United States v. Brooker

526 F. App'x 82

• Court: Court of Appeals for the Second Circuit
• Decided: April 24, 2013
• Docket: 12-1649-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-Appellant Daniel Lugo (“Lugo”) appeals from a judgment of the United States District Court for the District of Vermont (Reiss, C.J.), entered April 18, 2012, challenging the district court’s October 12, 2011 order denying Lugo’s motion for judgment of acquittal following his conviction by jury for conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Lugo raises two issues on appeal: (1) the sufficiency of the evidence supporting the conspiracy convic tion; and (2) the sufficiency of the evidence supporting the jury’s determination that the conspiracy involved five or more kilograms of cocaine. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal, which we reference only as necessary to explain our decision to affirm.

“We review de novo a challenge to sufficiency of the evidence.” United States v. Naiman, 211 F.3d 40, 46 (2d Cir.2000). A defendant who seeks to overturn a conviction on sufficiency grounds faces a heavy burden. United States v. Gaskin, 364 F.3d 438, 459 (2d Cir.2004). The test for sufficiency of the evidence is “whether a rational jury could conclude beyond a reasonable doubt that a defendant is guilty of the crime charged.” United States v. Eppolito, 543 F.3d 25, 45 (2d Cir.2008). A jury’s verdict must be sustained if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). We assess the evidence “in the light most favorable to the government, crediting all inferences in its favor,” United States v. Berger, 224 F.3d 107, 116 (2d Cir.2000) (citing United States v. Moore, 208 F.3d 411, 413 (2d Cir.2000) (per curiam)), and “[a]ll issues of credibility, including the credibility of a cooperating witness, must be resolved in favor of the jury’s verdict,” United States v. Riggi, 541 F.3d 94, 108 (2d Cir.2008) (citing United States v. Glenn, 312 F.3d 58, 64 (2d Cir.2002)).

To prove that Lugo conspired to distribute cocaine, the government was required to show that Lugo “agreed with another to commit the offense; that he knowingly engaged in the conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy; and that an overt act in furtherance of the conspiracy was committed.” United States v. Monaco, 194 F.3d 381, 386 (2d Cir.1999) (internal quotation marks and citation omitted). After reviewing the evidence, we conclude that the trial jury here had an ample basis on which to conclude that each of these elements was satisfied beyond a reasonable doubt.

Numerous witnesses directly implicated Lugo in the conspiracy stretching from early 2006 through 2009 and involving cocaine trafficking among Vermont, New York, and Arizona. While many of these witnesses were accomplices or cooperating witnesses, as Lugo acknowledges, the testimony of such witnesses can be wholly adequate to sustain a conviction. Indeed, “[a] conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” United States v. Diaz, 176 F.3d 52, 92 (2d Cir.1999) (quoting United States v. Gordon, 987 F.2d 902, 906 (2d Cir.1993)) (alteration in original). Lugo’s various claims that witnesses were inconsistent on specific points are either belied by the record or fail to draw into question, much less render incredible on its face, the consistent testimony of multiple witnesses who observed Lugo cutting cocaine on several occasions or who accompanied him on trips to New York and Arizona to obtain it. The witness testimony, moreover, was corroborated by ear rental and flight records. Assessing the evidence in the light most favorable to the government and resolving issues of credibility in favor of the jury’s verdict, we agree with the district court that the government produced sufficient evidence to support the jury verdict finding Lugo guilty of the charged conspiracy.

Lugo next argues that the government failed to put forth consistent and reliable evidence sufficient for the jury to determine that he conspired to distribute more than five kilograms of cocaine. * We disagree. We have stated that drug quantity can be proven by “specific evidence” such as “drug records, admissions or live testimony.” United States v. Shonubi, 998 F.2d 84, 89 (2d Cir.1993). Here, one witness testified to accompanying Lugo on three to five trips to pick up cocaine, procuring one to two kilograms per trip. Another witness testified to joining Lugo on approximately ten trips to New York City, each time picking up one to two kilogram quantities. Three witnesses, giving consistent accounts, testified to accompanying Lugo on at least two trips to Arizona, each time returning with at least one kilogram of cocaine. Furthermore, five witnesses testified to watching Lugo cut or “stretch” the cocaine, often doubling the initial drug quantity from one kilogram to two. Based on this evidence, we agree with the district court that a rational jury could have found beyond a reasonable doubt that Lugo was guilty of conspiring to distribute over five kilograms of cocaine.

We have considered all of Defendant-Appellant’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

* In his brief, Lugo consistently argues that there was insufficient evidence to support a conviction for conspiracy to distribute more than 5000 kilograms of cocaine. However, Lugo was not charged with, or convicted of, conspiracy to distribute anywhere near that amount. The indictment charged a violation of 21 U.S.C. § 841(b)(1)(A), which provides increased penalties for conspiring to distribute five kilograms (that is, 5000 grams) or more of cocaine. We therefore construe his argument as a challenge to the sufficiency of the evidence to support his conviction for conspiracy to distribute five or more kilograms of cocaine.