23-7134-cr, 23-7136-cr United States v. Lesane

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 2nd day of December, two thousand twenty-five.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, BARRINGTON D. PARKER, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

United States of America,

Appellee, v. 23-7134 23-7136 Eric Lesane, AKA Omega, AKA Eric Lasane, Defendant-Appellant. _____________________________________ FOR DEFENDANT-APPELLANT: Eric Lesane, pro se, Bradford, PA.

FOR APPELLEE: Elizabeth A. Espinosa, Dominic A. Gentile, Nathan Rehn, Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.

Appeal from two judgments of the United States District Court for the

Southern District of New York (Liman, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments are AFFIRMED.

In these tandem appeals, defendant-appellant Eric Lesane (“Lesane”), pro

se, appeals from two judgments entered on September 6, 2023: (1) a judgment

convicting him of violating multiple conditions of supervised release and (2) a

judgment convicting him of being a felon in possession of a weapon, in violation

of

(g)(1), and possessing firearms in furtherance of a drug

trafficking crime, in violation of

(c). In 2013, Lesane pleaded

guilty to being a felon in possession of a firearm with a defaced serial number.

The district court sentenced him, principally, to 94 months’ imprisonment and 3

2 years’ supervised release. Lesane began his term of supervised release in April

2021.

In February 2023, the U.S. Probation Office (“Probation”) filed a violation

of supervised release (“VOSR”) report, charging Lesane with (1) failing to

truthfully answer inquiries about his address, (2) failing to notify probation

about a change in address, (3) committing a federal crime, being a felon in

possession of a firearm, and (4) committing a federal crime, possessing firearms

in connection with a drug trafficking crime. The Government separately

charged Lesane with the two federal crimes. Lesane moved to suppress

evidence seized from a search of his apartment following his arrest pursuant to

a warrant, but the district court denied the motion. A jury found Lesane guilty

of the criminal charges, and the district court subsequently found Lesane guilty

of the VOSR specifications (based on the evidence presented at trial). The

district court sentenced Lesane to a total of 123 months’ imprisonment (123

months for the two criminal charges and 24 months on the supervised release

violations, to run concurrently). We assume the parties’ familiarity with the

remaining facts, procedural history, and issues on appeal.

3 * * *

I. Motion to Suppress Evidence

“When reviewing the grant or denial of a motion to suppress, we apply a

de novo standard of review of the district court’s conclusions of law and a

deferential, clear-error standard of review of the district court’s findings of fact.”

United States v. Smith,

(2d Cir. 2020). “To the extent that a

district court’s determination may involve a mixed question of law and fact, we

apply de novo review, including to any ultimate determination whether the

established facts satisfy the relevant legal standard.”

.

Lesane asserts several challenges to the district court’s denial of his motion

to suppress. First, he asserts that the arrest warrant was not valid because there

was no probable cause to support it. Even assuming arguendo that the arrest

warrant was a necessary predicate to the search of Lesane’s residence (given his

terms of supervised release), there was sufficient probable cause to support the

arrest warrant. “In order to establish probable cause, it is not necessary to make

‘a prima facie showing of criminal activity’ or to demonstrate that it is more

probable than not that a crime has been or is being committed.” United States v.

4 Cruz,

(2d Cir. 1987) (quoting United States v. Travisano,

(2d Cir. 1983)). “Rather, probable cause for arrest ‘exists where the facts

and circumstances within [the officers’] knowledge and of which they had

reasonably trustworthy information [are] sufficient in themselves to warrant a

man of reasonable caution in the belief that an offense has been or is being

committed.’”

(quoting Brinegar v. United States,

, 175–76 (1949))

(alterations in original). “[P]robable cause is a fluid concept—turning on the

assessment of probabilities in particular factual contexts—not readily, or even

usefully, reduced to a neat set of legal rules.” Illinois v. Gates,

(1983).

Here, sufficient facts and circumstances existed to permit a reasonable

belief that Lesane had violated his conditions of supervised release. First,

Probation had received information from the New York Police Department

(“NYPD”) that Lesane was residing at the Hering Avenue address. Second, two

days of surveillance showed Lesane repeatedly entering and exiting the Hering

Avenue property. Finally, Lesane failed to inform his probation officer that he

changed his address on two different occasions. Together, this information was

5 sufficient for a reasonable person to believe that Lesane had changed his address

and failed to inform his probation officer of this change, a violation of his

conditions of supervised release.

Next, Lesane asserts that Probation “strayed beyond the bounds” of the

arrest warrant by searching 2551 Hering Avenue. But this contention is

meritless. As the Government argues, pursuant to the terms of Lesane’s

supervised release, Probation was permitted to search Lesane’s residence or any

premises he controlled on reasonable suspicion that Lesane had committed a

violation of supervised release or had contraband. Reasonable suspicion asks

“whether a reasonable officer would suspect unlawful activity under the totality

of the circumstances.” United States v. Diaz,

(2d Cir. 2015). A

reasonable officer would suspect a violation here. First, Probation had

information from the NYPD that Lesane resided at the Hering Avenue apartment

and was in possession of firearms, a violation of the conditions of his supervised

release. Second, after Lesane was arrested, federal agents with the U.S.

Marshals recovered a set of keys from him for the Hering Avenue apartment,

providing Probation with an independent basis for reasonable suspicion that

6 Lesane had violated his conditions of supervised release, namely that he resided

at the Hering Avenue address without notifying Probation.

Finally, Lesane argues that two probation officers misled the district court

to obtain the arrest warrant and committed perjury because their statements at

trial were inconsistent with their statements in the arrest warrant petition. “It

is well established that a defendant seeking to suppress evidence that was

gathered pursuant to a search warrant that was based on inaccurate

representations by the Government must show (1) that the inaccuracies were the

product of a Government agent’s ‘deliberate falsehood’ or ‘reckless disregard for

the truth’ rather than innocent mistake, and (2) that, after setting aside the

falsehoods, what remains of the warrant affidavit is insufficient to support a

finding of probable cause.” United States v. Coreas,

(2d Cir.

2005) (quoting Franks v. Delaware,

, 171–72 (1978)). But Lesane has

not shown that there were any inaccurate representations made.

Lesane relies on a portion of Probation Officer Ji’vonne Gilmore’s

testimony in which she stated that she had not asked Lesane if he resided at 2551

Hering Avenue. But Lesane omits the fact that Gilmore went on to explain that

7 Lesane lied to her when she asked if he had secured independent housing.

Therefore, Gilmore’s testimony was consistent with the arrest warrant petition,

which asserted that Lesane had failed to reply to her questions truthfully.

Lesane’s citation to Probation Officer Shawnte Lorick’s testimony is another

instance of misreading the trial transcript. Lorick testified merely that the

violation report was an allegation that had to be proven in court, but he did not

testify that he could not prove the violation. Because neither portion of the

probation officers’ testimony at trial showed any inaccuracies in the arrest

warrant petition, Lesane’s challenge fails.

II. Sufficiency of the Evidence

We review sufficiency of the evidence claims “exceedingly

deferential[ly],” United States v. Hassan,

(2d Cir. 2008), viewing

“the evidence in the light most favorable to the” Government and affirming “if

any rational trier of fact could have found the . . . elements of the crime beyond a

reasonable doubt,” United States v. Aguilar,

(2d Cir. 2009)

(internal quotation marks and citation omitted).

8 The evidence at trial was sufficient to establish that Lesane possessed a

firearm in furtherance of a drug trafficking crime. “To convict for possession of

a firearm in furtherance of a drug trafficking offense under

(c), the

government must prove that the defendant possessed the firearm and that the

possession occurred in furtherance of a drug trafficking crime.” United States v.

Willis,

(2d Cir. 2021) (internal quotation marks and citation

omitted). The Government must “establish a ‘nexus’ between the charged

firearm and the charged drug selling operation.”

“That nexus is

established where the firearm afforded some advantage (actual or potential, real

or contingent) to the drug trafficking,” including “where the charged weapon is

readily accessible to protect drugs, drug proceeds, or the dealer himself.”

(internal quotation marks and citation omitted). “Relevant factors include (1)

the type of drug activity; (2) the accessibility of the firearm; (3) the type of

weapon; (4) whether the weapon is stolen; (5) the status of the possession

(legitimate or illegal); (6) whether the gun is loaded; (7) proximity to drugs or

drug profits; and (8) the time and circumstances under which the gun is found.”

United States v. Prawl,

, 184 (2d Cir. 2025) (cleaned up).

9 The Government offered evidence that Lesane’s Hering Avenue

apartment contained both the firearms and evidence of a marijuana distribution

operation. Specifically, Probation recovered packaged marijuana, empty

packaging materials, a scale with apparent drug residue on it, and $10,000 cash.

One of Lesane’s neighbors at the Hering Avenue residence testified that Lesane

brought a backpack full of pre-packaged marijuana out of his apartment to give

the neighbor a sample and told the neighbor to knock on his door if he wanted

to purchase drugs. Further, the firearms, drugs, and drug paraphernalia were

all found within Lesane’s room. At least one of the firearms was loaded. This

evidence was sufficient to show that the weapons located in the apartment were

“readily accessible” to Lesane to protect himself, his drugs, or his drug proceeds.

III. Constitutionality of

(g)(1)

Finally, Lesane challenges the constitutionality of § 922(g)(1) in light of the

decision in New York State Rifle & Pistol Association Inc. v. Bruen,

(2022).

However, this argument is foreclosed by our recent decision in Zherka v. Bondi,

(2d Cir. 2025). Prior to Bruen, in United States v. Bogle,

(2d Cir. 2013), this Court upheld § 922(g)(1) as facially constitutional. Id. at 281–

10 82. In Zherka, we both confirmed that the “holding in Bogle survives Bruen,”

, and rejected an as-applied challenge to § 922(g)(1), “conclud[ing] that

the Second Amendment does not bar Congress from passing laws that disarm

convicted felons, regardless of whether the crime of conviction is nonviolent,” id.

at 93.

* * *

We have considered Lesane’s remaining arguments and find them to be

without merit. 1 Accordingly, we AFFIRM the judgments of the district court.

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

1 In addition, we deny Lesane’s motion for a judicial writ as moot but grant his application to seal his motion for the writ.

11