18-986-cr 

United States v. Mercedes

 

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 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 

21st day of June, two thousand nineteen. 

Present: JON O. NEWMAN, 

 ROSEMARY S. POOLER, 

 BARRINGTON D. PARKER, 

 Circuit Judges. 

 

_____________________________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

 v. 18-986-cr 

FRANK MERCEDES, 

 Defendant-Appellant.

1

_____________________________________________________ 

 

Appearing for Appellant: Andrew Levchuk, Bulkley, Richardson & Gelinas, LLP, 

Springfield, MA. 

Appearing for Appellee: Rebekah Donaleski, Assistant United States Attorney (Jessica K. 

Fender, Laurie Korenbaum, 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. 

 

1

 The Clerk of Court is directed to amend the caption as above.
2 

Appeal from the United States District Court for the Southern District of New York (Sullivan, 

J.). 

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

 Defendant-Appellant Frank Mercedes appeals from an April 6, 2018, judgment of 

conviction after a jury trial in the United States District Court for the Southern District of New 

York (Sullivan, J.) finding him guilty of (1) murder in furtherance of a conspiracy to distribute 

and possess with intent to distribute heroin, 21 U.S.C. § 848(e)(1)(A); (2) conspiracy to commit 

murder for hire, 18 U.S.C. § 1958; (3) murder for hire, 18 U.S.C. § 1958; and (4) aiding and 

abetting the use of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(j). Mercedes 

also appeals from said District Court’s denial of his motion for a new trial pursuant to Federal 

Rule of Criminal Procedure 33. We assume the parties’ familiarity with the underlying facts, 

procedural history, and specification of issues for review. 

 Mercedes’s convictions arise from the murder of Richard Diaz in July 1999. A jury found 

that Mercedes paid Francisco Velez-Gomez, Julio Guerrero, and Jose Luis Gracesqui to murder 

Jorge Rosario, a friend of Richard Diaz’s, after Rosario and others robbed Mercedes of three 

kilograms of heroin; $15,000 to $20,000 in cash; and a firearm. In July 1999, Rosario and Diaz 

were stopped in a vehicle in the Bronx when Gracesqui opened fire, injuring Rosario and killing 

Diaz. 

 Mercedes raises three issues on appeal. He first argues that the district court abused its 

discretion in denying his Rule 33 motion for a new trial on the ground that the government’s 

cooperating witness, Velez-Gomez, gave testimony that was patently incredible. “[W]e review 

the denial of a Rule 33 motion for abuse of discretion.” United States v. Bouchard, 828 F.3d 116, 

128 (2d Cir. 2016). “[W]here the resolution of the Rule 33 motion depends on assessment of the 

credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and 

granting a new trial.” United States v. McCourty, 562 F.3d 458, 476 (2d Cir. 2009) (alteration 

omitted) (internal quotation marks omitted). This is particularly true where a defendant “had 

ample opportunity to present to the jury his claims about the lack of credibility of . . . witnesses 

through cross-examination and closing arguments.” United States v. Cacace, 796 F.3d 176, 192 

(2d Cir. 2015) (alteration omitted) (internal quotation marks omitted). Mercedes cross-examined 

Velez-Gomez about the inconsistencies in his testimony and emphasized the incredulity of 

Velez-Gomez’s testimony at closing arguments. The jury therefore had Mercedes’s arguments 

that Velez-Gomez was not credible before it and nonetheless convicted Mercedes on all counts. 

In such circumstances, we will not invade the fact-finding province of the jury to set aside the 

verdict. 

 Mercedes’s second argument on appeal is that the district court plainly erred in issuing an 

Allen charge after less than two full days of deliberation and on the Tuesday before 

Thanksgiving. The government argues that Mercedes waived this argument by inviting the 

charge, but we decline to reach the issue of waiver because Mercedes’s challenge fails on the 

merits of a plain-error review. “Whether an Allen charge was appropriate in a given case hinges 
3 

on whether it tends to coerce undecided jurors into reaching a verdict.” Small v. Batista, 191 F.3d 

272, 278-79 (2d Cir. 1999) (internal quotation marks omitted). This Court considers whether, “in 

its context and under all the circumstances,” the charge “encourages jurors to abandon, without 

any principled reason, doubts that any juror conscientiously holds as to a defendant’s guilt.” 

United States v. McDonald, 759 F.3d 220, 223 (2d Cir. 2014) (internal quotation marks omitted). 

As to the duration of the jury’s deliberation, this Court has refused to require that a “fixed period 

of time must necessarily elapse before the charge may properly be given,” and we instead use the 

length and complexity of the trial as a gauge for an Allen charge’s timeliness. United States v. 

Vargas-Cordon, 733 F.3d 366, 378-79 (2d Cir. 2013) (internal quotation marks omitted). 

 As the district court noted here, Mercedes’s trial consisted of less than three full days of 

testimony and argument, and the jury deliberated for nearly two days. It was not clear error to 

issue an Allen charge in this situation. Nor was it clear error to issue an Allen charge on the 

Tuesday before Thanksgiving. To succeed on his challenge, Mercedes must offer more than 

“[s]peculation” that the impending holiday or other circumstances were unduly coercive. United 

States v. Corcione, 592 F.2d 111, 117 (2d Cir. 1979). But the district court addressed the trial 

schedule at the beginning of the trial, noted that deliberations would depend on the jurors’ 

holiday plans, and met individually with the only juror who expressed concern about her travel 

plans interfering with deliberations. We do not detect any error, much less plain error, where the 

district court went to such lengths to prevent the impending holiday from coercing the jury into a 

premature verdict. 

 Lastly, Mercedes argues that there was insufficient evidence on Count IV, his conviction 

for aiding and abetting a violation of 18 U.S.C. § 924(j), to establish that Mercedes knew that 

Guerrero, Gracesqui, and Velez-Gomez would use a firearm to kill Rosario. The government 

responds that, because the hitmen had committed robberies using firearms in the past, Mercedes 

knew that they would use a firearm to murder Rosario. In reviewing Mercedes’s challenge, we 

consider the evidence as a whole and view it “in the light most favorable to the government.” 

United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011). We must uphold the conviction “if any 

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Id. at 105 (internal quotation marks omitted). To prove a defendant aided and abetted the 

use of a firearm in furtherance of a crime of violence, a defendant must “know[] that one of his 

confederates will carry a gun.” Rosemond v. United States, 572 U.S. 65, 77 (2014). 

 The government presented evidence that Guerrero, Gracesqui, and Velez-Gomez had 

previously committed numerous armed robberies, and Mercedes was friends with and a drug 

dealer for Guerrero. Viewing this evidence of the hitmen’s modus operandi and Mercedes’s 

connection to Guerrero in the light most favorable to the government, a jury could reasonably 

infer that Mercedes knew that the individuals he hired would use a firearm to murder Rosario. 

 

 
4 

 We have considered the remainder of Mercedes’s arguments and find them to be without 

merit. Accordingly, the judgment of the district court hereby is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk