United States v. Garcia

282 F. App'x 14
CourtCourt of Appeals for the Second Circuit
DecidedMay 29, 2008
DocketNos. 06-2879-cr(L), 06-3779-cr(con), 06-4116-cr(con)
StatusPublished

This text of 282 F. App'x 14 (United States v. Garcia) 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. Garcia, 282 F. App'x 14 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Rosalie Garcia, Manuel Roman, and Ricardo Silva appeal from judgments of conviction entered on June 14, 2006, July 24, 2006, and August 18, 2006, respectively, in the United States District Court for the Southern District of New York (Lynch, /.), following a six-week jury trial on a twelve-count superseding indictment charging them with racketeering, narcotics trafficking, murder and other offenses related to their participation in an alleged heroin-distribution organization centered on Hoe Avenue in the Bronx, New York (the “Hoe Avenue Crew”). We presume the parties’ familiarity with the underlying facts and procedural history of this case.

I. Rosalie Garcia

Garcia challenges: (a) the district court’s determination that she was competent to stand trial; (b) the sufficiency of the evidence with respect to the 1994 and 1997 RICO murder-related predicate acts and their related substantive counts; (c) the district court’s failure to instruct the jury on the elements of criminal facilitation under New York law; and (d) the introduction of allegedly impermissible hearsay.

a. Competency

Garcia asserts that the district court erred in finding her competent to stand trial because “a cluster of symptoms — depressive disorder, substance abuse, borderline intellectual functioning, and anxiety” rendered her unable to assist in her defense. To be competent to stand trial, a defendant “must have (1) ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and (2) ‘a l’ational as well as factual understanding of the proceedings against him.’ ” United States v. Nichols, 56 F.3d 403, 410 (2d Cir.1995) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)). A court determines competency by a preponderance of the evidence, although Garcia correctly observes that the burden of proof in establishing competency is undecided in this Circuit and by the Supreme Court. Id.

The district court’s finding that Garcia was competent to stand trial was not clearly erroneous. Both experts who examined Garcia found that she “ha[d] a factual and rational understanding of the proceedings.” Moreover, although the defense expert expressed a “hedged” opinion that Garcia was not competent to stand trial, he was concerned primarily with Garcia’s “ability to assist at ... more sophisticated levels.” In making its competency determination, the district court explained that although the legal issues of the case might be complex, “[t]he factual matters about which the defendant needs ultimately to advise counsel are ... simpler.” In addition, based on its own observation of Garcia in proceedings up to that point, the recorded telephone conversations, and on [18]*18the analysis of both experts, the district court held that Garcia “has the ability to consult with her lawyer with a reasonable degree of rational understanding.” We find no clear error in the district court’s competency determination.

b. Sufficiency of the Evidence Claims

Garcia also argues that there was insufficient evidence to support her conviction of racketeering acts three and four of Count One, Count Six, and Count Seven because (1) the February 1994 murders were committed by other individuals in connection with a separate drug conspiracy; and (2) her mere presence in the room when Roman allegedly issued a contract for killing members of a rival drug organization, which allegedly led to the 1994 double murder, is insufficient to support conviction. After a review of the record, drawing all inferences in favor of the government, see United States v. Stanley, 928 F.2d 575, 576 (2d Cir.1991), we conclude that the government presented sufficient evidence to enable a rational jury to find Garcia guilty beyond a reasonable doubt.

For example, the government introduced evidence that the 1994 double murder came at the close of a three month “war” between the Hoe Avenue Crew and a rival drug organization, and that the murders were in retaliation for the murder by a rival drug crew of Roman’s best friend, with whom Garcia was also close. The government also presented evidence that Garcia and Roman paid a Santería priestess for a spell that would reveal the identity of Otero’s murderer, so that he could be killed. Although Serrano’s testimony at trial indicated that Garcia was merely present when Roman offered a contract for anyone who killed a member of the rival drug organization, Serrano also testified that Garcia was consulted regarding payment for the 1994 double murders. This evidence, along with other testimony about Garcia’s leadership in the Hoe Avenue Crew, provides a sufficient basis for a reasonable juror to convict Garcia of the murder-related counts for the 1994 murders.

With respect to the 1997 murder of Richard “Oreo” Rodriguez, there was ample evidence from which a reasonable juror could find Garcia guilty. Testimony at trial indicated that on the night of the murder, Garcia was “hysterical” and “screaming” as she told Roman that Oreo had taken drugs from one of her workers, dared her to tell Roman to come and get the drugs back himself, and threatened to kill her the next time he saw her on the block. Garcia reportedly screamed to Roman, about Oreo: “I’m tired of is shit. We got to do something. We got to kill him.” Garcia then went to retrieve a bag with two guns inside and handed it to Roman and Velez. In addition, another government cooperator testified that in the weeks leading up to Oreo’s murder, Garcia instructed workers to call her if Oreo showed up on the block. The witness explained that when Garcia would receive those phone calls, she would call Roman and notify him that Oreo was around; Roman would then say he was going “to take care of it,” and go out with his gun. Although Garcia argues that the evidence did not demonstrate an agreement that Oreo would actually be killed, a rational juror, having heard this testimony and other evidence introduced at trial, could have concluded otherwise. We find no basis for reversing Garcia’s conviction on the 1997 murder-related charges.

c. Criminal Facilitation Jury Instruction

Garcia next challenges the district court’s failure to charge the jury on the [19]*19elements of criminal facilitation under New York Penal Law 115.05, which was an alternative to murder and attempted murder charged as racketeering acts 3(B), 4, 5, and 6(b) of Count One, and Count Four (murder in aid of racketeering). Because the jury convicted Garcia under the greater mens rea burden required to prove the predicate acts of murder and/or attempted murder, any error by the district court in this regard was harmless. See United States v. Walsh, 194 F.3d 37, 52 (2d Cir.1999) (“We will reverse only if the instructions, taken as a whole, caused the defendant prejudice.”).

d. Hearsay

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Dusky v. United States
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507 U.S. 170 (Supreme Court, 1993)
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United States v. James Panebianco
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United States v. Lorenzo Nichols, Howard Mason
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194 F.3d 37 (Second Circuit, 1999)
United States v. Flaharty
295 F.3d 182 (Second Circuit, 2002)
United States v. Jose Antonio Casado
303 F.3d 440 (Second Circuit, 2002)
United States v. Glenn
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United States v. Henry
325 F.3d 93 (Second Circuit, 2003)

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282 F. App'x 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-garcia-ca2-2008.