United States v. Sanchez & Pagan , 623 F. App'x 35 ( 2015 )

13-3979-cr(L)
United States v. Sanchez & Pagan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 2nd day of September, two thousand fifteen.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. Nos. 13-3979-cr(L)
13-4859-cr(con)
CHRISTIAN SANCHEZ, AKA King Chi Chi, WILSON
PAGAN, AKA King Gunz,
Defendants-Appellants,
PEDRO HERRERA, AKA King Aventura, ROGELIO
RAMOS, AKA King Bogelio, FERNANDO MERLO,
AKA King Dinero, ARMANDO SANCHEZ, AKA King
Malo, AKA King Mondo, JASON CARABALLO, AKA
King Loco, OSMAN NUNEZ, AKA King Ozzy,
HUMBERTO MORALES, AKA King Papo, STEVEN
LEWIS, AKA King Scoobz, CARLOS ROMERO, AKA
King Los, WILFREDO SANCHEZ, AKA King Frito,
FELIX LAGARES, AKA King Bavage, KELVIN
LAGARES, AKA King Haze, JUAN RIOS, AKA King
Juan, ANDREW SANCHEZ, AKA Animal, WILFREDO
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NIEVES, AKA Jo Jo, NOEL VELEZ, LUIS TAMBITO,
AKA King Luch, CHRISTOPHER MCNAIR, AKA King
Speedy, WILLIAM OVERTON, AKA King TuTu,
TOMAS JIMENEZ, AKA King Tunes, RICARDO
RAMOS, AKA Carlito, NICHOLAS COLON, AKA King
Tragedy, CARLOS ORTIZ, AKA King Tone, DAMON
SINCLAIR, AKA King Dash, ANGELO DELEON, AKA
King Truth, DEVON SMITH, AKA King Bullethead,
EDNA REYES, AKA Queen Anita, RANDY ANGULO,
AKA King Randy, LEO AUSTIN, AKA King Pumba,
NELSON CALDERON, AKA King Murder, EVA
CARDOZA, JOSE LAGOS, AKA King Gordo,
Defendants.
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APPEARING FOR APPELLANTS: MARSHA R. TAUBENHAUS, Law Offices of
Marsha R. Taubenhaus, New York, New York,
for Christian Sanchez.
ROBERT JOSEPH BOYLE, ESQ., New York,
New York, for Wilson Pagan.
APPEARING FOR APPELLEE: BENJAMIN ALLEE (Brian A. Jacobs, on the
brief), Assistant United States Attorneys, for
Preet Bharara, United States Attorney for the
Southern District of New York, New York,
New York.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Cathy Seibel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments entered on October 18, 2013, (as to Christian
Sanchez) and December 20, 2013, (as to Wilson Pagan) are AFFIRMED.
Defendants Wilson Pagan and Christian Sanchez, two former heads of the
Newburgh, New York, chapter of the “Latin Kings” gang, stand convicted after trial of 14
counts and 19 counts, respectively, relating to racketeering, violent acts in aid of
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racketeering, firearms, and narcotics.1 Pagan was sentenced principally to life plus 85
years’ imprisonment, and Sanchez was sentenced principally to life plus 110 years’
imprisonment. On appeal, both defendants challenge the sufficiency of the evidence
supporting their convictions and ascribe myriad errors to the trial court. We assume the
parties’ familiarity with the facts and the record of prior proceedings, which we reference
only as necessary to explain our decision to affirm.
1. Pagan’s Arguments
A. Juror Dismissal
Pagan faults the district court for dismissing a juror, after trial had begun, for
professed financial hardship. We review a decision to discharge a juror before
deliberation for abuse of discretion. See United States v. Fazio, 770 F.3d 160, 169 (2d
Cir. 2014). We will not identify such abuse absent “bias or prejudice to the defendant,”
which may be found “when the discharge is without factual support, or for a legally
irrelevant reason.” Id. at 170. That is not this case.
The discharged juror, the sole employee of a small business, advised the court that
her employer would not pay her during jury service unless she otherwise made up the time,
circumstances that posed a financial hardship. See Trial Tr. 1419–20. The district court
unsuccessfully tried to contact the employer and afforded the juror a day to seek employer
consideration. When the juror was unable to do so, the district court had a sufficient
1
Pagan was convicted of 15 counts, but the conviction on Count 31 of the Superseding
Indictment, a violation of 18 U.S.C. § 924(c), was vacated without opposition by the
government because it was a lesser included offense of the § 924(j) charge in Count 32.
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factual basis to excuse the juror. See Trial Tr. 1422–23, 1679–80; cf. United States v.
Millar, 79 F.3d 338, 342 (2d Cir. 1996) (identifying reasonable cause to dismiss juror
where juror’s “father died suddenly during the trial”). Under these circumstances, and in
the absence of any other showing of prejudice, we identify no abuse of discretion
warranting a new trial.
B. Pinkerton Jury Instruction
Pagan argues that the district court erroneously instructed the jury that it could find
Pagan guilty of charged violent crimes in aid of racketeering, see 18 U.S.C. § 1959(a), on
the basis of foreseeable acts of coconspirators in furtherance of their conspiracy. See
Pinkerton v. United States, 328 U.S. 640, 646–48 (1946); accord United States v. Coplan,
703 F.3d 46, 71 (2d Cir. 2012). We review a preserved challenge to a jury instruction de
novo, “viewing the charge as a whole,” and we will reverse only if we identify both error
and prejudice. United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010). Where a
challenge is unpreserved, we review only for plain error. See United States v. Nouri, 711
F.3d 129, 138 (2d Cir. 2013).
Pagan argues that the Pinkerton instruction was error because the violent crimes
underlying the § 1959(a) charges were state offenses, and New York law rejects Pinkerton
liability. See People v. McGee, 49 N.Y.2d 48, 56–58, 424 N.Y.S.2d 157, 161–62 (1979).
Pagan’s argument is foreclosed by United States v. Diaz, 176 F.3d 52 (2d Cir. 1999).
There, we rejected a similar challenge to a Pinkerton instruction for a § 1959(a) charge
based on a violent crime under Connecticut law. In so holding, Diaz stated that “the
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racketeering statutes are not meant to incorporate state procedural and evidentiary law;
rather, references to state law in these statutes serve merely a definitional purpose, that is,
to identify generally the kind of conduct made illegal by the federal statute.” Id. at 100.
The pronouncement was not limited to § 1959(a) convictions predicated on violations of
Connecticut law, although by that time Connecticut had expressly accepted the Pinkerton
theory of liability. See State v. Walton, 227 Conn. 32, 45–46 (1993). Defendants argue
that Diaz is therefore inapplicable where, as here, the state substantive criminal law
governing the predicate acts expressly rejects Pinkerton liability. See People v. McGee,
49 N.Y.2d at 56–58, 424 N.Y.S.2d at 161–62 (“To permit mere guilt of conspiracy to
establish the defendant’s guilt of the substantive crime without any evidence of further
action on the part of the defendant, would be to expand the basis of accomplice liability
beyond the legislative design.”). Defendants further argue that our circuit has since made
explicit the need to prove at trial all elements of a state offense where the § 1959(a)
conviction was premised on violations of state law. See, e.g., United States v. Desena,
287 F.3d 170, 177 & n.1 (2d Cir. 2002) (assuming for the purposes of the appeal that,
where state law defined the predicate act under § 1959, the government needed to prove
beyond a reasonable doubt the elements of state attempt liability, but explicitly finding it
“unclear whether § 1959 imports state law of attempt and conspiracy or whether federal
law governs” in such a context); see also United States v. Carrillo, 229 F.3d 177, 185–86
(2d Cir. 2000) (declining to decide the issue, but observing that the plain language of §
1961(1) and § 1959(a) “seem to require of a predicate act based on state law that the act
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include the essential elements of the state crime”).2
Defendants are correct that panels of this court have expressed some doubt about
Diaz’s continued viability. See United States v. Carrillo, 229 F.3d at 185 (expressing
“serious doubts” about whether Diaz’s reasoning on jury charges as to state substantive
elements “can stand the test of time”); see also United States v. Pimentel, 346 F.3d 285,
302–05 (2d Cir. 2003) (repeating similar doubts). Nevertheless, this court has not
expressly disavowed Diaz’s broad language, much less reversed its holding. Even if these
more recent precedents conflict with Diaz to some extent, Diaz remains controlling
authority. See Tanasi v. New Alliance Bank, 786 F.3d 195, 200 n.6 (2d Cir. 2015)
(“Where a second panel’s decision seems to contradict the first, and there is no basis on
which to distinguish the two cases, we have no choice but to follow the rule announced by
the first panel.”). Thus, in light of Diaz’s explicit language, we cannot conclude that the
district court’s use of a Pinkerton instruction constituted plain error.
C. Melendez’s Statements
The district court admitted an out-of-court statement by Jason Melendez to Luis
Tambito pursuant to Fed. R. Evid. 801(d)(2)(E). To admit a statement under that rule, the
district court must make a preponderance finding “(a) that there was a conspiracy, (b) that
its members included the declarant [here, Melendez] and the party against whom the
statement is offered [here, Pagan], and (c) that the statement was made during the course of
2
In that regard, we note that the jury charge in this case correctly instructed the jury as to
all the elements of the underlying state crimes, but it then charged that the government
could carry this burden on a Pinkerton theory.
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and in furtherance of the conspiracy.” United States v. James, 712 F.3d 79, 105 (2d Cir.
2013). The district court’s findings on these issues are reviewed for clear error, see id.,
which is not evident here.
The record, which includes Melendez’s statements, see Fed. R. Evid. 801(d)(2),
supports the district court’s finding that Pagan and Melendez were members of a
conspiracy to assault or murder members of a rival gang, the Bloods. See United States v.
Gigante, 166 F.3d 75, 83 (2d Cir. 1999) (holding that conspiracy must have “specific
criminal goal in addition to a general conspiracy to be members of” gang). Relevant facts
include: (1) Melendez’s statement that he agreed with Pagan to shoot members of the
Bloods, see Trial Tr. 2124; (2) a police officer’s testimony that he encountered Melendez
and Pagan on Dubois Street—the same street where Pagan’s gang later attempted to
murder a Bloods member—and found Melendez to be carrying a loaded firearm, see id. at
1713–16, 2124, 2400; and (3) a letter from Melendez stating his support for the Newburgh
chapter of the Latin Kings, see Pagan App. 156. The record also supports the district
court’s finding that Melendez’s statements to Tambito were in furtherance of the
conspiracy. The statements informed Tambito of the rivalry between the Latin Kings and
the Bloods, legitimized Melendez’s authority within the Latin Kings, and justified
Melendez’s order to Tambito to fight Bloods members “on sight.” Trial Tr. 2121–22; see
United States v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (holding that statements further
conspiracy where they “prompt the listener to respond in a way that promotes or facilitates
the carrying out of a criminal activity” or “serve to foster trust and cohesiveness, or inform
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each other as to the progress or status of the conspiracy” (internal quotation marks and
ellipsis omitted)).
Pagan’s challenge to the admission of the Melendez statements therefore fails on the
merits.
D. Pagan’s Sufficiency Challenges
On a sufficiency challenge, we view the record in the light most favorable to the
government and will affirm if it would permit any rational jury to find guilt beyond a
reasonable doubt. See United States v. McGinn, 787 F.3d 116, 122 (2d Cir. 2015).
Pagan submits that the record was insufficient to demonstrate that he (a) was responsible
for the May 6, 2008 attempted murder of Anthony Hill, which resulted in the murder of
Jeffrey Zachary, a finding necessary to Counts 1, 2, 3, 4, 5, 6, and 32; (b) conspired to
violate the narcotics laws, a finding necessary to Counts 1, 2, 23, 29, and 30; and (c)
conspired to commit assault on November 1, 2008, in aid of racketeering, a finding
necessary to Counts 7 and 33. We reject each of these challenges.
a. May 6, 2008 Attempted Murder and Murder
The record shows that Pagan conspired with Melendez to shoot Bloods members in
retaliation for the murder of Latin Kings member Brian Triminio and that Pagan, Jose
Lagos (Triminio’s brother), and Melendez, who was carrying a loaded firearm, were found
on April 27, 2008, on the street where Hill, a Bloods member, lived. See Trial Tr. 1712–
16, 2400. Evidence also showed that, ten days later, on May 6, 2008, when another Latin
Kings member, Josh Torres, stated he was willing to kill a Bloods member, Lagos called
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Pagan to the scene, and Pagan gave Torres the go-ahead. See id. at 2110–13. Finally, the
evidence showed that after speaking to Pagan, Torres and Daniel Correa (a prospective
member of the Latin Kings) attempted to shoot Hill, but instead shot and murdered
Zachary. See id. at 2117, 2466.
Viewed in the light most favorable to the government, this evidence supported a
jury finding beyond a reasonable doubt that Pagan ordered the Hill murder and thereby
caused the Zachary murder.
b. Narcotics Conspiracy
Pagan argues that the evidence showed only individual drug dealing and not any
coordinated conspiracy. This is belied by the record, which included recordings of Pagan
dictating the drug-dealing practices of other Latin Kings members. See Gov’t Ex. 2802T,
at 10–11 (instructing member to avoid drug conflict near property owned by his uncle);
Gov’t Ex. 2804T, at 8–9 (instructing members not to wear Latin Kings colors while dealing
drugs or when encountering police); id. at 11 (warning members about federal
investigation); id. at 17 (instructing members to avoid conflict on drug corners so as not to
harm other Latin Kings’ drug dealing business); id. at 18 (commenting that members were
making sufficient money selling drugs). Viewed in the light most favorable to the
government, this evidence supported a jury finding of a common conspiracy. See United
States v. Berger, 224 F.3d 107, 115 (2d Cir. 2000) (“In the context of narcotics operations,
. . . a single conspiracy exists where the groups share a common goal and depend upon and
assist each other, and we can reasonably infer that each actor was aware of his part in a
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larger organization where others performed similar roles.” (internal quotation marks
omitted)); accord United States v. Payne, 591 F.3d 46, 61 (2d Cir. 2010).
c. Conspiracy To Assault in Aid of Racketeering
Pagan argues that the November 1, 2008 conspiracy to assault was not in aid of
racketeering because there was no evidence that the intended victims were members of a
rival gang. See Pagan Br. 52. That misses the point, which asks only whether the
intended assault, whatever the association of its victims, was intended to aid defendants’
racketeering. Trial evidence showed that a fight erupted between Latin Kings members
and the assault victims after Latin Kings members displayed a gang sign. See Trial Tr.
2932. It further showed that one of the targeted individuals had a history of problems with
the Latin Kings gang. See id. at 2484–85. These circumstances permitted the jury to find
that Pagan entered the assault conspiracy because of his membership in the Latin Kings,
and in order to further its objectives. See United States v. Farmer, 583 F.3d 131, 141 (2d
Cir. 2009) (holding motive element of 18 U.S.C. § 1959(a) satisfied “if the jury could
properly infer that the defendant committed his violent crime because he knew it was
expected of him by reason of his membership in the enterprise or that he committed it in
furtherance of that membership” (internal quotation marks omitted)).
Accordingly, all of Pagan’s challenges to his conviction are meritless.
2. Sanchez’s Arguments
To the extent Sanchez joins several of Pagan’s arguments, we reject them for the
reasons just stated. Sanchez’s individual arguments are also without merit.
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A. Alleged Fed. R. Evid. 605 Violation
Sanchez argues that the trial judge violated Fed. R. Evid. 605 by reading aloud from
portions of several trial exhibits. Although Sanchez did not object at trial, “[a] party need
not object to preserve” an alleged Rule 605 error. Fed. R. Evid. 605. The complained-of
action, however, raises no Rule 605 concern.
Rule 605 states that “[t]he presiding judge may not testify as a witness at the trial.”
The rule exists to prevent “situations where the judge presiding at the trial forsakes the
bench for the witness stand or engages in equivalent conduct.” United States v. Sliker,
751 F.2d 477, 499 (2d Cir. 1984). The district judge did not assume a witness role merely
by reading from an exhibit already admitted into evidence because the witness reading the
exhibit stumbled. To the contrary, such conduct was permissible as part of the judge’s
duty to avoid wasting jury time. See Fed. R. Evid. 611(a)(2). The conclusion is only
reinforced by the fact that there was no dispute here as to what the exhibit actually said and
by the district judge’s explicit instruction that the jury should disregard anything she may
have said indicating a view of the evidence. See Trial Tr. 3979.
