18-1154-cr 

United States v. Skyers

 

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 

17th day of September, two thousand nineteen. 

Present: RALPH K. WINTER, 

 ROSEMARY S. POOLER, 

 RICHARD J. SULLIVAN, 

 Circuit Judges. 

 

_____________________________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

 v. 18-1154-cr 

ZANE SKYERS, 

 Defendant-Appellant. 

_____________________________________________________ 

 

For Appellant: Marsha R. Taubenhaus, New York, N.Y. 

For Appellee: David Gopstein, Assistant United States Attorney (Kevin Trowel, 

Assistant United States Attorney, on the brief), for Richard P. 

Donoghue, United States Attorney for the Eastern District of New 

York, Brooklyn, N.Y. 

Appeal from the United States District Court for the Eastern District of New York (Brodie, J.). 
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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 Zane Skyers appeals from a judgment of conviction entered in the 

United States District Court for the Eastern District of New York (Brodie, J.) on April 5, 2018, 

following a three-day jury trial. Skyers was found guilty of conspiracy to import cocaine, in 

violation of 21 U.S.C. §§ 963 and 960(b)(3), and conspiracy to possess with intent to distribute 

cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). We assume the parties’ familiarity 

with the underlying facts, procedural history, and specification of issues for review. 

 Skyers primarily argues that (1) the evidence was legally insufficient to support the 

inference that he knew that the object of the conspiracy was to import and distribute cocaine, and 

(2) the district court erred in failing to sua sponte strike certain portions of the expert testimony 

of Detective Hernandez. We reject each argument in turn. 

1. Sufficiency of the Evidence 

 Although this Court reviews sufficiency of the evidence claims de novo, see United 

States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010), a defendant mounting such a challenge 

“bears a heavy burden,” United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) (internal 

quotation marks omitted). This is because, in assessing whether the evidence was sufficient to 

sustain a conviction, “we view the evidence in the light most favorable to the government, 

drawing all inferences in the government’s favor and deferring to the jury’s assessments of the 

witnesses’ credibility.” Sabhnani, 599 F.3d at 241 (internal quotation marks omitted). Following 

this review, we “must affirm the conviction if any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” United States v. Kozeny, 667 F.3d 

122, 139 (2d Cir. 2011) (internal quotation marks omitted). 

 To establish that a defendant conspired to import cocaine and conspired to possess with 

intent to distribute cocaine, the government must offer evidence that the defendant “agreed to 

participate in a joint venture intended to commit an unlawful act.” United States v. Parker, 554 

F.3d 230, 234 (2d Cir. 2009) (internal quotation marks omitted). Because “[c]onspiracies are 

secretive by their very nature,” the law is “well-settled that the elements of a conspiracy may be 

proved by circumstantial evidence.” United States v. Svoboda, 347 F.3d 471, 477 (2d Cir. 2003). 

“Circumstantial evidence probative of [a defendant’s knowledge of the object of a] conspiracy 

may include, for example, a defendant’s association with conspirators in furtherance of the 

conspiracy, his presence at critical stages of the conspiracy that cannot be explained by 

happenstance, or his possession of items that are of essential significance to the conspiracy.” 

United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014) (citations and internal quotation marks 

omitted). 

 First, Skyers calls attention to the lack of direct evidence the government produced at 

trial. See Anderson, 747 F.3d at 60; see also Svoboda, 347 F.3d at 477. But circumstantial 

evidence alone may be sufficient to prove conspiracy. See Svoboda, 347 F.3d at 477. Here, 

Skyers not only associated with Nicky, but he orchestrated Silvera’s trip and his introduction to 

Nicky. Skyers first approached Silvera, and Skyers drove from Boston to John F. Kennedy 
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Airport to pick up Silvera after he completed his task in St. Lucia. Finally, Skyers arranged for 

payments to Silvera. Such circumstantial evidence was sufficient for the jury to infer Skyers’s 

knowledge of the object of the conspiracy. 

 Next, Skyers essentially dissects each piece of evidence the government provided and 

explains how a different inference could be drawn from it. For example, Skyers argues that he 

could have been “merely a worker for hire like Silvera,” Appellant’s Br. at 37, that he (and 

possibly unspecified others) could have simply intended to pick up Silvera, but not the suitcase, 

from the airport, and that Nicky offered Silvera $8,000 and Skyers only offered him $4,000 

because Nicky, but not Skyers, knew that drugs were involved. But “the task of choosing among 

competing, permissible inferences is for the fact-finder, not for the reviewing court,” United 

States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001), and “we must credit every inference that 

could have been drawn in the government’s favor,” United States v. Masotto, 73 F.3d 1233, 1241 

(2d Cir. 1996) (internal quotation marks omitted). Doing so here, we find that a rational jury 

could have found the elements of the charged crimes beyond a reasonable doubt. 

2. Expert Testimony 

 Skyers next argues that the district court failed to exercise its gatekeeping function when 

it allowed Detective Hernandez to give expert testimony that he contends was irrelevant, 

unreliable, and unfairly prejudicial. This argument also fails. 

 We review a trial court’s decision to admit expert testimony for abuse of discretion. 

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). “A decision to admit [expert 

testimony] is not an abuse of discretion unless it is manifestly erroneous.” United States v. 

Salameh, 152 F.3d 88, 129 (2d Cir. 1998) (internal quotation marks omitted). Where a defendant 

fails to raise a challenge to expert testimony at trial, this Court’s review is limited to plain error. 

See Johnson v. United States, 520 U.S. 461, 466-67 (1997). Under this standard, the defendant 

bears the burden of demonstrating “that (1) there was error, (2) the error was plain, [and] (3) the 

error prejudicially affected his substantial rights.” United States v. Torrellas, 455 F.3d 96, 103 

(2d Cir. 2006) (alteration in original) (internal quotation marks omitted). If the defendant meets 

this burden, we may exercise our discretion to correct the error if it “seriously affect[ed] the 

fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in original) 

(internal quotation marks omitted). 

 First, Skyers argues that Hernandez’s expert testimony concerning the “flow of drug 

trafficking money” was irrelevant because it “was simply not at issue.” Appellant’s Br. at 47. 

“Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it 

would be without the evidence; and . . . the fact is of consequence in determining the action.” 

Fed. R. Evid. 401. Under Federal Rule of Evidence 702, an expert witness may provide opinion 

testimony if his or her “scientific, technical, or other specialized knowledge will help the trier of 

fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Hernandez 

testified that, following distribution of imported narcotics in the United States, “the monies from 

the sale of those narcotics will be transported back or sent back to the source of supply.” Gov’t 

App’x at 98. As the government correctly summarized, Hernandez generally explained “the way 

the drug trafficking circle works, the drugs come in and the money comes out.” Gov’t App’x at 
4 

106. Such testimony was relevant to helping the jury understand the general nature of 

international narcotics trafficking organizations. 

 Next, Skyers argues for the first time on appeal that Hernandez’s expert testimony was 

unreliable because Hernandez “testified that cocaine is not exported out of the United States” and 

that assertion is not true. Appellant’s Br. at 48. Hernandez was asked, “Now in your experience 

have you seen the process that you just described in reverse, such that drugs were leaving the 

country and money was coming in?” Gov’t App’x at 115. Hernandez responded, “No. The 

United States doesn’t cultivate or produce drugs of the type that come from overseas, such as 

cocaine and heroin. Those types of drugs are cultivated outside of the United States. So the 

United States being the biggest consumer of especially of cocaine and now of heroin, the drugs 

come in and of course the proceeds for those drugs, for the sale of those drugs, go back out to 

their sources overseas.” Gov’t App’x at 115. Given that Hernandez answered a question about 

his “experience,” the district court did not commit plain error in failing to sua sponte strike the 

testimony as unreliable. 

 Finally, Skyers argues—also for the first time on appeal—that Hernandez’s testimony ran 

“afoul of Rule 704(b)” because Hernandez testified that 1.5 kilograms of cocaine is related to 

distribution, rather than personal use. Federal Rule of Evidence 704(b) prohibits an expert 

witness in a criminal case from “stat[ing] an opinion about whether the defendant did or did not 

have a mental state or condition that constitutes an element of the crime charged or of a defense.” 

Fed. R. Evid. 704(b). The rule serves to “disable[] even an expert from expressly stating the final 

conclusion or inference as to a defendant’s actual mental state at the time of a crime.” United 

States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993) (internal quotation marks omitted). “It 

is only as to the last step in the inferential process — a conclusion as to the defendant’s actual 

mental state — that Rule 704(b) commands the expert to be silent.” Id. (internal quotation marks 

omitted). Here, Hernandez was asked, “In your opinion, possession of just under 1500 grams of 

cocaine, is that personal use or distribution?” Gov’t App’x at 120. Hernandez responded, “It is 

absolutely not related to personal use. It is absolutely related to distribution.” Gov’t App’x at 

120. Hernandez thus testified that 1500 grams of cocaine is related to distribution, rather than 

personal use. He did not testify that Skyers intended to distribute cocaine. Accordingly, the 

district court did not commit plain error in failing to sua sponte strike Hernandez’s testimony on 

the issue of distribution. 

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

merit. Accordingly, we hereby AFFIRM the district court’s judgment. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk