United States v. DeLaRosa
700 F. App'x 13
| 2d Cir. | 2017Background
- Noel DeLaRosa was tried and convicted in the District of Vermont for conspiracy to distribute ≥5 kg cocaine and ≥100 kg marijuana (21 U.S.C. §§ 841, 846); the jury convicted him after a ten‑day trial.
- The indictment charged a single conspiracy spanning early 2006 to "on or about June 16, 2009," occurring "in the District of Vermont and elsewhere."
- Government’s theory: DeLaRosa ran a Schenectady‑based supply operation that obtained narcotics (from NY, Florida, Arizona), processed them, and supplied customers including John Brooker in Vermont.
- At trial the government introduced evidence of narcotics trafficking involving Arizona contacts that post‑dated Brooker’s June 16, 2009 arrest; DeLaRosa challenged admission as improper Rule 404(b) evidence and as a constructive amendment/variance.
- Post‑trial DeLaRosa raised multiple claims including ineffective assistance of trial counsel (shackling before jury, cross‑examination, failure to challenge venue, elicitation of prior conviction evidence), alleged government knowledge of witness perjury, and a sentencing argument invoking Alleyne concerning mandatory minimums.
- The Second Circuit affirmed the district court’s judgment, rejecting DeLaRosa’s challenges for the reasons summarized below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of post‑June 16, 2009 Arizona drug evidence | Gov: Evidence shows a single continuing conspiracy “in Vermont and elsewhere”; Arizona activity is direct evidence of that conspiracy | DeLaRosa: Conspiracy ended when Brooker was arrested; post‑June 16 Arizona activity was improper other‑acts evidence under Rule 404(b) | Court: Evidence was direct proof of the single conspiracy (not extrinsic bad acts); alternatively any error was harmless |
| Constructive amendment / variance from indictment | Gov: Indictment charged conspiracy "in Vermont and elsewhere" to "on or about" June 16, 2009 | DeLaRosa: Proof at trial broadened or deviated from indictment by showing post‑June 16 conduct elsewhere | Court: No constructive amendment or prejudicial variance; indictment’s "and elsewhere"/"on or about" language encompassed the proof |
| Ineffective assistance — shackling and courtroom appearance | DeLaRosa: Counsel should have objected to his brief shackling in front of jury panel | DeLaRosa contends counsel’s failure prejudiced fair trial | Court: Brief/inadvertent view of shackles is not inherently prejudicial; co‑defendant moved for mistrial and court denied; counsel’s failure to object would have been cumulative and not ineffective |
| Ineffective assistance — venue challenge | DeLaRosa: Counsel should have challenged venue in Vermont | Gov: Conspiracy is continuing; overt acts in Vermont support venue | Court: Venue proper because overt acts in furtherance occurred in Vermont; counsel not deficient for failing to challenge |
| Alleged perjury / new trial | DeLaRosa: Government knew or should have known witnesses committed perjury | Gov: Testimony was material, subject to cross‑examination, or due to faulty memory | Court: No showing of willful false testimony on material matters; no new‑trial relief warranted |
| Alleyne / mandatory minimum based on prior conviction | DeLaRosa: Alleyne requires jury finding of facts that increase mandatory minimums; prior conviction used to enhance sentencing | Gov: Almendarez‑Torres remains good law allowing judge to rely on prior convictions | Court: Almendarez‑Torres controls; judge may find prior conviction for sentence calculation; Alleyne does not disturb that rule |
Key Cases Cited
- Martino v. United States, 664 F.2d 860 (2d Cir.) (single‑conspiracy analysis)
- Berger v. United States, 224 F.3d 107 (2d Cir.) (factors for single conspiracy)
- Maldonado‑Rivera v. United States, 922 F.2d 934 (2d Cir.) (single conspiracy phases/locales do not necessarily create multiple conspiracies)
- Sir Kue Chin v. United States, 534 F.2d 1032 (2d Cir.) (supplier with multiple sources/purchasers can be in single conspiracy)
- Rigas v. United States, 490 F.3d 208 (2d Cir.) (constructive amendment/variance standards)
- McGee v. United States, 564 F.3d 136 (2d Cir.) ("on or about" date formulation — proof need only be reasonably near)
- Williams v. United States, 612 F.3d 417 (6th Cir.) ("in ... and elsewhere" suffices to cover conduct outside named district)
- Taylor v. United States, 562 F.2d 1345 (2d Cir.) (brief/inadvertent shackling not inherently prejudicial)
- Josephberg v. United States, 562 F.3d 478 (2d Cir.) (standards for proving perjury/new trial)
- Dunnigan v. United States, 507 U.S. 87 (Sup. Ct.) (definition of perjury for sentencing/new‑trial purposes)
- Rosa v. United States, 17 F.3d 1531 (2d Cir.) (venue in conspiracy prosecutions — overt act rule)
- Naranjo v. United States, 14 F.3d 145 (2d Cir.) (defendant need not be present in district for venue on conspiracy charge)
- Rommy v. United States, 506 F.3d 108 (2d Cir.) (no need for actual knowledge of overt act in district for venue)
- Alleyne v. United States, 133 S. Ct. 2151 (Sup. Ct.) (facts increasing mandatory minimum must be found by jury; did not overrule Almendarez‑Torres)
- Almendarez‑Torres v. United States, 523 U.S. 224 (Sup. Ct.) (prior‑conviction exception permitting judge to find prior conviction for sentencing)