13‐1098(L)
United States of America v. Nelson Calderon, et al.
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 12th day of May, two thousand fifteen.
PRESENT: AMALYA L. KEARSE,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
______________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ Nos. 13‐1098, 13‐0766, 13‐2510,
13‐2740, 13‐2751
NELSON CALDERON, WILFREDO SANCHEZ, AKA KING FRITO, EVA
CARDOZA, ANGELO DELEON, AKA KING TRUTH,
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Defendants‐Appellants.*
______________________
FOR APPELLANTS: DONALD DUBOULAY, Law Office of Donald
Duboulay, New York, NY, for Defendant‐Appellant
Nelson Calderon; RANDALL D. UNGER, Law Offices of
Randall D. Unger, Bayside, NY (Steven G. Brill, Sullivan
& Brill, LLP, New York, NY on the brief), for Defendant‐
Appellant Wilfredo Sanchez; CHARLES S. HOCHBAUM,
Brooklyn, NY, for Defendant‐Appellant Eva Cardoza; Mark
S. DeMarco, Bronx, NY, for Defendant‐Appellant Angelo
DeLeon.
FOR APPELLEE: BENJAMIN ALLEE, Assistant United States Attorney
(Brian A. Jacobs, Assistant United States Attorney, on
the brief), for Preet Bharara, United States Attorney for
the Southern District of New York, New York, NY.
Appeals from the United States District Court for the Southern District of
New York (Cathy Seibel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgments against defendants DeLeon,
Calderon, and Sanchez are AFFIRMED; in No. 13‐2740, the judgment against
defendant Cardoza is AFFIRMED; in No. 13‐2751, the judgment against
defendant Cardoza is AFFIRMED in part and REVERSED in part.
Defendants‐Appellants Nelson Calderon, Wilfredo Sanchez, Eva Cardoza,
and Angelo DeLeon appeal from judgments of conviction entered on March 15,
* The Clerk of the Court is directed to amend the caption of this case as set forth above.
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2013, June 21, 2013, July 9, 2013, and January 23, 2013, respectively, in the United
States District Court for the Southern District of New York (Seibel, J.) following a
five‐week jury trial that ended on July 17, 2012. We assume the parties’
familiarity with the underlying facts, procedural history, and issues for review.
DeLeon argues that, inter alia, the evidence at trial was insufficient to
establish that he was guilty of conspiring to distribute marijuana because “[t]here
was a ‘variance’ between the indictment, which alleged a single conspiracy, and
the proof at trial, which, at best, tended to prove several independent
conspiracies.” DeLeon Br. at 16. We must affirm the conviction if “any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
omitted). Even if DeLeon were correct that the proof at trial demonstrated
multiple conspiracies, it is well established in this Circuit that where the jury
finds multiple conspiracies, “the jury should convict the defendant if it finds that
one of the proven conspiracies was the one alleged in the indictment and that the
defendant was a member of it.” United States v. Payne, 591 F.3d 46, 62 (2d Cir.
2010). On the record in this case, a reasonable juror could have found that
DeLeon possessed “some knowledge” of the unlawful aims and objectives of the
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conspiracy alleged in the indictment, whose “essential nature” was to distribute
drugs in Newburgh, and that DeLeon sold marijuana on the street from locations
controlled by the Latin Kings (see Tr. 432–33, 1913–16, 2598, 2877), split sales with
other Latin Kings members (see Tr. 436), hosted Latin Kings meetings (see Tr. 433,
2875–76), and held a leadership position in the Latin Kings (see Tr. 376–77). That
evidence was sufficient to prove the conspiracy. United States v. Salameh, 152
F.3d 88, 147–48 (2d Cir. 1998) (per curiam).
Calderon challenges, inter alia, his conviction for attempted witness
tampering on the ground that there was no evidence that he specifically
intended to influence future testimony, and challenges his conviction for
participating in a racketeering conspiracy on the ground that it is inconsistent
with his acquittal on the narcotics conspiracy charge. Although Calderon, while
not denying that he assaulted the witness, argues that the assault was only
retribution for the witness’s prior testimony about the Latin Kings, it was entirely
permissible for the jury to infer that the assault was intended also to deter the
witness from testifying against Calderon in the future. We must “credit[] every
inference that the jury might have drawn in favor of the government,” United
States v. Temple, 447 F.3d 130, 136–37 (2d Cir. 2006) (internal quotation marks
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omitted), because “the task of choosing among competing, permissible inferences
is for the fact‐finder, not for the reviewing court,” United States v. McDermott, 245
F.3d 133, 137 (2d Cir. 2001). Viewed in the light most favorable to the
Government, see United States v. Rosa, 17 F.3d 1531, 1542 (2d Cir. 1994), the
evidence supported the jury’s decision to convict Calderon on the attempted
witness tampering charge. Calderon’s challenge to his RICO conspiracy
conviction also fails because “a criminal defendant convicted by a jury on one
count [cannot] attack that conviction [merely] because it was inconsistent with
the jury’s verdict of acquittal on another count.” United States v. Powell, 469 U.S.
57, 58 (1984); see also id. at 69.
Cardoza was convicted of racketeering conspiracy, in violation of 18 U.S.C.
§ 1962(d), conspiracy to distribute narcotics, in violation of 21 U.S.C. §§
841(b)(1)(B), 846, accessory after the fact to murder, in violation of 18 U.S.C. § 3,
and managing a drug premises, in violation of 21 U.S.C. § 856(a)(2). We reject
Cardoza’s challenges to the convictions on the drug conspiracy, RICO
conspiracy, and stash house counts for the reasons that follow. Cardoza’s
conviction on the accessory count is reversed for the reasons stated in the
opinion issued simultaneously with this summary order.
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Cardoza argues that the trial evidence was insufficient to convict her of
participating in a racketeering conspiracy because she was not an official
member of the Latin Kings and never personally participated in the gang’s drug
transactions. Cardoza’s non‐membership in the gang does not foreclose her
participation in the charged conspiracy, and the evidence introduced at trial to
show that she participated in the conspiracy was substantial. Cardoza went on
missions with gang members, collected money from drug sales, advised drug
customers of gang member Steven Lewis’s location, and sold drugs and made
drug deliveries for the gang. Several times, narcotics customers gave cash for
drugs directly to Cardoza.
Cardoza also argues that by finding her not guilty of a number of counts,
the jury necessarily found that the evidence was insufficient on the RICO
conspiracy count and the jury must therefore have acted irrationally. As
discussed above, Cardoza’s position is inimical to established law that a
conviction on one count of an indictment may not be challenged because it is
inconsistent with an acquittal on another count. See Powell, 469 U.S. at 65–67.
DeLeon contends that the district court should have granted a mistrial
after a juror inquired of the courtroom deputy “how the personal information
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provided during jury selection will be protected,” arguing that this statement
shows that the jury engaged in prohibited premature deliberations. DeLeon Br.
at 10. DeLeon’s argument is without merit. The juror’s question was about
personal information; it did not “come[] within a common sense definition of
deliberation,” United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004). In any
event, Judge Seibel properly addressed the issue by reminding the jury about the
presumption of innocence and reiterating her previously given instructions not
to discuss the case prior to deliberations. See United States v. Thai, 29 F.3d 785,
803 (2d Cir. 1994).
Calderon argues that “[t]he district court erred in imposing a 4‐level role
enhancement on the basis that Mr. Calderon was a ‘leader’ of the racketeering
conspiracy.” Calderon Br. at 44. However, the district court made proper fact‐
findings when it applied the leadership enhancement, and those findings are not
clearly erroneous. See United States v. Ivezaj, 568 F.3d 88, 99 (2d Cir. 2009).
Calderon and Sanchez argue that the district court erred when it held them
responsible for more than the drug quantity connected to them personally at
trial. Calderon’s argument that he was involved with only heroin, and not
cocaine, is meritless. Although he apparently sold only heroin, there was
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evidence that Calderon was knowledgeable about the cocaine‐selling aspect of
the conspiracy and was a leader overall. The district court applied the proper
enhancement because, under well‐established law, Calderon and Sanchez were
responsible not only for the cocaine that they themselves conspired to sell but
also for the cocaine their co‐conspirators conspired to sell, because they knew of
their co‐conspirators’ illicit activities or the activities were reasonably foreseeable
by them. See United States v. Adams, 448 F.3d 492, 499 (2d Cir. 2006); United States
v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003). On this record, there can be no doubt
that Calderon and Sanchez knew their co‐conspirators would sell crack cocaine,
the distribution of which was central to their gang’s illicit activity.
Sanchez contends that the district court erred by considering, in
calculating the Guidelines range, illegal activity for which he was acquitted. This
argument has no merit. See, e.g., United States v. Vaughn, 430 F.3d 518, 527 (2d
Cir. 2005); cf. United States v. Watts, 519 U.S. 148, 157 (1997) (rejecting a Fifth
Amendment challenge to the use of acquitted conduct in sentencing).
Sanchez also argues that the district court erred in imposing a two‐level
enhancement for possession of a firearm. See U.S.S.G. § 2D1.1(b)(1). It is clear
from the record that Sanchez reasonably could have foreseen that firearms would
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be possessed in connection with his drug‐stashing and other drug‐related
activities. See United States v. Soto, 959 F.2d 1181, 1186–87 (2d Cir. 1992). His co‐
conspirators’ possession of firearms was plainly foreseeable to Sanchez given
that, inter alia, at the site of Scarlett’s death Sanchez himself carried a firearm.
Calderon, Cardoza, and Sanchez challenge their sentences as substantively
unreasonable. We reject these challenges because we find that the Guidelines‐
range sentences imposed on these co‐conspirators were not “shockingly high,
shockingly low, or otherwise unsupportable as a matter of law.” United States v.
Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
Cardoza argues that the indictment was constructively amended during
jury selection, when the district court gave the prospective jurors an overview of
the charges in reliance on an erroneously redacted indictment provided by the
Government. Cardoza was, however, on notice of the “core of criminality”
alleged in the superseding indictment—namely that, from 2007 through about
February 2011, Cardoza conspired to distribute drugs in Newburgh, New York.
See United States v. Banki, 685 F.3d 99, 118 (2d Cir. 2012) (internal quotation marks
omitted). Moreover, the day after Cardoza raised this objection, the district court
specifically and accurately clarified for the jury the charges against Cardoza.
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Cardoza does not claim error in this clarification, or in the court’s final
instructions at the close of trial, or in the verdict form, which listed separate
narcotics conspiracy counts and included special interrogatories. Because there
is not “a substantial likelihood that [she] may have been convicted of an offense
other than that charged,” United States v. DʹAmelio, 683 F.3d 412, 416 (2d Cir.
2012), Cardoza’s constructive‐amendment claim fails.
We have considered Appellants’ remaining arguments and find them to be
without merit. For the reasons stated above, the judgments of the district court
against DeLeon, Calderon, and Sanchez are AFFIRMED; in 13‐2740, the
judgment against defendant Cardoza is AFFIRMED. In 13‐2751, the judgment
against defendant Cardoza is AFFIRMED with respect to her convictions for
drug conspiracy, racketeering conspiracy, and managing a drug premises, for the
reasons stated above; that judgment is REVERSED to the extent that Cardoza
was convicted for being an accessory after the fact to murder, for the reasons
stated in the opinion filed simultaneously herewith.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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