1 12-3839-cr(L) United States v. Caraballo 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 LO CAL RULE 32.1.1. WHEN CI TING 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 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 Co urt of Appeals for the Second Circuit, held 1 at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 2 York, on the 1 st day of August, two thousand sixteen. 3 4 PRESENT: GUIDO CALABRESI, 5 GERARD E. LYNCH, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8

_____________________________________ 9 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. 12-3839-cr(L), 15 14-4203-cr(Con) 16 17 FRANK CARABALLO, 18 19 Defendant-Appellant, 20

_____________________________________ 21 22 FOR DEFENDANT-APPELLANT: NATASHA SEN, ESQ. Brandon, VT 23 (Mark Kaplan, Kaplan a nd Kaplan, Burlington, VT on 24 the brief ), 25 26 FOR APPELLEE: PAUL J. VAN DE GRAAF, Ch ief, Criminal Division, 27 (Joseph R. Perella and Gre gory L. Waples, Assistant 28 United States Attorneys, on the brief ), for Eric S. 29 Miller, United States Attorney for the District of 30 Vermont, Burlington, VT 31 322 Appeal from judgments of the United States District Court for the District of Vermont 1 (Reiss, C.J .). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREED that the judgment entered on November 4, 2014 is AFFIRMED and the appeal of 4 the judgment entered on September 13, 2012 is DISMISSED for lack of appe llate jurisdiction. 5 Defendant-appellant Frank Caraba llo appeals two judgments of conviction entered by the 6 United States District Court for the District of Vermont (Reiss, C.J. ). In the first, Caraballo seeks 7 to withdraw his guilty plea to five counts of dist ributing cocaine base, in violation of 21 U.S.C. 8 §§ 841(a)(1) and 841(b)(1)(C). In the second appeal , Caraballo challenges his conviction at trial 9 of (1) one count of conspiring to distribute heroin, cocaine, a nd 28 grams or more of cocaine 10 base under 21 U.S.C. §§ 846, 841(b)(1)(B), and 8 51, (2) one count of causing the death of a 11 person by murder while in possession of a firear m in furtherance of a drug trafficking crime 12 under 18 U.S.C. §§ 924 (j)(1) and 924(c)(1)(A)(i), and (3) one c ount of possession of a firearm 13 in furtherance of a drug trafficking crime under 18 U.S.C. §§ 924(c)(1)(A)(i) and 14 924(c)(1)(C)(i). We assume the parties’ familiarity with the underlying facts, procedural history, 15 and specification of issues for review. 16 In this summary order, we a ddress Caraballo’s arguments rega rding (1) the sufficiency of 17 the evidence supporting his convi ction, (2) the District Court’ s evidentiary ru lings, (3) his 18 Confrontation Clause challenge, a nd (4) the withdrawal of his pl ea. A separate opinion issued 19 with this order considers, and similarly reje cts, Caraballo’s Fourth Amendment argument. 20
1. Sufficiency of the Evidence 21 Caraballo contends that there was insufficient evidence to convict him of causing the 22 death of Melissa Barrat t by murder. Conducting a de novo review and considering the evidence 233 in the light most favorable to the Government, United States v. Desposito , 704 F.3d 221, 226, 1 229 (2d Cir. 2013), we hold that a rational trier of fact coul d have found beyond a reasonable 2 doubt that Caraballo caused the de ath of Barratt by murder for subs tantially the same reasons as 3 those stated by the District Court in its thorough opinion. See United States v. Caraballo , No. 4 12-cr-105, 2014 WL 3535348, at *7-10 (D. Vt. July 16, 2014)

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2. Evidentiary Rulings 6 Next, Caraballo challenges a number of the Dist rict Court’s evidentiar y rulings at trial. 7 We review these rulings “under a deferential abuse of discretion standard, and we will disturb an 8 evidentiary ruling only where the decision to admit or exclude evidence was manifestly 9
erroneous.” United States v. McGinn , 787 F.3d 116, 127 (2d Cir. 2015) (internal quotation marks 10 omitted). “[E]ven if a ruling was ‘manifestly err oneous,’ we will still affirm if the error was 11 harmless.” Id. (internal quotation marks omitted). 12 First, Caraballo argues that Dist rict Court erred when it admitt ed a series of text messages 13 between Barratt and Edward Angelillo, Barratt’s bail bondsman, that were inadmissible hearsay. 14 Though the District Court perhaps incorrectly ad mitted these messages as business records under 15 Federal Rule of Evidence 803(6), the admission of the texts was not erroneous because they were 16 not offered by the Government for the truth of th e matter asserted. Rather , the Government used 17 the texts to demonstrate that Barratt had been in contact with Angelillo up until a certain time, at 18 which point she ceased communicating. 19 Second, Caraballo contends that the District Court abused its discretion in failing to 20 exclude, under Federal Rule of Evidence 403, a statement made by Caraballo to his prison 21 cellmate that he would be in the “gas chamber” if he left his fate “in God’s hands.” App. 2002. 22 As the District Court recognized, Caraballo’s admission has probative value because it could 234 demonstrate that Caraballo understood himself to have committed an act worthy of significant 1 punishment. While this statement potentially admits other meanings, and in spite of a risk of any 2 unfair prejudice that might arise by reference to the death penalty, it was not manifestly 3 erroneous for the District Court to conclude that probative value of the statement was not 4 substantially outweighed by th e risk of unfair prejudice. 5 Third, the District Court did not abuse its di scretion in finding that Rule 403 did not bar 6 Joshua Lopez from testifying on redirect that bo th he and his family had received threats in 7 connection with his cooperat ion with the Government. 1 On cross examination, Caraballo’s 8 counsel strongly contested Lopez’s motivation for cooperating with law enforcement and, in fact, 9 elicited testimony from Lopez that he was threat ened in the first place. As such, Lopez’s 10 re-direct testimony, which clarif ied his prior testimony concerni ng the threats, was not only 11 probative as to Lopez’s motive for testifying agai nst Caraballo, but also ha rdly prejudicial given 12 that Lopez had already stated that unspecified threats had contributed to his decision to 13 cooperate. The admission of Lopez’s te stimony was therefore not erroneous. 14
3. Confrontation Clause 15 Caraballo further contends that the District Court’s admission of an officer’s statement in 16 a video of Caraballo’s interrogation— that Barra tt was afraid of Caraballo—violated Caraballo’s 17 rights under the Conf rontation Clause. 2 The Confrontation Clause prohibits the “admission of 18 testimonial statements of a witness who did not appear at trial unless he was unavailable to 19

1 The Government argues that the admission of this statement shoul d be subject to plain-error review. We need not decide whethe r that is the applicable standard as the statement is admissible even were we to apply an ordinary abuse-of-discretion standard.

2 Again, the Government argues that the admission of this statement is subject to plain-error review because Caraballo failed to raise it belo w, but the error, if any, from its admission is harmless in any event.5 testify, and the defendant had had a pr ior opportunity for cross-examination.” Crawford v. 1 Washington , 541 U.S. 36, 53-54 (2004). If we determine that evidence was admitted in 2 violation of the Confrontation Cl ause, we may nevertheless affirm if we are “satisfied beyond a 3 reasonable doubt that the error complained of . . . did not contribute to the verdict obtained.” 4 United States v. Lee , 549 F.3d 84, 90 (2d Cir. 2008) (internal quotation marks omitted). In 5 making this determination, we consider: “(1) the overall strength of the prosecution’s case; (2) 6 the prosecutor’s conduct with respect to the impr operly admitted evidence ; (3) the importance of 7 the wrongly admitted testimony; and (4) whethe r such evidence was cumulative of other 8 properly admitted evidence.” Id. (internal quotation marks omitted) 9 The admission of the officer’s statement, if erroneous, does not require reversal because 10 any such error would be harmless. Although Caraba llo contends that, because the Government’s 11 overall case was weak and the statement was centr al to its case, the admission of the officer’s 12 statement was not harmless, this argument ignores the fact that, within the same video, officers 13 had already stated that Barratt had told them that she was afraid of Caraballo. Given that 14 Caraballo fails to challenge the admission of this earlier statement, the mere reiteration of this 15 fact would not have been material to the verdict. This is all the more certain in light of the 16 redaction of the challenged tes timony from the record and the G overnment’s failure to reference 17 the statement later at trial. 18
4. Withdrawal of Guilty Plea 19 Finally, we lack jurisdiction to consider Cara ballo’s contention that he should be allowed 20 to withdraw his guilty plea. In hi s reply brief, Caraballo argues that his plea was not a “voluntary 21 and intelligent choice among the alterna tive courses of action open to [him],” Wilson v. 22
McGinnis , 413 F.3d 196, 198-99 (2d Cir. 2005) (quoting North Carolina v. Alford , 400 U.S. 25, 236 31 (1970)), because he was not aware, at time he filed his notice of appeal, that there was 1 evidence that “suggest[ed]that he was stopped in violation of the Fourth Amendment,” Reply Br. 2 2. The notice of appeal for the September 13, 2012 judgment, however, makes clear that 3 Caraballo’s appeal concerns onl y his sentence, and not his conviction. As a result, we lack 4 appellate jurisdiction to examin e whether Caraballo should be a llowed to withdraw his guilty 5 plea. See Fed. R. App. P. 3(c)(1)(B); New Phone Co., Inc. v. City of New York , 498 F.3d 127, 6 131 (2d Cir. 2007). 3 7 We have considered the remainder of Caraba llo’s arguments and find them to be without 8 merit. Accordingly, we AFFIRM the judgmen t entered on November 4, 2014, and DISMISS the 9 appeal of the judgment entered on September 13, 2012 for lack of appellate jurisdiction. 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12

3 In any event, because we conclude, in an opini on issued with this summary order, that the Government’s actions in arresti ng Caraballo did not violate the Fourth Amendment, Caraballo’s argument that his plea was involuntary by virt ue of this search would fail regardless.