United States v. Betancourt

645 F. App'x 66
CourtCourt of Appeals for the Second Circuit
DecidedApril 8, 2016
DocketNos. 14-922-cr, 14-1043-cr
StatusPublished
Cited by1 cases

This text of 645 F. App'x 66 (United States v. Betancourt) 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. Betancourt, 645 F. App'x 66 (2d Cir. 2016).

Opinion

SUMMARY ORDER

Defendants Daniel Fernandez and Jose Betancourt appeal from convictions for conspiring to distribute at least 1,000 kilograms of marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846. Fernandez, who stands convicted after a jury trial, argues on appeal that (1) the district court erred in denying him a mistrial, (2) the district court’s multiple conspiracy jury charge was erroneous, (3) there was a prejudicial variance between the indictment and the trial evidence, and (4) the evidence was insufficient to support his conviction. Betancourt, who pleaded guilty, contends that (1) he should have been allowed to withdraw from his plea agreement, and (2) he received ineffective assistance of counsel in connection with the plea agreement. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Fernandez

a. Motions for a Mistrial

Fernandez repeatedly sought a mistrial, arguing in particular that testimony from Richard Jimenez and Edwin Herrera about drug quantities sold denied [69]*69him a fair trial because their activities pertained to conspiracies distinct from the one charged. In denying Fernandez’s motions, the district court accepted the government’s contention that Fernandez’s and the witnesses’ use of the same narcotics suppliers and transporters admitted a finding that they were all members of the charged conspiracy. This conclusion was not based on a clearly erroneous assessment of the evidence or an erroneous view of the law and, accordingly, we identify no abuse of discretion in the district court’s denial of Fernandez’s motions for a mistrial. See United States v. Yannai, 791 F.3d 226, 242 (2d Cir.2015).

b. Jury Instructions

Fernandez faults the district court for not giving his proposed multiple conspiracies jury charge and instead using its own language. We review a preserved challenge to a jury instruction de novo, “viewing the charge as a whole,” and will reverse only if we identify both error and prejudice. United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir.2010) (internal quotation marks omitted). Neither is evident here.

Assuming that a multiple conspiracies charge was warranted in this single-defendant trial, see United States v. Corey, 566 F.2d 429, 431 n. 3 (2d Cir.1977), we identify no error in the district court’s charge, which adequately informed the jury that it must find “beyond a reasonable doubt that the conspiracy charged in the indictment existed,” and that “[pjroof that the defendant was a member of some other conspiracy is not enough to convict,” J.A. 1482; see United States v. Aracri, 968 F.2d 1512, 1520 (2d Cir.1992) (explaining that multiple conspiracy charge must instruct jury that to convict defendant, it must find “that he was a member of the conspiracy charged in the indictment and not some other conspiracy” (internal quotation marks omitted)). Fernandez nevertheless argues that the district court’s instruction that a single conspiracy may exist even if some members of the conspiracy competed with each other, although legally correct, was erroneous here because it is inapplicable to the facts of this case. The record defeats this argument. Indeed, Fernandez himself argued at length in summation that the government failed to prove the existence of a single conspiracy because various alleged co-conspirators were in fact Fernandez’s competitors. While Fernandez also faults the district court for declining to use specific language from his proposed charge, precedent instructs that a defendant is not entitled to “dictate the precise language of the charge” and “has no cause to complain” where, as here, the instructions accurately state the law. United States v. Han, 230 F.3d 560, 565 (2d Cir.2000) (internal quotation marks omitted).

In any event, Fernandez fails to demonstrate prejudice from the alleged charging error because, as discussed infra, there was ample evidence from which the jury could find beyond a reasonable doubt that Fernandez was a member of the charged conspiracy. See United States v. Vazquez, 113 F.3d 383, 386 (2d Cir.1997). Thus, Fernandez’s jury-instruction challenge is without merit.

c. Prejudicial Variance

Fernandez submits that there was a prejudicial variance between the indictment, which charged a single conspiracy, and the trial evidence, which he alleges proved at least seven distinct conspiracies. We permit “significant flexibility” in proof at trial, “provided that the defendant was given notice of the core of criminality to be proven,” and we will reverse on a variance claim only upon a showing of “substantial prejudice,” United States v. Pierce, 785 [70]*70F.3d 832, 845-46 (2d Cir.2015), which we do not identify here.

In urging otherwise, Fernandez argues that he was prejudiced by evidence that permitted the jury to consider drug quantities related to uncharged conspiracies in determining whether Fernandez participated in the charged conspiracy to distribute at least 1,000 kilograms of marijuana. The argument fails because, although the district court charged that Fernandez was responsible for all drugs dealt by his co-conspirators that were reasonably foreseeable to him, it made clear that for Fernandez to be responsible for those amounts they must have been “within the scope of the criminal activity that he jointly undertook,” J.A, 1493. Because we presume that the jury followed this instruction, see United States v. Williams, 690 F.3d 70, 77 (2d Cir.2012), and because we have already concluded that the jury was properly instructed on multiple conspiracies, Fernandez’s argument that he was erroneously held jointly responsible for quantities of marijuana unrelated to his conspiracy is unavailing. Further, as we will now explain, there was ample evidence from which the jury could conclude that Fernandez was a member of the conspiracy charged in the indictment and that, in connection with that conspiracy, he dealt in 1,000 kilograms or more of marijuana. Accordingly, Fernandez was “given notice of the core of criminality to be proven at trial,” and his variance claim fails. United States v. Pierce, 785 F.3d at 846 (quoting United States v. Bertolotti, 529 F.2d 149, 154 (2d Cir.1975)).

d. Sufficiency Challenge

We review a sufficiency challenge de novo and must affirm the conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

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Bluebook (online)
645 F. App'x 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-betancourt-ca2-2016.