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‐ 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held 1

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2

York, on the 24 th day of June, two thousand sixteen. 3

4

PRESENT: ROSEMARY S. POOLER, 5

RAYMOND J. LOHIER, JR., 6

SUSAN L. CARNEY, 7

Circuit Judges. 8

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

Esteban Gonzalez, 11

12

Plaintiff

‐ Appellant

, 13

14

v. No. 14

‐ 2567 15

16

United States of America, 17

18

Defendant

‐ Appellee. 19

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21

FOR PLAINTIFF

‐ APPELLANT: S ALLY W ASSERMAN

, Law Office of Sally 22

Wasserman, New York, NY. 23

24

FOR DEFENDANT

‐ APPELLEE: A MANDA L. H OULE

, Assistant United 25

States Attorney (Brian A. Jacobs, 26

Assistant United States Attorney, on the 27

brief ), for Preet Bharara, United States 282 Attorney for the Southern District of 29

New York, New York, NY. 30

31

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

only as necessary to explai n our decision to affirm. 47

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

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

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

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

Procedure 608. Even assuming without deciding th at Gonzalez could have used these complaints 523 to cross-examine Officer Crowe, we conclude, base d on our review of this record, that there was 53

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

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

thoroughly impeached Officer Crowe using his pr ior inconsistent statements about the 56

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

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

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

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

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

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

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

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

corroborated, affirming where test imony was corroborated by substan tial independent testimony). 65

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

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

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

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

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

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

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

FOR THE COURT: 73

Catherine O’Hagan Wolfe, Clerk of Court 74