1

07-2912-cr(L), 08-6210-cr(CON)

USA v. Ramirez

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 _____________________

4 August Term, 2009

5 (Argued: December 17, 2009 Decided: June 29, 2010)

6 Docket Nos. 07-2912-cr(L), 08-6210-cr(CON)

7 _____________________

8 UNITED STATES OF AMERICA,

9 Appellee,

10 — v .—

11 ARCADIO RAMIREZ, JOSÉ LUIS RODRIGUEZ,

12 Appellants-Defendants,

13 ALEX LUNA,

14 Defendant.

15 Before: CALABRESI, CABRANES, AND B.D. PARKER, Circuit Judges.

16 ___________________

17 Appeal from convictions for conspiracy to distribute cocaine, challenging the admission of police

18 officer’s rebuttal testimony under the “impeachment by contradiction doctrine.” Affirmed.

19 ___________________

20 Robert J. Sullivan, Jr., Westport, CT, for

21 Defendant-Appellant Rodriguez.

22 Barry A. Weinstein, Goldstein & Weinstein, Bronx,

23 NY, for Defendant-Appellant Ramirez.
2

1 Harold H. Chen, Assistant United States Attorney

2 (William J. Nardini, Assistant United States

3 Attorney, on the brief), for Nora R. Dannehy,

4 United States Attorney, District of Connecticut,

5 New Haven, CT, for Appellee United States of

6 America.

7 ________________________________________________________________________

8 BARRINGTON D. PARKER, CIRCUIT JUDGE:

9 This appeal stems from the defendants' convictions in the United States District Court for the

10 District of Connecticut (Underhill, J.) for their participation in a large-scale cocaine trafficking

11 conspiracy. The indictment charged Rodriguez with being a major supplier of cocaine to a Danbury,

12 Connecticut drug distribution network from 2002 to 2005, and charged Ramirez with similar conduct

13 from 1998 to 2005. Ultimately, Rodriguez was convicted of conspiracy to distribute 5 kilograms of

14 cocaine or 50 grams of cocaine base, and Ramirez for 500 grams of cocaine or 5 grams of cocaine

15 base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846.

16 On appeal, Rodriguez challenges his conviction on two separate grounds, while Ramirez

17 challenges his sentence. Rodriguez argues that two rebuttal witnesses – police officer Waldo Cuba

18 and Maria Robles – should not have been permitted to testify about collateral matters, and that their

19 testimony severely prejudiced his defense. He also complains that the bill of particulars filed by the

20 government on the eve of trial was inadequate, and that the indictment should have been dismissed.

21 Ramirez, for his part, claims that the sentencing judge improperly found him responsible for 15

22 kilograms of cocaine, resulting in a 204-month sentence, afterthe jury expressly rejected such a large

23 drug quantity in its special interrogatory responses. Thus, according to Ramirez, the district court

24 improperly relied on "acquitted conduct" to establish drug quantity at sentencing.

25 We find that the district court erred in admitting Officer Cuba's testimony to impeach

26 Rodriguez. Nonetheless, we affirm his conviction, ultimately finding this error harmless. Because
3

1 we reject Rodriguez's other claims, as well as Ramirez's sentencing challenge, the defendants'

2 convictions and sentences are affirmed.

3 I. BACKGROUND

4 The defendants were charged and convicted for their roles in a drug distribution conspiracy

5 involving the weekly transport of cocaine from Brooklyn, New York to Danbury, Connecticut.

6 Co-conspirator José Adames (also known as "Pompa" or "Ponpa") led the trafficking operation.

7 From 2002 to 2005, Rodriguez was alleged to be Adames's driver for many of the trips to Danbury,

8 where the drugs were purchased for resale by Alex Luna, another co-conspirator. Ramirez, in his

9 role, also often accompanied Adames to Connecticut, and was responsible for supplying and

10 distributing cocaine in Brooklyn over an even longer period.

11 Rodriguez was arrested in Massachusetts and, according to the testimony of one of the

12 arresting officers, confessed to his role in the conspiracy while being transported back to Connecticut

13 for prosecution. At trial, the government also offered the testimony of three other co-conspirators

14 who described Rodriguez's involvement with Adames, Luna, and Ramirez in regular cocaine

15 transactions. Finally, the government presented video surveillance of Rodriguez meeting with

16 Adames and Luna in Danbury, although the video did not show any drugs changing hands.

17 Rodriguez testified in his own defense. He foreswore any knowing involvement in the

18 narcotics conspiracy and denied the alleged confession. Instead, he claimed that, although he had

19 acted as Adames's driver over a period of years, he had no knowledge of any drug transactions.

20 According to Rodriguez, he came to know Adames socially, through friends and family; when

21 Rodriguez later lost his job, Adames began to ask Rodriguez to drive him places, including Danbury,

22 to visit relatives. Rodriguez testified that he never saw or knew of any cocaine on these trips.

23 Because he was without work, Rodriguez says he continued to chaffeur Adames periodically until
4

1 late 2004 when Rodriguez's mother warned him that Adames was thought to be involved with drugs.

2 Rodriguez claims that he confronted Adames about these rumors and, although they were denied,

3 that he subsequently distanced himself from Adames.

4 The government sought to undermine Rodriguez's defense by, among other things,

5 cross-examining him about his contact with drugs during this period. Relying on Rodriguez's denial

6 of any involvement with cocaine on both direct and cross-examination, the government also sought

7 to introduce the rebuttal testimony of police officer Waldo Cuba and Alex Luna’s girlfriend, Maria

8 Robles. In particular, Officer Cuba reported seeing Rodriguez handling cocaine during an unrelated

9 drug stop shortly after the conspiracy had ended. Robles, for her part, testified about Rodriguez’s

10 involvement with drug trafficking during the indicted period. The trial court acknowledged that this

11 testimony had the potential to be extremely damaging; nonetheless, over Rodriguez’s objections, it

12 admitted the testimony of both witnesses. 

13 Ultimately, the jury convicted each defendant of conspiracy to possess with intent to

14 distribute cocaine, in violation of 21 U.S.C. §§ 841, 846. Rodriguez was subsequently sentenced

15 to 120 months imprisonment, while Ramirez was sentenced to 204 months imprisonment. 

16 II. RODRIGUEZ

17 A. Admission of impeachment testimony 

18 Rodriguez claims that the district court erred when it permitted the rebuttal testimony of 

19 Cuba and Robles. The testimony of both witnesses was offered to prove that Rodriguez had had

20 previous contact with drugs, thereby impeaching his statements to the contrary as well as his overall

21 credibility. Officer Cuba provided testimony describing Rodriguez's involvement in a separate

22 drug-related stop in Queens on March 30, 2005. Importantly, this stop occurred after the period of

23 the charged conspiracy and, in fact, after Adames had already been arrested. Cuba testified that,
5

1 while posted with the Special Narcotics Enforcement Unit, he had seen Rodriguez outside a vehicle

2 placing what appeared to be plastic bags of cocaine into a small plastic box. Cuba subsequently

3 followed the vehicle and radioed his fellow officers, who pulled Rodriguez over and arrested the

4 SUV's two occupants. The arrest report indicates that Rodriguez later received an adjournment in

5 contemplation of dismissal ("ACD") and that all records relating to the incident were sealed. In view

6 of this fact, the prosecution was unable to account for how it had received a copy of the sealed arrest

7 report, claiming that it mysteriously arrived by fax with no identifiable source.

8 In her testimony, Maria Robles, briefly described a conversation with Rodriguez while the

9 conspiracy was ongoing, in which he recounted swallowing "balloons" of cocaine in order to

10 smuggle them into the country from the Dominican Republic. She also reported seeing Rodriguez

11 accompany Adames on drug deliveries to Danbury on a weekly basis, and stated that Rodriguez had

12 made deliveries alone on two or three occasions.

13 1. Standard of review

14 In general, we will not overturn the district court's decision to admit or reject evidence absent

15 an abuse of discretion. See United States v. Esdaille, 769 F.2d 104, 108 (2d Cir. 1985). Even if we

16 conclude that the admission of the rebuttal testimonyherewas in error, the government contends that

17 any such error was harmless. See Fed. R. Crim. P. 52(a); United States v. Madori, 419 F.3d 159, 168

18 (2d Cir. 2005). Broadly speaking, the erroneous admission of evidence is harmless where it "had

19 no substantial and injurious effect or influence on the jury verdict," judged in relation to the total

20 evidence on the issue in question. United States v. Garcia, 413 F.3d 201, 217 (2d Cir. 2005)

21 (quotation marks omitted).

22 2. Analysis
We have previously held that a defendant’s statements on cross-examination may be impeached 1

by evidence otherwise suppressed under the exclusionary rule. See United States v. Atherton, 936 F.2d

728, 734 (2d Cir. 1991) (citing United States v. Havens, 446 U.S. 620 (1980)); Beverly, 5 F.3d at 639-40

(stating, in dicta, that "[t]he same holds true for defendant's false statements on cross-examination").

However, like other courts, we have been reluctant to extend this principle to evidence prohibited by the

Federal Rules of Evidence, which often serve different policy goals. See United States v. Lawson, 683

6

1 Generally, the Federal Rules of Evidence bar the admission of extrinsic evidence, like Officer

2 Cuba’s testimony, related to the past conduct of a witness. The government concedes as much,

3 acknowledging that the testimony related to an entirely collateral matter and did not serve as proof

4 of the charged offense. Indeed, because Rodriguez's March 30, 2005 arrest occurred after the end

5 of the indicted conspiracy, Officer Cuba's rebuttal testimony would normally have been precluded

6 by Federal Rule of Evidence 608(b), which prohibits extrinsic evidence of exactly this kind.

7 Nonetheless, the government argues that this evidence was admissible for the purpose of

8 "impeachment by contradiction," which operates as a limited exception to Rule 608(b). "Where a

9 defendant testifies on direct about a specific fact, the prosecution is entitled to prove . . . that he lied

10 as to that fact." United States v. Beverly, 5 F.3d 633, 639-40 (2d Cir. 1993) (permitting use of

11 extrinsic evidence). More precisely, this doctrine provides that when a witness puts certain facts at

12 issue in his testimony, the government may seek to rebut those facts, including by resorting to

13 extrinsic evidence if necessary. According to the government, the point of this exception is that a

14 defendant may not invoke the Federal Rules of Evidence in order to shield his perjury from

15 contradiction.

16 The government contends that Rodriguez's statements on both direct and cross-examination

17 triggered the exception, but the trial record simply does not bear out this rationale. It is an open

18 question in our Court whether the government can present extrinsic evidence to impeach by

19 contradiction a statement made by the defendant on cross-examination, where such evidence would

20 otherwise be barred by the Federal Rules of Evidence. We need not resolve this question because,

1
F.2d 688, 692 (2d Cir. 1982) (distinguishing Havens because “[a] principal purpose of the exclusionary

rule under Miranda is to deter police officers while Rules 410 and 11(e)(6) are designed to encourage

plea bargaining”); see also Walder v. United States, 347 U.S. 62, 66 (1954) (prohibiting impeachment

evidence where the government had “smuggle[d] in” the impeaching opportunity in the course of crossexamination) (citing Agnello v. United States, 269 U.S. 20, 35 (1925)); United States v. Pantone, 609

F.2d 675, 683 (3d Cir. 1979); United States v. Warledo, 557 F.2d 721, 726 (10th Cir. 1977); United

States v. Lambert, 463 F.2d 552, 557 (7th Cir. 1972).

7

1 as a factual matter, Officer Cuba did not impeach either Rodriguez's testimony on direct examination

2 or his responses on cross-examination.

3 By highlighting Rodriguez’s unrelated stop while in possession of cocaine, Officer Cuba's

4 rebuttal testimony was purportedly offered to impeach Rodriguez's statements that he had never seen

5 or handled drugs. Yet Rodriguez never gave the testimony that the government ascribes to him. The

6 transcript is pellucid that on both direct and cross-examination, Rodriguez was responding to a series

7 of questions about his work for Adames and the time-period covered by the alleged conspiracy. For

8 instance, at the end of a lengthy colloquy focused on Adames's activities from 2001 to 2004, defense

9 counsel asked Rodriguez:

10 Def. Counsel: During the time that you were just describing, did you see any deliveries of

11 drugs of any kind?

12 Rodriguez: No, I never see no drugs. 

13 Gov't App'x at 118-19 (emphasis added). The government pins its rebuttal claim on this testimony,

14 yet it is abundantly clear from the context that Rodriguez was not issuing a blanket denial of ever

15 having seen drugs. 

16 The verysame is true of Rodriguez's cross-examination testimony, where he was asked about

17 his activities during the charged conspiracy:

18 Gov't: Mr. Rodriguez, you're claiming you never saw any drugs in this whole time

19 period, correct?

20 Rodriguez: No, never.

21 Gov't: Except for marijuana. You saw marijuana, right?

22 Rodriguez: Yes.
8

1 Gov't: Okay, but you never saw cocaine?

2 Rodriguez: No. 

3 Gov't App'x at 134 (emphasis added). The government points to no instances where Rodriguez

4 forswore, as a universal matter, ever having seen drugs of any kind. Compare Walder v. United

5 States, 347 U.S. 62, 65 (1954). Nor did his reference to having had “a little problem before” provide

6 a predicate for admitting Officer Cuba's testimony about the arrest. The government contends that

7 this “little problem” referred to the drug stop, which opened the door to its rebuttal testimony. But

8 reading Rodriguez’s statement in context, again, makes clear that he was referring to an earlier event

9 – as he allegedly decided to distance himself from Adames – not an arrest that occurred after the

10 conspiracy's conclusion: "[Y]ou know, I don't want to get no more trouble, so I think Mom was right

11 at that time." Most of all, none of these statements show that Rodriguez staked his credibility before

12 the jury on any expansive assertion about lifelong avoidance of drugs. Indeed, the government

13 inaccurately characterizes the trial record when it suggests as much.

14 As a result, we see no basis for admitting Officer Cuba's testimony under the "impeachment

15 by contradiction" doctrine and conclude that it should have been barred by Federal Rule of Evidence

16 608(b). On the other hand, we sustain the district court’s admission of Maria Robles's testimony.

17 That testimony – describing Rodriguez's transport and delivery of cocaine – related to the charged

18 conspiracy, and contradicted Rodriguez's statement on direct examination that he had no contact with

19 drugs during the relevant period. We cannot say that the admission of this evidence was an abuse

20 of discretion.

21 3. Harmless Error

22 "A district court's erroneous admission of evidence is harmless if the appellate court can

23 conclude with fair assurance that the evidence did not substantially influence the jury." United States

24 v. Al-Moayad, 545 F.3d 139, 164 (2d Cir. 2008) (internal quotation marks omitted). In reviewing
9

1 for harmless error, "we principally consider (1) the overall strength of the prosecution's case; (2) the

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

3 wrongly admitted [evidence]; and (4) whether such evidence was cumulative of other properly

4 admitted evidence." United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007) (internal quotation

5 marks omitted). We have frequently stated that the strength of the government's case is the most

6 critical factor in assessing whether error was harmless. See, e.g., United States v. Lombardozzi, 491

7 F.3d 61, 76 (2d Cir. 2007).

8 There is no question that a police officer's testimony about a previous unrelated drug stop can

9 prove extremely damaging to a defendant at trial. It functions essentially as evidence of criminal

10 propensity and presents exactly the risk of undue prejudice that the Federal Rules of Evidence are

11 designed to guard against. We do not treat the erroneous admission of such evidence lightly, and

12 we weigh its effect on the jury carefully. Cf. United States v. McCallum, 584 F.3d 471, 478 (2d Cir.

13 2009) ("In a different case, in which . . . the government's other evidence was not overwhelming, or

14 where the other harmless error factors tilted more strongly in the defendant's favor, or where the

15 government's summation emphasized the prior [misconduct], a different result could well be

16 indicated.").

17 Even with these precautions, we conclude that the government's evidence was sufficiently

18 conclusive and its case sufficiently robust such that the error in Rodriguez's case was harmless. The

19 government introduced a series of co-conspirators who testified to Rodriguez's knowing involvement

20 in the cocaine trafficking operation. Nelson Rosa testified about cocaine deliveries Rodriguez made

21 to him in Danbury, about money that Rodriguez received from Alex Luna in exchange for drugs,

22 about how Rodriguez would retrieve cocaine from the vehicle he drove for Adames, and about how

23 Rodriguez helped Adames cook cocaine into crack.
10

1 José Pena provided similar testimony, describing Rodriguez's role as a driver who would

2 often "bring down the merchandise," and who was frequently present when Adames discussed

3 cocaine sales or handed off drugs hidden in the car's secret compartment. Nicky Carrasquillo

4 recounted for the jury how Rodriguez accompanied Adames on repeated drug deliveries, and how

5 he too had witnessed Rodriguez and Adames removing drugs from secret compartments in two

6 vehicles. He also described seeing Rodriguez "compressing" cocaine at Adames's house – that is,

7 mixing relatively pure cocaine with other substances in order to increase the overall resale profits.

8 Finally, Maria Robles, another cooperating co-conspirator, testified to seeing Rodriguez and Adames

9 deliver cocaine, approximatelyone kilogram at a time, to her boyfriend Alex Luna on a weekly basis.

10 She also told the jury that Rodriguez and Adames once ran Luna's drug business in Danbury while

11 she and Luna vacationed in the Dominican Republic.

12 In addition to these witnesses, the prosecution called Special Agent Rodney George, who

13 described statements Rodriguez made shortly after his arrest. According to this testimony,

14 Rodriguez confessed to his involvement in Adames's drug trafficking operation while he was

15 transported from Boston, where he was arrested, to Connecticut. As he rode with Agent George,

16 Rodriguez allegedly told him how he had become aware of Adames's cocaine trafficking, had met

17 Adames's supplier, and had driven Adames to make frequent deliveries in Danbury. 

18 Lastly, the government produced video surveillance of Rodriguez and Adames meeting Luna

19 in Danbury. This surveillance showed the three men arriving in a parking lot, warily surveying their

20 surroundings, and then proceeding into an apartment. While the footage, taken outside, does not

21 show any drugs changing hands, the meeting followed a phone call in which Luna asked Adames

22 to deliver 200 grams of cocaine.
11

1 Together, all this evidence is at odds with Rodriguez's claim that, although he frequently

2 drove Adames to Danbury for a period of years, he knew nothing of Adames's drug trafficking

3 activities. Needless to say, given the scale and frequency of Adames's cocaine deliveries to Luna,

4 such a defense strains belief. Based on the strength ofthe government's evidence to the contrary, and

5 the many witnesses who testified to Rodriguez's knowing involvement, we conclude that the

6 erroneous admission of Agent Cuba's rebuttal testimony was harmless.

7 B. Bill of particulars

8 We conclude that the district court did not err in determining that the government's

9 submission in response to the district court's order for a bill of particulars was sufficient. The district

10 court granted Rodriguez's motion for a bill of particulars, and in response, the government submitted

11 a 62-page summary of the evidence that it intended to introduce at trial. Although the government's

12 submission did not take the traditional format of a bill of particulars, the district court found that the

13 government's submission contained sufficient specificity to inform Rodriguez of the charges against

14 him and to prevent undue surprise at trial. In light of the fact that Rodriguez has not, on appeal,

15 identified "any particular charge on which further detail would have been helpful," In re Terrorist

16 Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 151 (2d Cir. 2008), we find no error in the

17 district court's ruling, and we will not overturn Rodriguez's conviction on the ground that the

18 government's submission was not formatted as a traditional bill of particulars.

19 Whether to grant a bill of particulars is generally a decision entrusted to the sound discretion

20 of the district court. See United States v. Barnes, 158 F.3d 662, 665-66 (2d Cir. 1998). That being

21 the case, a district court's determination that a bill of particulars is sufficient would appear to be

22 entitled to an even greater measure of deference. See id. at 665 ("A district court judge . . . has the
12

1 discretion to deny a bill of particulars if the information sought by defendant is provided in the

2 indictment or in some acceptable alternate form." (quotation marks omitted)).

3 In this case, the bill of particulars, though lengthy, significantly condensed the voluminous

4 discovery produced by the prosecution into a form that apprised Rodriguez of what the government

5 would seek to prove at trial. See United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988) (A

6 bill of particulars enables a "defendant to prepare for trial, to prevent surprise, and to interpose a plea

7 of double jeopardy should he be prosecuted a second time for the same offense." (quotation marks

8 omitted)). The district court made clear that it ordered a bill of particulars because so much

9 discovery was produced to the defendants, not too little. That being the case, the bill, though not

10 formatted in the traditional fashion, adequately and appropriately explicated the charges Rodriguez

11 faced so that he could defend against them. He cannot show that he was entitled to anything more.

12 We have considered Rodriguez's remaining arguments on appeal and find them meritless.

13 We therefore affirm Rodriguez's conviction.

14 III. RAMIREZ

15 Ramirez appeals arguing that the district court erred by basing his sentence on a finding that

16 he was responsible for at least 15 kilograms of cocaine. When a district court makes a finding of fact

17 with respect to the amount of drugs attributable to a defendant, we review that finding for clear error.

18 United States v. Hazut, 140 F.3d 187, 190 (2d Cir. 1998);see also Untied States v. Cavera, 550 F.3d

19 180, 190 (2d Cir. 2008) (en banc) ("A district court commits procedural error [at sentencing] where

20 it . . . rests its sentence on a clearly erroneous finding of fact."). "The clearly erroneous standard

21 requires us to uphold the ruling of the court below unless we are 'left with the definite and firm

22 conviction that a mistake has been committed.'" United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir.

23 1996) (quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948)).
13

1 Having reviewed the record, we conclude that there was ample evidence at trial, at

2 sentencing, and in the PSR to support the district court's finding that Ramirez conspired to distribute

3 (or conspired to possess with intent to distribute) an amount of cocaine that was "very easily over

4 the 15-kilogram minimum." We conclude, therefore, that the district court did not commit clear

5 error. We have considered Ramirez's additional arguments on appeal and find them meritless. We

6 affirm Ramirez's sentence.

7 IV. CONCLUSION

8 For the foregoing reasons, the defendants' convictions and sentences are AFFIRMED.