19

- 3521
United States v. Van Manen

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 ORD ER 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 TO 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 20 th da y of April

, two thousand twenty

- one

.

PRESENT:
G UIDO C ALABRESI

, S USAN L. C ARNEY

, W ILLIAM J. N ARDINI

, Circuit Judges

.

_________________________________________

U NITED S TATES OF A MERICA

,
Appellee

,

v. No. 19

- 3521

P AUL V AN M ANEN

,

Defendant

- Appell ant

. *

_________________________________________

FOR APPELLANT : D ONALD J. Y ANNELLA I II, E SQ
., New York

, NY

.

FOR APPELLEE : R YAN B. F INKEL ( Catherine Ghosh,
Danielle R. Sassoon

, on the brief ), Assistant
U.S. Attorneys, for Audrey Strauss, United

* The Clerk of Court is directed to amend the caption to conform to the above.2 States Attorney for the Southern District
of New York , New York, NY

.

Appeal from a judgment of the United States District Court for the Southern District 1

of New York ( Crotty

, J. ). 2

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 3

ADJUDGED, AND DECREED that the judgment entered on October 16, 2019, is 4

AFFIRMED

. 5
Following a jury trial, Defendant

- Appellant Paul Van Manen was found guilty of 6
conspiring to distribute and possess with the intent to distribute heroin and fentanyl 7
resulting in serious bodily injury and death, in violation of 21 U.S.C. §§ 846, 841(b)(1)( A), 8
and 841(b)(1)(C)

. 1 Van Manen appeals from the j udgment of the United States District 9

Court for the Southern District of New York ( Crotty

, J. )

, entered on October 16, 2019, 10

sentenc ing him principally to a term of imprisonment of 276 months

. Van Manen a rgu es 11
primarily that the District Court erred by (1) precluding testimony by his proposed expert

, 12

(2) admitt ing a n inculpatory statement as an “ excited utterance ” under Federal Rule of 13

Evidence 803(2) , and (3) restricting the scope of his counsel’s cross

- examination of two 14

witness es and thereby violating the Sixth Amendment’s Confrontation Clause

. We assume 15
the parties’ familiarity with the underlying facts, procedural history, and arguments on 16
appeal, to which we refer only as necessary to explain our decision to affirm

. 17

It is “the long held view of this Circuit that the trial judge is in the best position to 18
weigh competing interests in deciding whether or not to admit certain evidence.” United 19
States v. Sun My ung Moon , 718 F.2d 1210, 1232 (2d Cir. 1983)

. 2 We thus review the District 20
Court’s evidentiary rulings “for abuse of discretion, and will reverse only for manifest error.” 21
Cameron v. City of New York , 598 F.3d 50, 61 (2d Cir. 2010) ; United States v. Treac y , 639 F.3d 32, 22

1 This ap peal was initially consolidated with that of Van Manen’s codefendant, Michael Nunez. The Government moved to dismiss Nunez’s appeal, however, and an order granting that motion was entered on December 11, 2020. See No. 19

- 706, Dkt. 159.

2 Unless otherwise n oted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal quotation marks.3 42 (2d Cir. 2011) (applying abuse of discretion standard to evidentiary challenges brought 1

under the Confrontation Clause). 2

First, the District Court acted well within its discretion when it precluded admission 3

of the proffered testimony of Dr. Robert H. Powers , Van Manen’s proposed forensic 4
toxicology expert. It is a baseline requirement that expert testimony be based on “ reliable 5
principles and methods

. ” Fed. R. Evid. 702; see also Amorgianos v. Nat’l R.R. Passenger Corp.

, 6

303 F.3d 256, 265

- 67 (2d Cir. 2002). Van Manen failed to provide any basis for Dr. Powers’ s 7
opinions and any explanation as to how they were reached. Cf. id. at 266. In addition , Van 8
Manen has not shown any meaningful difference between his expert’s proposed t estimony 9
and that of the Government’s medical examiner regarding the mix of heroin and fentanyl 10
that killed Ogno, and thus admission of his expert’s testimony would have been cumulative

. 11

Second, it is a close question whether the District Court erred by allowing Jessica 12
Fyfe to testif y that, when police arrived minutes after she f ound Ogno’s body, she “ran over 13

to them ” and “ told them, I know who did this, I ’ ll tell you everything, I know where he lives, 14

and his name is Paul. ” App’x 3 94

- 95

. The District Court admitted this as an “excited 15

utterance
, ” s ee Fed. R. Evid. 803(2)

, and the G overnment maintains that Fyfe had the 16
requisite personal knowledge to satisfy Federal Rule of Evidence 602 based on her repeated 17
trips with Ogno to obtain drugs from Van Manen, among other things. Van Manen objects 18

that Fyfe ’ s statement was unduly speculative because it was based on her long

- term 19

observations, not any specific knowledge Fyfe had of Van Manen supplying the drug s that 20
caused Ogno ’ s death on that pa rticular day. 21

Even if the admission of Fyfe’s statement was error, we comfortably conclude that 22

any error was harmless. The case against Van Manen was very strong: F inancial records and 23
a text exchange between Ogno and Van Manen showed that , on the day of Ogno’s death, 24

Van Manen sold Ogno a “bunny”

— which Van Manen acknowledged was code for a bundle 25
of heroin. App’x 306, 316, 569

- 70. Only hours after the sale

, Fyfe discovered Ogno’s body at 26
his home, where police also found evidence of a heroin bundle near his body that, in the 27

Government’s words, “bore the hallmarks of heroin distributed by the [drug trafficking 28
organization]” of which Van Manen was a part

. Government’s Br. 10. As testimony 294 produced at trial revealed, a heroin bundle sold by Van Manen “[t]ypically ” consisted of 1

stamp

- free “ white glassine bags folded in half with a rubber band to keep it together.” 2
App’x 458 ; see also id. 241, 249

- 50, 342

- 43 , 425

- 26 ( describing these features as uncommon)

. 3
This description matched the drug evidence foun d at the place of Ogno’s death

. See 4

Government Ex. 211 (photograph of such bags )

. On this record

, Van Manen suffered no 5
undue prejudice from the admission of Fyfe’s statement. 6

F inally, we reject Van Manen’s argument that his Sixth Amendment rights were 7
violated by the District Court ’s modest limitation on the defense’s cross

- examination of 8

Detective s Arthur Truscelli and Daniel Slevin

. The District Court stopped counsel from 9
trying to elicit from the detectives a statement made by Fyfe during a police interview

, that 10

Ogno ’s brother told her Ogno asked him for the contact information of a drug dealer other 11

than Van Manen on the morning of Ogno’s death

. Van Manen maintains that his counsel 12

could have invoked Ogno’s request to his brother to show bias in the investigation by 13
implying that the police improperly failed to investigate a possible source of the fatal drugs 14

other than Van Manen

. Even assuming some basis for admitting such n ested hearsay

, 15

however, this statement ha d at best limited probative value

. Moreover, Van Manen was able 16

to impeach the d etectives’ testimony and raise questions about the integrity of the 17
investigation when he cross

- examined the two detectives without using the alleged 18

statement

. See United States v. Estrada , 430 F.3d 606, 621

- 22 (2d Cir. 2005). T he 19
Confrontation Clause “guarantees a criminal defendant the right to cross

- examine 20
government witnesses at trial

, ” United States v. Figueroa , 548 F.3d 222, 227 (2d Cir. 2008)

, b ut 21

it does not “guarantee unfettered cross

- examination

, ” Alvarez v. Ercole , 763 F.3d 223, 230 22
(2d Cir. 2014)

. On this record, w e cannot say the District Court’s decision to limit Van 23

Man en’s cross

- examination of Detectives Truscelli and Slevin exceeded the permissible 24

bounds of its discretion

. 25

* * * 26

27

285 We have considered Van Manen’s remaining arguments and find in them no basis for 1

vacatur

. For the foregoing reasons, the judgment of the District Court is AFFIRMED

. 2

3

FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court 5