14-4769(L) United States v. Miguel Delance, Limet Vasquez, Carlos Urena

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 ELECTRON IC 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

31 st day of May, two thousand seventeen.

Present: JON O. NEWMAN, ROSEMARY S. POOLER, PETER W. HALL, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 14-4769(L) 15-77(CON) MIGUEL DELANCE, LIMET VASQUEZ, CARLOS URENA, 15-118(CON) aka SEALED DEFENDANT 4, aka SALCEDO, aka WHITE BOY,

Defendants-Appellants

. 1

_____________________________________________________

Appearing for Appellant Deborah Cols on, Colson & Harris LLP, New York, NY. Miguel Delance:

Appearing for Appellant Don Buchwald, New York, NY. Limet Vasquez: Alina Mejer, Kelley Drye & Warren LLP, New York, NY.

1 The Clerk of the Court is respectfully directed to amend the caption as above.2 Appearing for Appellant Gregory E. Cooper, New York, NY. Miguel Carlos Urena:

Appearing for Appellee: Catherine Geddes, Micah W.J. Smith, Assistant United States Attorneys (Margaret Garnett, A ssistant United States Attorney, on the brief ), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.

Appeal from the United States District C ourt for the Southern Di strict of New York (Engelmayer, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of said District Court be and they hereby are AFFIRMED

.

Defendants-Appellants Carlos Urena and Limet Vasquez appeal from the January 9, 2015 judgments of the United States District Court for the Sout hern District of New York (Engelmayer, J. ), convicting them, following a seven-week jury trial, of: participating in a racketeering enterprise, in violation of 18 U.S.C. §§ 1961 and 1962(c); conspiracy to commit racketeering, in violation of 18 U.S.C § 1962(d); and narcotics conspiracy , in violation of 21 U.S.C. § 846. Additionally, Urena was convicted of murder in aid of racket eering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(j); three counts of assault and attempted murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a )(3), 1959(a)(5), and 2; and cons piracy to murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5).

Defendant-Appellant Miguel Delance app eals from the December 19, 2014 judgment of

the United States District Court for the S outhern District of New York (Engelmayer, J. ), convicting him, following a guilty plea, of racket eering conspiracy, in vi olation of 18 U.S.C. § 1962(d). The district court sentenced Delance primarily to 121 months’ imprisonment.

We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

I. Prosecutorial Misconduct

A. Brady/Giglio Violation

Urena alleges that the government violated its obligations under Brady v. Maryland , 373 U.S. 83 (1963), and Giglio v. United States , 405 U.S. 150 (1972), by failing to disclose (1) the pre-trial arrest of Angel Hernandez and (2) Hernandez’s post-arrest statements to the government. Urena argues that he could have used this information to interview Hernandez, to call Hernandez as a trial witness, and to imp each certain cooperating witnesses and a civilian

witness.3 A Brady/Giglio violation has three elements: “[(1)] [t]he evidence at issue must be favorable to the accused, either because it is excu lpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the State, either willfully or inadvertently; and [(3)] prejudice must have ensued.” Strickler v. Greene , 527 U.S. 263, 281-82 (1999). Evidence is impeaching if it “ha[s] the potenti al to alter the jury’s assess ment of the credibility of a significant prosecution witness.” United States v. Avellino , 136 F.3d 249, 255 (2d Cir. 1998).

Under the third prong of the Strickler test, we evaluate whether the impeachment

evidence is material. “Evidence is material . . . when there is a reasonable probability that, had the evidence been disclosed, the result of the pro ceeding would have been different, such that the

failure to disclose undermines confidence in the verdict.” United States v. Cer tified Envtl. Servs.,

Inc. , 753 F.3d 72, 91 (2d Cir. 2014) (internal altera tions and quotation marks omitted). With respect to impeachment evidence, “[i]n general, evidence whos e function is impeachment may

be considered to be material where the witne ss in question supplied the only evidence linking the defendant to the crime” or “supplied the only evid ence of an essential element of the offense.”

Avellino , 136 F.3d at 256-57. Moreover, “[i]t is well se ttled that where ample ammunition exists to attack a witness’s credibility, evidence that would provide an additional basis for doing so is ordinarily deemed cumulative and hence immaterial.” United States v. Orena , 145 F.3d 551, 559 (2d Cir. 1998).

