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United States v. Babilonia

United States Court of Appeals, Second Circuit

April 17, 2017

United States of America, Appellee,
Aisha Babilonia, Ruben Davis, AKA Bloddy Ruben, AKA Fat Man, AKA Fat Boy, Roger Key, AKA Sealed Defendant 1, AKA Luchie, Defendants-Appellants, Ruben Fernandez, AKA Pops, Richard Palmer, AKA P.O., AKA P.O.P., Pedro Marquez, AKA Burns, AKA Bern, Andrea Isaroon, AKA Chaz, Dennis Fredericks, AKA Ice, Clayton Mollette, AKA Killer, AKA Clay, Steven Herbert, AKA Atta, Shundu Davis, AKA Davis Shundu, James Martin, Dexter Erby, AKA Addi, AKA Dida, Youssouf Diomade, Moustapha Gueye, Khalilah Mattocks, AKA Lils, Jose Capriata, George Davis, AKA Chee Chee, Keith Purvis, AKA Kiz, Defendants.

          Argued: September 29, 2016

         On Appeal from the United States District Court for the Southern District of New York

         Appeal from a judgment of the United States District Court for the Southern District of New York (Stein, J.) convicting defendant-appellant Roger Key, after a jury trial, of charges relating to drug trafficking and murder-for-hire. Key appeals his convictions on several grounds, including the sufficiency of the evidence as to the pecuniary value element of conspiracy to commit murder-for- hire and the propriety of admitting evidence from warrantless searches of his car and apartment.


          Margaret Garnett, Assistant United States Attorney (Abigail Kurland, Assistant United States Attorney, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, New York, for Appellee.

          Robert Caliendo (Marc Fernich, on the brief), Law Office of Marc Fernich, New York, New York, for Defendant-Appellant Roger Key.

          Before: Chin and Carney, Circuit Judges, and Cogan, District Judge. [**]

          Chin, Circuit Judge:

         Defendant-appellant Roger Key appeals from a judgment of the district court (Stein, J.) convicting him of, inter alia, conspiracy to commit murder-for-hire and several drug- and firearm-related offenses. Key principally challenges the sufficiency of the evidence supporting his conviction for participating in the murder-for-hire conspiracy targeting Terry Harrison and the admission at trial of evidence seized during an August 6, 2012 car stop and search (the "Car Stop") and a September 19, 2012 search of Key's apartment (the "Apartment Search"). Because we conclude that the evidence offered at trial to prove the pecuniary value element of Key's conviction for conspiracy to commit murder-for-hire was sufficient to support the guilty verdict and that the challenged searches and seizures did not violate the Fourth Amendment, we affirm the judgment of the district court.[1]


         I. The Facts

         Key's appeal relates to charges arising out of his involvement in a Bronx- and Manhattan-based drug trafficking operation and the murder-for-hire plots targeting Terry Harrison, a rival drug dealer, and Matthew Allen, the abusive boyfriend of defendant-appellant Aisha Babilonia.[2] The following facts, generally undisputed, are summarized from the testimony at the suppression hearing, the district court's factual findings following the suppression hearing, and the transcript of the trial below. With respect to the district court's factual findings, we review for clear error. United States v. Hussain, 835 F.3d 307, 313 (2d Cir. 2016). With respect to the evidence presented at trial, we construe the facts "in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor." United States v. Rosemond, 841 F.3d 95, 99-100 (2d Cir. 2016).

         A. Background

         In 2010, Key was released from prison after serving several years on state manslaughter and federal narcotics convictions. Upon his release, and until his arrest in connection with the instant case in September 2012, Key distributed millions of dollars' worth of cocaine to drug organizations in the Bronx and upper Manhattan. One of Key's biggest customers was defendant-appellant Ruben Davis, who led a Harlem-based drug trafficking organization. Key's distribution operation used multiple stash houses around the Bronx and upper Manhattan and guns to protect their territory and attack rival dealers. Key also oversaw a group of young men who sold crack cocaine for him around the apartment building located at 321 East 153rd Street ("321").

