necessary to explain our decision to affirm.

I. Sufficiency of the Evidence

Walker first argues that the evidence presented at trial was insufficient to

support his conviction on Counts One through Five. We review his challenge de

novo, viewing the evidence “in the light most favorable to the prosecution,” and

we will uphold the conviction if “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v.

Capers,

, 113 (2d Cir. 2021) (quotation marks omitted). “[A]

defendant challenging the sufficiency of the evidence bears a heavy burden.”

3 United States v. Landesman,

, 319 (2d Cir. 2021) (quotation marks

omitted).

Bearing in mind that we must “defer to the jury’s assessment of witness

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

Lewis,

, 744 (2d Cir. 2023) (quotation marks omitted), we conclude

that the evidence adduced at trial was sufficient to support a conviction on each

of Counts One through Five. Our review of the record persuades us that the jury

was presented with testimonial and other evidence from which it could find that

the narcotics conspiracy continued through the date of Ryan Thurnherr’s

murder, on or around October 16, 2018, that Walker supervised five or more

individuals as part of the conspiracy, that Walker gained substantial income

from the enterprise, that the conspiracy resulted in the death of Michael

O’Connor, and that Walker murdered Thurnherr with a firearm in the course of

engaging in a continuing criminal enterprise and to prevent Thurnherr from

cooperating with law enforcement.

II. The District Court’s Evidentiary Rulings

Walker also challenges several evidentiary rulings of the District Court.

“We review evidentiary rulings for abuse of discretion,” United States v. Mercado,

4

(2d Cir. 2009), and we will “disturb an evidentiary ruling only

where the decision to admit or exclude evidence was manifestly erroneous,”

United States v. Williams,

(2d Cir. 2019) (quotation marks omitted).

Walker objects first to the testimony of two government witnesses who

identified the vehicle seen in surveillance video near the site of Thurnherr’s

murder as a black Chevrolet Tahoe. Both crime analyst Kathryn Mendolera and

Special Agent Robert Nunn testified about the Tahoe based on their personal

observation of the surveillance video. Walker’s contention that their

identification of the vehicle was speculative and unfounded relates to the weight

the jury should accord the evidence, not its admissibility. See Sloley v. VanBramer,

, 44 (2d Cir. 2019).

Walker next contends that the District Court improperly admitted agent

and other witness testimony regarding the use of code during text and phone

conversations and interpreting certain coded messages involving Walker.

Recognizing that “[d]rug dealers rarely speak openly about their trade” and

instead “often engage in a so-called ‘narcotics code,’” we have held that “courts

may allow witnesses to ‘decipher’ the codes drug dealers use and testify to the

true meaning of the conversations.” United States v. Garcia,

(2d

5 Cir. 2002). Here, a number of lay witnesses who were involved in the charged

conspiracy interpreted text messages and phone calls with Walker in which they

participated. They not only had personal knowledge of what was actually said,

but personal knowledge of the underlying conspiracy sufficient to

interpret Walker’s co-conspirator statements. See United States v. Yannotti,

, 125–26 (2d Cir. 2008). In addition, we note that the District Court

instructed the jury: “You may give the opinion testimony whatever weight, if

any, you find that it deserves in light of all the evidence in this case, but you

should not accept opinion testimony merely because I allowed [it.]” Trial Tr.

2684. Walker’s separate argument that the agent’s testimony was unduly

speculative and unreliable fails because the agent’s testimony was not “so

unrealistic and contradictory as to suggest bad faith or to be in essence an apples

and oranges comparison.” United States v. Jones,

, 162 (2d Cir. 2020)

(quotation marks omitted). Walker’s other challenges about the agent’s

testimony “go to the weight, not the admissibility, of the testimony.”

(quotation marks omitted).

Finally, Walker challenges the District Court’s decision to allow the

Government to introduce out-of-court statements of two co-conspirators who did

6 not testify at trial. But these statements were properly admitted under Federal

Rule of Evidence 801(d)(2)(E) as statements of co-conspirators in furtherance of

the narcotics conspiracy. “[T]he Supreme Court has indicated that statements in

furtherance of a conspiracy are non-testimonial for purposes of the

Confrontation Clause, and are therefore not covered by its protections.” United

States v. Shyne,

(2d Cir. 2010).

We in any event conclude that even if errors could be found in any of the

evidentiary rulings about which Walker complains, they were harmless because

the Government’s case against Walker was “indisputably strong,” and the

challenged evidence was “cumulative of other properly admitted evidence.”

United States v. McCallum,

(2d Cir. 2009) (quotation marks

omitted); see United States v. McPartland,

, 114 (2d Cir. 2023).

III. Multiplicity of Counts Three Through Five

Next, Walker mounts a challenge under the Double Jeopardy Clause of the

Fifth Amendment, arguing that his convictions on Counts Three through Five

were multiplicitous because each count concerned the murder of Thurnherr.

This argument is meritless. “[W]here the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine

7 whether there are two offenses or only one, is whether each provision requires

proof of a fact which the other does not.” United States v. Barrett,

, 89–

90 (2d Cir. 2024) (quoting Blockburger v. United States,

(1932)).

“An indictment is [thus] multiplicitous when it charges a single

offense . . . multiple times, in separate counts, when, in law and fact, only one

crime has been committed.” United States v. Finley,

(2d Cir.

2001) (emphasis added) (quotation marks omitted). Here, each of the relevant

counts “requires proof of a fact which the other[s] do[] not.” Barrett, 102 F.4th at

90. Accordingly, Walker’s multiplicity challenge fails.

IV. Cumulative Unfairness

Finally, Walker seeks a new trial on the ground that the cumulative effect

of the District Court’s errors was to deprive him of due process of law. We

disagree. We perceive no error in the rulings Walker cites in support of his

cumulative-unfairness claim, and, if any were erroneous, their impact was

negligible. See United States v. Rahman,

(2d Cir. 1999).

8 CONCLUSION

We have considered Walker’s remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the District

Court is AFFIRMED.

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

9