United States v. Pepin ( 2010 )

08-5952-cr
United States v. Pepin
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 1 st day of March, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 Senior Circuit Judge,
10 CHRISTOPHER F. DRONEY, *
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 United States of America,
15 Appellee,
16
17 -v.- 08-5952-cr
18
19 Humberto Pepin, also known as Homberto
20 Pepin Taveras, also known as Tony,
21 Defendant-Appellant.
22 - - - - - - - - - - - - - - - - - - - -X
23
*
Christopher F. Droney, Judge of the United States
District Court for the District of Connecticut, sitting by
designation.
1
1 APPEARING FOR APPELLANT: LOUIS M. FREEMAN (Zoe J. Dolan,
2 of counsel, on the brief),
3 Freeman Nooter & Ginsberg, New
4 York, NY.
5
6 APPEARING FOR APPELLEE: PETER A NORLING (Lee J.
7 Freedman, Walter Norkin, Carter
8 Burwell, on the brief),
9 Assistant United States
10 Attorneys, of counsel, for
11 Benton J. Campbell, United
12 States Attorney, Eastern
13 District of New York, Brooklyn,
14 NY.
15
16 Appeal from a judgment of the United States District
17 Court for the Eastern District of New York (Weinstein, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the district court be
21 AFFIRMED.
22
23 Humberto Pepin appeals from a judgment of conviction
24 and sentence entered November 14, 2008 in the United States
25 District Court for the Eastern District of New York
26 (Weinstein, J.). During a previous incarceration for
27 narcotics offenses, Pepin confessed to two murders.
28 Prosecutors brought charges and sought the death penalty.
29 He was convicted of two counts of murder while engaged in
30 drug trafficking in violation of 21 U.S.C. § 848(e)(1)(A)
31 and one count of obstruction of justice in violation of 18
32 U.S.C. § 1512(b)(3), and sentenced principally to two terms
33 of life imprisonment without the possibility of release and
34 one term of ten years. We otherwise assume familiarity with
35 the underlying facts and the case’s procedural history.
36
37 Pepin raises four issues on appeal, none justifying
38 vacatur.
39
40 [1] First, Pepin argues that his uncounseled confessions
41 were admitted at trial in violation of his Sixth Amendment
42 right to counsel with respect to his previous narcotics
43 offenses. In considering this argument, “we review findings
44 of fact for clear error and questions of law de novo,”
45 United States v. Mills, 412 F.3d 325, 328 (2d Cir. 2005);
46 and we apply harmless error analysis, e.g. Milton v.
47 Wainwright, 407 U.S. 371, 372 (1972). There was no error
2
1 because Pepin waived his Sixth Amendment right. The
2 district court found that Pepin’s July 31, 2002 1 statements
3 were made after he was read his Miranda rights, verbally
4 confirmed that he understood them, and signed the Miranda
5 card. (Pepin does not take issue with these findings.)
6 These actions were sufficient to waive Pepin’s Sixth
7 Amendment right to counsel. See Patterson v. Illinois, 487
8 U.S. 285, 288, 293 (1988) (defendant who was read his
9 Miranda rights and signed a Miranda waiver, and then
10 voluntarily answered questions, waived his Sixth Amendment
11 right to counsel).
12
13 [2] Pepin next argues that the district court erred by
14 admitting certain hearsay statements under the former
15 testimony exception set out in Rule 804(b)(1) of the Federal
16 Rules of Evidence. We review for abuse of discretion, e.g.
17 United States v. Wexler, 522 F.3d 194, 201-02 (2d Cir.
18 2008), and apply harmless error analysis, Fed. R. Evid.
19 103(a). Though we recognize that the government did not
20 attempt to locate the hearsay declarant abroad (even though
21 he had testified previously that he intended to return to
22 his native Dominican Republic), any error in admitting the
23 hearsay statements (assuming there was error) was harmless.
24 The substance of the contested hearsay statements was
25 independently supplied by the testimony of Julia Mendez and
26 by Pepin himself.
27
28 [3] Third, Pepin argues that the district court improperly
29 instructed the jury on the elements of the obstruction
30 charge. We review jury instructions de novo, applying
31 harmless error analysis. United States v. Hassan, 578 F.3d
32 108, 128 (2d Cir. 2008) (amended opinion). There is no
33 error. Pepin’s contention that the district court should
34 have instructed the jury to find that Pepin “knew . . . that
35 the criminal proceeding [obstructed] was or would be
36 federal” 2 is rebutted by statute and caselaw. See 18 U.S.C.
1
Although Pepin mentions his July 31, 2002; October
15, 2002; and January 15, 2002 statements in his papers, he
assigns error only to the admission of his July 31, 2002
statements.
2
Insofar as Pepin also argues for the first time in
his reply brief that the district court should have
instructed the jury to find a nexus between Pepin’s actions
and a foreseeable proceeding, that argument is forfeited.
3
1 § 1512(g) (“no state of mind need be proved with respect to
2 the circumstance” that the affected proceeding or officer is
3 federal); United States v. Diaz, 176 F.3d 52, 90-91 (2d Cir.
4 1999) (same).
5
6 [4] Finally, Pepin contends that the evidence adduced at
7 trial was insufficient to sustain his conviction for
8 obstruction. In reviewing a conviction for sufficiency of
9 evidentiary support, “the trial evidence is viewed most
10 favorably for the Government” and “all reasonable inferences
11 a jury may have drawn favoring the Government must be
12 credited.” Wexler, 522 F.3d at 206-07. We affirm “‘if any
13 rational trier of fact could have found the essential
14 elements of [the] crime beyond a reasonable doubt.’” Id. at
15 207 (emphasis omitted) (quoting Jackson v. Virginia, 443
16 U.S. 307, 319 (1979)). Julia Mendez testified at trial that
17 she said “nice” things about Pepin to court officers because
18 he forced her to do so by threat. A reasonable inference is
19 that Mendez’s statements to the officers would have been
20 different had she not been threatened. Mendez knew about
21 both murders at issue in this case, and was therefore in a
22 position to tell the officers about them. On these facts, a
23 rational juror could easily have concluded that Pepin
24 “knowingly . . . threaten[ed]” Mendez “with intent to . . .
25 prevent the communication to a law enforcement officer . . .
26 of the United States of information relating to the
27 commission or possible commission of a Federal offense or a
28 violation of conditions of probation[,] supervised
29 release,[] parole, or release pending judicial
30 proceedings[].” 18 U.S.C. § 1512(b)(3). We therefore
31 conclude that Pepin’s conviction for obstruction of justice
32 is adequately supported by the evidence.
33
34 Finding no merit in Pepin’s remaining arguments, we
35 hereby AFFIRM the judgment of the district court.
36
37
38 FOR THE COURT:
39 CATHERINE O’HAGAN WOLFE, CLERK
40
See, e.g., Tischmann v. ITT/Sheraton Corp., 145 F.3d 561,
568 n.4 (2d Cir. 1998).
4