22-639 United States v. Davis

United States Court of Appeals For the Second Circuit

August Term 2023

Submitted: February 5, 2024 Decided: November 26, 2024

No. 22-639

UNITED STATES OF AMERICA,

Appellee,

v.

ANDREW DAVIS, a.k.a. Steven Williams, a.k.a. Andrew Carter, a.k.a. Cordel Freckleton, a.k.a. Jeremy Belk, a.k.a. Big Man,

Defendant-Appellant. ∗

Appeal from the United States District Court for the District of Connecticut No. 17-cr-26, Alvin W. Thompson, Judge.

Before: LEVAL, CARNEY, and SULLIVAN, Circuit Judges.

Andrew Davis appeals from his conviction after trial for conspiracy to distribute and to possess with intent to distribute marijuana; possession with intent to distribute marijuana; possession of firearms in furtherance of a drug

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. trafficking crime; and conspiracy to commit money laundering. On appeal, Davis – through counsel – contends that the evidence presented at trial was insufficient to support his conviction for conspiracy to commit money laundering. Separately, Davis raises ten additional arguments across two supplemental briefs filed pro se. We conclude that the evidence at trial was sufficient to support Davis’s conviction for conspiracy to commit money laundering, and we further conclude that Davis’s pro se arguments either lack merit, have been forfeited, or are premature. Accordingly, we affirm the district court’s judgment.

Judge Sullivan concurs in a separate opinion.

AFFIRMED.

Jamesa J. Drake, Drake Law, LLC, Auburn, ME, Andrew Davis, pro se, Ayer, MA, for Defendant- Appellant.

Jessica Casey, Sandra S. Glover, Assistant United States Attorneys, for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee.

PER CURIAM:

Andrew Davis appeals from the March 18, 2022 judgment of the district

court (Thompson, J.) following his conviction at trial for conspiracy to distribute

and to possess with intent to distribute 100 kilograms or more of marijuana, in

violation of

(a)(1), 841(b)(1)(B)(vii), and 846; possession with intent

to distribute 50 kilograms or more of marijuana, in violation of

(a)(1), (b)(1)(C); possession of firearms in furtherance of a drug trafficking

2 crime, in violation of

(c)(1)(A)(i), (c)(2); and conspiracy to commit

money laundering, in violation of

(a)(1)(A)(i), (h). The district

court sentenced Davis to 295 months’ imprisonment. On appeal, Davis – through

counsel – contends that the evidence presented at trial was insufficient to support

his conviction for conspiracy to commit money laundering. Separately, Davis

raises ten additional arguments across two supplemental briefs filed pro se. We

conclude that the evidence at trial was sufficient to support Davis’s conviction for

conspiracy to commit money laundering, and we further conclude that Davis’s pro

se arguments either lack merit, have been forfeited, or are premature.

Accordingly, we affirm the district court’s judgment.

I. BACKGROUND

Working with a team of co-conspirators, Andrew Davis trafficked large

quantities of marijuana for nearly a decade in Bridgeport, Connecticut. He had a

consistent method: travel to California to buy and package marijuana, ship it by

FedEx to various addresses in Bridgeport, and then have his inside man at FedEx

intercept the packages before delivery. Davis sold the trafficked marijuana in

Bridgeport and out-of-state, often by the pound and sometimes in quantities as

large as forty or fifty pounds. When he was finally arrested in 2017, he was found

with over 136 pounds of marijuana, numerous handguns, and approximately

3 $412,000 in cash across his multiple apartments and his storage unit. One of his

co-conspirators immediately began cooperating with the government, and Davis

was convicted at trial on four counts of drug, firearms, and money laundering

offenses. The district court sentenced him to 295 months’ imprisonment.

On appeal, Davis contends that the evidence presented at trial was

insufficient to support his conviction for conspiracy to commit money laundering.

Davis has also submitted supplemental pro se briefs in which he argues that: (1)

his counsel was ineffective in not challenging the conspiracy charges based on the

applicable statute of limitations; (2) his counsel was ineffective in failing to argue

that his drug offenses were not “drug trafficking crimes” as defined in

(c)(2); (3) the evidence was insufficient to support his conviction for

conspiracy to launder money (for a different reason than the one given in his

counseled brief); (4) the evidence was insufficient to support his conviction for

conspiracy to distribute and to possess with intent to distribute marijuana; (5) his

drug convictions were duplicative in violation of the Double Jeopardy Clause; and

(6) the district court’s imposition of a four-level enhancement under the United

States Sentencing Guidelines for his role in the offense was error. In his pro se

reply brief, Davis adds still more arguments, including that: (7) a cooperator’s

4 testimony at trial was fabricated and coached; (8) paying for necessities is not

money laundering; (9) he was not a large-scale drug dealer; and (10) his counsel

provided ineffective assistance by failing to show him the presentence report until

shortly before sentencing.

II. DISCUSSION

A. Davis’s conviction for conspiracy to commit money laundering was supported by sufficient evidence.

“We review preserved claims of insufficiency of the evidence de novo.”

United States v. Capers,

, 113 (2d Cir. 2021) (internal quotation marks

omitted). 1 Although our review is de novo, “we must view the evidence in the

light most favorable to the government . . . credit[ing] every inference that the jury

might have drawn in favor of the government.” United States v. Atilla,

, 128 (2d Cir. 2020) (internal quotation marks omitted). We will uphold the

jury’s verdict “if any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.”

(internal quotation marks omitted).

Upon reviewing the record, we conclude that sufficient evidence supported

Davis’s conviction for conspiracy to commit money laundering.

1 At trial, Davis moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which the district court denied. He therefore preserved his insufficiency claim.

5 Section 1956(h) prohibits conspiracy to commit money laundering as

defined in section 1956(a). Section 1956(a)(1) provides that a person is guilty of

money laundering if he (1) “conducts or attempts to conduct . . . a financial

transaction,” (2) “which in fact involves the proceeds of specified unlawful

activity,” (3) while “knowing that the property involved in [the] financial

transaction represents the proceeds of some form of unlawful activity,” (4) “with

the intent to promote the carrying on of specified unlawful activity.”

(a)(1) (emphasis added).

Davis focuses on the second element, arguing that the government failed to

introduce evidence sufficient to allow a reasonable jury to conclude that he

conspired to conduct a financial transaction that “in fact involve[d] the proceeds

of specified unlawful activity.”

Davis contends that the government’s

evidence merely showed that his girlfriend used large amounts of cash to purchase

vehicles, some of which were then employed in his drug trafficking operations.

He argues that the government did not prove that the cash was in fact proceeds

from his drug sales, and that the government’s reliance on Davis’s and his

girlfriend’s lack of legitimate income improperly shifted the burden of proof to

6 them to establish that the cash was derived from legitimate commercial activity.

We are not persuaded.

At trial, the jury heard that Davis sold marijuana in bulk for approximately

$1,000 per pound and that searches of his storage unit and apartments turned up

approximately 136 pounds of marijuana and approximately $412,000 in cash. The

jury also heard testimony from a cooperating witness that Davis was not

employed and did not have the necessary credit or income history to rent the

apartment in which he lived. The evidence at trial showed that Davis’s girlfriend

earned only eleven dollars per hour at her job and that her total quarterly wages

ranged from $0 to $3,908.75; despite these modest earnings, the evidence further

showed that she deposited cash totaling $59,129.50 into her bank account between

January 2014 and November 2016. Finally, the jury heard that Davis’s girlfriend

used thousands of dollars of cash to make down payments on cars that Davis used

in his drug trafficking operations, and that the subsequent loan payments on those

cars were made using money orders. The trial record included no evidence

whatsoever to rebut the obvious inference that the cash for those down payments

and money orders came from the proceeds of Davis’s drug trafficking operations.

7 While “the government is required to link the moneys in question to

specified unlawful activities,” we have expressly held that “this link can be made

through circumstantial evidence.” United States v. Gotti,

(2d Cir.

2006); see also United States v. Viserto,

(2d Cir. 1979) (“[P]roof of

the availability of cash by defendants with no legitimate occupation is permitted

as tending to show that it was derived from ill-gotten gains.”). Here, the

unrebutted circumstantial evidence was overwhelming. We conclude that a

reasonable jury could have found beyond a reasonable doubt that the transactions

in question “involve[d] the proceeds of specified unlawful activity,”

(a)(1), and that Davis conspired to commit money laundering in violation of

section 1956(h). The evidence was therefore sufficient to support his conviction

for that offense.

B. Davis’s pro se arguments likewise fail.

In addition to the argument in his counseled brief, Davis raises ten

arguments in pro se supplemental briefs. As discussed below, these arguments

are either meritless, premature, or forfeited.

8 1. Davis’s ineffective assistance of counsel claims are meritless or premature.

“When faced with a claim for ineffective assistance of counsel on direct

appeal, we may: (1) decline to hear the claim, permitting the appellant to raise

the issue as part of a subsequent petition for writ of habeas corpus pursuant to

; (2) remand the claim to the district court for necessary factfinding;

or (3) decide the claim on the record before us.” United States v. Tarbell,

(2d Cir. 2013) (internal quotation marks omitted). We decide two of

Davis’s claims of ineffective assistance and decline to hear the third.

First, Davis contends that his counsel was ineffective in not challenging his

conspiracy charges as time barred. But it is well settled that “failure to make a

meritless argument does not amount to ineffective assistance.” United States v.

Regalado,

, 149 n.3 (2d Cir. 2008) (alterations accepted and internal

quotation marks omitted). Here, a statute of limitations defense would have been

meritless. A conspiracy is not complete, and the applicable statute of limitations

does not begin to run, “until the purposes of the conspiracy have been

accomplished or abandoned.” United States v. Eppolito,

(2d Cir.

2008) (internal quotation marks omitted); see Toussie v. United States,

(1970). Davis was indicted in 2017 for conspiracies running from 2008 to 2017,

9 and the applicable statute of limitations was five years. See

(a).

His conspiracy charges were therefore not time barred.

Equally meritless is Davis’s assertion that his counsel was ineffective in

failing to challenge his conviction for possession of firearms in furtherance of a

drug trafficking crime on the grounds that his drug offenses were not drug

trafficking crimes. See Regalado,

n.3. Conspiracy to distribute

marijuana and possession with intent to distribute marijuana are both felonies

punishable under the Controlled Substances Act, so they qualify as drug

trafficking crimes under section 924(c). See

(a)(1), 846;

(c)(2). Davis’s attorney was not ineffective for failing to assert a baseless

claim.

We decline to consider Davis’s third claim – that his trial counsel provided

ineffective assistance by not showing him the presentence report until shortly

before sentencing – because the record is not developed on that issue. See Massaro

v. United States,

(2003) (noting that in most cases an ineffective

assistance claim is best considered in a section 2255 proceeding rather than on

direct appeal). We dismiss the claim without prejudice to its inclusion in a section

2255 petition. See Tarbell,

.

10 2. The trial evidence was sufficient to support Davis’s conspiracy convictions.

Davis contends that the evidence at trial was insufficient to support his

conviction for conspiracy to commit money laundering because the cash from his

marijuana operations was not from a “specified unlawful activity.”

(a)(1). But specified unlawful activity is a defined term that includes

“dealing in a controlled substance or listed chemical,” including marijuana.

§ 1961(1); see id. § 1956(c)(7)(A);

(6);

§ 812(c), Schedule I(c)(10).

Davis’s assertion that the proceeds from his marijuana operations were not from a

“specified unlawful activity” is therefore contradicted by the statute.

Next, Davis contends that the evidence was insufficient to support his

conviction for conspiracy to distribute and to possess with intent to distribute

marijuana because the government’s proof of an agreement was based on

testimony by cooperating witness Paul Blake, which Davis claims was hearsay.

But Blake’s testimony that Davis agreed to sell certain quantities of marijuana was

not hearsay, as it involved Davis’s own statements made to Blake, was offered by

the government against Davis, and was therefore the statement of an opposing

party. See Fed. R. Evid. 801(d)(2). The law is clear that the testimony of a co-

11 conspirator, by itself, can be sufficient to support a conspiracy conviction. See

United States v. Parker,

(2d Cir. 1990).

3. Davis’s marijuana distribution convictions do not violate the Double Jeopardy Clause.

Davis asserts for the first time on appeal that his convictions for possession

with intent to distribute marijuana and conspiracy to distribute and to possess

with intent to distribute marijuana are duplicative and therefore violate the

Double Jeopardy Clause. But it is well settled that “a conspiracy to commit a

crime is a separate offense from the crime itself.” United States v. Felix,

(1992) (holding that conspiracy to manufacture methamphetamine was

not the “same offen[s]e” for purposes of the Double Jeopardy Clause as attempt to

manufacture methamphetamine); see United States v. Sessa,

(2d Cir.

1997) (“A conspiracy to commit a crime and the substantive crime itself are

different offenses because each requires an element that the other does not.”).

Davis’s argument that his conspiracy and substantive marijuana distribution

convictions violate the Double Jeopardy Clause is therefore baseless.

12 4. The district court did not commit plain error in applying a four-level enhancement for Davis’s role in the offense.

When calculating the applicable Sentencing Guidelines range for Davis, the

district court increased Davis’s offense level by four levels under section 3B1.1(a)

to account for his role as “an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). His

lawyer conceded at sentencing the existence of four co-conspirators, but Davis

argues that this enhancement was erroneous because he did not exercise control

over them. Davis raises this control argument for the first time on appeal, so we

review the district court’s application of the Guidelines for plain error. See United

States v. Hertular,

(2d Cir. 2009).

We have held that “[a] defendant may be subject to a four-level

enhancement [under section 3B1.1(a)] even if the defendant managed only one

other participant.” United States v. Mi Sun Cho,

(2d Cir. 2013).

Here, the district court was presented with ample evidence establishing that Davis

was the central figure in the drug trafficking operation, and that he managed, at

the very least, his co-conspirator girlfriend by directing her to purchase cars and

title them in her name. We see no error in the district court’s application of the

four-level enhancement for Davis’s role in the offense, much less the “clear or

13 obvious” error required under the plain error standard. United States v.

Villafuerte,

(2d Cir. 2007).

5. Davis’s new arguments in his reply brief are forfeited.

The additional arguments that Davis raises for the first time in his

supplemental reply brief are forfeited. See United States v. Yousef,

(2d Cir. 2003). In light of the fact that we regularly apply this forfeiture rule to

parties proceeding entirely pro se, we have no hesitation in applying it to Davis,

who also had the benefit of appointed counsel. See United States v. Karimu,

(2d Cir. 2012) (enforcing reply brief forfeiture rule against appellant

proceeding with hybrid representation).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

14 22-639 United States v. Davis

RICHARD J. SULLIVAN, Circuit Judge, concurring:

I write separately to address our Court’s longstanding practice of permitting

parties who are represented by counsel on appeal, as Davis is, to submit pro se

briefs in addition to their counseled briefs. We are in the minority among our

sister Circuits in allowing such so-called hybrid representation as a matter of

course, despite its tendency to “muddy[] the waters” and, in my view, divert

judicial resources. United States v. Hage,

, 94 (2d Cir. 2023) (chambers

opinion of Nardini, J.).

“The requirement of representation by trained counsel . . . tends to benefit

the appellant as well as the court.” Martinez v. Ct. of Appeal of Cal., Fourth App.

Dist.,

(2000). An attorney is “an officer of the court, and, like the

court itself, an instrument or agency to advance the ends of justice.” In re Snyder,

(1985) (internal quotation marks omitted). Lawyers bring

“unique[] . . . skill and competence” to the decision of what arguments to press on

appeal, benefitting both their clients and the court. Ennis v. LeFevre,

(2d Cir. 1977). Lawyers are bound by ethical rules: they may not

“deliberately mislead the court with respect to either the facts or the law, or

consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Ct. of Appeals of Wis., Dist. 1,

(1988). Indeed, an attorney has a duty “to refuse to prosecute a frivolous appeal.”

Smith v. Robbins,

(2000) (internal quotation marks omitted).

To be sure, the Constitution guarantees a criminal defendant the right to

forgo counsel entirely and represent himself at trial. See Faretta v. California,

(1975) (holding that a state cannot “constitutionally hale a person into

its criminal courts and there force a lawyer upon him”); see also

(allowing parties to proceed “personally or by counsel” “[i]n all courts of the

United States”). Nevertheless, our caselaw is clear that “[a] defendant has a right

either to counsel or to proceed pro se.” United States v. Rivernider,

(2d Cir. 2016) (emphasis added) (citing Faretta,

). He “has no right

to hybrid representation, in which he is represented by counsel” yet “slip[s] into

pro se mode for selected presentations.”

(internal quotation marks omitted).

While district courts have discretion to allow hybrid representation, see United

States v. Tutino,

(2d Cir. 1989), in practice, the district courts in

our Circuit regularly deny such requests, see, e.g., United States v. Helbrans, No. 19-

cr-497 (NSR),

, at *7–8 (S.D.N.Y. Feb. 22, 2022); United States v.

Wilburn, 19-cr-108 (MKB),

, at *2–3 (E.D.N.Y. Dec. 30, 2021).

2 On appeal, the right of self-representation is not constitutional and is subject

to the Court’s rules. See Martinez,

;

. Nevertheless,

we regularly allow hybrid representation. In contrast, the majority of our sister

circuits have either entirely prohibited supplemental pro se filings by represented

parties or established strong presumptions against the practice. The Third, Fifth,

and Eleventh Circuits have adopted local rules prohibiting represented parties

from filing pro se supplemental briefs. See United States v. Turner,

(3d Cir. 2012) (construing 3d Cir. L.A.R. 31.3); United States v. Polidore,

,

721 n.19 (5th Cir. 2012) (citing 5th Cir. R. 28.6); United States v. Weathers,

, 422 n.16 (11th Cir. 2020) (discussing 11th Cir. R. 25-1). The Fourth,

Sixth, and Tenth Circuits have established strong presumptions against hybrid

representation on appeal. See, e.g., United States v. Miller,

, 227 n.10 (4th

Cir. 2022); United States v. Wilder,

, 821 (6th Cir. 2023); United States v.

Pemberton,

, 1144 n.11 (10th Cir. 2024). The Seventh, Eighth, and Ninth

Circuits have in various cases stated that they do not allow hybrid representation

on appeal, see, e.g., United States v. Oreye,

(7th Cir. 2001); United

States v. Montgomery,

, 1220 n.2 (8th Cir. 2012); United States v. Ortiz-

Martinez,

, 650 n.2 (9th Cir. 2015), but, in practice, seem to allow it

3 with some frequency, see, e.g., United States v. Eads,

(7th Cir. 2013);

United States v. Miranda-Zarco,

, 901–02 (8th Cir. 2016); United States v.

Boykin,

(9th Cir. 2015). The First and D.C. Circuits have, to my

knowledge, established no rules or presumptions against hybrid representation

and regularly consider pro se filings from represented parties. See, e.g., United

States v. Gonzalez-Gonzalez,

(1st Cir. 1998); Waters v. Lockett,

(D.C. Cir. 2018). Nevertheless, the D.C. Circuit has, at least on occasion,

refused to allow hybrid representation. See Sturdza v. United Arab Emirates,

(D.C. Cir. 2002).

There is good reason to be skeptical of hybrid representation. As already

noted, declining to consider pro se supplemental briefs on appeal “promotes

effective advocacy because it prevents counsel from allowing frivolous arguments

to be made by the client.” Turner,

. This winnowing generally

benefits the defendant, since “brief[ing] that raises every colorable issue runs the

risk of burying good arguments . . . in a verbal mound made up of strong and

weak contentions.” Jones v. Barnes,

(1983). Moreover, the practice

of allowing hybrid representation has repercussions beyond the cases in which it

is requested. Judicial resources are not unlimited. To permit as a matter of course

4 a party to submit supplemental briefs on top of the briefs already filed by his

counsel is to allow that party to unilaterally divert the Court’s attention from other

appeals. Our practice of granting such requests is effectively a loophole through

our other procedural rules, such as page limits and filing deadlines, that function

to allocate the Court’s limited resources among the many deserving appellants

who seek our review. While it is possible that denial of such requests to file

supplemental pro se briefs will leave some appellants with the feeling that they

have not been heard fully, there is no constitutional right to be heard on appeal at

all, see Abney v. United States,

(1977), much less a right to pursue

one’s appeal unconstrained by the Court’s basic ground rules.

To be clear, given our longstanding practice of granting such requests, I do

not fault the Applications Judge for granting Davis’s request in this case. Nor do

I suggest that we should decline to consider Davis’s pro se arguments now, since

he submitted them with our Court’s express permission. I fully join in the per

curiam opinion, which resolves all of Davis’s arguments – whether counseled or

pro se – on the merits. I write separately only to take stock of where we stand

relative to other Circuits in allowing hybrid representation and to express my view

that, going forward, we should consider curtailing the practice. While litigants

5 undeniably have the right to counsel or to proceed pro se, it would seem to me

“[o]bvious[] . . . those rights cannot be both exercised at the same time.” United

States v. Mitchell,

(2d Cir. 1943).

6