United States v. Olivo , 664 F. App'x 77 ( 2016 )

15-3287-cr
United States v. Olivo
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 10th day of November, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 15-3287-cr
ERNESTO OLIVO,
Defendant-Appellant.
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APPEARING FOR APPELLANT: RICHARD HARRIS ROSENBERG, Law
Office of Richard H. Rosenberg, New York,
New York.
APPEARING FOR APPELLEE: RUSSELL CAPONE, Assistant United States
Attorney (Adam S. Hickey, Assistant United
States Attorney, on the brief), for Preet Bharara,
United States Attorney for the Southern District
of New York, New York, New York.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Valerie E. Caproni, Judge).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on October 9, 2015, is AFFIRMED.
Defendant Ernesto Olivo appeals his conviction following trial of conspiracy to
traffic five kilograms or more of cocaine, 500 grams or more of mixtures containing
methamphetamine, and 50 grams or more of pure methamphetamine. See 21 U.S.C.
§§ 841(b)(1)(A), 846. Presently incarcerated, serving a below-Guidelines mandatory
minimum prison term of 10 years, Olivo challenges (1) the admission of hearsay
statements, (2) the prosecution’s misuse of certain hearsay statements in summation, and
(3) the sufficiency of the evidence supporting his conviction. 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.
1. Informant Hearsay
Olivo argues that the district court erred in allowing the government to elicit, over
objection, on redirect examination of a government agent, a confidential informant’s
(“CI’s”) out-of-court statement that Olivo had told the CI about an 18-kilogram cocaine
shipment from Ecuador to Miami. Olivo argues not only that the statement was
inadmissible as hearsay, but that its admission violated his Sixth Amendment right of
confrontation. See U.S. Const. amend. VI. He further argues that the government
compounded these errors by referencing the statement for its truth in summation. We
generally review a preserved challenge to the admissibility of evidence for abuse of
discretion. See United States v. Coplan, 703 F.3d 46, 82 (2d Cir. 2012).
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Where a defendant argues that the improper admission of hearsay evidence
violated the Confrontation Clause, our review is de novo, subject to harmless error. See
United States v. Jass, 569 F.3d 47, 55 (2d Cir. 2009). We review a challenged
summation comment “in the context of the entire trial” to determine if it “substantially
prejudiced” the defendant. United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012)
(internal quotation marks omitted). In so doing, we consider the seriousness of the
misconduct, any curative measures, and the certainty of the conviction absent the
improper statements. See United States v. Banki, 685 F.3d 99, 120 (2d Cir. 2011).
Applying these standards here, we conclude that even if the defense did not open
the door to admission of the challenged statement, cf. United States v. Rosa, 11 F.3d 315,
335 (2d Cir. 1993), its admission was harmless in light of the district court’s limiting
instructions, which made clear that the challenged CI statement was not to be considered
for its truth. Statements admitted for purposes other than establishing the truth of the
matter asserted raise neither hearsay nor Confrontation Clause concerns. See United
States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 89 (2d Cir. 2014) (holding that
statement received for purpose other than its truth does not raise hearsay concerns); see
also United States v. Paulino, 445 F.3d 211, 216–17 (2d Cir. 2006) (same re:
Confrontation Clause concerns) (citing Crawford v. Washington, 541 U.S. 36, 59 n.9
(2004)). We assume the jury followed the district court’s instructions on the issue.
See United States v. Stewart, 433 F.3d 273, 310 (2d Cir. 2006).
In its rebuttal summation, however, the prosecution appeared to cross the line
drawn by the district court and to reference the challenged statement for its truth. The
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mention was brief, and drew no immediate defense objection, as one might expect if
prejudicial error. Indeed, it was only when the district court, at the close of summations,
questioned the government’s use of the statement that defense counsel objected and
moved for a mistrial. Denying the motion, the district court thereafter twice instructed
the jury that the CI’s statement could not be considered for its truth. We presume the
jury followed these instructions, which were sufficient in this case to cure the error. See
id.In any event, Olivo cannot show prejudice because other evidence persuasively
linked Olivo to the distribution of an additional 15 kilograms of cocaine. Moreover, the
jury found Olivo guilty of trafficking in quantities of methamphetamine substances and
pure methamphetamine, independently triggering the mandatory minimum sentence that
he is serving. See United States v. Zvi, 168 F.3d 49, 55–56 (2d Cir. 1999) (upholding
conspiracy conviction where jury found valid objects proved, even if other objects legally
deficient).
2. Text Messages
Olivo raises a hearsay challenge to the admission of various text messages found on
cell phones seized from his apartment. We need not decide if this particular challenge
was forfeited in the district court so as to be reviewed only for plain error because Olivo
cannot demonstrate any error.
A statement is not hearsay when it is made by the defendant himself, see Fed. R. Evid.
801(d)(2)(A), or by a coconspirator during and in furtherance of the conspiracy, see Fed.
R. Evid. 801(d)(2)(E). We review a district court’s factual findings regarding the
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conspiracy for clear error and its decision to admit coconspirator statements for abuse of
discretion, which we do not identify here. See United States v. Gupta, 747 F.3d 111,
124 (2d Cir. 2014). Certainly, there was ample “independent corroborating evidence”
that Olivo was a participant in the cocaine distribution conspiracy. See United States v.
Tellier, 83 F.3d 578, 580 (2d Cir. 1996). To the extent Olivo characterizes the text
messages as mere “chit chat” not in furtherance of the conspiracy, see United States v.
Diaz, 176 F.3d 52, 85 (2d Cir. 1999) (noting that “in furtherance” requirement not
satisfied by “mere idle chatter” (internal quotation marks omitted)), that argument is
belied by the statements themselves, which, though coded, plainly reference drug
trafficking, particularly when considered in light of the testimony of cooperating
witnesses detailing Olivo’s drug activities. The same conclusion applies to Olivo’s
argument that there is a lack of evidence identifying the persons communicating with
Olivo on the text messages or their roles in the conspiracies. The law does not require
proof of either in order to permit a preponderance finding (1) that a conspiracy existed,
(2) that the declarants were members of the conspiracy, and (3) that the statements were
made in furtherance thereof. See United States v. Coppola, 671 F.3d 220, 247 (2d Cir.
2012); United States v. Eppolito, 543 F.3d 25, 47–48 (2d Cir. 2008); United States v.
Provenzano, 615 F.2d 37, 45 (2d Cir. 1980) (noting that when sufficient evidence of
conspiracy is presented, evidence sufficient to connect it to additional co-conspirators
“need not be overwhelming” (quoting United States v. Head, 546 F.2d 6, 9–10 (2d Cir.
1976) (internal quotation marks omitted)). The district court did not abuse its discretion
in finding these elements satisfied here.
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3. Sufficiency of the Evidence
Olivo argues that the evidence was insufficient to prove a conspiracy to traffic in
five or more kilograms of cocaine and that the district court should not have allowed that
object of the conspiracy to be considered by the jury, as he requested in his motion
pursuant to Fed. R. Crim. P. 29(a). We construe the district court’s initial decision as
one reserving decision on the motion, and conclude that the court acted within its
discretion in so doing. See Fed. R. Crim. P. 29(b). At whatever point Rule 29 relief is
denied, we review the district court’s sufficiency determination de novo, considering “the
evidence in the light most favorable to the government, drawing all inferences in the
government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.”
United States v. Pierce, 785 F.3d 832, 838 (2d Cir. 2015) (internal quotation marks
omitted). When we do that here, we conclude that the evidence easily supported the
jury’s verdict as to the cocaine object of the conspiracy. Indeed, even discounting the
18 kilograms of cocaine shipped from Ecuador to Miami, as the district court did in
imposing sentence, record evidence linked Olivo to additional cocaine shipments of at
least 15 kilograms.1 Thus, Olivo’s sufficiency challenge fails on the merits.
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Although Olivo dismisses the text messages’ references to drug quantity as
inconclusive, when we view the messages in the light most favorable to the government,
we must assume that the jury construed references to “work” and “keys” as kilogram
drug weights. See, e.g., J.A. 40, 47; Gov’t Add. 9, 11; see also Trial Tr. 225:14–18
(testimony by cooperating witness that “work” was code word for cocaine); Trial Tr.
528:13–529:7 (questioning undercover agent on use of code words).
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4. Conclusion
We have considered Olivo’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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