United States v. ArroyoUnited States v. Arroyo
Damian Williams (Justin Anderson, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY. for Appellee.
PRESENT: RALPH K. WINTER, JOSÉ A. CABRANES and REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Defendant Charles Arroyo appeals a judgment of conviction from the District Court after a jury found him guilty of distribution and possession with intent to distribute cocaine, in violation of
On appeal, Arroyo identifies purported trial error in the admission of evidence concerning his discharging of a firearm, nearly seven months after he sold the charged cocaine. The evidence included testimony from Peter Gjelaj, a superintendent in the building where Arroyo fired the weapon, and a surveillance video depicting the defendant firing the weapon. Arroyo also contends that Gjelaj’s in-court identification was improper and that the District Court should not have permitted him to state that he witnessed Arroyo fire a round on the video. Finally, Arroyo contests the sufficiency of the evidence establishing that the white substance that he distributed was cocaine. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
DISCUSSION
I. Other Act Evidence
We review a district court’s evidentiary rulings for abuse of discretion, and will not reverse unless the district court’s decision was “manifestly erroneous.” United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 87-88 (2d Cir.1999) (internal quotation marks and citation omitted). A district court has “broad discretion” over the admission of evidence. United States v. Nektalov, 461 F.3d 309, 318 (2d Cir.2006). If a district court errs in admitting evidence, harmless error analysis applies in determining whether reversal is required. United States v. Yousef, 327 F.3d 56, 156 (2d Cir.2003). “[O]nly when the court has acted arbitrarily or irrationally” will we reverse an evidentiary ruling. Nektalov, 461 F.3d at 318.
We have adopted an “inclusionary” approach to “other act” evidence under
Arroyo argues that the District Court erred in admitting at the trial for his September 2011 activities evidence relating to the March 2012 shooting. Specifically, he argues that Gjelaj’s testimony regarding the 2012 shooting and the accompanying surveillance video were irrelevant and highly prejudicial as they only serve to highlight criminal propensity. Arroyo further argues that trial counsel did not “open the door” to this evidence by telling the jury that the Government would not produce evidence of a gun in its opening statement and by directly inquiring about the existence of a gun, or lack thereof, during the cross-examination of the police officer who arrested Arroyo in September 2011.
However, evidence that Arroyo possessed a firearm less than seven months after the September 2011 drug sales is certainly relevant to show that he had an opportunity to possess a gun at the time of those sales. See United States v. Robinson, 560 F.2d 507, 513 (2d Cir.1977) (en banc) (holding that evidence of subsequent possession of a firearm was admissible as “it tended to show [that defendant] had the ‘opportunity’ to commit the [earlier crime], since he had access to an instrument similar to that used to commit it”). Evidence of the March 2012 incident is especially relevant since defense counsel, in his opening statement, underscored that the jury would not “see a gun” during the trial, J.A. 120—a theme that he returned to during his cross-examination of the arresting police officer. Trial counsel was trying to communicate a simple message to the jury: Arroyo could not have committed the firearm offense in 2011 because he had no access to a gun. The District Court recognized this “implied claim[]” and rightly allowed the Government to rebut it with evidence that less than seven months later, Arroyo had access to a firearm. J.A. 191.
Arroyo contends that even if evidence of the March 2012 shooting is relevant, its probative value is substantially outweighed by its prejudicial effect. See
II. In-Court Identification
Arroyo argues that the District Court improperly permitted Gjelaj, the building superintendent who witnessed the March 2012 shooting, to identify him at trial. The basis of Arroyo’s argument is that the police had previously shown Gjelaj a single photograph of Arroyo.
We review a district court’s decision regarding the admissibility of identification evidence for clear error. United States v. Mohammed, 27 F.3d 815, 821 (2d Cir. 1994). When a defendant challenges identification testimony given by a witness who has identified him prior to trial, we conduct a two-part inquiry, asking whether (1) the pretrial identification procedures were unduly suggestive and if so, (2) the identification lacks independent reliability. See Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir.2001). To assess reliability, we look to “(1) the witness’s opportunity to view the criminal at the time of the crime; (2)
Here, even if we were to resolve the undue suggestiveness question in Arroyo’s favor, Gjelaj’s testimony had clear independent reliability. Gjelaj told police that he recognized Arroyo as the boyfriend of one of the building’s tenants, and testified that he had seen Arroyo in the building several times. Gjelaj had the opportunity to view Arroyo on the television screen at the time of the crime from a safe distance. Gjelaj also provided the police with an accurate description of Arroyo prior to being shown the defendant’s booking photograph and was able to identify him with certainty. Finally, only seven hours had passed between when Gjelaj viewed Arroyo discharge his firearm and when he identified Arroyo to the police.
III. Lay Opinion Testimony
Arroyo argues that Gjelaj should not have been permitted to state his opinion that Arroyo was the man depicted on the surveillance video because the jury was capable of making that determination itself.
Here, the District Court acted well within its discretion in determining that Gjelaj’s identification of Arroyo as the man in the video was based on factors that the jury did not possess, namely Gjelaj’s familiarity with Arroyo’s manner of dress, gait, and demeanor observed in Gjelaj’s several prior encounters with Arroyo. This court has previously found such insights sufficient to render an opinion helpful to the jury. See United States v. Garcia, 413 F.3d 201, 211 (2d Cir.2005) (“Recognizing that eyewitnesses sometimes find it difficult to describe the appearance or relationship of persons, the atmosphere of a place, or the value of an object by reference only to objective facts, the law permits such witnesses to testify to their personal perceptions in the form of inferences or conclusory opinions.”) Accordingly, Gjelaj’s opinion was properly admitted under Rule 701.
IV. Sufficiency of the Evidence
We review Arroyo’s challenge to the sufficiency of the evidence supporting his conviction on Count One de novo, United States v. Desposito, 704 F.3d 221, 226 (2d Cir.2013), but mindful that he “bears a heavy burden,” United States v. Coplan, 703 F.3d 46, 62 (2d Cir.2012) (quotation marks omitted), because we review evidence on a sufficiency challenge “in the light most favorable to the government and draw[] all inferences in favor of the government.” United States v. Henry, 325 F.3d 93, 103 (2d Cir.2003). Moreover, we will uphold a conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Coplan, 703 F.3d at 62 (quoting
We have previously held that “neither actual drug exhibits nor reports of chemical analysis are required to support a conviction for possession of a controlled substance.” Gaskin, 364 F.3d at 460. Rather, “[l]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction.” United States v. Bryce, 208 F.3d 346, 353 (2d Cir.1999) (citation omitted).
Arroyo’s insufficiency claim borders on the frivolous. A reasonable jury could have concluded from the testimony of four separate witnesses that Arroyo indeed sold them cocaine on September 4, 2011. These witnesses provided a detailed description of Arroyo’s cocaine dealings over a span of six months. The witnesses described the cocaine’s physical appearance, used the words “coke” and “cocaine” when purchasing the drugs from Arroyo, and then snorted the white powdery substance. This evidence is clearly sufficient to demonstrate to a rational trier of fact that Arroyo was dealing cocaine.
CONCLUSION
We have considered Arroyo’s remaining arguments and find them without merit. Accordingly, we AFFIRM the October 2, 2013 judgment of the District Court.