Here, the nondisclosure of Hernandez’s arrest and post-arrest statements did not violate the government’s obligation under Brady/Giglio because they were not material. At most, Hernandez’s statements may have been used to impeach cooperating witn esses Jose Cruz and civilian witness Nicole Mela. Any impeachment ma terial from Hernandez was unlikely to be material because neither Cruz nor Mela supplie d the only evidence linking Urena to the murder of Ka’Shawn Phillips. See Avellino , 136 F.3d at 256-57. A number of other witnesses identified

Urena as the second shooter and denied that He rnandez’s half-brother, Juan Martinez (“KJ”), was the first shooter. Additionally, because Urena had access to substantial evidence to impeach Cruz, any additional evidence obtained from Hernandez would have been deemed cumulative

and immaterial. See Orena , 145 F.3d at 559. Even though the disclosure of Hernandez’s arrest and post-trial statements may have been useful to Urena, the government’s nondisclosure was not “so serious that there is a reasonable proba bility that the suppressed evidence would have produced a different verdict.” Strickler

, 527 U.S. at 281.

B. Improper Prosecutorial Summation

Urena argues that the government’s su mmation included improper references to propensity evidence, and that those references pr ejudiced Urena because the jury may have relied on the propensity evidence to convict Urena for the Phillips murder.

“A defendant bears a substa ntial burden in ar guing for reversal on the basis of prosecutorial misconduct in the summation.” United States v. Caracappa , 614 F.3d 30, 41 (2d Cir. 2010). That is because, in order to preva il, the defendant “must demonstrate misconduct so egregious that, when viewed in the context of the entire trial, it substantially prejudiced him.”

United States v. Newton , 369 F.3d 659, 680 (2d Cir. 2004). “In assessing whether a defendant has sustained substantial prejud ice, we consider the severity of the alleged misconduct, any4 curative measures taken by the tr ial court, and the lik elihood of conviction absent the challenged

conduct.” Id.

In this case, Urena appears to complain about the government’s discussion of uncharged

violent incidents in its summa tion, arguing that their use amou nted to the improper use of propensity evidence. The districtcourt “carefully monitored” the government’s summation and did not hear “anything . . . that came close to arguing propens ity.” Tr. at 5016. Moreover, the government was permitted to introduce evidence of unc harged offenses to show the existence of the criminal enterprise, and the admission of such evidence is not subject to Federal Rule of Evidence 404(b). See United States v. Baez , 349 F.3d 90, 93-94 (2d Cir. 2003) (“It is well settled that in prosecutions for racketeering offe nses, the government ma y introduce evidence of uncharged offenses to establish the existence of the criminal enterprise.”). Accordingly, Urena did not demonstrate that the government engaged in any misconduct—much less misconduct so severe that, when viewed in the context of th e entire trial, substantially prejudiced him.

II. Evidentiary Rulings

“We review the district court’s eviden tiary rulings for abuse of discretion.” United States

v. Natal , 849 F.3d 530, 534 (2d Cir. 2017). Even if a district court abus es its discretion by making an erroneous evidentiary ru ling, that error is ordinarily s ubject to harmless error review.

United States v. Mercado , 573 F.3d 138, 141 (2d Cir. 2009).

A. Exclusion of Transcript of Unava ilable Witness’s Prior Testimony

Urena argues that the district court abused its discretion by denying his request to admit, pursuant to Federal Rule of Evidence 807, the tr anscript of an unavailable witness’s prior testimony in a state court trial.

A statement will be admitted under Rule 807, the residual exception, if “(i) it is particularly trustworthy; (ii) it bears on a material fact; (iii) it is the most probative evidence addressing that fact; (iv) its admission is consis tent with the rules of evidence and advances the interests of justice; and (v) its proffer fo llows adequate notice to the adverse party.” United States v. Morgan , 385 F.3d 196, 208 (2d Cir. 2004). “Congress in tended that the residual hearsay exception[] will be used very rarely, and only in exceptional circumstances.” Parsons v. Honeywell, Inc. , 929 F.2d 901, 907 (2d Cir. 1991) (internal quotation marks omitted).

Urena sought to introduce prio r testimony from Jamal Thomas . Thomas was a witness in

the state court trial of KJ for the murder of Phil lips, and testified that KJ was the first shooter. Thomas was unavailable to testify in the instant trial. The district court conducted a careful, onthe-record analysis of the ad missibility of Thomas’s prior testimony under Rule 807. While the district court found that Thomas’s prior testimon y satisfied the second prong because it pertained to a material fact, the testimony otherwise faile d to meet the remaining prongs for admissibility under Rule 807. In particular, the di strict court cited several later- arising facts that undermined the trustworthiness of Thomas’s prior test imony, identified testimony already presented by available witnesses that was as probative as Thom as’s on the identity of the first shooter, and

found that it would not serve the interests of justice to permit th e defense to rely on the prior5 testimony of an unavailable witness when it coul d present comparable testimony from available witnesses. We agree with the district cour t’s well-reasoned explanation for denying Urena’s request to admit Thom as’s prior testimony.

B. Exclusion of Evidence from Proffe r Interview of Richard Gonzalez

Vasquez sought to introduce evidence from a proffer interview of Richard Gonzalez to impeach the testimony of cooperating witness Jose Cr uz. The district court denied such evidence under both Federal Rules of Evidence 613(b) and 403. “We will overturn a trial judge’s determination under Rule 403 only if we determ ine that the judge acted arbitrarily or irrationally.” United States v. Tracy , 12 F.3d 1186, 1195 (2d Cir. 1993).

We do not address the district court’s determ ination with respect to Rule 613(b) because

the district court’s decision to exclude the ev idence from Gonzalez’s proffer interview under

Rule 403 was not an abuse of discretion. See United States v. King , 560 F.2d 122, 128 (2d Cir. 1977). Given Gonzalez’s limited reco llection of his underlying convers ation with Cruz about the Phillips murder and his inability to provide context, the district court was within its discretion in determining that the statements in Gonzalez ’s proffer had low probative value which was outweighed by the risk of misleading the jury and permitting the jury to speculate about the meaning of those statements. “[M]i ndful of a district court’s superi or position to assess relevancy and to weigh the probative value of evidence against its potentia l for unfair prejudice,” we hold

that there was no abuse of discretion. United States v. Schaffer , 851 F.3d 166, 177 (2d Cir. 2017) (alterations omitted).

III. Motions for Mistrial

Urena argues that the district court erred in denying his motions for mistrial. Urena sought a mistrial as the result of alle gedly prejudicial publ icity relating to a New York Daily

News article, and the admi ssion of fear-based te stimony by a witness.

A. Prejudicial Publicity

“When jurors have been exposed to prejudicia l publicity during trial, the trial court must determine whether the jurors retained the requisite impartiality.” United States v. Scopo , 861 F.2d 339, 349 (2d Cir. 1988) (internal quotation ma rks omitted). We have established a “simple three-step process” that a district court may fo llow in order to determine whether a mistrial is

warranted as a result of prejudicial publicity:

[F]irst . . . determine whether the covera ge has a potential fo r unfair prejudice[;] second, . . . canvass the jury to find out if they have learned of the potentially prejudicial publicity[;] and[] third, . . . examine individually exposed jurors— outside the presence of the other jurors —to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror’s ability to decide the case fairly.

Id. We review the district court’s determinations under this process for an abuse of discretion. Id.6 In this case, the parties inform ed the district court that the New York Daily News had published an article about Urena’ s prosecution. The district court, at defense counsel’s request, twice questioned the jurors about whether they had “read or seen anything about the case.” Tr. 1522, 1727-28. When no juror raised hi s or her hand, the district cour t specifically in structed the jurors not to r ead that day’s Daily News or anything about Urena’s case. Under these circumstances, after completing the first two steps of the three-step process, the district court “could certainly ascertain that these jurors, w ho had been given a cautionary instruction and reported that they did not know the content of the offending article, could remain impartial.” See United States v. McDonough

, 56 F.3d 381, 387 (2d Cir. 1995) (int ernal quotation marks and citation omitted). It did not need to take furt her action to determine whether the jury could remain impartial. See id. The district court prop erly denied Urena’s rela ted motion for mistrial.

B. Striking Testimony from Samuel Fernandez

Urena challenges the district court’s decisi on not to strike, in full, the testimony of

witness Samuel Fernandez. Fern andez testified, among other things , that he was afraid that Urena and the Trinitarios would harm him and his family for testifying.

During the trial, Urena’s counsel moved to strike Fernandez’s testimony and for a

mistrial. We review a district court’s denial of a motion for mi strial for abuse of discretion.

United States v. Carson , 52 F.3d 1173, 1188 (2d Cir. 1995).

The district court initially denied those mo tions, but later proposed a limiting instruction to mitigate “potential areas of prejudice” result ing from such testimony, including the risk that the jury would “consider [the w itness’s testimony about fear] as substantive evidence bearing on the guilt or innocence of [Urena].” Tr. at 2773-74. The district cour t specifically instructed the jury it struck parts of Fern andez’s testimony and that that the jury could not consider Fernandez’s testimony about fear “for any purpose,” and that it “must disregard it altogether.”

Tr. at 3063.

The district court did not abuse its discre tion by denying Urena’s mo tion for mistrial and motion to strike Fernandez’s testimony in its entirety. Certain aspects of Fernandez’s testimony

were relevant and admissible— e.g. his testimony about the exis tence of the Trinitarios enterprise, the Trinitarios’ meeting in Van Cortla ndt Park. Moreover, the di strict court addressed concerns about the prejudicial na ture of Fernandez’s testimony by striking substantial portions, including his fear testimony. Because we recognize a “strong presumption” that juries follow [a district court’s] limiting instructions,” United States v. Snype , 441 F.3d 119, 129 (2d Cir. 2006), the district court’s use of a limiting instructi on should have mitigated the concern about any unduly prejudicial effect of Fernandez’s testimony, see United States v. Elfgeeh , 515 F.3d 100, 127 (2d Cir. 2008); United States v. Anzalone , 626 F.2d 239, 245-46 (2d Cir. 1980) (affirming the denial of defendant’s mistrial motion). Gi ven the district court’ s limiting instruction, its decision to deny Urena’s motions for a mistrial and to strike the enti rety of Fernandez’s testimony was not an ab use of discretion.7 IV. Sufficiency of the Evidence

On appeal, Vasquez argues that there wa s insufficient evidence to show that he participated in the narcotics conspiracy during the statute of limitati ons period: December 5, 2007 to December 5, 2012.

“We review challenges to the sufficiency of evidence de novo .” United States v. Pierce

, 785 F.3d 832, 837 (2d Cir. 2015). A defendant cha llenging the sufficiency of the evidence supporting his conviction “bears a heavy burden, as the standard of review is exceedingly deferential” to the jury’s verdict. United States v. Brock , 789 F.3d 60, 63 (2d Cir. 2015). We “will sustain the jury’s verdict if ‘ any rational trier of fact co uld have found the essential elements of the crime beyond a reasonable doubt.’” Pierce , 785 F.3d at 838 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)).

In this case, a rational jury could conclude th at Vasquez agreed with another to distribute narcotics, that he had a specific intent to distribute narcotics, a nd that he took an overt act in furtherance of the conspiracy. See United States v. Rodriguez , 392 F.3d 539, 545 (2d Cir. 2004). The government offered evidence that was sufficient for a rational jury to conclude that Vasquez was involved in the charged narc otics conspiracy duri ng the limitations period. The government introduced: (1) testimony from NYPD officer Edwin Salas th at, in 2009, he witnessed Vasquez acting as “a lookout or steerer fo r . . . drug sale[s];” Tr. 3585. (2) that Officer Salas legally searched an apartment belonging to Vasquez an d Anthony Rodriguez (another man suspected of selling narcotics) and recovered powder cocaine ; (3) that Officer Salas heard Vasquez warn Rodriguez over the latter’s walkie-talki e phone that the police were coming; and (4) circumstantial evidence that Vasquez’s drug ac tivity in 2009 occurred on blocks controlled by

the Trinitarios until at le ast 2011—meaning that one either needed to be a Trinitario or receive permission from them to sell drugs there.

Given this evidence, a rationa l jury could have found the esse ntial elements of the crime proven beyond a reasonable doubt. We w ill not disturb Vasquez’s conviction.

