United States v. Pena ( 2021 )

19-2469
United States v. Pena
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 TO 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 22nd day of February, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT D. SACK,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 19-2469
EDDY PENA,
Defendant-Appellant. *
_____________________________________
* The Clerk of Court is respectfully directed to amend the official caption as set forth above.
For Defendant-Appellant: JEREMIAH DONOVAN, Law Offices
of Jeremiah Donovan, Old Saybrook,
CT.
For Appellee: GEOFFREY MICHAEL STONE (S.
Dave Vatti, Sandra Slack Glover, on the
brief), Assistant United States
Attorneys, for John H. Durham, United
States Attorney for the District of
Connecticut, New Haven, CT.
Appeal from the United States District Court for the District of Connecticut
(Michael P. Shea, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-Appellant Eddy Pena appeals from his judgment of conviction,
entered by the district court (Shea, J.) after Pena pleaded guilty to two counts of
possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C), and after a jury found him guilty of one count of conspiring to distribute,
and to possess with intent to distribute, a kilogram or more of heroin, in violation
of 21 U.S.C. § 846. On appeal, Pena argues, for the first time, that the district court
neglected to provide several required jury instructions and that his indictment was
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constructively amended when the government introduced evidence about
unindicted co-conspirators. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal. Finding no error, we
affirm the judgment below.
Standard of Review
Because Pena did not raise in the district court the issues he now presses on
appeal, we review for plain error. See Fed. R. Crim. P. 52(b). Under that
standard, Pena must “demonstrate that (1) there was error, (2) the error was plain,
(3) the error prejudicially affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings.”
United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013) (internal quotation marks
omitted); see also United States v. Bastian, 770 F.3d 212, 219 (2d Cir. 2014).
Analysis
A. Multiple-Conspiracies Jury Instruction
Pena first contends that the district court plainly erred by failing to instruct
the jury that it could find Pena guilty of the charged conspiracy only if he was
involved in a single conspiracy, as charged, rather than multiple conspiracies.
We are not persuaded.
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Although the question of whether a defendant engaged in a single
conspiracy or multiple conspiracies is ordinarily a question of fact for a properly
instructed jury, a defendant is “not entitled to a multiple conspiracy charge” when
“only one conspiracy has been alleged and proved.” United States v. Maldonado-
Rivera, 922 F.2d 934, 962 (2d Cir. 1990) (internal quotation marks omitted); accord
United States v. Jones, 965 F.3d 149, 163 (2d Cir. 2020). “[T]o prove a single
conspiracy, the government must show that each alleged member agreed to
participate in what he knew to be a collective venture directed toward a common
goal.” United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004) (internal quotation
marks omitted). Even schemes involving “two or more phases or spheres of
operation” may nevertheless amount to a single conspiracy, “so long as there is
sufficient proof of mutual dependence and assistance” among the conspirators.
United States v. Berger, 224 F.3d 107, 114–15 (2d Cir. 2000) (internal quotation marks
omitted). And when the record “clearly show[s] only a single conspiracy,” it does
“not justify a multiple-conspiracy charge,” even if the conspiracy happens to have
“several interdependent phases.” Maldonado-Rivera, 922 F.2d at 963.
The record here clearly demonstrates that Pena was involved in a single
conspiracy. At all times, Pena purchased the same narcotic in bulk quantities
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from Guatemalan suppliers, and organized the distribution of the controlled
substance in the same general area in New England. See Berger, 224 F.3d at 115(considering overriding goal, overlap of leadership, and common participants as
evidence that several schemes fell within same conspiracy). Further linking the
conspiracy together was Pena’s partnership with Jacob Mena, who joined Pena’s
operation in the Spring of 2012 and remained by his side until the Summer of
2015. 2 While the conspiracy underwent some “changes in membership[] [and]
shifting emphases in the locale of operations,” such changes – which were largely
due to the arrest of co-conspirators or concern over police surveillance – did not
“convert [the] single conspiracy into multiple conspiracies.” Maldonado-Rivera,
922 F.2d at 963. Accordingly, Pena was not entitled to a multiple-conspiracies
instruction. Id.But even if it could be argued that Pena was entitled to a multiple-
conspiracy instruction, he has not established any prejudice from the instruction’s
omission since the common links between the schemes clearly provide “ample
2 Indeed, these links between members and phases of the conspiracy clearly set this case apart
from cases in which a single person forms the “hub” of several parallel but otherwise independent
conspiracies. See Berger, 224 F.3d at 115 (distinguishing Kotteakos v. United States, 328 U.S. 750(1946)).
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proof” for the jury “to find beyond a reasonable doubt that defendant was a
member of the conspiracy charged in the indictment.” United States v. Vazquez,
113 F.3d 383, 386 (2d Cir. 1997).
B. Buyer-Seller Jury Instruction
Pena also contends that the district court clearly erred by failing to instruct
the jury on the “buyer-seller exception.” Again, we disagree.
Under the buyer-seller exception, the “mere purchase and sale of drugs does
not, without more, amount to a conspiracy to distribute narcotics.” United States
v. Brock, 789 F.3d 60, 63 (2d Cir. 2015). This “narrow” exception to conspiracy
liability ensures that defendants who purchase or sell controlled substances only
for personal use do not face the “more severe punishments resulting from liability
for conspiracy to distribute” narcotics. United States v. Dove, 884 F.3d 138, 151 (2d
Cir. 2018).
But a district court need not instruct the jury on the buyer-seller exception
where the evidence establishes “advanced planning among the alleged co-
conspirators to deal in wholesale quantities of drugs obviously not intended for
personal use.” United States v. Medina, 944 F.2d 60, 65 (2d Cir. 1991). That is
exactly what the evidence demonstrates in this case. For instance, Mena testified
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at trial that Pena bought up to two kilograms of heroin every month for several
months in the conspiracy, which Mena helped distribute, and that Pena sometimes
sold as much as 50 grams every few days to a single customer. Therefore, the
district court did not err in forgoing a buyer-seller instruction that no one
requested. 3
C. Constructive Amendment of the Indictment
Finally, Pena argues that the government constructively amended his
indictment when, during closing argument before the jury, the government
summarized evidence introduced at trial about unindicted co-conspirators. Not
so.
“An indictment has been constructively amended when the trial evidence
or the jury charge operates to broaden the possible bases for conviction from that
which appeared in the indictment.” United States v. McCourty, 562 F.3d 458, 470
(2d Cir. 2009) (internal quotation marks omitted). But “[n]ot every alteration of
3 Although Pena also argues that the district court plainly erred by instructing the jury about how
to calculate the total weight of heroin involved in the conspiracy, Pena expressly concedes that
the district court instruction tracked this Court’s directive “that each defendant in a 21 U.S.C.
§ 846 conspiracy is responsible for ‘the aggregate quantity of all the subsidiary transactions
attributable to that particular member.’” Appellant’s Br. at 40 (quoting United States v. Pressley,
469 F.3d 63, 66 (2d Cir. 2006)); see also id. at 37–38. He further acknowledges that this panel “is
bound by the prior panel’s decision in Pressley.” Id. at 40–41. Quite right.
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an indictment . . . rises to the level of a constructive amendment,” Dove, 884 F.3d
at 146; instead, binding case law has “consistently permitted significant flexibility
in proof, provided that the defendant was given notice of the core of criminality to
be proven at trial,” United States v. Banki, 685 F.3d 99, 118 (2d Cir. 2012) (internal
quotation marks omitted). So, to prevail on a constructive amendment claim, a
defendant must demonstrate that either the proof at trial or the judge’s jury
instructions seriously “altered an essential element of the charge.” United States
v. LaSpina, 299 F.3d 165, 181 (2d Cir. 2002) (internal quotation marks omitted).
Here, the indictment gave Pena clear notice of the charge against him, by
specifying that Pena, several named co-conspirators, “and others known and
unknown” were members of the conspiracy to possess with intent to distribute and
to distribute heroin. See Appellant’s App’x at 167 (emphasis added). The fact
that the government introduced – and then summarized – evidence about
“other[]” co-conspirators, “known and unknown,” would certainly not be
grounds for reversal. See United States v. Millar, 79 F.3d 338, 345 (2d Cir. 1996).
Indeed, the names of co-conspirators do not even form “an essential element” of a
conspiracy offense. Dove, 884 F.3d at 147–48.
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Conclusion
We have considered Pena’s remaining arguments and find them to be
meritless. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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