1 18-2028 United States v. Salazar 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 18 th day of December, two thousand nineteen. Present: B ARRINGTON D. P ARKER , D EBRA A NN L IVINGSTON , J OSEPH F. B IANCO , Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 18-2028-cr D EVAUGHN S ALAZAR , AKA S NAKE , Defendant-Appellant

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_____________________________________ For Appellee: S EAN C. E LDRIDGE , Assistant United States Attorney, for James P. Kennedy, United States Attorney for the Western District of New York, Rochester, NY For Defendant-Appellant: A VIK K. G ANGULY (Anjan K. Ganguly, on the brief ), Ganguly Brothers, PLLC, Rochester, NY Appeal from a judgment of the United States District Court for the Western District of New York (Siragusa, J .).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Devaughn Salazar appeals from his conviction for, inter alia , possession of cocaine with intent to distribute, in violati on of 21 U.S.C. § 841, and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S. C. § 924. Salazar challenges the sufficiency of the evidence presented to the jury and the distri ct court’s denial of his motion for a mistrial. We assume the parties’ familiarit y with the underlying facts, the procedural history of the case, and the issues on appeal. I. Sufficiency of the Evidence “We review de novo a challenge to the sufficiency of the evidence underlying a criminal conviction.” United States v. Lebedev , 932 F.3d 40, 48 (2d Cir. 2019). “[T]he relevant question is whether, after view ing the evidence in the light mo st favorable to the prosecution,

any rational trier of fact could have found th e essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Where, as here, the relevant offense involves possession of a c ontrolled substance, “[l]ay testimony and circumstantial evidence may be sufficient, without the introduc tion of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction.” United States v. Bryce , 208 F.3d 346, 353 (2d Cir. 1999). Additionally, a defendant’s admission to law enforcement cannot, st anding alone, sustain a conviction. Id. at 354. Rather, the inculpatory statement must be corroborat ed by “substantial inde pendent evidence which would tend to establish the trustworthiness of the statement.” Opper v. United States , 348 U.S. 84, 93 (1954) (quoted in Bryce , 208 F.3d at 354); see also Smith v. United States , 348 U.S. 147, 152–53 (1954); United States v. Irving , 452 F.3d 110, 118 (2d Cir. 2006).3 Salazar contends that Kevin Krowiak’s testimony is not “substantial independent evidence” corroborative of his ad mission that he gave Krowiak co caine in exchan ge for a gun and that, as a result, the evidence was lega lly insufficient to sustain his conviction. Opper , 348 U.S. at 93. Not so. Krowiak’s testimony closel y aligns with Salazar’s written statement on the central elements of the transaction. Both st ated that Krowiak contac ted Salazar regarding a .40 caliber pistol, that they met in the parking lot of a Tops gr ocery store, and that Salazar examined the pistol before giving Krowia k cocaine. In sum, Krowiak’s testimony and Salazar’s statement are in acco rd on the “essential facts.” Opper , 348 U.S. at 93; Irving , 452 F.3d at 118. Salazar argues that Krowiak’ s testimony failed to corrobora te his own admission that the substance he provided to Krowiak was cocaine. But this is incorrect. Krowiak admitted that he had used cocaine “multiple times,” J.A. 243, “seen cocaine in the past” on “plenty” of occasions, J.A. 242, seen cocaine packaged in th e same way as the substance he received from Salazar, viz. , in “a plastic bag knotted o ff,” J.A. 242, and “the substan ce that [he] received [was] consistent with what [he] knew to be cocaine,” J.A. 243. Additionally, Krowiak traded a pistol for the substance, indicating that the “white pow dery substance,” J.A. 242, was of high value. While Krowiak did not ingest the cocaine himself, we have “decline[d] to give a checklist or formula for sufficiency.” Bryce , 208 F.3d at 353. And we have previously deemed similar descriptions to the one given by Kr owiak sufficient to establish that a substance is an illicit drug, even in circumstances in which th e defendant himself did not attest to this fact, as Salazar did in his written statement. See, e.g. , United States v. Arroyo , 600 F. App’x 11, 16 (2d Cir. 2015) (“The witnesses described the cocaine’s physical appearance, used the words ‘coke’ and ‘cocaine’ when purchasing the drugs . . . , and then snorted the white powdery substance.”).4 In sum, the corroborative evidence of Krow iak’s testimony “implicate[s] the accused” and “show[s] that a crime has been committed.” Wong Sun v. United States , 371 U.S. 471, 489 n.15 (1963) (quoting Smith , 348 U.S. at 154). Thus, Salazar’s admission to law enforcement, coupled with Krowiak’s testimony, c onstitutes sufficient evidence su ch that a “ra tional trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson , 443 U.S. at 319. II. Mistrial “We review for abuse of discretion a district co urt’s denial of a motion for a mistrial . . . .” United States v. Zemlyansky , 908 F.3d 1, 9 n.3 (2d Cir. 2018). Such a motion “may be granted where something has occurred to interfer e with the defendant's right to a fair trial.” United States v. Yannai , 791 F.3d 226, 242 (2d Cir. 2015). Here , Salazar’s mistrial motion was predicated on Krowiak’s statement that he “had purchased [cocaine] from [Salazar] in the past.” J.A. 244. Salazar objected to th at testimony, the objection was sust ained, and the district court struck the testimony and ordered the jury “not to consider it in a ny way in reaching your determination in this case.” J.A. 244. Neverthe less, Salazar contends that Krowiak’s remark was so devastating that the jury likely disregar ded the court’s instruc tion and considered the stricken testimony. We disagree. To overcome the pr esumption that a jury follows instructions to disregard evidence, there must be “an overwhelming probab ility that the jury [was] unable to follow the court’s instructions and a strong likelihood that the effect of th e evidence [was] devastating to the defendant.” United States v. Mussaleen , 35 F.3d 692, 695 (2d Cir. 1994) (quoting Greer v. Miller , 483 U.S. 756, 766 n.8 (1987)). Salazar ha s failed to make such a showing.5 Krowiak’s passing reference to Salazar’s prior trafficking in narcotic s is a far cry from the inflammatory evidence that we have previously deemed sufficient to warrant a new trial. See, e.g. , United States v. Williams , 585 F.3d 703, 710 (2d Cir. 2009) (“ [T]he jury could not have ignored the parade of guns a nd photographs that the Government put before it, which was a major focus of the prosecu tor's closing arguments.”); United States v. Colombo , 909 F.2d 711, 715 (2d Cir. 1990) (reference to rape and sodomy in trial for RICO and cons piracy to distribute narcotics overcomes presumption that jury followed instruction and disregarded evidence). Rather, the testimony at issue here is more akin to situations where we have upheld a trial court’s denial of a mistrial motion. See, e.g. , Mussaleen , 35 F.3d at 695 (one witness blurting out that defendant had a gun and another w itness noting that he “had a wa rrant for an unrelated matter” insufficient to overcome presumption); United States v. Hill , 658 F. App’x 600, 604 (2d Cir. 2016) (referring to defendant as a “gun man” in a trial for murder did not warrant a mistrial). Nor was Krowiak’s statement partic ularly devastating in light of his other testimony, discussed above, indicating that the substa nce that Salazar provided hi m in exchange for the gun was cocaine. Accordingly, the district court did not abuse its discretion in denying Salazar’s motion for a mistrial. * * * We have considered Salazar’s remaining argume nts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk