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UNITED STATES v. BROWN (2020)

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United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. Iyibia BROWN, Defendant-Appellant.1

19-2049

Decided: May 20, 2020

PRESENT: BARRINGTON D. PARKER, SUSAN L. CARNEY, STEVEN J. MENASHI, Circuit Judges. FOR DEFENDANT-APPELLANT: Kenneth A. Caruso, White & Case LLP, New York, N.Y. FOR APPELLEE: Emily Deininger, Assistant United States Attorney (Thomas McKay, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, N.Y.

SUMMARY ORDER

Defendant Iyibia Brown appeals from the judgment imposed June 27, 2019, sentencing her to thirty-six months’ imprisonment. A jury convicted Brown for conspiracy to commit a bank robbery and for aiding and abetting a bank robbery, in violation of 18 U.S.C. §§ 371 and 2113(a), because of her role in the robbery of KeyBank in New City, New York, on February 9, 2018. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal.

I.

Brown argues that there is insufficient evidence to sustain her convictions because the government never proved that she knew a bank—as opposed to some other target—would be robbed. We reject her argument because there was sufficient evidence from which a rational jury could infer such knowledge.

A “defendant challenging the sufficiency of the evidence that led to his conviction at trial bears a heavy burden, as the standard of review is exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal citation and quotation marks omitted). “[W]e must view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor, and deferring to the jury's assessment of witness credibility and its assessment of the weight of the evidence,” and “we will uphold the judgments of conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal citation and quotation marks omitted).

There was sufficient evidence from which a rational jury could find that Brown knew a bank was the target of the robbery. Cell phone records demonstrated that in the 30 hours before the robbery, Brown called both of the men who later committed the bank robbery (Jason Parris and Demetrice Young), even though she had no prior relationship with one of them, and in turn those two men called each other repeatedly. Brown acknowledges on appeal that the jury rationally could view these phone records as evidence of a plan to commit a robbery, but she disputes whether the calls allow an inference of the robbery's target. See Appellant's Reply Br. 3 (“Nothing in this evidence points toward a bank, as distinct from a residence or the gas station/convenience store.”). But the jury rationally could infer that when Brown, Parris, and Young exchanged calls to plan a robbery that would occur just hours later, they would have discussed the target of the intended robbery—a bank—especially because Brown does not contend that any location other than a bank was ever considered or discussed.

In addition to those phone records, the government introduced evidence demonstrating that on the day of the robbery, Brown drove Parris and Young to a gas station across the intersection from and in full view of the bank, then she drove them past the bank before making a U-turn and circling back to the road behind the bank on the other side of the block. A rational jury could infer that Brown knew Parris and Young were scouting the bank from the gas station, and then she circled the bank to find a place to park for an easy escape. Along with the phone records, this behavior indicates that Brown had knowledge that the target was a bank.

Parris's and Young's behavior as they approached Brown's car also indicated that they had committed a bank robbery. An eyewitness in the bank's parking lot said that one of the robbers was carrying “a pretty big wad of cash” in his hands—she estimated it was 12 to 18 inches thick—as he ran away from the bank toward Brown's car, App'x 38-39, and a bundle of one-hundred-dollar bills wrapped in a paper band reading “KeyBank Branch 0044732” was recovered in the snow along the tracks to Brown's car. Supp. App'x 140, 220. Brown testified that Parris changed clothes before he even got into the car, with Young doing the same as soon as he was in the back seat. App'x 113-14. The jury reasonably could have concluded that Brown saw these indications of a bank robbery before she decided to drive Parris and Young away from the scene.

Moreover, as Brown acknowledges, a jury “is free to draw negative inferences from an untruthful witness's testimony as long as there is affirmative testimony to supplement or corroborate those negative inferences.” United States v. Eisen, 974 F.2d 246, 259 (2d Cir. 1992). As discussed above, there was affirmative evidence pointing to Brown's knowledge that the target was a bank, and that evidence was bolstered by Brown's untruthful testimony on that same topic. In particular, Brown testified that she did not know the target was a bank and denied having heard Young and Parris talk about robbing a bank. But she was impeached with a prior statement taken after her arrest in which she had said that she overheard Parris and Young say they were “going over to KeyBank” and would “[j]ust walk in there and get the money and go.” App'x 138-39. Brown stated that she thought they were “joking” about robbing the bank, but the jury could decline to credit that explanation and draw a negative inference from Brown's untruthful testimony that she had not heard Parris and Young discussing a bank. Brown also testified that she repeatedly made untruthful statements to the police after her arrest, including providing several versions of a false timeline of her activity during the day of the robbery. App'x 149; see also id. at 159 (testifying that she lied to police about her reaction upon seeing Parris and Young running back to the car); id. at 162 (same, about what Parris and Young had said about getting money from a bank). Brown also testified that the only reason she called Young before the robbery was because she had seen his number on Parris's prior phone bills and was curious about whose number it was, but the jury was shown evidence demonstrating that Young's number would not have appeared on Parris's prior phone bills because no calls were made to that number earlier than the week before the robbery. See Supp. App'x 73. These false exculpatory statements provided evidence of consciousness of guilt and therefore additional circumstantial evidence of guilt. United States v. Edwards, 834 F.3d 180, 200 (2d Cir. 2016).

Brown relies on United States v. Di Stefano, 555 F.2d 1094 (2d Cir. 1977), a case in which this court found insufficient evidence to sustain convictions for conspiracy and aiding and abetting a bank robbery. In that case, the robbers had brought the defendant to the bank in advance of the robbery “to see if the bank had a guard or cameras” but they “deliberately did not discuss the robbery with [the defendant] during their ride to the bank” and “there was no evidence that [they] ever informed [the defendant] of th[eir] decision” to rob it. Id. at 1103. The defendant was not present at the robbery and did not otherwise participate in it. This court concluded that “[t]here is no evidence that [the defendant] was aware of the plan to rob the bank ․ or of their decision on the morning of May 28, 1976 to commit the robbery that day.” Id. at 1103 n.8. Here, by contrast, there is evidence from which a jury could infer such awareness, and it receives support from Brown's untruthful testimony.

For these reasons, we conclude that there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Brown knew a bank was the intended target of the robbery.

II

We also reject Brown's two challenges to the district court's jury instructions.

Relying on Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), Brown first argues that, with respect to the aiding-and-abetting charge, “the district court committed plain error when it failed to instruct the jury that the Government was required to prove that Brown had ‘advance knowledge’ of the bank robbery” at a time when she could still opt to “ ‘walk away.’ ” Appellant's Br. 38, 40.

The government argues that Rosemond does not apply outside the context of a “compound” or “double-barreled” offense, such as the statutory crime considered in that case. Rosemond, 572 U.S. at 71, 134 S.Ct. 1240. Yet even assuming that Rosemond applies to this case, the district court's jury instructions complied with it. The jury was required to find that Brown “associate[d] herself with the criminal venture knowingly and willfully” and that she sought “by her actions to make the criminal venture succeed.” Supp. App'x 190. The “criminal venture” meant “the crime of bank robbery,” id., and “willfully” meant “done knowingly and purposely with an intent to do something the law forbids,” which is to say that her “actions must have been the product of her conscious objective, with a bad purpose either to disobey or to disregard the law, rather than a product of a mistake or accident, mere negligence, or some other innocent reason,” id. at 188. If the jury followed these instructions—and we presume it did, see Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)—then Brown could be found guilty only if she knew that the crime was specifically a bank robbery and that she had that knowledge at a point at which she could make a conscious and willful decision to aid the bank robbery. If Brown were unable to “walk away,” she would not have been acting willfully. These instructions satisfy Rosemond’s advance-knowledge requirement. See United States v. Ventura, 742 F. App'x 575, 579 (2d Cir. 2018) (summary order) (holding that the district court's instructions complied with Rosemond because “[i]t is difficult to see how a defendant might accomplish [the act of facilitating or encouraging the use, carrying, or possession of a firearm] without advance notice that a gun would be used”).

Brown's second argument regarding the jury instructions is that the district court should have clarified, “with ‘precision’ and ‘in plain words,’ ” that knowledge of a robbery of targets other than a bank was insufficient for conviction. Appellant's Reply Br. 24 (quoting United States v. Garguilo, 310 F.2d 249, 254 (2d Cir. 1962)). This argument is unpersuasive because, as noted above, the district court repeatedly instructed the jury that it had to find that Brown knew the target was a bank.

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

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