UNITED STATES OF AMERICA, Appellee, –v.– KIRK TANG YUK, AKA SEALED DEFENDANT 3, GARY THOMAS, AKA SEALED DEFENDANT 2, AND FELIX PARRILLA, AKA SEALED DEFENDANT 1, AKA LITO, Defendants-Appellants.
Docket Nos. 15-131 (L), 15-141 (CON), 15-230 (CON)
United States Court of Appeals FOR THE SECOND CIRCUIT
March 15, 2018
CHIN and CARNEY, Circuit Judges, and FORREST, District Judge.*
August Term, 2016 (Argued: September 27, 2016)
Judge Chin dissents in a separate opinion.
AFFIRMED.
CHRISTOPHER P. CONNIFF, Ropes & Gray LLP, New York, New York, for Kirk Tang Yuk.
STEPHEN N. PREZIOSI, Law Office of Stephen N. Preziosi P.C., New York, New York, for Felix Parrilla.
KYE WALKER, The Walker Legal Group, Christiansted, St. Croix, U.S. Virgin Islands, for Gary Thomas.
EDWARD A. IMPERATORE, Assistant United States Attorney (Emil J. Bove III, Adam S. Hickey, Assistant United States Attorneys, Of Counsel, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for the United States of America.
SUSAN L. CARNEY, Circuit Judge:
Three defendants found by a jury to have engaged in a criminal conspiracy to distribute and possess with intent to distribute cocaine challenge their convictions, contending that venue did not properly lie in the Southern District of New York, the place of their prosecutions. We consider whether, although the bulk of their joint
Accordingly, we AFFIRM the judgments of conviction entered by the District Court.
BACKGROUND
Defendants-appellants Kirk Tang Yuk, Felix Parrilla, and Gary Thomas appeal their convictions under
A. The conspiracy
In the summer of 2012, Gary Thomas, a resident of St. Croix, asked an acquaintance, Deryck Jackson, a resident of Florida, and not an appellant here, if he wanted to earn money by helping Thomas bring cocaine from St. Croix to Florida. Jackson was willing, and he flew from Miami to St. Croix to meet with Thomas. As
Later, back in Florida, and despite Thomas’s request, Jackson told Tang Yuk that he expected to be involved in a drug transaction. Tang Yuk expressed interest in participating in the transaction.
September 2012 arrived and Thomas called Jackson, advising that he was ready to go forward with the plan. Jackson returned to St. Croix and there, on the site of Paradise Waste Management, Thomas’s business, he helped Thomas prepare and package cocaine for shipment. To conceal the drugs during shipment, the two men installed false wooden flooring in a packing crate and sprinkled a chemical in the bottom of the crate to help mask the cocaine’s smell. They packed 80 kilograms of cocaine in the crate. Jackson then returned to Florida.
On September 18, Thomas called Jackson again and advised that the cocaine was ready for pickup in Miami. Jackson rented a U-Haul truck and retrieved the crate containing the concealed drugs. He moved the crate to a storage facility, where he repackaged the drugs into four cardboard boxes, placing dryer sheets and rice in the boxes to help mask the cocaine’s odor. He then brought the boxes to his apartment.
On the following day—September 19—Jackson visited Parrilla at his place of business, a garage. There, Parrilla informed Jackson that he (Parrilla) would take 53
On September 20, Jackson delivered 53 kilograms of the cocaine to Parrilla. Jackson then promptly left Miami to drive with his wife to New York City, where he planned to sell some of his 25 remaining kilograms of cocaine to an associate, Fred Fulton. Jackson and his wife arrived in Queens on September 22, after crossing over the Verrazano-Narrows Bridge from Staten Island over the Narrows into Brooklyn, and then driving on into Queens. That evening, Jackson was arrested at the hotel where he had checked in and delivered the drugs to Fulton.
During the same time period, on September 20, the Drug Enforcement Agency (DEA) executed a “sneak and peek” search warrant on Parrilla’s business in Florida. A DEA agent described this type of warrant at trial as a “covert” warrant authorizing a “limited” search of the location without notification to the premises owner. In Parrilla’s garage, the agents found brown U-Haul boxes, white rice, dryer sheets, and shrink wrap.
While the agents were conducting the search, they noticed Parrilla driving down the street toward his garage, and then suddenly changing direction and speeding away. About 45 minutes later, Parrilla returned and spoke with some of the agents, who were still at the location. In response to the agents’ question whether “he had any cash on him,” Parrilla admitted that he did, and pulled out “a wad of cash” from his pants
After his September 22 arrest in New York City, Jackson agreed to cooperate with the government. In late September and early October, at the government’s instance, he made recorded calls to Tang Yuk and Thomas from a court building in Manhattan, in the Southern District. In a call made on October 1, Jackson told Thomas that he was “on the road.” Supp. App’x at 174. He also admitted to Thomas that he “gave [Tang Yuk] a little work,” but denied that Tang Yuk “kn[e]w anything, where it came from or nothing.” Id. at 175.
On October 4, in a telephone conversation recorded by the government, Jackson told Tang Yuk, “Well I am trying to wrap up this thing. I am up here in New York. I am trying to wrap up and come back down.” Tang Yuk responded, “Do your thing, man. It ain’t nothing.” Id. at 186. Jackson and Thomas also spoke that day in a recorded phone conversation, which opened with Thomas demanding of Jackson, “You are in here or what?” and Jackson responding, in part, “Well I am just letting know you [sic] that everything is alright.” Jackson told Thomas, “I ain’t telling you where I was, but I’m telling you now. I’m up in New York. That’s why I’m taking this kind of longer way up. Alright.” Id. at 189. The recording then ended.
On October 12, with Jackson still not back in Florida, Thomas sent Jackson a text message, warning, “You need to deal with [Parrilla] now, it’s about to get ugly. Give him what you have.” TY App’x at 399. Four days later, Jackson called Thomas. He asked, “What kind of messages are you sending me? Listen I finished, I’m on my way back down. . . . This call, call business and all kind of things you’re leaving, you know we don’t operate like that man.” Supp. App’x at 198. Thomas explained that a mutual friend of theirs had informed Thomas that Jackson had been “picked up.” Id. That
Parrilla, Thomas, and Tang Yuk were arrested on June 5, 2013.
