09-3413-cr
U nited States v. Plaza-A ndrades
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6 th day of October, two thousand ten.
PRESENT: ROGER J. MINER,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 09-3413-cr
IVAN PLAZA-ANDRADES,
Defendant-Appellant,
JOSE PIZARRO, a.k.a. Juan Gonzalez,
Defendant.*
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APPEARING FOR APPELLANT: STEPHEN LANCE CIMINO, ESQ., Syracuse,
New York.
APPEARING FOR APPELLEE: WILLIAM C. BROWN, Attorney (Lanny A.
Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney
*
The Clerk of the Court is directed to amend the caption to read as shown above.
General, on the brief), United States Department
of Justice, Criminal Division, Washington, D.C.,
for Richard S. Hartunian, United States Attorney
for the Northern District of New York, Syracuse,
New York.
Appeal from the United States District Court for the Northern District of New York
(David N. Hurd, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on August 10, 2009, is AFFIRMED.
Ivan Plaza-Andrades was convicted, following a jury trial, of conspiracy to possess
with intent to distribute and to distribute over five kilograms of cocaine, see 21 U.S.C.
§§ 841(b)(1)(A)(ii), 846, and attempted possession with intent to distribute over 500 grams
of cocaine, see id. §§ 841(b)(1)(B)(ii), 846. Sentenced principally to 121 months’
imprisonment, Plaza-Andrades now challenges (1) the sufficiency of the trial evidence
supporting his conviction on the conspiracy count,1 and (2) the district court’s denial of his
motion for a new trial. 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. Sufficiency Challenge
Although we review the sufficiency of the evidence de novo, see United States v.
Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010), defendant “bears a heavy burden because a
reviewing court must consider the evidence ‘in the light most favorable to the prosecution’
and uphold the conviction if ‘any rational trier of fact could have found the essential elements
1
Plaza-Andrades does not challenge his conviction on the attempt count.
2
of the crime beyond a reasonable doubt,’” United States v. Aguilar, 585 F.3d 652, 656 (2d
Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson)).
Plaza-Andrades does not dispute that the trial evidence established that, on eleven
occasions from July to November 2007, he paid Jose Pizarro to receive Express Mail
shipments of cocaine from Puerto Rico at various addresses in Syracuse, New York. He
maintains, however, that this evidence was insufficient to convict him of the charged
conspiracy because (a) his dealings with Pizarro fit within the buyer-seller exception for
conspiracy, and (b) the jury could only speculate as to the drug quantity. We reject both
arguments.
a. Buyer-Seller Exception
Although “[a] transfer of drugs from a seller to a buyer necessarily involves
agreement, however brief, on the distribution of a controlled substance from the former to
the latter,” United States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (internal quotation
marks omitted), the law deems such an agreement insufficient by itself to support a
conspiracy conviction, United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009). Plaza-
Andrades attempts to fit himself within this “narrow” exception, id.,2 by insisting that he
simply purchased drugs from Pizarro. The trial evidence does not support this assertion.
2
Plaza-Andrades’s reliance on United States v. Hawkins, No. 3:05cr58, 2007 WL
1732767 (D. Conn. June 15, 2007), to support his expansive buyer-seller argument is
misplaced in light of our reversal of that decision in United States v. Hawkins, 547 F.3d 66.
See also United States v. Parker, 554 F.3d at 236 (discussing Hawkins in noting appellant’s
“fail[ure] to appreciate how limited is the application of the buyer-seller exception”).
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Pizarro testified that Plaza-Andrades recruited him to work as a drug runner, receiving and
delivering packages of cocaine that were shipped from Puerto Rico to upstate New York
under Plaza-Andrades’s direction. Plaza-Andrades paid Pizarro $500 per shipment for his
services as a drug runner, far less than the $20,000 to $30,000 value of each shipment. We
assume, as we must, that the jury credited Pizarro’s testimony detailing a distribution
agreement between an employer and an employee rather than one between a buyer and a
seller. See, e.g., United States v. Burden, 600 F.3d 204, 214 (2d Cir. 2010); United States
v. Salmonese, 352 F.3d 608, 619 (2d Cir. 2003). Indeed, the documentary evidence
corroborated this account by showing that Plaza-Andrades himself sent several packages to
Puerto Rico, which the jury reasonably could have inferred contained payments to his actual
cocaine supplier. Meanwhile, no evidence indicated that Pizarro ever dealt with cocaine
sources in Puerto Rico, or played the role of an arms-length seller. Because the distribution
agreement between Plaza-Andrades and Pizarro was that of an employer and an employee,
not a buyer and seller, Plaza-Andrades cannot rely on the buyer-seller exception to challenge
his conspiracy conviction. This part of the sufficiency challenge fails on the merits.3
3
United States v. Carson, 702 F.2d 351 (2d Cir. 1983), on which Plaza-Andrades
relies, does not compel a different conclusion. There, we identified sufficient circumstantial
evidence to support a drug conspiracy conviction where defendant’s “furtive street-corner
activities” allowed the jury to infer drug transactions and the context of those activities
permitted an inference that defendant was knowingly facilitating a heroin sale. See id. at
361-62. Plaza-Andrades asserts that no similar circumstantial evidence established his
knowing joinder in the charged conspiracy, specifically, no evidence indicating that he
received payments from Pizarro, accounted to Pizarro for drugs sold or money received,
acknowledged acting on Pizarro’s behalf, or received instructions from Pizarro. These
omissions are irrelevant. Direct evidence, in the form of Pizarro’s testimony, established that
4
Viewing the trial evidence in the light most favorable to the government, we therefore
conclude that a reasonable jury could have found Plaza-Andrades guilty of conspiracy.
b. Drug Quantity
Plaza-Andrades does not dispute that the evidence established that Pizarro received
cocaine shipments on eleven occasions. Nor does he dispute that the November 2, 2007
shipment that led to his arrest contained more than the 500 grams specified in 21 U.S.C.
§ 841(b)(1)(B)(ii). He asserts, however, that the trial evidence was insufficient to permit the
jury to find beyond a reasonable doubt that the total quantity of cocaine involved in the
eleven shipments exceeded the five kilograms specified in 21 U.S.C. § 841(b)(1)(A)(ii). We
disagree. Pizarro testified that each of the eleven packages that he received for Plaza-
Andrades weighed roughly the same as the seized package, except for one heavier package
received in July. The seized package contained 1,244 grams, i.e., over one kilogram, of 79%
pure cocaine. On sufficiency review, we must assume the jury credited Pizarro’s testimony
and drew all reasonable inferences in favor of the government. See, e.g., United States v.
Heras, 609 F.3d 101, 103 (2d Cir. 2010). Applying this “deferential standard,” United States
v. Lombardozzi, 491 F.3d 61, 67 (2d Cir. 2007), we conclude that Pizarro’s testimony about
receiving eleven shipments of roughly the same weight of cocaine together with lab results
showing that the one seized shipment weighed more than one kilogram sufficiently supports
a finding of the necessary drug quantity, see United States v. Oluwanisola, 605 F.3d 124,
Pizarro worked for, took direction from, and accounted to Plaza-Andrades with respect to the
charged cocaine shipments, not the other way around. This evidence sufficed to support the
conspiracy conviction.
5
134-35 (2d Cir. 2010) (affirming conviction when evidence was sufficient to link defendant
to “the drug quantity in question”).
2. Denial of Motion for New Trial
We review the denial of a motion to grant a new trial under Fed. R. Crim. P. 33 for
abuse of discretion. See, e.g., United States v. Bell, 584 F.3d 478, 482-83 (2d Cir. 2009).
“It is well established that trial courts must defer to the jury’s resolution of the weight of the
evidence and the credibility of the witnesses. It is only where exceptional circumstances can
be demonstrated that the trial judge may intrude upon the jury function . . . .” Id. at 483
(quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) (requiring showing
of “manifest injustice”)). For a district court to grant relief under Rule 33, “‘[t]here must be
a real concern that an innocent person may have been convicted.’” United States v.
Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d at
1414). That is not this case. Because Plaza-Andrades’s argument that a new trial was
warranted simply restates his sufficiency challenge, which we have already rejected as
meritless, we identify no abuse of discretion in the district court’s decision that the manifest
injustice standard was not met here.
We have considered Plaza-Andrades’s other arguments on appeal and conclude that
they lack merit. Accordingly, we AFFIRM the August 10, 2009 judgment of the district
court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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