United States v. Restrepo

12-2246-cr United States v. Restrepo 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 SUMMARY ORDER 5 6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 7 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 8 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 9 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN CITING A 10 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 11 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC 12 DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A 13 SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 14 REPRESENTED BY COUNSEL. 15 16 At a stated term of the United States Court of Appeals for the Second Circuit, 17 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 18 New York, on the 27th day of November, two thousand thirteen. 19 20 PRESENT: GERARD E. LYNCH, 21 SUSAN L. CARNEY, 22 CHRISTOPHER F. DRONEY, 23 Circuit Judges. 24 ------------------------------------------------------------------ 25 26 UNITED STATES OF AMERICA, 27 28 Appellee, 29 30 v. No. 12-2246-cr 31 32 CARLOS ARTURO PATINO RESTREPO, 33 AKA “Patemuro,” 34 35 Defendant-Appellant, 36 37 LUIS ESCOBAR AKA “Curramba”, AKA “Amaretto”, 38 LUIS HERNANDO GOMEZ BUSTAMENTE, AKA 39 “Rasguno”, ARCANGEL DE JESUS HENAO MONTOYA, 40 AKA “El Mocho”, ORLANDO SABOGAL ZULUAGA, 1 1 AKA “El Mono Sabogal”, AKA “Caraqueso”, AKA 2 “Alberto Sabogal”, JAIME MAYA DURAN, AKA 3 “Alejandro”, JHONNY CANO CORREA, AKA “Flechas”, 4 AKA “Santiago”, ALDEMAR RENDON, AKA “Mechas”, 5 JOSE DAGOBERTO FLORE RIOS, AKA “Chuma”, 6 GILBERTO SANCHEZ MONSALVE, AKA “Vitamina”, 7 ABELARDO ROJAS, AKA “El Mono”, JUAN CARLOS 8 GIRALDO FRANCO, AKA “Tortuga”, DAVINSON 9 GOMEZ O’CAMPO, AKA “Gordo”, JAIME ROJAS 10 FRANCO, MARTA AGUDELO CASTANO, AKA 11 “Marta Cano”, JULIA AGUDELO CASTANO, CARLOS 12 ALBERTO GOMEZ, AKA “El Nino”, AKA “Cejas”, JOSE 13 LUIS VALLEJO, ARIEL RODRIGUEZ, AKA “El Diablo”, 14 GABRIEL VILLANUEVA, AKA “Truchi”, HECTOR 15 ALONSO SALAZAR MALDONADO, AKA “Tornillo”, 16 JAIR RENDON, AKA “Negro Jair”, PEDRO BERMUDEZ, 17 AKA “El Arguiticto”, 18 19 Defendants. 20 ------------------------------------------------------------------ 21 22 APPEARING FOR APPELLANT: SUSAN C. WOLFE, ESQ., (Jeffrey C. Hoffman, on 23 the brief), Hoffman & Pollok, LLP, New York, 24 New York 25 26 APPEARING FOR APPELLEE: ALLEN L. BODE, (David C. James, on the brief) 27 Assistant United States Attorneys for Loretta E. 28 Lynch, United States Attorney for the Eastern 29 District of New York, Brooklyn, New York. *The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the caption above. 2 1 Appeal from a judgment of the United States District Court for the Eastern 2 District of New York (Wexler, J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 4 AND DECREED that the judgment of the district court is AFFIRMED. 5 Defendant-appellant Carlos Arturo Patino Restrepo (“Patino”)1 appeals from his 6 conviction, after a jury trial, for conspiracy to: (1) distribute and possess with intent to 7 distribute cocaine in violation of 21 U.S.C. § 846, (2) import cocaine into the United 8 States in violation of 21 U.S.C. § 963, and (3) distribute and import cocaine 9 internationally in violation of 21 U.S.C. § 963, alleging multiple constitutional violations 10 constituting reversible error. We assume the parties’ familiarity with the underlying 11 facts, to which we refer only as necessary to explain our decision to affirm the 12 conviction. 13 1. Challenges to Jury Selection 14 Patino argues that he was denied his Sixth Amendment right to be tried by an 15 impartial jury because the magistrate judge informed potential jurors during jury 16 selection that all testimony, even that of accomplice witnesses, must be accorded the 17 same weight at trial. Patino claims that, as a result of this instruction, empaneled jurors 18 evaluated the testimony of accomplice witnesses by a lesser standard of scrutiny than 19 the law requires. Patino argues that the early instruction severely prejudiced him 20 because the government’s case-in-chief consisted almost exclusively of the testimony of 21 accomplice witnesses. We agree with Patino that the magistrate judge’s explanation of 22 the law was insufficient, but we hold that Patino did not suffer any prejudice as a result. 23 The parties agree that we must review the instructional statement for plain error 24 because Patino did not raise his objection at trial. Fed. R. Crim. P. 30(d), 52(b); United 1The defendant’s proper surname is “Patino,” and the parties refer to him as such in their briefs. This summary order therefore refers to the defendant as “Patino.” 3 1 States v. Perez, 575 F.3d 164, 169 (2d Cir. 2009). Under a plain error standard of review, if 2 we find that the magistrate judge’s statements (1) constituted error, (2) that the error 3 was plain, and (3) that the error affected substantial rights, then we (4) have discretion 4 to correct the error if it seriously affects the fairness, integrity, or public reputation of 5 judicial proceedings. United States v. Botti, 711 F.3d 299, 310 (2d Cir. 2013). An error is 6 considered “plain” if the mistake is apparent at the time of appellate review and “is so 7 egregious and obvious as to make the trial judge and prosecutor derelict in permitting 8 it, despite the defendant’s failure to object.” United States v. Brown, 352 F.3d 654, 664-65 9 (2d Cir. 2003) (internal quotation marks omitted). A plain error affects the defendant’s 10 substantial rights where the error is prejudicial. United States v. Marcus, 628 F.3d 36, 42 11 (2d Cir. 2010). In the ordinary case, an error is prejudicial where there is a reasonable 12 probability that the error affected the outcome of the trial. Id. 13 The correct standard for evaluating accomplice witness testimony is not, as the 14 magistrate judge in this case maintained, to “treat [all witnesses] the same and give 15 them the same weight and consideration.” Mar. 21, 2011 Tr. at 73:23-24, A-162. Instead, 16 the court must draw the jury’s attention to the possible motivations of accomplice 17 witnesses and instruct jurors to examine those motivations when determining the 18 witnesses’ credibility during deliberations. United States v. Vaughn, 430 F.3d 518, 523-24 19 (2d Cir. 2005). District courts provide a sufficient instruction by intelligibly identifying 20 an accomplice witness’s possible motivations for the jury’s consideration. Id. 21 Where the court employs an incorrect or insufficient standard of the law in a 22 preliminary instruction, however, a defendant is not necessarily prejudiced. Instead, we 23 must examine the magistrate judge’s misstatements within the context of the jury 24 charge as a whole and the arguments made at trial. See Vaughn, 430 F.3d at 523, 524; see 25 also Botti, 711 F.3d at 310-11. Viewing the record as a whole, the magistrate judge’s error 26 did not ultimately prejudice Patino. During jury selection proceedings, the magistrate 4 1 judge repeatedly paired the challenged instruction with the caveat that the trial judge 2 would inform the jurors of the proper standard before their deliberations, which the 3 trial judge ultimately did provide in the final jury charge. The jury selection also 4 occurred over two weeks before the jury began its deliberations. As the United States 5 Supreme Court has observed, “comments of the court and counsel during voir dire were 6 surely a distant and convoluted memory by the time the jurors began their 7 deliberations.” Penry v. Johnson, 532 U.S. 782, 802 (2001). 8 Defense counsel also repeatedly challenged the credibility of the accomplice 9 witnesses throughout trial. Where a judge gives an incomplete accomplice witness 10 instruction before jury deliberations, the mistake is not fatal if the rest of the trial record 11 demonstrates that the jury was aware of the need to carefully scrutinize the accomplice 12 witnesses’ testimony. See, e.g., Vaughn, 430 F.3d at 522-24 (holding that the district 13 court’s failure to specifically inform jurors that they must scrutinize the testimony of 14 cooperating witnesses with regard to how those witnesses could benefit by testifying 15 was not prejudicial in light of the defense attorney’s extensive attacks of the accomplice 16 witnesses’ credibility during opening, cross examination, and summation); United States 17 v. Velez, 652 F.2d 258, 261 n.5 (2d Cir. 1981) (holding that although the trial judge failed 18 to instruct the jury to scrutinize the cooperating witness’s testimony, the error was not 19 prejudicial because defense counsel argued forcefully in his summation that the 20 accomplice witness was not credible). Here, Patino’s lawyer attacked the credibility of 21 the accomplice witnesses from the opening of the trial, calling the government’s 22 witnesses “admitted criminals, admitted drug traffickers, admitted killers, admitted 23 liars, admitted corrupt police officers, every single one of them with much to gain.” 24 Mar. 22, 2011 Tr. at 209:19-22, GA-112. The defense attorney emphasized during his 25 opening and closing statements that the jury was required to carefully scrutinize the 26 testimony of the accomplice witnesses because they had much to gain from their 5 1 testimony. Even the prosecution encouraged jurors to consider the accomplice 2 witnesses’ testimony carefully in light of their criminal backgrounds during his opening 3 statement. 4 Finally, the district judge provided thorough and correct instructions regarding 5 accomplice testimony in the jury charge. These instructions provided careful, detailed 6 explanations concerning how the jury should approach the testimony of accomplice 7 witnesses, cooperating witnesses, and witnesses promised favorable treatment or 8 immunity. The instructions identified why the jury should carefully scrutinize the 9 testimony of accomplice witnesses in light of how such witnesses stood to benefit from 10 their testimony as required by Vaughn. 430 F.3d at 523-24. Thus, the district court judge 11 ultimately properly instructed the jury concerning the appropriate weight to give 12 accomplice testimony during deliberations. Given the intervening events at trial and 13 before jury deliberations, the magistrate judge’s error during jury selection did not 14 ultimately prejudice Patino. We thus reject Patino’s argument that the magistrate 15 judge’s statements during jury selection constituted reversible error. 16 2. Ineffective Assistance of Counsel 17 Patino argues that his attorney’s failure to object to the magistrate judge’s 18 erroneous instruction during jury selection amounted to a denial of his Sixth 19 Amendment right to the effective assistance of counsel. We reject Patino’s contention 20 that his attorney’s failure to object constituted ineffective assistance of counsel because, 21 as we have already concluded, he suffered no prejudice as a result of the magistrate 22 judge’s erroneous statements. 23 When confronted with a claim of ineffective assistance of counsel on direct 24 appeal, we may: (1) decline to hear the claim, permitting the appellant to raise the issue 25 as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; 26 (2) remand the claim to the district court for necessary factfinding; or (3) decide the 6 1 claim on the record before us. United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). The 2 United States Supreme Court has expressed a view that the trial court is typically the 3 best forum for these claims. United States v. Massaro, 538 U.S. 500, 504-05 (2003). 4 Accordingly, the Second Circuit has a “baseline aversion to resolving ineffectiveness 5 claims on direct review.” Morris, 350 F.3d at 39 (internal citation and quotation marks 6 omitted). Nonetheless, if resolution of the ineffective assistance claim is either beyond 7 doubt or in the interest of justice, then we may address the merits on direct appeal. 8 United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004). 9 To succeed on a claim of ineffective assistance of counsel, a defendant must 10 satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 690, 693 11 (1984). First, the defendant must identify the acts or omissions of counsel that could not 12 have been the result of reasonable professional judgment. Id. at 690. Second, the 13 defendant must satisfy the prejudice prong set forth in Strickland by showing that any 14 deficiencies in counsel’s performance actually prejudiced the defendant. Id. at 692-93. 15 Specifically, the defendant must demonstrate that there is a reasonable probability that, 16 but for the unprofessional errors, the proceeding would have led to a different result. Id. 17 at 694. 18 Patino argues that his trial counsel’s failure to object to the magistrate judge’s 19 incorrect statements during jury selection was outside of the range of reasonably 20 professional conduct and ultimately prejudiced Patino. We need not decide whether 21 counsel’s failure to object to the erroneous instruction was deficient within the meaning 22 of Strickland’s performance prong because there is no reasonable probability that, but 23 for the failure to object, the result of Patino’s trial would have been different. See United 24 States v. Chin, 224 F.3d 121, 125 (2d Cir. 2000) (holding that because the defendant 25 suffered no prejudice, it was unnecessary to decide whether his attorney’s performance 26 fell below an objective standard of reasonableness). The defense attorney’s attacks on 7 1 the accomplice witnesses’ credibility throughout trial and the proper jury instructions 2 provided before deliberations remedied the magistrate judge’s erroneous statement 3 during jury selection. Patino ultimately suffered no prejudice as a result of his counsel’s 4 failure to object during jury selection, and we thus reject the contention that he did not 5 have effective assistance of counsel on that basis. 6 3. Multiple Conspiracies Instruction 7 Patino asserts that the district court committed reversible error by not giving the 8 specific multiple conspiracies instruction that he requested before deliberations. We see 9 no error in the district court’s charge, which conveyed the essence of the requested 10 instruction. 11 A multiple conspiracies charge is required where several different conspiracies 12 could be inferred from the evidence offered at trial. United States v. Aracri, 968 F.2d 1512, 13 1520 (2d Cir. 1992); United States v. Maldonado-Rivera, 922 F.2d 934, 962-63 (2d Cir. 1990). 14 The charge is designed to assist the jury in determining whether a defendant’s conduct 15 was part of the single, comprehensive conspiracy charged by reminding jurors to 16 separately consider each charged conspiracy and each defendant’s conduct. See Aracri, 17 968 F.2d at 1520. The need for such an instruction stems from the potential “‘spill over 18 effect’ of permitting testimony regarding one conspiracy to prejudice the mind of the 19 jury against the defendant who is not part of that conspiracy but another.” United States 20 v. Harris, 8 F.3d 943, 947 (2d Cir. 1993). 21 A proper multiple conspiracies instruction must stress that in order to return a 22 conviction, jurors are required to find that the single conspiracy charged existed and 23 that the individual defendant knowingly participated in that conspiracy. See United 24 States v. Berger, 224 F.3d 107, 114 (2d Cir. 2000). Providing an abbreviated multiple 25 conspiracies instruction does not constitute reversible error if the charge emphasizes 26 that there must be a finding of the single specific conspiracy charged and knowing 8 1 participation in the identified scheme by each defendant. Aracri, 968 F.2d at 1520-21. 2 Where a multiple conspiracies instruction is required but is not administered or is 3 articulated in a deficient manner, the failure constitutes reversible error only if the 4 appellant can demonstrate that he suffered substantial prejudice. Maldonado-Rivera, 922 5 F.2d at 962-63. The possibility of prejudice is diminished where the defendant is tried 6 alone. See Harris, 8 F.3d at 947; United States v. Aguilar, 352 F. App’x 522, 525 (2d Cir. 7 2009) (summary order). 8 Patino, who was tried as the sole defendant, requested a lengthy instruction 9 which urged that if jurors found that Patino did not engage in the charged drug 10 trafficking conspiracy, then the jurors were required to acquit him. The district court 11 ultimately phrased the multiple conspiracies instruction as follows: 12 13 You must decide whether the conspiracy charged in the indictment 14 existed, and if it did, who were some of its members. If you find that the 15 conspiracy charged did not exist, then you must return a not guilty 16 verdict, even though you may find that some other conspiracy existed. 17 Similarly, if you find that the defendant was not a member of the 18 conspiracy charged, then you must find the defendant not guilty, even 19 though that defendant may have been a member of some other 20 conspiracy. 21 Apr. 4, 2011 Tr. at 1451-52, A-303. 22 Even assuming without deciding that a multiple conspiracies instruction was 23 required in this single-defendant case, see Aguilar, 352 F. App’x at 525 (“In any event, a 24 multiple conspiracies charge is not called for simply because a defendant, standing trial 25 alone, is charged with participating in more than one conspiracy”), the district court’s 26 charge was sufficient. The instruction adequately stressed that jurors must find that the 27 single conspiracy charged existed and that Patino knowingly participated in that 28 conspiracy, as required by Berger, 224 F.3d at 114. The instruction also informed the 29 jurors that they must acquit Patino if they found that the conspiracy charged did not 9 1 exist or that the defendant engaged in a separate conspiracy that was not charged. See 2 Aracri, 968 F.2d at 1520. Thus, the district court’s articulation of the proper standard 3 satisfied the requirements for a multiple conspiracies instruction. There is also no 4 indication that Patino faced any prejudice as a result of the abbreviated instruction. 5 Therefore, we reject Patino’s contentions that no multiple conspiracies charge was given 6 or that he was prejudiced by the abbreviated charge. 7 4. Prosecutorial Misconduct During Summation 8 Patino alleges that the Assistant United States Attorney made inappropriate 9 remarks to the jury during his summation concerning the cooperating witnesses, 10 including, “We searched for that coconspirator whose character was above reproach …. 11 But you know, ladies and gentlemen, we couldn’t find such a person, and I submit to 12 you no such person exists.” Apr. 4, 2011 Tr. at 1404, A-291. Applying the plain error 13 standard to this unpreserved objection, we hold that the prosecutor’s closing remarks 14 constituted neither improper vouching nor the type of flagrant abuse that affects an 15 appellant’s substantial rights and requires reversal of the conviction. See United States v. 16 Williams, 690 F.3d 70, 75 (2d Cir. 2012); United States v. Carr, 424 F.3d 213, 227 (2d Cir. 17 2005). 18 It is improper for prosecutors to vouch for the testimony of government 19 witnesses because it could cause jurors to trust the government’s assessment of the 20 evidence rather than their own. See Williams, 690 F.3d at 76 (quoting United States v. 21 Newton, 369 F.3d 659, 681 (2d Cir. 2004)). A prosecutor is also specifically prohibited 22 from expressing his or her personal beliefs about the truth or falsity of any testimony or 23 evidence. Carr, 424 F.3d at 227. The prosecution is permitted, however, to respond to 24 defense arguments that “impugn[] its integrity or the integrity of its case, and when the 25 defense counsel have attacked the prosecutor’s credibility or the credibility of the 10 1 government agents, the prosecutor is entitled to reply with rebutting language suitable 2 to the occasion.” Id. (quoting United States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994)). 3 An improper remark by a prosecutor will justify a reversal by this Court “only if 4 it causes the defendant substantial prejudice by so infecting the trial with unfairness as 5 to make the resulting conviction a denial of due process.” Id. (internal quotation marks 6 omitted). In satisfying the plain error standard on appeal, a defendant-appellant must 7 demonstrate not only that the error was clear and obvious but also that the remark 8 constitutes “flagrant abuse” that “affected the appellant’s substantial rights, which in 9 the ordinary case means it affected the outcome of the district court proceedings, and 10 the error seriously affects the fairness, integrity or public reputation of judicial 11 proceedings.” Williams, 690 F.3d at 77 (internal citation, alterations, and quotation 12 marks omitted). The United States Supreme Court has specifically warned that “a 13 criminal conviction is not to be lightly overturned on the basis of a prosecutor’s 14 comments standing alone.” United States v. Young, 470 U.S. 1, 11 (1985); see also United 15 States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (“It is a ‘rare case’ in which improper 16 comments in a prosecutor’s summation are so prejudicial that a new trial is required.”) 17 (quoting Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir. 1990)). 18 The Assistant United States Attorney’s comments during summation did not 19 constitute improper vouching. The remarks do not suggest that jurors should trust the 20 government’s assessment of the witnesses’ credibility rather than their own or that the 21 prosecutors have information that was not presented to the jury. Instead, the prosecutor 22 attempted to respond to the defense counsel’s repeated attacks on the credibility of 23 accomplice witnesses as sanctioned by United States v. Thai and United States v. Carr. 24 Carr, 424 F.3d at 227 (quoting Thai, 29 F.3d at 807). Rather than vouching for the 25 credibility of these witnesses, these remarks acknowledged the witnesses’ potential 11 1 credibility problems. The arguments also did not mischaracterize the evidence as to 2 Patino’s role in the conspiracy. 3 The prosecutor’s remarks are questionable, however, for a different reason. In 4 stating that the government searched for a particular type of witness, but was unable to 5 find one, the prosecutor could be taken literally as providing the jury with unsworn 6 testimony, for which there was no foundation in the evidence, about the actual conduct 7 of the government’s investigation. But such a literal reading would be unrealistic. The 8 argument was presumably intended, and was likely understood, as a mere rhetorical 9 flourish on the common prosecutorial theme that “it would be preferable to have 10 unimpeachable witnesses, but criminals only share their secrets with other criminals.” 11 We have repeatedly warned prosecutors to avoid such first-person formulations, see 12 United States v. Nersesian, 824 F.2d 1294, 1328 (2d Cir. 1987) (warning that use of 13 personal pronoun “I” in summation is “poor practice”), and prosecutors would be well- 14 advised to avoid the formulation used here. But there is no likelihood that the jury was 15 misled about the argument the prosecutor was making. We therefore conclude that 16 these statements did not constitute the type of flagrant abuse that affects an appellant’s 17 substantial rights and requires reversal of the conviction. See Williams, 690 F.3d at 77; 18 Carr, 424 F.3d at 227. Thus, we reject Patino’s contention that the Assistant United States 19 Attorney’s comments during summation require the reversal of his conviction. 20 5. Alleged Brady Violations 21 Patino argues that his conviction should be vacated because the government 22 failed to produce the statements of four individuals, Jose Luis Vallejo Tangarife, Nelson 23 Cruz, Orlando Sabogal Zulaga, and Ivan Gonzalez-Bejarano, whom he alleges 24 possessed exculpatory or impeaching information tending to disprove that Patino 25 trafficked drugs with the Norte Valle Cartel in violation of Brady v. Maryland, 373 U.S. 26 83, 87-88 (1963). To establish a Brady violation, a petitioner must show that: (1) the 12 1 undisclosed evidence was favorable to him; (2) the evidence was in the state’s 2 possession and was suppressed, even if inadvertently; and (3) the defendant was 3 prejudiced as a result of the prosecution’s failure to disclose the evidence. Leka v. 4 Portuondo, 257 F.3d 89, 98 (2d Cir. 2001) (citing Strickler v. Greene, 527 U.S. 263, 281-82 5 (1999)). Evidence is not “suppressed” for Brady purposes if the defendant “either knew, 6 or should have known, of the essential facts permitting him to take advantage of any 7 exculpatory evidence.” DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006) (internal 8 citation and quotation marks omitted); see also United States v. LeRoy, 687 F.2d 610, 619 9 (2d Cir. 1982) (“Here [the defendant] clearly was on notice of the facts necessary for him 10 to take advantage of such exculpatory testimony as [the identified witnesses] might 11 conceivably furnish …. Accordingly, we conclude that the Government was under no 12 duty to advise [the defendant] of the allegedly exculpatory grand jury testimony.”). 13 After a careful review, we reject Patino’s allegations that the prosecutors 14 suppressed evidence in violation of Brady. Patino has not demonstrated that Jose Luis 15 Vallejo Tangarife possessed exculpatory or impeaching information that could serve as 16 the basis of a Brady violation. There is also no evidence that Patino’s attorney was 17 unaware of the potential testimony of the other three identified individuals, Nelson 18 Cruz, Orlando Sabogal Zulaga, and Ivan Gonzalez-Bejarano, prior to the trial, or that 19 the prosecutors attempted to conceal the existence of these witnesses or any statements 20 allegedly made by them. To the contrary, Patino’s attorney filed motions which 21 demonstrated that he was in possession of sufficient facts to know the identities of 22 witnesses who had provided potentially impeaching statements and the substance of 23 their communications with the government, specifically Nelson Cruz and Orlando 24 Sabogal Zulaga. Patino’s defense counsel also did not clearly indicate that he would 25 have called these witnesses at trial in light of his trial strategy. The record also 26 demonstrates that Patino’s defense attorney spoke with Ivan Gonzalez-Bejarano twice 13 1 and had him brought to the Eastern District of New York but chose not to call him at 2 the re-trial. Finally, Patino has failed to demonstrate that, even if the witnesses’ 3 statements were introduced at trial or the witnesses themselves testified to the vaguely 4 exculpatory or impeaching information Patino alleges they possess, that there was a 5 reasonable probability that this would have led to a different result. See Strickler, 527 6 U.S. at 280 (defining evidence as “material” for Brady purposes where “there is a 7 reasonable probability that, had the evidence been disclosed to the defense, the result of 8 the proceeding would have been different”) (internal quotation marks omitted). Thus, 9 we reject Patino’s argument that his conviction should be reversed due to Brady 10 violations. 11 6. Prosecutorial Misconduct Before the Grand Jury 12 Patino alleges that the Assistant United States Attorneys engaged in misconduct 13 before the grand jury concerning the use of hearsay testimony. After a review of the 14 grand jury minutes, we conclude that the Assistant United States Attorney who 15 presented to the grand jury provided a proper instruction regarding the hearsay used 16 before the grand jury and thus did not engage in any misconduct. We therefore reject 17 Patino’s allegations of prosecutorial misconduct as grounds for overturning his 18 conviction. 19 First, we reject the government’s contention that because Patino failed to 20 challenge the superseding indictment prior to re-trial he waived his prosecutorial 21 misconduct objection on appeal. See, e.g., United States v. Ruggiero, 934 F.2d 440, 444, 446- 22 48 (2d Cir. 1991) (permitting, without comment, an appeal from a final conviction 23 premised on the claim, among others, that the prosecutor engaged in prosecutorial 24 misconduct before the grand jury while obtaining an indictment); United States v. 25 Lombardozzi, 491 F.3d 61, 66, 79-80 (2d Cir. 2007) (same). 14 1 However, dismissal of an indictment following conviction is an extraordinary 2 remedy. This Court has stated that “[d]espite the high place the grand jury holds as an 3 instrument of justice, the social costs of dismissing an indictment because of an 4 imperfect grand jury proceeding are simply too high to accept when the defendant has 5 been convicted after a full and fair trial and no harm has been done.” United States v. 6 Brito, 907 F.2d 392, 394 (2d Cir. 1990) (internal citation, alterations, and quotation marks 7 omitted); see also Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56 (1988) 8 (expressing the same view); United States v. Mechanik, 475 U.S. 66, 70-71 (1986) (same). 9 In order for prosecutorial misconduct to require a dismissal of the indictment, the 10 prosecutor’s conduct must amount to “a knowing or reckless misleading of the grand 11 jury as to an essential fact,” Lombardozzi, 491 F.3d at 79 (internal citation and quotation 12 marks omitted), or “systematic and pervasive prosecutorial misconduct as would 13 undermine fundamental fairness.” Brito, 907 F.2d at 395 (internal quotation marks 14 omitted). 15 The government is permitted to use hearsay evidence during its presentation to 16 the grand jury; such use does not constitute prosecutorial misconduct where the jury is 17 properly informed regarding the nature of the testimony. Costello v. United States, 350 18 U.S. 359, 360-63 (1956). Relying solely on hearsay evidence may cause an indictment to 19 be invalid if “(1) the government misleads the grand jury into thinking it is receiving 20 firsthand testimony when it is in fact receiving hearsay or (2) if there is a high 21 probability that the defendant would not have been indicted had only nonhearsay 22 evidence been used.” Ruggiero, 934 F.2d at 447. 23 If the prosecutor provides an adequate instruction regarding the hearsay 24 testimony, jurors should not be misled about the quality of the evidence they are 25 receiving. In United States v. Ruggiero, we held that where the government fully 26 informed grand jurors about the hearsay nature of the evidence they were considering, 15 1 their opportunity to see the original evidence, and their proper independent function in 2 determining whether to return the indictment, grand jurors were not misled and the 3 indictment was valid. 934 F.2d at 447, 448; see also Brito, 907 F.2d at 396 (observing that 4 because “the prosecutor did warn the grand jurors, however clumsily, about the 5 hearsay nature of the agent’s testimony; and most importantly, the agent’s testimony to 6 the grand jury was concededly accurate[,]” the indictment was proper); but see United 7 States v. Hogan, 712 F.2d 757, 761-62 (2d Cir. 1983) (dismissing an indictment where the 8 prosecutor called the defendant a “real hoodlum” who should be “indicted as a ‘matter 9 of equity,’” and presented hearsay, double hearsay, speculation, and false evidence 10 resulting in the jury being misled by the presentation); United States v. Estepa, 471 F.2d 11 1132, 1135-36 (2d Cir. 1972) (dismissing an indictment where the agent who testified 12 had limited knowledge of the transaction at issue but likely misled grand jurors into 13 thinking he was providing eyewitness testimony). 14 Here, the Assistant United States Attorney making the presentation to the grand 15 jury provided a detailed introductory statement explaining that the testifying witness 16 would be presenting the condensed testimony of other witnesses who had already 17 testified. He explained that the witness would be relaying hearsay evidence and 18 testifying to events and transactions that he did not personally witness. The Assistant 19 United States Attorney also informed the grand jurors that they had a right to 20 supplement the hearsay evidence by requesting that witnesses with firsthand 21 knowledge testify before them. The complete transcripts of each witness’s testimony 22 were also made available for the grand jury’s review, and the Assistant United States 23 Attorney reminded the grand jurors of the transcripts’ accessibility. It was also clear 24 throughout the witness’s testimony that he was not testifying based on firsthand 25 knowledge but was rather reporting or summarizing the testimony of others. Therefore, 26 the grand jurors were fully informed about the nature of the testimony, and the 16 1 Assistant United States Attorney did not mislead the jury. It was also likely, under 2 Ruggiero, that Patino would have been indicted if solely nonhearsay evidence had been 3 used; in fact, the trial jury convicted him based upon the testimony of witnesses who 4 likely would have been called to testify before the grand jury had grand jurors 5 requested firsthand evidence. Ruggiero, 934 F.2d at 447. Patino’s other claims of abuse of 6 the grand jury process are also rejected. We thus reject Patino’s argument that we must 7 reverse his conviction on the basis of prosecutorial misconduct relating to the grand 8 jury presentation. 9 7. Violation of the Rule of Specialty 10 Finally, Patino challenges his conviction on the ground that the jury’s 11 consideration of pre-1997 evidence contravenes the Diplomatic Note by which he was 12 extradited from Colombia and thus violates the rule of specialty. We hold that there 13 was no violation of the rule of specialty in this case because the jury expressly convicted 14 Patino based only on conduct that occurred after December 17, 1997. 15 The rule of specialty is a principle of international law that prohibits extraditing 16 countries from prosecuting a defendant on charges other than those for which he was 17 specifically extradited. United States v. Levy, 25 F.3d 146, 159 (2d Cir. 1994). This doctrine 18 also requires an extraditing country to adhere to express limitations placed on 19 prosecution by the surrendering country. United States v. Cuevas, 496 F.3d 256, 262 (2d 20 Cir. 2007). Defendants who contest alleged violations of this rule pursuant to a treaty 21 between the United States and the surrendering country generally have standing to 22 contest perceived violations of the treaty. Id. Defendants from Colombia, however, are 23 extradited pursuant to Resolutions by the Foreign Ministry called Diplomatic Notes. We 24 have not yet decided whether a defendant has standing to allege violations of a 25 Diplomatic Note. See Cuevas, 496 F.3d at 262; see also United States v. Frankel, 443 F. 26 App’x 603, 606 (2d Cir. 2011) (summary order) (“We do not decide whether Frankel has 17 1 standing to assert the rule of specialty as a basis to challenge his sentence because his 2 argument fails on the merits.”); United States v. Lopez-Imitalo, 305 F. App’x 818, 819 (2d 3 Cir. 2009) (summary order) (“We do not decide whether Lopez-Imitalo has standing to 4 assert the rule of specialty as a basis to challenge his sentence because his argument fails 5 on the merits.”). 6 The Colombian Diplomatic Note permitting the United States to extradite Patino 7 states that Patino must not be “judged or condemned” for pre-December 17, 1997 8 conduct. Therefore, under the rule of specialty, Patino could be tried only for crimes 9 committed after December 17, 1997. Patino argues that submission of pre-December 17, 10 1997 evidence to the jury for consideration led to the jury “judging” him on the basis of 11 pre-December 17, 1997 evidence in reaching their ultimate guilty verdict. 12 We decline to address the question of whether Patino has standing to challenge 13 alleged violations of the Diplomatic Note because his argument fails on the merits. The 14 district court in this case provided the jury with special interrogatories which 15 specifically asked whether the jury found that the government proved the charges 16 beyond a reasonable doubt with evidence of Patino’s conduct after December 17, 1997. 17 The jury answered yes. The jury therefore did not “judge or condemn” Patino for 18 conduct prior to December 17, 1997. We reject Patino’s contentions otherwise. 19 We have considered all of Patino’s remaining arguments and find them to be 20 without merit. For the foregoing reasons, the judgment of the District Court is 21 AFFIRMED. 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk of Court 24 18