B. Procedural history
Before trial, Thomas moved to transfer his case to the St. Croix division of the U.S. District Court for the District of the Virgin Islands. The District Court denied this motion, concluding that the only factor strongly favoring transfer was that Thomas’s place of residence was in St. Croix, and, accordingly, transfer was not warranted. United States v. Parrilla, No. 13 Cr. 360(AJN), 2014 WL 1621487, at *13-15 (S.D.N.Y. Apr. 22, 2014). At trial, Thomas unsuccessfully renewed his request to transfer venue, arguing that the government’s use of a patois expert from Jamaica, not St. Croix, to translate certain recorded telephone conversations was prejudicial to him. The District Court explained that the government witness was qualified as an expert in patois speech generally, not merely in the St. Croix dialect, and that, to the extent the recordings included statements in English, the jury would be instructed to consider the audio tapes themselves, not the expert’s testimony or transcripts of the tapes. In denying transfer, the District Court also noted that Thomas had invoked his objection to the patois expert in support of his transfer request only “after a jury was impaneled, long after all parties were put on notice of the government’s intention to put forward an expert relating to the transcripts, [and] long after the Court and parties had already expended significant time and energy to try this case in this district.” Thomas App’x at 562.
In addition to all of the elements I have described, you must consider the issue of venue; namely, whether any act in furtherance of the crime charged in Count One occurred within the Southern District of New York. The Southern District of New York includes Manhattan and the Bronx, Rockland, Putnam, Dutchess, Orange, and Sullivan Counties and bridges over bodies of water within the boundaries of Manhattan, the Bronx, and Brooklyn, such as the Verrazano-Narrows Bridge.
In this regard, the government need not prove that the entirety of the charged crime was committed in the Southern District of New York or that any of the defendants were present here. It is sufficient to satisfy the venue requirement if any act in furtherance of the crime charged occurred within the Southern District of New York, and it was reasonably foreseeable to the defendant that you are considering that the act would take place in the Southern District of New York.
I also instruct you that a call or text message made between a government cooperator in the Southern District of New York and a defendant who is not in the Southern District of New York can establish venue with respect to that defendant, provided that the defendant used the call or text message to further the objectives of the charged conspiracy, and the defendant knew or could have known that the call or text came from or went to the Southern District of New York.
Parrilla App’x at 805-06.
The jury convicted each of Parrilla, Thomas, and Tang Yuk, respectively, of one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. All three defendants moved for judgments of acquittal pursuant to
All three defendants timely appealed. On appeal, they each argue that venue did not properly lie in the Southern District of New York. In addition, Thomas argues that the District Court erred in denying his motion to transfer the case to St. Croix for trial and that he is entitled to a new trial because Jackson perjured himself and the District Court violated his Sixth Amendment rights by limiting his cross-examination of Jackson. Parrilla contends that the District Court erred in denying his motion to suppress evidence obtained as a result of three allegedly unconstitutional searches and in admitting evidence about Parrilla’s attempts to intimidate Jackson in prison. Tang Yuk argues that the record evidence was insufficient to convict him of the charged conspiracy—at most, he claims, he participated in a side conspiracy with Jackson to distribute and possess with intent to distribute two kilograms of cocaine. Tang Yuk submits further that the government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by producing possible impeachment evidence in a difficult-to-review format, and that his conviction was tainted by the government’s improper comments during summation.
Finally, all three defendants challenge the District Court’s calculation of their Sentencing Guidelines ranges as follows: (1) as to Parrilla and Thomas, that the District Court erred in finding that the conspiracy of which they were convicted involved 80 kilograms of cocaine; (2) as to Parrilla, that the District Court erred in applying various enhancements to his offense level; and (3) as to Tang Yuk, that the District Court erred in
DISCUSSION
A. Venue
1. Applicable law
Embodying a constitutional principle, see
Constitutional and procedural restrictions on criminal venue, accordingly, do not protect defendants from prosecution in a district far from their homes if they commit a crime in a remote district. As far-reaching communications and travel are now easy and common, the “acts constituting the offense” can, unsurprisingly, span a geographic range that extends far beyond the physical borders of a defendant’s district of residence. Venue, moreover, “may lie in more than one place if the acts constituting the crime and the nature of the crime charged implicate more than one location,” Lange, 834 F.3d at 68
a. Foreseeability
In our Circuit, the venue analysis does not end as to all defendants charged with a conspiracy when we find a single overt act performed in the district of prosecution, however. We have interpreted the venue requirement to demand “some sense of venue having been freely chosen by the defendant.” United States v. Davis, 689 F.3d 179, 186 (2d Cir. 2012) (internal quotation marks and alterations omitted). We have said that it must have been “reasonably foreseeable” to each defendant charged with the conspiracy that a qualifying overt act would occur in the district where the prosecution is brought. United States v. Rommy, 506 F.3d 108, 123 (2d Cir. 2007); see also United States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003) (holding that “venue is proper in a district where (1) the defendant intentionally or knowingly causes an act in furtherance of the charged offense to occur in the district of venue or (2) it is foreseeable that such an act
b. Substantial contacts
We have “occasion[ally] . . . supplemented our venue inquiry with a ‘substantial contacts’ test that takes into account a number of factors . . . . includ[ing] the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of the [venue] for accurate factfinding.” Lange, 834 F.3d at 71 (internal quotation marks omitted). We have acknowledged that this is not a “formal constitutional test,” United States v. Saavedra, 223 F.3d 85, 93 (2d Cir. 2000), but have nevertheless found it to be a valuable safeguard for a defendant whose contacts with the district of prosecution are minimal.
When an overt act in furtherance of a criminal conspiracy has been committed in the district, however, this supplemental inquiry has no relevance. A defendant who is participating in a conspiracy that is being conducted, in part, in the district of prosecution necessarily has sufficient “substantial contacts” to justify a finding of venue that is otherwise proper. See, e.g., Lange, 834 F.3d at 75 (finding that defendants had substantial contacts with E.D.N.Y. based in part on the fact that “some of [their] co-conspirators’ acts occurred in the [E.D.N.Y.]“); see also Tzolov, 642 F.3d at 321 (finding
2. Jury instruction regarding venue
Thomas and Tang Yuk (but not Parrilla) contend that the District Court erred by instructing the jury that “a call or text message made between a government cooperator in the Southern District of New York and a co-conspirator defendant who is not in the Southern District of New York,” Parrilla App’x at 805-06, could be sufficient to establish venue in certain circumstances. We review the District Court’s instruction de novo, finding error if the instruction “misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015) (per curiam) (quoting United States v. Naiman, 211 F.3d 40, 50 (2d Cir. 2000)). Even if an instruction was erroneous under this standard, we will not reverse a conviction unless (1) the instruction was prejudicial to the defendant, and (2) the
The jury here was properly instructed as to the effect of the phone calls described above on venue. Our prior decisions leave no room for doubt that, in the context of a conspiracy, “phone calls from one district to another by themselves can establish venue in either district as long as the calls further the conspiracy.” Smith, 198 F.3d at 382; see also, e.g., United States v. Friedman, 998 F.2d 53, 57 (2d Cir. 1993). A telephone call placed by someone within the Southern District of New York—even a person acting at the government’s direction—to a co-conspirator outside the Southern District can render venue proper as to the out-of-district co-conspirator so long as that co-conspirator “uses the call to further the conspiracy.” Rommy, 506 F.3d at 122.
Although both Tang Yuk and Thomas argue that their convictions require an extension of our established venue principles, they fail to identify any statement in the District Court’s instruction here that precedent—in particular, our decision in Rommy—does not directly support. In Rommy, we rejected a venue challenge when a confidential informant located in the Southern District of New York called and spoke to the defendant, who was located overseas, on several occasions. Id. at 112-14. During their first call, the informant told the defendant that he was “near the site of the recently destroyed World Trade Center.” Id. at 113. During that and subsequent calls, the defendant nevertheless confirmed to the caller and putative co-conspirator details relating to a shared plan to smuggle ecstasy pills into New York ports. Id. at 113-14. On appeal, we rejected the defendant’s argument that a call placed from the Southern District of New York at the direction of a law enforcement agent was insufficient to create venue in the district of the caller, explaining that “[w]hat is determinative of
The jury here, therefore, was appropriately instructed by the District Court that venue was proper with respect to a defendant if that defendant used “a call or text message [with] . . . a government cooperator in the Southern District of New York . . . to further the objectives of the charged conspiracy . . . .” Parrilla App’x at 805. The District Court also correctly instructed the jury that, in addition to this “act” requirement, venue was proper only if the defendant “knew or could have known” that the call or text came from the Southern District of New York. Id. To the extent that Tang Yuk and Thomas argue that Jackson’s calls do not meet the venue standard described in Rommy, their quarrel is with the sufficiency of the evidence establishing venue, not the content of the instruction given.
3. Sufficiency of evidence
Because venue is not an element of a crime, the government must prove its propriety by only a preponderance of the evidence. Davis, 689 F.3d at 185. We review de novo the District Court’s determination that the evidence was sufficient to support a finding that venue was proper. Lange, 834 F.3d at 69. Because Defendants were convicted after a jury trial, we review the record evidence in the light most favorable to the government, drawing every reasonable inference in support of the jury’s verdict. Id.
a. Jackson’s overt act
As an initial matter, we note that the evidence at trial was undoubtedly sufficient for the jury to find that Deryck Jackson, who later cooperated with the government, committed an overt act in furtherance of the cocaine importation conspiracy with Thomas, Parrilla, and Tang Yuk in the Southern District of New York: on his way from Florida to Queens to meet Fulton and sell his portion of the cocaine, he drove over the
That Jackson took an overt act in furtherance of the conspiracy in the Southern District of New York does not conclusively establish that venue was proper as to Thomas, Tang Yuk, or Parrilla, however. Although we have found that a co-conspirator’s commission of an overt act in the district of prosecution fulfills our “substantial contacts” test as to all members of the conspiracy, see supra, Discussion Part A.1.b, it does not, without more, establish that prosecution in that district was “reasonably foreseeable” to all members of the conspiracy.
We are skeptical that, as the government asserts, Jackson’s drive on the Verrazano-Narrows Bridge was “reasonably foreseeable” to Thomas, Tang Yuk, or Parrilla because of Jackson’s family ties in Pennsylvania and New Jersey. The record does not establish that each defendant was likely aware of those family ties. Instead, in view of Jackson’s post-arrest conversations with Thomas and Tang Yuk, we find that the jury was entitled to conclude that it was reasonably foreseeable to Thomas, Tang
b. Thomas
Jackson warned Thomas that he was “on the road” on October 1, 2012, and explicitly told Thomas that he was “up in New York” on October 4.4 Supp. App’x at
Shortly after Thomas learned that Jackson was in “New York,” the two discussed several issues related to their drug trafficking conspiracy, including the price that Tang Yuk had been offered for the cocaine, and Parrilla’s aggravation about Jackson’s disappearance. Thomas asked Jackson when he would be returning to Florida, and Jackson promised to alert Thomas when he was on his way south, presumably with the significant proceeds of his sales. Several days later, Thomas sent Jackson a text message warning, “You need to deal with [Parrilla] now, it’s about to get ugly. Give him what you have.” TY App’x at 399. Jackson understood that Thomas was concerned that he, Jackson, might have absconded with the cocaine, and was therefore demanding that he bring “whatever cocaine [he] had already s[o]l[d] and money [he] obtained from it” back to Thomas and Parrilla. Id. Because Jackson had not yet told Thomas that he was on his way to Florida, the jury could have found that Thomas believed—or, at least, could reasonably foresee—that Jackson was still in New York. Several days thereafter, Thomas spoke to Jackson on the telephone and again directed him to return to Florida to hand over the proceeds of his cocaine sales to Parrilla.
These communications gave the jury a sufficient basis to find that Thomas communicated with Jackson to “further the objectives of the conspiracy,” Rommy, 506 F.3d at 122, after learning that Jackson was in New York. By advising Jackson to “deal” with Parrilla, Thomas was attempting to prevent infighting and potential violence between the co-conspirators, which might interfere with the conspiratorial goals. And Thomas’s encouragement to Jackson to bring his sale proceeds back to Florida inured to
c. Tang Yuk
Like Thomas, Tang Yuk was personally informed by Jackson that Jackson was in “New York.” Supp. App’x at 186. Jackson told Tang Yuk that he was trying to “wrap up” in New York, and Tang Yuk advised him to “[d]o [his] thing.” Id. While this evidentiary basis is not overwhelmingly strong, we think nonetheless that the jury was permitted to infer from it that Tang Yuk understood Jackson’s reference to “wrap[ping] up” to mean completing, in New York, the sale of his allotment of the conspiracy’s
We observe further that, even if the jury did not find that Tang Yuk himself used the calls with Jackson to further their trafficking conspiracy, it could have found that the October 4 call put Tang Yuk on reasonable notice that at least one of his co-conspirators was likely to take an overt action in furtherance of the conspiracy by interacting with Jackson in the Southern District of New York. As described above, for example, the jury could reasonably have found that Thomas acted in furtherance of the conspiracy when, during a telephone call with Jackson, he urged Jackson to move quickly and bring his remaining cocaine and any sales proceeds from New York to Florida. Because Jackson had stated to Tang Yuk that he was in New York, it was reasonably foreseeable to Tang Yuk that actions in furtherance of the conspiracy would be taken there, if not by Tang Yuk himself, then by one of the individuals (Thomas or Parrilla) with whom Jackson had been working in Florida. Cf. Lange, 834 F.3d at 72-73 (finding that co-conspirators’ acts and emails directed at E.D.N.Y. were reasonably foreseeable to defendants and thus that venue in E.D.N.Y. was proper).
Because Parrilla did not join Thomas’s and Tang Yuk’s venue objections in the District Court, we review only for plain error the jury’s findings regarding whether venue was proper as to him.6 Svoboda, 347 F.3d at 484; see also United States v. Muniz, 60 F.3d 65, 67 (2d Cir. 1995). To show plain error, Parrilla must demonstrate “(1) error, (2) that is plain, [] (3) that affect[s] substantial rights . . . [and that] (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997) (internal quotation marks omitted). We find no error, much less a plain one, in the jury’s finding that venue requirements were satisfied as to Parrilla.
Jackson did not directly inform Parrilla that he was in New York as he had Thomas and Tang Yuk. The jury could have reasonably inferred, however, that Thomas, who did speak with Jackson, informed Parrilla—the leader of the conspiracy—of Jackson’s whereabouts. Thomas’s statements during his October 16 phone call with Jackson suggest that Parrilla was using Thomas to threaten Jackson, by conveying the warning that things were “about to get ugly,” with the ultimate goal of compelling Jackson to return pronto to Florida with the cocaine or proceeds of cocaine sales. See Supp. App’x at 199. The record thus supports a preponderance finding that Parrilla
B. Drug quantity
Parrilla and Thomas argue that the District Court erred by calculating their Sentencing Guidelines ranges based on a finding that the conspiracy involved 80 kilograms of cocaine.7 The Guidelines sentencing range for a convicted member of a conspiracy to possess or distribute narcotics depends on the quantity of drugs involved. See
The record is replete with evidence, in the form of Jackson’s testimony, that the conspiracy was focused on transporting and distributing 80 kilograms of cocaine. See, e.g., TY App’x at 277, 279, 324, 447-48. Defendants do not dispute that the record contains this evidence, but contend that the District Court should not have credited
1. Suppression of evidence
Before trial, Parrilla moved to suppress evidence obtained as a result of three allegedly unlawful searches: first, the DEA’s wiretap of Parrilla’s phones; second, the protective sweep search of the master bedroom in the Florida residence in which Parrilla was arrested; and third, the September 2012 search of Parrilla’s business pursuant to a warrant. The District Court denied these motions without a hearing. Parrilla, 2014 WL 1621487, at *15 (denying all motions to suppress other than the one relating to the search of Parrilla’s garage); United States v. Parrilla, No. 13 Cr. 360(AJN), 2014 WL 2111680, at *1 (S.D.N.Y. May 13, 2014) (denying Parrilla’s motion to suppress evidence obtained during the search of his garage). We review the District Court’s denial of a request for a suppression hearing for abuse of discretion, noting that an evidentiary hearing is required “if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 165 (2d Cir. 2008).
a. Wiretap of Parrilla’s phones
Our review of a district court’s decision to allow a wiretap pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
Applying the appropriately deferential standard of review to the District Court’s decision to grant the government’s March 12, 2013 application to intercept calls made on Parrilla’s cell phone, we conclude that the application was adequate to support the authorization. The wiretap order states that the calls will be intercepted first in the Southern District of New York, satisfying the jurisdictional requirement. See United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992). As to the necessity requirement, the DEA agent’s affidavit in support of the wiretap application details, over ten pages, why ordinary investigative techniques would not suffice to uncover the information sought. In particular, the agent noted that Parrilla was unwilling to discuss narcotics trafficking activities on the phone with Jackson (whose conversations could be recorded because he was cooperating with law enforcement), that he seemed to have stopped sharing information with Thomas because of distrust arising from the search of his garage, and that none of the investigative methods used so far had yielded information about the source of the cocaine or the broader reaches of the drug trafficking organization of which Parrilla appeared to be a part. Moreover, the purpose of the wiretaps was not to provide evidence only about Parrilla and his co-defendants in this case. The
b. Protective sweep incident to Parrilla’s arrest
The Fourth Amendment’s prohibition against warrantless searches is “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). A warrantless “protective sweep” of premises incident to an arrest, conducted “as a precautionary matter,” is one such exception. Maryland v. Buie, 494 U.S. 325, 334-35 (1990). The permissible scope of a protective sweep depends on the conditions of the arrest: officers may “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” without probable cause or reasonable suspicion; broader searches, however, must be justified by “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334.
Parrilla contends that the sweep conducted in conjunction with his arrest falls outside the protective sweep exception to the warrant requirement because the officers searched the master bedroom in his residence, and that room did not “immediately adjoin[]” the room where he was arrested.10 Buie, 389 U.S. at 334. The floor plan of the residence contradicts this assertion. The master bedroom, where the sweep took place,
During a protective sweep, officers are entitled to seize items that are in plain view if they have “probable cause to suspect that the item is connected with criminal activity.” United States v. Gamble, 388 F.3d 74, 76 (2d Cir. 2004) (per curiam); see also Buie, 494 U.S. at 330; Lauter, 57 F.3d at 217. Parrilla does not contest that the two cell phones at issue were in plain view when they were seized. He was arrested in the room immediately adjoining the bedroom in which the cell phones were located, and had been living in the house where he was arrested, as the agents knew. Accordingly, it was
c. Search of Parrilla’s garage
Finally, Parrilla argues that the District Court should have suppressed evidence stemming from the search of his garage, because the warrant for that search was based in part on evidence resulting from two warrantless canine sniffs. Parrilla contends that those sniffs constituted “searches” and, therefore, that the government violated the Fourth Amendment through those initial canine sniffs.
When a Fourth Amendment violation leads the government to evidence of a crime, the “exclusionary rule” usually precludes the government from introducing that evidence at trial. United States v. Stokes, 733 F.3d 438, 443 (2d Cir. 2013). Because this rule is aimed at deterring unconstitutional conduct and does not reflect an “individual
In September 2012, DEA agents’ reliance on the warrant authorizing the “sneak and peek” search was objectively reasonable and, thus, evidence resulting from that search should not have been excluded even if it might now be determined that the government relied on evidence gathered in an unconstitutional search to obtain the warrant. When the DEA agents executed the warrant at Parrilla’s garage in September 2012, a reasonable law enforcement officer in Florida would not have believed that the warrantless canine sniffs that, in part, underlay the warrant’s issuance violated the Fourth Amendment. See Parrilla, 2014 WL 2111680, at *1. To the contrary, a reasonable law enforcement officer in Florida would have justifiably relied upon the Eleventh Circuit’s declaration in United States v. Glinton, 154 F.3d 1245, 1257 (11th Cir. 1998), that “a canine sniff is not considered a ‘search’ for Fourth Amendment purposes” and thus is exempt from the warrant requirement. Pre-2012 Supreme Court cases finding that the use of electronic listening devices, see Katz v. United States, 389 U.S. 347 (1967), and
Because the search of Parrilla’s garage would fall within the good-faith exception regardless of the constitutional validity of the warrantless canine sniffs that provided the predicate for the warrant, we need not determine whether the government’s reliance on the canine sniffs themselves violated Parrilla’s reasonable expectation of privacy in his garage.
2. Witness intimidation
Parrilla contends on appeal that the District Court erred in (1) allowing Jackson to testify about Parrilla’s attempts to intimidate him in prison, and (2) permitting the jury to infer from that testimony that Parrilla believed himself to be guilty of the drug trafficking offense. Jackson testified that, on three separate occasions, two inmates approached him in prison after his arrest in New York. They asked him on one occasion whether he knew Parrilla and, on another, told him that Parrilla “said what’s up.”
If you conclude there is evidence that Mr. Parrilla attempted to intimidate or coerce Mr. Jackson, a witness whom he believed was to be called by the government against him, I instruct you that the defendants are not on trial for that conduct, and you may not consider the evidence as a substitute for proof of guilt in this case.
However, if you find that Mr. Parrilla did attempt to intimidate or coerce Mr. Jackson, a witness whom he believed the government was going to call against him, you may, but are not required to, infer that Mr. Parrilla believed that he was guilty of the crime for which he is here charged.
Whether or not evidence of Mr. Parrilla’s attempted intimidation or coercion of a witness shows that Mr. Parrilla believed that he was guilty of the crime for which he is now charged and the significance, if any, to be given to such evidence, is for you to decide.
Parrilla App’x at 805. Parrilla argues that the District Court erred in permitting Jackson to testify about these incidents, because (he asserts) the inmates’ statements are inadmissible hearsay. He also contends that the District Court’s jury instruction regarding intimidation was unacceptably suggestive.13
Parrilla admits that he did not raise his hearsay objection during the trial. Parrilla Br. at 46. Accordingly, we review the admission of Jackson’s testimony for plain error, United States v. Inserra, 34 F.3d 83, 90 n.1 (2d Cir. 1994), reversing only if a “miscarriage of justice” would otherwise result, United States v. Frady, 456 U.S. 152, 163 n.14 (1982).
We review de novo the jury instruction regarding consciousness of guilt, to which Parrilla did object in the District Court. United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015) (per curiam). “A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” Id. We reject the challenge: the jury instruction here did neither. The instruction did not, as Parrilla argues, create a presumption of guilt against him. On the contrary, the District Court explicitly instructed the jury that it was entitled to draw, or not to draw, the inference that Parrilla was conscious of his guilt. An instruction that merely identifies a permissible inference to the jury, without more, does not disturb the presumption of innocence. See, e.g., United States v. Strother, 49 F.3d 869, 877 (2d Cir. 1995) (rejecting challenge to jury instruction that it was “[o]rdinarily . . . reasonable to infer” that a false explanation of innocence is evidence of guilt).
Parrilla also challenges three enhancements that the District Court applied over his objections when calculating his sentence: (1) a two-level enhancement for making a credible threat to use violence under
The District Court applied § 2D1.1(b)(2)’s two-level enhancement for making a credible threat to use violence to Parrilla, based on his intimidation of Jackson in prison through other inmates as well as statements during phone calls with Tang Yuk in which Parrilla referenced driving a car over Thomas and predicted Thomas’s and Jackson’s impending deaths. Parrilla argues that, in applying the enhancement, the District Court took his statements out of context, making them sound more threatening than they actually were. He offers alternative explanations for his statements, arguing that they were “conditional,” “philosophical[],” and “mere puffery.” Parrilla Br. at 56-57. That the statements in question could be interpreted as innocent hyperbole, however, does not compel the District Court to draw such a conclusion. Nor was the District Court barred from inferring a threat from Jackson’s testimony that inmates had approached him in prison and purported to relay messages from Parrilla. The District Court reasonably took these as both a credible threat to use violence and witness intimidation, giving rise to an additional two-level enhancement pursuant to
The District Court’s factual conclusion that the scheme involved five or more participants—Parrilla, Thomas, Tang Yuk, Jackson, and Fulton—was not clearly erroneous. Although Parrilla emphasizes that he was unaware of Fulton’s involvement, the Guidelines require only that the conspiracy actually involve five or more participants, not that the organizer be aware of all participants. To the contrary, the relevant commentary specifies that a defendant merits this adjustment if he was the “organizer [or] leader . . . of one or more other participants.”
The record also supports the District Court’s finding that Parrilla was an “organizer or leader” of the trafficking conspiracy. Parrilla decided how the imported cocaine would be distributed—keeping 53 kilograms of cocaine for himself, and giving 27 kilograms to Jackson on consignment—and determined what the consignment price per kilogram would be for his co-conspirators. He also took a leading role after Jackson’s disappearance, communicating threats through Thomas and directing Jackson to return to Florida posthaste. Accordingly, the District Court did not err in imposing a four-level enhancement on Parrilla for his leading role.
D. Issues specific to Tang Yuk
1. Sufficiency of evidence as to drug quantity
Tang Yuk argues that the evidence was insufficient to convict him for a conspiracy involving five or more kilograms of cocaine. He contends that the evidence showed, at most, that he was involved in a separate conspiracy with Jackson to distribute two kilograms of cocaine. As with Defendants’ sufficiency challenge to venue, we review this post-conviction challenge de novo, drawing all inferences in the government’s favor in light of the jury’s verdict.15 See United States v. Pierce, 785 F.3d 832, 837-38 (2d Cir. 2015). The burden on a defendant bringing a sufficiency challenge after a jury verdict is “heavy.” United States v. Anderson, 747 F.3d 51, 59 (2d Cir. 2014) (quoting United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009)).
The evidence at trial was sufficient for the jury to conclude that Tang Yuk was involved in the conspiracy to distribute 80 kilograms of cocaine. We cannot say that no reasonable jury could reach this decision. The record contains nothing to suggest that Tang Yuk could reasonably have believed that, after warning Tang Yuk that he anticipated “get[ting] some work,” Jackson had given him all the cocaine that he possessed from the shipment. TY App’x at 257. Even if Tang Yuk somehow did believe that the entire conspiracy was limited to two kilograms initially, however, subsequent events made it clear that he was part of a much larger drug trafficking operation. For example, when Tang Yuk complained to Jackson that his two kilograms of consignment cocaine were underweight and that he would therefore receive a lower price for the cocaine from his buyers than he had expected, Jackson told Tang Yuk that he (Jackson) had to get a particular price for each kilogram of cocaine that Parrilla had given him. The jury was entitled to conclude that this interchange would have suggested to Tang Yuk that his two kilograms were part of a larger quantity, some retained by Jackson, for which Parrilla expected Jackson to pay him. Moreover, any expectation that the conspiracy involved more cocaine than the two kilograms he had received from Jackson would have been confirmed when, after Jackson’s arrest, Tang Yuk began dealing
Even if Tang Yuk’s conspiratorial activities might be seen in their early stages as limited to selling the two kilograms he received from Jackson, the jury could reasonably have concluded that Thomas and Parrilla—who suspected that Jackson had absconded with his portion of the cocaine—implied to or told Tang Yuk that Jackson had possessed a significant quantity of cocaine on consignment when he disappeared. From this, Tang Yuk could readily have concluded that the total quantity of cocaine at issue was much more than the two kilograms he initially received on consignment. The evidence of Tang Yuk’s ongoing involvement with Parrilla and Thomas after Jackson’s departure demonstrates that he was willing to continue with the conspiracy after being made aware of the larger scheme. Even if Tang Yuk did not know “all of the details of the conspiracy,” the jury could reasonably conclude that he knew the “general nature and extent” of the conspiracy. See United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010).
Tang Yuk’s reliance on United States v. Richards, 302 F.3d 58 (2d Cir. 2002), is unavailing. In that case, the district court found that the record contained insufficient evidence to convict the defendant, Rudolph Anderson, of a narcotics trafficking conspiracy involving 1,000 kilograms or more of marijuana, and therefore reduced the operative amount of marijuana to 100 kilograms or more. Id. at 64-65. Witnesses had testified that they had seen Anderson deal in only 40 pounds (approximately 18 kilograms) of marijuana. Id. at 64, 69-70. On appeal, we found the evidence sufficient to
2. Brady/Giglio material
On appeal, Tang Yuk for the first time raises a challenge to the format in which the government produced files from Jackson’s cell phone, arguing that the government’s production violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). We review an unpreserved Brady claim for plain error. See United States v. Catone, 769 F.3d 866, 871 (4th Cir. 2014); United States v. Mota, 685 F.3d 644, 648 (7th Cir. 2012).
In Brady, the Supreme Court held that the government has a constitutional duty to timely disclose material, exculpatory evidence to criminal defendants. The Court extended that production duty in Giglio, 405 U.S. at 154, to cover evidence that could be used to impeach a government witness. To establish a Brady or Giglio violation, “a defendant must show that: (1) the government, either willfully or inadvertently, suppressed evidence; (2) the evidence at issue is favorable to the defendant; and (3) the
Three months before trial of the instant conspiracy was scheduled to begin, the government produced a disc to Defendants containing thousands of text and image files extracted from Jackson’s cell phone, as well as a “Report” prepared by the government containing summary information about the files and thumbnail images of some of the files. Later, during trial, while on a break during Jackson’s cross-examination, Thomas’s counsel discovered that some of the images retrieved from Jackson’s phone showed a suitcase filled with narcotics and a firearm lying on the bed. The metadata associated with the images suggested that the photos were taken on August 20, 2012—before Jackson obtained the drugs that are the subject of this prosecution. Tang Yuk argues now that these photos constituted material impeachment evidence, because they contradicted Jackson’s testimony that he had not been involved in any other drug
Assuming, without deciding, that the flagged photos amounted to material evidence potentially favorable to him, Tang Yuk has failed to identify any Brady or Giglio violation by the government, much less one that rises to the level of plain error cognizable on appeal. If the format in which the files were produced rendered them as unusable as he now claims, Tang Yuk offers no explanation for his failure to object to that format before trial. Nor does Tang Yuk explain why the government should bear the full burden of reviewing and characterizing each document within a voluminous evidentiary record: because the allegedly exculpatory files are images, not text files, government attorneys would have had to characterize and tag each image to create the “organized and searchable” database that Tang Yuk demands, Tang Yuk Br. at 38. Although Brady and Giglio forbid the government from failing to disclose evidence that would aid a defendant‘s case, it hardly can be said to be plain error irremediably infecting the trial for the District Court not to identify a Brady violation in these circumstances.
