1 15

‐ 2329

‐ cr

United States v. Figueroa

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 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, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 27 th day of September, two thousand sixteen. 3

4

PRESENT: PIERRE N. LEVAL, 5

RAYMOND J. LOHIER, JR., 6

Circuit Judges

, 7

EDWARD R. KORMAN, 8

District Judge

. * 9

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 10

11

UNITED STATES OF AMERICA, 12

13

Appellee

, 14

15

v. No. 15

‐ 2329

‐ cr 16

17

LUIS FIGUEROA, 18

19

Defendant

‐ Appellant

. 20

21

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 22

* The Honorable Edward R. Korman, United States District Court for the Eastern

District of New York, sitting by designation.2 FOR DEFENDANT

‐ APPELLANT: C HRISTOPHER B OOTH

, L IPMAN & B OOTH 1

LLC, New York, NY. 2

3

FOR APPELLEE: E DWARD B. D ISKANT

, Assistant United 4

States Attorney (Joshua A. Naftalis, 5

Adam S. Hickey, Assistant United 6

States Attorneys, on the brief ), for Preet 7

Bharara, United States Attorney for the 8

Southern District of New York, New 9

York, NY. 10

11

Appeal from a judgment of the United States District Court for the Southern 12

District of New York (Andrew L. Carter, Jr., Judge ). 13

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 14

AND DECREED that the judgment of the District Court is AFFIRMED. 15

Defendant

‐ appellant Luis Figueroa appeals from a judgment of conviction 16

entered on July 17, 2015, following a four

‐ week jury trial in which Figueroa was 17

found guilty of conspiracy to distribute and possess with intent to distribute cocaine, 18

in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); unlawful possession of a firearm 19

following a felony conviction, in violation of 18 U.S.C. § 922(g); and possession of a 20

firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). We 21

assume the parties’ familiarity with the facts and record of the prior proceedings, to 22

which we refer only as necessary to explain our decision to affirm. 23

1. Suppression Motions 24

Figueroa challenges several of the District Court’s rulings denying his 25

suppression motions related to seized evidence and various pre ‐ and post

‐ arrest 26

statements. 27

First, Figueroa argues that evidence seized from his residence should be 28

suppressed because the Drug Enforcement Administration (“DEA”) “engaged in 29

improper pre

‐ authorization data collection” when his cellphone provider disclosed 303 the location of his cellphone to a DEA agent. Even assuming without deciding that 1

the DEA engaged in an unreasonable search of Figueroa’s cellphone location 2

information, we see no reason to disturb the District Court’s conclusion that 3

“excising the entirety of” the paragraph containing the location information from the 4

affidavit, “the remaining averments provide more than adequate support for a 5

probable cause determination.” See United States v. Martin, 426 F.3d 68, 73

‐ 74 (2d 6

Cir. 2005). 7

Second, Figueroa also claims that the affidavit in support of the Government’s 8

November 15, 2011 warrant application contained material omissions designed to 9

“avoid alerting the issuing court [to the fact] that a far more intrusive search” had 10

already been completed. In particular, he points out that the affidavit excluded the 11

more specific intersection location information for the cellphone, referring instead 12

only to the fact that the cellphone was “located in Yonkers, New York.” But the 13

inclusion of the more precise cell

‐ location information would have buttressed rather 14

than undermined the court’s probable cause determination, which was sufficiently 15

supported by the remaining statements in the affidavit. See United States v. 16

Thomas, 788 F.3d 345, 350 (2d Cir. 2015), cert. denied, 136 S. Ct. 848, 193 L. Ed. 2d 750 17

(2016). 18

Third, Figueroa contends that a second warrant for cell

‐ cite location data 19

related to the cellphone of Keisa Hernandez, his co

‐ habitant, was improper because it 20

relied on information obtained pursuant to the November 15 warrant and because 21

