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17-914-cr 

United States v. Dominguez

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 

ASUMMARY 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 27th day of February, two thousand eighteen. 

PRESENT: 

BARRINGTON D. PARKER,

PETER W. HALL, 

RAYMOND J. LOHIER, JR., 

Circuit Judges. 

UNITED STATES OF AMERICA, 

Appellee, 

v. No. 17-914-cr 

ALVARADO DOMINGUEZ, AKA JOCHI, 

Defendant-Appellant, 

MARTIN AVALO, ANDY MACCOW, CARLOS VALLEJO,

AKA YAYO, KROUCHE DELEON, 

 Defendants. 

Appearing for Appellee: HAGAN SCOTTEN, Assistant United States Attorney, 

(David W. Denton, Jr., Daniel B. Tehrani Assistant 

United States Attorneys, on the brief), for Geoffrey S. 

Berman, United States Attorney for the Southern 

District of New York, New York, N.Y. 
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Appearing for Appellant: MEREDITH S. HELLER, Law Office of Meredith S. Heller, 

PLLC, (Ira D. London, London & Robin, on the brief), 

New York, N.Y. 

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

District of New York (Pauley, III, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED. 

Defendant Alvarado Dominguez appeals from a judgment of conviction entered 

upon a jury verdict finding him guilty of one count of conspiracy to commit Hobbs Act 

robbery in violation of 18 U.S.C. § 1951, one count of attempted Hobbs Act robbery in 

violation of 18 U.S.C. § 1951, and one count of firearms possession during the Hobbs 

Act conspiracy and attempted robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). We 

assume the parties’ familiarity with the underlying facts, the procedural history of 

the case, and the issues on appeal. 

Dominguez asserts that the district court erred in conditionally ruling that 

cross-examination of a cooperating government witness about the authenticity of the 

gun used in the conspiracy and attempted robbery would open the door for the 

government to introduce evidence relating to a 2006 home invasion robbery under 

Federal Rule of Evidence 404(b). We conclude Dominguez’s failure to challenge the 

district court’s adverse decision about the Rule 404(b) evidence, by pursuing the 

defense and having the evidence admitted, constitutes a waiver of any claim of error 
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in the court’s decision. See United States v. Ortiz, 857 F.2d 900, 906 (2d Cir. 1988). 

The court ruled that it would admit evidence of Dominguez’s prior participation in 

the 2006 home invasion robbery if defense counsel pursued a defense of the firearm 

not being real or operable, but the effect of the court’s decision remained inchoate 

because defense counsel did not insist on making that argument, and the evidence of 

the previous robbery was never admitted. This Court is therefore precluded from 

reviewing this claim on appeal. See id. at 905–06. As the panel in Ortiz held, the 

proper method to “preserve a claim of error in similar circumstances is to take the 

position that leads to the admission of the adverse evidence, in order to bring a fully 

developed record to this Court. Otherwise, as in Luce, the reviewing court is obliged 

to indulge in unacceptable appellate speculation.” Id. at 906 (citing Luce v. United 

States, 469 U.S. 38 (1984)). For the foregoing reasons, we hold that Dominguez 

waived any appellate claim based on the district court’s conditional ruling regarding 

the Rule 404(b) other acts evidence. 

Having considered Dominguez’s double jeopardy and collateral estoppel 

claims, we conclude they also lack merit. Dominguez was neither prosecuted for, nor 

convicted of, the instant conspiracy and attempted robbery charges in the proceeding 

in which he pled guilty to conspiring to burglarize pharmacies before Judge Carter. 

Even if Judge Carter considered the conspiracy and attempt in sentencing 

Dominguez for the pharmacy burglaries, that consideration does not implicate double 

jeopardy concerns. See Witte v. United States, 515 U.S. 389, 398 (1995) (“[W]e 

specifically have rejected the claim that double jeopardy principles bar a later 
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prosecution or punishment for criminal activity where that activity has been 

considered at sentencing for a separate crime.” (citing Williams v. Oklahoma, 358 

U.S. 576 (1959))). Nor did the district court in the instant case try or punish 

Dominguez on any charges but the conspiracy and attempted Hobbs Act robbery and 

gun charges relating to the home invasion. 

For the bar of collateral estoppel to apply: 

(1) the issues in both proceedings must be identical, (2) the issue 

in the prior proceeding must have been actually litigated and 

actually decided, (3) there must have been a full and fair 

opportunity for litigation in the prior proceeding, and (4) the issue 

previously litigated must have been necessary to support a valid 

and final judgment on the merits. 

Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986). The burden is on the 

defendant “to establish that the issue he seeks to foreclose from litigation in the 

present prosecution was necessarily decided in his favor by the prior verdict.” United 

States v. Citron, 853 F.2d 1055, 1058 (2d Cir. 1988) (quoting United States v. Cala, 

521 F.2d 605, 608 (2d Cir. 1975)). Dominguez pled guilty in the pharmacy burglaries 

case, and, as a result, the district court in that case never litigated any issues relating 

to Dominguez’s participation in the instant and unrelated Hobbs Act conspiracy and 

attempted robbery. It is necessarily the case, therefore, that Dominguez is unable to 

establish that collateral estoppel should preclude his prosecution. See United States 

v. Chestaro, 197 F.3d 600, 609 (2d Cir. 1999); Gelb, 798 F.2d at 44. 
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Accordingly, the judgment of the district court against Dominguez is 

AFFIRMED. 

FOR THE COURT: 

CATHERINE O’HAGAN WOLFE, Clerk of Court