It is unnecessary, moreover, for us to decide the extent to which the government must shoulder the organizational burdens stemming from voluminous records potentially containing Brady or Giglio material. Cf. Skilling, 554 F.3d at 576-77 (noting, without deciding, the open question whether providing “several hundred million pages” to a defendant, which would have taken “scores of attorneys, working around-
3. Improper comments during summation
Reversal of a conviction on the basis of a comment during summation is necessary only if the comment, when viewed in the context of the entire trial, was “so severe and significant as to have substantially prejudiced [the defendant], such that the resulting conviction was a denial of due process.” United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012) (internal quotation marks and citations omitted). Our Circuit has identified three factors that govern whether an improper summation comment “substantially prejudiced” a defendant: “(1) the seriousness of the misconduct, (2) the measures adopted by the trial court to cure the misconduct, and (3) the certainty of conviction absent the improper statements.” United States v. Banki, 685 F.3d 99, 120 (2d Cir. 2012) (internal quotation marks omitted).
During summation, one of the Assistant United States Attorney trying the case referred to a call between Tang Yuk and Parrilla in which Tang Yuk told Parrilla that he had learned from a Customs and Border Patrol (CBP) agent at the St. Croix airport that he (Tang Yuk) was under investigation for drug trafficking. The AUSA said:
Ladies and gentlemen, this [call] is powerful evidence of the conspiracy between Parrilla and Tang Yuk. As you learned during this trial, this drug
organization was international in scope. Its members were sophisticated, and they had access to borders. In this call, Tang Yuk is using a contact in customs to get sensitive, secret law enforcement information about what is going on in an investigation of him.
Although the District Court initially overruled Parrilla‘s counsel‘s objection to this statement, it subsequently sustained Tang Yuk‘s objection. Noting an absence of evidence that Tang Yuk had actively sought out confidential information from his CBP contact, the District Court found that the government‘s suggestion that Tang Yuk had improperly requested such information ran “counter to . . . permissible inferences” that could be drawn from the call. At the request of Tang Yuk‘s counsel, the District Court then gave a limiting instruction advising the jury that the arguments of counsel, including summation, are not evidence. Tang Yuk did not object to the Government‘s comments in the district court other than to request the limiting instruction that was given; accordingly, the plain error standard applies. United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012).
In light of the rest of the evidence showing Tang Yuk‘s relationship to the conspiracy—and in light of the uncontested contents of the call itself—we conclude that the government‘s comments were not so significant as to violate Tang Yuk‘s due process rights and to require reversal, even accepting the District Court‘s ultimate determination that the comment was improper. The conduct implied by the government‘s statement—that Tang Yuk intentionally obtained “sensitive, secret law enforcement information” from a CBP contact—did not bear directly on his culpability for the charged drug trafficking offense. Moreover, if the jury found Jackson‘s testimony credible—which the guilty verdicts as to all defendants suggests that it did—Tang Yuk‘s conviction would have been highly likely whether or not the jury believed
4. Offense level reduction
Finally, Tang Yuk argues that the District Court erred in failing to grant a downward adjustment for his “minor” or “minimal” role in the conspiracy. As explained above, we review the District Court‘s findings of fact at sentencing, including those related to sentencing adjustments, for clear error. See United States v. Yu, 285 F.3d 192, 199 (2d Cir. 2002).
Section 3B1.2 of the Sentencing Guidelines offers a four-level downward adjustment for a defendant who plays a “minimal” role in criminal activity; a two-level downward adjustment for a defendant who plays a “minor” role; and a three-level downward adjustment for a role that is somewhere in between. A “minimal” role adjustment is appropriate for a defendant who is “plainly among the least culpable of those involved in the conduct of a group,” and a “minor” role adjustment is appropriate for a defendant “who is less culpable than most other participants.” See
Tang Yuk contends that the District Court erred in finding that he was a full and knowing participant in the conspiracy and in failing to conduct an analysis of his culpability relative to that of his co-conspirators. As described above, however, the record contained sufficient evidence to demonstrate Tang Yuk‘s knowledge of and participation in the full scope of the conspiracy. The District Court made detailed findings about Tang Yuk‘s role in the conspiracy and found that Tang Yuk progressed from being a conspirator whom the others “kept somewhat in the dark” to a full-fledged conspirator who was “on the same page” as Parrilla and Thomas. TY App‘x at 872-75. Based on these factual findings and its findings with respect to the challenged drug quantity, the District Court‘s conclusion that Tang Yuk‘s role was not “minor” or “minimal” compared to that of the average participant in a narcotics-trafficking conspiracy was not clearly erroneous.
E. Issues specific to Thomas
Thomas argues that he is entitled to a new trial because, he asserts, Jackson perjured himself during the trial. To establish his entitlement to a new trial on the ground that a witness committed perjury, a defendant must show that “(i) the witness actually committed perjury; (ii) the alleged perjury was material; (iii) the government
Thomas identifies the following statements in Jackson‘s testimony as false:
- That [Jackson] helped Thomas pack cocaine into a crate on September 10, 2012;
- That Thomas told him to fly to St. Croix to meet with him at a time when airline records showed that Thomas was in Florida with his family;
- That he never possessed a gun since he was a police cadet in the 1990s;
- That he had not engaged in drug activity since his release from prison in 2009 until he joined the conspiracy with the Defendants in 2012; and
- That he had never seen the photographs of the cash, gun, and drugs found in his phone although the photographs were taken with his phone.
Thomas Br. at 32. With regard to the dates on which Thomas and Jackson were together in St. Croix, Thomas fails to prove that Jackson‘s testimony constituted perjury, that the government knew or should have known about the alleged perjury, or that the alleged perjury was material. On the contrary, during cross-examination, Jackson made clear that he was generally unable to recall specific dates because he had been “back and forth to St. Croix.” TY App‘x at 446-448. Moreover, even if Jackson‘s statements with regard to his involvement with guns and drugs, and as to the meaning of the photographs of those items, were false, the jury had sufficient information on those issues to evaluate Jackson‘s credibility: Thomas‘s counsel cross-examined Jackson about
Finally, Thomas argues that his Sixth Amendment rights were violated when the District Court limited his cross-examination of Jackson. Thomas, however, has failed to identify any specific line of questioning that the District Court precluded him from pursuing. Thomas claims generally that he was unable to “explor[e] in detail Jackson‘s prior criminal convictions” and to plumb Jackson‘s “potential nefarious motives for [] cooperation.” Thomas Br. at 36. Contrary to these assertions, the record reflects that Thomas pursued an extensive cross-examination of Jackson in which he probed Jackson‘s prior convictions, prior criminal conduct, and truthfulness generally. Accordingly, we reject this challenge as meritless.
