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 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 TO 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 for the Second Circuit, held 

2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 1st 3 day of August, two thousand sixteen. 

4 

5 PRESENT: GUIDO CALABRESI, 

6 GERARD E. LYNCH, 

7 RAYMOND J. LOHIER, JR., 

8 Circuit Judges, 

9 _____________________________________ 

10 

11 UNITED STATES OF AMERICA, 

12 

13 Appellee, 

14 

15 v. 12-3839-cr(L), 

16 14-4203-cr(Con) 

17 

18 FRANK CARABALLO, 

19 

20 Defendant-Appellant, 

21 _____________________________________ 

22 

23 FOR DEFENDANT-APPELLANT: NATASHA SEN, ESQ. Brandon, VT 

24 (Mark Kaplan, Kaplan and Kaplan, Burlington, VT on 

25 the brief), 

26 

27 FOR APPELLEE: PAUL J. VAN DE GRAAF, Chief, Criminal Division, 

28 (Joseph R. Perella and Gregory L. Waples, Assistant 

29 United States Attorneys, on the brief), for Eric S. 

30 Miller, United States Attorney for the District of 

31 Vermont, Burlington, VT 

32 
2 

1 Appeal from judgments of the United States District Court for the District of Vermont 

2 (Reiss, C.J.). 

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

4 DECREED that the judgment entered on November 4, 2014 is AFFIRMED and the appeal of 

5 the judgment entered on September 13, 2012 is DISMISSED for lack of appellate jurisdiction. 

6 Defendant-appellant Frank Caraballo appeals two judgments of conviction entered by the 

7 United States District Court for the District of Vermont (Reiss, C.J.). In the first, Caraballo seeks 

8 to withdraw his guilty plea to five counts of distributing cocaine base, in violation of 21 U.S.C. 

9 §§ 841(a)(1) and 841(b)(1)(C). In the second appeal, Caraballo challenges his conviction at trial 

10 of (1) one count of conspiring to distribute heroin, cocaine, and 28 grams or more of cocaine 

11 base under 21 U.S.C. §§ 846, 841(b)(1)(B), and 851, (2) one count of causing the death of a 

12 person by murder while in possession of a firearm in furtherance of a drug trafficking crime 

13 under 18 U.S.C. §§ 924 (j)(1) and 924(c)(1)(A)(i), and (3) one count of possession of a firearm 

14 in furtherance of a drug trafficking crime under 18 U.S.C. §§ 924(c)(1)(A)(i) and 

15 924(c)(1)(C)(i). We assume the parties’ familiarity with the underlying facts, procedural history, 

16 and specification of issues for review. 

17 In this summary order, we address Caraballo’s arguments regarding (1) the sufficiency of 

18 the evidence supporting his conviction, (2) the District Court’s evidentiary rulings, (3) his 

19 Confrontation Clause challenge, and (4) the withdrawal of his plea. A separate opinion issued 

20 with this order considers, and similarly rejects, Caraballo’s Fourth Amendment argument. 

21 1. Sufficiency of the Evidence 

22 Caraballo contends that there was insufficient evidence to convict him of causing the 

23 death of Melissa Barratt by murder. Conducting a de novo review and considering the evidence 
3 

1 in the light most favorable to the Government, United States v. Desposito, 704 F.3d 221, 226, 

2 229 (2d Cir. 2013), we hold that a rational trier of fact could have found beyond a reasonable 

3 doubt that Caraballo caused the death of Barratt by murder for substantially the same reasons as 

4 those stated by the District Court in its thorough opinion. See United States v. Caraballo, No. 

5 12-cr-105, 2014 WL 3535348, at *7-10 (D. Vt. July 16, 2014). 

6 2. Evidentiary Rulings 

7 Next, Caraballo challenges a number of the District Court’s evidentiary rulings at trial. 

8 We review these rulings “under a deferential abuse of discretion standard, and we will disturb an 

9 evidentiary ruling only where the decision to admit or exclude evidence was manifestly 

10 erroneous.” United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015) (internal quotation marks 

11 omitted). “[E]ven if a ruling was ‘manifestly erroneous,’ we will still affirm if the error was 

12 harmless.” Id. (internal quotation marks omitted). 

13 First, Caraballo argues that District Court erred when it admitted a series of text messages 

14 between Barratt and Edward Angelillo, Barratt’s bail bondsman, that were inadmissible hearsay. 

15 Though the District Court perhaps incorrectly admitted these messages as business records under 

16 Federal Rule of Evidence 803(6), the admission of the texts was not erroneous because they were 

17 not offered by the Government for the truth of the matter asserted. Rather, the Government used 

18 the texts to demonstrate that Barratt had been in contact with Angelillo up until a certain time, at 

19 which point she ceased communicating. 

20 Second, Caraballo contends that the District Court abused its discretion in failing to 

21 exclude, under Federal Rule of Evidence 403, a statement made by Caraballo to his prison 

22 cellmate that he would be in the “gas chamber” if he left his fate “in God’s hands.” App. 2002. 

23 As the District Court recognized, Caraballo’s admission has probative value because it could 
4 

1 demonstrate that Caraballo understood himself to have committed an act worthy of significant 

2 punishment. While this statement potentially admits other meanings, and in spite of a risk of any 

3 unfair prejudice that might arise by reference to the death penalty, it was not manifestly 

4 erroneous for the District Court to conclude that probative value of the statement was not 

5 substantially outweighed by the risk of unfair prejudice. 

6 Third, the District Court did not abuse its discretion in finding that Rule 403 did not bar 

7 Joshua Lopez from testifying on redirect that both he and his family had received threats in 

connection with his cooperation with the Government.1 8 On cross examination, Caraballo’s 

9 counsel strongly contested Lopez’s motivation for cooperating with law enforcement and, in fact, 

10 elicited testimony from Lopez that he was threatened in the first place. As such, Lopez’s 

11 re-direct testimony, which clarified his prior testimony concerning the threats, was not only 

12 probative as to Lopez’s motive for testifying against Caraballo, but also hardly prejudicial given 

13 that Lopez had already stated that unspecified threats had contributed to his decision to 

14 cooperate. The admission of Lopez’s testimony was therefore not erroneous. 

15 3. Confrontation Clause 

16 Caraballo further contends that the District Court’s admission of an officer’s statement in 

17 a video of Caraballo’s interrogation— that Barratt was afraid of Caraballo—violated Caraballo’s 

rights under the Confrontation Clause.2 18 The Confrontation Clause prohibits the “admission of 

19 testimonial statements of a witness who did not appear at trial unless he was unavailable to 

 

1 The Government argues that the admission of this statement should be subject to plain-error 

review. We need not decide whether 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 below, but the error, if any, from its admission is 

harmless in any event. 
5 

1 testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. 

2 Washington, 541 U.S. 36, 53-54 (2004). If we determine that evidence was admitted in 

3 violation of the Confrontation Clause, we may nevertheless affirm if we are “satisfied beyond a 

4 reasonable doubt that the error complained of . . . did not contribute to the verdict obtained.” 

5 United States v. Lee, 549 F.3d 84, 90 (2d Cir. 2008) (internal quotation marks omitted). In 

6 making this determination, we consider: “(1) the overall strength of the prosecution’s case; (2) 

7 the prosecutor’s conduct with respect to the improperly admitted evidence; (3) the importance of 

8 the wrongly admitted testimony; and (4) whether such evidence was cumulative of other 

9 properly admitted evidence.” Id. (internal quotation marks omitted)

10 The admission of the officer’s statement, if erroneous, does not require reversal because 

11 any such error would be harmless. Although Caraballo contends that, because the Government’s 

12 overall case was weak and the statement was central to its case, the admission of the officer’s 

13 statement was not harmless, this argument ignores the fact that, within the same video, officers 

14 had already stated that Barratt had told them that she was afraid of Caraballo. Given that 

15 Caraballo fails to challenge the admission of this earlier statement, the mere reiteration of this 

16 fact would not have been material to the verdict. This is all the more certain in light of the 

17 redaction of the challenged testimony from the record and the Government’s failure to reference 

18 the statement later at trial. 

19 4. Withdrawal of Guilty Plea 

20 Finally, we lack jurisdiction to consider Caraballo’s contention that he should be allowed 

21 to withdraw his guilty plea. In his reply brief, Caraballo argues that his plea was not a “voluntary 

22 and intelligent choice among the alternative courses of action open to [him],” Wilson v. 

23 McGinnis, 413 F.3d 196, 198-99 (2d Cir. 2005) (quoting North Carolina v. Alford, 400 U.S. 25, 
6 

1 31 (1970)), because he was not aware, at time he filed his notice of appeal, that there was 

2 evidence that “suggest[ed]that he was stopped in violation of the Fourth Amendment,” Reply Br. 

3 2. The notice of appeal for the September 13, 2012 judgment, however, makes clear that 

4 Caraballo’s appeal concerns only his sentence, and not his conviction. As a result, we lack 

5 appellate jurisdiction to examine whether Caraballo should be allowed to withdraw his guilty 

6 plea. See Fed. R. App. P. 3(c)(1)(B); New Phone Co., Inc. v. City of New York, 498 F.3d 127, 

131 (2d Cir. 2007).3 7 

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

9 merit. Accordingly, we AFFIRM the judgment entered on November 4, 2014, and DISMISS the 

10 appeal of the judgment entered on September 13, 2012 for lack of appellate jurisdiction. 

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

 

3 In any event, because we conclude, in an opinion issued with this summary order, that the 

Government’s actions in arresting Caraballo did not violate the Fourth Amendment, Caraballo’s 

argument that his plea was involuntary by virtue of this search would fail regardless.