United States v. Sealed Vehicle 1 , 440 F. App'x 22 ( 2011 )

10-190-cr(L)
United States v. Camilo et al.
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11th day of October, two thousand eleven.
5
6 PRESENT: GUIDO CALABRESI,
7 RICHARD C. WESLEY,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee-Cross-Appellant,
16
17 -v.- 10-190-cr(L), 10-268(CON),
18 10-418-xr(XAP)
19
20 SEALED VEHICLE #1, SEALED VEHICLE #2, FAUSTO HINOJSA,
21
22 Defendants,
23
24 RAMON CAMILO,
25
26 Defendant-Appellant,
27
28 EMILIA RODRIGUEZ,
29
30 Defendant-Appellant-Cross-Appellee.
31
32
33
1 FOR APPELLANT: PAUL EVANGELISTA, Assistant Federal
2 Public Defender, Northern District of New
3 York, Albany NY.
4
5 FOR APPELLANT-
6 CROSS-APPELLEE: GASPAR M. CASTILLO, JR., Parker &
7 Castillo, Albany, NY.
8
9 FOR APPELLEE-
10 CROSS-APPELLANT: PAUL D. SILVER, Assistant United States
11 Attorney (Terrence M. Kelly, Assistant
12 United States Attorney, on the brief),
13 for Richard S. Hartunian, United States
14 Attorney for the Northern District of New
15 York, Albany, NY.
16
17 Appeal from the United States District Court for the
18 Northern District of New York (Hurd, J.).
19
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the judgment of the district court be
22 AFFIRMED in part and VACATED and REMANDED in part.
23 Ramon Camilo and Emilia Rodriguez appeal from January
24 15, 2010 judgments of the United States District Court for
25 the Northern District of New York (Hurd, J.). With regard
26 to Rodriguez, the government cross-appeals the district
27 court’s determination that granted her motion to set aside
28 the jury determination that found that she was accountable
29 for more than 100 grams of heroin. We review each in turn.
30 We assume the parties’ familiarity with the underlying
31 facts, the procedural history, and the issues presented for
32 review.
2
1 Camilo pled guilty to conspiring to distribute and
2 possess with intent to distribute heroin, in violation of 21
3 U.S.C. §§ 846, 841(a)(1). He contends that the district
4 court erred in calculating his Sentencing Guidelines range
5 by applying a two-level enhancement for his role as an
6 “organizer, leader, manager, or supervisor” in connection
7 with the drug conspiracy. See U.S.S.G. § 3B1.1(c). “[W]e
8 review a district court’s determination that a defendant
9 deserves a leadership enhancement under § 3B1.1 de novo, but
10 we review the court’s findings of fact supporting its
11 conclusion only for clear error.” United States v.
12 Hertular, 562 F.3d 433, 449 (2d Cir. 2009).
13 The trial evidence establishes that Camilo exercised
14 some degree of control over Rodriguez in the functioning of
15 the conspiracy by having her sell heroin to his customers
16 when he was unavailable and that he directed Rodriguez to
17 perform other duties that aided the conspiracy. See United
18 States v. Garcia, 413 F.3d 201, 223 (2d Cir. 2005). Thus,
19 the district court did not err by applying the two-level
20 role enhancement.
21 Rodriguez was convicted of conspiring to distribute and
22 possess with intent to distribute heroin following a jury
3
1 trial. The district court granted her motion to set aside
2 the jury determination that she was accountable for more
3 than 100 grams of heroin and sentenced Rodriguez to
4 twenty-one months imprisonment and four years supervised
5 release. The government cross-appeals from the district
6 court’s grant of that motion.
7 Rodriguez first contends that her conviction is not
8 supported by sufficient evidence. We review sufficiency
9 challenges de novo. United States v. Andino, 627 F.3d 41,
10 49 (2d Cir. 2010). “It is well-established that a defendant
11 challenging the sufficiency of the evidence bears a heavy
12 burden.” United States v. Rojas, 617 F.3d 669, 674 (2d Cir.
13 2010) (internal quotation marks omitted). We must view the
14 evidence in the light most favorable to the government and
15 “uphold the jury’s verdict as long as any rational trier of
16 fact could have found the essential elements of the crime
17 beyond a reasonable doubt.” Id. (internal quotation marks
18 omitted). Rodriguez cannot meet this heavy burden. One of
19 the government’s witnesses at trial testified that he had
20 purchased heroin directly from Rodriguez on twenty to thirty
21 occasions. Moreover, as discussed in greater detail below,
22 there was ample evidence to support the inference that
4
1 Rodriguez was an active participant in Camilo’s heroin
2 distribution activities. After a thorough review of the
3 evidence presented at trial, we conclude that Rodriguez’s
4 sufficiency challenge fails.
5 Rodriguez also contends that the government’s witnesses
6 were not credible, warranting a new trial under Rule 33 of
7 the Federal Rules of Criminal Procedure. “We review
8 challenges to a district court’s denial of a Rule 33 motion
9 for an abuse of discretion and accept the district court’s
10 factual findings unless they are clearly erroneous.” United
11 States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009)
12 (internal quotation marks omitted). “Because the courts
13 generally must defer to the jury’s resolution of conflicting
14 evidence and assessment of witness credibility, ‘[i]t is
15 only where exceptional circumstances can be demonstrated
16 that the trial judge may intrude upon the jury function of
17 credibility assessment.’” Id. (quoting United States v.
18 Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)).
19 Once again, Rodriguez cannot meet this high burden.
20 Rodriguez’s claims of patently incredible testimony are
21 unavailing and do not rise to the level of exceptional
22 circumstances to warrant setting aside the verdict and
5
1 granting a new trial. Accordingly, the district court did
2 not err in denying Rodriguez’s motion for a new trial.
3 On cross-appeal, the government contends that the
4 district court erred in setting aside the jury’s verdict as
5 to drug quantity. The district court purported to act
6 pursuant to Rule 29 of the Federal Rules of Criminal
7 Procedure, which provides that “the court on the defendant’s
8 motion must enter a judgment of acquittal of any offense for
9 which the evidence is insufficient to sustain a conviction.”
10 This was a ruling regarding the legal sufficiency of the
11 evidence, for which our standard of review is de novo. See
12 Andino, 627 F.3d at 49.
13 It is well established that a judgment of acquittal may
14 be entered only where the evidence of guilt is so lacking
15 that, drawing all inferences in the government’s favor, “no
16 rational trier of fact could have found the essential
17 elements of the crime.” United States v. Velasquez, 271
18 F.3d 364, 370 (2d Cir. 2001) (internal quotation marks
19 omitted). In this case, we cannot agree with the district
20 court that the evidence adduced at trial was insufficient to
21 support the jury’s finding as to drug quantity. In order to
22 prove that Rodriguez conspired to distribute more than 100
6
1 grams of heroin, the government was not required to
2 establish that she personally handled that amount. Rather,
3 the issue was whether she could reasonably have foreseen
4 that the conspiracy would involve more than 100 grams.
5 United States v. Johnson, 633 F.3d 116, 118 (2d Cir. 2011).
6 The jury was correctly instructed in that regard.
7 As the district court recognized, the testimony at
8 trial established that Rodriguez was personally involved in
9 distributing at least forty grams of heroin. But there was
10 additional evidence from which the jury could infer that
11 Rodriguez knew of other occasions on which customers who had
12 dealt with her bought heroin directly from Camilo. The jury
13 also heard tape-recorded telephone conversations between
14 Camilo and potential buyers in which Camilo suggested that
15 Rodriguez was “the same as [him]” and could provide heroin
16 in his absence, and in which Camilo recounted that he had
17 unsuccessfully attempted to use Rodriguez as the purchasing
18 agent for his heroin, because the wholesaler had refused to
19 deal with her. Based on this evidence, the jury could
20 reasonably have concluded that Rodriguez could have foreseen
21 that the conspiracy involved more than 100 grams of heroin.
22
7
1 We have considered Appellants’ remaining arguments and
2 find them to be without merit. Therefore, we AFFIRM the
3 judgment of conviction against Camilo in all respects. With
4 regard to Rodriguez, we AFFIRM the judgment of conviction to
5 the extent that it was supported by sufficient evidence. We
6 VACATE the sentence imposed on Rodriguez and REMAND to the
7 district court for resentencing in accordance with the
8 jury’s finding that more than 100 grams of heroin were
9 attributable to Rodriguez.
10 AFFIRMED in part and VACATED and REMANDED in part.
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
8