Accordingly, Sanchez’s Fed. R. Evid. 605 challenge fails.3
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To the extent Sanchez contends that the prosecution engaged in misconduct by reading
one of the admitted exhibits during summation, that argument is insufficiently briefed and
therefore forfeited. See United States v. Kerr, 752 F.3d 206, 218 (2d Cir. 2014). In any
event, the contention is meritless. The government, like any party, may comment during
summation on the contents of admitted exhibits. See United States v. Cohen, 427 F.3d
164, 170 (2d Cir. 2005) (noting that “Government has broad latitude in the inferences it
may reasonably suggest to the jury during summation,” as long as those inferences are
reasonable “in light of the evidence presented at trial” (internal quotation marks omitted)).
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B. Recusal Claim
Sanchez argues that the district judge was required to recuse herself pursuant to 28
U.S.C. § 455(b)(3) because, before she became a judge, she had prosecuted members of a
different chapter of the Latin Kings. Section 455(b)(3) requires recusal if a judge “has
served in governmental employment and in such capacity participated as counsel, adviser
or material witness concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy.” Where, as here, no recusal motion was made
below, our review is limited to plain error. See United States v. Carlton, 534 F.3d 97, 100
(2d Cir. 2008). We identify no error, plain or otherwise.
Sanchez does not contend that the district judge played any prosecutorial role in his
“particular case.” Section 455(b)(3) is therefore plainly inapposite. The judge’s prior
involvement in a case involving a different chapter of the Latin Kings did not require
recusal. Judges in our circuit who previously prosecuted Mafia figures commonly hear
cases involving the Mafia. Compare, e.g., United States v. Coppola, 671 F.3d 220 (2d Cir.
2012) (reviewing Mafia-related trial overseen by Judge John Gleeson), with United States
v. Locascio, 6 F.3d 924 (2d Cir. 1993) (reviewing Mafia-related trial prosecuted by
then-Assistant United States Attorney John Gleeson). This situation is no different and,
thus, Sanchez’s recusal challenge fails.
C. Sanchez’s Sufficiency Challenges
Sanchez challenges jury findings that he (a) joined the charged narcotics
conspiracy, a finding necessary to Counts 23, 26, and 29; (b) conspired to murder a rival
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gang member on March 9, 2010, a finding necessary to Count 16; (c) agreed that informant
Samuel Cardona be assaulted, a finding necessary to Count 42; and (d) shot Mike Perez in
furtherance of a racketeering enterprise, a finding necessary to Counts 22 and 40. Each
challenge lacks merit.
a. Narcotics Conspiracy
A cooperating witness testified that he, Sanchez, and other Latin Kings members
“all decided to go sell crack and whatever we had” on a particular street in Newburgh and
that Sanchez and another Latin Kings member made the decision to bring a gun. Trial Tr.
1276–77. Another witness testified that he saw Sanchez selling drugs at an intersection
controlled by the Latin Kings. See Trial Tr. 1866–67. Viewed in the light most
favorable to the government, these facts support Sanchez’s conviction for narcotics
conspiracy.
b. Murder Conspiracy
Sanchez argues that the evidence showed only that he organized a mission to “shoot
at” rival gang members, not that he intended the shooting to be fatal, i.e., that he intended to
murder. The argument warrants little discussion because a reasonable jury could
permissibly find that when Sanchez said, “shoot at,” he meant kill.
c. Assault of Cardona
Sanchez argues that although he agreed that Cardona be kicked out of the Latin
Kings, he did not intend for Cardona to be assaulted. Sanchez concedes, however, that
members who were kicked out of the gang were often assaulted. See Sanchez Br. 56.
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Thus, when evidence is viewed in the light most favorable to the government, the jury
could infer that when Sanchez agreed that Cardona be kicked out of the gang, he intended
that it be effected, as occurred frequently, by an assault.
d. Shooting of Perez
Sanchez argues that the evidence was insufficient to show that he shot Perez with
the purpose of “maintaining or increasing position” in the Latin Kings. 18 U.S.C.
§ 1959(a). Rather, Sanchez contends that the shooting resulted from an out-of-control
“scuffle.” Sanchez Br. 57. The trial testimony, however, indicated that the shooting was
the culmination of a fight between Sanchez and Perez as part of an internal leadership
struggle. See Trial Tr. 2083–90. From that testimony, a reasonable jury could infer that
Sanchez shot Perez at least in part to protect his leadership position within the gang.
Accordingly, we reject all of Sanchez’s challenges to his conviction.
We have considered defendants’ remaining arguments and conclude that they are
without merit. We therefore AFFIRM the judgments of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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