United States v. Rijo , 502 F. App'x 103 ( 2012 )

10-3515-cr(L)
United States v. Rijo
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 14th day of November, two thousand twelve.
PRESENT: BARRINGTON D. PARKER,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 10-3515-cr(L)
No. 11-2886-cr
GUILLERMO RIJO, DONALD PARKER, a.k.a. Muff, No. 11-4139-cr
a.k.a. Muffin, MARTIN McKREITH, a.k.a. Unc,
Defendants-Appellants,
PETER MAYLOR, a.k.a. Pete, GLENN SMITH, a.k.a.
Tommy, LUIS MONTAS, ALECK GLADNEY, EUGENE
ARGRAVES, a.k.a. Gene, ALFRED BELL, a.k.a. Boo Boo,
CORRIE BETTS, TERRANCE BROWN, a.k.a. C/O Tyson,
ROBERT CROWE, a.k.a. B.O., a.k.a. B.O.B., JACHIN
FELTON, SAMUEL GONZALEZ, JACQUELINE
GRAVES, a.k.a. Fat Jack, CRAIG HAWKINS, a.k.a. G,
a.k.a. Craig G, AMYIE HOPE-WRIGHT, WILLIE
HUNTER, a.k.a. Chill Will, a.k.a. Chill, LENARD IRVING,
a.k.a. Andre Irving, a.k.a. Little Dre, WILLIAM JUSINO,
STEVEN KEATON, a.k.a. Percy, a.k.a. Perc, ALVIN
MANN, MANUEL MANSON, a.k.a. Big Dre, COREY
PACE, CARL PATTERSON, a.k.a. Coolman, KELVIN
POWELL, MATTHEW RAY, a.k.a. Jerome James,
WILFRED SHIRLEY, MELVIN SPEIGHT, THOMAS
TURNER, a.k.a. Poker, ERIC VINSON, EDWARD
WILSON, a.k.a. Ed, JOHN MINTER, a.k.a. Joker,
Defendants.*
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APPEARING FOR APPELLANT ROBERT J. BOYLE, ESQ., New York, New
PARKER: York.
FOR APPELLANT RIJO: John A. Cirando, Esq., Syracuse, New York.
FOR APPELLANT McKREITH: Michael Raymond Hasse, Esq., New London,
Connecticut.
APPEARING FOR APPELLEE: S. DAVE VATTI (Robert M. Spector, on the
brief), Assistant United States Attorneys, for
David B. Fein, United States Attorney for the
District of Connecticut.
Appeal from judgments of the United States District Court for the District of
Connecticut (Mark R. Kravitz, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is dismissed in part as to Guillermo Rijo and the judgments of
conviction entered on August 18, 2010, as to Rijo; on July 15, 2011, as to Donald Parker; and
on October 7, 2011, as to Martin McKreith, are AFFIRMED.
*
1 The Clerk of Court is directed to amend the official caption as shown above.
2
1. Donald Parker
Donald Parker challenges his conviction after trial on one count of conspiracy to
possess with intent to distribute 500 grams or more of cocaine and one count of possession
with intent to distribute cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B)-(C), and 846. Parker
argues that the district court erred in (a) failing to suppress evidence seized from his
apartment, (b) admitting certain hearsay testimony and unauthenticated physical evidence,
and (c) permitting him to represent himself at sentencing. We assume the parties’ familiarity
with the facts and record of prior proceedings, which we reference only as necessary to
explain our decision to affirm.
a. Suppression of Evidence
Parker argues that the evidence seized from his residence should have been suppressed
because the search warrant lacked probable cause. Because Parker’s pre-trial suppression
motion was not based on any deficiencies in the warrant, but on the entry into his residence
before the warrant was secured, we review the probable cause argument only for plain error,
see United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008), which is not present
here. Insofar as the warrant affidavit referenced evidence obtained during the Terry stop
leading to Parker’s arrest, Parker waived any challenge to the lawful procurement of that
evidence when he acquiesced in the district court to the denial of his motion to suppress that
evidence.
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As for Parker’s challenge to the veracity of the officers’ accounts of the Terry stop,
this point warrants little discussion because the district court reasonably determined that
detailed information from a confidential informant, who had proved reliable in the past,
which information was corroborated in part by surveillance observations, was sufficient to
establish probable cause to believe that evidence of criminal conduct would be found in
Parker’s residence. See Illinois v. Gates, 462 U.S. 231, 230, 241 (1983); United States v.
Canfield, 212 F.3d 713, 719–20 (2d Cir. 2000). We accord this finding “great deference.”
Illinois v. Gates, 462 U.S. at 236; United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998).
Further, even if probable cause were lacking—which it was not—no suppression of evidence
was required as long as executing officers relied upon the warrant in “objective good faith.”
See United States v. Leon, 468 U.S. 897, 920 (1984); United States v. Clark, 638 F.3d 89,
104–05 (2d Cir. 2011) (holding that Leon good-faith exception applied where warrant
affidavit contained “entirely conclusory” allegations). Because Parker cannot show either
Gates or Leon error, let alone plain error, his suppression challenge fails on the merits.
b. Evidentiary Challenges
(1). Hearsay
Parker argues that his Confrontation Clause right was violated when the district court
permitted Officer Bellizzi to testify at trial to out-of-court statements by defendant’s
girlfriend Donna Hurst and a confidential informant. Parker concedes that he failed to object
at trial; accordingly, we review only for plain error. See Fed. R. Crim. P. 52(b). The
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Confrontation Clause bars the admission of out-of-court statements that are “testimonial,”
including statements elicited during police interrogations. Crawford v. Washington, 541 U.S.
36, 51–53 (2004); accord United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (holding
that statements that a declarant reasonably expects might be used in future judicial
proceedings are testimonial). This constitutional bar does not apply, however, where
testimonial statements are used “for purposes other than establishing the truth of the matter
asserted.” Crawford v. Washington, 541 U.S. at 59 n.9. The government argues that the
challenged hearsay statements fall within this exception. We need not decide the question
here because even if we were to resolve it in Parker’s favor, he would not be entitled to any
relief. Any error was plainly harmless in light of the other overwhelming evidence of guilt,
including possession of narcotics, drug packaging material, a weapon, and ammunition. See
United States v. McClain, 377 F.3d 219, 222–23 (2d Cir. 2004) (rejecting Crawford error as
harmless). See also United States v. Lombardozzi, 491 F.3d 61, 75 (2d. Cir. 2007)
(defendant not prejudiced where Crawford error was harmless).
(2). Authentication
Parker waived any authentication challenge in the district court when, after testimony
was elicited—often by his own counsel—indicating that Officer Bellizzi had not seized
evidence that the government sought to introduce through him, defense counsel plainly stated
that he had no objection to admission of the proffered evidence. Such a strategic decision
constitutes true waiver barring review on appeal. See United States v. Quinones, 511 F.3d
289, 321 (2d Cir. 2007).
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c. Right to Counsel at Sentencing
After trial and before sentencing, the district court granted Parker’s motion to waive
counsel and proceed pro se. Parker now argues that the decision violated his Sixth
Amendment right to counsel because the district court failed to determine that his waiver of
counsel was knowing and voluntary under Faretta v. California, 422 U.S. 806, 835 (1975).
Such a determination is best made by engaging the defendant in an “on-the-record
discussion” to ensure his understanding of the ramifications of his decision. Torres v. United
States, 140 F.3d 392, 401 (2d Cir. 1998). We have expressly declined, however, to require
such a discussion to follow any formula or specified procedure. See United States v. Fore,
169 F.3d 104, 107 (2d Cir. 1999). Rather, identification of a knowing and voluntary waiver
depends on the totality of the circumstances. See id. at 108. Having reviewed the record,
particularly the district court’s discussions with Parker on August 9, 2010; January 25, 2011;
and March 30, 2011, we conclude that it correctly determined that Parker knowingly and
voluntarily waived his right to counsel and invoked his right to represent himself at
sentencing.
We have considered Parker’s remaining arguments on appeal and conclude that they
are without merit. Accordingly, the judgment of conviction is affirmed.
2. Guillermo Rijo
Insofar as Guillermo Rijo seeks review of his conviction, his counsel, John Cirando,
moves for permission to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
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The Government cross-moves to dismiss Rijo’s appeal as barred by an appeal waiver
contained in his plea agreement.
Upon due consideration, Cirando’s Anders motion is granted. The Government’s
motion to dismiss is also granted as to Rijo’s appeal of his conviction and term of
imprisonment, as he has not demonstrated that the waiver of his appellate rights is
unenforceable under United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000). With
respect to Rijo’s appeal of his term of supervised release and $100 special assessment, we
construe the Government’s motion to dismiss as a motion for summary affirmance and grant
affirmance.
3. Martin McKreith
Insofar as Martin McKreith appeals his conviction, his counsel, Michael Hasse, moves
for permission to withdraw pursuant to Anders v. California, 386 U.S. 738, and the
Government cross-moves for summary affirmance.
Upon due consideration, both motions are granted.
4. Conclusion
The appeal of defendant Guillermo Rijo is dismissed in part and his judgment of
conviction, as well as the judgments of conviction of Parker and McKreith, are hereby
affirmed.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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