United States v. Vasquez

14-2494-cr(L)
United States v. Vasquez
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 1st day of December, two thousand sixteen.
PRESENT: ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. Nos. 14-2494-cr(L)
14-3630-cr(Con)
EMILIANO VASQUEZ, AKA “Patalarga,” and ALEJO
POLANCO, AKA “Hondo,”
Defendants-Appellants,*
CARMELO DANILO ARAUJO, EDWIN
TAVARES, AKA “Chegui,” and GILBERTO ARIAS,
AKA “Troy,”
Defendants.
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FOR APPELLANT EMILIANO Donna R. Newman, Law Offices of Donna R.
VASQUEZ: Newman, PA, New York, New York; Clara
Kalhous, Esq. New York, New York.
*
The Clerk of Court is directed to amend the case caption as set forth above.
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FOR APPELLANT ALEJO Ephraim Savitt, Esq., New York, New York.
POLANCO:
FOR APPELLEE: Nathan D. Reilly, Soumya Dayananda, and
David C. James, Assistant United States
Attorneys, for Robert L. Capers, United States
Attorney for the Eastern District of New York,
Brooklyn, New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Raymond J. Dearie, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments entered on July 7, 2014 and September 17, 2014 are
AFFIRMED.
Defendants Emiliano Vasquez and Alejo Polanco were convicted after a jury trial
of conspiracy to distribute and possess with intent to distribute heroin, cocaine, and
marijuana, see 21 U.S.C. §§ 841, 846; conspiracy to commit Hobbs Act robbery, see 18
U.S.C. § 1951(a); discharge of a firearm in relation to a drug trafficking crime or a crime
of violence, see id. § 924(c)(1)(A), and causing death through the use of a firearm, see id.
§ 924(j)(1). Vasquez challenges his convictions on the grounds that (1) the district court
should have deemed him incompetent to stand trial, or held a second competency
hearing; (2) his firearms-related offenses were not reasonably foreseeable consequences
of the robbery and narcotics conspiracies; and (3) it cannot be determined whether his
firearms offenses validly rested on any “crime of violence” or “drug trafficking crime.”
Polanco’s counsel moves to be relieved under Anders v. California, 386 U.S. 738 (1967),
and the government moves for summary affirmance of Polanco’s conviction. We
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assume the parties’ familiarity with the facts and record of prior proceedings, which we
reference only as necessary to explain our decision to grant Anders relief to Polanco’s
counsel and to affirm the convictions of both defendants.
1. Emiliano Vasquez
a. Competency
Vasquez faults Judge Townes’s finding, made after an evidentiary hearing, that he
was competent to stand trial and Judge Dearie’s failure sua sponte to order a new hearing
after the case was reassigned to him.
To find a defendant competent to stand trial, a district court must make a
preponderance finding that the defendant has “(1) ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding’ and (2) ‘a rational as
well as factual understanding of the proceedings against him.’” United States v.
Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (quoting United States v. Nichols, 56 F.3d 403,
410 (2d Cir. 1995)). The determination may rest on both medical evidence and the
court’s own observations of the defendant. See United States v. Nichols, 56 F.3d at 411.
Where, as here, counsel makes no motion for a new competency hearing, the district
court must nonetheless “be alert” to changes in the defendant’s competency, Drope v.
Missouri, 420 U.S. 162, 181 (1975), and order a new hearing sua sponte “if there is
reasonable cause to believe” that such status has changed, 18 U.S.C. § 4241(a). We
review the district court’s competency finding for clear error, see United States v.
Morrison, 153 F.3d at 46, and the failure to order a new hearing for abuse of discretion,
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see United States v. Arenburg, 605 F.3d 164, 168–69 (2d Cir. 2010). We identify
neither here.
Judge Townes’s competency finding was made after conducting a hearing to
explore the inconsistent opinions of government and defense psychologists. Judge
Townes’s decisions to credit the findings and opinion of the government expert, and not
to rely on those of the defense expert, were not clearly erroneous given record evidence
that the defense expert lacked formal or institutional training in forensic psychology;
deemed 85–90% of all persons he examined incompetent to stand trial; had employed an
excessively exacting competency standard; and had been criticized by several state and
federal courts for prior competency examinations. See, e.g., United States v. Gigante,
166 F.3d 75, 84 (2d Cir. 1999) (describing competency review as “highly deferential,”
and observing that choice between “two permissible views of the evidence” does not
manifest clear error (internal quotation marks omitted)). To the extent Vasquez urges a
different standard for assessing a defendant’s competency than is presently recognized in
our precedents, this panel is bound by that precedent unless it is reversed by this court en
banc or by an intervening contrary ruling by the Supreme Court. See Centurion v.
Holder, 755 F.3d 115, 123 (2d Cir. 2014).
We further conclude that Judge Dearie did not abuse his discretion in failing sua
sponte to order a new competency hearing. The record here shows Vasquez stating that
he fully understood the charges against him and both he and his counsel professing to the
district court their ability to communicate effectively with one another. At sentencing,
Judge Dearie acknowledged his awareness of Vasquez’s mental health issues, but stated
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that such issues did not give rise to competency concerns because Vasquez was “entirely
cogent.” App’x 1733. On this record, the district court would not have cause to
believe that Vasquez’s competency had deteriorated since Judge Townes had found him
fit for trial.
In urging otherwise, Vasquez highlights his refusal to plead guilty to firearms
violations under a Pinkerton theory of liability, and his disagreements with four attorneys.
The district court was alert to such issues. Indeed, it specifically found that Vasquez’s
difficulty dealing with counsel was a function of his personality, not his competency. It
further found his plea decision to reflect not incompetency but a strong, if mistaken,
belief that he was less responsible for the loss of life in the robbery because he was
“separat[ed] from the more violent ends of the[] conspiracies,” App’x 1733. Thus,
neither Vasquez’s plea decision nor his relations with counsel manifest the district court’s
abuse of discretion in not sua sponte ordering a new competency hearing. Compare,
e.g., United States v. Kerr, 752 F.3d 206, 217 (2d Cir. 2014) (holding that district court
did not abuse discretion in declining to order new competency hearing based on
defendant’s “obstinate, belligerent, and obsessive behavior,” “obsession with his [own]
theories of defense,” “distrust of his attorneys,” or desire to represent himself at trial),
with United States v. Auen, 846 F.2d 872, 875, 878 (2d Cir. 1988) (declining to order
competency hearing constituted abuse of discretion where defendant consistently gave
incomprehensible responses to court inquiries and claimed to be victim of
“psychopolitical terrorism by the Internal Revenue Service”), and United States v.
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Arenburg, 605 F.3d at 168 (same, where defendant’s trial strategy involved
cross-examining witnesses on “microwave channels broadcasting his thoughts”).
Accordingly, Vasquez’s competency challenges fail on the merits.
b. Reasonable Foreseeability
Vasquez argues that the evidence was insufficient to support his 18 U.S.C.
§ 924(c) and (j) convictions premised on Polanco’s discharge of a firearm during the
charged narcotics and robbery conspiracies and the resultant death of Liliana Colmenares.
We review a sufficiency challenge “de novo, viewing the evidence in the light most
favorable to the government, with all reasonable inferences drawn in its favor.” United
States v. Rowland, 826 F.3d 100, 107 (2d Cir. 2016) (internal quotation marks omitted).
A defendant may be guilty of a crime committed by a co-conspirator “in
furtherance of the conspiracy” if it is “reasonably foreseeable to the defendant as a
consequence of their criminal agreement.” United States v. Parkes, 497 F.3d 220, 232
(2d Cir. 2007) (citing Pinkerton v. United States, 328 U.S. 640 (1946) (internal quotation
marks omitted)). “Whether a particular substantive crime is foreseeable and in
furtherance of the conspiracy is a question of fact to be decided by the jury.” United
States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996).
Vasquez argues that the jury could not find foreseeability proved in the absence of
evidence of an agreement that “weapons would be discharged” during the conspiracy,
and in light of Polanco’s statements to his co-conspirators that Liliana Colmenares’s
death was an “accident.” Def.’s Br. 47–48. The argument fails because Pinkerton
liability extends not only to co-conspirators’ desired results, but to all reasonably
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foreseeable results in furtherance of the conspiracy. Here, the jury could reasonably
have concluded that even an unintended shooting death was a “natural,” and therefore,
foreseeable “consequence of a robbery . . . premised on the use of overmastering force
and violent armed confrontation.” United States v. Parkes, 497 F.3d at 232. The trial
evidence showed that Vasquez’s co-conspirators always carried firearms during their
prior robberies and knew that they were robbing drug dealers, who might well be armed.
The discharge of a firearm and ensuing death are reasonably foreseeable consequences of
such criminal activity. See id. (upholding Pinkerton liability for death despite
defendants’ expectation that armed robbery would be “easy”). No different conclusion
is warranted by the fact that, as a getaway driver, Vasquez was not in the room when the
discharge of the firearm or the death occurred, see United States v. Heras, 609 F.3d 101,
110 (2d Cir. 2010). In sum, the evidence was sufficient to support the foreseeability
finding necessary for Vasquez’s convictions under 18 U.S.C. § 924(c) and (j).
c. “Crime of Violence” or “Drug Trafficking Crime” Predicate
Vasquez further challenges his § 924 convictions on the ground that the general
verdict form fails to show whether guilt was premised on (1) firearms use “during and in
relation to” the charged narcotics conspiracy (a “drug trafficking crime”) or (2) the
charged Hobbs Act robbery conspiracy. He argues that Hobbs Act robbery is not a
predicate “crime of violence” under the Supreme Court’s reasoning in Johnson v. United
States, 135 S. Ct. 2551 (2015),1 raising a Yates concern. See United States v. Agrawal,
1
While this court specifically rejected a Johnson challenge to Hobbs Act robbery in
United States v. Hill, 832 F.3d 135, 138 (2d Cir. 2016), the mandate has not yet issued.
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726 F.3d 235, 250 (2d Cir. 2013) (noting that general verdict of guilty may manifest legal
error under Yates v. United States, 354 U.S. 298 (1957), where (1) “disjunctive theories
of culpability” were submitted to jury, (2) it is “impossible to tell which ground the jury
selected,” and (3) “[one] of the theories was legally insufficient” (alteration in original)).
Whether we review this argument based on intervening law for plain error, see
United States v. Marcus, 560 U.S. 258, 262 (2010) (requiring showing of (1) error;
(2) that is clear and obvious; (3) affecting “substantial rights”; and (4) seriously
impugning “fairness, integrity, or public reputation of judicial proceedings”), or modified
plain error, see United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1990) (placing burden on
government to show absence of prejudice when applicable law is clarified after trial),
abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997), it necessarily
fails for lack of any error.
Even if Hobbs Act robbery were not a categorical crime of violence, Vasquez’s
§ 924 convictions are clearly supported by a narcotics predicate presenting no legal
concern. That is because the sole Pinkerton theory supporting Vasquez’s § 924
convictions is that co-conspirator Polanco fatally discharged a firearm in furtherance of
an agreement to rob drug dealers and to distribute any recovered narcotics and narcotics
proceeds. Thus, there was no possibility that the jury’s § 924(c) verdict rested only on a
Hobbs Act robbery predicate because (1) the robbery was an act inextricably intertwined
with and, indeed, in furtherance of the charged narcotics conspiracy, and (2) the jury
found that narcotics conspiracy proved beyond a reasonable doubt. In these
circumstances, where a challenged § 924 verdict undoubtedly rests on a valid
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drug-trafficking predicate, no Yates concern arises from a possible defect in a related
“crime of violence” predicate. See United States v. Zvi, 168 F.3d 49, 55–56 (2d Cir.
1999) (rejecting Yates challenge where time-barred money-laundering predicate
implicitly required finding of valid wire-fraud predicate); see also United States v.
Coppola, 671 F.3d 220, 237–38 (2d Cir. 2012) (holding any Yates error harmless where
predicates rested on same extortive acts of which jury found defendants guilty).
To the extent Vasquez hypothesizes a way in which the firearms discharge and
resulting murder could have related to the robbery, but not the narcotics conspiracy, he
points to nothing in the record showing that such distinct theories were ever advanced at
trial. Rather, the record shows only, as earlier noted, that the robbery scheme was
presented as a part of the proved narcotics scheme. Accordingly, we affirm Vasquez’s
§ 924(c) and (j) convictions based on the narcotics trafficking predicate without needing
to decide if they could also rest on the robbery predicate.
2. Alejo Polanco
Polanco’s court-appointed counsel does not challenge his conviction but, rather,
moves to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) (allowing
counsel to ask for permission to withdraw if convinced, after conscientious investigation,
that appeal is frivolous). The government, in turn, moves for summary affirmance.
“We will not grant an Anders motion unless we are satisfied that counsel has
diligently searched the record for any arguably meritorious issue in support of his client’s
appeal, and defense counsel’s declaration that the appeal would be frivolous is, in fact,
legally correct.” United States v. Whitley, 503 F.3d 74, 76 (2d Cir. 2007) (internal
9
quotation marks omitted)). Assessing the potential merit of an appeal is the role of
counsel, and this court ordinarily will not “independently determine the merits of an
appeal[] absent a properly prepared Anders brief.” United States v. Burnett, 989 F.2d
100, 104 (2d Cir. 1993). Here, Polanco’s counsel did aver that he had searched the
record for any arguments available on appeal, but did not, like counsel for his
co-defendant, supplement the record in light of Johnson v. United States, 135 S. Ct. 2551
(2015). To the extent such an argument is even “arguably meritorious,” it was counsel’s
duty either to supplement the Anders motion or to join in briefing filed on behalf of
Vasquez. We do not lightly excuse such an omission but, in the particular
circumstances presented here, we are able “independently [to] determine the merits of
[the] appeal” without further briefing on this issue. See United States v. Burnett, 989 F.2d
at 104.
First, Polanco and Vasquez were convicted, after a joint trial, of the same offenses.
Polanco, however, cannot pursue the first two challenges raised by Vasquez because
(1) his competency was never at issue, and (2) his § 924 liability was not premised on
Pinkerton, but on his role as the actual shooter. Second, while Polanco’s counsel failed
to raise any Johnson argument akin to that advanced by Vasquez’s counsel, such an
argument would fail for the reason just discussed: that is, both defendants’ § 924
convictions are supported by a proved narcotics conspiracy predicate that is inextricably
intertwined with the Hobbs Act robbery predicate but without the latter’s possible
Johnson issue.
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Third, counsel’s discussion of the substantive and procedural reasonableness of
Polanco’s sentence, see United States v. Whitley, 503 F.3d at 77, while brief, was
adequate. As to procedural reasonableness, Polanco’s killing of Liliana Colmenares
made him statutorily eligible for a life sentence. See 18 U.S.C. § 924(j). The district
court noted that the § 924(j) conviction generated a total offense level of 44, see U.S.S.G.
§ 2A1.1, App. A, elevating Polanco’s Guidelines sentencing range to life imprisonment,
see 2013 U.S.S.G. Manual Ch. 5 Pt. A, Sentencing Table, which sentence the government
urged. As to substantive reasonableness, the district court sentenced Polanco to a
below-Guidelines 27-year prison term, finding that Polanco had not intended to kill
Colmenares, and appeared “contrite” and “haunted” by her death, see August 20, 2014
Sentencing Transcript, at 16:23, 17:4–6. In general, a below-Guidelines sentence is
strong evidence that a sentence is not substantively unreasonable, see United States v.
Messina, 806 F.3d 55, 66 (2d Cir. 2015), and Polanco has no colorable argument here
that the 27-year sentence was outside the broad range of discretion afforded sentencing
judges, see United States v. Cavera, 550 F.3d 180, 188–89 (2d Cir. 2008) (en banc);
United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008). No other non-frivolous issues
are apparent.
Finally, the record demonstrates that counsel provided Vasquez with a copy of his
motion and accompanying brief, and wrote to Polanco, even before filing his brief, to
explain its consequences and to clarify that Polanco had a right to pursue his appeal pro
se or to seek new counsel. Counsel directed Polanco to obtain the assistance of a
bilingual inmate in reviewing the message, and thereafter, Polanco confirmed that he
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understood the message and was consenting to counsel’s withdrawal. While counsel
was also required to append to his brief a transcript of the district court proceedings, see
United States Court of Appeals for the Second Circuit, How to File an Anders Brief,
http://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_case/pdf/Anders%20brief%2
0instructions%20and%20checklist%20combined%2010-11.pdf, his failure to do so does
not here require denial of the motion because copies of the relevant transcripts were
available through Vasquez’s appeal and the district court’s docket.
Accordingly, as to Polanco, we grant counsel’s Anders motion to withdraw and
the government’s motion for summary affirmance.
3. Conclusion
We have considered Vasquez’s remaining arguments and conclude that they are
without merit. Accordingly, the Anders motion of Polanco’s counsel is GRANTED and
the judgments of conviction as to both Polanco and Vasquez are AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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