United States v. Paredes-Cordova , 504 F. App'x 48 ( 2012 )

10-1868-cr
United States v. Paredes-Cordova
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, 500 Pearl Street, in the City of New York, on
the 7th day of December, two thousand twelve.
PRESENT:
JOSÉ A. CABRANES,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 10-1868-cr
JORGE MARIO PAREDES-CORDOVA,
Defendant-Appellant,
BYRON BERGANZA, MARCO ANTONIO LARA PAIZ, ISAIAS TURCIOS,
AKA Lico, AKA Lico Medina, OTONIEL TURCIOS-MARROQUIN,
AKA Otto, AKA Tio, HECTOR EDUARDO MORATAYA-OLIVA, AKA
Jeto, MYVA LORENA ORELLANA-MORALES, CARLOS LEMUS DORION,
Defendants.1
1
The Clerk of Court is directed to amend the caption of this case to conform to the listing of the parties shown above.
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FOR DEFENDANT-APPELLANT: CARMEN D. HERNANDEZ, Law Office of
Carmen Hernandez, Washington, DC.
FOR APPELLEE: JOCELYN E. STRAUBER (Justin S. Weddle, on
the brief), for Preet Bharara, United States
Attorney, United States Attorney’s Office for
the Southern District of New York.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Deborah A. Batts, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the May 3, 2010 judgment of conviction is AFFIRMED.
Defendant-appellant Jorge Mario Paredes-Cordova appeals from a May 3, 2010 judgment of
the District Court convicting him on two counts: (1) participating in a dual-object cocaine
importation conspiracy, in violation of 21 U.S.C. § 963, with the objects of importing five kilograms
and more of cocaine and distributing five kilograms and more of cocaine, in violation of 21 U.S.C.
§§ 952(a), 960(a)(1), 960(b)(1)(B), and 21 U.S.C. §§ 959(a), 960(b)(1)(B), respectively; and (2)
participating in a conspiracy to distribute five kilograms and more of cocaine in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). We assume the parties’ familiarity with the underlying
facts, and the procedural history of this case.
DISCUSSION
On appeal, Paredes-Cordova makes four arguments as to why we should reverse the District
Court and remand for a new trial. First, he argues that the District Court’s jury instructions were
erroneous because they did not include a multiple conspiracy, voice identification, or alibi
instruction, and because the “reasonable doubt” jury instruction was deficient. Second, he contends
that certain belated disclosures by the government violated Brady v. Maryland, 373 U.S. 83 (1963), and
denied him a fair trial. Third, he asserts that the District Court erred in denying his motion to
suppress his post-arrest statements. Finally, Paredes-Cordova argues that a new trial is warranted
because the indictment was duplicitous. We address each argument and conclude that each is
without merit.
A. The Jury Instructions Were Proper
We generally review challenges to jury instructions de novo. See United States v. Ford, 435 F.3d
204, 209-10 (2d Cir. 2006). On appeal, a defendant must establish that the requested charge below
“accurately represented the law in every respect” and that the charge delivered was erroneous and
caused prejudice. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (quotation marks
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omitted). However, when a defendant fails to contemporaneously object, jury instructions are
reviewed only for plain error. See United States v. Schultz, 333 F.3d 393, 413 (2d Cir. 2003).
i. A Multiple Conspiracy Instruction Was Not Required
As an initial matter, the multiple conspiracy instruction requested by Paredes-Cordova was
erroneous in that it stated that “[i]f you find that there were two or more conspiracies then you must
acquit the defendant on the conspiracy charge.” We have held that “[a]cquittal is not automatically
required if the jury finds multiple conspiracies because the jury can plausibly decide that one of
those conspiracies is the single conspiracy charged in the indictment . . . .” United States v. Berger, 224
F.3d 107, 114 (2d Cir. 2000) (citation omitted).
Moreover, the District Court’s decision not to give a multiple conspiracy instruction was
supported by the facts of this case. Even though the criminal organization went through changes in
membership and spheres of operation, the record evidence suggests that it had the singular and
common goal of obtaining cocaine in Colombia and transporting it into the United States to
distribute. See, e.g., United States v. Williams, 205 F.3d 23, 33 (2d Cir. 2000) (“‘[A] single conspiracy is
not transposed into a multiple one simply by lapse of time, change in membership, or a shifting
emphasis in its locale of operations.’” (quoting United States v. Cambindo Valencia, 609 F.2d 603, 625
(2d Cir. 1979))). Thus, as the government charged a single conspiracy, no multiple conspiracy
instruction was required.
But even assuming a multiple conspiracy instruction was warranted, Paredes-Cordova
suffered no prejudice because “there was ample proof before the jury for it to find beyond a
reasonable doubt that [the] defendant was a member of the conspiracy charged in the indictment.”