V. Reasonableness of Sentence

This Court reviews challenges to a senten ce under a “reasonableness” standard, which is “a particularly deferential form of abuse-of-discretion review.” United States v. Broxmeyer , 699 F.3d 265, 278 (2d Cir. 2012) (internal quotati on marks omitted). “Reasonableness review requires an examination of the length of the sent ence (substantive reasonableness) as well as the procedure employed in arriving at the sentence (procedural reasonableness).” United States v.

Robinson , 702 F.3d 22, 38 (2d Cir. 2012).

A sentence is procedurally unreasonable if the district court “fails to calculate the Guidelines range . . . , makes a mistake in its Gu idelines calculation, . . . treats the Guidelines as mandatory . . .[,] does not consider the [Section] 3553(a) factors, . . . rests its sentence on a clearly erroneous finding of fact . . . [,] fails ad equately to explain its ch osen sentence, [or fails to] include an explanation for any deviation from the Guidelines range.” United States v. Cavera

, 550 F.3d 180, 190 (2d Cir. 2008) (internal quotation marks omitted).8 A sentence is substantively unreasonable and will be set aside “only in exceptional cases

where the trial court’s decision cannot be locate d within the range of permissible decisions.” United States v. Rigas , 583 F.3d 108, 122 (2d Cir. 2009) (int ernal quotation marks omitted).

Substantive reasonableness revi ew “provide[s] a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter

of law.” Id. at 123.

Delance argues that his 121-month sentence, located at the bottom of his Guidelines range, was procedurally unreasonable because the district court did not properly apply Sentencing Guideline Section 5G1.3(b) and was s ubstantively unreasonable because the severity of the sentence was not supported by Delance’s minor role in the crimes committed. We disagree

and affirm Delance’s sentence.

Addressing Delance’s claim of procedural unreasonableness first, his sentence was not procedurally unreasonable because the district court applied Section 5G1.3(b) and carefully explained its weighing of the 3553(a) factors. Under Section 5G1.3(b):

If . . . a term of imprisonment resulte d from another offense that is relevant

conduct to the instant offense of conviction . . . the sentence for the instant offense shall be imposed as follows:

(1) the court shall adjust the senten ce for any period of imprisonment already served on the un discharged term of imprisonment if the court determines that such period of impris onment will not be credited to the federal sentence by the Bureau of Prisons; and

(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b).

The district court adequate ly explained the effect of Section 5G1.3(b) on Delance’s sentence. After specifying that the district cour t would have given Delan ce a sentence “well, well above” the Guidelines range of 121-151 months if it were to include a cons ideration of Delance’s prior offenses, the district court determined th at it would impose a 121-month sentence. Delance App’x at 338. The district court stated that

in fashioning today’s sentence[,] I am poi ntedly adjusting the sentence downward to reflect the sentence I believe is appropriate solely to reflect the criminal conduct that you have not previously been sentenced for. The sentence I impose, therefore, will take into account and refl ect an adjustment downwards for the time [Delance had] already served on this relevant conduct.9 Id.

Finally, the district court decided that, pursuant to Sec tion 5G1.3(b)(2), the 121-month sentence would run concurrently to the 13 m onths remaining on Delance’s undischarged state court sentence. Because it is apparent that the dist rict court adjusted its sentence to account for the period of imprisonment that Delance had alre ady served on his related state conviction, and

the district court made Delance’s sentence concurre nt to his undischarged term of imprisonment, the district court did not err in its application of Section 5G1.3(b). Moreover, the district court carefully weighed the Section 3553(a ) factors and concluded that, “ on the basis sole ly of the acts for which [Delance] had not previo usly been held to account,” there was ample justification for a “very long sentence” in excess of the Guidelin es range of 121-151 months. Delance App’x at

334.

Delance’s sentence was not substantively unreasonable because it was not “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” Rigas , 583 F.3d at 123.

The district court had discretion to impose a significant sentence given Delance’s involvement in a murder and other racketeering acts for which Delance had not yet been punished. The district court’s imposition of a 121-month sentence fo r Delance’s unpunished crimes, given their seriousness and violence, was not outside the range of permis sible decisions.

VI. Conclusion

We have considered the remainder of Uren a’s, Vasquez’s, and Delance’s arguments and find them to be without merit. Accordingly, th e judgments of the dist rict court hereby are

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk