United States v. Mosquera-Prado

13-325-cr
United States of America v. Mosquera-Prado
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
7th day of February, two thousand fourteen.
Present: AMALYA L. KEARSE,
ROSEMARY S. POOLER,
REENA RAGGI,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- 13-325-cr
JOSE MOSQUERA-PRADO AKA EL NEGRO,
Defendant-Appellant.
_____________________________________________________
Appearing for Appellant: Elizabeth E. Macedonio, Bayside, N.Y.
Appearing for Appellee: Benjamin Naftalis, Assistant United States Attorney (Preet
Bharara, United States Attorney for the Southern District of New
York; John P. Cronan, Justin Anderson, Assistant United States
Attorneys, on the brief), New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Kaplan, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment or order of said District Court be and it hereby is
AFFIRMED.
Defendant-Appellant Jose Mosquera-Prado (“Mosquera”) appeals from a January 9, 2013
judgment of the United States District Court for the Southern District of New York (Kaplan, J.)
filed on January 25, 2013 following a two-week trial in which the jury found him guilty of
conspiracy to distribute and possess with intent to distribute cocaine and heroin, in violation of
21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(A), and conspiracy to important cocaine and heroin
into the United States in violation of 21 U.S.C. § 963, 960(a)(1), and 960(b)(1)(A). Mosquera
was sentenced to a term of imprisonment of 280 months, to be followed by five years of
supervised release.
Mosquera concedes that the evidence adduced at trial established that he was involved in
a narcotics conspiracy formed in Colombia during the time period alleged in the indictment.
However, he contends on appeal that the evidence did not show that he intended that any drugs
be delivered to the United States, and that venue was not proper in the Southern District of New
York. Mosquera also takes issue with the district court’s response to a jury question about the
transcripts of several intercepted phone calls. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.
I. Sufficiency of the Evidence
“A defendant challenging the sufficiency of the evidence bears a heavy burden, because
the reviewing court is required to draw all permissible inferences in favor of the government and
resolve all issues of credibility in favor of the jury verdict.” United States v. Kozeny, 667 F.3d
122, 139 (2d Cir. 2011), cert. denied, 133 S. Ct. 1794 (2013). We must affirm a conviction if
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
omitted)). “For non-citizens acting entirely abroad, a jurisdictional nexus exists when the aim of
that activity is to cause harm inside the United States or to U.S. citizens or interests.” United
States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011), cert. denied, 132 S. Ct. 2374 (2012).
There was ample evidence at trial from which a jury could have inferred that Mosquera
knew that the drugs in question were “bound for the United States,” United States v. Londono-
Villa, 930 F.2d 994, 1001 (2d Cir. 1991), and that the charged importation and distribution
conspiracy targeted New York City in particular. Thus, we reject Mosquera’s sufficiency of the
evidence argument, and affirm the district court’s denial of his motion for judgment of acquittal
on this basis.
II. Venue
Mosquera’s challenge to venue in the Southern District of New York is similarly without
merit. As an initial matter, venue need only be established by a preponderance of the evidence.
See United States v. Ramirez, 420 F.3d 134, 139 (2d Cir. 2005). “[O]ffenses ‘begun in one
district and completed in another’ . . . may be ‘prosecuted in any district in which [the] offense
was begun, continued, or completed.’” United States v. Cabrales, 524 U.S. 1, 7 (1998) (quoting
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18 U.S.C. § 3237(a)). “In cases involving telephone calls between co-conspirators in different
districts, we have ruled that venue lies in either district as long as the calls further the
conspiracy.” United States v. Rommy, 506 F.3d 108, 120 (2d Cir. 2007) (internal quotation
marks omitted).
At trial, the jury had sufficient evidence from which to conclude that the criminal acts in
question had “substantial contacts,” see Ramirez, 420 F.3d at 139, with New York City—the
location referred to in phone calls and emails as the “Twins” or the “Second Floor.” For
example, the government introduced testimony from a confidential informant—whom Mosquera
had believed to be a fellow narcotics trafficker—and a telephone conversation between the
informant and Mosquera in which Mosquera gave the informant a telephone number for a
potential drug buyer in New York. That number began with an area code that was within the
Southern District of New York, and one of Mosquera’s coconspirators testified that he learned
that the informant in fact followed Mosquera’s instructions to call that buyer.
III. Response to Jury Inquiry
As to Mosquera’s challenge to the district court’s response to the jury’s note, a trial judge
has “considerable discretion in determining how to respond to communications indicating that
the jury is experiencing confusion.” United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990).
Any supplemental charge given by the trial court must be considered “in its context and under all
the circumstances.” Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (internal quotation marks
omitted).
We conclude that the district court’s response to the jury request for clarification about
the stipulations entered into evidence was neither an incorrect statement of the law nor of the
factual record in this case. Indeed, all the court did was direct the jurors to the stipulations that
had been made over the course of trial. There was no error or abuse of discretion in this
response.
Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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