United States v. FernandezUnited States v. Fernandez
- Reporters:
- Before:
- Robert D. Sack, Reena Raggi, Christopher F. Droney
Defendants Joe Fernandez, Alberto Reyes, and Patrick Darge appeal from convictions arising from their roles in the murders of Arturo Cuellar and Ildefonso Vivero Flores. Fernandez—who stands convicted after a jury trial of conspiracy to commit murder-for-hire, see
1. Fernandez
a. Sufficiency Challenge
We review a sufficiency challenge de novo and must affirm the conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); accord United States v. Binday, 804 F.3d 558, 572 (2d Cir.2015). In conducting such review, we are mindful that a conviction can be sustained on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. See United States v. Diaz, 176 F.3d 52, 92 (2d Cir.1999).
Here, Fernandez‘s confederate, Patrick Darge, testified that in February 2000, Alberto Reyes, Jose Rodriguez-Mora, and Manuel Suero—all members of Jeffrey Minaya‘s drug organization—solicited Darge to murder Minaya‘s drug suppliers, Cuellar and Flores, in exchange for $180,000. After Darge agreed, he recruit
Fernandez argues that Darge‘s testimony was insufficient to sustain his conspiracy conviction because it was’ uncorroborated, This argument fails because’ any lack of corroboration “goes merely- to the weight of the evidence, not to its sufficiency.” United States v. Parker, 903 F.2d 91, 97 (2d Cir.1990) (explaining that “weight of the evidence is a. matter for argument to the jury, not a ground for reversal“). In any event, the record did corroborate Darge‘s testimony in several material respects: (1) both Reyes and Minaya testified that, in planning the murders, they understood that Darge and one of his cousins were going to kill Cuellar and Flores; (2) Reyes testified that, upon entering the apartment building lobby with Cuellar and Flores, he saw Darge and another man whom he did not recognize; (3) Darge‘s brother testified that, in 2011, Fernandez told him that he (Fernandez) participated in the murders with Darge, and discussed leaving the country to evade arrest for those crimes; and (4) Fernandez‘s prison cellmate, Yubel Mendez-Mendez, testified that Fernandez told Mendez that he (Fernandez) was incarcerated “due to the fact that he had participated with Patrick,” i.e., Darge, Trial Tr. 706. Insofar, as Fernandez‘s sufficiency challenge is based on Darge‘s alleged lack of credibility, his testimony was not incredible on its face and, therefore, we must defer to the jury‘s ássessment of his credibility. See United States v. Parker, 903 F.2d at 97.
Accordingly, Fernandez‘s sufficiency challenge fails.
b., Motion for a New Trial
Fernandez argues that the district court erred in denying his
i. Alleged Brady Violation
To establish a Brady violation, a defendant must show (1) that the evidence at issue is favorable to him because it is either exculpatory or impeaching, (2) the government suppressed that evidence, and (3) he was thereby prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); accord United States v. Madori, 419 F.3d 159, 169 (2d Cir.2005).
Here, Fernandez contends that the government violated Brady by failing to disclose notes of a proffer session in which Rivera denied involvement in the February 22, 2000 murders. Fernandez argues that he could have used this evidence to impeach Darge‘s testimony that Rivera was the getaway driver. We are not persuaded.
Review of the notes confirms the district court‘s observation that they do not reflect Rivera‘s unequivocal denial of a getaway driver role. Moreover, and in any event, Fernandez fails to show how the notes could have been “useful for impeachment,” in the sense of “having the potential to alter the jury‘s assessment of the credibility of a significant prosecution witness.” United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998). Rivera was not called as a prosecution witness, and Fernandez does not contend that he would have called him as a defense witness if he had been aware of the proffer notes, much less that Rivera would have been willing to testify. See United States v. Fernandez, No. 10 Cr. 863(AKH), 2014 WL 7180225, at *3 (S.D.N.Y. Nov. 25, 2014) (observing that Rivera‘s Fifth Amendment rights “presumably ... made him unavailable to be a witness for either party“); cf. Leka v. Portuondo, 257 F.3d 89, 106-07 (2d Cir.2001) (concluding that failure to disclose nontestifying eyewitness‘s account of crime at odds with those of testifying witnesses violated Brady where “testimony at trial would have had seismic impact, both because of what he would have said and because his testimony would have furnished the defense with promising lines of inquiry for” cross-examination of other witnesses). United States v. Jackson, 345 F.3d 59 (2d Cir.2003), on which Fernandez relies, is inapposite. There, this court made clear that “Brady and its progeny may require disclosure of exculpatory and/or impeachment materials whether those materials concern a testifying witness or a hearsay declarant.” Id. at 71 (emphasis added); see also United States v. Orena, 145 F.3d 551, 553 (2d Cir.1998) (considering Brady claim that undisclosed material could have been used to impeach out-of-court co-conspirator statements admitted under
Nor are we persuaded that the proffer notes could have usefully impeached Darge‘s testimony. Rivera‘s inability to remember, in 2012, whether he participated in the February 2000 murders was not necessarily probative of Darge‘s credibility in testifying that Rivera was the getaway driver. Fernandez nevertheless submits that he could have asked Darge if he (Darge) “had heard or was aware that Rivera denied being the driver of the getaway car,” Appellant Br. 28-29, but, even if Rivera‘s proffer statements could be so
In these circumstances, we cannot conclude that the district court abused its discretion in denying Fernandez‘s Brady-based Rule 33 motion.
ii. Newly Discovered Evidence
Fernandez also argues that newly discovered evidence in the form of his own October 13, 2011 Verizon Wireless telephone records warranted a new trial.2 He submits that these records cast doubt on trial evidence indicating that, at an October 13, 2011 meeting set up by Christian Guzman at Fernandez‘s request, Fernandez told Darge‘s brother that he (Fernandez) committed the February 22, 2000 murders with Darge, and discussed leaving the country to evade arrest for those crimes. We do not here decide what, if any, doubt the Verizon records cast on the prosecution evidence because we conclude, in any event, that the records cannot be deemed newly discovered evidence for purposes of a Rule 33 motion as, with “reasonable diligence,” they “could have been discovered before or during the trial.” United States v. Parse, 789 F.3d 83, 109 (2d Cir.2015). The Verizon records that purportedly contradict AT & T records admitted at trial are Fernandez‘s own cellphone records from October 2011 and, thus, were presumably available to him in the exercise of reasonable diligence at his 2013 trial. As for the AT & T text message log, if Fernandez sent Guzman a text message on October 13, 2011, rather than calling him, that was known to Fernandez well before trial commenced, providing him ample opportunity to obtain these records beforehand. See United States v. Capece, 287 F.2d 537, 538 (2d Cir.1961) (rejecting new trial motion based on purportedly impeaching Western Union records that did not show transfers testified to by cooperating witness because “[i]f [defendant] did not receive the money order, she knew this at the time of trial” and, therefore, had “ample time to obtain” Western Union records during trial).
Thus, the district court did not abuse its discretion in denying Fernandez a new trial based on newly discovered evidence.
2. Reyes‘s and Darge‘s Sentencing Challenges
We review Reyes‘s and Darge‘s sentences for “reasonableness,” which is “a particularly deferential form of abuse-of-discretion review.” United States v. Cavera, 550 F.3d 180, 187-88 & n. 5 (2d Cir.2008) (en banc); accord United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir.2012).
a. Reyes
Reyes argues that his 25-year prison sentence is disproportionate to the sentences imposed on other participants in the same murder-for-hire conspiracy. See
In sentencing Reyes, the district court acknowledged that Minaya, the leader of the murder-for-hire conspiracy, was sentenced to 15 years’ imprisonment, but explained that it would not use that sentence “as a precedent for everyone else” based on further consideration of the facts of this case. Reyes App‘x 79. We will not disturb this determination regarding the appropriate weight to give to the disparity between Minaya‘s and Reyes‘s sentences because we cannot conclude that Reyes‘s 25-year term of imprisonment sentence falls outside “the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189; see United States v. Florez, 447 F.3d at 158. The sentence reflected (1) a significant downward departure, pursuant to
Accordingly, we identify no merit in Reyes‘s sentencing challenge.
b. Darge
i. Procedural Reasonableness
Darge submits that his 30-year prison sentence is infected with procedural error because the district court (1) erroneously referred to the Guidelines as mandatory, and (2) failed to specify whether it was relying on
Darge‘s first argument merits little discussion because, although the Guidelines
Darge‘s complaint about the district court‘s failure to specify the basis for its departure is equally meritless. Although the decision to depart from a statutory mandatory minimum and the maximum extent of such a departure may, under
ii. Substantive Reasonableness
Darge‘s substantive challenge to his sentence also fails because his 30-year prison term cannot be said to fall outside “the range of permissible decisions” available to the district court. United States v. Cavera, 550 F.3d at 189; see also United States v. Jones, 531 F.3d 163, 174 (2d Cir.2008) (observing that “broad range” of sentences can be substantively reasonable).
In urging otherwise, Darge faults the district court for not according more weight to his cooperation. We are not persuaded. Darge—who testified at Fernandez‘s trial to joining the murder-for-hire conspiracy as the primary shooter, soliciting others to participate, and shooting one of the victims dead—faced a statutory minimum term of life imprisonment for his
Darge‘s disproportionality argument relative to confederates is also meritless. As discussed with respect to Reyes‘s sentence, where a district court considers disparities among confederates, “the weight to be given such disparities, like the weight to be
Thus, to the extent Darge‘s challenge is substantive as well as procedural, it fails because the record does not permit us. to conclude that this is one of those “exceptional cases” where the district court‘s below-Guidelines sentence falls outside of the range of permissible decisions. United States v. Cavera, 550 F.3d at 189; see United States v. Perez-Frias, 636 F.3d at 43.
Accordingly, we reject Darge‘s sentencing challenge.
3. Conclusion
We have considered defendants’ remaining arguments and conclude that they are without merit. We therefore AFFIRM the judgments of the district court.