10-2840-cr(L) United States v. Rodriguez **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER** **”). A**  **PARTY CITING 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 21 stday of November, two thousand twelve. 4 5 PRESENT: JOHN M. WALKER, Jr., 6 RICHARD C. WESLEY, 7 PETER W. HALL, 8 Circuit Judges

. 9 10 11 12 UNITED STATES OF AMERICA, 13 14 Appellee , 15 16 -v.- Nos. 10-2840-cr (L), 17 10-3104-cr (con) 18 19 LUIS RODRIGUEZ, 20 21 Defendant-Appellant. 22 23 24 FOR APPELLANT: Michael A. Young, New York, NY. 25 26 FOR APPELLEE: David C. James, Robert L. Capers and 27 Licha M. Nyiendo, Assistant United States 28 Attorneys, forLoretta E. Lynch, United 29 States Attorney for the Eastern District 30 of New York, Brooklyn, NY. 31 32 332 Appeal from the United States District Court for the 1 Eastern District of New York (Trager, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4
**AND DECREED**that the judgment of the United States District 5 Court for the Eastern District of New York be **AFFIRMED**
. 6 Defendant-appellant Luis Rodriguez appeals from an 7 August 2, 2010 judgment of conviction entered by the United 8 States District Court for the Eastern District of New York 9 (Trager, J. ), following a jury trial and the district 10 court’s denial of Rodriguez’s motion for a new trial. 11 Rodriguez was convicted of conspiracy to distribute and 12 possess with intent to distribute five kilograms or more of 13 cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 14 and 846; two counts of murder in furtherance of a drug 15 conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A); two 16 counts of murder through use of a firearm, in violation of 17 18 U.S.C. § 924(j)(1), and using and carrying a firearm 18 during and in relation to a drug-trafficking crime, in 19 violation of 18 U.S.C. § 924(c)(1)(A)(iii). 20 On appeal, Rodriguez maintains that (1) the government 21 violated its disclosure obligations under Brady v. Maryland , 22 373 U.S. 83 (1963); (2) there was insufficient evidence to 23 support his convictions; (3) the district court erred in 243 allowing him to represent himself; (4) the district court 1 erred in denying Rodriguez’s motion to have a witness 2 psychiatrically evaluated; and (5) a cooperating witness 3 perjured himself. The panel has reviewed the briefs and the 4 record in this appeal and agrees unanimously that oral 5 argument is unnecessary because “the facts and legal 6 arguments [have been] adequately presented in the briefs and 7 record, and the decisional process would not be 8 significantly aided by oral argument.” Fed. R. App. P. 9 34(a)(2)(C). We assume the parties’ familiarity with the 10 facts and procedural history of the case. 11 A district court’s denial of a motion for a new trial 12 is reviewed for abuse of discretion. United States v. Wong , 13 78 F.3d 73, 78 (2d Cir. 1996). The district court in this 14 case concluded that no new trial was merited under Brady

. 15 Under Brady , “‘the suppression by the prosecution of 16 evidence . . . violates due process’” if the evidence is 17 favorable to the accused, the evidence was willfully or 18 inadvertently suppressed by the prosecution, and the 19 suppression results in prejudice. United States v. Douglas , 20 525 F.3d 225, 244-45 (2d Cir. 2008) (quoting Brady , 373 U.S. 21 at 87). The suppression of immaterial evidence, even if it 224 is favorable to the accused, does not violate Brady