         B. The Murder of Terry Harrison

         Terry Harrison, also known as "T-Money, " was another Bronx-based drug dealer and a rival of Key. Key and his associates were involved in an ongoing, violent dispute with Harrison and a local street gang, "GFC, " that sold drugs for him.

         In the summer of 2010, Matthew Davis ("Matt"), an associate of Key, approached Kevin Wilson about committing a murder.[3] Wilson and Matt knew each other, and Wilson was aware that Matt had recently returned home from prison. While Wilson was leaving his child's mother's house, a minivan pulled up, with Matt inside. Matt told Wilson to get into the van. Wilson did so; inside were Matt, the driver, and one or two people in the back.

         After exchanging pleasantries, Matt told Wilson that he needed Wilson to "dress someone up" for him. Tr. 907. Matt explained that he needed Wilson to kill someone for him, "like now." Tr. 907. One of the passengers in the back put a gun to Wilson's head, while Matt instructed Wilson that "you gonna do it or we gonna kill you." Tr. 907. Wilson agreed to commit the murder.[4] He gave Matt his phone number, and Matt said he would call Wilson. Wilson did not call the police or ask anyone else for help after his conversation with Matt.

         Matt called Wilson the next day and then went to meet him. They took a cab to 321, which Matt referred to as "Headquarters." There, Matt introduced Wilson to Kyle Harris, or "Beans, " another individual who sold drugs for Key. After Beans left, Matt introduced Wilson to Keith Burges, or "Cuzzo, " and the three of them walked into the lobby of 321. Beans returned to the lobby and retrieved two handguns from a staircase. He banged on a mailbox with his fist to open it and put the guns inside.

         Wilson spent three or four days with Matt and his associates at 321. During that time, Matt told Wilson that there had been a change of plans; Cuzzo would be the primary shooter, and Wilson would be the backup. Wilson understood this to mean he would be responsible for shooting at anyone who shot at Cuzzo. At no point prior to the murder did Wilson know the target's identity; he learned Harrison's name after he was arrested.

         Wilson never asked Matt why Matt wanted him to kill someone, who the target was, or what he would get in exchange. Wilson hoped to get money out of his agreement to kill Harrison, but no one discussed a specific dollar amount for Wilson's compensation prior to the murder. He hoped to become part of a team, with "people by [his] side." Tr. 919. He further testified that "Matt was basically telling me they was going to hold me down, that I was going to be good." Tr. 918. Wilson understood this to mean that Matt and his group would "hold me down, give me money, look out for me, watch over me, " and that this meant he would be "accepted with them." Tr. 918.

         A few days prior to the murder, Beans gave Wilson and Cuzzo the guns from the mailbox in the lobby of 321. Wilson received a silver .380 caliber gun and Cuzzo a silver revolver. Wilson and Cuzzo left the building and walked through the housing projects on Courtlandt Avenue. Wilson was carrying the gun in his waistband. Wilson did not know whom they were looking for, so he just followed Cuzzo. He understood that they were looking for the target of the murder plot. As they walked, a police car drove down the opposite side of the block. The car stopped and the officers jumped out. Wilson and Cuzzo, still carrying the guns from Beans, ran as the officers chased them. At some point, Wilson jumped over a gate and the gun fell to the ground. He continued to run. He had lost Cuzzo at this point. After waiting a couple of minutes, he returned to Headquarters and told the group, which included Joseph Tarean, or "T, " and a man known as "E-Wop, " that he had dropped the gun.

         Matt called Wilson and told him that he would have to pay for the gun if he did not find it. Wilson left the building and ran into T, who told him that the area was clear of police activity. Wilson retraced his steps and found the gun buried in the grass. He picked it up and returned to 321, where Matt, T, Beans, and others were hanging out. Key arrived and began talking to Matt, who then introduced Key to Wilson.

         Two or three days later, Wilson got a phone call from Matt, asking him to come up to Courtlandt Avenue. Wilson called Matt once he had arrived, and Matt told Wilson he was across the street in a van. Wilson got into the van. Later, Key pulled up in a black Jeep. Key and Matt began talking through their rolled-down windows. Wilson could not understand what they were saying and thought that they were speaking in code. They spoke for a few minutes.

