United States v. Yepez , 456 F. App'x 52 ( 2012 )

10-5005-cr
USA v. Yepez
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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 24th day of January, two thousand twelve.
Present: ROBERT A. KATZMANN,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
____________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
- v. - No. 10-5005-cr
JESSE YEPEZ,
Defendant-Appellant.
____________________________________________________________
For Defendant-Appellant: BENJAMIN E. ROSENBERG (Gordon Sung, on the
brief), Dechert LLP, New York, N.Y.
For Appellee: RICHARD BELLISS (Brenda K. Sannes, on the
brief), Assistant United States Attorney, of
counsel, for, Richard S. Hartunian, United
States Attorney for the Northern District of New
York, Syracuse, N.Y.
Appeal from the United States District Court for the Northern District of New York
(Mordue, C.J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Jesse Yepez appeals from a judgment of conviction entered on
December 9, 2010, in the United States District Court for the Northern District of New York
(Mordue, C.J.). Following a three-day jury trial, Yepez was found guilty of two counts (Counts
1 and 2) of possessing and receiving a firearm while being an unlawful user of a controlled
substance, in violation of 18 U.S.C. § 922(g)(3); one count (Count 4) of possessing a stolen
firearm, knowing it to have been stolen, in violation of 18 U.S.C. § 922(j); two counts (Counts 5
and 6) of transferring a firearm knowing that it would be used to commit a narcotics conspiracy,
in violation of 18 U.S.C. § 924(h); and two counts (Counts 7 and 8) of conspiracy to distribute a
controlled substance (cocaine and marijuana, respectively). The district court principally
sentenced Yepez to 46 months’ imprisonment. On appeal, Yepez contends that there was
insufficient evidence to convict him of Counts 1, 2, 5, 6, 7, and 8. Specifically, he argues that
there was insufficient evidence for the jury to conclude that (1) he was “an unlawful user” of
marijuana while he possessed firearms (Counts 1 and 2), (2) he transferred firearms knowing that
they would be used to commit a marijuana trafficking conspiracy (Counts 5 and 6), and (3) he
conspired with anyone to distribute either cocaine (Count 7) or marijuana (Count 8). He does
not challenge his conviction on Count 4. We assume the parties’ familiarity with the facts and
procedural history of the case.
A defendant challenging the sufficiency of the evidence bears a “heavy burden.” United
States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004) (internal quotation marks omitted). We
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review the evidence “in the light most favorable to the government, crediting every inference
that could have been drawn in the government’s favor.” United States v. Chavez, 549 F.3d 119,
124 (2d Cir. 2008). A conviction must be affirmed if “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original).
We first turn to whether there was sufficient evidence to support Counts 1 and 2. It is
unlawful for any person “who is an unlawful user of or addicted to any controlled substance” to
“possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign commerce.” 18
U.S.C. § 922(g)(3). Yepez argues that there was insufficient evidence for the jury to find that he
was an unlawful user of marijuana at the time he possessed the black Heckler and Koch P2000
.40 caliber handgun (the “H&K Handgun”) and the silver Star Interarms “Firestar” 9mm
handgun (the “Star Handgun”). For the jury to convict Yepez of these counts, there must have
been evidence from which a reasonable jury could conclude that Yepez “engaged in a pattern of
use of controlled substances that reasonably covers the time of the events charged in the
[superseding] indictment.” 2 Leonard B. Sand et al., Modern Federal Jury
Instructions–Criminal, Instruction 35-48.1 (2011). See also United States v. Nevarez, 251 F.3d
28 (2d Cir. 2001) (per curiam) (“[A] defendant’s unlawful use of a controlled substance must be
ongoing and contemporaneous with the commission of the offense.”).
Drawing all inferences in the government’s favor, we conclude that there was sufficient
evidence to establish that Yepez regularly used marijuana during the time period he possessed
the two guns. In particular, two of Yepez’s trusted friends testified that Yepez frequently
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smoked marijuana during the 2006-2007 time frame. Jason Page testified that Yepez “smoked a
lot” of marijuana during this time period, and Chris Davila testified that Yepez “loved smoking
weed.” J.A. 41, 248. These witnesses also testified that during the 2006-2007 time frame they
observed Yepez smoking marijuana in various locations, including in Page’s apartment, in the
car, during road trips, and at Shenanigan’s, the bar where Yepez worked. Accordingly, a
reasonable jury could conclude that Yepez was an unlawful user of marijuana when he possessed
the H&K Handgun and the Star Handgun.
We next turn to whether there was sufficient evidence to support Counts 5 and 6. It is
unlawful for any person to “knowingly transfer[] a firearm, knowing that such firearm will be
used to commit a . . . drug trafficking crime.” 18 U.S.C. § 924(h). Here, the drug trafficking
crime specified in the superseding indictment is Page’s conspiracy to distribute marijuana.
Yepez argues that there was insufficient evidence to establish that Yepez knew that the H&K
Handgun and the Star Handgun that he sold to Page would be used to commit a marijuana
conspiracy, as opposed to a substantive crime of marijuana distribution. We disagree.
After reviewing the trial record, we conclude that there was ample evidence from which a
jury could infer that Yepez transferred firearms knowing they would be used to commit a
narcotics conspiracy. Page testified that he was an “organizer” in a conspiracy that involved the
trafficking of marijuana and that once Page and Yepez became friends, they discussed the
trafficking of marijuana as well as Page’s concerns for his safety given the dangers present in
marijuana trafficking. They also discussed how bullet proof vests and firearms could be used to
protect Page, and Page subsequently purchased two firearms and three bulletproof vests at a
discount from Yepez. Based upon this evidence, a jury could reasonably infer that Yepez
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transferred firearms to Page knowing that they would be used to commit a marijuana
conspiracy.
We finally turn to whether there was sufficient evidence to find that Yepez participated in
a cocaine conspiracy (Count 7) and a marijuana conspiracy (Count 8). Where, as here, a
defendant challenges a conspiracy conviction, “deference to the jury’s findings is especially
important . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case
where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon’s
scalpel.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (internal quotation marks
omitted). “The record must nonetheless permit a rational jury to find: (1) the existence of the
conspiracy charged; (2) that the defendant had knowledge of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy.” Id. (internal citations omitted).
We conclude that there was sufficient evidence to support both conspiracies. As to the
cocaine conspiracy, in addition to expressing interest in Davila’s cocaine business, Yepez
purchased cocaine from Davila on eight to ten occasions and sold some of this cocaine at
Shenanigan’s. Davila also allowed Yepez to stay in the “stash house” where Davila stored
cocaine, something the jury could infer would be permitted only for a trusted member of the
conspiracy. Moreover, at Davila’s request, Yepez removed the Star Handgun from the stash
house to hide it from investigators, an action from which the jury could infer his intent to further
the goals of the conspiracy. As to the marijuana conspiracy, Page testified that he sold one
pound of marijuana to Yepez on credit, expecting Yepez to resell the marijuana in order to pay
Page back. The jury could also infer a “level of mutual trust” between Page and Yepez, see
United States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008), from, among other things, the fact that
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Page sometimes brought Yepez along for marijuana pickups and deliveries. Moreover, as noted
above, Yepez also sold or gave Page the two handguns and three bulletproof vests. Based upon
this evidence, a reasonable jury could conclude that Yepez knowingly participated in both the
marijuana conspiracy and the cocaine conspiracy.
We have considered all of Defendant-Appellant’s remaining arguments and find them to
be without merit. For the reasons stated above, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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