1 

14‐2567   

Gonzalez v. United States

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 24 3 th day of June, two thousand sixteen.

4 

5 PRESENT: ROSEMARY S. POOLER,

6 RAYMOND J. LOHIER, JR.,

7 SUSAN L. CARNEY,

8      Circuit Judges.   

9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 

11 Esteban Gonzalez,

12 

13 Plaintiff‐Appellant, 14 

15 v.     No. 14‐2567

16 

17 United States of America,   

18 

19      Defendant‐Appellee.

20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

21 

22 FOR PLAINTIFF‐APPELLANT:    SALLY WASSERMAN, Law Office of Sally

23 Wasserman, New York, NY.

24 

25 FOR DEFENDANT‐APPELLEE:    AMANDA L. HOULE, Assistant United

26 States Attorney (Brian A. Jacobs,

27 Assistant United States Attorney, on the

28 brief), for Preet Bharara, United States
2 

29 Attorney for the Southern District of

30 New York, New York, NY.   

31 

32 Appeal from a judgment of the United States District Court for the Southern District of 

33 New York (Jed S. Rakoff, Judge; James L. Cott, Magistrate Judge). 

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

35 DECREED that the judgment of the District Court is AFFIRMED. 

36 Esteban Gonzalez appeals from a June 20, 2014 judgment of the United States District 

37 Court for the Southern District of New York, in which it adopted a magistrate judge’s 

38 recommendation, denied petitioner’s objections to that recommendation, and denied petitioner’s 

39 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Gonzalez was convicted in 

40 1994 of possession of a firearm after having previously been convicted of a felony in violation of 

41 18 U.S.C. §§ 922(g)(1) and 924(e); he is currently serving a term of supervised release following a 

42 210-month term of imprisonment. Gonzalez argues primarily that the Government’s failure at 

43 trial to disclose two substantiated Civilian Complaint Review Board (“CCRB”) complaints against 

44 Police Officer Crowe, the sole eyewitness at trial, violated its obligations under Brady v. 

45 Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150, 154-55 (1972). We 

46 assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer 

47 only as necessary to explain our decision to affirm.

48 Gonzalez argues, first, that the CCRB’s substantiation of the two complaints amounted to 

49 adverse credibility determinations against Officer Crowe, and, second, that the alleged misconduct 

50 underlying the CCRB complaints was relevant to Officer Crowe’s character for truthfulness or 

51 untruthfulness and was thus a proper basis for cross-examination under Federal Rule of Criminal 

52 Procedure 608. Even assuming without deciding that Gonzalez could have used these complaints 
3 

53 to cross-examine Officer Crowe, we conclude, based on our review of this record, that there was 

54 no “reasonable probability that, had the evidence been disclosed . . . , the result of the proceeding 

55 would have been different.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987). At trial, Gonzalez 

56 thoroughly impeached Officer Crowe using his prior inconsistent statements about the 

57 circumstances surrounding Gonzalez’s arrest and pointing to his motive to lie. See United States 

58 v. Jackson, 345 F.3d 59, 74-75 (2d Cir. 2003); United States v. Orena, 145 F.3d 551, 559 (2d Cir. 

59 1998); Tankleff v. Senkowski, 135 F.3d 235, 251 (2d Cir. 1998). Further, the “key aspects” of 

60 Officer Crowe’s testimony “were corroborated” by other evidence, in particular by the discovery 

61 of two firearms in the location where Officer Crowe said he saw Gonzalez and his co-defendant 

62 throw them, as well as testimony demonstrating the implausibility of the theory that Officer Crowe 

63 planted the guns. United States v. Petrillo, 821 F.2d 85, 89-90 (2d Cir. 1987); see also United 

64 States v. Sperling, 506 F.2d 1323, 1335-40 (2d Cir. 1974) (reversing where testimony was not 

65 corroborated, affirming where testimony was corroborated by substantial independent testimony). 

66 We therefore agree with the District Court and the Magistrate Judge that the two complaints, 

67 though possibly useful insofar as they provided an additional basis to attack Officer Crowe’s 

68 credibility, could not “reasonably be taken to put the whole case in such a different light as to 

69 undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995); see Jackson, 

70 345 F.3d at 74; Orena, 145 F.3d at 559; see also Giglio, 405 U.S. at 154. 

71 We have considered all of Gonzalez’s remaining arguments and conclude that they are 

72 without merit. Accordingly, the judgment of the District Court is AFFIRMED. 

73 FOR THE COURT: 

74 Catherine O’Hagan Wolfe, Clerk of Court