         Wilson left the van to go to the store. When Wilson got back to the van, Matt drove him around the block and told Wilson to do what he had been asked to do initially. Wilson understood this to mean that Matt was asking him kill someone. Wilson agreed. Matt handed Wilson a silver revolver from a concealed compartment in the roof of the van. Matt described the target to Wilson as a black man with braids and let Wilson out on the sidewalk. Wilson looked in the barbershop where Matt told him the target would be but did not see anyone other than the barbers. Matt called Wilson numerous times to see what was going on. During one of these calls, Wilson realized that he was at the wrong barbershop and proceeded up the block to another barbershop.

         Matt provided Wilson with additional details regarding Harrison's appearance, and Wilson spotted Harrison walking towards him. Wilson ducked into a store, and Harrison and his friends entered the store behind Wilson. Wilson left the store and took another call from Matt, who expressed frustration that the shooting had not yet occurred. Matt told Wilson to "do what [he] got to do" and then run around the corner to Third Avenue, where Matt would pick him up in the minivan. Tr. 941. Wilson hid between two cars and moved the gun from his waistband to the front pocket of his sweatshirt. He then walked out from behind the cars towards Harrison and shot him three times. Harrison later died from the gunshot wounds.

         Wilson turned and ran to Third Avenue where he jumped into the van with Matt, Beans, and another individual. Wilson gave his sweatshirt and the gun to Beans and changed into another shirt that Matt gave him. Wilson told Matt he was not sure if he had killed Harrison. Matt let Wilson out of the minivan and told him to shower and relax.

         Later that night, Matt called Wilson and told him it was "pay day." Tr. 946. Wilson believed that he was going to get paid for the murder. Wilson went to Matt's house, where Matt was standing outside the van with Beans, Cuzzo, and Jamal Brooks. They all got into the van and drove to Manhattan. Once they reached their destination, Wilson and Matt got out and stopped at a grocery store. Key was standing across the street from the store, and they crossed over to talk to him. Key thanked Wilson for "handling that situation for him, " which Wilson understood to mean shooting Harrison. Tr. 948. Key then handed Wilson $1, 000 in cash. After paying Wilson, Key appeared to be in high spirits and told Wilson "that's how you get money." Tr. 949.

         C. The Car Stop

         Drug Enforcement Administration ("DEA") Special Agent John Livanis, assigned to the New York Field Division Strike Force, was involved in an ongoing investigation of Key that began in June 2012. Based on information provided by a confidential informant, Livanis and his team began conducting surveillance of Key.[5]

         In June 2012, Livanis observed a man, later identified as Key, leave a store with a large shopping bag, after the informant saw the man purchase a kilo press, a device used to package large quantities of drugs. On August 3, 2012, three days before the Car Stop, Livanis observed the same man leave 3427 Bruckner Boulevard, an apartment building in the Bronx, with a small gift bag and head to a body shop in Mount Vernon, New York, in the Nissan Maxima previously identified by the informant. The man brought the gift bag, which Livanis believed to contain either drugs or money, into the body shop and left without it.

         On August 6, 2012, the day of the Car Stop, Livanis, New York State Police Senior Investigator Frederick Cabbell, and a team of agents resumed surveillance, looking for the Maxima. The agents saw a man park a Toyota Sienna, which had no front license plate, across from 3427 Bruckner Boulevard. Livanis recognized the man from his previous surveillance operations but did not convey his suspicion to anyone else on the team. The man got out of the Sienna and looked up and down the block repeatedly, even though there was no car traffic on the street. Cabbell found the man's behavior "suspicious, " App. 251, and based on his experience, he believed that the man was checking for police or other observers in the area.

         After crossing the street, the man entered the building. He reappeared within minutes, holding a green plastic bag with a weighted, brick- shaped object inside. He walked back across the street quickly and got into the driver's seat of the Sienna. Based on their observations and experience, both ...

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