United States v. Burgos , 509 F. App'x 40 ( 2013 )

11-3956-cr
United States v. Burgos
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of January, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 ROBERT D. SACK,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 11-3956-cr
17
18 Cesar Garcia, AKA Panda, Luis Robles-Roman,
19 AKA Roman, Nathanael R. Ortiz, AKA Bebe,
20 Demetrio Hernandez, AKA Chello, Cesar Garcia,
21 AKA Asabache, Victor Tavares, AKA Daddy
22 Yankee, Alberto Henriquez, AKA Pena, Jose
23 Henriquez, AKA Jelpy,
24 Defendants,
25
26 MIGUEL BURGOS,
27 Defendant-Appellant.
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1
1
2 FOR APPELLANT: JAMES A. COHEN (Ian S. Weinstein and
3 Michael W. Martin, on the brief;
4 Melanie Burke and Manuel F. Gomez,
5 law students, arguing and on the
6 brief; Zachary Groendyk and Yan Qin,
7 law students, on the brief), Lincoln
8 Square Legal Services, Inc., Fordham
9 University School of Law, New York,
10 New York.
11
12 FOR APPELLEE: JESSICA ORTIZ (Todd Blanche and
13 Justin S. Weddle, on the brief),
14 Assistant United States Attorneys,
15 for Preet Bharara, United States
16 Attorney for the Southern District
17 of New York, New York, New York.
18
19 Appeal from a judgment of the United States District
20 Court for the Southern District of New York (Stein, J.).
21
22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23 AND DECREED that the judgment of the district court be
24 AFFIRMED.
25
26 Miguel Burgos appeals from the judgment of the United
27 States District Court for the Southern District of New York
28 (Stein, J.), convicting him after a jury trial of conspiracy
29 to commit Hobbs Act robbery, in violation of 18 U.S.C. §
30 1951. We assume the parties’ familiarity with the
31 underlying facts, the procedural history, and the issues
32 presented for review.
33
34 1. Burgos challenges the adequacy of evidence to support
35 the conscious avoidance instruction. We review a claim of
36 error in jury instructions de novo, reversing only where
37 there was prejudicial error in the charge as a whole.
38 United States v. Ebbers, 458 F.3d 110, 124 (2d Cir. 2006).
39 We are to “examin[e] ‘the entire charge to see if the
40 instructions as a whole correctly comported with the law.’”
41 United States v. Ferguson, 676 F.3d 260, 275 (2d Cir. 2011)
42 (quoting United States v. Jones, 30 F.3d 276, 283 (2d Cir.
43 1994)). When a defendant challenges the factual predicate
44 for a conscious avoidance instruction, we may consider it a
45 challenge to the sufficiency of the evidence, where the
46 defendant bears a heavy burden and we view the evidence in
2
1 the light most favorable to the government. United States
2 v. Aina-Marshall, 336 F.3d 167, 171 (2d Cir. 2003).
3
4 A conscious avoidance instruction may be given only:
5
6 (i) when a defendant asserts the lack of some specific
7 aspect of knowledge required for conviction, and (ii)
8 the appropriate factual predicate for the charge
9 exists, i.e., the evidence is such that a rational
10 juror may reach the conclusion beyond a reasonable
11 doubt that the defendant was aware of a high
12 probability of the fact in dispute and consciously
13 avoided confirming that fact.
14
15 Ferguson, 676 F.3d at 278 (internal quotation marks
16 omitted). Burgos asserts that he did not know the unlawful
17 objectives of the conspiracy. The only question, therefore,
18 is whether a rational juror could conclude beyond a
19 reasonable doubt that Burgos was aware of a high probability
20 of the unlawful objectives and consciously avoided
21 confirming the fact.
22
23 Under Ferguson, “[r]ed flags about the legitimacy of a
24 transaction can be used to show both actual knowledge and
25 conscious avoidance.” Id. We will uphold “a conscious
26 avoidance instruction [if] the prior dealings between the
27 parties . . . and the statements about the
28 transactions . . . provided the factual predicate for the
29 charge.” Id. (emphases added). In addition, a defendant
30 need only be aware of a high probability of some of the
31 conspiracy’s unlawful aims. United States v. Lanza, 790
32 F.2d 1015, 1022-23 (2d Cir. 1986). A conscious avoidance
33 charge is appropriate where a defendant “assert[s] what
34 amounts to ignorance of the specific objectives alleged in
35 the indictment.” Id. at 1023.
36
37 Here, many red flags made Burgos aware of a high
38 probability that the hydraulic pump that he purchased for
39 his childhood friend would be used to commit robberies,
40 including that the pump was advertised for “forcible entry”
41 use and testimony that co-conspirators had discussed some of
42 their robbery plans in front of Burgos, even asking him to
43 join. A rational jury could conclude that Burgos was aware
44 of such a probability and consciously avoided confirming
45 that fact. Contrary to Burgos’s assertion at oral argument
46 and in supplemental briefing, it was not necessary for the
47 government to show that Burgos was aware of a high
3
1 probability that the pump would be used for robberies of
2 drug dealers (as charged in the indictment), only that he
3 was aware of a high probability that the pump would be used
4 for some of the conspiracy’s unlawful aims, such as
5 robberies generally. See Lanza, 790 F.2d at 1022-23
6 (holding that “the government must demonstrate that the
7 accused had some knowledge of [the conspiracy’s] unlawful
8 aims” (emphasis in original)).
9
10 In any event, the charge as a whole made clear that,
11 despite the conscious avoidance instruction, Burgos should
12 not be convicted based on negligence or recklessness.
13 Accordingly, we reject Burgos’s challenge to the conscious
14 avoidance instructions.
15
16 2. Burgos argues that the district court erred by refusing
17 to instruct the jury that it was necessary for Burgos to
18 have a financial stake in the venture in order to convict
19 him of conspiracy. But “[i]t is not necessary to charge the
20 jury that each conspirator must be found to have a ‘stake in
21 the success’ of the conspiracy for the use of such an
22 expression would be misleading as it might infer that there
23 must be a showing of some personal financial interest in the
24 outcome of the conspiracy.” United States v. Torres, 901
25 F.2d 205, 245 (2d Cir. 1990) (citing United States v.
26 Tramaglino, 197 F.2d 928, 931 (2d Cir. 1952)). Burgos’s
27 requested “stake in the venture” charge is inconsistent with
28 the law, and thus, the district court did not err in
29 refusing to give it.
30
31 3. Burgos claims that the government suppressed evidence,
32 in violation of Brady v. Maryland, 373 U.S. 83 (1963), by
33 failing to ask one of the cooperating witnesses a specific
34 question during the proffer sessions that led to Burgos’s
35 indictment. Under Brady, “the Government has a
36 constitutional duty to disclose favorable evidence to the
37 accused where such evidence is ‘material’ either to guilt or
38 to punishment.” United States v. Coppa, 267 F.3d 132, 139
39 (2d Cir. 2001) (citing Brady, 373 U.S. at 87). “[A] Brady
40 violation occurs only where the government suppresses
41 evidence that ‘could reasonably [have been] taken to put the
42 whole case in such a different light as to undermine
43 confidence in the verdict.’” Id. (quoting Kyles v. Whitley,
44 514 U.S. 419, 435 (1995)).
45
46 The Brady rule requires prosecutors to learn of any
47 favorable evidence known to other members of the prosecution
4
1 team, including police. See Strickler v. Greene, 527 U.S.
2 263, 280-81 (1999); United States v. Locascio, 6 F.3d 924,
3 949 (2d Cir. 1993). But this duty is not limitless, and
4 this Court has never held that the “prosecution team”
5 includes cooperating witnesses. Moreover, “[e]vidence is
6 not ‘suppressed’ if the defendant either knew, or should
7 have known, of the essential facts permitting him to take
8 advantage of any exculpatory evidence.” United States v.
9 LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) (internal citations
10 omitted). In this case, therefore, the government did not
11 “suppress” any evidence by failing to ask one of the
12 cooperating witnesses a specific question, especially
13 considering that Burgos knew all of the essential facts that
14 would have allowed him to ask that witness the same
15 question.
16
17 For the foregoing reasons, and finding no merit in
18 Burgos’s other arguments, we hereby AFFIRM the judgment of
19 the district court.
20
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, CLERK
23
5