CONCLUSION
Even in our highly interconnected world, some prosecutions may stretch the boundaries of criminal venue too far. These, however, are not among them. The judgment of the District Court is AFFIRMED.
DENNY CHIN, Circuit Judge:
I respectfully dissent.
The three defendants, Kirk Tang Yuk, Felix Parrilla, and Gary Thomas, were convicted of conspiracy to distribute and possess with intent to distribute cocaine in the Southern District of New York (the “SDNY“). They did not set foot in the SDNY, however, or anywhere near, nor did they send any narcotics into the SDNY. Rather, as the evidence showed, their narcotics conspiracy operated in St. Croix and Florida.
As the Government‘s proof established, the conspiracy‘s only contacts with the SDNY were: (1) a co-conspirator (Jackson) committed an overt act in the SDNY by driving his share of the conspiracy‘s drugs over the Verrazano-Narrows Bridge, which lies within the joint jurisdiction of the SDNY and the Eastern District of New York (the “EDNY“);1 and (2) after he was arrested
As the majority acknowledges, the question thus becomes whether it was reasonably foreseeable to the defendants that an act in furtherance of the conspiracy would occur in the district of venue. United States v. Rommy, 506 F.3d 108, 123 (2d Cir. 2007) (“the overt act‘s occurrence in the district of venue [must] have been reasonably foreseeable to a conspirator“); see also United States v. Davis, 689 F.3d 179, 189 (2d Cir. 2012) (to prove venue, Government must show that “it was more probable than not that [defendant] understood the likelihood” that act in furtherance of offense would take place in district of prosecution). In my view, the Government failed to prove venue, even by the lower preponderance of the evidence standard. See United States v. Lange, 834 F.3d 58, 69 (2d Cir. 2016) (“The Government bears the burden of proving venue by a preponderance of the evidence.“).
I. Verrazzano-Narrows Bridge
Jackson‘s drive across the Verrazzano-Narrows Bridge did not establish venue in the SDNY as to defendants because it was not reasonably foreseeable to them that he would take his share of the drugs to New York.
First, the conspiracy otherwise existed only in St. Croix and Florida, and Jackson testified at trial that none of the defendants knew he was going to New York to sell his share of the drugs. Tr. 1025 (“Q. So they had no control over where you were going or who you were dealing with; isn‘t that correct? A. With my portion, that is correct, sir. Q. They didn‘t know anything about you traveling 1500 miles to New York to sell some drugs; isn‘t that correct? A. No, sir.“). The Government presented no evidence to show that they had any inkling that Jackson would travel all the way to New York to sell his share of the drugs.
Second, the Government suggested at trial that defendants knew or should have known that Jackson would go to the SDNY because (1) at the time of Jackson‘s arrest, a kilogram of cocaine sold for between $40,000 to $45,000 in New York, Tr. 212 (testimony of FBI agent), but only between $25,000 and $27,000 in Florida, Tr. 311, and (2) in 2011 Jackson had passed through New York to visit his daughter in New Jersey and he had previously sold cocaine in Queens, Tr. 945, 948 (testimony of Jackson). Both suggestions fail. The fact that cocaine commanded a higher price in New York than in Florida does not demonstrate that it was reasonably foreseeable to defendants that Jackson would travel to the SDNY to sell the drugs. Under this theory, the Government could argue that it is reasonably foreseeable in every conspiracy that drugs will be sold in New York because they will garner a higher price there.2 Moreover, nothing in the record
II. Phone Calls
In my view Jackson‘s phone calls from “New York” -- the only basis for venue relied on by the majority -- also do not suffice to establish venue in the SDNY.
First, it is doubtful that the phone calls were in furtherance of the conspiracy. See Davis, 689 F.3d at 189. Jackson was already under arrest when he made the calls. He was in custody and thus he was not actually in the process of selling his share of the cocaine.
Second, even assuming the phone calls were in furtherance of the conspiracy,3 Jackson told Thomas and Tang Yuk only that he was in “New York” and he did not mention Manhattan or any other location specific to the SDNY.4
Defendants, who were in St. Croix or Florida, did not know that Jackson‘s reference to “New York” meant that he was in Manhattan or some other county within the SDNY, and there is nothing in the record to suggest that they had or should have had any inkling that he would be heading to New York City much less the SDNY.5 While the majority concludes that it was “fair” for the jury to find that the phrase “New York” commonly refers to “New York City” and that it was not “impermissibly speculative for the jury to infer that Thomas and Tang
Our decisions have left open the possibility of finding that venue was not established where law enforcement engaged in conduct intended to create venue where it otherwise did not exist.6 Our decision in Ramirez-Amaya is instructive. There, we rejected an argument that venue in the SDNY was improper where undercover agents flew a plane carrying cocaine to LaGuardia Airport in the EDNY, where “the course of the flight carried the airplane over the Narrows,” which we held was sufficient to make venue in the SDNY proper. 812 F.2d at 816. We noted, however, that: “[W]e would be loath to uphold venue on the basis of the flight path of an aircraft manned solely by government agents if there were an indication that its route had been significantly out of the ordinary, considering its point of departure and its destination.” Id.; see also United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994) (finding no “artificially created venue” where the government “‘did not orchestrate the phone call in order to lay the groundwork for venue’ in the Southern District” (quoting United States v. Lewis, 676 F.2d 508, 511 n.3 (11th Cir. 1982))).
In the circumstances of this case, where the connection to the SDNY was so tenuous, I am troubled by the notion that these defendants could be convicted based on phone calls made by Jackson from the SDNY solely at the
* * *
Some of our cases have applied a “substantial contacts” test in considering venue.7 See, e.g., Lange, 834 F.3d at 71; Rutigliano, 790 F.3d at 399;
The contacts with the SDNY here were by no means substantial. The drive over the Verrazano-Narrows Bridge was an incidental contact with the SDNY, as Jackson was driving from one part of the EDNY (Staten Island) to get to another part of the EDNY (Brooklyn) to get to his destination in yet another
If the majority is correct, once the Government arrested Jackson in Queens, they could have flown him, for example, to South Dakota and instructed him to make the same phone calls, saying “I‘m in South Dakota” instead of “I‘m in New York.” On the Government‘s theory, defendants would have been subject
I would vacate the convictions for improper venue. Accordingly, I dissent.