United States v. Rodriguez and MooreUnited States v. Rodriguez and Moore
We have considered Gottlieb‘s other arguments on appeal and find them to be without merit. Accordingly, the order of the district court is hereby AFFIRMED.
Steve Zissou (Randall D. Unger, on the brief), Steve Zissou & Associates, Bayside, N.Y., for Defendant-Appellant Amadeo Rodriguez.
John S. Wallenstein, Garden City, N.Y., for Defendant-Appellant Christopher Moore.
Present: ROBERT D. SACK, ROBERT A. KATZMANN, and B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Defendants-Appellants Amadeo Rodriguez and Christopher Moore appeal from judgments of conviction entered by the district court on August 20, 2010. Each was found guilty, after a jury trial, of murder in aid of racketeering, in violation of
Rodriguez and Moore, joining in each other‘s claims pursuant to
During the trial, which commenced on May 19, 2008, the government called investigator Hector Alicea, an officer with the New York State Police, as “an expert on the structure and operation of the Nètas street gang.” Special App. 12. Alicea testified, inter alia, that Neta was a violent organization whose members were “involved in narcotics trafficking, auto theft, assaults, murders, robberies,” J.A. 454; that members of Neta could enhance their status within the gang by “committing crimes on behalf of the gang, whether it be dealing narcotics or stealing cars or committing assaults or procuring weapons or anything of that nature,” including murder, id. at 457; that Neta members who violated the gang‘s rules were disciplined for their infractions and that the punishment might be in the form of assault “or even sometimes murder,” id. at 456; and that encounters between members of Neta and MS-13 were generally violent, id. at 461.
On June 18, 2008, the jury convicted both defendants of all counts with which they were charged. On October 6, 2008—after the defendants had been convicted but before they had been sentenced—this Court issued an opinion addressing the admissibility of expert testimony offered by Hector Alicea in a different case involving the MS-13 gang. See United States v. Mejia, 545 F.3d 179 (2d Cir.2008). In United States v. Mejia, we held that the district court erred in admitting Alicea‘s testimony for three principal reasons. First, Alicea testified about matters not beyond the ken of the average juror in violation of
Following our decision in Mejia, the defendants filed a joint motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. By Opinion and Order dated April 5, 2010, the district court denied the motion. See United States v. Rodriguez, No. 03 CR 1342(SJF), 2010 WL 1371399, 2010 U.S. Dist. LEXIS 33999 (E.D.N.Y. Apr. 5, 2010). The district court concluded, inter alia, that Alicea‘s testimony was proper and that any error was harmless in any event because Alicea‘s testimony was cumulative of: (1) a stipulation entered into by the government and the defendants on June 11, 2008 setting forth the facts of the murder case against Joanna Pimentel (“La Madrina“), the “godmother” of Neta, see generally United States v. Pimentel, 346 F.3d 285 (2d Cir.2003); and (2) the testimony of four cooperating Neta gang members. See Rodriguez, 2010 WL 1371399, at *3-4, 2010 U.S. Dist. LEXIS 33999, at *9-12. After denying the motion, the district court proceeded with sentencing on July 27, 2010.
On appeal, defendants rely on Mejia to argue that the admission of Alicea‘s testimony violated Rules 702 and 703 of the Federal Rules of Evidence and the Confrontation Clause. We review the district court‘s admission of expert testimony for abuse of discretion, and we will not find error unless the district court‘s ruling was “manifestly erroneous.” Dukagjini, 326 F.3d at 52 (internal quotation marks omitted). Having reviewed the record de novo, we find no error with respect to the Confrontation Clause. As stated in Mejia, we have determined that an officer expert‘s testimony violates defendants’ Confrontation Clause rights under Crawford “if [the expert] communicated out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.” Mejia, 545 F.3d at 198 (alteration in original) (quoting United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir.2007)). In this case, unlike in Mejia, there is no evidence that Alicea communicated any out-of-court testimonial statements to the jury. Defendants’ arguments to the contrary are pure speculation. We thus find that the admission of Alicea‘s testimony did not violate defendants’ Confrontation Clause rights under Crawford.
Nonetheless, we conclude that much of Alicea‘s testimony was erroneously admitted in violation of the Federal Rules of Evidence for largely the same reasons explained in Mejia. First, Alicea‘s testimony “went far beyond interpreting jargon or coded messages, describing membership rules, or explaining organizational hierarchy.” Mejia, 545 F.3d at 195 (internal citations omitted). By testifying to facts “well within the grasp of the average juror,” id. at 194, Alicia‘s testimony violated
Having reviewed the record de novo, we conclude that the government‘s case was strong with respect to each of these elements and that Alicea‘s testimony was cumulative of other admissible evidence in the record. With respect to whether Neta was an enterprise that had an effect on interstate commerce, the prosecution called four former Neta gang members who testified extensively about, inter alia, the history of the gang, the hierarchy and structure of the gang, the rules of the gang, the hand signs of the gang, the meetings traveled to and attended by the gang members during which prayers were recited, the carrying of guns or other weapons by the members, the discipline meted out by the gang, the dues collected by the gang from its members and how the funds were used, and the gang‘s tattoos and colors worn by the gang‘s members. This testimony concerning the gang‘s history, hierarchy, and internal rules was more than sufficient to establish that Neta is an “enterprise” under RICO. See generally Boyle v. United States, 556 U.S. 938 (2009). Additionally, several of the cooperating witnesses testified that they traveled to meetings which drew gang members from multiple states, thus establishing that Neta had an effect on interstate commerce. Thus, we are satisfied that Alicea‘s erroneously admitted testimony on these issues was harmless beyond a reasonable doubt. See Mejia, 545 F.3d at 200-01 (concluding that Alicea‘s erroneously admitted testimony on both MS-13‘s enterprise status and effect on interstate commerce was harmless because it was cumulative of other testimony concerning the “gang‘s structure, membership rules, symbols, ... history” and interstate activities).
With respect to whether Neta engaged in acts involving murder, the same four witnesses testified to the many acts of violence engaged in by the gang‘s members, including the murders committed at the direction of La Madrina. Moreover, and of particular importance, the defendants themselves stipulated to all of the facts of the murders carried out at the behest of La Madrina. J.A. 934-37. Thus, in stark contrast to Mejia, where “Alicea was alone in testifying that MS-13 had actually committed eighteen to twenty-two or twenty-three murders in the preceding five years,” and “much of the remaining evidence consist[ed] of what [was] essentially ‘tough talk,‘” Mejia, 545 F.3d at 201, here the defendants themselves conceded that Neta engaged in acts involving murder.
Finally, the four cooperating witnesses offered detailed testimony about Neta‘s drug dealing activities, testimony that was
Q: Have you ever dealt drugs?
A: Yes, I did.
Q: What drugs did you deal?
A: Coke, Ecstacy and marijuana.
...
Q: Where did you deal your drugs?
A: Mainly in Freeport.
...
Q: How long were you dealing drugs in Freeport?
A: Like two or three years.
...
Q: Did you pay your dues [of $2 to $5 at each meeting]?
A: Yes. I guess I did.
Q: How did you get the money to pay your dues?
A: Either I was working or I was selling drugs.
...
Q: And did other Netas members sell drugs?
A: Yes.
Q: And of the total amount of Netas members that you were familiar with, what portion or what percentage sold drugs?
A: More than half.
...
Q: Did your membership in the Netas assist you in your drug selling?
A: Yes, yes.
Q: How?
A: They would get me customers. They wouldn‘t even try to rob me or something like that, because I had protection for that, too.
Q: Did you ever get drugs from Netas memebrs?
A: Yes.
Q: Drugs that you later sold?
A: Yes.
Q: Did you ever supply other Netas members with drugs?
A: Yes.
J.A. 698, 704-05. Other witnesses offered similar testimony. Accordingly, we are convinced that Alicea‘s testimony was cumulative of other evidence in the record with respect to each required element of the crimes charged, and that the erroneous admission of Alicea‘s testimony was therefore harmless beyond a reasonable doubt. See United States v. Reifler, 446 F.3d 65, 87 (2d Cir.2006).
We turn next to defendants’ second argument, i.e., that “the government‘s pretrial deportation of two witnesses who would have provided material and favorable testimony violated the [defendants‘] right to compulsory process.” Rodriguez‘s Br. 52 (capitalization removed). The Sixth Amendment guarantees a defendant the right “to have compulsory process for obtaining witnesses in his favor.”
Defendants next argue that the district court erred by denying their motions to sever. There is a preference in the federal system for joint trials of defendants who are indicted together, because joint trials promote efficiency and avoid the problem of inconsistent verdicts. See Zafiro v. United States, 506 U.S. 534, 537 (1993); United States v. Spinelli, 352 F.3d 48, 55 (2d Cir.2003). “Joint trials are often particularly appropriate in circumstances where the defendants are charged with participating in the same criminal conspiracy....” Spinelli, 352 F.3d at 55. However,
Defendants do not come close to meeting these rigorous standards. Rodriguez
We turn next to defendants’ contention that the district court‘s Pinkerton charge deprived them of a fair trial. Under the Pinkerton doctrine, “a jury [may] find a defendant guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed, that it had been committed in the furtherance of an unlawful conspiracy, and that the defendant was a member of that conspiracy.” United States v. Miley, 513 F.2d 1191, 1208 (2d Cir.1975) (citing Pinkerton v. United States, 328 U.S. 640, 645 (1946)). “We review challenged jury instructions de novo but will reverse only if all of the instructions, taken as a whole, caused a defendant prejudice.” United States v. Bok, 156 F.3d 157, 160 (2d Cir.1998).
In this case, defendants argue that because the government‘s theory of the case was that Moore and Rodriguez were the actual perpetrators, “the Pinkerton charge was inappropriate and unfairly prejudicial[] as it allowed the jury to speculate
Moreover, defendants offer no precedent for the proposition that a defendant cannot be found guilty on a Pinkerton theory of liability once the government has submitted independent evidence that the defendant committed the substantive crime in question. Indeed, the Pinkerton Court held that “it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses,” Pinkerton, 328 U.S. at 644, and we have consistently affirmed cases in which a Pinkerton charge was given even when the government submitted evidence suggesting that the defendant committed or aided the substantive crime(s) in question. See, e.g., United States v. Malpeso, 115 F.3d 155, 166 (2d Cir.1997) (argument that the district court erred in instructing the jury on both aiding and abetting and Pinkerton liability was “wholly frivolous“); United States v. Harwood, 998 F.2d 91, 100 (2d Cir.1993) (defendant possessed controlled substance); United States v. Corr, 543 F.2d 1042, 1050 (2d Cir.1976) (defendant “personally committed most of the substantive acts himself during and in furtherance of the conspiracy“). Accordingly, the district court‘s Pinkerton charge was not improper.
Finally, defendants challenge the sentences imposed by the district court. It is well established that we review sentences for both procedural and substantive and substantive reasonableness. United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). When a defendant fails to object at sentencing to the procedures employed by the district court, the procedural reasonableness of his sentences is reviewed, not only for abuse-of-discretion, but under the more deferential plain error standard of review. Id. at 128; United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir.2007) (“[W]e now expressly hold that rigorous plain error analysis is appropriate for such unpreserved [sentencing] errors.“). Pursuant to this standard, there must be an “error” that is “plain” and that affects “substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks and brackets omitted). Moreover, the decision to correct a forfeited error lies “within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
Defendants also argue that their sentences were substantively unreasonable because the imposition of consecutive sentences was “excessive and unreasonable.” Moore‘s Br. 23. This argument is without merit. It is well settled that separate punishments are authorized for a substantive crime and conspiracy to commit the same crime. See Callanan v. United States, 364 U.S. 587, 591-95 (1961).
We have considered the defendants’ remaining arguments and find them to be without merit. For the reasons stated herein, the judgments of the district court are AFFIRMED.