*The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

1 08-0524-cr(L), 08-2342-cr(CON) United States v. Gonzalez



### UNITED STATES COURT OF APPEALS
**FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED**

**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A**

**DOCUMENT FILED WITH THIS COURT ,** **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 3 rd** **day of November, two thousand ten.** 4
5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **REENA RAGGI,** 8 **Circuit Judge ,**  9 **JED S. RAKOFF,** 10 **District Judge**

**.** ***** 11 12

- - - - - - - - - - - - - - - - - - - -X 13 **UNITED STATES OF AMERICA,** 14 15 **Appellee ,**  16 17 **-v.- 08-0524-cr(L)** 18 **08-2342-cr(CON)** 19 **DAVID GONZALEZ, PEDRO GONZALEZ,** 20 21**The Clerk of the Court is directed to amend the official caption to conform to the docket numbers listed above.

2 **Defendants-Appellants**

**.  1 2

- - - - - - - - - - - - - - - - - - - -X 3 4

** APPEARING FOR APPELLANT:** Marc Fernich, New York, NY, for 5 Defendant-Appellant Pedro 6 Gonzales. 7 8 Edward D. Wilford, (Karloff 9 Commissiong, on the brief ), New 10 York, NY, for Defendant11 Appellant David Gonzales. 12 13

**APPEARING FOR APPELLEE:** Steve C. Lee, Assistant United 14 States Attorney (Daniel A. 15 Braun, Assistant United States 16 Attorney, on the brief ), for 17 Preet Bharara, United States 18 Attorney for the Southern 19 District of New York, United 20 States Attorney’s Office for the 21 Southern District of New York, 22 New York, NY. 23 24 Appeal from judgments of the United States District 25 Court for the Southern District of New York (Preska, J. ). 26 27 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 28

**AND DECREED**that the judgments of the district court be 29

**AFFIRMED**

. 30 31 Pedro Gonzales and David Gonzales appeal from judgments 32 of conviction entered on May 6, 2008 and January 22, 2008 33 (respectively), following a three-week jury trial. We 34 assume the parties’ familiarity with the underlying facts, 35 the procedural history, and the issues presented for review. 36 37 **[1]** Pedro argues that the delay between his arrest in 2003 38 and the start of his trial in September 2007 was a violation 39 of his speedy trial rights. He emphasizes the one-year 40 delay between the first superseding indictment and the 413 Department of Justice’s decision not to seek the death 1 penalty for his co-defendants

. 2 3 The Speedy Trial Act “imposes a unitary time clock on 4 all co-defendants joined for trial.” United States v. 5 Vasquez , 918 F.2d 329, 337 (2d Cir. 1990). The unitary 6 clock begins with the running of the clock for the most 7 recently added defendant. United States v. Gambino , 59 F.3d 8 353, 362 (2d Cir. 1995). Any “reasonable period of delay” 9 excluded for one defendant is automatically excluded for all 10 defendants; for a defendant to challenge the 11 “reasonableness” of delay attributable to a co-defendant, he 12 must first have moved for severance. Vasquez , 918 F.2d at 13 336-37; see18 U.S.C. § 3161(h)(6). Pedro concedes that his 14 attorney failed to make a written motion for severance 15 during that time period, but he argues that speedy trial 16 concerns raised on several occasions should be construed as 17 an oral motion to sever. 18 19 Pedro’s attorney clearly raised concerns about his 20 client’s speedy trial rights at an early date and mused 21 tentatively about bringing a severance motion. However, his 22 comments were always about the consequences of a potential 23 motion, should he choose to make one. See, e.g. , Pedro 24 Gonzales Appendix (“PG App.”) at 109 (“[T]he basis for a 25 severance motion which I will be presenting to the Court . . 26 .”) (emphasis added); id. at 119 (“I intendto make a motion 27 which would include as relief severance of this case. . . .” 28 (emphasis added)). The statements by Pedro’s counsel 29 “cannot be measured by [their] unexpressed intention or 30 wants” and “should be treated as nothing but what [they] 31 actually [were].” SeeJohnson v. N.Y., New Haven & Hartford 32

R.R. , 344 U.S. 48, 51 (1952). 33 34 In any event, the delay was reasonable between the 35 superseding indictment and the highly sensitive death 36 penalty decision. Moreover, the case was complex, and 37 additional time was necessary for discovery. Pedro 38 consented to several of the exclusions, and it is “plausible 39 to regard [a defendant’s] active participation and 40 acquiescence in such delays as itself a significant 41 indication of their reasonableness.” Vasquez , 918 F.2d at 42 337. Finally, many of the continuances were afforded (in 43 part) to allow Pedro’s counsel to research the formal motion 44 for severance that was never made. See, e.g. , PG App. at 45 83-84. 46 474 At oral argument, Pedro invited us to reconsider 1 Vasquez , and hold that a severance motion is not required to 2 challenge the reasonableness of delays attributable to a co3 defendant. We decline the invitation. The making of the 4 motion is important to give notice of a defendant’s claim of 5 speedy trial prejudice and to avoid gamesmanship in agreeing 6 to delays that are later challenged. Vasquez , 918 F.2d at 7 337. 8 9 The remainder of the time pre-trial was properly 10 excluded from the speedy trial clock under, among other 11 provisions, 18 U.S.C. § 3161(h)(1)(D) and § 3161(h)(7). As 12 to time excluded under (h)(7) to serve “the ends of 13 justice,” the record makes clear that the district court 14 understood the consequences of the delays and conducted the 15 required balancing under § 3161(h)(7)(B)(i)-(iv). See 16 United States v. Breen , 243 F.3d 591, 597 (2d Cir. 2001). 17 18 Pedro’s argument under the Sixth Amendment right to a 19 speedy trial is also unavailing. Of the four factors to be 20 considered under Barker v. Wingo , 407 U.S. 514, 530 (1972), 21 one favors Pedro (the length of the delay), while the others 22 favor the government: none of the delays were from 23 deliberate or bad faith efforts by the government; Pedro did 24 not press his speedy trial rights, only objecting to a few 25 of the exclusions; he made no showing of how the delay 26 impaired his defense (he called no witnesses and presented 27 no evidence at trial); and his argument that the delays 28 bolstered the government’s use of its cooperating witnesses 29 is speculative and unconvincing. 30 31 **[2]** Pedro and David argue that testimony about David’s 32 post-arrest statements was improperly redacted. The 33 argument comes down to the rule of completeness. SeeFed. 34 R. Evid. 106. David made a post-arrest statement that Soto 35 robbed drug dealers; the government used it to tie Soto’s 36 murder to the drug conspiracy; it is contended that the jury 37 should also have heard David’s statement that Pedro kept 38 David out of the drug business to protect him. 39 40 The rule of completeness permits a defendant to 41 introduce the remainder of a statement not otherwise 42 admissible if it is “necessary to explain the admitted 43 portion, to place the admitted portion in context, to avoid 44 misleading the jury, or to ensure fair and impartial 45 understanding of the admitted portion.” United States v. 46
Castro , 813 F.2d 571, 576 (2d Cir. 1987). We review the 475 district court’s application of the rule of completeness for 1 abuse of discretion. Id. 2 3 The admitted portion of David’s statement triggers none 4 of these concerns. Whether Soto was known to rob drug 5 dealers is an entirely separate issue from whether Pedro 6 sought to minimize David’s role in the conspiracy to protect 7 him; David’s comments about each issue were elicited by 8 separate questions of the investigator. The completeness 9 doctrine does not “require introduction of portions of a 10 statement that are neither explanatory of nor relevant to 11 the admitted passages.” United States v. Marin , 669 F.2d 12 73, 84 (2d Cir. 1982). David’s self-serving exculpatory 13 statement would be inadmissible hearsay even had he been 14 tried alone; the rule of completeness is not a mechanism to 15 bypass hearsay rules for any self-serving testimony. It was 16 within the district court’s discretion to conclude that the 17 admitted portion of David’s statements did not distort the 18 meaning of the full statement or exclude information that 19 was substantially exculpatory. SeeUnited States v. 20 Benitez , 920 F.2d 1080, 1086-87 (2d Cir. 1990). 21 22 **[3]** Pedro contends the district court improperly denied his 23 request for a jury charge about multiple conspiracies. A 24 criminal defendant is entitled to a jury instruction when 25 there is “some foundation in the proof” for it. United 26
States v. Dove , 916 F.2d 41, 47 (2d Cir. 1990). However, if 27 there is a variance between the single conspiracy charged 28 and multiple that have been proved at trial, we reverse only 29 upon a showing of substantial prejudice. United States v. 30 Cambindo Valencia , 609 F.2d 603, 625 (2d Cir. 1979). 31 32 Although Pedro had several different primary 33 accomplices during the life of the charged conspiracy, 34 Pedro’s presence was a constant throughout; changes in 35 membership “do not necessarily convert a single conspiracy 36 into multiple conspiracies, . . . especially where the 37 activity of a single person was ‘central to the involvement 38 of all.’ ” United States v. Eppolito , 543 F.3d 25, 48 (2d 39 Cir. 2008) (emphasis added) (citation omitted); see also 40 United States v. Vila , 599 F.2d 21, 24 (2d Cir. 1979) (“[A] 41 single conspiracy is not transposed into a multiple one 42 simply by lapse of time, change in membership, or a shifting 43 emphasis in its locale of operations.” (citation omitted)). 44 45 **[4]** The trial court admitted into evidence an IRS 46 certification that Pedro failed to file tax returns. Pedro 476 could not cross-examine the records-holder, and on that 1 ground asserts a challenge under Melendez-Diaz v. 2 Massachusetts , 129 S. Ct. 2527 (2009). Melendez-Diaz 3 expanded the category of materials that cannot be introduced 4 without affording an opportunity to cross-examine the 5 preparer. Id. at 2532 (holding that affidavits reflecting 6 forensic determination that substance was cocaine triggered 7 Confrontation Clause rights). The government concedes that 8 the admission of the certificate of nonexistence likely 9 violated the Sixth Amendment right to confrontation. 10 Government Brief at 75. 11 12 Pedro did not object to the admission of the records at 13 trial, however. Unpreserved Confrontation Clause objections 14 are subjected to plain error review. United States v. 15 Dukagjini , 326 F.3d 45, 59 (2d Cir. 2002). The 16 certifications (that the IRS had no record of Pedro filing 17 tax returns from 1991-2003) suggested Pedro had no 18 legitimate source of income, leading to an inference that he 19 dealt drugs to buy his cars, residences, and businesses. 20 Pedro’s attorney, however, conceded at trial that Pedro was 21 a drug dealer. PG App. at 831 (“He was a marijuana dealer, 22 no question about that. He made money.”). The IRS records 23 were of minimal importance, and the other evidence 24 supporting his conviction was substantial, including 25 testimony by multiple cooperating co-conspirators, large 26 quantities of drugs provided to an informant by one of 27 Pedro’s partners, a consensual recording of a meeting 28 between a cooperating witness and one of Pedro’s partners 29 discussing a large drug deal, paperwork reflecting lavish 30 purchases, and a video showing a hidden “trap” to carry 31 drugs in one of his cars. Therefore, even if Pedro’s 32 Confrontation Clause rights were violated, the violations do 33 not constitute plain error or warrant reversal. 34 35 **[5]** Pedro argues that his lawyer rendered constitutionally 36 ineffective assistance in failing to contest a vehicle 37 seizure that produced evidence used at trial. This Court 38 addresses ineffective assistance claims on direct appeal 39 when their resolution is “beyond any doubt.” United States 40

v. Matos , 905 F.2d 30, 32 (2d Cir. 1990). Ineffective 41 assistance claims are governed by the two-part test from 42 Strickland v. Washington , 466 U.S. 668, 687 (1984). 43 44 This claim does not withstand the Strickland 45 requirement for a showing of prejudice. Id. The government 46 introduced documents retrieved from the car, and a video of 477 a “drug trap” in the car was shown to the jury to bolster 1 the credibility of cooperating witness Geraldo, who 2 testified to the trap’s existence. The evidence from the 3 car was not central to the government’s case; if it had been 4 suppressed, overwhelming evidence (discussed above) would 5 nevertheless support the conviction. The trial counsel’s 6 error, if any, was therefore not “so serious as to deprive 7 the defendant of a fair trial,” id. , and accordingly we 8 reject Pedro’s ineffective assistance claim. 9 10 **[6]** David argues there was an impermissible lowering of the 11 burden of proof for his conviction for murder in relation to 12 a drug conspiracy. At bottom, the argument appears to be 13 that the jury charge failed to require premeditation for the 14 18 U.S.C. § 924(j) count. Murder under § 924(j)(1) requires 15 proof of an “unlawful killing of a human being with malice 16 aforethought.” See18 U.S.C. § 1111(a) (defining murder, as 17 referenced by § 924(j)(1)). The district court explained 18 that a subjective intent to kill was not required and that 19 “[t]he requisite malice can be found when the assailant acts 20 with awareness of a serious risk of death or serious bodily 21 harm.” PG App. at 965. This formulation is firmly 22 supported by our case law. See, e.g. , United States v. 23 Velazquez , 246 F.3d 204, 214 (2d Cir. 2001) (“[I]n the 24 context of second-degree murder in federal law, the 25 requisite malice can in some circumstances be found when the 26 assailant acts with awareness of ‘a serious risk of death or 27 serious bodily harm.’” (emphasis and citation omitted)). 28 The district court therefore properly defined the standard 29 for 18 U.S.C. § 924(j), and there was no lowering of the 30 burden of proof. 31 32 **[7]** David claims his Confrontation Clause and due process 33 rights were violated where the trial court limited cross34 examination of the cooperating co-conspirators involved in 35 Soto’s murder. David sought to probe whether they pled 36 guilty to the murder as principals or as aiders and 37 abettors, and whether they understood the pleas they made. 38 For Confrontation Clause purposes, a trial judge has wide 39 latitude to impose reasonable limits on cross-examination to 40 avoid “harassment, prejudice, confusion of the issues , the 41 witness’ safety, or interrogation that is repetitive or only 42 marginally relevant .” Delaware v. Van Arsdall , 475 U.S. 43 673, 679 (1986) (emphasis added). Such a decision to limit 44 cross examination will be reversed only upon a showing of 45 abuse of discretion. United States v. Maldonado-Rivera , 922 46 F.2d 934, 956 (2d Cir. 1990). 471David did not object to the charge on the ground that it failed to restate the need for a “substantive” connection between the murder and the charged conspiracy. We therefore review that aspect of the charge only for plain error. See United States v. Bell , 584 F.3d 478, 484 (2d Cir. 2009).