United States v. Vazquez, 113 F.3d 383, 386 (2d Cir. 1997). The District Court properly concluded
that because Paredes-Cordova stood trial alone, “the risk of confusion over multiple conspiracies
and attendant prejudicial ‘spillover’ is not relevant.” Special App’x 67 (quoting United States v. Corey,
566 F.2d 429, 431 n.3 (2d Cir. 1977)). Thus, a multiple conspiracy instruction was not required.
ii. A Voice Identification Instruction Was Not Required
At trial, Paredes-Cordova argued that the voice on the recorded phone calls admitted into
evidence was not his. In such circumstances, we have held that “it [i]s within the district court’s
discretion to regard [a voice identification instruction] as superfluous.” United States v. Ulerio, 859
F.2d 1144, 1146 (2d Cir. 1988); see United States v. Sliker, 751 F.2d 477, 500 (2d Cir. 1985); see also e.g.,
United States v. Moyhernandez, 17 F. App’x 62, 70 (2d Cir. 2001) (non-precedential order).
Accordingly, we find no error in the District Court’s refusal to give the proposed voice identification
instruction.
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iii. An Alibi Instruction Was Not Required
Paredes-Cordova argues that an alibi instruction was warranted because “he was elsewhere
on certain dates when he was alleged to have been speaking on the phone with a cooperating
witness.” We have repeatedly held, however, that an alibi instruction is inappropriate in the context
of a charged conspiracy that encompasses a significant time period and numerous predicate acts. See
United States v. Bryser, 954 F.2d 79, 87-88 (2d Cir. 1992); United States v. Guillette, 547 F.2d 743, 751 (2d
Cir. 1976). In sum, no alibi instruction was required.
iv. The “Reasonable Doubt” Instruction Was Not Erroneous, Much Less “Plainly
Erroneous”
On appeal, Paredes-Cordova also takes issue with the District Court’s “reasonable doubt”
instruction. Because Paredes-Cordova raises this objection for this first time on appeal, we review
the district court’s instruction for “plain error.” See FED. R. CRIM. P. 52(b). The instruction stated,
inter alia, that:
If, after fair and impartial consideration of all of the evidence on the count you are
considering, you have a reasonable doubt about the guilt of the defendant on that
count, it is your duty to acquit the defendant on that count. On the other hand, if . . .
you are convinced of the defendant’s guilt beyond a reasonable doubt, you must convict
the defendant on that count.
App’x 268 (emphasis supplied). Later in the charge, the District Court, in describing the elements in
Count One, stated that “[i]f the government fails to prove that either of the charged objects of the
conspiracy in Count One was an object of the conspiracy in which the defendant participated, then
you must find the defendant not guilty on Count One.” Id. at 276 (emphasis supplied).
After reviewing the jury instructions “as a whole,” see Victor v. Nebraska, 511 U.S. 1, 5 (1994),
we are convinced that the District Court “‘instruct[ed] the jury on the necessity that the defendant’s
guilt be proven beyond a reasonable doubt,’” United States v. Birbal, 62 F.3d 456, 462 (2d Cir. 1995)
(quoting Victor, 511 U.S. at 5). While we have not specifically held that the phrase “it is your duty”
is sufficiently mandatory, this Circuit and others have approved the use of that phrase in “reasonable
doubt” jury instructions. See United States v. Carr, 424 F.3d 213, 219-21 (2d Cir. 2005) (upholding
“reasonable doubt” instruction that used the phrase “it is your duty”); see also United States v. Pierre,
974 F.2d 1355, 1356-57 (D.C. Cir. 1992), cert. denied, 507 U.S. 1012 (1993). In any event, the District
Court’s “reasonable doubt” instruction was not erroneous, much less “plainly erroneous.”
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B. The Brady Disclosures During Trial Do Not Warrant a New Trial
Paredes-Cordova argues that two mid-trial disclosures―(1) the October 18, 2009 disclosure
of a confidential source’s statements in an April 9, 2003 DEA report, and (2) the October 27, 2009
disclosure about statements made by two cooperating witnesses, Rodrigo Mora-Mondragon and
Gerardo Cardenas-Procopio―warrant a new trial.2 We disagree.
To violate Brady, the undisclosed material evidence “must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed . . .
either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
281-82 (1999). Evidence is “material” for the purposes of Brady if “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005) (quotation marks omitted).
The October 18, 2009 disclosure about the confidential source’s statements was favorable to
Paredes-Cordova because it indicated that someone other than the defendant owned the 265-
kilogram cocaine shipment that was seized by law enforcement officials in January 2003; the
confidential source’s statements also were inconsistent with the testimony of two government
witnesses. Nevertheless, even though this disclosure was belated, it was not “suppressed” by the
government within the meaning of Brady because the government’s disclosure during trial was a
“sufficient disclosure in sufficient time to afford the defense an opportunity to use.” Leka v.
Portuondo, 257 F.3d 89, 103 (2d Cir. 2001).
Not only did the government make a full disclosure of the statements, the accompanying
DEA Report, and other information obtained in follow-up interviews, but the District Court also
granted an adjournment so that defense counsel could explore this evidence, restructure its cross-
examination of another government witness, recall two government cooperating witnesses, and
interview other potential witnesses. After defense counsel was given this additional time, it assured
the District Court that it was prepared to proceed.
Under these circumstances, the government’s belated disclosure on October 18, 2009 did
not violate Brady.
Similarly, Paredes-Cordova was not prejudiced by the October 27, 2009 disclosure regarding
certain statements Cardenas made about who was involved with cocaine that was seized in Panama
on July 21, 2005. Indeed, after it made this disclosure, the government transported Cardenas to
New York and took steps to ensure that he could be called as a defense witness at trial. Cardenas
2 While the government disclosed certain statements made by Rodrigo Mora-Mondragon and Gerardo Cardenas-
Procopio, Paredes-Cordova’s argument focuses solely on the evidence relating to Cardenas’s testimony.
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was called by the defense at trial and testified. Thus, despite its belated disclosure, we find no Brady
violation with regard to Cardenas’s statements.3
C. Paredes-Cordova’s Post-Arrest Statements Were Properly Admitted
Paredes-Cordova next argues that the District Court erred by admitting post-arrest
statements he made. In particular, he argues that: (1) he did not knowingly and voluntarily waive his
Miranda rights because Agent Weil (the DEA agent who gave the Miranda warning to Paredes-
Cordova) was not “conversant” in Spanish, and (2) his Sixth Amendment rights were violated
because Agent Weil continued to question him after he was appointed counsel. These arguments
are without merit for at least two reasons.
First, Paredes-Cordova waived both arguments by not raising them in his pre-trial motion to
suppress. See FED. R. CRIM. P. 12(b)(3), 12(e); United States v. Yousef, 327 F.3d 56, 125 (2d Cir. 2003).
His pre-trial suppression motion never mentioned that Agent Weil was unable to communicate the
Miranda waiver effectively. Furthermore, his pre-trial suppression motion did not discuss any Sixth
Amendment violation.
In any event, a review of the record reveals that Paredes-Cordova knowingly and voluntarily
waived his Miranda rights, both before and after he was afforded the services of appointed counsel.
App’x 60-63, 168-70, 191-92. Accordingly, his Fifth and Sixth Amendment rights were not violated.
See Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (“The defendant may waive the [Miranda] right
whether or not he is already represented by counsel; the decision to waive need not itself be
counseled.”).
D. The Indictment Was Not “Duplicitous”
Finally, Paredes-Cordova argues that the operative indictment was “duplicitous” within the
meaning of Federal Rule of Criminal Procedure 8(a) because it charged a single cocaine importation
and distribution conspiracy instead of several different conspiracies.
We have held that the application of the so-called duplicity doctrine poses “unique issues” in
the context of conspiracy charges because “a single agreement may encompass multiple illegal
objects.” United Sates v. Murray, 618 F.2d 892, 896 (2d Cir. 1980); see also United States v. Tutino, 883
F.2d 1125, 1141 (2d Cir. 1989) (holding that a narcotics conspiracy count was not duplicitous even
though it aggregated multiple narcotics transactions). And it is well established that “[t]he allegation
in a single count of a conspiracy to commit several crimes is not duplicitous, for ‘[t]he conspiracy is
3 Because we conclude that Paredes-Cordova was not prejudiced by the October 29, 2009 disclosure, we need not
consider whether the information was exculpatory.
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the crime, and that is one, however diverse its objects.’” Braverman v. United States, 317 U.S. 49, 54
(1942) (quoting Frohwerk v. United States, 249 U.S. 204, 210 (1919)).
As noted above in the discussion of the multiple conspiracy charge, the evidence supports
the existence of a single conspiracy to import cocaine from Colombia into the United States and to
distribute cocaine within the United States. Even though the narcotics scheme spanned six years
and involved multiple methods, locations, and participants, the conspiracy maintained this single,
overarching purpose. See Williams, 205 F.3d at 33. On this record, Paredes-Cordova’s argument
regarding duplicity does not warrant a new trial.
CONCLUSION
We have considered all of Paredes-Cordova’s arguments on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s May 3, 2010
judgment of conviction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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