United States v. Spigelman (Rodriguez) , 370 F. App'x 135 ( 2010 )

09-1397-cr
USA v. Spigelman (Rodriguez)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17 th day of March, two thousand and ten.
5
6 PRESENT: PIERRE N. LEVAL,
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 09-1397-cr
18
19 JOSE HERNANDO RODRIGUEZ,
20
21 Defendant-Appellant,
22
23 JOEL SPIGELMAN, also known as Joe, also known as Judas,
24 RICARDO CASTRO-CUBILLOS, also known as Marco Boniton,
25
26 Defendants.
27
28
29
1
1 FOR APPELLANT: ARZA FELDMAN, Feldman & Feldman,
2 Uniondale, NY
3
4 FOR APPELLEE: MARISSA B. MOLÉ, KATHERINE POLK FAILLA,
5 Assistant United States Attorneys, of
6 counsel, for Preet Bharara, United States
7 Attorney for the Southern District of New
8 York, New York, NY
9
10
11 Appeal from the United States District Court for the
12 Southern District of New York (Griesa, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the district court be
16 AFFIRMED.
17 Jose Hernando Rodriguez (“Appellant”) appeals from a
18 judgment of the United States District Court for the
19 Southern District of New York (Griesa, J.), entered on March
20 31, 2009, convicting Appellant of intentional murder in
21 furtherance of a continuing narcotics trafficking enterprise
22 in violation of 21 U.S.C. § 848(e), 18 U.S.C. § 2, and
23 murder through the use of a firearm in violation of 18
24 U.S.C. § 924(j). We assume the parties’ familiarity with
25 the underlying facts, the procedural history, and the issues
26 presented for review.
27 At trial, the Government demonstrated that in March of
28 1999, Appellant orchestrated the robbery and murder of a
29 woman who was transporting large amounts of cocaine. The
2
1 Government’s case included the testimony of 14 witnesses, as
2 well as corroborating evidence including, inter alia, an
3 autopsy report and various crime scene photographs.
4 Appellant’s sole argument on appeal is that the district
5 court erred in admitting the testimony of one of the
6 Government’s cooperating witnesses – Mr. Ramos – under the
7 coconspirator exception to the rule against hearsay. Fed.
8 R. Evid. 801(d)(2)(E). 1
9 We will not disturb a district court’s findings
10 respecting the applicability of the coconspirator exception
11 unless they are clearly erroneous. See United States v.
12 Gigante, 166 F.3d 75, 82 (2d Cir. 1999). “Moreover, any
13 improper admission of coconspirator testimony is subject to
14 harmless error analysis.” Id. (citing United States v.
15 Orena, 32 F.3d 704, 711 (2d Cir. 1994)). Because we are
16 unpersuaded by the Appellant’s argument – and, in any event,
17 any error in the admission of the testimony was harmless as
18 a matter of law – we affirm the judgment of the district
19 court.
1
This rule provides that “[a] statement is not hearsay
if ... [it] is offered against a party and is ... a
statement by a coconspirator of a party during the course
and in furtherance of the conspiracy.” 801(d)(2)(E).
3
1 To admit Ramos’s testimony under the coconspirator
2 exception, the district court was required to find two facts
3 by a preponderance of the evidence: (1) that a conspiracy
4 existed that included both the Appellant and the declarants;
5 and (2) that the statements testified to were made during
6 the course, and in furtherance, of that conspiracy.
7 Bourjaily v. United States, 483 U.S. 171, 175 (1987).
8 Although Appellant is correct that Mr. Ramos and the
9 declarants were initially members of a different robbery
10 crew, and each robbery crew began the day in question with a
11 different plan, it is indisputable that the two crews later
12 joined forces to murder the drug courier and divide the
13 proceeds. Moreover, despite the fact that Mr. Ramos did not
14 participate in the actual robbery and murder, the statements
15 made to him of which he testified were made in furtherance
16 of dividing the proceeds from the conspiratorial crime, and
17 were therefore made in furtherance of the conspiracy. See
18 United States v. Maldonado-Rivera, 922 F.2d 934, 958-59 (2d
19 Cir. 1990).
20 Furthermore, the admission of Mr. Ramos’s testimony was
21 harmless as a matter of law given the overwhelming evidence
22 against Appellant at trial. Thus, we “can conclude with
4
1 fair assurance that the evidence did not substantially
2 influence the jury.” United States v. Rivera, 22 F.3d 430,
3 436 (2d Cir. 1994).
4 The Court has reviewed the Appellant’s remaining
5 arguments and finds them to be without merit. For the
6 foregoing reasons, the judgment of the district court is
7 hereby AFFIRMED.
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
5