21-3008-cr United States v. Castillo
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of November, two thousand twenty-three.
PRESENT: RAYMOND J. LOHIER, JR., BETH ROBINSON, ALISON J. NATHAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 21-3008-cr
JORGE CASTILLO, AKA Sealed Defendant 1, AKA Jorge Alexis Castillo-Romero,
Defendant-Appellant. ------------------------------------------------------------------
FOR DEFENDANT-APPELLANT: John L. Russo, J.L. Russo, P.C., Astoria, NY FOR APPELLEE: Daniel H. Wolf, Olga I. Zverovich, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY
Appeal from a judgment of the United States District Court for the
Southern District of New York (Gregory H. Woods, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED in part
and the appeal is DISMISSED in part as moot.
Jorge Castillo appeals from a November 29, 2021 judgment of the United
States District Court for the Southern District of New York (Woods, J.) convicting
him of one count of conspiracy to commit mail fraud in violation of 18 U.S.C. §§
1341, 1349 and sentencing him principally to a term of imprisonment of 30
months. Castillo challenges two of the District Court’s evidentiary rulings and
also argues that his sentence was procedurally and substantively unreasonable.
We assume the parties’ familiarity with the underlying facts and the record of
prior proceedings, to which we refer only as necessary to explain our decision to
affirm in part and dismiss in part.
2 I. Background
Castillo was employed as a delivery driver for United Parcel Service
(“UPS”), which counted Sprint, a telecommunications company, among its
clients. Other individuals sought to fraudulently obtain cellphones from Sprint
by impersonating existing Sprint customers and ordering cellphones billed to
those accounts to be sent to locations in upper Manhattan. In 2017, a Sprint
investigator, James Patrick Goetz, identified a single phone number that
appeared to be the source of many of these fraudulent orders. After identifying
two fraudulent orders of iPhones from that phone number in December 2017 and
April 2018, Goetz allowed the orders to proceed but directed that each shipment
include an iPhone on which the “Find My iPhone” cellphone tracking program
had been activated. Goetz used the program to track the iPhones to a location
corresponding to Castillo’s home address. Goetz also determined that Castillo
had received over ten telephone calls from the suspect phone number on a day
that Castillo had delivered a fraudulently ordered phone.
Sprint notified UPS about its investigation into Castillo. On May 31, 2019,
when Castillo was scheduled to deliver additional orders of cellphones that had
been identified as fraudulent, two UPS investigators observed Castillo reporting
3 packages as delivered when, in fact, they were still in his truck. The
investigators confronted Castillo, who confessed to giving packages to
individuals with multiple different identifications in exchange for payments of
$100 or $200. Castillo subsequently repeated his confession to the police.
At trial, Castillo maintained that his confession had been coerced and
coached, and that, as a native Spanish speaker, he did not understand the
English words that the UPS investigators had told him to say to the police. The
jury convicted Castillo of conspiracy to commit mail fraud but acquitted him of
aggravated identity theft.
II. The Find My iPhone Evidence
Castillo first challenges the District Court’s decision to admit both (1)
Goetz’s testimony concerning his use of the Find My iPhone program to locate
certain cellphones that had been fraudulently ordered and (2) screenshots
showing the phones’ locations at certain times. In support of his challenge,
Castillo points to Goetz’s limited use of the Find My iPhone program, his failure
to corroborate the results of the program’s application using “plotted locations in
the field,” and his lack of familiarity with the program’s performance in upper
Manhattan. Appellant’s Br. 34–35.
4 The parties dispute whether the “deferential abuse of discretion standard,”
United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015), or the “plain error
standard” of review, United States v. Simels, 654 F.3d 161, 168 (2d Cir. 2011),
applies to Castillo’s claim here. But under either standard, we reject Castillo’s
argument. Federal Rule of Evidence 901, which governs the authentication of
evidence, “does not erect a particularly high hurdle” to the admission of
evidence. United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001) (quotation
marks omitted). Evidence is admissible if its proponent produces “evidence
sufficient to support a finding that the item is what the proponent claims it is,”
such as “[e]vidence describing a process or system and showing that it produces
an accurate result.” Fed. R. Evid. 901(a), (b)(9). “Rule 901’s requirements are
satisfied if sufficient proof has been introduced so that a reasonable juror could
find in favor of authenticity or identification.” United States v. Tin Yat Chin, 371
F.3d 31, 38 (2d Cir. 2004) (quotation marks omitted).
Goetz laid a sufficient foundation to admit his testimony and the
screenshots. Goetz explained the nature of the Find My iPhone program and
how it can be used to show the location of an iPhone. He also explained that he
had tested the application by using it on the tracked phones when they were in
5 his possession and again when they were held by a colleague in another office in
a different state. Goetz further testified that he took screenshots of the map that
showed the location of phones he was tracking. Goetz’s testimony was
sufficient for a reasonable juror to conclude that the screenshots that the
Government introduced showed the location of the tracked phones at issue in
this case. Castillo’s arguments regarding the reliability of Find My iPhone in
upper Manhattan relate only to the “persuasive force” of the evidence, and thus
raise a question for the jury to decide.
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21-3008-cr United States v. Castillo
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of November, two thousand twenty-three.
PRESENT: RAYMOND J. LOHIER, JR., BETH ROBINSON, ALISON J. NATHAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 21-3008-cr
JORGE CASTILLO, AKA Sealed Defendant 1, AKA Jorge Alexis Castillo-Romero,
Defendant-Appellant. ------------------------------------------------------------------
FOR DEFENDANT-APPELLANT: John L. Russo, J.L. Russo, P.C., Astoria, NY FOR APPELLEE: Daniel H. Wolf, Olga I. Zverovich, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY
Appeal from a judgment of the United States District Court for the
Southern District of New York (Gregory H. Woods, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED in part
and the appeal is DISMISSED in part as moot.
Jorge Castillo appeals from a November 29, 2021 judgment of the United
States District Court for the Southern District of New York (Woods, J.) convicting
him of one count of conspiracy to commit mail fraud in violation of 18 U.S.C. §§
1341, 1349 and sentencing him principally to a term of imprisonment of 30
months. Castillo challenges two of the District Court’s evidentiary rulings and
also argues that his sentence was procedurally and substantively unreasonable.
We assume the parties’ familiarity with the underlying facts and the record of
prior proceedings, to which we refer only as necessary to explain our decision to
affirm in part and dismiss in part.
2 I. Background
Castillo was employed as a delivery driver for United Parcel Service
(“UPS”), which counted Sprint, a telecommunications company, among its
clients. Other individuals sought to fraudulently obtain cellphones from Sprint
by impersonating existing Sprint customers and ordering cellphones billed to
those accounts to be sent to locations in upper Manhattan. In 2017, a Sprint
investigator, James Patrick Goetz, identified a single phone number that
appeared to be the source of many of these fraudulent orders. After identifying
two fraudulent orders of iPhones from that phone number in December 2017 and
April 2018, Goetz allowed the orders to proceed but directed that each shipment
include an iPhone on which the “Find My iPhone” cellphone tracking program
had been activated. Goetz used the program to track the iPhones to a location
corresponding to Castillo’s home address. Goetz also determined that Castillo
had received over ten telephone calls from the suspect phone number on a day
that Castillo had delivered a fraudulently ordered phone.
Sprint notified UPS about its investigation into Castillo. On May 31, 2019,
when Castillo was scheduled to deliver additional orders of cellphones that had
been identified as fraudulent, two UPS investigators observed Castillo reporting
3 packages as delivered when, in fact, they were still in his truck. The
investigators confronted Castillo, who confessed to giving packages to
individuals with multiple different identifications in exchange for payments of
$100 or $200. Castillo subsequently repeated his confession to the police.
At trial, Castillo maintained that his confession had been coerced and
coached, and that, as a native Spanish speaker, he did not understand the
English words that the UPS investigators had told him to say to the police. The
jury convicted Castillo of conspiracy to commit mail fraud but acquitted him of
aggravated identity theft.