. Kyles 1 v. Whitley , 514 U.S. 419, 434 (1995). To demonstrate 2 materiality, the accused must show that “the favorable 3 evidence could reasonably be taken to put the whole case in 4 such a different light as to undermine confidence in the 5 verdict.” Id . at 435. Although suppressed information need 6 not itself constitute admissible evidence, it must at least 7 “potentially lead[] to admissible evidence favorable to the 8 defense.” United States v. Rodriguez , 496 F.3d 221, 226 n.4 9 (2d Cir. 2007). 10 Rodriguez’s Brady challenge is based on a number of 11 statements by government informants suggesting that one of 12 the people whose murder was the subject of this case was 13 killed by someone other than Rodriguez’s co-conspirators and 14 for a different reason. The district court analyzed these 15 statements in detail in reference to a similar motion 16 brought by Miguel Santos, one of Rodriguez’s co-defendants, 17 see United States v. Santos , No. CR-01-537, 2010 WL 2985913, 18 at *5-9 (E.D.N.Y. July 27, 2010), aff’d United States v. 19
Santos , No. 10-3218-cr, 2012 WL 2298887, at *2-3 (2d Cir. 20 June 19, 2012), and cited this reasoning when denying 21 Rodriguez’s motion. In our view, the district court 225 correctly concluded in Santosthat “none of the informants’ 1 statements would be admissible at trial or could possibly 2 lead to admissible evidence [because t]hey are all hearsay 3 or speculation.” Id. at *6. In addition, substantial 4 corroborating evidence, including telephone records and 5 ballistic evidence, linked Santos and Rodriguez to the 6 shooting. Id. at *7. Contrary to Rodriguez’s arguments, 7 the court’s ruling depended on its qualitative analysis of 8 the evidence rather than the timing of Santos’s trial, and 9 thus the reasoning from Santoswas properly applied in 10 Rodriguez’s case as well. There was no abuse of discretion 11 in the court’s ruling that the government’s failure to 12 disclose the informants’ statements did not merit a new 13 trial. 14 Rodriguez’s challenge to the sufficiency of the 15 evidence is reviewed de novo

. United States v. Abu-Jihad , 16 630 F.3d 102, 134 (2d Cir. 2010). He maintains that 17 evidence regarding a particular amount of stolen money, 18 which allegedly represented the proceeds from a particular 19 quantity of cocaine, was insufficient to establish that 20 cocaine was the drug involved. The focus of the indictment, 21 however, was not on the particular transaction yielding the 226 money at issue but on the general activities of the 1 organization, and the money obtained was not the only 2 evidence indicating that the conspirators were involved with 3 cocaine. There was also testimony regarding the purchase 4 and transport of cocaine, and the testimony must be taken as 5 true in a challenge to sufficiency of the evidence. United 6
States v. Desena , 287 F.3d 170, 177 (2d Cir. 2002). 7 The Sixth Amendment guarantees defendants the right to 8 represent themselves at trial so long as “that decision is 9 made intelligently and knowingly, with full awareness of the 10 right to counsel and the consequences of its waiver.” 11 United States v. Tracy , 12 F.3d 1186, 1191 (2d Cir. 1993) 12 (citing Faretta v. California , 422 U.S. 806, 835-36 (1975)). 13 In determining whether a waiver was adequate, “[w]e need not 14 analyze the district court’s every word, so long as the 15 record as a whole demonstrates that the defendant knowingly 16 and intelligently waived [his] right to counsel.” Torres v. 17 United States , 140 F.3d 392, 401 (2d Cir. 1998). In this 18 case, the record reflects that the district court engaged in 19 repeated discussions with Rodriguez regarding his choice 20 over the course of four separate status conferences, warned 21 him about the potential practical difficulties of conducting 22*Rodriguez’s perjury claim fails. Rodriguez has offered no evidence that Medina did not believe his plea was valid or that he faced a maximum sentence of life imprisonment–especially as Medina’s plea agreement states that his maximum possible sentence was life imprisonment. Accordingly, even if Medina’s plea is invalid under Smith v. United States , 360 U.S. 1 (1959), there is no basis for finding that Medina committed perjury. 7 a trial, and strongly counseled against waiving his right to 1 counsel because it was possible that the government would 2 seek the death penalty. Rodriguez repeatedly assured the 3 court that he wanted to control his representation and the 4 arguments that were advanced on his behalf. In addition, 5 not only had Rodriguez been through another federal criminal 6 trial before this one, but he had chosen to represent 7 himself during his previous sentencing as well. The 8 district court did not err in concluding that Rodriguez 9 “understood [his] rights, knew [his] options, was aware of 10 the risks and voluntarily waived [his] right to counsel.” 11
See Torres , 140 F.3d at 401. 12 We have considered all of Rodriguez’s remaining 13 arguments and find them to be without merit. *For the 14 reasons stated above, the judgment of the district court is 15

**AFFIRMED**
. 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20