Christopher F. Droney, Judge of the United States *

District Court for the District of Connecticut, sitting by

designation.

1

08-5952-cr

United States v. Pepin

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 1 day of March, two thousand ten. st

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 GUIDO CALABRESI,

9 Senior Circuit Judge,

10 CHRISTOPHER F. DRONEY,*

11 District Judge.

12

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14 United States of America,

15 Appellee,

16

17 -v.- 08-5952-cr

18

19 Humberto Pepin, also known as Homberto

20 Pepin Taveras, also known as Tony,

21 Defendant-Appellant.

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23
2

1 APPEARING FOR APPELLANT: LOUIS M. FREEMAN (Zoe J. Dolan,

2 of counsel, on the brief),

3 Freeman Nooter & Ginsberg, New

4 York, NY.

5

6 APPEARING FOR APPELLEE: PETER A NORLING (Lee J.

7 Freedman, Walter Norkin, Carter

8 Burwell, on the brief),

9 Assistant United States

10 Attorneys, of counsel, for

11 Benton J. Campbell, United

12 States Attorney, Eastern

13 District of New York, Brooklyn,

14 NY.

15

16 Appeal from a judgment of the United States District

17 Court for the Eastern District of New York (Weinstein, J.).

18

19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20 AND DECREED that the judgment of the district court be

21 AFFIRMED.

22

23 Humberto Pepin appeals from a judgment of conviction

24 and sentence entered November 14, 2008 in the United States

25 District Court for the Eastern District of New York

26 (Weinstein, J.). During a previous incarceration for

27 narcotics offenses, Pepin confessed to two murders. 

28 Prosecutors brought charges and sought the death penalty. 

29 He was convicted of two counts of murder while engaged in

30 drug trafficking in violation of 21 U.S.C. § 848(e)(1)(A)

31 and one count of obstruction of justice in violation of 18

32 U.S.C. § 1512(b)(3), and sentenced principally to two terms

33 of life imprisonment without the possibility of release and

34 one term of ten years. We otherwise assume familiarity with

35 the underlying facts and the case’s procedural history.

36

37 Pepin raises four issues on appeal, none justifying

38 vacatur.

39

40 [1] First, Pepin argues that his uncounseled confessions

41 were admitted at trial in violation of his Sixth Amendment

42 right to counsel with respect to his previous narcotics

43 offenses. In considering this argument, “we review findings

44 of fact for clear error and questions of law de novo,”

45 United States v. Mills, 412 F.3d 325, 328 (2d Cir. 2005);

46 and we apply harmless error analysis, e.g. Milton v.

47 Wainwright, 407 U.S. 371, 372 (1972). There was no error
 Although Pepin mentions his July 31, 2002; October 1

15, 2002; and January 15, 2002 statements in his papers, he

assigns error only to the admission of his July 31, 2002

statements.

 Insofar as Pepin also argues for the first time in 2

his reply brief that the district court should have

instructed the jury to find a nexus between Pepin’s actions

and a foreseeable proceeding, that argument is forfeited. 

3

1 because Pepin waived his Sixth Amendment right. The

2 district court found that Pepin’s July 31, 2002 statements 1

3 were made after he was read his Miranda rights, verbally

4 confirmed that he understood them, and signed the Miranda

5 card. (Pepin does not take issue with these findings.) 

6 These actions were sufficient to waive Pepin’s Sixth

7 Amendment right to counsel. See Patterson v. Illinois, 487

8 U.S. 285, 288, 293 (1988) (defendant who was read his

9 Miranda rights and signed a Miranda waiver, and then

10 voluntarily answered questions, waived his Sixth Amendment

11 right to counsel). 

12

13 [2] Pepin next argues that the district court erred by

14 admitting certain hearsay statements under the former

15 testimony exception set out in Rule 804(b)(1) of the Federal

16 Rules of Evidence. We review for abuse of discretion, e.g.

17 United States v. Wexler, 522 F.3d 194, 201-02 (2d Cir.

18 2008), and apply harmless error analysis, Fed. R. Evid.

19 103(a). Though we recognize that the government did not

20 attempt to locate the hearsay declarant abroad (even though

21 he had testified previously that he intended to return to

22 his native Dominican Republic), any error in admitting the

23 hearsay statements (assuming there was error) was harmless. 

24 The substance of the contested hearsay statements was

25 independently supplied by the testimony of Julia Mendez and

26 by Pepin himself.

27

28 [3] Third, Pepin argues that the district court improperly

29 instructed the jury on the elements of the obstruction

30 charge. We review jury instructions de novo, applying

31 harmless error analysis. United States v. Hassan, 578 F.3d

32 108, 128 (2d Cir. 2008) (amended opinion). There is no

33 error. Pepin’s contention that the district court should

34 have instructed the jury to find that Pepin “knew . . . that

35 the criminal proceeding [obstructed] was or would be

36 federal” is rebutted by statute and caselaw. See 18 U.S.C. 2
See, e.g., Tischmann v. ITT/Sheraton Corp., 145 F.3d 561,

568 n.4 (2d Cir. 1998).

4

1 § 1512(g) (“no state of mind need be proved with respect to

2 the circumstance” that the affected proceeding or officer is

3 federal); United States v. Diaz, 176 F.3d 52, 90-91 (2d Cir.

4 1999) (same).

5

6 [4] Finally, Pepin contends that the evidence adduced at

7 trial was insufficient to sustain his conviction for

8 obstruction. In reviewing a conviction for sufficiency of

9 evidentiary support, “the trial evidence is viewed most

10 favorably for the Government” and “all reasonable inferences

11 a jury may have drawn favoring the Government must be

12 credited.” Wexler, 522 F.3d at 206-07. We affirm “‘if any

13 rational trier of fact could have found the essential

14 elements of [the] crime beyond a reasonable doubt.’” Id. at 

15 207 (emphasis omitted) (quoting Jackson v. Virginia, 443

16 U.S. 307, 319 (1979)). Julia Mendez testified at trial that

17 she said “nice” things about Pepin to court officers because

18 he forced her to do so by threat. A reasonable inference is

19 that Mendez’s statements to the officers would have been

20 different had she not been threatened. Mendez knew about

21 both murders at issue in this case, and was therefore in a

22 position to tell the officers about them. On these facts, a

23 rational juror could easily have concluded that Pepin

24 “knowingly . . . threaten[ed]” Mendez “with intent to . . .

25 prevent the communication to a law enforcement officer . . .

26 of the United States of information relating to the

27 commission or possible commission of a Federal offense or a

28 violation of conditions of probation[,] supervised

29 release,[] parole, or release pending judicial

30 proceedings[].” 18 U.S.C. § 1512(b)(3). We therefore

31 conclude that Pepin’s conviction for obstruction of justice

32 is adequately supported by the evidence.

33

34 Finding no merit in Pepin’s remaining arguments, we

35 hereby AFFIRM the judgment of the district court.

36

37

38 FOR THE COURT:

39 CATHERINE O’HAGAN WOLFE, CLERK

40