12-1172-cr
United States v. Miguel Guerrero
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 21st day of October, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHESTER J. STRAUB,
8 Circuit Judges,
9 WILLIAM F. KUNTZ,
10 District Judge.*
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 12-1172-cr
17
18 Reuben Alvarez, Alfred Glover, Douglas
19 Bond,Victor Tavarez,
20 Defendants,
*
The Honorable William F. Kuntz, of the United
States District Court for the Eastern District of New York,
sitting by designation.
1
1 MIGUEL GUERRERO
2 Defendant-Appellant.
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4
5 FOR APPELLANT: Kim P. Bonstrom, Bonstrom &
6 Murphy, Shelter Island, NY.
7
8 FOR APPELLEE: Brent S. Wible, Assistant United
9 States Attorney, for Preet
10 Bharara, United States Attorney
11 for the Southern District of New
12 York.
13
14 Appeal from a judgment of the United States District
15 Court for the Southern District of New York (Holwell, J.).
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court be
18 AFFIRMED.
19 Miguel Guerrero appeals the judgment convicting him of
20 conspiracy to distribute and to possess with intent to
21 distribute at least five kilograms of cocaine and at least
22 fifty grams of crack, in violation of 21 U.S.C. § 846.1 He
23 was sentenced in the U.S. District Court for the Southern
24 District of New York (Holwell, J.) to 240 months’
25 imprisonment. Guerrero appeals on the grounds that (1) he
26 was denied his statutory and constitutional rights to a
27 speedy trial, and (2) the district court improperly admitted
28 evidence. We assume the parties’ familiarity with the
1
The Government did not proceed on the crack
cocaine aspect of this conspiracy charge at trial.
2
1 underlying facts,2 the procedural history, and the issues
2 presented for review.
3 A. The Speedy Trial Act mandates that the trial of a
4 criminal defendant commence “within seventy days from the
5 filing date . . . of the . . . indictment, or from the date
6 the defendant has appeared before a judicial officer of the
7 court in which such charge is pending, whichever date last
8 occurs.” 18 U.S.C. § 3161(c)(1). “Failure of the defendant
9 to move for dismissal prior to trial or entry of a plea of
10 guilty or nolo contendere shall constitute a waiver of the
11 right to dismissal under [the Speedy Trial Act].” 18 U.S.C.
12 § 3162(a)(2); see also United States v. Abad, 514 F.3d 271,
13 274 (2d Cir. 2008) (per curiam).
14 Guerrero concedes that “no pre-trial motion to dismiss
15 on speedy trial grounds was made.” Appellant’s Br. 15.
16 He argues that he should be deemed to have preserved this
17 claim because (1) at least one co-defendant in the case
18 asked his attorney to file a Speedy Trial Act motion to
2
“Because [Guerrero] appeals from a judgment of
conviction entered after a jury trial, [the] facts are drawn
from the trial evidence and described in the light most
favorable to the government.” United States v. Wilson, 709
F.3d 84, 85 (2d Cir. 2013) (per curiam); accord United
States v. Rosen, 716 F.3d 691, 694 (2d Cir. 2013).
3
1 dismiss, and (2) Guerrero argued to the district court post-
2 trial that his own counsel had been ineffective for failing
3 to file such a motion on Guerrero’s behalf. Appellant’s Br.
4 at 15 & n.6. He cites two Ninth Circuit cases, United
5 States v. Lloyd, 125 F.3d 1263 (9th Cir. 1997), and United
6 States v. Hall, 181 F.3d 1057 (9th Cir. 1999), for the
7 proposition that “a defendant may preserve his statutory
8 right to dismissal by alerting the court directly of his
9 desire not to waive those rights” where defense counsel does
10 not file a motion to dismiss. Appellant’s Br. 16.
11 Although Lloyd and Hall “treated a defendant’s own
12 pretrial assertions of his speedy trial rights as adequate
13 to preserve those rights on appeal,” Hall, 181 F.3d at 1060,
14 neither case suggests that those rights may be preserved by
15 asserting them post-trial or by a co-defendant’s pre-trial
16 suggestion to counsel that such a motion be filed.
17 Guerrero filed no pre-trial Speedy Trial Act motion to
18 dismiss or took any step pre-trial to preserve those rights.
19 Accordingly, this claim is waived. See § 3162(a)(2); Abad,
20 514 F.3d at 274; Hall, 181 F.3d at 1060.
21 We also deny Guerrero’s claim that his trial counsel
22 was constitutionally ineffective for failing to file a pre-
4
1 trial motion to dismiss under the Speedy Trial Act, see
2 Appellant’s Br. 17, because no violation of that statute
3 occurred. See, e.g., United States v. Regalado, 518 F.3d
4 143, 149 n.3 (2d Cir. 2008)(“[F]ailure to make a meritless
5 argument does not amount to ineffective assistance.”)
6 (quotation marks omitted).3
7 B. Guerrero argues that the interval between his
8 arrest and trial violated his Sixth Amendment right to a
9 speedy trial.
10 “[F]our factors . . . must be considered in analyzing
11 whether a defendant’s constitutional right to a speedy trial
12 has been violated: (1) the length of the delay; (2) the
13 reasons for the delay; (3) whether the defendant asserted
14 his right in the run-up to the trial; and (4) whether the
3
As explained in the Government’s briefing, only 69
days – not 168 as Guerrero contends - of non-excludable time
elapsed from Indictment to trial. See Appellee’s Br. 12-17.
Guerrero does not argue that the district court failed to
properly invoke 18 U.S.C. § 3161(h)(7)(A) when excluding
time “in the interests of justice” to grant the parties
sufficient time to review discovery, engage in plea
negotiations, or prepare pretrial motions. Rather, Guerrero
merely omits from his calculation a number of oral orders
excluding time that do not appear as individual entries on
the district court’s docket. The Government has supplied
transcripts of the pre-trial proceedings that verify the
calculations provided in its brief. See Appellee’s Br. 12-
17.
5
1 defendant was prejudiced by the failure to bring the case to
2 trial more quickly.” United States v. Cain, 671 F.3d 271,
3 296 (2d Cir. 2012) (citing Barker v. Wingo, 407 U.S. 514,
4 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). “These
5 factors ‘must be considered together with such other
6 circumstances as may be relevant,’ and ‘have no talismanic
7 qualities.’” Id. (quoting Barker, 407 U.S. at 533).
8 “Rather, they require courts to ‘engage in a difficult and
9 sensitive balancing process.’” Id. (quoting Barker, 407 U.S.
10 at 533).
11 1. The length of delay “is in effect a threshold
12 question: ‘by definition, [a defendant] cannot complain that
13 the government has denied him a ‘speedy’ trial if it has, in
14 fact, prosecuted his case with customary promptness.’” Id.
15 (quoting Doggett v. United States, 505 U.S. 647, 652, 112 S.
16 Ct. 2686, 120 L. Ed. 2d 520 (1992)). Guerrero cites the
17 nearly 29-month delay between his Indictment and the
18 commencement of his trial. However, given the nature of
19 this conspiracy prosecution, with multiple defendants,
20 allegations spanning multiple years and states, and
21 voluminous discovery, including thousands of intercepted
22 phone calls (many in Spanish), the delay here weighs only
6
1 modestly in Guerrero’s favor. Cf. id. (holding that a 22-
2 month delay was “particularly understandable” and “largely
3 neutral” with respect to the first Barker factor, “given the
4 presence of multiple defendants, the large number of
5 allegations and the complexity of the” charges and
6 evidence).
7 2. As Guerrero concedes, “the reason for the delay .
8 . . favors neither Guerrero nor the government, as both
9 sides consented to repeated adjournments for the stated
10 purposes of conducting discovery and ‘consider[ing] any
11 motions.’” Appellant’s Br. 21-22. Thus, this factor does
12 not support Guerrero’s claim.
13 3. Because Guerrero failed to invoke his speedy trial
14 rights pre-trial, that consideration favors the Government.
15 4. Under Barker, prejudice should be assessed in
16 light of three interests: “(i) to prevent oppressive
17 pretrial incarceration; (ii) to minimize anxiety and concern
18 of the accused; and (iii) to limit the possibility that the
19 defense will be impaired.” Barker, 407 U.S. at 532. “Of
20 these, the most serious is the last, because the inability
21 of a defendant adequately to prepare his case skews the
22 fairness of the entire system.” Id.
7
1 Guerrero claims he was prejudiced in two ways. First,
2 he states that the years of pre-trial incarceration were
3 oppressive and anxiety-inducing, Appellant’s Br. 23, an
4 assertion that is undermined by his failure to complain pre-
5 trial. See Barker, 407 U.S. at 531 (“The more serious the
6 deprivation, the more likely a defendant is to complain.”).
7 And although some prejudice may be presumed based on the
8 length of delay, “presumptive prejudice cannot alone carry a
9 Sixth Amendment claim without regard to the other Barker
10 criteria.” Doggett, 505 U.S. at 656.
11 Second, Guerrero claims that “but for the prolonged
12 delay, co-defendant-turned-cooperating-witness Victor
13 Tavarez would not have been available to provide devastating
14 evidence against Guerrero.” Appellant’s Br. 23. Even if
15 true, “this is not the sort of prejudice contemplated by
16 Barker’s fourth factor.” Abad, 514 F.3d at 275. As we have
17 explained,
18 [Barker] prejudice is concerned with
19 impediments to the ability of the defense
20 to make its own case (e.g., if defense
21 witnesses are made unavailable due to the
22 government’s delay); the opportunity for
8
1 the prosecution to prepare for trial does
2 not, on its own, amount to prejudice to
3 the defense.
4 Id. (citing Barker, 407 U.S. at 532); see also, e.g., United
5 States v. Toombs, 574 F.3d 1262, 1275 (10th Cir. 2009)
6 (concluding that a delay that permitted the government to
7 “procure the testimony of [a] co-defendant and the primary
8 witness against him [was not prejudicial] . . . in the sense
9 envisioned by the Barker analysis”).
10 Thus, Guerrero suffered little, if any, prejudice from
11 the delay in proceeding to trial. In light of Guerrero’s
12 weak showing on every other Barker factor, the delay –
13 almost entirely excusable and due often to the
14 understandable needs of Guerrero’s counsel - did not amount
15 to a violation of the Sixth Amendment.
16 C. Guerrero challenges the admission of the following
17 evidence: (1) Guerrero’s wounding in a drug-related
18 shooting; and (2) Guerrero’s arrest in North Carolina in
19 2002 while driving a car with methamphetamine stashed in a
20 hidden compartment (a “trap”).
21 1. The Shooting Evidence. The Government introduced,
22 over Guerrero’s objection, evidence that in April 2006 he
9
1 was shot on a highway in Pennsylvania and robbed of twenty
2 kilograms of cocaine. Guerrero characterizes this as
3 irrelevant and inflammatory “other acts” evidence under
4 Federal Rule of Evidence 404(b). However, the evidence was
5 admitted as direct evidence of the charged conspiracy, so
6 the strictures of Rule 404(b) have no bearing on
7 admissibility. Cf. United States v. Carboni, 204 F.3d 39,
8 44 (2d Cir. 2000) (“[E]vidence of uncharged criminal
9 activity is not considered other crimes evidence under
10 [Rule] 404(b) if it arose out of the same transaction or
11 series of transactions as the charged offense, if it is
12 inextricably intertwined with the evidence regarding the
13 charged offense, or if it is necessary to complete the story
14 of the crime on trial.”).
15 Guerrero also objects on the ground that its “probative
16 value is substantially outweighed by a danger of . . .
17 unfair prejudice.” Fed. R. Evid. 403. Prejudice is
18 “unfair” only if it “involves some adverse effect . . .
19 beyond tending to prove the fact or issue that justified its
20 admission into evidence.” Perry v. Ethan Allen, Inc., 115
21 F.3d 143, 151 (2d Cir. 1997) (citation omitted). Given a
22 trial court’s “broad discretion to balance the evidence’s
10
1 potential prejudice to the defendant against its probative
2 value,” our “review [of] the district court’s judgment
3 regarding the admissibility of a particular piece of
4 evidence under [Rule] 403, [] generally ‘maximize[s] its
5 probative value and minimize[s] its prejudicial effect.’”
6 United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002)
7 (citation and internal alteration omitted)).
8 We see no abuse of discretion in the district court’s
9 decision to admit this evidence, which consisted of an
10 officer’s testimony about his investigation of the shooting,
11 including his search of telephones recovered from in and
12 around Guerrero’s van, as well as wiretap recordings in
13 which Guerrero discussed capturing the robber and turning
14 him over to the supplier to satisfy his debt to the
15 supplier. The evidence was highly probative of the fact
16 that Guerrero conspired to smuggle drugs in the manner that
17 the Government alleged, and “explain[ed] why the Government
18 . . . never caught Guerrero himself with drugs, a fact that
19 the jury might otherwise have found significant.”
20 Appellee’s Br. 42-43. Nor was it “needlessly cumulative,”
21 Appellant’s Br. 39, in light of the testimony of Victor
22 Tavarez: it corroborated Tavarez’s testimony, and therefore
11
1 reinforced his credibility (which Guerrero attacked
2 throughout trial), while also adding “evidentiary depth” to
3 the Government’s case-in-chief. See Old Chief v. United
4 States, 519 U.S. 172, 190 (1997).
5 Finally, Guerrero argues that the fact that he was shot
6 should have been excluded under Rule 403 because it “left
7 the jury free impermissibly to infer . . . that Guerrero
8 participated in a conspiracy in which wanton violence was an
9 accepted way of conducting business.” Appellant’s Br. 43.
10 The Government, however, never accused Guerrero of
11 committing any acts of violence. In any event, such an
12 inference would not be unfair or impermissible: Guerrero
13 trafficked in vast quantities of cocaine through many
14 states, even after being shot and robbed, and wanted to turn
15 a traitorous associate over to his dealer in payment of a
16 debt. Guerrero’s counsel did not even request a limiting
17 instruction to preclude the jury from making this
18 “impermissible” inference, “indicat[ing] counsel’s own
19 difficulty in finding any prejudice.” United States v.
20 Canniff, 521 F.2d 565, 572 (2d Cir. 1975).
21 2. The Arrest Evidence. Finally, Guerrero objects to
22 the introduction of testimony and photographs regarding his
12
1 2002 arrest in North Carolina while driving a car with
2 methamphetamine stashed in a trap.
3 Although Rule 404(b) prohibits admission of “[e]vidence
4 of a crime, wrong, or other act . . . to prove a person’s
5 character in order to show that on a particular occasion the
6 person acted [in conformity therewith],” it expressly allows
7 the admission of such evidence as proof of knowledge and
8 intent. Fed. R. Evid. 404(b). This Court “has adopted an
9 ‘inclusionary’ approach to other act evidence under Rule
10 404(b), which allows such evidence to be admitted for any
11 purpose other than to demonstrate criminal propensity.”
12 United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004)
13 (per curiam). Absent abuse of discretion or “arbitrary and
14 irrational” action by the district court, its decision to
15 admit evidence pursuant to Rule 404(b) will be affirmed.
16 United States v. Lombardozzi, 491 F.3d 61, 78 (2d Cir.
17 2007).
18 To determine whether other act evidence was properly
19 admitted, we consider “whether (1) it was offered for a
20 proper purpose; (2) it was relevant to a material issue in
21 dispute; (3) its probative value is substantially outweighed
22 by its prejudicial effect; and (4) the trial court gave an
13
1 appropriate limiting instruction to the jury if so requested
2 by the defendant.” LaFlam, 369 F.3d at 156.
3 The evidence of Guerrero’s arrest was admitted under
4 Rule 404(b) as evidence of his intent to join the charged
5 conspiracy,4 which is a proper purpose under Rule 404(b).
6 See United States v. Ramirez-Amaya, 812 F.2d 813, 817 (2d
7 Cir. 1987). Guerrero claims that his defense case did not
8 place the issue of intent in dispute, but his own
9 submissions indicate otherwise. See Appellant’s Br. 46
10 (quoting Guerrero’s motion in limine: “he anticipates
11 arguing that he understood what his buyers intended to do,
12 but did not share their intent to distribute cocaine”).
13 Given Guerrero’s concession that he sold cars and trucks
14 outfitted with traps to persons whom he knew to be engaged
15 in drug distribution, intent to join the conspiracy was the
16 decisive issue. See Monaco, 194 F.3d at 386.
17 Nor was the arrest evidence “needlessly cumulative” or
18 otherwise inadmissible under Rule 403. The evidence spoke
19 directly to Guerrero’s intent, and also served to
4
To prove its conspiracy charge, the Government had
to show that Guerrero “agreed with another to commit the
offense; that he knowingly engaged in the conspiracy with
the specific intent to commit the offenses that were the
objects of the conspiracy; and that an overt act in
furtherance of the conspiracy was committed.” United States
v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (internal
quotation marks omitted).
14
1 corroborate Tavarez’s testimony implicating Guerrero in the
2 transport of controlled substances using traps. Because the
3 arrest evidence was of the same general character as the
4 charged offense, any prejudice accruing from it to Guerrero
5 was not unfair under Rule 403 - particularly in light of the
6 district court’s limiting instruction. Accordingly, it was
7 not an abuse of the district court’s broad discretion to
8 admit the arrest evidence.
9 Even if the District Court did err in admitting the
10 arrest evidence, any error was harmless given the strength
11 of the Government’s case. See United States v. Madori, 419
12 F.3d 159, 168 (2d Cir. 2005) (“A district court's decision
13 to admit evidence is subject to harmless error analysis.”).
14 In conducting harmless error review, we consider the
15 following factors: “(1) the overall strength of the
16 prosecution's case; (2) the prosecutor's conduct with
17 respect to the improperly admitted evidence; (3) the
18 importance of the wrongly admitted [evidence]; and (4)
19 whether such evidence was cumulative of other properly
20 admitted evidence.” United States v. Kaplan, 490 F.3d 110,
21 123 (2d Cir. 2007) (internal citations omitted). We have
22 repeatedly held that the strength of the government’s case
23 is the most critical factor in assessing whether error was
15
1 harmless. See, e.g., United States v. Lombardozzi, 491 F.3d
2 61, 76 (2d Cir. 2007).
3 Here, although the Government made use of the arrest
4 evidence during summation and rebuttal, the case against
5 Guerrero was indisputably strong. Tavarez provided
6 extensive testimony about Guerrero’s participation in the
7 conspiracy, including his central role in organizing the
8 trafficking of dozens of kilos of cocaine. Several of
9 Guerrero's recorded conversations with co-conspirators were
10 heard by the jury. Notably, Tavarez’s explanation of the
11 shooting was substantiated by a wiretap recording from after
12 the shooting in which Guerrero proposes capturing the robber
13 and turning him over to his supplier in order to satisfy his
14 debt. Additionally, the jury heard evidence that law
15 enforcement officers seized a Honda Civic outfitted with a
16 trap holding 5 kilos of cocaine, which Guerrero said on a
17 taped call belonged to him. Guerrero’s defense did nothing
18 to call into question this damaging evidence. Finally, the
19 district court gave a limiting instruction that the arrest
20 evidence could not be used to show inherent character or
21 propensity to crime. Given the weight of the evidence
22 against Guerrero and the limiting instruction we can
23 “conclude with fair assurance” that the introduction of the
24 arrest evidence “did not substantially influence the jury.”
16
1 United States v. McCallum, 584 F.3d 471, 477-78 (2d Cir.
2 2009) (internal citations omitted).
3 Conclusion
4 For the foregoing reasons, and finding no merit in
5 Guerrero’s other arguments, we hereby AFFIRM the judgment of
6 the district court.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
17