United States v. Gonzalez

08-0524-cr(L), 08-2342-cr(CON)
United States v. Gonzalez

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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of November, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 REENA RAGGI,
9 Circuit Judge,
10 JED S. RAKOFF,
11 District Judge.*
12
13 - - - - - - - - - - - - - - - - - - - -X
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 08-0524-cr(L)
19 08-2342-cr(CON)
20 DAVID GONZALEZ, PEDRO GONZALEZ,
21

*
The Honorable Jed S. Rakoff, of the United States
District Court for the Southern District of New York,
sitting by designation.
1
 1 Defendants-Appellants.**
2
3 - - - - - - - - - - - - - - - - - - - -X
4
5 APPEARING FOR APPELLANT: Marc Fernich, New York, NY, for
6 Defendant-Appellant Pedro
7 Gonzales.
8
9 Edward D. Wilford, (Karloff
10 Commissiong, on the brief), New
11 York, NY, for Defendant-
12 Appellant David Gonzales.
13
14 APPEARING FOR APPELLEE: Steve C. Lee, Assistant United
15 States Attorney (Daniel A.
16 Braun, Assistant United States
17 Attorney, on the brief), for
18 Preet Bharara, United States
19 Attorney for the Southern
20 District of New York, United
21 States Attorney’s Office for the
22 Southern District of New York,
23 New York, NY.
24
25 Appeal from judgments of the United States District
26 Court for the Southern District of New York (Preska, J.).
27
28 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
29 AND DECREED that the judgments of the district court be
30 AFFIRMED.
31
32 Pedro Gonzales and David Gonzales appeal from judgments
33 of conviction entered on May 6, 2008 and January 22, 2008
34 (respectively), following a three-week jury trial. We
35 assume the parties’ familiarity with the underlying facts,
36 the procedural history, and the issues presented for review.
37
38 [1] Pedro argues that the delay between his arrest in 2003
39 and the start of his trial in September 2007 was a violation
40 of his speedy trial rights. He emphasizes the one-year
41 delay between the first superseding indictment and the

**
The Clerk of the Court is directed to amend the
official caption to conform to the docket numbers listed
above.
2
 1 Department of Justice’s decision not to seek the death
2 penalty for his co-defendants.
3
4 The Speedy Trial Act “imposes a unitary time clock on
5 all co-defendants joined for trial.” United States v.
6 Vasquez, 918 F.2d 329, 337 (2d Cir. 1990). The unitary
7 clock begins with the running of the clock for the most
8 recently added defendant. United States v. Gambino, 59 F.3d
9 353, 362 (2d Cir. 1995). Any “reasonable period of delay”
10 excluded for one defendant is automatically excluded for all
11 defendants; for a defendant to challenge the
12 “reasonableness” of delay attributable to a co-defendant, he
13 must first have moved for severance. Vasquez, 918 F.2d at
14 336-37; see 18 U.S.C. § 3161(h)(6). Pedro concedes that his
15 attorney failed to make a written motion for severance
16 during that time period, but he argues that speedy trial
17 concerns raised on several occasions should be construed as
18 an oral motion to sever.
19
20 Pedro’s attorney clearly raised concerns about his
21 client’s speedy trial rights at an early date and mused
22 tentatively about bringing a severance motion. However, his
23 comments were always about the consequences of a potential
24 motion, should he choose to make one. See, e.g., Pedro
25 Gonzales Appendix (“PG App.”) at 109 (“[T]he basis for a
26 severance motion which I will be presenting to the Court . .
27 .”) (emphasis added); id. at 119 (“I intend to make a motion
28 which would include as relief severance of this case. . . .”
29 (emphasis added)). The statements by Pedro’s counsel
30 “cannot be measured by [their] unexpressed intention or
31 wants” and “should be treated as nothing but what [they]
32 actually [were].” See Johnson v. N.Y., New Haven & Hartford
33 R.R., 344 U.S. 48, 51 (1952).
34
35 In any event, the delay was reasonable between the
36 superseding indictment and the highly sensitive death
37 penalty decision. Moreover, the case was complex, and
38 additional time was necessary for discovery. Pedro
39 consented to several of the exclusions, and it is “plausible
40 to regard [a defendant’s] active participation and
41 acquiescence in such delays as itself a significant
42 indication of their reasonableness.” Vasquez, 918 F.2d at
43 337. Finally, many of the continuances were afforded (in
44 part) to allow Pedro’s counsel to research the formal motion
45 for severance that was never made. See, e.g., PG App. at
46 83-84.
47

3
 1 At oral argument, Pedro invited us to reconsider
2 Vasquez, and hold that a severance motion is not required to
3 challenge the reasonableness of delays attributable to a co-
4 defendant. We decline the invitation. The making of the
5 motion is important to give notice of a defendant’s claim of
6 speedy trial prejudice and to avoid gamesmanship in agreeing
7 to delays that are later challenged. Vasquez, 918 F.2d at
8 337.
9
10 The remainder of the time pre-trial was properly
11 excluded from the speedy trial clock under, among other
12 provisions, 18 U.S.C. § 3161(h)(1)(D) and § 3161(h)(7). As
13 to time excluded under (h)(7) to serve “the ends of
14 justice,” the record makes clear that the district court
15 understood the consequences of the delays and conducted the
16 required balancing under § 3161(h)(7)(B)(i)-(iv). See
17 United States v. Breen, 243 F.3d 591, 597 (2d Cir. 2001).
18
19 Pedro’s argument under the Sixth Amendment right to a
20 speedy trial is also unavailing. Of the four factors to be
21 considered under Barker v. Wingo, 407 U.S. 514, 530 (1972),
22 one favors Pedro (the length of the delay), while the others
23 favor the government: none of the delays were from
24 deliberate or bad faith efforts by the government; Pedro did
25 not press his speedy trial rights, only objecting to a few
26 of the exclusions; he made no showing of how the delay
27 impaired his defense (he called no witnesses and presented
28 no evidence at trial); and his argument that the delays
29 bolstered the government’s use of its cooperating witnesses
30 is speculative and unconvincing.
31
32 [2] Pedro and David argue that testimony about David’s
33 post-arrest statements was improperly redacted. The
34 argument comes down to the rule of completeness. See Fed.
35 R. Evid. 106. David made a post-arrest statement that Soto
36 robbed drug dealers; the government used it to tie Soto’s
37 murder to the drug conspiracy; it is contended that the jury
38 should also have heard David’s statement that Pedro kept
39 David out of the drug business to protect him.
40
41 The rule of completeness permits a defendant to
42 introduce the remainder of a statement not otherwise
43 admissible if it is “necessary to explain the admitted
44 portion, to place the admitted portion in context, to avoid
45 misleading the jury, or to ensure fair and impartial
46 understanding of the admitted portion.” United States v.
47 Castro, 813 F.2d 571, 576 (2d Cir. 1987). We review the

4
 1 district court’s application of the rule of completeness for
2 abuse of discretion. Id.
3
4 The admitted portion of David’s statement triggers none
5 of these concerns. Whether Soto was known to rob drug
6 dealers is an entirely separate issue from whether Pedro
7 sought to minimize David’s role in the conspiracy to protect
8 him; David’s comments about each issue were elicited by
9 separate questions of the investigator. The completeness
10 doctrine does not “require introduction of portions of a
11 statement that are neither explanatory of nor relevant to
12 the admitted passages.” United States v. Marin, 669 F.2d
13 73, 84 (2d Cir. 1982). David’s self-serving exculpatory
14 statement would be inadmissible hearsay even had he been
15 tried alone; the rule of completeness is not a mechanism to
16 bypass hearsay rules for any self-serving testimony. It was
17 within the district court’s discretion to conclude that the
18 admitted portion of David’s statements did not distort the
19 meaning of the full statement or exclude information that
20 was substantially exculpatory. See United States v.
21 Benitez, 920 F.2d 1080, 1086-87 (2d Cir. 1990).
22
23 [3] Pedro contends the district court improperly denied his
24 request for a jury charge about multiple conspiracies. A
25 criminal defendant is entitled to a jury instruction when
26 there is “some foundation in the proof” for it. United
27 States v. Dove, 916 F.2d 41, 47 (2d Cir. 1990). However, if
28 there is a variance between the single conspiracy charged
29 and multiple that have been proved at trial, we reverse only
30 upon a showing of substantial prejudice. United States v.
31 Cambindo Valencia, 609 F.2d 603, 625 (2d Cir. 1979).
32
33 Although Pedro had several different primary
34 accomplices during the life of the charged conspiracy,
35 Pedro’s presence was a constant throughout; changes in
36 membership “do not necessarily convert a single conspiracy
37 into multiple conspiracies, . . . especially where the
38 activity of a single person was ‘central to the involvement
39 of all.’” United States v. Eppolito, 543 F.3d 25, 48 (2d
40 Cir. 2008) (emphasis added) (citation omitted); see also
41 United States v. Vila, 599 F.2d 21, 24 (2d Cir. 1979) (“[A]
42 single conspiracy is not transposed into a multiple one
43 simply by lapse of time, change in membership, or a shifting
44 emphasis in its locale of operations.” (citation omitted)).
45
46 [4] The trial court admitted into evidence an IRS
47 certification that Pedro failed to file tax returns. Pedro

5
 1 could not cross-examine the records-holder, and on that
2 ground asserts a challenge under Melendez-Diaz v.
3 Massachusetts, 129 S. Ct. 2527 (2009). Melendez-Diaz
4 expanded the category of materials that cannot be introduced
5 without affording an opportunity to cross-examine the
6 preparer. Id. at 2532 (holding that affidavits reflecting
7 forensic determination that substance was cocaine triggered
8 Confrontation Clause rights). The government concedes that
9 the admission of the certificate of nonexistence likely
10 violated the Sixth Amendment right to confrontation.
11 Government Brief at 75.
12
13 Pedro did not object to the admission of the records at
14 trial, however. Unpreserved Confrontation Clause objections
15 are subjected to plain error review. United States v.
16 Dukagjini, 326 F.3d 45, 59 (2d Cir. 2002). The
17 certifications (that the IRS had no record of Pedro filing
18 tax returns from 1991-2003) suggested Pedro had no
19 legitimate source of income, leading to an inference that he
20 dealt drugs to buy his cars, residences, and businesses.
21 Pedro’s attorney, however, conceded at trial that Pedro was
22 a drug dealer. PG App. at 831 (“He was a marijuana dealer,
23 no question about that. He made money.”). The IRS records
24 were of minimal importance, and the other evidence
25 supporting his conviction was substantial, including
26 testimony by multiple cooperating co-conspirators, large
27 quantities of drugs provided to an informant by one of
28 Pedro’s partners, a consensual recording of a meeting
29 between a cooperating witness and one of Pedro’s partners
30 discussing a large drug deal, paperwork reflecting lavish
31 purchases, and a video showing a hidden “trap” to carry
32 drugs in one of his cars. Therefore, even if Pedro’s
33 Confrontation Clause rights were violated, the violations do
34 not constitute plain error or warrant reversal.
35
36 [5] Pedro argues that his lawyer rendered constitutionally
37 ineffective assistance in failing to contest a vehicle
38 seizure that produced evidence used at trial. This Court
39 addresses ineffective assistance claims on direct appeal
40 when their resolution is “beyond any doubt.” United States
41 v. Matos, 905 F.2d 30, 32 (2d Cir. 1990). Ineffective
42 assistance claims are governed by the two-part test from
43 Strickland v. Washington, 466 U.S. 668, 687 (1984).
44
45 This claim does not withstand the Strickland
46 requirement for a showing of prejudice. Id. The government
47 introduced documents retrieved from the car, and a video of

6
 1 a “drug trap” in the car was shown to the jury to bolster
2 the credibility of cooperating witness Geraldo, who
3 testified to the trap’s existence. The evidence from the
4 car was not central to the government’s case; if it had been
5 suppressed, overwhelming evidence (discussed above) would
6 nevertheless support the conviction. The trial counsel’s
7 error, if any, was therefore not “so serious as to deprive
8 the defendant of a fair trial,” id., and accordingly we
9 reject Pedro’s ineffective assistance claim.
10
11 [6] David argues there was an impermissible lowering of the
12 burden of proof for his conviction for murder in relation to
13 a drug conspiracy. At bottom, the argument appears to be
14 that the jury charge failed to require premeditation for the
15 18 U.S.C. § 924(j) count. Murder under § 924(j)(1) requires
16 proof of an “unlawful killing of a human being with malice
17 aforethought.” See 18 U.S.C. § 1111(a) (defining murder, as
18 referenced by § 924(j)(1)). The district court explained
19 that a subjective intent to kill was not required and that
20 “[t]he requisite malice can be found when the assailant acts
21 with awareness of a serious risk of death or serious bodily
22 harm.” PG App. at 965. This formulation is firmly
23 supported by our case law. See, e.g., United States v.
24 Velazquez, 246 F.3d 204, 214 (2d Cir. 2001) (“[I]n the
25 context of second-degree murder in federal law, the
26 requisite malice can in some circumstances be found when the
27 assailant acts with awareness of ‘a serious risk of death or
28 serious bodily harm.’” (emphasis and citation omitted)).
29 The district court therefore properly defined the standard
30 for 18 U.S.C. § 924(j), and there was no lowering of the
31 burden of proof.
32
33 [7] David claims his Confrontation Clause and due process
34 rights were violated where the trial court limited cross-
35 examination of the cooperating co-conspirators involved in
36 Soto’s murder. David sought to probe whether they pled
37 guilty to the murder as principals or as aiders and
38 abettors, and whether they understood the pleas they made.
39 For Confrontation Clause purposes, a trial judge has wide
40 latitude to impose reasonable limits on cross-examination to
41 avoid “harassment, prejudice, confusion of the issues, the
42 witness’ safety, or interrogation that is repetitive or only
43 marginally relevant.” Delaware v. Van Arsdall, 475 U.S.
44 673, 679 (1986) (emphasis added). Such a decision to limit
45 cross examination will be reversed only upon a showing of
46 abuse of discretion. United States v. Maldonado-Rivera, 922
47 F.2d 934, 956 (2d Cir. 1990).

7
 1 David’s questioning concerning the discussions the
2 witness had with his lawyer concerning the plea agreement
3 invaded the witness’s attorney-client privilege. David
4 further inquired as to whether the witness thought his prior
5 acts constituted the crimes to which he pled. These
6 questions sought to elicit a legal conclusion over a
7 complicated statutory scheme. These lines of questioning
8 were confusing, repetitive, and only marginally relevant;
9 the district court acted well within its discretion to limit
10 cross-examination.
11
12 [8] Among his challenges to the jury charge, David argues
13 that it improperly formulated the “substantive connection”
14 requirement of 21 U.S.C. § 848(e)(1)(a) and failed to
15 require a finding that aiding and abetting liability
16 requires membership in the drug conspiracy. We review jury
17 charges that were objected to at trial de novo,1 reversing
18 only “where a charge either failed to inform the jury
19 adequately of the law or misled the jury about the correct
20 legal rule,” United States v. Ford, 435 F.3d 204, 209-10 (2d
21 Cir. 2006) (citation omitted), and where the error is not
22 harmless. United States v. Amuso, 21 F.3d 1251, 1261 (2d
23 Cir. 1994).
24
25 The jury charge adequately instructed the jury.
26 David’s complaint about the “substantive connection”
27 formulation focuses on a passage in an aiding and abetting
28 instruction that David takes out of context; and he omits
29 any discussion about the district court’s prior, more
30 detailed formulation of the standard, see PG App. at 969-70,
31 which adequately instructed the jury on the substantive
32 connection requirement of 21 U.S.C. § 848(e)(1)(a). See
33 United States v. Desinor, 525 F.3d 193, 202 (2d Cir. 2008).
34
35 David cites no supporting authority for his claim that
36 aiding and abetting liability for § 848(e)(1)(a) requires
37 membership in the drug conspiracy in order to establish a
38 “substantive connection,” and that the jury must make an
39 explicit finding; the argument misconstrues the requirements
40 of aiding and abetting liability under 18 U.S.C. § 2.

1
David did not object to the charge on the ground that
it failed to restate the need for a “substantive” connection
between the murder and the charged conspiracy. We therefore
review that aspect of the charge only for plain error. See
United States v. Bell, 584 F.3d 478, 484 (2d Cir. 2009).
8
 1 Moreover, any error was harmless because the jury found that
2 he was a member of the drug conspiracy.
3
4 [9] David challenges the district court’s refusal to
5 suppress incriminating post-arrest statements he made on the
6 way to and at the precinct. In reviewing a challenged
7 suppression ruling, we review legal conclusions de novo and
8 factual findings for clear error, in the light most
9 favorable to the government. United States v. Ivezaj, 568
10 F.3d 88, 96 (2d Cir. 2009).
11
12 The district court found that David received oral
13 Miranda warnings on the way to the precinct and written
14 Miranda warnings at the precinct; in so doing, it was
15 entitled to credit the written Miranda sheet signed by David
16 at the station and the testimony of the detective about the
17 conversation in the car rather than David’s affidavit to the
18 contrary, which was factually inconsistent with documentary
19 evidence.
20
21 The totality of the circumstances support the
22 conclusion that David’s waivers of his Miranda rights were
23 voluntary: “the product of an essentially free and
24 unconstrained choice by [their] maker.” United States v.
25 Bye, 919 F.2d 6, 8-9 (2d Cir. 1990) (citation omitted).
26 David’s statements in the car were prompted by a
27 conversation he initiated to determine why he was being
28 detained; in the station, David was read his rights one-by-
29 one, initialed each one, took time to read the form, and
30 signed it.
31
32 For these reasons, the district court did not err in
33 denying David’s motion to suppress.
34
35 [10] David claims that there was insufficient evidence to
36 support his conviction for the narcotics conspiracy. To
37 succeed on a claim of insufficient evidence, a party has the
38 “heavy burden” of showing that “no rational trier of fact,
39 viewing the evidence in the light most favorable to the
40 government, could have found him guilty beyond a reasonable
41 doubt of the essential elements of the crimes charged.”
42 United States v. Desena, 287 F.3d 170, 176-77 (2d Cir.
43 2002). We consider all evidence introduced at trial, even
44 if it was improperly admitted. United States v. Cruz, 363
45 F.3d 187, 197 (2d Cir. 2004).
46
47

9
 1 There was sufficient evidence for a rational jury to
2 have found David guilty of the narcotics conspiracy count,
3 even if the evidence suggests that he did not play a major
4 role. Testimony by co-conspirators and his own inculpatory
5 post-arrest statements establish he sold marijuana for
6 Pedro, steered customers to co-conspirators, cleaned the
7 apartment where marijuana was grown, delivered money or
8 drugs to a known drug den, and participated in Soto’s murder
9 to protect Pedro’s drug business. The evidence did not need
10 to cover the entire twelve-year period alleged in the
11 indictment; without affirmative evidence of withdrawal, a
12 person’s participation in a conspiracy is presumed to
13 continue until the last overt act by any of the
14 conspirators. See United States v. Diaz, 176 F.3d 52, 98
15 (2d Cir. 1999).
16
17 [11] David contends the government failed to establish the
18 elements of murder through the use of a firearm in relation
19 to a drug conspiracy, in violation of 18 U.S.C. § 924(j).
20 To the extent he argues that the evidence does not establish
21 his membership in the conspiracy, it is duplicative of his
22 sufficiency of the evidence argument for the conspiracy
23 count discussed above. David also argues that he did not
24 have the knowledge or intent to bring about the death of
25 Soto. However, testimony about David’s confessions and from
26 his co-conspirators suggests that David: knew Soto was in a
27 drug-related dispute with Pedro; retrieved a firearm from
28 his apartment; pursued the victim; gave the gun to a co-
29 conspirator in the lobby where the victim was trapped;
30 cocked the gun after it jammed; and received and hid the gun
31 after the murder. These facts are sufficient for a rational
32 trier of fact to have found David had the requisite mental
33 state for conviction under § 924(j), either as a principal,
34 an aider or abettor, or through the Pinkerton charge.
35
36 We have considered the other arguments of David and Pedro
37 and conclude that they lack merit. For the foregoing
38 reasons, we hereby AFFIRM the judgments of the district
39 court.
40
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
45
46

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