United States v. Reyes

16-0344(L)
United States v. Reyes

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. CITATION TO A SUMMARY ORDER
7 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
8 APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
9 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10 OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
11 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13 At a stated term of the United States Court of Appeals for
14 the Second Circuit, held at the Thurgood Marshall United States
15 Courthouse, 40 Foley Square, in the City of New York, on the
16 13th day of January, two thousand seventeen.
17
18 PRESENT: DENNIS JACOBS,
19 SUSAN L. CARNEY,
20 Circuit Judges,
21 KATHERINE POLK FAILLA,
22 District Judge.*
23
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25
26 United States,
27 Appellee,
28
29 -v.- 16-0344(L)
30 16-739(con)
31 Ronaldo Reyes,
32 Defendant-Appellant.
33
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35

* Judge Katherine Polk Failla of the United States
District Court for the Southern District of New York, sitting
by designation.
1
1 FOR APPELLANT: Benjamin W. Hill, Dreyer Boyajian
2 LLP, Albany, NY.
3
4 FOR APPELLEE: Douglas G.N. Collyer, Paul D.
5 Silver, Assistant United States
6 Attorneys, for Richard S.
7 Hartunian, United States Attorney
8 for the Northern District of New
9 York, Albany, NY.
10
11 Appeal from a final order of the United States District Court
12 for the Northern District of New York (Scullin, J.).

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
14 DECREED that the judgment of the district court be AFFIRMED.
15
16 Ronaldo Reyes appeals from a judgment of conviction entered
17 in the United States District Court for the Northern District
18 of New York (Scullin, J.). Reyes was convicted after a jury trial
19 of one count of conspiring to bring and seven counts of bringing
20 aliens to the United States unlawfully for the purpose of
21 commercial advantage and private financial gain, in violation
22 of 8 U.S.C. § 1324(a). He was sentenced principally to a 60-month
23 term of imprisonment. We assume the parties’ familiarity with
24 the underlying facts, the procedural history, and the issues
25 presented for review.

26 1. Reyes was convicted for his role in smuggling aliens
27 on several dates. Reyes argues that his conviction on Counts
28 Three through Six, which relate to one instance of smuggling
29 four aliens, should be vacated because the only evidence
30 regarding his financial incentives was the testimony of a single
31 witness who could not testify that Reyes was paid or otherwise
32 committed the offense for commercial advantage or financial
33 gain.

34 “We review challenges to the sufficiency of evidence de
35 novo,” but while “view[ing] the evidence in the light most
36 favorable to the government, drawing all inferences in the
37 government’s favor and deferring to the jury’s assessments of
38 the witnesses’ credibility.” United States v. Pierce, 785 F.3d
39 832, 837-38 (2d Cir. 2015). “[T]he evidence must be viewed in

2
1 conjunction, not in isolation,” United States v. Persico, 645
2 F.3d 85, 104 (2d Cir. 2011), and “[w]e will sustain the jury’s
3 verdict if any rational trier of fact could have found the
4 essential elements of the crime beyond a reasonable doubt.”
5 Pierce, 785 F.3d at 838 (internal quotation marks omitted).

6 The evidence that Reyes was paid for the particular
7 smuggling charged in Counts Three through Six was
8 circumstantial; but taking it together, and viewing it in the
9 light most favorable to the government, there is enough for a
10 rational trier of fact to convict. Cooperating witness Clarisa
11 Gil-Corcino, who pleaded guilty to her role in the smuggling
12 in question, testified that: (1) Reyes had told Gil-Corcino that
13 he and his uncle were in the alien smuggling business and split
14 the profits; (2) one of the illegally transported aliens had
15 asked Gil-Corcino if she could find someone to transport her;
16 (3) Gil-Corcino asked Reyes what it would cost; (4) Reyes quoted
17 a price; and (5) Reyes offered to pay Gil-Corcino to pick up
18 aliens when they had made it across the border. Gil-Corcino
19 agreed and was caught in the act. A rational jury would be
20 entitled to credit that testimony and, considering its totality,
21 could find beyond a reasonable doubt that the aliens Gil-Corcino
22 picked up on the date charged in Counts Three through Six were
23 sent by Reyes, who had arranged their transport for profit as
24 part of a pattern of alien smuggling that provided sufficient
25 funds for Reyes to pay Gil-Corcino for her role.

26 2. Reyes argues that hearsay testimony elicited at trial
27 violated his Sixth Amendment rights and deprived him of a fair
28 trial. The testimony in question was not admitted, but was
29 erroneously elicited and subsequently stricken. The government
30 asked Gil-Corcino, “And [Reyes] got paid, right?” J.A. 184.
31 The district judge overruled Reyes’s objection, and Gil-Corcino
32 began to answer, “Yes, the illegals,” before the district judge
33 inquired into the basis for that testimony, realized it was
34 hearsay, and struck the question and the answer. J.A. 184-85.

35 The government concedes it was error to elicit Gil-Corcino’s
36 answer, which she could provide only on the basis of statements
37 by third parties. Her brief response was not received in
38 evidence, however: it was immediately stricken, it was not
39 mentioned again, and the jury was instructed to disregard

3
1 stricken testimony. Juries are generally presumed to “follow
2 the instructions they are given.” United States v. Agrawal, 726
3 F.3d 235, 258 (2d Cir. 2013). The evidence was easily sufficient
4 to sustain the conviction without Gil-Corcino’s interrupted
5 response to the government’s improper question. Reyes and the
6 government dispute whether the issue was sufficiently raised
7 in the district court, and therefore whether review is for plain
8 error, but in any event the stricken answer did not deprive Reyes
9 of a fair trial.

10 3. The district court admitted into evidence photographs
11 taken by a “Buckeye Cam” infrared camera placed in the woods
12 near the border. Reyes argues that the district court abused
13 its discretion because the images are of poor quality and lack
14 probative value, and because the Border Patrol Agent through
15 whose testimony the photographs were introduced could not
16 testify as to the camera’s precise location, or as to its
17 technological features.

18 Our review of the decision to admit such evidence “is highly
19 deferential in recognition of the district court’s superior
20 position to assess” it. United States v. Coppola, 671 F.3d 220,
21 244 (2d Cir. 2012) (quotations marks omitted). We will only
22 reverse the district court’s ruling as an abuse of discretion
23 if it “was arbitrary and irrational.” Id. We find no error in
24 this case.

25 The testimony about the camera’s placement and functioning
26 was sufficient to lay a foundation for the photographs’
27 admission. Reyes presents no argument that the images are
28 anything other than what they purport to be. If their grainy
29 quality or vagueness about the camera’s precise location
30 impaired the probative value of the images, their potential to
31 prejudice Reyes would be correspondingly reduced. He presents
32 no plausible argument that he was unfairly prejudiced or deprived
33 of a fair trial because of their admission.

4
1 Accordingly, and finding no merit in appellants’ other
2 arguments, we hereby AFFIRM the judgment of the district court.

3 FOR THE COURT:
4 CATHERINE O’HAGAN WOLFE, CLERK
5