United States v. Arreola ( 2018 )

16-4013-cr
United States v. Arreola
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
20th day of February, two thousand eighteen.
Present:
RALPH K. WINTER,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 16-4013-cr
PATRICK EDWARDS, also known as Ernest
Williams, also known as Michel Jaques,
also known as Fifty.
Defendant
JUAN PABLO ARREOLA
Defendant-Appellant.
_____________________________________
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For Defendant-Appellant: Nicholas J. Pinto, New York, NY.
For Appellee: Robert W. Allen, Rebekah Donaleski, Anna M. Skotko
Assistant United States Attorneys, for Geoffrey S.
Berman, Interim United States Attorney for the
Southern District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Berman, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Juan Pablo Arreola appeals from a judgment entered by the United
States District Court for the Southern District of New York, convicting him of one count of
conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846. After Arreola was indicted on December 10, 2015, three of Arreola’s
co-conspirators, Louis Lombard, Miguel Chavez and Patrick Edwards, pleaded guilty to their
respective roles in the conspiracy and testified against Arreola at trial, pursuant to cooperation
agreements. On July 21, 2016, after a four-day trial, the jury returned a guilty verdict. The
district court determined at Arreola’s sentencing that the government proved by “at least a
preponderance of the evidence,” based on trial testimony from Lombard, Chavez, and Edwards,
that Arreola was involved in a conspiracy to distribute at least “57 kilos of heroin[] and 78 kilos
of cocaine.” J.A. 32. On November 21, 2016, the district court entered a judgment of
conviction and sentenced Arreola principally to 180 months of imprisonment followed by five
years of supervised release. This appeal followed. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
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I. Evidence of Arreola’s Cocaine Trafficking
The first issue on appeal is whether the district court erred in admitting evidence that
Arreola was involved in distributing cocaine. Arreola argues that the district court abused its
discretion because his cocaine sales constituted uncharged criminal conduct separate from the
charged heroin conspiracy, and that evidence of those sales was inadmissible pursuant to Federal
Rule of Evidence 404(b). Alternatively, a limiting instruction was required. We disagree.
The district court properly held that evidence of Arreola’s cocaine dealing was not subject to
Rule 404(b) and should be admitted as direct evidence, without a limiting instruction, because
“the uncharged cocaine trafficking [wa]s inextricably intertwined with the charged heroin
trafficking and . . . [wa]s also background to the conspiracy here to show the relationship
between and among the defendant and the cooperating witnesses.” J.A. 21; see United States v.
Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (“[E]vidence of uncharged criminal activity is not
considered other crimes evidence under Fed. R. Evid. 404(b) if it arose out of the same
transaction or series of transactions as the charged offense, if it is inextricably intertwined with
the evidence regarding the charged offense, or if it is necessary to complete the story of the crime
on trial.” (citations and internal quotation marks omitted)); United States v. Gaggi, 811 F.2d 47,
61 (2d Cir. 1987) (concluding that limiting instructions are not required for such direct
evidence).
The record is replete with examples of how Arreola’s uncharged acts of cocaine dealing
were “inextricably intertwined” and “arose out of the same transactions” as the charged acts of
heroin dealing. See Carboni, 204 F.3d at 44. Edwards testified at trial that Arreola supplied
him with heroin and cocaine, and directed him to distribute both drugs together on a monthly
basis, usually in combined shipments comprised of a few kilograms of cocaine and a few
kilograms of heroin. Lombard also testified that Arreola supplied him with at least one
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kilogram of cocaine while they were primarily engaged in heroin trafficking, and Arreola
explained to Lombard that he sourced the cocaine and heroin from Mexico. Arreola’s
relationship with some of his co-conspirators was also based on the fact that he distributed both
cocaine and heroin, and so the government’s decision to include cocaine dealing in the narrative
was “necessary to complete the story of the crime on trial” and provide background information
on Arreola’s conspiracy to act as a wholesale supplier of drugs. Id. at 44; see also United States
v. Escalera, 536 F. App’x 27 (2d Cir. 2013) (summary order) (“Even if the sales were not
inextricably intertwined, the district court would have had the discretion to admit them as
background to the conspiracy, helping the jury understand how the illegal relationship among the
participants developed, and how [the defendant’s] role in the conspiracy evolved.”). Chavez
first introduced Arreola to Edwards because Chavez knew Arreola “was a good source . . . [for]
getting cocaine.” See S.D.N.Y. 15-cr-824 doc. 65, at 327 (trial transcript). In addition to
facilitating Arreola’s heroin and cocaine shipments to Edwards’ customer in New York, Edwards
also personally handled several of Arreola’s larger heroin shipments to Lombard and Chavez, by
using the same shipping method as in earlier transactions with Arreola. The district court was
thus well within its discretion, and certainly did not “act[] arbitrarily and irrationally,” in
admitting evidence of Arreola’s cocaine dealing as direct evidence of the charged heroin
conspiracy. See United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002) (district court’s
evidentiary rulings are reviewed for abuse of discretion and we reverse only if “the district court
acted arbitrarily and irrationally” (citation omitted)).
II. Constructive Amendment of the Indictment
Arreola next argues that his indictment was constructively amended because the district
court admitted evidence of his cocaine dealing without a limiting instruction, which
“broaden[ed] the possible bases for conviction from that which appeared in the indictment.”
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United States v. Rigas, 490 F.3d 208, 225 (2d Cir. 2007) (citation omitted). “We exercise de
novo review of a constructive amendment challenge, which is a per se violation of the Grand
Jury Clause of the Fifth Amendment.” Id. at 225–26 (citation omitted). To prove a
constructive amendment, Arreola must demonstrate that “there is a substantial likelihood that [he]
may have been convicted of an offense other than that charged in the indictment.” United States
v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001) (citation omitted). Arreola did not preserve his
objection below, so he must also make a showing of plain error. See United States v. Flaharty,
295 F.3d 182, 195 (2d Cir. 2002) (plain error requires a showing that “(1) there was error, (2) the
error was ‘plain,’ [and] (3) the error prejudicially affected his ‘substantial rights.’” (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). Arreola fails to meet this heavy burden.
“[W]e have ‘consistently permitted significant flexibility in proof, provided that the
defendant was given notice of the core of criminality to be proven at trial,’” in part because
“[p]roof at trial need not, indeed cannot, be a precise replica of the charges contained in an
indictment.” Rigas, 490 F.3d at 228 (internal quotation marks, footnote, and citations omitted)
(emphasis in original). Arreola relies heavily on United States v. Wozniak, 126 F.3d 105, 110
(2d Cir. 1997) to argue that if he knew “the government would seek a conviction mostly based
on cocaine evidence, he might have chosen a different trial strategy.” Def.-Appellant Reply Br.
7 (citing Wozniak, 126 F.3d at 110). This argument is unconvincing. Arreola should have
been well aware that evidence of his cocaine dealing would be introduced at trial. The
indictment charged that Arreola was involved in a conspiracy with Edwards to distribute
controlled substances, and as discussed above, Edwards was a cooperating government witness
who Arreola knew could provide testimony regarding their conspiracy to distribute both cocaine
and heroin. See Wozniak, 126 F.3d at 111 (“The operative facts were the same even if the
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prosecution failed to realize that the controlled substance in the transaction charged was cocaine
rather than heroin. . . . Therefore, the defendants were aware of the ‘core of criminality’ which
was to be proved at trial.”). A few weeks before trial, moreover, the government filed a motion
in limine seeking to admit evidence of Arreola’s cocaine dealing, and the parties argued the
motion in a hearing that was held one week before trial. Defense counsel even used the fact
that Arreola was only charged with heroin dealing to Arreola’s advantage, by arguing that the
failure to charge Arreola with cocaine dealing cast doubt on the credibility of the government’s
witnesses. See S.D.N.Y. 15-cr-824 doc. 67, at 562–63 (trial transcript) (“The charge of cocaine
is not in this case and it’s from the same witnesses that the government is relying upon the
charge that is in this case. Is there a lack of credibility? These were desperate men in
desperate times, in desperate straits.”). On rebuttal, the government then specifically argued,
“Does the fact that the defendant isn’t charged with cocaine in the indictment have anything to
do with the evidence that you heard? Obviously not.” Id. at 577.
Furthermore, Wozniak is inapposite because in that case, the jury was improperly
instructed that “[s]o long as you are satisfied that the government has proven beyond a
reasonable doubt that some controlled substance was involved in the acts charged in that count of
the indictment, it does not matter if such controlled substance is different than that alleged in that
count of the indictment.” Wozniak, 126 F.3d at 108–09.1 In sharp contrast, the jury here was
repeatedly instructed that to find Arreola guilty, they specifically had to find that Arreola agreed
to distribute heroin. The verdict form also required the jury to make a specific finding of how
1
Wozniak is also distinguishable because Arreola does not argue here that the government presented
insufficient evidence that he was involved in a conspiracy to distribute heroin. See Wozniak, 126 F.3d at
111 (finding constructive amendment because “[t]he government’s sparse evidence of [the defendant’s]
involvement in cocaine and the court’s jury charge . . . allowed the jury to convict [the defendant] of
offenses based on transactions not charged.”).
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much heroin was involved in the conspiracy. Arreola’s speculative contention that the jury was
nevertheless confused is contrary to “the law’s general assumption that juries follow the
instructions they are given.” United States v. Agrawal, 726 F.3d 235, 258 (2d Cir. 2013).
Based on the record before us, we cannot say that Arreola has shown a “substantial likelihood
that [he] may have been convicted of an offense other than that charged in the indictment.”
Thomas, 274 F.3d at 670 (citation omitted).
III. Improper Vouching
Finally, Arreola argues that the government improperly vouched for its witnesses on
summation by linking its credibility to that of its witnesses and referring to facts not in evidence.
Specifically, Arreola challenges the second paragraph of the following excerpt from the
government’s rebuttal:2
[S]o Lombard is at this meeting, Lombard turns to Chavez and
Ed[wards] and says: Hey, guys, bad news. The DEA is on to us, but I
have got this awesome plan for what we are going to do if we get
caught. Here is the awesome plan:
So, I am going to get arrested, I am going to go to jail—downside,
but gotta do it—and then I am going to sit through hours and hours
of meetings with the government where I am going to be
interrogated. And I am going to know all along that the government
is going to be doing background research, they are going to be
investigating what I am telling them to try to see if I am lying. If I
am lying, I know this is a risk, if I am lying, if they find out that I am
lying, I’m going to go to jail for a long time. No way around that. No
way around that.
S.D.N.Y. 15-cr-824 doc. 65, at 582 (trial transcript).
To warrant reversal of a conviction, an improper remark by a prosecutor must “cause[]
the defendant substantial prejudice so infecting the trial with unfairness as to make the resulting
conviction a denial of due process.” United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005)
2
The first paragraph is reproduced here to provide context for better understanding the challenged
statement in the second paragraph.
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(quoting United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999)). And where, as here, Arreola
“did not object to the [government’s] remarks at trial, reversal is warranted only where the
remarks amounted to a ‘flagrant abuse.’” United States v. Germosen, 139 F.3d 120, 128 (2d
Cir. 1998) (quoting United States v. Araujo, 79 F.3d 7, 9 (2d Cir. 1996)). There is no such
flagrant abuse here. The challenged statement was properly used as a hypothetical during the
government’s rebuttal in order to point out how defense counsel’s assertion that “all three of [the
government’s witnesses] lied to falsely convict Juan Pablo Arreola” was implausible. S.D.N.Y.
15-cr-824 doc. 65, at 581 (trial transcript); see United States v. Perez, 144 F.3d 204, 210 (2d Cir.
1998) (“Prosecutors have greater leeway in commenting on the credibility of their witnesses
when the defense has attacked that credibility.”); Carr, 424 F.3d at 227 (“[T]he government is
allowed to respond to an argument that impugns its integrity or the integrity of its case, and when
the defense counsel have attacked the prosecutor’s credibility or the credibility of the government
agents, the prosecutor is entitled to reply with rebutting language suitable to the occasion.”
(citation omitted)).
Arreola’s argument that the government should not have “referred to facts not in evidence”
is also unconvincing. Def.-Appellant Br. 22 (referring to the statement that “the government is
going to be doing background research, they are going to be investigating what I am telling them to
try to see if I am lying”). The challenged hypothetical was clearly used by the government as a
“rhetorical flourish,” United States v. Williams, 690 F.3d 70, 76 (2d Cir. 2012), to point out how
defense counsel’s “explanation . . . for why those three cooperating witnesses would have said
what they said about his client . . . makes no sense whatsoever,” S.D.N.Y. 15-cr-824 doc. 65, at
584 (trial transcript). See also Williams, 690 F.3d at 76 (“Viewed in context, this statement
was not improper vouching but a rhetorical flourish bringing the rebuttal summation to a
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close.”). We have also specifically held that it is proper for the government to explain the
incentives for a cooperating witness to tell the truth. See Carr, 424 F.3d at 228. And after
using the hypothetical as a rhetorical tool, the government repeatedly reminded the jury to
consider evidence in the record. See, e.g., S.D.N.Y. 15-cr-824 doc. 65, at 587 (trial transcript)
(“[W]hen you go back to deliberate, make sure that the arguments that [defense counsel] made
are actually supported by the record in this case.”); id. at 591–92 (“Think about all the evidence
in this case, the BBM, the recordings, the testimony you heard from three cooperating
witnesses.”); id. at 592 (“You know that the evidence all lines up . . . .”); see also United States
v. Spinelli, 551 F.3d 159, 169 (2d Cir. 2008) (“The prosecutor is of course entitled to argue
forcefully and vigorously to the jury in support of her witness’s credibility. But the argument
must be based on evidence in the record.”). “In a particular context . . . what might
superficially appear to be improper vouching for witness credibility may turn out on closer
examination to be permissible reference to the evidence in the case.” Perez, 144 F.3d at 210.
That is precisely what happened here. The government’s comments did not rise to the level of
“flagrant abuse,” Germosen, 139 F.3d at 128, nor did they cause Arreola to suffer “substantial
prejudice,” Carr, 424 F.3d at 227.
* * *
We have considered Arreola’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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