1 16-0344(L) United States v. Reyes



### UNITED STATES COURT OF APPEALS 1 

### FOR THE SECOND CIRCUIT 2 3 

## SUMMARY ORDER 4

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**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER** 6

**FILED ON OR AFTER J**  **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  7
**A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY** 8

**ORDER IN**  **A DOCUMENT**  **FILED WITH**  **THIS COURT**  **, A**  **PARTY MUST**  **CITE EITHER**  **THE F**  **EDERAL A**  **PPENDIX** 9

**OR AN**  **ELECTRONIC DATABASE**  **( WITH**  **THE NOTATION**  **‘ SUMMARY**  **ORDER ’).**  **A PARTY**  **CITING A**  **SUMMARY** 10

**ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .**  11 12 **At a stated term of the United States Court of Appeals for** 13 **the Second Circuit, held at the Thurgood Marshall United States** 14 **Courthouse, 40 Foley Square, in the City of New York, on the** 15 **13 th** **day of January, two thousand seventeen.** 16
17 **PRESENT: DENNIS JACOBS,** 18 **SUSAN L. CARNEY,** 19 **Circuit Judges,** 20 **KATHERINE POLK FAILLA,** 21 **District Judge.*** 22
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25 **United States,** 26 **Appellee,** 27
28 **-v.- 16-0344(L)** 29 **16-739(con)** 30 **Ronaldo Reyes,** 31 **Defendant-Appellant.** 32
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* Judge Katherine Polk Failla of the United States District Court for the Southern District of New York, sitting by designation.2 **FOR APPELLANT:** Benjamin W. Hill, Dreyer Boyajian 1 LLP, Albany, NY. 2
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**FOR APPELLEE:** Douglas G.N. Collyer, Paul D. 4 Silver, Assistant United States 5 Attorneys, for Richard S. 6 Hartunian, United States Attorney 7 for the Northern District of New 8 York, Albany, NY. 9
10 Appeal from a final order of the United States District Court 11 for the Northern District of New York (Scullin, J.). 12

**UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND** 13
**DECREED** that the judgment of the district court be **AFFIRMED**

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15 Ronaldo Reyes appeals from a judgment of conviction entered 16 in the United States District Court for the Northern District 17 of New York (Scullin, J.). Reyes was convicted after a jury trial 18 of one count of conspiring to bring and seven counts of bringing 19 aliens to the United States unlawfully for the purpose of 20 commercial advantage and private financial gain, in violation 21 of 8 U.S.C. § 1324(a). He was sentenced principally to a 60-month 22 term of imprisonment. We assume the parties’ familiarity with 23 the underlying facts, the procedural history, and the issues 24 presented for review. 25

**1.** Reyes was convicted for his role in smuggling aliens 26 on several dates. Reyes argues that his conviction on Counts 27 Three through Six, which relate to one instance of smuggling 28 four aliens, should be vacated because the only evidence 29 regarding his financial incentives was the testimony of a single 30 witness who could not testify that Reyes was paid or otherwise 31 committed the offense for commercial advantage or financial 32 gain. 33

“We review challenges to the sufficiency of evidence de 34 novo,” but while “view[ing] the evidence in the light most 35 favorable to the government, drawing all inferences in the 36 government’s favor and deferring to the jury’s assessments of 37 the witnesses’ credibility.” United States v. Pierce, 785 F.3d 38 832, 837-38 (2d Cir. 2015). “[T]he evidence must be viewed in 393 conjunction, not in isolation,” United States v. Persico, 645 1 F.3d 85, 104 (2d Cir. 2011), and “[w]e will sustain the jury’s 2 verdict if any rational trier of fact could have found the 3 essential elements of the crime beyond a reasonable doubt.” 4 Pierce, 785 F.3d at 838 (internal quotation marks omitted). 5

The evidence that Reyes was paid for the particular 6 smuggling charged in Counts Three through Six was 7 circumstantial; but taking it together, and viewing it in the 8 light most favorable to the government, there is enough for a 9 rational trier of fact to convict. Cooperating witness Clarisa 10 Gil-Corcino, who pleaded guilty to her role in the smuggling 11 in question, testified that: (1) Reyes had told Gil-Corcino that 12 he and his uncle were in the alien smuggling business and split 13 the profits; (2) one of the illegally transported aliens had 14 asked Gil-Corcino if she could find someone to transport her; 15 (3) Gil-Corcino asked Reyes what it would cost; (4) Reyes quoted 16 a price; and (5) Reyes offered to pay Gil-Corcino to pick up 17 aliens when they had made it across the border. Gil-Corcino 18 agreed and was caught in the act. A rational jury would be 19 entitled to credit that testimony and, considering its totality, 20 could find beyond a reasonable doubt that the aliens Gil-Corcino 21 picked up on the date charged in Counts Three through Six were 22 sent by Reyes, who had arranged their transport for profit as 23 part of a pattern of alien smuggling that provided sufficient 24 funds for Reyes to pay Gil-Corcino for her role. 25

**2.** Reyes argues that hearsay testimony elicited at trial 26 violated his Sixth Amendment rights and deprived him of a fair 27 trial. The testimony in question was not admitted, but was 28 erroneously elicited and subsequently stricken. The government 29 asked Gil-Corcino, “And [Reyes] got paid, right?” J.A. 184. 30 The district judge overruled Reyes’s objection, and Gil-Corcino 31 began to answer, “Yes, the illegals,” before the district judge 32 inquired into the basis for that testimony, realized it was 33 hearsay, and struck the question and the answer. J.A. 184-85. 34

The government concedes it was error to elicit Gil-Corcino’s 35 answer, which she could provide only on the basis of statements 36 by third parties. Her brief response was not received in 37 evidence, however: it was immediately stricken, it was not 38 mentioned again, and the jury was instructed to disregard 394 stricken testimony. Juries are generally presumed to “follow 1 the instructions they are given.” United States v. Agrawal, 726 2 F.3d 235, 258 (2d Cir. 2013). The evidence was easily sufficient 3 to sustain the conviction without Gil-Corcino’s interrupted 4 response to the government’s improper question. Reyes and the 5 government dispute whether the issue was sufficiently raised 6 in the district court, and therefore whether review is for plain 7

error, but in any event the stricken answer did not deprive Reyes 8 of a fair trial. 9

**3.** The district court admitted into evidence photographs 10 taken by a “Buckeye Cam” infrared camera placed in the woods 11 near the border. Reyes argues that the district court abused 12 its discretion because the images are of poor quality and lack 13 probative value, and because the Border Patrol Agent through 14 whose testimony the photographs were introduced could not 15 testify as to the camera’s precise location, or as to its 16 technological features. 17

Our review of the decision to admit such evidence “is highly 18 deferential in recognition of the district court’s superior 19 position to assess” it. United States v. Coppola, 671 F.3d 220, 20 244 (2d Cir. 2012) (quotations marks omitted). We will only 21 reverse the district court’s ruling as an abuse of discretion 22 if it “was arbitrary and irrational.” Id. We find no error in 23 this case. 24

The testimony about the camera’s placement and functioning 25 was sufficient to lay a foundation for the photographs’ 26 admission. Reyes presents no argument that the images are 27 anything other than what they purport to be. If their grainy 28 quality or vagueness about the camera’s precise location 29 impaired the probative value of the images, their potential to 30 prejudice Reyes would be correspondingly reduced. He presents 31

no plausible argument that he was unfairly prejudiced or deprived 32 of a fair trial because of their admission. 33

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365 Accordingly, and finding no merit in appellants’ other 1 arguments, we hereby **AFFIRM** the judgment of the district court. 2

FOR THE COURT: 3 CATHERINE O’HAGAN WOLFE, CLERK 4
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