United States v. Restrepo , 547 F. App'x 34 ( 2013 )

12-2246-cr
United States v. Restrepo
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
7 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
8 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
9 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN CITING A
10 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
11 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
12 DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
13 SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
14 REPRESENTED BY COUNSEL.
15
16 At a stated term of the United States Court of Appeals for the Second Circuit,
17 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
18 New York, on the 27th day of November, two thousand thirteen.
19
20 PRESENT: GERARD E. LYNCH,
21 SUSAN L. CARNEY,
22 CHRISTOPHER F. DRONEY,
23 Circuit Judges.
24 ------------------------------------------------------------------
25
26 UNITED STATES OF AMERICA,
27
28 Appellee,
29
30 v. No. 12-2246-cr
31
32 CARLOS ARTURO PATINO RESTREPO,
33 AKA “Patemuro,”
34
35 Defendant-Appellant,
36
37 LUIS ESCOBAR AKA “Curramba”, AKA “Amaretto”,
38 LUIS HERNANDO GOMEZ BUSTAMENTE, AKA
39 “Rasguno”, ARCANGEL DE JESUS HENAO MONTOYA,
40 AKA “El Mocho”, ORLANDO SABOGAL ZULUAGA,
1
1 AKA “El Mono Sabogal”, AKA “Caraqueso”, AKA
2 “Alberto Sabogal”, JAIME MAYA DURAN, AKA
3 “Alejandro”, JHONNY CANO CORREA, AKA “Flechas”,
4 AKA “Santiago”, ALDEMAR RENDON, AKA “Mechas”,
5 JOSE DAGOBERTO FLORE RIOS, AKA “Chuma”,
6 GILBERTO SANCHEZ MONSALVE, AKA “Vitamina”,
7 ABELARDO ROJAS, AKA “El Mono”, JUAN CARLOS
8 GIRALDO FRANCO, AKA “Tortuga”, DAVINSON
9 GOMEZ O’CAMPO, AKA “Gordo”, JAIME ROJAS
10 FRANCO, MARTA AGUDELO CASTANO, AKA
11 “Marta Cano”, JULIA AGUDELO CASTANO, CARLOS
12 ALBERTO GOMEZ, AKA “El Nino”, AKA “Cejas”, JOSE
13 LUIS VALLEJO, ARIEL RODRIGUEZ, AKA “El Diablo”,
14 GABRIEL VILLANUEVA, AKA “Truchi”, HECTOR
15 ALONSO SALAZAR MALDONADO, AKA “Tornillo”,
16 JAIR RENDON, AKA “Negro Jair”, PEDRO BERMUDEZ,
17 AKA “El Arguiticto”,
18
19 Defendants.
20 ------------------------------------------------------------------
21
22 APPEARING FOR APPELLANT: SUSAN C. WOLFE, ESQ., (Jeffrey C. Hoffman, on
23 the brief), Hoffman & Pollok, LLP, New York,
24 New York
25
26 APPEARING FOR APPELLEE: ALLEN L. BODE, (David C. James, on the brief)
27 Assistant United States Attorneys for Loretta E.
28 Lynch, United States Attorney for the Eastern
29 District of New York, Brooklyn, New York.
*The Clerk of Court is respectfully directed to amend the official caption in this case to conform
to the caption above.
2
1 Appeal from a judgment of the United States District Court for the Eastern
2 District of New York (Wexler, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
4 AND DECREED that the judgment of the district court is AFFIRMED.
5 Defendant-appellant Carlos Arturo Patino Restrepo (“Patino”)1 appeals from his
6 conviction, after a jury trial, for conspiracy to: (1) distribute and possess with intent to
7 distribute cocaine in violation of 21 U.S.C. § 846, (2) import cocaine into the United
8 States in violation of 21 U.S.C. § 963, and (3) distribute and import cocaine
9 internationally in violation of 21 U.S.C. § 963, alleging multiple constitutional violations
10 constituting reversible error. We assume the parties’ familiarity with the underlying
11 facts, to which we refer only as necessary to explain our decision to affirm the
12 conviction.
13 1. Challenges to Jury Selection
14 Patino argues that he was denied his Sixth Amendment right to be tried by an
15 impartial jury because the magistrate judge informed potential jurors during jury
16 selection that all testimony, even that of accomplice witnesses, must be accorded the
17 same weight at trial. Patino claims that, as a result of this instruction, empaneled jurors
18 evaluated the testimony of accomplice witnesses by a lesser standard of scrutiny than
19 the law requires. Patino argues that the early instruction severely prejudiced him
20 because the government’s case-in-chief consisted almost exclusively of the testimony of
21 accomplice witnesses. We agree with Patino that the magistrate judge’s explanation of
22 the law was insufficient, but we hold that Patino did not suffer any prejudice as a result.
23 The parties agree that we must review the instructional statement for plain error
24 because Patino did not raise his objection at trial. Fed. R. Crim. P. 30(d), 52(b); United
1The defendant’s proper surname is “Patino,” and the parties refer to him as such in their
briefs. This summary order therefore refers to the defendant as “Patino.”
3
1 States v. Perez, 575 F.3d 164, 169 (2d Cir. 2009). Under a plain error standard of review, if
2 we find that the magistrate judge’s statements (1) constituted error, (2) that the error
3 was plain, and (3) that the error affected substantial rights, then we (4) have discretion
4 to correct the error if it seriously affects the fairness, integrity, or public reputation of
5 judicial proceedings. United States v. Botti, 711 F.3d 299, 310 (2d Cir. 2013). An error is
6 considered “plain” if the mistake is apparent at the time of appellate review and “is so
7 egregious and obvious as to make the trial judge and prosecutor derelict in permitting
8 it, despite the defendant’s failure to object.” United States v. Brown, 352 F.3d 654, 664-65
9 (2d Cir. 2003) (internal quotation marks omitted). A plain error affects the defendant’s
10 substantial rights where the error is prejudicial. United States v. Marcus, 628 F.3d 36, 42
11 (2d Cir. 2010). In the ordinary case, an error is prejudicial where there is a reasonable
12 probability that the error affected the outcome of the trial. Id.
13 The correct standard for evaluating accomplice witness testimony is not, as the
14 magistrate judge in this case maintained, to “treat [all witnesses] the same and give
15 them the same weight and consideration.” Mar. 21, 2011 Tr. at 73:23-24, A-162. Instead,
16 the court must draw the jury’s attention to the possible motivations of accomplice
17 witnesses and instruct jurors to examine those motivations when determining the
18 witnesses’ credibility during deliberations. United States v. Vaughn, 430 F.3d 518, 523-24
19 (2d Cir. 2005). District courts provide a sufficient instruction by intelligibly identifying
20 an accomplice witness’s possible motivations for the jury’s consideration. Id.
21 Where the court employs an incorrect or insufficient standard of the law in a
22 preliminary instruction, however, a defendant is not necessarily prejudiced. Instead, we
23 must examine the magistrate judge’s misstatements within the context of the jury
24 charge as a whole and the arguments made at trial. See Vaughn, 430 F.3d at 523, 524; see
25 also Botti, 711 F.3d at 310-11. Viewing the record as a whole, the magistrate judge’s error
26 did not ultimately prejudice Patino. During jury selection proceedings, the magistrate
4
1 judge repeatedly paired the challenged instruction with the caveat that the trial judge
2 would inform the jurors of the proper standard before their deliberations, which the
3 trial judge ultimately did provide in the final jury charge. The jury selection also
4 occurred over two weeks before the jury began its deliberations. As the United States
5 Supreme Court has observed, “comments of the court and counsel during voir dire were
6 surely a distant and convoluted memory by the time the jurors began their
7 deliberations.” Penry v. Johnson, 532 U.S. 782, 802 (2001).
8 Defense counsel also repeatedly challenged the credibility of the accomplice
9 witnesses throughout trial. Where a judge gives an incomplete accomplice witness
10 instruction before jury deliberations, the mistake is not fatal if the rest of the trial record
11 demonstrates that the jury was aware of the need to carefully scrutinize the accomplice
12 witnesses’ testimony. See, e.g., Vaughn, 430 F.3d at 522-24 (holding that the district
13 court’s failure to specifically inform jurors that they must scrutinize the testimony of
14 cooperating witnesses with regard to how those witnesses could benefit by testifying
15 was not prejudicial in light of the defense attorney’s extensive attacks of the accomplice
16 witnesses’ credibility during opening, cross examination, and summation); United States
17 v. Velez, 652 F.2d 258, 261 n.5 (2d Cir. 1981) (holding that although the trial judge failed
18 to instruct the jury to scrutinize the cooperating witness’s testimony, the error was not
19 prejudicial because defense counsel argued forcefully in his summation that the
20 accomplice witness was not credible). Here, Patino’s lawyer attacked the credibility of
21 the accomplice witnesses from the opening of the trial, calling the government’s
22 witnesses “admitted criminals, admitted drug traffickers, admitted killers, admitted
23 liars, admitted corrupt police officers, every single one of them with much to gain.”
24 A.K. Marsh. 22, 2011 Tr. at 209:19-22, GA-112. The defense attorney emphasized during his
25 opening and closing statements that the jury was required to carefully scrutinize the
26 testimony of the accomplice witnesses because they had much to gain from their
5
1 testimony. Even the prosecution encouraged jurors to consider the accomplice
2 witnesses’ testimony carefully in light of their criminal backgrounds during his opening
3 statement.
4 Finally, the district judge provided thorough and correct instructions regarding
5 accomplice testimony in the jury charge. These instructions provided careful, detailed
6 explanations concerning how the jury should approach the testimony of accomplice
7 witnesses, cooperating witnesses, and witnesses promised favorable treatment or
8 immunity. The instructions identified why the jury should carefully scrutinize the
9 testimony of accomplice witnesses in light of how such witnesses stood to benefit from
10 their testimony as required by Vaughn. 430 F.3d at 523-24. Thus, the district court judge
11 ultimately properly instructed the jury concerning the appropriate weight to give
12 accomplice testimony during deliberations. Given the intervening events at trial and
13 before jury deliberations, the magistrate judge’s error during jury selection did not
14 ultimately prejudice Patino. We thus reject Patino’s argument that the magistrate
15 judge’s statements during jury selection constituted reversible error.
16 2. Ineffective Assistance of Counsel
17 Patino argues that his attorney’s failure to object to the magistrate judge’s
18 erroneous instruction during jury selection amounted to a denial of his Sixth
19 Amendment right to the effective assistance of counsel. We reject Patino’s contention
20 that his attorney’s failure to object constituted ineffective assistance of counsel because,
21 as we have already concluded, he suffered no prejudice as a result of the magistrate
22 judge’s erroneous statements.
23 When confronted with a claim of ineffective assistance of counsel on direct
24 appeal, we may: (1) decline to hear the claim, permitting the appellant to raise the issue
25 as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255;
26 (2) remand the claim to the district court for necessary factfinding; or (3) decide the
6
1 claim on the record before us. United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). The
2 United States Supreme Court has expressed a view that the trial court is typically the
3 best forum for these claims. United States v. Massaro, 538 U.S. 500, 504-05 (2003).
4 Accordingly, the Second Circuit has a “baseline aversion to resolving ineffectiveness
5 claims on direct review.” Morris, 350 F.3d at 39 (internal citation and quotation marks
6 omitted). Nonetheless, if resolution of the ineffective assistance claim is either beyond
7 doubt or in the interest of justice, then we may address the merits on direct appeal.
8 United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004).
9 To succeed on a claim of ineffective assistance of counsel, a defendant must
10 satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 690, 693
11 (1984). First, the defendant must identify the acts or omissions of counsel that could not
12 have been the result of reasonable professional judgment. Id. at 690. Second, the
13 defendant must satisfy the prejudice prong set forth in Strickland by showing that any
14 deficiencies in counsel’s performance actually prejudiced the defendant. Id. at 692-93.
15 Specifically, the defendant must demonstrate that there is a reasonable probability that,
16 but for the unprofessional errors, the proceeding would have led to a different result. Id.
17 at 694.
18 Patino argues that his trial counsel’s failure to object to the magistrate judge’s
19 incorrect statements during jury selection was outside of the range of reasonably
20 professional conduct and ultimately prejudiced Patino. We need not decide whether
21 counsel’s failure to object to the erroneous instruction was deficient within the meaning
22 of Strickland’s performance prong because there is no reasonable probability that, but
23 for the failure to object, the result of Patino’s trial would have been different. See United
24 States v. Chin, 224 F.3d 121, 125 (2d Cir. 2000) (holding that because the defendant
25 suffered no prejudice, it was unnecessary to decide whether his attorney’s performance
26 fell below an objective standard of reasonableness). The defense attorney’s attacks on
7
1 the accomplice witnesses’ credibility throughout trial and the proper jury instructions
2 provided before deliberations remedied the magistrate judge’s erroneous statement
3 during jury selection. Patino ultimately suffered no prejudice as a result of his counsel’s
4 failure to object during jury selection, and we thus reject the contention that he did not
5 have effective assistance of counsel on that basis.
6 3. Multiple Conspiracies Instruction
7 Patino asserts that the district court committed reversible error by not giving the
8 specific multiple conspiracies instruction that he requested before deliberations. We see
9 no error in the district court’s charge, which conveyed the essence of the requested
10 instruction.
11 A multiple conspiracies charge is required where several different conspiracies
12 could be inferred from the evidence offered at trial. United States v. Aracri, 968 F.2d 1512,
13 1520 (2d Cir. 1992); United States v. Maldonado-Rivera, 922 F.2d 934, 962-63 (2d Cir. 1990).
14 The charge is designed to assist the jury in determining whether a defendant’s conduct
15 was part of the single, comprehensive conspiracy charged by reminding jurors to
16 separately consider each charged conspiracy and each defendant’s conduct. See Aracri,
17 968 F.2d at 1520. The need for such an instruction stems from the potential “‘spill over
18 effect’ of permitting testimony regarding one conspiracy to prejudice the mind of the
19 jury against the defendant who is not part of that conspiracy but another.” United States
20 v. Harris, 8 F.3d 943, 947 (2d Cir. 1993).
21 A proper multiple conspiracies instruction must stress that in order to return a
22 conviction, jurors are required to find that the single conspiracy charged existed and
23 that the individual defendant knowingly participated in that conspiracy. See United
24 States v. Berger, 224 F.3d 107, 114 (2d Cir. 2000). Providing an abbreviated multiple
25 conspiracies instruction does not constitute reversible error if the charge emphasizes
26 that there must be a finding of the single specific conspiracy charged and knowing
8
1 participation in the identified scheme by each defendant. Aracri, 968 F.2d at 1520-21.
2 Where a multiple conspiracies instruction is required but is not administered or is
3 articulated in a deficient manner, the failure constitutes reversible error only if the
4 appellant can demonstrate that he suffered substantial prejudice. Maldonado-Rivera, 922
5 F.2d at 962-63. The possibility of prejudice is diminished where the defendant is tried
6 alone. See Harris, 8 F.3d at 947; United States v. Aguilar, 352 F. App’x 522, 525 (2d Cir.
7 2009) (summary order).
8 Patino, who was tried as the sole defendant, requested a lengthy instruction
9 which urged that if jurors found that Patino did not engage in the charged drug
10 trafficking conspiracy, then the jurors were required to acquit him. The district court
11 ultimately phrased the multiple conspiracies instruction as follows:
12
13 You must decide whether the conspiracy charged in the indictment
14 existed, and if it did, who were some of its members. If you find that the
15 conspiracy charged did not exist, then you must return a not guilty
16 verdict, even though you may find that some other conspiracy existed.
17 Similarly, if you find that the defendant was not a member of the
18 conspiracy charged, then you must find the defendant not guilty, even
19 though that defendant may have been a member of some other
20 conspiracy.
21 Apr. 4, 2011 Tr. at 1451-52, A-303.
22 Even assuming without deciding that a multiple conspiracies instruction was
23 required in this single-defendant case, see Aguilar, 352 F. App’x at 525 (“In any event, a
24 multiple conspiracies charge is not called for simply because a defendant, standing trial
25 alone, is charged with participating in more than one conspiracy”), the district court’s
26 charge was sufficient. The instruction adequately stressed that jurors must find that the
27 single conspiracy charged existed and that Patino knowingly participated in that
28 conspiracy, as required by Berger, 224 F.3d at 114. The instruction also informed the
29 jurors that they must acquit Patino if they found that the conspiracy charged did not
9
1 exist or that the defendant engaged in a separate conspiracy that was not charged. See
2 Aracri, 968 F.2d at 1520. Thus, the district court’s articulation of the proper standard
3 satisfied the requirements for a multiple conspiracies instruction. There is also no
4 indication that Patino faced any prejudice as a result of the abbreviated instruction.
5 Therefore, we reject Patino’s contentions that no multiple conspiracies charge was given
6 or that he was prejudiced by the abbreviated charge.
7 4. Prosecutorial Misconduct During Summation
8 Patino alleges that the Assistant United States Attorney made inappropriate
9 remarks to the jury during his summation concerning the cooperating witnesses,
10 including, “We searched for that coconspirator whose character was above reproach ….
11 But you know, ladies and gentlemen, we couldn’t find such a person, and I submit to
12 you no such person exists.” Apr. 4, 2011 Tr. at 1404, A-291. Applying the plain error
13 standard to this unpreserved objection, we hold that the prosecutor’s closing remarks
14 constituted neither improper vouching nor the type of flagrant abuse that affects an
15 appellant’s substantial rights and requires reversal of the conviction. See United States v.
16 Williams, 690 F.3d 70, 75 (2d Cir. 2012); United States v. Carr, 424 F.3d 213, 227 (2d Cir.
17 2005).
18 It is improper for prosecutors to vouch for the testimony of government
19 witnesses because it could cause jurors to trust the government’s assessment of the
20 evidence rather than their own. See Williams, 690 F.3d at 76 (quoting United States v.
21 Newton, 369 F.3d 659, 681 (2d Cir. 2004)). A prosecutor is also specifically prohibited
22 from expressing his or her personal beliefs about the truth or falsity of any testimony or
23 evidence. Carr, 424 F.3d at 227. The prosecution is permitted, however, to respond to
24 defense arguments that “impugn[] its integrity or the integrity of its case, and when the
25 defense counsel have attacked the prosecutor’s credibility or the credibility of the
10
1 government agents, the prosecutor is entitled to reply with rebutting language suitable
2 to the occasion.” Id. (quoting United States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994)).
3 An improper remark by a prosecutor will justify a reversal by this Court “only if
4 it causes the defendant substantial prejudice by so infecting the trial with unfairness as
5 to make the resulting conviction a denial of due process.” Id. (internal quotation marks
6 omitted). In satisfying the plain error standard on appeal, a defendant-appellant must
7 demonstrate not only that the error was clear and obvious but also that the remark
8 constitutes “flagrant abuse” that “affected the appellant’s substantial rights, which in
9 the ordinary case means it affected the outcome of the district court proceedings, and
10 the error seriously affects the fairness, integrity or public reputation of judicial
11 proceedings.” Williams, 690 F.3d at 77 (internal citation, alterations, and quotation
12 marks omitted). The United States Supreme Court has specifically warned that “a
13 criminal conviction is not to be lightly overturned on the basis of a prosecutor’s
14 comments standing alone.” United States v. Young, 470 U.S. 1, 11 (1985); see also United
15 States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (“It is a ‘rare case’ in which improper
16 comments in a prosecutor’s summation are so prejudicial that a new trial is required.”)
17 (quoting Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir. 1990)).
18 The Assistant United States Attorney’s comments during summation did not
19 constitute improper vouching. The remarks do not suggest that jurors should trust the
20 government’s assessment of the witnesses’ credibility rather than their own or that the
21 prosecutors have information that was not presented to the jury. Instead, the prosecutor
22 attempted to respond to the defense counsel’s repeated attacks on the credibility of
23 accomplice witnesses as sanctioned by United States v. Thai and United States v. Carr.
24 Carr, 424 F.3d at 227 (quoting Thai, 29 F.3d at 807). Rather than vouching for the
25 credibility of these witnesses, these remarks acknowledged the witnesses’ potential
11
1 credibility problems. The arguments also did not mischaracterize the evidence as to
2 Patino’s role in the conspiracy.
3 The prosecutor’s remarks are questionable, however, for a different reason. In
4 stating that the government searched for a particular type of witness, but was unable to
5 find one, the prosecutor could be taken literally as providing the jury with unsworn
6 testimony, for which there was no foundation in the evidence, about the actual conduct
7 of the government’s investigation. But such a literal reading would be unrealistic. The
8 argument was presumably intended, and was likely understood, as a mere rhetorical
9 flourish on the common prosecutorial theme that “it would be preferable to have
10 unimpeachable witnesses, but criminals only share their secrets with other criminals.”
11 We have repeatedly warned prosecutors to avoid such first-person formulations, see
12 United States v. Nersesian, 824 F.2d 1294, 1328 (2d Cir. 1987) (warning that use of
13 personal pronoun “I” in summation is “poor practice”), and prosecutors would be well-
14 advised to avoid the formulation used here. But there is no likelihood that the jury was
15 misled about the argument the prosecutor was making. We therefore conclude that
16 these statements did not constitute the type of flagrant abuse that affects an appellant’s
17 substantial rights and requires reversal of the conviction. See Williams, 690 F.3d at 77;
18 Carr, 424 F.3d at 227. Thus, we reject Patino’s contention that the Assistant United States
19 Attorney’s comments during summation require the reversal of his conviction.
20 5. Alleged Brady Violations
21 Patino argues that his conviction should be vacated because the government
22 failed to produce the statements of four individuals, Jose Luis Vallejo Tangarife, Nelson
23 Cruz, Orlando Sabogal Zulaga, and Ivan Gonzalez-Bejarano, whom he alleges
24 possessed exculpatory or impeaching information tending to disprove that Patino
25 trafficked drugs with the Norte Valle Cartel in violation of Brady v. Maryland, 373 U.S.
26 83, 87-88 (1963). To establish a Brady violation, a petitioner must show that: (1) the
12
1 undisclosed evidence was favorable to him; (2) the evidence was in the state’s
2 possession and was suppressed, even if inadvertently; and (3) the defendant was
3 prejudiced as a result of the prosecution’s failure to disclose the evidence. Leka v.
4 Portuondo, 257 F.3d 89, 98 (2d Cir. 2001) (citing Strickler v. Greene, 527 U.S. 263, 281-82
5 (1999)). Evidence is not “suppressed” for Brady purposes if the defendant “either knew,
6 or should have known, of the essential facts permitting him to take advantage of any
7 exculpatory evidence.” DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006) (internal
8 citation and quotation marks omitted); see also United States v. LeRoy, 687 F.2d 610, 619
9 (2d Cir. 1982) (“Here [the defendant] clearly was on notice of the facts necessary for him
10 to take advantage of such exculpatory testimony as [the identified witnesses] might
11 conceivably furnish …. Accordingly, we conclude that the Government was under no
12 duty to advise [the defendant] of the allegedly exculpatory grand jury testimony.”).
13 After a careful review, we reject Patino’s allegations that the prosecutors
14 suppressed evidence in violation of Brady. Patino has not demonstrated that Jose Luis
15 Vallejo Tangarife possessed exculpatory or impeaching information that could serve as
16 the basis of a Brady violation. There is also no evidence that Patino’s attorney was
17 unaware of the potential testimony of the other three identified individuals, Nelson
18 Cruz, Orlando Sabogal Zulaga, and Ivan Gonzalez-Bejarano, prior to the trial, or that
19 the prosecutors attempted to conceal the existence of these witnesses or any statements
20 allegedly made by them. To the contrary, Patino’s attorney filed motions which
21 demonstrated that he was in possession of sufficient facts to know the identities of
22 witnesses who had provided potentially impeaching statements and the substance of
23 their communications with the government, specifically Nelson Cruz and Orlando
24 Sabogal Zulaga. Patino’s defense counsel also did not clearly indicate that he would
25 have called these witnesses at trial in light of his trial strategy. The record also
26 demonstrates that Patino’s defense attorney spoke with Ivan Gonzalez-Bejarano twice
13
1 and had him brought to the Eastern District of New York but chose not to call him at
2 the re-trial. Finally, Patino has failed to demonstrate that, even if the witnesses’
3 statements were introduced at trial or the witnesses themselves testified to the vaguely
4 exculpatory or impeaching information Patino alleges they possess, that there was a
5 reasonable probability that this would have led to a different result. See Strickler, 527
6 U.S. at 280 (defining evidence as “material” for Brady purposes where “there is a
7 reasonable probability that, had the evidence been disclosed to the defense, the result of
8 the proceeding would have been different”) (internal quotation marks omitted). Thus,
9 we reject Patino’s argument that his conviction should be reversed due to Brady
10 violations.
11 6. Prosecutorial Misconduct Before the Grand Jury
12 Patino alleges that the Assistant United States Attorneys engaged in misconduct
13 before the grand jury concerning the use of hearsay testimony. After a review of the
14 grand jury minutes, we conclude that the Assistant United States Attorney who
15 presented to the grand jury provided a proper instruction regarding the hearsay used
16 before the grand jury and thus did not engage in any misconduct. We therefore reject
17 Patino’s allegations of prosecutorial misconduct as grounds for overturning his
18 conviction.
19 First, we reject the government’s contention that because Patino failed to
20 challenge the superseding indictment prior to re-trial he waived his prosecutorial
21 misconduct objection on appeal. See, e.g., United States v. Ruggiero, 934 F.2d 440, 444, 446-
22 48 (2d Cir. 1991) (permitting, without comment, an appeal from a final conviction
23 premised on the claim, among others, that the prosecutor engaged in prosecutorial
24 misconduct before the grand jury while obtaining an indictment); United States v.
25 Lombardozzi, 491 F.3d 61, 66, 79-80 (2d Cir. 2007) (same).
14
1 However, dismissal of an indictment following conviction is an extraordinary
2 remedy. This Court has stated that “[d]espite the high place the grand jury holds as an
3 instrument of justice, the social costs of dismissing an indictment because of an
4 imperfect grand jury proceeding are simply too high to accept when the defendant has
5 been convicted after a full and fair trial and no harm has been done.” United States v.
6 Brito, 907 F.2d 392, 394 (2d Cir. 1990) (internal citation, alterations, and quotation marks
7 omitted); see also Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56 (1988)
8 (expressing the same view); United States v. Mechanik, 475 U.S. 66, 70-71 (1986) (same).
9 In order for prosecutorial misconduct to require a dismissal of the indictment, the
10 prosecutor’s conduct must amount to “a knowing or reckless misleading of the grand
11 jury as to an essential fact,” Lombardozzi, 491 F.3d at 79 (internal citation and quotation
12 marks omitted), or “systematic and pervasive prosecutorial misconduct as would
13 undermine fundamental fairness.” Brito, 907 F.2d at 395 (internal quotation marks
14 omitted).
15 The government is permitted to use hearsay evidence during its presentation to
16 the grand jury; such use does not constitute prosecutorial misconduct where the jury is
17 properly informed regarding the nature of the testimony. Costello v. United States, 350
18 U.S. 359, 360-63 (1956). Relying solely on hearsay evidence may cause an indictment to
19 be invalid if “(1) the government misleads the grand jury into thinking it is receiving
20 firsthand testimony when it is in fact receiving hearsay or (2) if there is a high
21 probability that the defendant would not have been indicted had only nonhearsay
22 evidence been used.” Ruggiero, 934 F.2d at 447.
23 If the prosecutor provides an adequate instruction regarding the hearsay
24 testimony, jurors should not be misled about the quality of the evidence they are
25 receiving. In United States v. Ruggiero, we held that where the government fully
26 informed grand jurors about the hearsay nature of the evidence they were considering,
15
1 their opportunity to see the original evidence, and their proper independent function in
2 determining whether to return the indictment, grand jurors were not misled and the
3 indictment was valid. 934 F.2d at 447, 448; see also Brito, 907 F.2d at 396 (observing that
4 because “the prosecutor did warn the grand jurors, however clumsily, about the
5 hearsay nature of the agent’s testimony; and most importantly, the agent’s testimony to
6 the grand jury was concededly accurate[,]” the indictment was proper); but see United
7 States v. Hogan, 712 F.2d 757, 761-62 (2d Cir. 1983) (dismissing an indictment where the
8 prosecutor called the defendant a “real hoodlum” who should be “indicted as a ‘matter
9 of equity,’” and presented hearsay, double hearsay, speculation, and false evidence
10 resulting in the jury being misled by the presentation); United States v. Estepa, 471 F.2d
11 1132, 1135-36 (2d Cir. 1972) (dismissing an indictment where the agent who testified
12 had limited knowledge of the transaction at issue but likely misled grand jurors into
13 thinking he was providing eyewitness testimony).
14 Here, the Assistant United States Attorney making the presentation to the grand
15 jury provided a detailed introductory statement explaining that the testifying witness
16 would be presenting the condensed testimony of other witnesses who had already
17 testified. He explained that the witness would be relaying hearsay evidence and
18 testifying to events and transactions that he did not personally witness. The Assistant
19 United States Attorney also informed the grand jurors that they had a right to
20 supplement the hearsay evidence by requesting that witnesses with firsthand
21 knowledge testify before them. The complete transcripts of each witness’s testimony
22 were also made available for the grand jury’s review, and the Assistant United States
23 Attorney reminded the grand jurors of the transcripts’ accessibility. It was also clear
24 throughout the witness’s testimony that he was not testifying based on firsthand
25 knowledge but was rather reporting or summarizing the testimony of others. Therefore,
26 the grand jurors were fully informed about the nature of the testimony, and the
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1 Assistant United States Attorney did not mislead the jury. It was also likely, under
2 Ruggiero, that Patino would have been indicted if solely nonhearsay evidence had been
3 used; in fact, the trial jury convicted him based upon the testimony of witnesses who
4 likely would have been called to testify before the grand jury had grand jurors
5 requested firsthand evidence. Ruggiero, 934 F.2d at 447. Patino’s other claims of abuse of
6 the grand jury process are also rejected. We thus reject Patino’s argument that we must
7 reverse his conviction on the basis of prosecutorial misconduct relating to the grand
8 jury presentation.
9 7. Violation of the Rule of Specialty
10 Finally, Patino challenges his conviction on the ground that the jury’s
11 consideration of pre-1997 evidence contravenes the Diplomatic Note by which he was
12 extradited from Colombia and thus violates the rule of specialty. We hold that there
13 was no violation of the rule of specialty in this case because the jury expressly convicted
14 Patino based only on conduct that occurred after December 17, 1997.
15 The rule of specialty is a principle of international law that prohibits extraditing
16 countries from prosecuting a defendant on charges other than those for which he was
17 specifically extradited. United States v. Levy, 25 F.3d 146, 159 (2d Cir. 1994). This doctrine
18 also requires an extraditing country to adhere to express limitations placed on
19 prosecution by the surrendering country. United States v. Cuevas, 496 F.3d 256, 262 (2d
20 Cir. 2007). Defendants who contest alleged violations of this rule pursuant to a treaty
21 between the United States and the surrendering country generally have standing to
22 contest perceived violations of the treaty. Id. Defendants from Colombia, however, are
23 extradited pursuant to Resolutions by the Foreign Ministry called Diplomatic Notes. We
24 have not yet decided whether a defendant has standing to allege violations of a
25 Diplomatic Note. See Cuevas, 496 F.3d at 262; see also United States v. Frankel, 443 F.
26 App’x 603, 606 (2d Cir. 2011) (summary order) (“We do not decide whether Frankel has
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1 standing to assert the rule of specialty as a basis to challenge his sentence because his
2 argument fails on the merits.”); United States v. Lopez-Imitalo, 305 F. App’x 818, 819 (2d
3 Cir. 2009) (summary order) (“We do not decide whether Lopez-Imitalo has standing to
4 assert the rule of specialty as a basis to challenge his sentence because his argument fails
5 on the merits.”).
6 The Colombian Diplomatic Note permitting the United States to extradite Patino
7 states that Patino must not be “judged or condemned” for pre-December 17, 1997
8 conduct. Therefore, under the rule of specialty, Patino could be tried only for crimes
9 committed after December 17, 1997. Patino argues that submission of pre-December 17,
10 1997 evidence to the jury for consideration led to the jury “judging” him on the basis of
11 pre-December 17, 1997 evidence in reaching their ultimate guilty verdict.
12 We decline to address the question of whether Patino has standing to challenge
13 alleged violations of the Diplomatic Note because his argument fails on the merits. The
14 district court in this case provided the jury with special interrogatories which
15 specifically asked whether the jury found that the government proved the charges
16 beyond a reasonable doubt with evidence of Patino’s conduct after December 17, 1997.
17 The jury answered yes. The jury therefore did not “judge or condemn” Patino for
18 conduct prior to December 17, 1997. We reject Patino’s contentions otherwise.
19 We have considered all of Patino’s remaining arguments and find them to be
20 without merit. For the foregoing reasons, the judgment of the District Court is
21 AFFIRMED.
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk of Court
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