“there was insufficient evidence that

. . . Hernandez was involved in drug dealing” 22

or that the apartment where Hernandez and Figueroa resided was the site of a multi 23

kilogram delivery of cocaine. 1 We agree with the District Court that the information 24

1 Because we affirm the District Court’s determination that the November 15 warrant

was not defective, we need not address Figueroa’s argument that the warrant for4 contained in the affidavit provided probable cause to believe that Figueroa was using 1

the apartment as a drug stash house and that Hernandez lived there, used the 2

cellphone that was the subject of the affidavit, and was involved in the drug 3

conspiracy with Figueroa. See United States v. Martin, 426 F.3d 68, 74 (2d Cir. 2005). 4

Figueroa argues that evidence obtained pursuant to the two residential 5

warrants should be suppressed because the warrant applications relied on 6

statements obtained in violation of Figueroa’s Miranda rights. He first claims that 7

the statement in which he denied living at the McLean or Rochambeau apartments 8

was made during a traffic stop prior to receiving Miranda warnings. But the record 9

supports the District Court’s finding that Figueroa was not in custody when he made 10

that statement, and we therefore disagree that it was obtained in violation of 11

Miranda. See United States v. Newton, 369 F.3d 659, 669 (2d Cir. 2004); United 12

States v. Wong Ching Hing, 867 F.2d 754, 756 (2d Cir. 1989). 13

Figueroa next focuses on a post

‐ arrest statement, made before he was advised 14

of his Miranda rights, in which he denied residing at the McLean apartment. In 15

particular, Figueroa argues that the DEA’s discussion after his arrest was likely to 16

elicit from him an incriminating response related to where he lived, in violation of 17

Rhode Island v. Innis, 446 U.S. 291 (1980). But we have no basis for disagreeing with 18

the District Court that Figueroa’s post

‐ arrest denials were not material to the 19

probable cause determination for issuing the warrant and that the remaining factual 20

allegations in the affidavit established probable cause. 21

Figueroa’s last challenge related to his post

‐ arrest statement made during a 22

standard “booking” process is also unavailing because it was in response to “the sort 23

Hernandez’s cellphone improperly relied on information obtained pursuant to the

November 15 warrant.5 of questions normally attendant to arrest and custody.” United States v. Gotchis, 1

803 F.2d 74, 79 (2d Cir. 1986) (quotation marks omitted). 2

For these reasons, we affirm the District Court’s denial of Figueroa’s various 3

suppression motions. 4

2. Evidentiary Rulings 5

In challenging the District Court’s various evidentiary rulings made at trial, 6

Figueroa first claims that the District Court improperly excluded (1) evidence 7

impeaching Frank Hylton, a Government witness who identified Figueroa and 8

testified that he had given drugs to Figueroa, and (2) expert testimony. Having 9

reviewed the impeachment evidence Figueroa sought to offer, we conclude that the 10

District Court’s decision to exclude it was not an abuse of discretion and did not 11

affect Figueroa’s substantial rights. See United States v. Purdy, 144 F.3d 241, 245

‐ 46 12

(2d Cir. 1998) (“Extrinsic evidence offered for impeachment on a collateral issue is 13

properly excluded.”) We further conclude that the District Court did not abuse its 14

discretion in precluding Figueroa from introducing the testimony of an expert in 15

police

‐ arranged identification. See Boyce v. Soundview Tech. Grp., Inc., 464 F.3d 16

376, 385 (2d Cir. 2006). We see no reason to disturb the District Court’s assessment 17

that the proffered witness was not qualified to testify as an expert at least in part 18

because the testimony would not be helpful to the jury “to understand the evidence 19

or to determine a fact in issue.” United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 20

1999) (quotation marks omitted). 21

We have considered all of Figueroa’s remaining arguments and conclude that 22

they are without merit. For the foregoing reasons, the judgment of the District 23

Court is AFFIRMED. 24

FOR THE COURT: 25

Catherine O = Hagan Wolfe, Clerk of Court 26