United States v. Olivo

15-3287-cr
United States v. Olivo

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 10th day of November, two thousand sixteen.

PRESENT: PIERRE N. LEVAL,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,

v. No. 15-3287-cr

ERNESTO OLIVO,
Defendant-Appellant.
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APPEARING FOR APPELLANT: RICHARD HARRIS ROSENBERG, Law
Office of Richard H. Rosenberg, New York,
New York.

APPEARING FOR APPELLEE: RUSSELL CAPONE, Assistant United States
Attorney (Adam S. Hickey, Assistant United
States Attorney, on the brief), for Preet Bharara,
United States Attorney for the Southern District
of New York, New York, New York.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Valerie E. Caproni, Judge).

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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on October 9, 2015, is AFFIRMED.

Defendant Ernesto Olivo appeals his conviction following trial of conspiracy to

traffic five kilograms or more of cocaine, 500 grams or more of mixtures containing

methamphetamine, and 50 grams or more of pure methamphetamine. See 21 U.S.C.

§§ 841(b)(1)(A), 846. Presently incarcerated, serving a below-Guidelines mandatory

minimum prison term of 10 years, Olivo challenges (1) the admission of hearsay

statements, (2) the prosecution’s misuse of certain hearsay statements in summation, and

(3) the sufficiency of the evidence supporting his conviction. We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1. Informant Hearsay

Olivo argues that the district court erred in allowing the government to elicit, over

objection, on redirect examination of a government agent, a confidential informant’s

(“CI’s”) out-of-court statement that Olivo had told the CI about an 18-kilogram cocaine

shipment from Ecuador to Miami. Olivo argues not only that the statement was

inadmissible as hearsay, but that its admission violated his Sixth Amendment right of

confrontation. See U.S. Const. amend. VI. He further argues that the government

compounded these errors by referencing the statement for its truth in summation. We

generally review a preserved challenge to the admissibility of evidence for abuse of

discretion. See United States v. Coplan, 703 F.3d 46, 82 (2d Cir. 2012).

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Where a defendant argues that the improper admission of hearsay evidence

violated the Confrontation Clause, our review is de novo, subject to harmless error. See

United States v. Jass, 569 F.3d 47, 55 (2d Cir. 2009). We review a challenged

summation comment “in the context of the entire trial” to determine if it “substantially

prejudiced” the defendant. United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012)

(internal quotation marks omitted). In so doing, we consider the seriousness of the

misconduct, any curative measures, and the certainty of the conviction absent the

improper statements. See United States v. Banki, 685 F.3d 99, 120 (2d Cir. 2011).

Applying these standards here, we conclude that even if the defense did not open

the door to admission of the challenged statement, cf. United States v. Rosa, 11 F.3d 315,

335 (2d Cir. 1993), its admission was harmless in light of the district court’s limiting

instructions, which made clear that the challenged CI statement was not to be considered

for its truth. Statements admitted for purposes other than establishing the truth of the

matter asserted raise neither hearsay nor Confrontation Clause concerns. See United

States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 89 (2d Cir. 2014) (holding that

statement received for purpose other than its truth does not raise hearsay concerns); see

also United States v. Paulino, 445 F.3d 211, 216–17 (2d Cir. 2006) (same re:

Confrontation Clause concerns) (citing Crawford v. Washington, 541 U.S. 36, 59 n.9

(2004)). We assume the jury followed the district court’s instructions on the issue.

See United States v. Stewart, 433 F.3d 273, 310 (2d Cir. 2006).

In its rebuttal summation, however, the prosecution appeared to cross the line

drawn by the district court and to reference the challenged statement for its truth. The

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mention was brief, and drew no immediate defense objection, as one might expect if

prejudicial error. Indeed, it was only when the district court, at the close of summations,

questioned the government’s use of the statement that defense counsel objected and

moved for a mistrial. Denying the motion, the district court thereafter twice instructed

the jury that the CI’s statement could not be considered for its truth. We presume the

jury followed these instructions, which were sufficient in this case to cure the error. See

id.

In any event, Olivo cannot show prejudice because other evidence persuasively

linked Olivo to the distribution of an additional 15 kilograms of cocaine. Moreover, the

jury found Olivo guilty of trafficking in quantities of methamphetamine substances and

pure methamphetamine, independently triggering the mandatory minimum sentence that

he is serving. See United States v. Zvi, 168 F.3d 49, 55–56 (2d Cir. 1999) (upholding

conspiracy conviction where jury found valid objects proved, even if other objects legally

deficient).

2. Text Messages

Olivo raises a hearsay challenge to the admission of various text messages found on

cell phones seized from his apartment. We need not decide if this particular challenge

was forfeited in the district court so as to be reviewed only for plain error because Olivo

cannot demonstrate any error.

A statement is not hearsay when it is made by the defendant himself, see Fed. R. Evid.

801(d)(2)(A), or by a coconspirator during and in furtherance of the conspiracy, see Fed.

R. Evid. 801(d)(2)(E). We review a district court’s factual findings regarding the

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conspiracy for clear error and its decision to admit coconspirator statements for abuse of

discretion, which we do not identify here. See United States v. Gupta, 747 F.3d 111,

124 (2d Cir. 2014). Certainly, there was ample “independent corroborating evidence”

that Olivo was a participant in the cocaine distribution conspiracy. See United States v.

Tellier, 83 F.3d 578, 580 (2d Cir. 1996). To the extent Olivo characterizes the text

messages as mere “chit chat” not in furtherance of the conspiracy, see United States v.

Diaz, 176 F.3d 52, 85 (2d Cir. 1999) (noting that “in furtherance” requirement not

satisfied by “mere idle chatter” (internal quotation marks omitted)), that argument is

belied by the statements themselves, which, though coded, plainly reference drug

trafficking, particularly when considered in light of the testimony of cooperating

witnesses detailing Olivo’s drug activities. The same conclusion applies to Olivo’s

argument that there is a lack of evidence identifying the persons communicating with

Olivo on the text messages or their roles in the conspiracies. The law does not require

proof of either in order to permit a preponderance finding (1) that a conspiracy existed,

(2) that the declarants were members of the conspiracy, and (3) that the statements were

made in furtherance thereof. See United States v. Coppola, 671 F.3d 220, 247 (2d Cir.

2012); United States v. Eppolito, 543 F.3d 25, 47–48 (2d Cir. 2008); United States v.

Provenzano, 615 F.2d 37, 45 (2d Cir. 1980) (noting that when sufficient evidence of

conspiracy is presented, evidence sufficient to connect it to additional co-conspirators

“need not be overwhelming” (quoting United States v. Head, 546 F.2d 6, 9–10 (2d Cir.

1976) (internal quotation marks omitted)). The district court did not abuse its discretion

in finding these elements satisfied here.

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3. Sufficiency of the Evidence

Olivo argues that the evidence was insufficient to prove a conspiracy to traffic in

five or more kilograms of cocaine and that the district court should not have allowed that

object of the conspiracy to be considered by the jury, as he requested in his motion

pursuant to Fed. R. Crim. P. 29(a). We construe the district court’s initial decision as

one reserving decision on the motion, and conclude that the court acted within its

discretion in so doing. See Fed. R. Crim. P. 29(b). At whatever point Rule 29 relief is

denied, we review the district court’s sufficiency determination de novo, considering “the

evidence in the light most favorable to the government, drawing all inferences in the

government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.”

United States v. Pierce, 785 F.3d 832, 838 (2d Cir. 2015) (internal quotation marks

omitted). When we do that here, we conclude that the evidence easily supported the

jury’s verdict as to the cocaine object of the conspiracy. Indeed, even discounting the

18 kilograms of cocaine shipped from Ecuador to Miami, as the district court did in

imposing sentence, record evidence linked Olivo to additional cocaine shipments of at

least 15 kilograms.1 Thus, Olivo’s sufficiency challenge fails on the merits.

1
Although Olivo dismisses the text messages’ references to drug quantity as
inconclusive, when we view the messages in the light most favorable to the government,
we must assume that the jury construed references to “work” and “keys” as kilogram
drug weights. See, e.g., J.A. 40, 47; Gov’t Add. 9, 11; see also Trial Tr. 225:14–18
(testimony by cooperating witness that “work” was code word for cocaine); Trial Tr.
528:13–529:7 (questioning undercover agent on use of code words).

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4. Conclusion

We have considered Olivo’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court