United States v. Gracesqui

• Court: Court of Appeals for the Second Circuit
• Decided: April 5, 2018
• Docket: 17-0363-cr
• Status: Unpublished

Opinion

17-0363-cr U.S. v. Gracesqui

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 5th day of April, two thousand eighteen. 4 5 Present: JOHN M. WALKER, JR., 6 ROSEMARY S. POOLER, 7 Circuit Judges. 8 DENISE COTE,1 9 District Judge. 10 11 _____________________________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 17-0363-CR 18 19 JOSE LUIS GRACESQUI, AKA Luis Perez, AKA Ramon 20 Ortiz, AKA Onel Colon, AKA Muffler, 2 21 22 Defendant-Appellant. 23 24 ____________________________________________________ 25 26 Appearing for Appellant: Anthony Cecutti, New York, N.Y. 27

1 Judge Denise Cote, United States District Court for the Southern District of New York, sitting by designation. 2 The Clerk is respectfully directed to amend the caption as above. 1 Appearing for Appellee: Brendan F. Quigley, Assistant United States Attorney (Rebekah 2 Donaleski, Laurie Korenbaum, Daniel B. Tehrani, Assistant United 3 States Attorneys, on the brief), for Geoffrey S. Berman, United 4 States Attorney for the Southern District of New York, New York, 5 N.Y. 6 7 Appeal from the United States District Court for the Southern District of New York (Castel, J.). 8 9 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 10 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 11 12 Defendant-Appellant Jose Luis Gracesqui appeals from the January 30, 2017 judgment 13 of the United States District Court for the Southern District of New York (Castel, J.), convicting 14 him of three charges related to the murder of Richard Diaz on July 19, 1999, and sentencing him 15 to life imprisonment. We assume the parties’ familiarity with the underlying facts, procedural 16 history, and specification of issues for review. 17 18 Gracesqui first argues that the district court erred by concluding that the government had 19 presented sufficient evidence to sustain a conviction on Count One of the indictment, which 20 charged that Gracesqui killed Diaz while engaged in a conspiracy to distribute one kilogram or 21 more of heroin, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. “We review 22 challenges to the sufficiency of evidence de novo, and will uphold a conviction if any rational 23 trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 24 United States v. Dupree, 870 F.3d 62, 78 (2d Cir. 2017) cert. denied sub nom. Gill v. United 25 States, No. 17-7584, 2018 WL 659984 (U.S. Feb. 26, 2018) (quoting United States v. Rosemond, 26 841 F.3d 95, 113 (2d Cir. 2016)). In assessing the sufficiency of the evidence, we “view the 27 evidence in the light most favorable to the government, crediting every inference that could have 28 been drawn in the government’s favor, and deferring to the jury’s assessment of witness 29 credibility and its assessment of the weight of the evidence.” Dupree, 870 F.3d at 78 (quoting 30 Rosemond, 841 F.3d at 113). 31 32 For a conspiracy charge to withstand a sufficiency of the evidence challenge, “[t]he 33 record must … permit a rational jury to find: (1) the existence of the conspiracy charged; (2) that 34 the defendant had knowledge of the conspiracy; and (3) that the defendant intentionally joined 35 the conspiracy.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) cert denied 555 U.S. 36 1122 (2009) (citations omitted). In Santos, we considered a similar sufficiency of the evidence 37 challenge regarding a 21 U.S.C. § 848(e)(1)(A) conviction, and concluded that the statute had 38 two elements: “one drug offense and one killing.” Santos, 541 F.3d at 69. As to the independent 39 drug offense, the relevant drug conspiracy statute does not require an overt act. Id. at 68. 40 Accordingly, “the conspiracy itself—and no act in furtherance of it, homicidal or otherwise— 41 serves as the predicate drug offense under section 848(e)(1)(A).” Id. 42 43 Gracesqui, like the defendant in Santos, argues that there is insufficient evidence to 44 sustain the jury finding that he knew of and joined a drug conspiracy. But in Santos we 45 concluded that a largely indistinguishable record was sufficient. Here as there, a witness testified 46 that an accomplice explained to the defendant that the plan was to retaliate for a drug-related

2 1 theft. Id. at 65-66. In both cases, the testimony reflected that, in this initial planning 2 conversation, an individual involved in ongoing drug trafficking told the defendant that a higher- 3 level member of the drug trafficking organization had been robbed of drugs or drug proceeds. Id. 4 at 66. The defendants in both cases agreed to assist in the retaliation, and ultimately attempted to 5 carry out the plan by committing murder—though in both cases, the victims who were killed 6 were not the intended targets of the retaliation. Id. We see no basis to distinguish Santos, given 7 the striking similarity between the record evidence in both cases. Accordingly, drawing all 8 inferences in the government’s favor, as we must, there was sufficient evidence for the jury to 9 conclude that (i) Gracesqui knew that the retaliation would benefit a large drug trafficking 10 organization, and (ii) by agreeing to the plan and ultimately murdering an individual, Gracesqui 11 joined the conspiracy. 12 13 Further, Gracesqui’s reliance on United States v. Atehortva, 17 F.3d 546 (2d Cir. 1994), 14 is misplaced. There, we found that there was insufficient evidence to sustain a drug conspiracy 15 charge. The government did not present any evidence that the defendant was informed of the 16 drug-related purpose of the kidnapping, and the government’s theory of knowledge rested largely 17 on the assertion that the defendant simply “must have known” about the narcotics connection. Id. 18 at 550-51. Here, by contrast, one of Gracesqui’s accomplices testified directly to a conversation 19 where it was explained to Gracesqui that the purpose of the retaliation was to avenge a drug 20 theft. Accordingly, here, the government submitted evidence that Gracesqui was aware of the 21 drug conspiracy, and the jury was entitled to credit this testimony. 22 23 Gracesqui next argues that certain supplemental jury instructions erroneously allowed the 24 jury to convict him on an aiding and abetting theory related to the Diaz murder, even though the 25 government’s theory of the case was that Gracesqui was the shooter. Gracesqui does not 26 challenge the initial charge, only the supplemental instructions. “We review de novo a claim of 27 error in the district court’s jury instructions and will set aside a judgment secured by an 28 erroneous charge only if the appellant shows that the error was prejudicial in light of the charge 29 as a whole. Jury instructions are erroneous if they mislead the jury or do not adequately inform 30 the jury of the law. It is axiomatic, however, that a jury charge should be examined in its entirety, 31 not scrutinized strand-by-strand.” Uzoukwu v. City of New York, 805 F.3d 409, 414 (2d Cir. 32 2015) (quoting SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 119 (2d 33 Cir. 2006)). 34 35 “[T]he district court must exercise special care to see that inaccuracy or imbalance in 36 supplemental instructions do not poison an otherwise healthy trial. This is especially true since 37 the judge’s last word is apt to be the decisive word.” Tart v. McGann, 697 F.2d 75, 77 (2d Cir. 38 1982) (internal quotation marks and citations omitted). “We will vacate a conviction if the initial 39 jury instructions are faulty, the jury expresses confusion, and the court’s supplemental instruction 40 fails to alleviate the jury’s concerns or only adds to the already-existing confusion … Even if an 41 initial instruction is not itself erroneous or highly confusing, a supplemental instruction prompted 42 by a jury question may be so muddled as to warrant vacatur.” United States v. Kopstein, 759 F.3d 43 168, 172 (2d Cir. 2014). However, “[i]f a supplemental charge is legally correct, the district court 44 enjoys broad discretion in determining how, and under what circumstances, that charge will be 45 given.” United States v. Civelli, 883 F.2d 191, 195 (2d Cir. 1989). 46

3 1 Count One of the indictment charged that Gracesqui, while acting with “others known 2 and unknown, intentionally and knowingly killed, and counseled, commanded, induced, 3 procured, and caused the intentional killing of Richard Diaz,” in violation of 21 U.S.C. § 4 848(e)(1)(A) and 18 U.S.C. § 2. Supp. App’x at 26. The district court’s initial charge tracked this 5 language, which is derived from 21 U.S.C. § 848(e)(1)(A). Gracesqui does not challenge this 6 initial charge, but only certain supplemental charges, in which the district court provided the 7 dictionary definition of the word “act” and directed the jury to read the initial charge again. Since 8 these supplemental instructions were legally sound and added little to the original charge, they 9 were not erroneous. See United States v. Martinez, 419 F. App'x 34, 36-37 (2d Cir. 2011) 10 (summary order) (affirming similar supplemental instructions on 21 U.S.C. § 848(e)(1)(A) 11 charge). Additionally, Gracesqui’s assertion that the jury instructions constituted a prejudicial 12 variance from the indictment is meritless: the indictment charged aiding and abetting liability in 13 the express language of the charge, and included a 18 U.S.C. § 2 charge. 14 15 Gracesqui also argues that the joinder of charges related to the Diaz murder with a charge 16 related to the murder of John Ochoa was erroneous under Fed. R. Crim. P. 8(a) and 14(a). Under 17 Rule 8(a), “[w]e review the District Court’s order to allow joinder of the two counts de novo.” 18 United States v. Lee, 549 F.3d 84, 94 (2d Cir. 2008). Joinder is proper if the offenses have a 19 “sufficient logical connection.” United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990). We 20 conduct a “twofold inquiry: [1] whether joinder of the counts was proper, and if not, [2] whether 21 misjoinder was prejudicial to the defendant.” United States v. Litwok, 678 F.3d 208, 216 (2d Cir. 22 2012) (quoting United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008)). Denial of a Rule 14 23 motion for severance, on the other hand, is reviewed for abuse of discretion. United States v. 24 Sampson, 385 F.3d 183, 190 (2d Cir. 2004). Denials of Rule 14 motions “will not be overturned 25 unless the defendant demonstrates that the failure to sever caused him ‘substantial prejudice’ in 26 the form of a ‘miscarriage of justice.’” Id. (quoting United States v. Blakney, 941 F.2d 114, 116 27 (2d Cir. 1991)). 28 29 Here, joinder was proper. While the Ochoa murder occurred at a different time and place 30 than the Diaz murder, and was not part of a continuous scheme, both murders were drug-related, 31 and both involved Gracesqui and Julio Guerrero. Thus the evidence about the relationship 32 between the two, and their shared history of criminal activity that led to the murders, would have 33 been relevant to both trials. Finally, the fact that the jury acquitted on the only charge related to 34 the Ochoa murder is a strong indication that Gracesqui was not unduly prejudiced by the joinder. 35 36 Last, Gracesqui contends that the district court improperly admitted evidence of prior bad 37 acts under Fed. R. Evid. 404(b), and that the cumulative impact of the evidence was so 38 prejudicial as to require a new trial. “A district court’s evidentiary rulings are subject to review 39 for abuse of discretion.” United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011). “This Circuit 40 has adopted an ‘inclusionary’ approach to other act evidence under Rule 404(b), which allows 41 such evidence to be admitted for any purpose other than to demonstrate criminal propensity.” 42 United States v. Scott, 677 F.3d 72, 79 (2d Cir. 2012) (quoting United States v. LaFlam, 369 F.3d 43 153, 156 (2d Cir 2004). “The district court can, for example, admit evidence of prior acts to 44 inform the jury of the background of the conspiracy charged, in order to help explain how the 45 illegal relationship between participants in the crime developed, or to explain the mutual trust 46 that existed between coconspirators.” Dupree, 870 F.3d at 76 (quoting United States v. Diaz, 176

4 1 F.3d 52, 79 (2d Cir. 1999)) (internal quotation marks omitted); see also United States v. Reifler, 2 446 F.3d 65, 91 (2d Cir. 2006). “We have, however, emphasized that this inclusionary rule is not 3 a carte blanche to admit prejudicial extrinsic act evidence when … it is offered to prove 4 propensity.” Scott, 677 F.3d at 79. 5 6 “When reviewing evidence admitted pursuant to Rule 404(b), we consider whether: (1) 7 the prior crimes evidence was offered for a proper purpose; (2) the evidence was relevant to a 8 disputed issue; (3) the probative value of the evidence was substantially outweighed by its 9 potential for unfair prejudice pursuant to Rule 403; and (4) the court administered an appropriate 10 limiting instruction.” Curley, 639 F.3d at 56-57 (quoting United States v. McCallum, 584 F.3d 11 471, 475 (2d Cir. 2009)) (internal quotation marks omitted). 12 13 Gracesqui primarily challenges the admissions of evidence of prior criminal activity and 14 gun and weaponry possession. However, the evidence of prior criminal activity was not unfairly 15 prejudicial under our precedents. We have previously permitted similar background evidence to 16 show the evolution of the relationship between participants in the crime, and demonstrate how 17 discussions of extreme criminal activity—that might otherwise seem farfetched—were not 18 atypical for the defendant. Dupree, 870 F.3d at 76-77; Reifler, 446 F.3d at 91-93. Further, the 19 gun- and weaponry-related evidence was clearly relevant to a proper purpose: namely, to show 20 that Gracesqui had access to the specific type of gun used in the murders, and possessed a 21 bulletproof vest, which an eyewitness testified was worn by Diaz’s murderer. Finally, the district 22 court issued appropriate limiting instructions. Accordingly, the district court did not abuse its 23 discretion in admitting this evidence. 24 25 We have considered the remainder of Gracesqui’s arguments and find them to be without 26 merit. Accordingly, the order of the district court hereby is AFFIRMED. 27 28 FOR THE COURT: 29 Catherine O’Hagan Wolfe, Clerk 30