1 16-4135 United States v. Plaza 

### 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 PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in th e City of New York, on the 4 th day of December, two thousand eighteen.
Present: R OBERT A. K ATZMANN , Chief Judge , G UIDO C ALABRESI , R AYMOND J. L OHIER , J R ., Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. No. 16-4135
P ABLO P LAZA AKA P AUL , Defendant-Appellant , J ANINE P LAZA P IERCE AKA J AN , E DWIN N EGRON AKA E, A NGELO C RUZ AKA K UBIAK , L ANCE P LAZA P IERCE , J EFFREY D AVIS , Z AVIER V AZQUEZ , P HILLIP B ARNES AKA C REAM , M ATILDA D ELGADO , J AMES D EAN K ENDRICK AKA JD, A NGELO O CASIO , Defendants

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_____________________________________2 For Appellant: S COTT M. G REEN , E SQ ., Rochester, NY. For Appellee: M ONICA J. R ICHARDS , Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY. Appeal from a judgment of the United States District Court for We stern District of New York (Geraci, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-appellant Pablo Plaza appeals from a judgment of conviction entered on December 5, 2016 by the United States District C ourt for the Western District of New York (Geraci, J .). Following a six-week jury trial, Plaza was convicted of (1) participating in a narcotics conspiracy in violati on of 21 U.S.C. § 846; (2) using th e premises of 87 Thomas Street for the purpose of distributing a controlled substa nce, in violation of 21 U.S.C. § 856(a)(1); (3) possession and discharge of a firear m in furtherance of a narcotics conspiracy, in violation of 18 U.S.C. § 924(c)(1); (4) possession of cocaine with intent to distribut e, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); and (5) the murder of Francisco Sa ntos while engaged in a drug crime, in violation of 21 U.S.C. § 848(e )(1)(A). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
First , Plaza argues that there is insufficient evidence suppor ting his murder conviction. We review challenges to the sufficiency of the evidence de novo , considering the totality of the evidence and drawing all inferences in the Government’s favor, a nd will affirm if any rational jury could have found the defendant guilty beyond a reasonable doubt. See , e.g. , Jackson v. Virginia , 443 U.S. 307, 318-19 (1979). Plaza concedes that the evidence, taken in the light most3 favorable to the prosecution, shows that, before the murder, Plaza believed Santos stole cocaine from his safe and participated in a retaliatory drive-by shooting at Santos’s family’s home and that Plaza and his coconspirators assaulted Santos with a boxcutter, putting him in the hospital. At trial, the Government showed that, just hour s after Plaza was arrested for the boxcutter attack, Plaza’s coconspirators murdered Santos to preven t Santos from testifying against Plaza for the assault with the boxcutter. Plaza was in police custody at the time of th e murder and the Government adduced no direct evidence that he instructed or encouraged any of his coconspi rators to kill Santos after his arrest. However, a reasonable juror could nonethel ess find, as the Government argued at trial, that the murder could be “reasonably foreseen as a necessary or natural consequence of the unlawful agreement” to which Plaza was a party. Pinkerton v. United States , 328 U.S. 640, 648 (1946). Plaza correctly points out that there was no evidence at trial th at any member of the conspiracy had ever murdered anyone before Sa ntos. But it was not for lack of trying. One witness testified that Plaza himself ordered the drive-by shooting of Santos’s family’s home, and others confirmed his participation. And just three weeks before the murder, Plaza used a boxcutter to put a four-inch long and one-inch deep gash in Sant os’s head. One co-conspirator, Phillip Barnes, testified that Plaza admitted to killing Santos because Plaza “wasn’t going back to prison.” App. at 973. A reasonable jury could infe r from this evidence that Plaza intended that he or his coconspirators kill Santos even before Plaza’s arrest, which predictably hastened further violence. Put simply, Santos’s killing was th e foreseeable and natural consequence of the agreement to kill or seriously injure Santos, wh ich, in turn, was motivated by the theft of Plaza’s4 cocaine. We therefore find that there was suffici ent evidence to convict Plaza of the murder of Francisco Santos under a Pinkerton theory of liability. Second , Plaza argues that there was insufficien t evidence supporting his conviction for the knowing use of 87 Thomas Street for the purpose of the distribution of a controlled substance. The evidence at trial supported a fi nding that 87 Thomas Street was maintained by Plaza’s coconspirators Franklyn Gonzalez and his mother and sister. They and other coconspirators, including James Kendrick, Plaza’s br other and the leader of the conspiracy, used 87 Thomas Street to prepare large quantities of heroin for distribution by dividing it into bundles of ten individual bags for sale on the street. Kendrick and Gonzalez th en delivered the bagged heroin to Plaza and other dealers. The Government concedes on appeal that there is no direct proof that Plaza participated in the bagging sessions at 87 Thomas Street, and indeed there was no direct evidence that anyone ever told him that heroin was prepared at 87 Thomas Street. A reasonable juror could nonetheless infer that he knew what was going on. “[T]he jury’s verdict may be based on circumstantial evidence, and the Government is not required to pr eclude every reasonable hypothesis which is consistent with innocence.” United States v. Ogando , 547 F.3d 102, 107 (2d Cir. 2008). 1 The bagging operation at 87 Thomas Street was huge. A half dozen coconspirators prepared every week for eight months several th ousand dollars’ worth of heroin, some of which they immediately delivered to Plaza. Numerous witnesses kn ew about the operation, including

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations.5 Shannon Riddle, who worked underneath Plaza, and Zavier Vasquez, another street level dealer. Plaza was far more important than either Riddl e or Vasquez. Members of the conspiracy murdered Santos to keep Plaza out of jail, and Plaza himself ordere d multiple acts of violence to protect the conspiracy. Plaza kept and bagged w holesale amounts of heroin in his home, and when Kendrick was unavailable, Plaza was at le ast sometimes responsible for bagging heroin and collecting money from dealers for Kendric k. Moreover, Plaza knew where Gonzalez lived, as he showed up there after Gonzalez stole some of Kendrick’s cocaine. Gi ven the totality of the evidence—including the size of the operation, th e number of witnesses who knew about it, Plaza’s role in the conspiracy, and his demonstrat ed awareness that Gonzalez lived at 87 Thomas Street—a reasonable juror could conclude that there was no reasonable doubt that Plaza knew that his coconspirators used 87 Thomas Street for the principal purpose of preparing heroin for sale. We therefore find that there was sufficien t evidence to convict Plaza on this count under a Pinkerton theory of liability. Fourth , Plaza objects to the admission of te stimony about the shooting of a house on Cameron Street, which he contends was unrelated to the narcotics conspiracy and partly violated the district court’s instructions . Here, there was evidence that th e target of the Cameron Street shooting was a rival drug dealer whom a coconspi rator had previously confronted and threatened for encroaching on their territory. Another coconspira tor also testified that Plaza told him that his reputation was an important piece of maintaini ng his position in the drug trade. A reasonable juror could therefore find that the shooting was re lated to the narcotics co nspiracy, either because it targeted a competitor or was intended to preser ve Plaza’s reputation in the business. As for the alleged violation of the district court’s instructions, it was accide ntal and appropriately addressed6 by an immediate curative instruct ion. Reviewing the district court’s decision for abuse of discretion, as we must, see , e.g. , United States v. Mercado , 573 F.3d 138, 141 (2d Cir. 2009), we find that allowing the challenge d testimony about the Cameron St reet shooting was not error. Cf. United States v. Plaza , No. 17-327-cr, 2018 WL 5116550, at *2 (2d Cir. Oct. 22, 2018). Fifth , Plaza objects to testimony from one witness about his deliv ery of fifteen to twenty guns to his mother’s home, as there was no evidence linking those guns to the narcotics conspiracy. We need not decide if this test imony was erroneously admitted, because, even if it was, that error was harmless. The principal fa ctors in the harmless error inquiry are “the importance of the witness’s wrongly admitte d testimony and the overall strength of the prosecution’s case.” United States v. Dukagjini , 326 F.3d 45, 62 (2d Cir. 2003). There was ample evidence that Plaza consistently possessed guns to protect his product throughout the twenty-year conspiracy and that he discharged guns in fu rtherance of the conspir acy, including by murdering a coconspirator named Jose Troche, participating in the drive-by shooting of Santos’s family’s home, and ordering the shooting at the house on Cameron Street. Sixth , Plaza objects to testimony from another witness about seeing Plaza assault his long-term girlfriend. This testimony was simila rly harmless. Plaza’s girlfriend repeatedly testified that Plaza violently abused her through out their relationship, making her fear for her life. Plaza did not object to that testimony at tr ial and does not challenge its admissibility on appeal. Given this firsthand account of a life time of violent abuse, testimony about a single instance of such abuse did not prejudice Plaza.
Last , Plaza argues that the district court erre d by admitting three specific excerpts of a recorded conversation between two of Plaza’s half-brothers and coconspirators, which he7 maintains were not in furtherance of the c onspiracy and so were inadmissible hearsay. See Fed. R. Evid. 801(d)(2)(E). Again, we need not resolve whether this evidence was properly admitted because its inclusion was harmless. The challenged portions of the recording tell the jury little that the rest of the recording does not. The speaker brags that members of the organization had never been prosecuted as a cartel or for murder and that they had signi ficant success despite being a relatively small crew. But he admits to the existence of the narcotics conspiracy throughout the recording, even leaving a voicemail for Plaza asking him to deliver crack cocaine. And, although he does not admit to any murder s, the speaker made clear in unchallenged portions of the recording that the group used guns and deadly violence to further its illegal aims. Moreover, there was overwhelming evidence that me mbers of the conspiracy murdered at least Santos and Jose Troche. These challenged pieces of evidence were harmless even in combination. The Government presented significant and unchallenged similar evidence, and its case was otherwise very strong on all relevant counts. We have considered all of Plaza’s contentions on appeal and have found in them no basis for reversal. For the foregoing reasons, th e judgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk