United States v. Deandrade

08-4815-cr
United States v. Deandrade

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2009
6
7
8 (Submitted: December 7, 2009 Decided: March 12, 2010)
9
10 Docket No. 08-4815-cr
11
12 - - - - - - - - - - - - - - - - - - - -x
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 - v.-
19
20 DANIEL DEANDRADE,
21
22 Defendant-Appellant.
23
24 - - - - - - - - - - - - - - - - - - - -x
25

26 Before: JACOBS, Chief Judge, HALL, Circuit Judge,
27 and MURTHA, District Judge.*
28
29 Appeal from a judgment of conviction, entered in the

30 United States District Court for the Southern District of

31 New York (Sand, J.), on the grounds (1) that the district

32 court improperly denied defendant’s two motions for a

33 mistrial after reference was made to his incarceration

*
J. Garvan Murtha, Senior Judge of the United States
District Court for the District of Vermont, sitting by
designation.
1 during trial and (2) that the sentence took account of a

2 non-jury juvenile conviction, in violation of Apprendi v.

3 New Jersey, 530 U.S. 466 (2000). We affirm both the

4 conviction and the sentence.

5 Arza Feldman, Feldman and
6 Feldman, Uniondale, New York,
7 for Appellant.
8
9 Preet Bharara, John T. Zach,
10 Julian J. Moore, and Iris Lan,
11 United States Attorney’s Office
12 of the Southern District of New
13 York, New York, New York, for
14 Appellee.
15
16
17 DENNIS JACOBS, Chief Judge:
18
19 Defendant-Appellant Daniel Deandrade appeals from a

20 judgment, entered following a 2008 jury trial in the United

21 States District Court for the Southern District of New York

22 (Sand, J.), convicting him of two felony narcotics offenses

23 and sentencing him to two concurrent terms of 300 months’

24 imprisonment. He appeals principally on the grounds that

25 (1) references to his incarceration during trial, made by

26 two cooperating witnesses, impaired the presumption of

27 innocence, and that the district court should have granted

28 his motions for a mistrial premised on Estelle v. Williams,

29 425 U.S. 501 (1976); and (2) the sentence improperly took

2
1 account of a non-jury juvenile conviction in violation of

2 Apprendi v. New Jersey, 530 U.S. 466 (2000). Deandrade also

3 raises a variety of other challenges, including ineffective

4 assistance of counsel. We affirm the conviction and the

5 sentence.

6

7 I

8 On January 8, 2008, the government filed a two-count

9 indictment in connection with Deandrade’s involvement in two

10 drug distribution rings between 1999 and 2006, one in the

11 Bronx, the other in Utica, New York. Count One charged

12 conspiracy to distribute and to possess with intent to

13 distribute 50 grams or more of cocaine base (“crack”), in

14 violation of 21 U.S.C. § 846. Count Two charged

15 distribution and possession with intent to distribute 50

16 grams or more of crack, in violation of 21 U.S.C.

17 §§ 841(a)(1), (b)(1)(A).

18 Pre-trial, the government filed a prior felony

19 information specifying that in December 1990 Deandrade was

20 convicted in Bronx County Family Court of the felony offense

21 of attempted criminal sale of a controlled substance in the

22 fifth degree. The government introduced this juvenile drug

3
1 offense because, under federal law, a second felony drug

2 conviction triggers a mandatory minimum sentence of 20 years

3 (with a maximum of life imprisonment). See 21 U.S.C.

4 § 841(b)(1)(A). Deandrade’s competing characterization of

5 that proceeding is that he was “adjudicated a juvenile

6 delinquent.”

7 The government’s case consisted of Deandrade’s own

8 post-arrest statement and the testimony of three cooperating

9 witnesses. During the government’s examination of two of

10 these witnesses, testimony was elicited (perhaps

11 inadvertently) that Deandrade was incarcerated during the

12 trial. Both times, Deandrade objected and moved for a

13 mistrial, the court denied the motions, and the prosecutor

14 shifted the questioning to a different topic. The

15 government did not later reference this evidence during the

16 trial.

17 The jury convicted Deandrade of both counts on April

18 17, 2008. Before sentencing, the Probation Office submitted

19 a Pre-Sentence Report that calculated a Guideline Sentence

20 of 360 months to life imprisonment and recommended a

21 sentence of 360 months. On September 25, 2008, the district

22 court sentenced Deandrade to two concurrent terms of 300

4
1 months’ imprisonment.

2 On appeal, Deandrade submitted a counseled and a pro se

3 brief, each of which contests his conviction and his

4 sentence. As to his conviction, Deandrade argues that the

5 challenged testimony violated his right to be presumed

6 innocent, that the jury may have inferred that he was

7 incarcerated during trial because he was particularly

8 dangerous or a flight risk, that the district court

9 therefore abused its discretion in denying his motions for a

10 mistrial, and that the district court should have issued a

11 curative instruction--notwithstanding that he did not ask

12 for one. As to his sentence, Deandrade argues, first, that

13 his December 1990 juvenile adjudication is not a “prior

14 conviction” for purposes of 21 U.S.C. § 841(b)(1)(A); and

15 second, that, in any event, using his prior juvenile

16 adjudication to enhance his sentence violates Apprendi, 530

17 U.S. 466, because he had no right to a jury trial in that

18 adjudication. His pro se brief raises several other

19 arguments challenging both his conviction and sentence.

20

21 II

22 Deandrade cites two instances in which the government

5
1 elicited testimony from its cooperating witnesses that

2 Deandrade was incarcerated during trial. The first occurred

3 during the examination of Ian Martin:

4 AUSA: When was the last time you spoke with the
5 defendant?
6
7 Martin: On the bus yesterday.
8
9 . . .
10
11 AUSA: When you say on the bus yesterday,
12 explain that.
13
14 Martin: He just asked me what was going on.
15
16 AUSA: That’s the bus from where to where?
17
18 Martin: From MDC to the courthouse.
19
20 AUSA: Did you discuss your testimony today with
21 the defendant?
22
23 Martin: No.
24
25 AUSA: How would you describe your relationship
26 with the defendant at the time you were
27 dealing drugs with him?
28
29 Martin: We were good friends.
30
31 (emphasis added). In denying Deandrade’s motion for a

32 mistrial, the court acknowledged that it was “unfortunate

33 that it came out the way it did,” but concluded that it was

34 “appropriate for the government to seek to establish that

35 there had been some contact and some communication to negate

36 any suggestion of any greater contact and I think it’s a

6
1 relatively minor pleading matter and doesn’t warrant a

2 mistrial.”

3 The second instance came during the government’s

4 examination of Daniel Macias:

5 AUSA: Did you discuss the defendant’s case with
6 Mr. [Ian] Martin?
7
8 Macias: Daniel Deandrade?
9
10 AUSA: Right.
11
12 Macias: At the time I don’t believe Daniel was
13 in.
14
15 AUSA: Can you tell us how the Utica drug
16 business operated?
17
18 Macias: Utica was split into two sections. . . .
19
20 (emphasis added). Again, Deandrade moved for a mistrial,

21 and again the motion was denied.

22

23 B

24 We review the denial of a motion for a mistrial for

25 abuse of discretion. United States v. Carson, 52 F.3d 1173,

26 1188 (2d Cir. 1995).

27 “The presumption of innocence . . . is a basic

28 component of a fair trial under our system of criminal

29 justice.” Estelle, 425 U.S. at 503; see also Coffin v.

30 United States, 156 U.S. 432, 453 (1895). Accordingly,

7
1 “courts must be alert to factors that may undermine the

2 fairness of the fact-finding process.” Estelle, 425 U.S. at

3 503. We must consider “the likely effects [on the

4 presumption] of a particular procedure, based on reason,

5 principle, and common human experience.” Id. at 504. It

6 follows, for example, that a defendant typically cannot be

7 “compelled to go to trial in prison or jail clothing because

8 of the possible impairment of the presumption so basic to

9 the adversary system”; such clothing would provide the jury

10 a “constant reminder of the accused’s condition” and would

11 likely constitute “a continuing influence throughout the

12 trial. . . .” Id. at 504-05.2

13 This Court has applied Estelle and its principles in

14 several cases that are factually distinguishable from this

15 appeal. See, e.g., United States v. Gaines, 457 F.3d 238,

16 246 (2d Cir. 2006) (vacating a conviction because the jury

17 instructions allowed consideration of the defendant’s

18 interest in the outcome of the case and the resulting motive

19 to testify falsely); United States v. Oshatz, 912 F.2d 534,

20 539 (2d Cir. 1990) (prohibiting guilt-assuming

2
Deandrade wore civilian clothes while in the
courtroom during trial.
8
1 hypotheticals); United States v. Thomas, 757 F.2d 1359,

2 1363-65 (2d Cir. 1985) (holding that the practice of

3 impaneling an anonymous jury does not violate the

4 presumption of innocence). Several circuits, however, have

5 applied Estelle on facts that are more analogous to this

6 case; and the rule that emerges is that brief and fleeting

7 references are generally allowed, but extended comment is

8 impermissible. See, e.g., United States v. Washington, 462

9 F.3d 1124, 1136-39 (9th Cir. 2006) (finding no plain error

10 in failure to grant a mistrial in part because “referring to

11 a defendant’s incarceration is not constant as it is with

12 prison garb”); United States v. Atencio, 435 F.3d 1222, 1237

13 (10th Cir. 2006) (finding no violation in part because the

14 prosecutor made only an isolated comment that the defendant

15 was incarcerated pre-trial); United States v. Villabona-

16 Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995) (same); United

17 States v. Jackson, 549 F.2d 517, 527 n.9 (8th Cir. 1977)

18 (finding no violation where a juror’s glimpse of the

19 defendant in prison clothes was fleeting); see also Estelle,

20 425 U.S. at 504-05 (expressing concern over practices that

21 impair the presumption of innocence by constituting a

22 “continuing influence throughout the trial” and a “constant

9
1 reminder of the accused’s condition”).

2 We adopt that approach, and hold that a brief and

3 fleeting comment on the defendant’s incarceration during

4 trial, without more, does not impair the presumption of

5 innocence to such an extent that a mistrial is required.

6 Accordingly, the district court did not abuse its discretion

7 in denying Deandrade’s motions for a mistrial. The two

8 instances in which the government witnesses commented on

9 Deandrade’s incarceration during trial were isolated,

10 apparently unintentional on the part of the prosecution,3

11 and incidental to legitimate areas of inquiry; moreover,

12 notwithstanding the several comments comprising the first

13 instance, the government never referenced them thereafter.

14 See United States v. Castano, 999 F.2d 615, 618 (2d Cir.

15 1993) (concluding that it was “extremely unlikely” that

16 improperly admitted evidence contributed to the guilty

17 verdict because “[t]he introduction of the evidence was

18 inadvertent [and] . . . the prosecution did nothing to

19 emphasize the statements at the time they were made, and

3
The government argues that it did not seek to elicit
the fact that Deandrade was incarcerated during trial. That
is persuasive as to the second instance, and plausible as to
the first.
10
1 never referred to them thereafter”).

2

3 C

4 Deandrade also contends that the district court erred

5 in failing to issue a curative instruction prohibiting

6 consideration of the challenged testimony. It is unclear

7 whether Deandrade intends this argument to stand alone as a

8 ground for vacatur, or whether it is part of his mistrial

9 claim. Either way, Deandrade never requested a curative

10 instruction, and we therefore review his claim for plain

11 error. See United States v. Perrone, 936 F.2d 1403, 1413

12 (2d Cir. 1991). Plain error review allows (but does not

13 require) vacatur if the defendant proves: (1) error; (2)

14 that is “clear or obvious, rather than subject to reasonable

15 dispute”; (3) that affected substantial rights, “which in

16 the ordinary case means . . . that it affected the outcome

17 of the district court proceedings”; and (4) that “seriously

18 affect[s] the fairness, integrity or public reputation of

19 judicial proceedings.” Puckett v. United States, 129 S. Ct.

20 1423, 1429 (2009) (internal quotation marks and citations

21 omitted). Plain error review is “strictly circumscribed”

22 and “[m]eeting all four prongs is difficult, as it should

11
1 be.” Id. at 1428, 1429 (internal quotation marks and

2 citations omitted).

3 “Defense counsel’s failure to request specific

4 instructions may be overlooked where the prosecutor’s

5 misconduct is so prejudicial that no instruction could

6 mitigate its effects”; but “in less egregious cases, the

7 failure to request specific instructions before the jury

8 retires will limit the defense’s ability to complain about

9 the relative lack of curative measures for the first time on

10 appeal.” United States v. Melendez, 57 F.3d 238, 242 (2d

11 Cir. 1995). This is one of those “less egregious cases.”

12 The government never relied upon the challenged testimony,

13 and a curative instruction could easily have done more harm

14 than good by focusing the jurors on two allusive references

15 that they otherwise might have missed or construed as

16 innocuous.

17 Deandrade cites only United States v. Nixon, 779 F.2d

18 126, 133 (2d Cir. 1985); but Nixon does not address whether

19 a court commits plain error in failing to issue a curative

20 instruction sua sponte, and it is therefore of limited

21 utility to Deandrade. Accordingly, we affirm the

22 convictions.

12
1

2 III

3 In imposing the sentence of two concurrent terms of 300

4 months’ imprisonment, the district court determined that

5 Deandrade’s drug-related juvenile adjudication constituted a

6 “prior conviction” that triggered the 20-year mandatory

7 minimum under 21 U.S.C. § 841(b)(1)(A), and that Apprendi,

8 530 U.S. 466, was satisfied notwithstanding that Deandrade

9 was not afforded the right to a jury trial in the juvenile

10 proceeding. On appeal, Deandrade challenges both

11 determinations. We do not consider the merits of these

12 arguments, however, because it is clear that the sentence

13 was unaffected by Deandrade’s juvenile drug offense. See

14 Williams v. United States, 503 U.S. 193, 203 (1992) (remand

15 is inappropriate where “the error did not affect the

16 district court’s selection of the sentence imposed”).

17 The Guidelines sentence, correctly calculated by the

18 court, was 360 months to life--independent of any

19 consideration of the contested juvenile adjudication. More

20 specifically, his base offense level was 38 (because 344

21 kilograms of crack were attributed to him), and he suffered

22 a four-level enhancement for being the leader of a drug

13
1 distribution operation. See U.S. Sentencing Guidelines

2 Manual §§ 2D1.1(c)(1), 3B1.1(a). The combined offense level

3 of 42 called for a recommended Guideline sentence of 360

4 months to life. See id. at the Sentencing Table. The 300-

5 month sentence actually imposed exceeded (by 60 months) the

6 20-year mandatory minimum prescribed by § 841(b)(1)(A). It

7 is hard to see how any consideration of the juvenile

8 adjudication--which mattered only as to that mandatory

9 minimum--contributed to the sentence imposed. The district

10 court made clear that it did not:

11 I find that defendant would be subject to a 20-
12 year mandatory minimum if that [juvenile drug
13 offense] became a basis for the sentence. . . .
14 The presentence report lists the guidelines as
15 being 20 years to life, puts the floor at 20
16 because it proceeds on the correct assumption that
17 there is a 20-year mandatory sentence here. I
18 note, however, that the sentence is greater than
19 20 years without regard to the mandatory minimum,
20 that all that I say on that subject, and I’ve said
21 in the opinion which I’ve handed out, may be
22 regarded as dictum.
23
24 (emphasis added). It cannot matter whether the court’s

25 dicta was sound, and we neither endorse nor reject it.4 We

4
We note, without comment, that on similar facts the
Third Circuit has reached a different conclusion. See
United States v. Huggins, 467 F.3d 359, 361 (3d Cir. 2006)
(holding that a prior adjudication of delinquency may not be
counted as a conviction under 21 U.S.C. § 841(b)(1)(B)
because, unlike the Armed Criminal Career Act, Congress did
14
1 are satisfied that this consideration had no influence on

2 the sentence that was imposed.

3 For these reasons, we affirm the sentence.

4

5 IV

6 Deandrade’s pro se supplemental brief raises the

7 following claims: (1) the government lacked probable cause

8 for his arrest; (2) his post-arrest statement upon which the

9 government relied at trial should have been suppressed as

10 fruit of the poisonous tree; (3) the government perpetrated

11 a fraud on the court by falsifying documents; (4) the

12 government offered insufficient evidence on which to sustain

13 a conviction on either count; (5) the government offered

14 insufficient evidence that he was a leader of the drug

15 organization (for sentence-enhancement purposes); and (6)

16 his lawyer provided him constitutionally ineffective

17 assistance. We dismiss the ineffective assistance claim

18 without prejudice to it being raised in a future habeas

19 corpus petition. See United States v. Morris, 350 F.3d 32,

20 39 (2d Cir. 2003). We reject the remaining assignments of

not include a specific provision that a delinquency
adjudication should be considered a criminal conviction).
15
1 error as conclusory and, in any event, without merit.

2

3 CONCLUSION

4 For the foregoing reasons, we affirm the judgment of

5 the district court.

16