United States v. Boria

Opinion

18-1644-cr United States v. Boria

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 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 for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 3 8th day of July, two thousand nineteen. 4 5 Present: PIERRE N. LEVAL, 6 ROSEMARY S. POOLER, 7 BARRINGTON D. PARKER, 8 Circuit Judges. 9 10 _____________________________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. 18-1644-cr 17 18 OSCAR BORIA, JR., 19 20 Defendant-Appellant.1 21 _____________________________________________________ 22 23 Appearing for Appellant: James R. DeVita, White Plains, N.Y. 24 25 Appearing for Appellee: Allison Nichols, Assistant United States Attorney (Anden Chow, 26 Won S. Shin, Assistant United States Attorneys, on the brief), for 27 Geoffrey S. Berman, United States Attorney for the Southern 28 District of New York, New York, N.Y. 29

1 The Clerk of the Court is directed to amend the caption as above.

1 Appeal from the United States District Court for the Southern District of New York (Seibel, J.). 2 3 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 4 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 5 6 Defendant-Appellant Oscar Boria, Jr. appeals from a judgment of conviction entered on 7 May 25, 2018, in the United States District Court for the Southern District of New York (Seibel, 8 J.), following a jury trial. Boria was sentenced to a term of 30 months’ imprisonment, to be 9 followed by three years’ supervised release. We assume the parties’ familiarity with the 10 underlying facts, procedural history, and specification of issues for review. 11 12 Boria primarily argues that: (1) the evidence was insufficient to support his conspiracy 13 conviction; (2) the district court erred with respect to its buyer-seller jury instruction; (3) the 14 district court erred in admitting a detective’s testimony that he recognized Boria; (4) the district 15 court erred in failing to hold an evidentiary hearing regarding his motion to suppress; and (5) his 16 sentence was unreasonable because the district court erred in approximating drug quantity and in 17 denying a two-level reduction for acceptance of responsibility. We reject each argument. 18 19 First, the evidence was sufficient to support Boria’s membership in the charged 20 conspiracy. Although this Court reviews sufficiency of the evidence claims de novo, see United 21 States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010), a defendant mounting such a challenge 22 “bears a heavy burden,” United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) (internal 23 quotation marks omitted). This is because, in assessing whether the evidence was sufficient to 24 sustain a conviction, “we view the evidence in the light most favorable to the government, 25 drawing all inferences in the government’s favor and deferring to the jury’s assessments of the 26 witnesses’ credibility.” Sabhnani, 599 F.3d at 241 (quoting United States v. Parkes, 497 F.3d 27 220, 225 (2d Cir. 2007)). 28 29 To establish that a defendant knowingly joined and participated in the scheme alleged in 30 the indictment, the government must offer evidence of the defendant’s “purposeful behavior 31 aimed at furthering the goals of the conspiracy.” United States v. Chavez, 549 F.3d 119, 125 (2d 32 Cir. 2008) (internal quotation marks omitted). “[T]he government need not show that the 33 defendant knew all of the details of the conspiracy, so long as he knew its general nature and 34 extent.” Id. (internal quotation marks omitted). “Both the existence of a conspiracy and a given 35 defendant’s participation in it with the requisite knowledge and criminal intent may be 36 established through circumstantial evidence.” United States v. Stewart, 485 F.3d 666, 671 (2d 37 Cir. 2007). 38 39 Under the buyer-seller exception, a purchase and sale do not constitute a conspiracy 40 unless there is “additional evidence showing an agreement to join together to accomplish an 41 objective beyond the sale transaction.” United States v. Hawkins, 547 F.3d 66, 72 (2d Cir. 2008). 42 This exception effectuates a “policy judgment that persons who acquire . . . illegal drugs for their 43 own consumption because they are addicted . . . should not be punished with the severity 44 directed against those who distribute drugs.” United States v. Parker, 554 F.3d 230, 235 (2d Cir. 45 2009). If, however, “the evidence supports a finding that the seller shared with the buyer an 46 interest in furthering resale by the buyer, the seller and buyer may be found to be in a