8 David’s questioning concerning the discussions the 1 witness had with his lawyer concerning the plea agreement 2 invaded the witness’s attorney-client privilege. David 3 further inquired as to whether the witness thought his prior 4 acts constituted the crimes to which he pled. These 5 questions sought to elicit a legal conclusion over a 6 complicated statutory scheme. These lines of questioning 7 were confusing, repetitive, and only marginally relevant; 8 the district court acted well within its discretion to limit 9 cross-examination. 10 11 **[8]** Among his challenges to the jury charge, David argues 12 that it improperly formulated the “substantive connection” 13 requirement of 21 U.S.C. § 848(e)(1)(a) and failed to 14 require a finding that aiding and abetting liability 15 requires membership in the drug conspiracy. We review jury 16 charges that were objected to at trial de novo

, 1reversing 17 only “where a charge either failed to inform the jury 18 adequately of the law or misled the jury about the correct 19 legal rule,” United States v. Ford , 435 F.3d 204, 209-10 (2d 20 Cir. 2006) (citation omitted), and where the error is not 21 harmless. United States v. Amuso , 21 F.3d 1251, 1261 (2d 22 Cir. 1994). 23 24 The jury charge adequately instructed the jury. 25 David’s complaint about the “substantive connection” 26 formulation focuses on a passage in an aiding and abetting 27 instruction that David takes out of context; and he omits 28 any discussion about the district court’s prior, more 29 detailed formulation of the standard, seePG App. at 969-70, 30 which adequately instructed the jury on the substantive 31 connection requirement of 21 U.S.C. § 848(e)(1)(a). See 32 United States v. Desinor , 525 F.3d 193, 202 (2d Cir. 2008). 33 34 David cites no supporting authority for his claim that 35 aiding and abetting liability for § 848(e)(1)(a) requires 36 membership in the drug conspiracy in order to establish a 37 “substantive connection,” and that the jury must make an 38 explicit finding; the argument misconstrues the requirements 39 of aiding and abetting liability under 18 U.S.C. § 2. 409 Moreover, any error was harmless because the jury found that 1 he was a member of the drug conspiracy. 2 3 **[9]** David challenges the district court’s refusal to 4 suppress incriminating post-arrest statements he made on the 5 way to and at the precinct. In reviewing a challenged 6 suppression ruling, we review legal conclusions de novoand 7 factual findings for clear error, in the light most 8 favorable to the government. United States v. Ivezaj , 568 9 F.3d 88, 96 (2d Cir. 2009). 10 11 The district court found that David received oral 12 Mirandawarnings on the way to the precinct and written 13 Mirandawarnings at the precinct; in so doing, it was 14 entitled to credit the written Mirandasheet signed by David 15 at the station and the testimony of the detective about the 16 conversation in the car rather than David’s affidavit to the 17 contrary, which was factually inconsistent with documentary 18 evidence. 19 20 The totality of the circumstances support the 21 conclusion that David’s waivers of his Mirandarights were 22 voluntary: “the product of an essentially free and 23 unconstrained choice by [their] maker.” United States v. 24 Bye , 919 F.2d 6, 8-9 (2d Cir. 1990) (citation omitted). 25 David’s statements in the car were prompted by a 26 conversation he initiated to determine why he was being 27 detained; in the station, David was read his rights one-by28 one, initialed each one, took time to read the form, and 29 signed it. 30 31 For these reasons, the district court did not err in 32 denying David’s motion to suppress. 33 34 **[10]** David claims that there was insufficient evidence to 35 support his conviction for the narcotics conspiracy. To 36 succeed on a claim of insufficient evidence, a party has the 37 “heavy burden” of showing that “no rational trier of fact, 38 viewing the evidence in the light most favorable to the 39 government, could have found him guilty beyond a reasonable 40 doubt of the essential elements of the crimes charged.” 41 United States v. Desena , 287 F.3d 170, 176-77 (2d Cir. 42 2002). We consider all evidence introduced at trial, even 43 if it was improperly admitted. United States v. Cruz , 363 44 F.3d 187, 197 (2d Cir. 2004). 45 46 4710 There was sufficient evidence for a rational jury to 1 have found David guilty of the narcotics conspiracy count, 2 even if the evidence suggests that he did not play a major 3 role. Testimony by co-conspirators and his own inculpatory 4 post-arrest statements establish he sold marijuana for 5 Pedro, steered customers to co-conspirators, cleaned the 6 apartment where marijuana was grown, delivered money or 7 drugs to a known drug den, and participated in Soto’s murder 8 to protect Pedro’s drug business. The evidence did not need 9 to cover the entire twelve-year period alleged in the 10 indictment; without affirmative evidence of withdrawal, a 11 person’s participation in a conspiracy is presumed to 12 continue until the last overt act by any of the 13 conspirators. SeeUnited States v. Diaz , 176 F.3d 52, 98 14 (2d Cir. 1999). 15 16 **[11]**David contends the government failed to establish the 17 elements of murder through the use of a firearm in relation 18 to a drug conspiracy, in violation of 18 U.S.C. § 924(j). 19 To the extent he argues that the evidence does not establish 20 his membership in the conspiracy, it is duplicative of his 21 sufficiency of the evidence argument for the conspiracy 22 count discussed above. David also argues that he did not 23 have the knowledge or intent to bring about the death of 24 Soto. However, testimony about David’s confessions and from 25 his co-conspirators suggests that David: knew Soto was in a 26 drug-related dispute with Pedro; retrieved a firearm from 27 his apartment; pursued the victim; gave the gun to a co28 conspirator in the lobby where the victim was trapped; 29 cocked the gun after it jammed; and received and hid the gun 30 after the murder. These facts are sufficient for a rational 31 trier of fact to have found David had the requisite mental 32 state for conviction under § 924(j), either as a principal, 33 an aider or abettor, or through the Pinkertoncharge. 34 35 We have considered the other arguments of David and Pedro 36 and conclude that they lack merit. For the foregoing 37 reasons, we hereby **AFFIRM**the judgments of the district 38

court. 39 40 41
FOR THE COURT: 42 CATHERINE O’HAGAN WOLFE, CLERK 43 44 45 46