United States v. Argentina

173 F. App'x 90
CourtCourt of Appeals for the Second Circuit
DecidedMarch 29, 2006
DocketNo. 05-1560-CR
StatusPublished
Cited by3 cases

This text of 173 F. App'x 90 (United States v. Argentina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Argentina, 173 F. App'x 90 (2d Cir. 2006).

Opinion

SUMMARY ORDER

James Argentina appeals from a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge), following his conviction for conspiracy to distribute and possess with intent to distribute ecstasy and marijuana in violation of 21 U.S.C. § 846, possession with intent to distribute more than 500 grams of cocaine, ecstasy, and marijuana in violation of 21 U.S.C. §§ 841(b)(1)(B), 841(b)(1)(C) & 841(b)(1)(D), conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), conspir[92]*92acy to commit money laundering in violation of 18 U.S.C. §§ 1956(h) & 1956(a)(1)(B)®, and carrying a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(l)(A)(ii). We assume familiarity with the underlying facts and procedural history.

Appellant essentially raises five issues on appeal. First, he claims that the district court violated his Sixth Amendment rights by empaneling a partially-anonymous jury. Second, he contends that the district court improperly admitted into evidence cooperation agreements of certain Government witnesses. Third, he contends that the district court improperly allowed certain witnesses to make in-court identifications. Fourth, he argues that one drug dealer robbing (or in this case, re-robbing) another does not have a sufficient effect on interstate commerce to support his conviction under 18 U.S.C. § 1951. Fifth, Argentina argues that the district court “double-counted” his use of a firearm in its Sentencing Guidelines calculation, and he proffers new evidence that he was not, in fact, a career offender.

As explained below, we affirm the district court on all these issues, but, in light of the newly proffered evidence on Argentina’s career offender status, we vacate and remand for resentencing.

I. Partially Anonymous Jury

Argentina challenges the district court’s decision, on the Government’s motion, to empanel a partially anonymous jury.1 We review a trial judge’s decision to empanel an anonymous jury for abuse of discretion. United States v. Thai, 29 F.3d 785, 801 (2d Cir.1994).

Empaneling an anonymous or partially anonymous jury is appropriate when the jury needs protection, and “[t]he law in this Circuit is clear that “when genuinely called for and when properly used, anonymous juries do not infringe a defendant’s constitutional rights.’ ” Id. at 800 (quoting United States v. Vario, 943 F.2d 236, 239 (2d Cir.1991)); see, e.g., United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir.1995); United States v. Wong, 40 F.3d 1347, 1377 (2d Cir.1994); Thai 29 F.3d at 800-01; United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir.1994); United States v. Paccione, 949 F.2d 1183, 1192-93 (2d Cir. 1991); Vario, 943 F.2d at 240; United States v. Tutino, 883 F.2d 1125, 1132-33 (2d Cir.1989); United States v. Persico, 832 F.2d 705, 717 (2d Cir.1987); United States v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir.1985); United States v. Barnes, 604 F.2d 121, 141 (2d Cir.1979). The use of an anonymous jury requires the court to conduct “a careful voir dire designed to uncover any bias as to the issues or the defendants and takes care to give the jurors a plausible and nonprejudicial reason for not disclosing their identities.” Aulicino, 44 F.3d at 1116; see also Paccione, 949 F.2d at 1192; Tutino, 883 F.2d at 1132.

In support of its application for a partially anonymous jury, the Government established, both in its written submissions and at an evidentiary hearing, inter alia: (1) Argentina’s violent criminal history, based on the kidnap and robbery at gunpoint in this case and a prior conviction for participating in the kidnaping, torture, and murder of an individual that Argentina and his associates believed to have been a police informant; (2) Argentina’s links to two gangs (the Almighty Latin Kings and the Legion of Doom) and organized crime; (3) Argentina’s overt and veiled threats to various co-conspirators and victims of both the instant kidnaping and robbery, and his [93]*93prior conviction for kidnaping, in an attempt to keep them from testifying against him; and (5) the almost daily news coverage of Argentina’s prior trial for the kidnap and murder of a suspected police informant. In light of these showings, we cannot say that the district court abused its “broad discretion” in empaneling a partially anonymous jury. Wong, 40 F.3d at 1376.

II. Admission of cooperation agreements

Argentina challenges the admission of Eric Campan’s and Richard Claudio’s cooperation agreements with the Government, and we review these rulings for abuse of discretion. See United States v. Ford, 435 F.3d 204, 214 (2d Cir.2006).

“Because of the bolstering potential of cooperation agreements ... we have permitted such agreements to be admitted in their entirety only after the credibility of the witness has been attacked.” United States v. Cosentino, 844 F.2d 30, 33 (2d Cir.1988). When defense counsel persistently attacks the cooperating government witness’s credibility, a district court rightly permits “the government to introduce into evidence the various cooperation agreements and to elicit testimony about each cooperating witness’s understanding of what his agreement required-specifically, to tell the truth.” United States v. Carr, 424 F.3d 213, 228 (2d Cir.2005). Such an attack may come in a defendant’s opening statement, Cosentino, 844 F.2d at 33, or at any point during examination of the Government’s witnesses.

Here, defense counsel attacked the Government witnesses credibility in his opening statement, and directly questioned Campan about the provisions of his cooperation agreement. Defense counsel also questioned Claudio about benefits he would receive by cooperating under a cooperation agreement in a different case.

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Bluebook (online)
173 F. App'x 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-argentina-ca2-2006.