II. The Find My iPhone Evidence
Castillo first challenges the District Court’s decision to admit both (1)
Goetz’s testimony concerning his use of the Find My iPhone program to locate
certain cellphones that had been fraudulently ordered and (2) screenshots
showing the phones’ locations at certain times. In support of his challenge,
Castillo points to Goetz’s limited use of the Find My iPhone program, his failure
to corroborate the results of the program’s application using “plotted locations in
the field,” and his lack of familiarity with the program’s performance in upper
Manhattan. Appellant’s Br. 34–35.
4 The parties dispute whether the “deferential abuse of discretion standard,”
United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015), or the “plain error
standard” of review, United States v. Simels, 654 F.3d 161, 168 (2d Cir. 2011),
applies to Castillo’s claim here. But under either standard, we reject Castillo’s
argument. Federal Rule of Evidence 901, which governs the authentication of
evidence, “does not erect a particularly high hurdle” to the admission of
evidence. United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001) (quotation
marks omitted). Evidence is admissible if its proponent produces “evidence
sufficient to support a finding that the item is what the proponent claims it is,”
such as “[e]vidence describing a process or system and showing that it produces
an accurate result.” Fed. R. Evid. 901(a), (b)(9). “Rule 901’s requirements are
satisfied if sufficient proof has been introduced so that a reasonable juror could
find in favor of authenticity or identification.” United States v. Tin Yat Chin, 371
F.3d 31, 38 (2d Cir. 2004) (quotation marks omitted).
Goetz laid a sufficient foundation to admit his testimony and the
screenshots. Goetz explained the nature of the Find My iPhone program and
how it can be used to show the location of an iPhone. He also explained that he
had tested the application by using it on the tracked phones when they were in
5 his possession and again when they were held by a colleague in another office in
a different state. Goetz further testified that he took screenshots of the map that
showed the location of phones he was tracking. Goetz’s testimony was
sufficient for a reasonable juror to conclude that the screenshots that the
Government introduced showed the location of the tracked phones at issue in
this case. Castillo’s arguments regarding the reliability of Find My iPhone in
upper Manhattan relate only to the “persuasive force” of the evidence, and thus
raise a question for the jury to decide. Tin Yat Chin, 371 F.3d at 38. We
therefore affirm the District Court’s decision to admit the Find My iPhone
evidence.
III. The Practices of UPS Drivers
Castillo also challenges the District Court’s exclusion of evidence that he
claims would have shown that UPS drivers routinely engaged in actions he
undertook and that the Government portrayed as illegal conduct. The
Government moved in limine to exclude the evidence, and the District Court
granted the motion, reasoning that it was inadmissible evidence of prior good
conduct and that the probative value of the evidence was outweighed by the
6 likelihood that it would cause jury confusion.
Even assuming that the District Court erred, we conclude that any error
was harmless. First, the evidence of Castillo’s guilt, including his confessions
and the Find My iPhone screenshots, was overwhelming. Moreover, at trial,
Castillo was able to testify that customers would commonly call and tip him, and
that he occasionally met them at places other than the delivery address provided
by UPS to deliver packages. Castillo’s attorney referred to this testimony
during closing statements. We can thus “conclude with fair assurance that” the
exclusion of additional evidence showing the same common practices “did not
substantially influence the jury.” United States v. Mercado, 573 F.3d 138, 141 (2d
Cir. 2009).
IV. Castillo’s Challenge to his Sentence
Castillo challenges his 30-month term of imprisonment, contending that
his sentence was both procedurally and substantively unreasonable. The
Government argues that the challenge to the term of imprisonment is moot
because Castillo has finished serving his custodial sentence and has been
released. Notwithstanding Castillo’s ongoing term of supervised release, we
agree. See United States v. Key, 602 F.3d 492, 494 (2d Cir. 2010). We therefore
7 dismiss as moot Castillo’s appeal insofar as it challenges his 30-month term of
imprisonment.
We have considered Castillo’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED in part and the appeal is DISMISSED in part as moot.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court