United States v. Diallo

11-4868
United States v. Diallo
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 for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 16th day of January, two thousand thirteen.
4
5 Present: ROSEMARY S. POOLER,
6 PETER W. HALL,
7 DENNY CHIN,
8 Circuit Judges.
9 _____________________________________________________
10
11 UNITED STATES OF AMERICA,
12
13 Appellee,
14
15 -v- 11-4868
16
17 SAIKOU DIALLO, AKA JALO,
18
19 Defendant-Appellant.*
20 _____________________________________________________
21
22 Appearing for Appellant: B. ALAN SEIDLER, ESQ., New York, NY.
23
24 Appearing for Appellee: BRENT S. WIBLE (Michael Ferrara, Parvin Moyne, Assistant
25 United States Attorneys, Of Counsel, on the brief), Assistant
26 United States Attorney, Of Counsel, for Preet Bharara, United
27 States Attorney for the Southern District of New York, New York,
28 NY.
29
30 Appeal from a judgment of the United States District Court for the Southern District of
31 New York (Kaplan, J.).
*
The Clerk of the Court is directed to change the caption as set out above.
1 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
3
4 Defendant-Appellant Saikou Diallo (“Diallo”) appeals from a judgment entered on
5 November 17, 2011 by the United States District Court for the Southern District of New York
6 (Kaplan, J.), following a jury trial, convicting him of Count 1, conspiracy to distribute and
7 possess with an intent to sell crack cocaine and marijuana in violation of 21 U.S.C. § 846; Count
8 2, conspiracy to distribute and possess with an intent to sell crack cocaine and marijuana in
9 violation of 21 U.S.C. § 846; and Count 6, discharge of firearms in furtherance of the conspiracy
10 charged in Count 2 in violation of 18 U.S.C. § 924(c)(1)(A)(iii), (c)(1)(C)(i) & (c)(2). The jury
11 also returned a special verdict, finding that the Count 1 conspiracy involved between 5 and 50
12 grams of crack cocaine and the Count 2 conspiracy involved at least 280 grams of crack. We
13 assume the parties’ familiarity with the underlying facts and procedural history of this case.
14
15 Diallo makes five arguments on appeal. First, Diallo argues that there was insufficient
16 evidence at trial to support his convictions. “We review de novo challenges to the sufficiency of
17 the evidence.” United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010). “In reviewing a
18 claim that the evidence was insufficient to sustain a defendant’s conviction, we view the
19 evidence in the light most favorable to the government, drawing all inferences in the
20 government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.” Id.
21 (internal quotation marks omitted). “Assessments of witness credibility and choices between
22 competing inferences lie solely within the province of the jury. Where there are conflicts in the
23 testimony, we must defer to the jury’s resolution of the weight of the evidence and the credibility
24 of the witnesses.” United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010) (internal brackets,
25 quotation marks, and ellipsis omitted). Here, Diallo’s sole argument is that the four cooperating
26 witnesses who testified against him were not credible. Given our deference to jury
27 determinations of witness credibility, Diallo’s insufficiency argument fails.
28
29 Second, Diallo claims that the Count 1 and Count 2 conspiracy charges were
30 multiplicitous. “An indictment is multiplicitous when a single offense is alleged in more than
31 one count.” United States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006) (internal quotation marks
32 omitted). “A claim of multiplicity cannot succeed, however, unless the charged offenses are the
33 same in fact and in law.” Id. (internal quotation marks omitted). “[T]he question of whether
34 one, or more than one, conspiracy has been proven is a question of fact for a properly instructed
35 jury.” Id. at 72. When not raised until appeal, we review the issue of multiplicitous counts in an
36 indictment for plain error. United States v. Savarese, 404 F.3d 651, 656 (2d Cir. 2005).
37
38 Here, Diallo did not raise the multiplicitous counts issue until appeal. Diallo correctly
39 points out that the district court did not explicitly instruct the jury to consider whether one, or
40 more than one, conspiracy has been proven by the government. However, the government
41 introduced evidence that Diallo participated in two conspiracies that differed in time period,
42 participants, and geographic scope. See United States v. Macchia, 35 F.3d 662, 667 (2d Cir.
43 1994) (quoting United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985)) (listing factors to
44 consider in determining whether two conspiracies are one offense). Accordingly, we do not find
45 plain error.
46
47
2
1 Next, Diallo claims that the district court erred by refusing to strike the testimony of New
2 York Police Department Detective Thomas Gergley, who attempted to authenticate a gun
3 allegedly seized by the police during a search of Diallo’s van on October 26, 2009. The district
4 court ruled that the gun was inadmissible due to a break in the chain of custody, but denied
5 Diallo’s motion to strike Gergley’s foundational testimony. Diallo contends that this denial was
6 in error.
7
8 “We review a trial judge’s evidentiary rulings for abuse of discretion. Additionally, we
9 will not order a new trial because of an erroneous evidentiary ruling if we conclude that the error
10 was harmless.” United States v. Abreu, 342 F.3d 183, 190 (2d Cir. 2003) (internal citation
11 omitted). In this case, the district court did not abuse its discretion. Diallo points to no authority
12 for the proposition that the foundational testimony had to be stricken. Furthermore, as Gergley
13 only described the authentication process and did not identify the authenticated exhibit as a gun,
14 any arguable evidentiary error was harmless.
15
16 Fourth, Diallo argues that the government improperly bolstered the credibility of the four
17 cooperating witnesses by introducing their cooperation agreements at trial and eliciting
18 testimony about the truth-telling provisions in the agreements. “Because truth-telling provisions
19 are used by the government primarily to bolster the credibility of a witness, the admission of
20 testimony concerning such provisions before the credibility of a witness has been challenged
21 runs afoul of the well established rules of evidence that absent an attack on the veracity of a
22 witness, no evidence to bolster his credibility is admissible.” United States v. Gaind, 31 F.3d 73,
23 78 (2d Cir. 1994) (internal citation and quotation marks omitted). “However, such testimony is
24 admissible after the credibility of the witness has been challenged.” Id. “Such an attack may
25 come in a defendant’s opening statement.” Id. (internal quotation marks omitted). When the
26 defendant does not object at trial, we review the introduction of truth-telling provisions for plain
27 error. Id. at 76.
28
29 Diallo did not object to the introduction of the truth-telling provisions at trial.
30 Furthermore, Diallo attacked the credibility of the cooperating witnesses in his opening
31 statement. Accordingly, the admission of the truth-telling provisions of the witnesses’
32 cooperation agreements was not error, much less plain error.
33
34 Finally, Diallo challenges the district court’s adoption of the probation department’s
35 calculation in the Presentence Report (“PSR”) of a base offense level of 36, based on an
36 attributed amount of crack cocaine between 2.8 kilograms to 8.4 kilograms. See USSG §
37 2D1.1(c)(2). Diallo contends that this “unconstitutionally overrode the jury finding” because the
38 base offense level calculation was based on a greater amount of crack cocaine than the amounts
39 the jury attributed to Diallo in its special verdict.
40
41 “[W]e review a district court’s legal application of the Guidelines de novo, [and] we
42 review its factual findings deferentially for clear error, bearing in mind that the standard of proof
43 at sentencing is a preponderance of the evidence.” United States v. Gaskin, 364 F.3d 438, 464
44 (2d Cir. 2004) (internal citations omitted). However, for a Sixth Amendment “challenge to the
45 Guidelines that was never presented to the district court, we review only for plain error.” United
46 States v. Garcia, 413 F.3d 201, 205 (2d Cir. 2005). Diallo did not object to the PSR on Sixth
47 Amendment grounds before the district court. Furthermore, we have held a district court may
3
1 “make its own preponderance finding of a higher drug quantity than the amount found by the
2 jury,” United States v. Florez, 447 F.3d 145, 156 (2d Cir. 2006), provided the sentence imposed
3 did not exceed the statutory maximum authorized by the verdict. See United States v. Vaughan,
4 430 F.3d 518, 527 (2d Cir. 2005). Accordingly, we do not find plain error.
5
6 We have considered Diallo’s remaining arguments and find them to be without merit.
7 Accordingly, the judgment of the district court hereby is AFFIRMED.
8
9
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
4