12-4444-cr United States v. Handle Bulgin 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING 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 30 th day of April, two thousand fourteen.
Present: BARRINGTON D. PARKER PETER W. HALL, Circuit Judges , KIYO A. MATSUMOTO, District Judge

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____________________________________________________ U NITED S TATES OF A MERICA , Appellee , v. No. 12-4444-cr
H ANDLE B ULGIN , Defendant–Appellant

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____________________________________________________ FOR APPELLANT: Bruce R. Br yan, Esq., Syracuse, New York. FOR APPELLEE: Tanisha R. Pa yne, Assistant United Stat es Attorney (Peter A. Norling, Assistant United States Attorney, on the brief ), for Loretta E. Lynch, United States Attorney for the Eastern District of New York.

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1 The Honorable Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Korman, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of th e district court is AFFIRMED. Defendant–Appellant Handle Bulgin appeals from a judgment of conviction following a trial by jury in which Bulgin was found guilty of one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(vii), and th ree counts of distribu tion of marijuana, in violation of 21 U.S.C. §§ 841(a )(1), (b)(1)(D). On appeal, Bulgin argues the evidence was insufficient to establish that he knew the boxes he was handling contained marijuana. He also challenges the admission of evidence that incl uded photographs of jewelry and money. We assume the parties’ familiarity with the relevant facts, the procedural history, and the issues presented for review. “We review de novo challenges to the sufficiency of the evidence underlying a criminal conviction, but a defendant bears a heavy burden, because we review evidence on a sufficiency challenge in the light most favor able to the government and draw all inferences in favor of the government.” United States v. Lee , 723 F.3d 134, 143 (2d Cir. 2013) (internal quotation marks, citations, and alterations omitted). To succeed on such a challenge, a defendant “must show that no rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt[.]” United States v. Caracappa , 614 F.3d 30, 43 (2d Cir. 2010) (internal quotation marks omitted). In the context of a prosecution for conspiracy pursuant to 21 U.S.C. § 846, “the government must show that two or more persons entered into a joint ente rprise for an unlawful purpose, with awareness of its general nature and extent.” United States v. Torres , 604 F.3d 58, 65 (2d Cir. 2010). Put alternatively, the governme nt must prove “that the defendant knew that the conspiracy involved a controlled substance.” Id. at 66.3 Bulgin contends that the government failed to produce evidence that he knew the contents of boxes he transported and distributed to others contained ma rijuana, and thus the government failed to prove he was aware of the natu re and extent of the c onspiracy. In contexts similar to the one we face here, we have held that when a person possesses knowledge of the intention of a conspiracy to dist ribute drugs, and uses that know ledge “to facilitate or actually facilitates the crime, a jury may reasonably infe r from this combinati on of knowledge and action that the defendant has adopted the kn own goal of the crime as his own.” United States v. Heras , 609 F.3d 101, 107 (2d Cir. 2010). We have also e xplained that the government can support its case through either direct eviden ce or circumstantial evidence. Id. at 106. Reviewing the record in this case, we conclude that the governmen t produced evidence upon which a rational trier of fact could find the essen tial elements of the crim e beyond a reasonable doubt. See generally
Torres , 604 F.3d at 67; see also United States v. Santos , 541 F.3d 63, 71–74 (2d Cir. 2008) (evidence of involvement in murders also s upported conviction for cons piracy to distribute narcotics); and see United States v. Huezo , 546 F.3d 174, 181–84 (2d Cir. 2008) (evidence including both direct testimony by cooperating witnesses and law en forcement officials, as well as circumstantial evidence, was sufficient to de monstrate defendant understood the goal of the conspiracy). The evidence here included testimony from numerous law enforcement officials testifying to the scope of their surveillance of Bulgin as he tr ansported boxes of marijuana for delivery on multiple occasions. Specifically, Detective Isaias Colon surveilled Bulgin transporting large boxes from hi s place of employment to a go ld minivan. Detective Colon testified that he and other officers later stopped that minivan for a motor vehicle violation, and when talking with the driver and passenger, the officers detected the strong smell of marijuana emanating from the vehicle. The vehicle was searched, and the boxes Bulgin had delivered to4 the van were discovered to contain bricks of ma rijuana. The driver and passenger were later charged in state court. DEA Agent Baldus al so testified to a similar sequence of events occurring at a later date, when he witnessed Bu lgin transport boxes from his work to a BMW. Upon stopping the BMW, Agent Baldus also de tected the strong odor of marijuana. A subsequent search of the BMW revealed boxes containing marijuana. The testimony of law enforcement officials included the description of yet a third incident during which Bulgin delivered boxes of marijuana to an automobile. The government also called several of Bulgin’s fellow employees, who explained the scope of Bulgin ’s work responsibilitie s, including his role in the warehouse receiving, delivering, and mailing shipments where he worked with minimal oversight. Additionally, in Bulg in’s possession at the time of hi s arrest the police found state court criminal documents related to the driver and passenger of the gold minivan. Contrary to Bulgin’s argu ments on appeal, the evidence he re demonstrates a level of involvement far more substantial than the pass ing involvement that we have held to be insufficient in other contexts. See United States v. Ogando , 547 F.3d 102, 108 (2d Cir. 2008) (a taxi driver’s presence at a pick up with mini mal additional evidence of personal contacts was insufficient to support conviction); see also United States v. Lorenzo , 534 F.3d 153, 160–61 (2d Cir. 2008) (the defendant’s contac ts with alleged co-conspirators were nonetheless insufficient to demonstrate that the defendant kne w the purpose of the conspiracy); and see United States v.
Samaria , 239 F.3d 228, 236–38 (2d Cir. 2001) (a cab driv er’s presence in a car with other conspirators and his assistance loading boxes were insufficient to demonstrate knowledge of the purpose of the conspiracy). Viewing the eviden ce here in the light most favorable to the government, we hold that it was sufficient to perm it the jury to find that Bulgin knew the boxes contained marijuana, see United States v. Davis , 690 F.3d 127 (2d Cir. 2012) (upholding a conviction when the evidence included defendant’s trips to originating loca tion of shipments, his5 recruitment of other co-conspirato rs, his attempts to conceal hi s identity as the receiver of shipments, and his possession of th e ladings of sale), and thus wa s ample proof that Bulgin was a knowing participant in th e charged conspiracy. Bulgin also argues that the di strict court erred when it admitt ed three pieces of evidence: (1) the $21,300 seized from his bedroom; (2) th e photographs of Bulgin with cash; and (3) photographs of jewelry or receipts. “We review evidentiary rulings for abuse of discretion[ . . . and w]e will find an abuse of discretion only wher e the trial judge ruled in an arbitrary or irrational fashion.” United States v. Kelley , 551 F.3d 171, 174–75 (2d Cir. 2009) (internal citations and internal quotation marks om itted). We apply a highly deferential standard of review, recognizing “the distri ct court’s superior position to assess relevancy and to weigh the probative value of evidence against its potential for unf air prejudice.” United States v. Coppola , 671 F.3d 220, 244 (2d Cir. 2012), cert. denied , 133 S. Ct. 843 (2013). Reviewing the record here, we conclude that the district court did not abuse its discretion in admitting the forgoing evidence. In other instances we have upheld a district court’s decision to allow evidence of monetary gain when “a defendant is on trial fo r a crime in which pecuniary gain is the usual motive . . . .” United States v. Jackskion , 102 F.3d 683, 684 (2d Cir. 1939). Similarly, in United
States v. Tramunti , 513 F.2d 1087 (2d Cir. 1975), we held that evidence of proceeds from a venture arguably disassociated from the crimes charged was admissible because “[e]vidence of sudden acquisition of large amounts of money is al so admissible to prove criminal misconduct when pecuniary gain, as he re, is the basic motive.” Id. at 1105 (citing United States v. Jackskion , 102 F.3d 683, 684 (2d Cir. 1939)). Given that the c ontested evidence here tended to demonstrate pecuniary gain commensurate with the distribu tion of marijuana and wa s therefore relevant, see Fed. R. Evid. 401, the district court did not abuse its discretion by admitting it.6 We have considered all of Bulgin’s remain ing arguments and conc lude that they are without merit. We, therefore, AFFIRM the October 24, 2012 judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk