14-1596-cr
United States v. Soto
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
18th day of November, two thousand and fifteen.
Present:
PIERRE N. LEVAL,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 14-1596-cr
ANIBAL RAMOS, JOEL CABRERA, WILLIAM ZACCHI, CHRISTOPHER
HERNANDEZ, MICHAEL AVILES, LATRELL RIDDLES, CHARITIZA
QUINTANA, also known as Chari, YASMINE ZELAYANDIA,
JACQUELINE HERNANDEZ,
Defendants,
ANIBAL SOTO, also known as Sealed Defendant 1,
Defendant-Appellant.
____________________________________________________
For Defendant-Appellant: LAWRENCE GERZOG, New York, NY.
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For Appellee: MICHAEL D. MAIMIN (Hadassa Waxman and Michael A. Levy on
the brief), Assistant United States Attorneys, for Preet Bharara,
United States Attorney for the Southern District of New York,
New York, NY.
____________________________________________________
Appeal from a judgment of the United States District Court for the Southern District of
New York (Patterson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Anibal Soto (“Soto”) appeals from a May 1, 2014 judgment of conviction entered in the
United States District Court for the Southern District of New York (Patterson, J.). A jury found
Soto guilty of kidnapping and conspiracy to commit kidnapping in violation of 18 U.S.C. §§
1201(a) and 1201(c) and was sentenced principally to 210 months’ imprisonment. In this appeal,
Soto argues that the government’s evidence was insufficient to support the jury’s finding beyond
a reasonable doubt that a telephone was used in furtherance of the kidnapping and that the
district court violated the defendant’s constitutional rights, and abused its discretion, when it
admitted into evidence a telephone call between third parties. We assume the parties’ familiarity
with the underlying facts, procedural history, and issues on appeal. For the reasons stated below,
we affirm.
With regard to Soto’s claim that the government failed to produce sufficient evidence to
satisfy the jurisdictional element of 18 U.S.C. § 1201(a) we must view the evidence “in the light
most favorable to the government.” United States v. George, 779 F.3d 113, 115 (2d Cir. 2015).
This court will not disturb a jury’s verdict unless the evidence is “so meager that no reasonable
jury could find guilt beyond a reasonable doubt.” United States v. Cuti, 720 F.3d 453, 461 (2d
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Cir. 2013). We review a preserved claim de novo. United States v. Geibel, 369 F.3d 682, 689 (2d
Cir. 2004).
18 U.S.C. § 1201(a) makes it a crime to kidnap any person when the offender “uses the
mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or
in furtherance of the commission of the offense.” 18 U.S.C. § 1201(a). We have held that even
an intrastate telephone call constitutes the use of a facility of interstate commerce, in connection
with the statute criminalizing murder-for-hire, 18 U.S.C. § 1958, which uses the same term as the
kidnapping statute. United States v. Perez, 414 F.3d 302, 305 (2d Cir. 2005). See also United
States v. Mejia, 545 F.3d 179, 203 (2d Cir. 2008). Alexis Rosario (“Rosario”) testified that he
was kidnapped by Anibal Ramos (“Ramos”) and thrown in the back of his car. Rosario’s
testimony—that during the car ride Ramos “sounded like he was on the phone”—combined with
the cell-site map and cell logs, which a reasonable jury could conclude evidenced that calls were
made from Ramos’s phone to Soto’s shortly before and during the kidnapping, is sufficient for a
reasonable fact finder to conclude that Ramos used a telephone during the kidnapping. App. 28.
Rosario testified further that during Ramos’s phone conversation he said, “Yea, I got this n****
right now. I’m going over right now.” App. 28. Based on that evidence, a reasonable juror could
infer that Rosario was speaking to Soto or another co-conspirator about the kidnapping that he
was in the midst of committing. The government’s evidence was sufficient for a reasonable juror
to find beyond a reasonable doubt that the jurisdictional element under 18 U.S.C. §1201(a) was
satisfied.
Soto argues that the district court erred by admitting into evidence a private phone
conversation (the “recording”) between Ramos and his incarcerated drug supplier, Israel Ayala
(“Ayala”). In the recording Ramos admits that he and Soto had participated in Rosario’s
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kidnapping and torture.1 Soto contends that the district court violated his Sixth Amendment right
of confrontation and that the recording was inadmissible hearsay.
As to Soto’s constitutional challenge, we review “alleged violations of the Confrontation
Clause de novo, subject to harmless error analysis.” United States v. Jass, 569 F.3d 47, 55 (2d
Cir. 2009) (internal quotation marks and alterations omitted). The Confrontation Clause bars
“admission of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53–54 (2004). An out-of-court statement is testimonial if
the “primary purpose” underlying it was to establish an evidentiary record in a manner that might
reasonably be expected to be used in a later legal proceeding. Bullcoming v. New Mexico, 131
S.Ct. 2705, 2720 (2011) (Sotomayor, J., concurring); see generally Crawford, 541 U.S. at 51–52.
Here, it is clear the statement at issue was nontestimonial, and neither participant intended it to
be used at trial. The district court did not violate Soto’s constitutional rights when it admitted the
recording into evidence. The “Confrontation Clause simply has no application to nontestimonial
statements.” United States v. Feliz, 467 F.3d 227, 231 (2d Cir. 2006).
Turning to Soto’s hearsay argument, we review a district court’s evidentiary ruling for
abuse of discretion subject to harmless error analysis. United States v. Dhinsa, 243 F.3d 635, 649
(2d Cir. 2001). An error is harmless if we “can conclude that the proof at issue was unimportant
in relation to everything else the jury considered on the issue in question, as revealed in the
record.” United States v. Paulino, 445 F.3d 211, 219 (2d Cir. 2006) (internal quotation marks
1
Although the statement at issue was a single utterance made by Ramos, during the proceedings
below, Soto argued that if the statement was admitted, the district court should also admit the
entire recording to provide context. Soto, thus, contests the admissibility of Ramos’s isolated
statement but not the admissibility of the recording in its entirety.
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omitted). We need not decide whether the district court abused its discretion when it admitted the
recording because other evidence—including Rosario’s testimony, DNA evidence, and video
evidence—overwhelmingly established that Soto participated in Rosario’s kidnapping and
torture.
We have considered the defendant’s remaining arguments, and find them to be without
merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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