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1 conspiratorial agreement to further the buyer’s resale.” Id. “[C]ircumstances surrounding a 2 buyer-seller relationship” that can, but do not necessarily, “establish an agreement to participate 3 in a distribution conspiracy” include “whether there was prolonged cooperation between the 4 parties, a level of mutual trust, standardized dealings, sales on credit (‘fronting’), and the 5 quantity of drugs involved.” Hawkins, 547 F.3d at 74. Whether there is a distribution conspiracy 6 as opposed to a mere buyer-seller relationship “is a highly fact-specific inquiry.” Id. 7 8 Here, the evidence—viewed in the light most favorable to the government—is sufficient 9 to sustain Boria’s conviction on the conspiracy charge. Goodman distributed wholesale 10 quantities to Boria; other dealers at issue purchased narcotics from Goodman on credit; 11 Goodman communicated the same messages at around the same time to the dealers to inquire 12 when he was going to be paid; Boria was among these dealers; and both the other dealers and 13 Boria would respond with phrases like, “got that for u,” in reference to payment. Trial Tr. at 561; 14 see also Tr. at 242-43, 472-73, 259-60. Additionally, Boria was one of the only people Goodman 15 contacted during the relevant time frame; Boria had a designated “spot” to meet with Goodman 16 that was referred to as “your spot,” Trial Tr. at 242-43; and they did not need to discuss 17 quantities or price beforehand. Taken in the light most favorable to the government, the evidence 18 was sufficient for the jury to conclude that Goodman repeatedly, within a short period of time, 19 sold wholesale quantities to Boria with the shared expectation and purpose that Boria would 20 resell, thus financing further purchases for further distribution. Accordingly, the evidence was 21 sufficient for the jury to conclude that Boria and Goodman conspired together that Boria would 22 distribute the drugs he acquired from Goodman. 23 24 Second, Boria argues that the jury’s note requesting clarification shows that the district 25 court’s instruction on the buyer-seller relationship was inadequate and that the instruction should 26 have contained his two requested sentences. “The trial court enjoys considerable discretion in 27 construing the scope of a jury inquiry and in framing a response tailored to the inquiry.” United 28 States v. Rommy, 506 F.3d 108, 126 (2d Cir. 2007). “In doing so, it is not required to reference 29 specific arguments advanced or defenses raised by counsel in urging particular outcomes.” Id. 30 Ultimately, “[b]ecause the jury may not enlist the court as its partner in the factfinding process, 31 the trial judge must proceed circumspectly in responding to inquiries from the jury.” Id. at 126- 32 27 (internal quotation marks omitted). Here, the district court did not err in responding to the 33 jury: “Could you be more specific? I am not clear on what you are interested in (beyond what 34 appears on Pages 18 to 31 of the jury charge).” Trial Tr. at 921. The given instruction accurately 35 represented the law and Boria’s defense—as the district court observed, Boria’s requested 36 instruction was tilted to favor the defendant—and the district court did not err in attempting to 37 clarify a broad inquiry from the jury before responding. 38 39 Third, Boria argues that the district court abused its discretion where it allowed, without 40 notice, the government’s question to Detective Slanovec—whether he recognized Boria when he 41 and Officer Rosen drove up to the spot where Boria had been stopped—and Detective 42 Slanovec’s response, “Yes.” Trial Tr. at 542. Evidentiary rulings are reviewed for abuse of 43 discretion, United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009), and “harmless error 44 analysis applies to evidentiary errors,” United States v. Tropeano, 252 F.3d 653, 659 (2d Cir. 45 2001). “[A] police officer’s testimony that he often saw the defendant in the area where the 46 relevant drug transactions occurred [is] not other acts evidence subject to Rule 404(b).” United

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1 States v. Scott, 677 F.3d 72, 77-78 (2d Cir. 2012) (internal quotation marks and alteration 2 omitted). Here, the detective’s single-word response affirming that he had recognized Boria did 3 not constitute other-acts evidence subject to Rule 404(b). Accordingly, the district court did not 4 err in admitting it. 5 6 Fourth, Boria argues that the district court erred in not holding an evidentiary hearing on 7 his motion to suppress the cocaine recovered from his vehicle and the statements he made while 8 stopped by law enforcement because of his assertion that the police fabricated the traffic 9 violation. This Court reviews the denial of a request for a suppression hearing for abuse of 10 discretion. United States v. Getto, 729 F.3d 221, 226 n.6 (2d Cir. 2013). “[A] warrantless search 11 of a movable vehicle is permissible when the police have probable cause to believe that the 12 vehicle contains contraband.” United States v. Harwood, 998 F.2d 91, 96 (2d Cir. 1993). A 13 district court does not abuse its discretion by denying a hearing when the defendant’s allegations, 14 “even if assumed to be true, would not require suppression.” Getto, 729 F.3d at 226 n.6. Here, 15 the police had probable cause to believe there was contraband in Boria’s vehicle, and the search 16 was therefore lawful under the automobile exception. As a result, the district court did not abuse 17 its discretion by denying a hearing because even if Boria’s allegations regarding fabrication of 18 the traffic violation were true, they would not require suppression. 19 20 Finally, Boria argues that his sentence was unreasonable because a) the district court used 21 too high a drug quantity when “the only quantity that the evidence shows is the 186 grams seized 22 from Mr. Boria the day of his arrest,” Appellant’s Br. at 46, and b) the district court erred in 23 denying him a two-level reduction for acceptance of responsibility despite his offer to plead 24 guilty to the possession conduct charged in Count Two. 25 26 “We review the district court’s interpretations of the Sentencing Guidelines de novo and 27 its related findings of fact for clear error.” United States v. Cain, 671 F.3d 271, 301 (2d Cir. 28 2012). “The quantity of drugs attributable to a defendant is a question of fact. As such, if the 29 evidence—direct or circumstantial—supports a district court’s preponderance determination as 30 to drug quantity, we must sustain that finding.” United States v. Jones, 531 F.3d 163, 175 (2d 31 Cir. 2008). “[W]e are mindful of the Guidelines’ express instruction that where there has been no 32 seizure of narcotics, or where the quantity seized does not reflect the true scale of the offense, a 33 sentencing judge should ‘approximate’ the relevant drug quantity, see id. § 2D1.1, Application 34 Note 12, based on a preponderance of the evidence, see id. § 6A1.3 (Policy Statement), 35 comment.” Id. “In making such an estimate, the court has broad discretion to consider all 36 relevant information . . . .” United States v. Blount, 291 F.3d 201, 215 (2d Cir. 2002). Here, the 37 district court did not err in finding by a preponderance of the evidence that Boria participated in 38 transactions involving at least 500 grams of cocaine and that the quantity was reasonably 39 foreseeable to him. It was not clear error for the district court to conclude that the phone at issue 40 belonged to Boria, that his previous meetings with Goodman involved the transaction of drugs, 41 and that he reasonably should have known that there were other players like him. 42 43 A district court’s decision not to grant an acceptance-of-responsibility adjustment is 44 “entitled to great deference on review.” U.S.S.G. § 3E1.1 cmt. n.5. “Whether the defendant has 45 accepted responsibility is a factual question, and a district court’s determination in this regard 46 should not be disturbed unless it is without foundation.” United States v. Taylor, 475 F.3d 65, 68

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1 (2d Cir. 2007) (internal quotation marks and alteration omitted). Though Boria offered before 2 trial to plead to possession of 186 grams of cocaine, he neither admitted nor offered to plead to 3 the conspiracy, of which he was found guilty. Accordingly, the district court did not err in 4 declining to apply the acceptance-of-responsibility adjustment. 5 6 We have considered the remainder of Boria’s arguments and find them to be without 7 merit. Accordingly, we hereby AFFIRM the district court’s judgment. 8 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk