23-6905-cr United States v. Bracy

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 13th day of December, two thousand and twenty-four.

PRESENT: José A. Cabranes, Richard C. Wesley, Steven J. Menashi, Circuit Judges. ____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6905-cr

DASHAUN BRACY,

Defendant-Appellant. ____________________________________________ For Appellee: Jo Ann M. Navickas, Michael W. Gibaldi, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, New York.

For Defendant-Appellant: Steven L. Brounstein, Brooklyn, New York.

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

District of New York (Ross, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

A jury convicted Defendant-Appellant DaShaun Bracy of conspiracy to

distribute and to possess with intent to distribute a controlled substance; using,

carrying, and possessing a firearm during and in relation to a drug trafficking

crime and brandishing and discharging the firearm; and possessing a firearm and

ammunition as a prohibited person. See

(a)(1), 846;

(c)(1)(A), 922(g)(1). At trial, the government presented evidence showing

that Bracy sold MDMA, a controlled substance, and shot his wholesale supplier

after the two met for a final deal. The district court sentenced Bracy to 162 months

in prison along with five years of supervised release. On appeal, Bracy argues that

2 the evidence does not support his conviction for using a weapon during a drug

trafficking crime, that the district court abused its discretion by admitting into

evidence several messages sent by Bracy, and that the government failed to bring

these charges within the time required by the statute of limitations. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

I

Bracy argues that the evidence does not support the jury’s verdict that he

used, carried, and possessed a gun in connection with the drug conspiracy. See

(c)(1)(A). We disagree. When considering a defendant’s challenge to

the sufficiency of the evidence, we must give a “high degree of deference” to a jury

verdict. United States v. Landesman,

, 320 (2d Cir. 2021) (quoting United

States v. Anderson,

(2d Cir. 2014)). We “view[] the evidence in the

light most favorable to the prosecution” and ask whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia,

(1979); see United States v. Jimenez,

,

324 (2d Cir. 2024).

3 Section 924(c) imposes a minimum sentence of five years on “any person

who, during and in relation to any … drug trafficking crime … uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm.”

(c)(1)(A). The minimum sentence increases to ten years if the firearm “is

discharged.”

§ 924(c)(1)(A)(iii). To use or to carry a firearm “in relation to” a

drug trafficking crime, the gun must “have some purpose or effect with respect to

the drug trafficking crime; its presence or involvement cannot be the result of

accident or coincidence.” Smith v. United States,

(1993). The

gun “must facilitate, or have the potential of facilitating, the drug trafficking

offense.”

(internal quotation marks and alterations omitted). Similarly,

to show that gun possession was “in furtherance of” the offense, the government

must “establish the existence of a specific ‘nexus’ between the charged firearm and

the charged drug selling operation.” United States v. Snow,

(2d Cir.

2006). We ask whether the gun “afforded some advantage (actual or potential, real

or contingent) relevant to the vicissitudes of drug trafficking.”

(quoting United

States v. Lewter,

(2d Cir. 2005)).

The evidence in this case supports the jury’s verdict. Text messages between

Bracy and his wholesale supplier show that the two arranged a drug deal on

4 October 30, 2015. A video from a surveillance camera shows a man arriving at the

supplier’s home minutes later. The man approached the supplier, exchanged

something with him, and walked back to his car. Around two minutes later, the

man reapproached the supplier, pulled a gun from his waist, and shot the supplier.

At the hospital hours later, the supplier named Bracy as the shooter and identified

him from a photo array. From this evidence, the jury could reasonably find that

Bracy carried the gun “in relation to” a drug conspiracy because he brought the

gun to a drug deal and kept it in his waistband. See United States v. Pavlotskiy,

(2d Cir. 2002) (holding that the evidence supported conviction

because the gun was in the defendant’s car after “he had just finished one drug

transaction … and was driving to undertake another”). Bracy also possessed the

gun “in furtherance of” the conspiracy: by bringing the gun to a drug deal, a

reasonable juror could conclude that it was “readily accessible to protect drugs,

drug proceeds, or [Bracy] himself.” Snow,

; see United States v.

Fraynid,

(2d Cir. 2017) (finding the evidence sufficient

because the defendant “possessed [a pistol] when he accepted monetary proceeds

from the [drug] sale”).

5 Bracy maintains that the government failed to offer evidence linking the

shooting to the drug conspiracy. If anything, he argues, shooting his supplier

would end the conspiracy, not further it. But the government did not need to show

that Bracy fired the gun “in relation to” or “in furtherance of” the conspiracy.

Section 924(c)(1)(A) imposes a mandatory five-year sentence on anyone who uses

or carries a firearm during and in relation to, or possesses a firearm in furtherance

of, a drug trafficking crime. The penalty increases if the firearm “is brandished” or

“is discharged.”

(c)(1)(A)(ii), (iii). As the Supreme Court has

explained, these “verbs—‘is brandished’ and ‘is discharged’—appear in separate

subsections and are in a different voice than the verbs in the principal paragraph.

There is no basis for reading ‘in relation to’ to extend all the way down to modify

‘is discharged.’” Dean v. United States,

(2009). Once the

government showed that Bracy used, carried, or possessed the firearm in

connection with the drug conspiracy, it needed to prove only that the gun was

discharged—not that the discharge necessarily furthered the conspiracy. The

government met that burden: Bracy discharged the gun when he shot his supplier.

6 II

Bracy also challenges the decision of the district court to admit into evidence

several social media messages from Bracy’s accounts. Among other things, Bracy

told various people in those messages that he wanted his supplier “to take the

stand and say I ain’t do it,” J. App’x 272, that he needs him “to shut his lips,” id. at

273, that he wanted him “to help me out,” id. at 267, and that “I think XYZ going

to do [a] bad thing” because “[h]e been doing it since 2014,” id. at 441. The district

court gave the jury a limiting instruction that these messages were to be considered

as potentially showing “consciousness of guilt.” Id. at 273-74, 444.

A district court may admit “[e]vidence demonstrating a defendant’s

consciousness of guilt” so long as the “evidence is more probative than prejudicial

under” Rule 403. United States v. Bein,

(2d Cir. 1984). Such

evidence includes “attempted witness or jury tampering,” United States v. Perez,

(2d Cir. 2004), or “[e]vidence of threats by a defendant against a

potential witness against him,” Bein,

. Under Rule 403, “[t]he court

may exclude [this] evidence if its probative value is substantially outweighed by a

danger of … unfair prejudice.” Fed. R. Evid. 403. But if the evidence survives the

balancing under Rule 403, it is admissible if accompanied by “an appropriate

7 instruction to the jury” when requested. Perez,

. When reviewing

the ruling of a district court under Rule 403, “we generally maximize the

evidence’s probative value and minimize its prejudicial value.” United States v.

Monsalvatge,

(2d Cir. 2017) (internal quotation marks and

alterations omitted).

Even if the district court erred by admitting these messages, any errors were

harmless. See United States v. Yousef,

(2d Cir. 2003). At trial, the

government presented text messages, phone calls, video surveillance footage, and

testimony from multiple witnesses showing that Bracy routinely bought and then

resold drugs with his wholesale supplier, and at a final deal between the two,

Bracy pulled out a gun and shot the man twice. The parties stipulated that Bracy

had been—and knew that he had been—convicted of a felony at the time of the

shooting. That evidence more than sufficed to convict Bracy of a drug conspiracy;

using, carrying, and possessing a firearm in connection with that conspiracy and

discharging that firearm; and possessing a firearm and ammunition as a

prohibited person. Any prejudicial effect of the messages suggesting Bracy wanted

to influence his supplier’s testimony was minimal—especially because Bracy did

not indicate that he intended to do so violently. See Perez,

(“[S]ince

8 the attempted coercion of the witness was nonviolent, it was no more sensational

than the other evidence of the alleged narcotics crimes.”); cf. United States v.

Morgan,

(2d Cir. 2015) (holding the admission of death threat

evidence was not harmless because the “evidence at trial was not …

overwhelming” and the evidence of witness tampering “was highly charged” and

“inflammatory”).

III

Finally, Bracy argues that the government failed to bring the drug

trafficking and § 924(c) charges within the time required by the statute of

limitations. Under

(a), the government had five years to initiate

charges. That period “normally begin[s] to run when the crime is complete.”

United States v. Eppolito,

(2d Cir. 2008) (quoting Toussie v. United

States,

(1970)). For a conspiracy charge, the offense “is not

complete until the purposes of the conspiracy have been accomplished or

abandoned, and the government need only prove that the conspiracy continued to

within five years of the indictment.” United States v. Rastelli,

(2d

Cir. 1989).

9 The government charged Bracy on October 28, 2020. Yet the drug conspiracy

continued until October 30, 2015, the date of the last drug deal when Bracy shot

his supplier. This last act of the conspiracy and the conduct underlying the § 924(c)

charge occurred less than five years before the indictment, and the prosecution

was therefore timely.

* * *

We have considered Bracy’s 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

10