United States v. Calderon

610 F. App'x 42
Court of Appeals for the Second Circuit·Decided May 12, 2015·No. Nos. 13-1098, 13-0766, 13-2510, 13-2740, 13-2751·Published

Opinion

SUMMARY ORDER

Defendants-Appellants Nelson Calderon, Wilfredo Sanchez, Eva Cardoza, and Angelo DeLeon appeal from judgments of conviction entered on March 15, 2013, June 21, 2013, July 9, 2013, and January 23, 2013, respectively, in the United States District Court for the Southern District of New York (Seibel, J.) following a five-week jury trial that ended on July 17, 2012. We assume the parties’ familiarity with the underlying facts, procedural history, and issues for review.

DeLeon argues that, inter alia, the evidence at trial was insufficient to establish that he was guilty of conspiring to [44]*44distribute marijuana because “[tjhere was a ‘variance’ between the indictment, which alleged a single conspiracy, and the proof at trial, which, at best, tended to prove several independent conspiracies.” De-Leon Br. at 16. We must affirm the conviction 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 omitted). Even if DeLeon were correct that the proof at trial demonstrated multiple conspiracies, it is well established in this Circuit that where the jury finds multiple conspiracies, “the jury should convict the defendant if it finds that one of the proven conspiracies was the one alleged in the indictment and that the defendant was a member of it.” United States v. Payne, 591 F.3d 46, 62 (2d Cir.2010). On the record in this case, a reasonable juror could have found that DeLeon possessed “some knowledge” of the unlawful aims and objectives of the conspiracy alleged in the indictment, whose “essential nature” was to distribute drugs in Newburgh, and that DeLeon sold marijuana on the street from locations controlled by the Latin Kings {see Tr. 432-33, 1913-16, 2598, 2877), split sales with other Latin Kingfs members (see Tr. 436), hosted Latin Kings meetings (see Tr. 433, 2875-76), and held a leadership position in the Latin Kings (see Tr. 376-77). That evidence was sufficient to prove the conspiracy. United States v. Salameh, 152 F.3d 88, 147-48 (2d Cir.1998) (per curiam).

Calderon challenges, inter alia, his conviction for attempted witness tampering on the ground that there was no evidence that he specifically intended to influence future testimony, and challenges his conviction for participating in a racketeering conspiracy on the ground that it is inconsistent with his acquittal on the narcotics conspiracy charge. Although Calderon, while not denying that he assaulted the witness,'argues that the assault was only retribution for the witness’s prior testimony about the Latin Kings, it was entirely permissible for the jury to infer that the assault was intended also to deter the witness from testifying against Calderon in the future. We must “credit[ ] every inference that the jury might have drawn in favor of the government,” United States v. Temple, 447 F.3d 130, 136-37 (2d Cir.2006) (internal quotation marks omitted), because “the task of choosing among competing, permissible inferences is for the fact-finder, not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001). Viewed in the light most favorable to the Government, see United States v. Rosa, 17 F.3d 1531, 1542 (2d Cir.1994), the evidence supported the jury’s decision to convict Calderon on the attempted witness tampering charge. Calderon’s challenge to his RICO conspiracy conviction also fails because “a criminal defendant convicted by a jury on one count [cannot] attack that conviction [merely] because it was inconsistent with the jury’s verdict of acquittal on another count.” United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); see also id. at 69, 105 S.Ct. 471.

Cardoza was convicted of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), conspiracy to distribute narcotics, in violation' of 21 U.S.C. §§ 841(b)(1)(B), 846, accessory after the fact to murder, in violation of 18 U.S.C. § 3, and managing a drug premises, in violation of 21 U.S.C. § 856(a)(2). We reject Cardoza’s challenges to the convictions on the drug conspiracy, RICO conspiracy, and stash house counts for the reasons that follow. Cardoza’s conviction on the accessory count is reversed for the reasons stated in the opinion issued simultaneously with this summary order.

Cardoza argues that the trial evidence was insufficient to convict her of partici[45]*45pating in a racketeering conspiracy because she was not an official member of the Latin Kings and never personally participated in the gang’s drug transactions: Cardoza’s non-membership in the gang does not foreclose her participation in the charged conspiracy, and the evidence introduced at trial to show that she participated in the conspiracy was substantial. Cardoza went on missions with gang members, collected money from drug sales, advised drug customers of gang member Steven Lewis’s location, and sold drugs and made drug deliveries for the gang. Several times, narcotics customers gave cash for drugs directly to Cardoza.

Cardoza also argues that by finding her not guilty of a number of counts, the jury necessarily found that the evidence was insufficient on the RICO conspiracy count and the jury must therefore have acted irrationally. As discussed above, Cardoza’s position is inimical to established law that a conviction on one count of an indictment may not be challenged because it is inconsistent with an acquittal on another count. See Powell, 469 U.S. at 65-67, 105 S.Ct. 471.

DeLeon contends that the district court should have granted a mistrial after a juror inquired of the courtroom deputy “how the personal information provided during jury selection will be protected,” arguing that this statement shows that the jury engaged in prohibited premature deliberations. DeLeon Br. at 10. DeLeon’s argument is without merit. The juror’s question was about personal information; it did not “come[ ] within a common sense definition of deliberation,” United, States v. Peterson, 385 F.3d 127, 135 (2d Cir.2004). In any event, Judge Seibel properly addressed the issue by reminding the jury about the presumption of innocence and reiterating her previously given instructions not to discuss the case prior to deliberations. See United States v. Thai, 29 F.3d 785, 803 (2d Cir.1994).

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