21-885-cr (L) United States v. Hernandez
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 22nd day of January, two thousand twenty-four.
PRESENT: GUIDO CALABRESI, ALISON J. NATHAN, Circuit Judges. SARALA V. NAGALA, District Judge. _____________________________________
United States of America
Appellee,
v. No. 21-885-cr (L), 22-334 (Con)
Victor Hugo Diaz Morales, AKA Victor Hugo Villegas Castillo, AKA Rojo, Mario Jose Calix Hernandez, Mauricio Hernandez Pineda, Amado Beltran Beltran, AKA Don Amado, Otto Rene Salguero Morales, AKA Otto Salguero, Ronald Enrique Salguero Portillo, AKA Ronald Salguero, Fernando Felix Rodriguez, AKA Don Fernando,
Defendants,
Juan Antonio Hernandez Alvarado, AKA Tony Hernandez, Geovanny Fuentes Ramirez, AKA Sealed Defendant 1,
Defendants-Appellants. _____________________________________
FOR DEFENDANT-APPELLANT JUAN ANTONIO HERNANDEZ ALVARADO: JESSE M. SIEGEL, Law Office of Jesse Siegel, New York, NY.
FOR DEFENDANT-APPELLANT GEOVANNY FUENTES RAMIREZ: JAY S. OVSIOVITCH, Federal Public Defender’s Office, Western District of New York, Rochester, NY.
FOR APPELLEE: JACOB H. GUTWILLIG (Jason Richman, Hagan Scotten, on the briefs), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
2 Appeal from judgments of the United States District Court for the Southern
District of New York (Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the district court are
AFFIRMED.
In these consolidated appeals, Defendants-Appellants Juan Antonio
Hernandez Alvarado (Hernandez) and Geovanny Fuentes Ramirez (Fuentes
Ramirez) appeal from judgments of the United States District Court for the
Southern District of New York (Castel, J.) convicting them following separate jury
trials for their roles in a large-scale conspiracy to traffic cocaine from Honduras
into the United States. On March 31, 2021, Hernandez was convicted of
conspiring to import cocaine into the United States in violation of 21 U.S.C. § 963,
using and conspiring to use machineguns in furtherance of that conspiracy in
violation of 18 U.S.C. § 924(c) and (o), and making false statements to law
enforcement in violation of 18 U.S.C. § 1001. On February 8, 2022, Fuentes
Ramirez was similarly convicted of conspiring to import cocaine into the United
States and using and conspiring to use machineguns in furtherance of the
3 conspiracy, in violation of 21 U.S.C § 963 and 18 U.S.C. § 924(c) and (o). Both were
sentenced principally to life imprisonment followed by a mandatory consecutive
term of 30 years’ imprisonment.
Hernandez and Fuentes Ramirez raise a variety of claims arising from their
separate trials. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal, to which we refer only as necessary to
explain our decision.
I. Hernandez’s Trial
Hernandez advances three claims on appeal that he argues warrant vacating
his conviction. First, he argues that statements he made without counsel during
a post-arrest interview were wrongly admitted at trial because the interview
violated professional ethical rules applying to government attorneys, the Fifth
Amendment, and the Sixth Amendment. Second, he argues that improper
prosecutorial comments during summation deprived him of a fair trial in violation
of due process. And third, he argues that the district court failed to adequately
investigate potential juror misconduct or bias after an alternate juror raised
concerns about his safety in a note to the court. We consider each argument in
turn.
4 A. The Post-Arrest Statement
Hernandez was arrested by Customs and Border Patrol agents in 2018 at the
Miami International Airport, having already been indicted. Shortly thereafter, he
gave a recorded interview without counsel to agents from the Drug Enforcement
Administration (DEA), in which he admitted to knowing various drug traffickers
in Honduras and receiving offers to work with them but denied involvement in
any drug trafficking with them. Hernandez unsuccessfully moved to suppress
the interview.
On appeal, Hernandez advances the same arguments for suppression that
the district court rejected. He argues that government attorneys directed the DEA
agents to interview him without counsel present despite knowing he was
represented by counsel, in violation of applicable ethics rules for attorneys, and
that the agents interviewed him without counsel despite his invocation of his right
to counsel under the Fifth and Sixth Amendments. In an appeal challenging the
denial of a suppression motion, we review the district court’s factual findings for
clear error and its legal holdings de novo. United States v. Stewart, 551 F.3d 187,
190-91 (2d Cir. 2009).
The no-contact rule generally prohibits an attorney from directly contacting
5 a party regarding a matter when the attorney knows the party is represented by a
lawyer in that matter. See United States v. Hammad, 858 F.2d 834, 837 (2d Cir.
1988). In Hammad, we held that suppression can be warranted for statements
obtained by prosecutors in violation of the no-contact rule. See id. at 840.
In addition, the Fifth Amendment provides a right to counsel in custodial
interrogations and the Sixth Amendment provides a right to counsel in critical
proceedings (including interrogations) after criminal proceedings have
commenced. See Edwards v. Arizona, 451 U.S. 477, 481-82 (1981); Montejo v.
Louisiana, 556 U.S. 778, 786 (2009). An individual can waive the right to counsel
under both amendments, if that waiver is knowing, voluntary, and intelligent.
See United States v. Gonzalez, 764 F.3d 159, 166 (2d Cir. 2014); Montejo, 556 U.S. at
786. Moreover, even after invoking the right to counsel under either amendment,
an individual may reinitiate interrogation and then validly waive the right. See
Montejo, 556 U.S. at 798; Gonzalez, 764 F.3d at 166 (citing Edwards, 451 U.S. at 485).
Here, after Hernandez told the DEA agents who arrested him that he wished
to cooperate, the agents asked him, in Spanish, if he currently had a lawyer.
Hernandez replied that he had not spoken in over a year to Manuel Retureta, an
attorney who represented him in connection with a proffer to the government that
6 occurred approximately two years prior, but that he “would like to call him first.”
Hernandez App’x at 116. After getting permission from two Assistant United
States Attorneys (AUSAs), the agents then attempted to call Retureta but were
unable to reach him. The agents consulted with the AUSAs again, who advised
them not to interview Hernandez at that time. In addition to knowing of
Retureta’s representation of Hernandez at the earlier proffer, one of the AUSAs
had also received an email from Retureta about Hernandez roughly a year and a
half before the arrest.
However, after the agents informed Hernandez that they were going to
process him and take him to jail without an interview, Hernandez “stated that he
wanted to speak with Agents at this moment and start cooperating.” Id. At that
point, the agents again tried unsuccessfully to reach Retureta. They again asked
if Hernandez currently had a lawyer, to which he responded that he did not know.
With this information, the AUSAs then told the agents to proceed with an
interview. The agents advised Hernandez of his rights, Hernandez stated that he
understood his rights, and Hernandez read and signed a form waiving his Miranda
rights before proceeding with the interview.
When the videotaped interview began, the agents confirmed, on the record,
7 the bottom line of their earlier exchange with Hernandez. One stated, “I just want
. . . to repeat here what you told me earlier. That you wish to proceed and make
a statement and talk with us.” Hernandez App’x at 55. The agent continued:
“You do not have legal representation today . . . now. . . . You will be talking to a
lawyer in the future, but you wish to start this process now.” Id. Hernandez
then replied: “That’s right. I want to start.” Id. On this record, we agree with
the district court that the post-arrest interview should not have been suppressed.
First, admitting statements from the interview did not run afoul of Hammad.
The relevant rule governing the AUSAs’ conduct prohibits a lawyer from
communicating about a matter “with a party the lawyer knows to be represented
by another lawyer in the matter.” N.Y. R. Prof’l Conduct 4.2(a). A comment to
the rule clarifies that “know” here means actual knowledge: “This means that the
lawyer has actual knowledge of the fact of the representation; but such knowledge
may be inferred from the circumstances.” Id. cmt. 8; see also N.Y. R. Prof’l
Conduct 1.0(k) (“‘Knowingly,’ ‘known,’ ‘know,’ or ‘knows’ denotes actual
knowledge of the fact in question.”). Based on the record of the interactions
between the AUSAs, the DEA agents, and Hernandez, as well as statements made
by the AUSAs on the record in the suppression hearing, the district court
8 concluded that the attorneys did not have actual knowledge that Hernandez had
legal counsel at the time—a finding with which we see no clear error.
Hernandez cites one case from an intermediate New York appellate court
suggesting that, notwithstanding the text of the rule, it can be violated when
attorneys merely should have known that a witness was represented by counsel.
See In Re Izzo, 155 A.D.3d 109, 111-12 (N.Y. App. Div. 2017); but see Grievance Comm.
for S. Dist. Of N.Y. v. Simels, 48 F.3d 640, 645-46 (2d Cir. 1995) (concluding that the
interpretation of New York’s no-contact rule “as it applies to federal criminal law
practice should be and is a matter of federal law”). We do not need to resolve this
issue, because there is insufficient evidence in the record to support even that form
of constructive knowledge here. The government attorneys knew that Retureta
had represented Hernandez in a proffer having to do with events underlying the
present indictment, but they had not heard from Retureta regarding Hernandez in
roughly a year and a half. And according to Hernandez, he had lost touch with
Retureta and did not know if he had any legal representation. Based on these
facts, we cannot conclude that the AUSAs should have known better than
Hernandez himself whether he was represented by Retureta.
Second, the interview did not violate Hernandez’s right to counsel under
9 the Fifth and Sixth Amendments. Assuming for the sake of argument that
Hernandez’s statement that he would like to call Retureta—in response to the
question of whether he had a lawyer—was a clear and unequivocal invocation of
his right to counsel, he then voluntarily reinitiated conversation with the DEA
agents. As the district court found, after the agents told him he would be
processed without an interview, he told the agents—without being asked any
further questions—that he wanted to speak to them “at th[at] moment and start
cooperating.” Hernandez App’x at 116. It was thus Hernandez, not the DEA
agents, who initiated the questioning. The record shows that Hernandez then
voluntarily and knowingly waived his right to counsel when he signed a waiver
of his Miranda rights. See Montejo, 556 U.S. at 786-87 (noting that waiver of
Miranda rights is typically sufficient to waive Sixth Amendment right to counsel).
Statements from the interview were therefore properly admitted at trial. Cf.
United States v. Gonzalez, 764 F.3d at 166-67 (finding that previously invoked right
to counsel was subsequently waived when defendant reinitiated conversation
with law enforcement).
B. Prosecutorial Misconduct
Hernandez takes issue with some of the remarks made by the prosecution
10 during summation, claiming that the prosecution improperly attacked the
integrity and motives of defense counsel before the jury. In seeking a new trial
on this alleged prosecutorial misconduct, Hernandez faces a “heavy burden,
because the misconduct alleged must be so severe and significant as to result in
the denial of his right to a fair trial.” United States v. Banki, 685 F.3d 99, 120 (2d
Cir. 2012) (cleaned up). He fails to carry that burden in this case.
“The prosecution and the defense are generally entitled to wide latitude
during closing arguments, so long as they do not misstate the evidence.” United
States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998). Even if the prosecution makes
improper comments, we will reverse only when the comments resulted in
substantial prejudice, which we evaluate based on “the severity of the alleged
misconduct, the measures adopted to cure it, and the certainty of conviction absent
the misconduct.” Id. “[R]arely will an improper summation meet the requisite
level of prejudice.” United States v. Daugerdas, 837 F.3d 212, 227 (2d Cir. 2016)
(quotation marks omitted). Finally, where, as here, a party fails to object to the
remarks, we review for plain error—which in this context means that we will
reverse only if we find “flagrant abuse” that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Carr, 424
11 F.3d 213, 227 (2d Cir. 2005) (quotation marks omitted).
On this standard, the prosecution’s comments identified by Hernandez do
not warrant reversal. The prosecution’s comments to the jury that certain
arguments advanced by defense counsel were “[w]rong,” “just wrong,” and
“[a]bsolutely false,” as well as its comment that “[n]othing that the defense counsel
argues now can change the facts that are in evidence,” reflect permissible advocacy
and argument. Nor did the prosecution overstep by characterizing the defense’s
attacks on witness credibility and chains of custody for physical evidence as
distractions. See United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012) (“[W]e do
not think it improper or excessive, without more, for a prosecutor to criticize
defense arguments as merely being attempts to ‘grasp at straws’ or ‘focus on
distractions.’”); Carr, 424 F.3d at 227 (“[T]he government is allowed to respond to
an argument that impugns its integrity or the integrity of the case . . . .”); United
States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992) (allowing remarks in prosecution’s
initial and rebuttal summations that defense arguments were “‘smoke screens,’
game-playing, distractions, and distortions”).
This was certainly not “flagrant abuse.” Carr, 424 F.3d at 227. We thus
find no violation of Hernandez’s right to a fair trial based on the prosecution’s
12 remarks.
C. Investigation of Juror Note
During the trial, an alternate juror transmitted a note to Judge Castel in
which he expressed concerns about the safety of the jury and whether “it would
be in the interests of several parties to interfere with the jury either in the form of
persuasion or worse,” since “the traffickers have the means, money, and motive to
try something nefarious.” Hernandez App’x at 768. The note added, “This in
no way affects my impartiality, nor have I mentioned it to the other jury
members.” Id. Finally, it contained an additional message on the reverse side
apparently added a day later: “Since writing this note yesterday, myself and at
least one other juror noticed we were photographed at close range just outside the
courthouse by what appeared to be an individual with no media logo or
identification. The photo was taken on a cellphone.” Id. The district court
dismissed the alternate juror with the parties’ agreement, but, reasoning that the
juror had not communicated these concerns to any others and “loathe [sic] to
conduct an inquiry which plants the seeds of concern where they may not exist,”
the court did not pursue further investigation into potential jury intimidation or
bias as requested by defense counsel. Id. at 775-78.
13 On appeal, Hernandez argues that failure to investigate this matter further
deprived him of his rights to due process and a trial by an impartial jury. “A
district court’s investigation of juror misconduct or bias is a delicate and complex
task.” United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (internal quotation marks
omitted). We review the court’s handling of such matters for abuse of discretion,
aware that the district court “has broad flexibility in such matters . . . .” Id.
(quotation marks omitted). In particular, the court must balance its obligation to
“investigate and, if necessary, correct a problem” with the need to “avoid tainting
a jury unnecessarily.” Id. at 88. Accordingly, “[i]n this endeavor, sometimes less
is more.” Id. We hold that the district court did not abuse its discretion in
handling this matter.
Here, the note did not evidence any jury problems beyond the alternate
juror’s own individual concerns about “nefarious” traffickers. The alternate juror
adhered to the instructions of the court, which informed jurors at the outset as
follows: “[I]f it becomes necessary to send the Court a note about something you
saw or heard or about any other matter, do not share the content of the note with
your fellow jurors.” Hernandez App’x at 233. The alternate juror’s note
explicitly stated that he had not discussed his safety concerns with anyone else.
14 Nor does the note’s additional mention of “at least one other juror
notic[ing]” being photographed suggest that any discussion took place among the
jury or evidence any other improper jury communications. Hernandez App’x at
768. And questioning jurors about the incident could have unnecessarily
magnified the event, causing more harm than good.
Hernandez suggests that the court should have questioned the alternate
juror outside the presence of the rest of the jury as to whether he discussed his
concerns with others, before dismissing him. This approach could have provided
additional assurance that the jury had not been tainted in any way without sowing
unnecessary concerns. But it was not an abuse of discretion to decline to adopt
that approach, and instead to accept the juror’s representation that he had not
spoken with anyone about his safety concerns—which the note's mention of the
photography incident does not contradict. See Cox, 324 F.3d at 87 (“[A] court
should generally presume that jurors are being honest.”). In dismissing the
alternate juror without conducting a further investigation into the rest of the jury,
the district court did not exceed the bounds of the “broad flexibility” it is afforded
in managing such matters. Id. at 86 (quotation marks omitted); cf. United States v.
Abrams, 137 F.3d 704, 708 (2d Cir. 1998) (finding no abuse of discretion when
15 district court declined further investigation of juror note that “did not explain the
nature of any discussions [among jurors] or even indicate whether such
discussions had taken place”). We therefore reject Hernandez’s argument and,
having rejected all of his arguments on appeal, will affirm his conviction.
II. Fuentes Ramirez’s Trial and Sentence
Fuentes Ramirez also advances three claims on appeal, broadly speaking.
First, he makes several related arguments about the statute of limitations for his
charges. He claims that the charges against him were time-barred, that the
district court should have instructed the jury on the statute of limitations, and that
his trial counsel was constitutionally ineffective for not requesting a specific jury
instruction on the issue. Second, Fuentes Ramirez argues that the district court
abused its discretion in admitting various pieces of evidence and portions of
testimony. And third, he argues that his sentence of life imprisonment is
substantively unreasonable. As with Hernandez, we consider each of Fuentes
Ramirez’s arguments but conclude that none is availing.
A. Statute of Limitations Arguments
Fuentes Ramirez makes several related arguments concerning the statute of
limitations for the charges against him. First, he raises a sufficiency challenge,
16 claiming that there was not enough evidence at trial for a reasonable jury to
conclude that the cocaine trafficking conspiracy he was accused of participating in
continued into the limitations period. He argues that the government presented
no evidence of acts in furtherance of the conspiracy after 2015, five years before he
was indicted. See 18 U.S.C. § 3282(a) (providing five-year statute of limitations).
He further argues that the conspiracy was abandoned in 2013 after he and co-
conspirator Leonel Rivera ceased working together and Rivera began cooperating
with the DEA. We review de novo a challenge to the sufficiency of evidence and
“affirm if the evidence, when viewed in its totality and in the light most favorable
to the government, would permit any rational jury to find the essential elements
of the crime beyond a reasonable doubt.” United States v. Yanotti, 541 F.3d 112,
120 (2d Cir. 2008) (quotation marks omitted). We conclude that is the case here.
As Fuentes Ramirez acknowledges, conspiracy is a continuing offense, for
which the statute of limitations does not begin to run until the conspiracy is
completed or abandoned. See United States v. Eppolito, 543 F.3d 25, 46-47 (2d Cir.
2008). Moreover, Fuentes Ramirez concedes that the government did not need to
prove any overt acts for the specific drug conspiracy offense under which he was
charged, let alone overt acts within the limitations period. See United States v.
17 Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980); United States v. Salmonese, 352 F.3d
608, 620 (2d Cir. 2003) (“In such cases, once the government proves the
conspiracy’s existence, the scheme’s continued operation into the limitations
period is presumed . . . .”). Thus, whether or not the government proved overt
acts in furtherance of the conspiracy after 2015 is of no moment.
As for Fuentes Ramirez’s abandonment argument, the conspiracy the
government charged and presented evidence to prove was far broader than a
simple partnership between Fuentes Ramirez and Rivera. There was ample
evidence, such as testimony from cooperating witnesses regarding Fuentes
Ramirez’s activities with an array of traffickers, politicians, and Honduran
officials, from which the jury could reasonably conclude that he was a part of a
broader cocaine trafficking conspiracy, which would not end simply because
Rivera and Fuentes Ramirez ceased working together.
Fuentes Ramirez also argues that the district court erred by failing to
instruct the jury on the statute of limitations, as he requested. “A conviction will
not be overturned for refusal to give a requested charge unless that requested
instruction is legally correct, represents a theory of [the] defense with [a] basis in
the record that would lead to acquittal, and the theory is not effectively presented
18 elsewhere in the charge.” United States v. Holland, 381 F.3d 80, 84 (2d Cir. 2004)
(cleaned up). The defendant must also carry the “heavy burden of showing that
the charge given was prejudicial.” United States v. Kukushkin, 61 F.4th 327, 332 (2d
Cir. 2023) (internal quotation marks omitted).
After the close of evidence, Fuentes Ramirez’s counsel moved for a
judgment of acquittal, arguing that no evidence demonstrated “any illegal activity
by Mr. Fuentes in the statute of limitations period.” Fuentes Ramirez App’x at
280. After the district court denied the motion, Fuentes Ramirez’s counsel
requested that the court instruct the jury on the statute of limitations based on this
earlier argument. Counsel suggested that there was an appropriate instruction
in Sand’s Modern Federal Jury Instructions but never provided more detail on a
specific instruction. In fact, as the district court discovered, the only instructions
in Sand were for a different conspiracy offense, which requires proof of an overt
act, and for the affirmative defense of withdrawal. See Leonard B. Sand et al., 1
Modern Federal Jury Instructions: Criminal § 19.01. As mentioned earlier,
however, the drug conspiracy with which Fuentes Ramirez was charged does not
require proof of an overt act during the limitations period. And he had not
requested any withdrawal or abandonment instruction. Fuentes Ramirez thus
19 failed to request a legally correct instruction regarding the statute of limitations in
this case.
To the extent that Fuentes Ramirez now argues that the district court erred
by failing to instruct the jury on a different theory of the defense—that Fuentes
Ramirez conspired only with Rivera and that the conspiracy was abandoned
before the limitations period when Rivera began cooperating with the DEA—he
did not request any such instruction. In his brief request he did not mention
Rivera or abandonment at all and only referred to his earlier argument regarding
a lack of acts in furtherance of the conspiracy during the limitations period.
Importantly, when the court instructed the jury, Fuentes Ramirez did not
object. We therefore review any challenge to the instructions given for plain
error. See United States v. Crowley, 318 F.3d 401, 412-414 (2d Cir. 2003). And it
was not plain error for the district court to decline to provide, sua sponte, a jury
instruction regarding an unpresented defense theory. See United States v. Newton,
677 F.2d 16, 17 (2d Cir. 1982) (holding that where defendant made only “a passing
reference to the possibility of [a defense instruction] . . . the trial court was not
under an obligation sua sponte to instruct the jury about the availability of such
an affirmative defense”); United States v. Brettholz, 485 F.2d 483, 490 (2d Cir. 1973)
20 (concluding “it was not error, and certainly not ‘plain error’” for court not to give
unrequested instruction concerning an affirmative defense theory).
Lastly, Fuentes Ramirez argues that his trial counsel was constitutionally
ineffective for failing to request a more specific instruction regarding the statute of
limitations based on an abandonment argument. Lacking an appropriate record
to evaluate counsel’s strategic decisions, we deny this claim without prejudice to
its being raised in a 28 U.S.C. § 2255 proceeding—the preferable avenue for raising
this claim in the first instance. See Massaro v. United States, 538 U.S. 500, 504-05
(2003); United States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003).
B. Evidentiary Challenges
Fuentes-Ramirez also raises a variety of evidentiary challenges on appeal.
“We review evidentiary rulings for abuse of the district court’s broad discretion,
reversing only when the court has acted arbitrarily or irrationally.” United States
v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006) (internal quotation marks omitted).
Our “highly deferential” review is particularly sensitive to “the district court’s
superior position to assess relevancy and to weigh the probative value of evidence
against its potential for unfair prejudice.” United States v. Gabinskaya, 829 F.3d
127, 134 (2d Cir. 2016) (internal quotation marks omitted). As explained below,
21 we conclude that the district court did not abuse its discretion in admitting any of
the evidence in dispute.
The district court did not abuse its discretion when it admitted evidence
from the Instagram and iCloud accounts of Fuentes Ramirez’s son, Geovanny
Daniel Fuentes Gutierrez. Specifically, the court admitted photographs of large
amounts of cash and of ammunition and various weapons, some of which were
overlaid with text or a symbol referencing a slang word for “snitch.” In addition
to the statements in some of the photographs, the court also admitted statements
from two online chats. The court held that all of the statements were admissible
pursuant to the hearsay exclusion for statements of coconspirators. See Fed. R.
Evid. 801(d)(2)(E). On appeal, Fuentes Ramirez claims in a single conclusory
sentence that the photographs were substantially more prejudicial than probative.
But he provides no reason to second-guess the district court’s decision to admit
the photographs, which together served as evidence probative of an ongoing
conspiracy.
As for the statements, the court reasonably concluded that a preponderance
of the evidence could show that Gutierrez was a coconspirator with Fuentes
Ramirez and that the statements were made in furtherance of the conspiracy. See
22 id. The photographs support the conclusion that Gutierrez conspired with
Fuentes Ramirez, as do emails between Fuentes Ramirez and Gutierrez discussing
Fuentes Ramirez’s cocaine laboratory. The disputed statements themselves also
support the finding that the two conspired together. See United States v. Gigante,
166 F.3d 75, 82 (2d Cir. 1999) (noting that the challenged hearsay statement itself
can be considered, alongside other evidence, in establishing the existence of a
conspiracy for the purpose of the hearsay exclusion). In them, Gutierrez
discusses looking into the murder of Fuentes Ramirez’s bodyguards and the
identity of coconspirators discovered by the government investigation that would
eventually lead to Fuentes Ramirez’s trial and conviction. And there is no clear
error in the district court’s determination that these statements concerning events
related to the conspiracy were made in furtherance of it. See United States v.
Maldonado-Rivera, 922 F.2d 934, 958-59 (2d Cir. 1990) (noting the applicable clear
error standard of review and that “statements between coconspirators that may be
found to be in furtherance of the conspiracy include statements that provide
reassurance, or seek to induce a coconspirator's assistance, or serve to foster trust
and cohesiveness, or inform each other as to the progress or status of the
conspiracy”).
23 Fuentes Ramirez principally argues that there was nothing dating this
evidence to after 2013, when he argues the conspiracy terminated. But as
summarized above, there was ample evidence from which to find a conspiracy
continuing past that date—and so to find by a preponderance of the evidence that
Gutierrez’s statements were made in furtherance of an existing conspiracy
including Fuentes Ramirez.
Fuentes Ramirez’s second evidentiary claim regards the testimony of Leonel
Rivera about statements that Fuentes Ramirez made to him while they were both
in prison. Fuentes Ramirez argues that because Rivera was cooperating with the
government, these statements should have been suppressed under Massiah v.
United States, 377 U.S. 201, 204-06 (1964), which prohibits the government from
circumventing the right to counsel by directing an agent to interrogate a defendant
without counsel present. But, as the district court held, there was simply no
evidence that the government ever instructed Rivera to approach Fuentes Ramirez
in prison. Fuentes Ramirez devotes his efforts on appeal to arguing that the
prison encounter was deliberate on the part of Rivera, but he never contests, let
alone refutes, the district court’s reasoning. Because there was no evidence that
the government directed Rivera to approach and elicit information from Fuentes
24 Ramirez, the motion to suppress was properly denied. See United States v.
Whitten, 610 F.3d 168, 193 (2d Cir. 2010).
Lastly, Fuentes Ramirez argues that testimony from Jorge Medina, an
agricultural engineer who had business dealings with Fuentes Ramirez, was
irrelevant and that the probative value of the testimony was substantially
outweighed by its unfair prejudice and tendency to mislead the jury. See Fed. R.
Evid. 403. We disagree. Medina testified that Fuentes Ramirez had police seize
a shipment of agricultural cargo from one of his trucks after a dispute. The
government presented this testimony to show Fuentes Ramirez’s ability to exercise
control over Honduran police for his own ends, which it alleged he did in other
circumstances in furtherance of his drug trafficking activities. This tendency to
make the government’s case more likely to be true is sufficient to clear the “very
low standard for relevance.” United States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir.
2008).
As for unfair prejudice and the risk of misleading the jury (i.e. to think that
the events Medina testified to could themselves prove the charged cocaine
trafficking conspiracy), the district court gave the jury a limiting instruction. It
told the jury that Medina’s testimony did not “relate to activities of the defendant
25 that are charged in the indictment as part of a crime” and was instead “being
offered to show the relationships between the defendant and other groups, other
people.” Fuentes Ramirez App’x at 230. It further instructed that it was “the
government’s position, which the defendant vigorously disagrees with, that this
will show, or help shed some light, on those relationships,” and again emphasized
that Medina’s testimony was “not evidence of the crime charged in this case.” Id.
In light of that limiting instruction and given the seriousness of the charges against
Fuentes Ramirez compared to the conduct Medina testified to, we cannot say that
any unfair prejudice or risk of confusing the jury substantially outweighed the
probative value of Medina’s testimony. Cf. United States v. Williams, 205 F.3d 23,
34 (2d Cir. 2000) (finding “no undue prejudice” when disputed evidence “did not
involve conduct more serious than the charged crime and the district court gave a
proper limiting instruction”). The district court did not abuse its discretion in
admitting Medina’s testimony.
C. Sentencing Challenge
Fuentes Ramirez’s final argument on appeal is that his sentence is
substantively unreasonable. “[O]ur review of a sentence for substantive
reasonableness is particularly deferential,” and we do not “substitut[e] our own
26 judgment for that of district courts . . . .” United States v. Broxmeyer, 699 F.3d 265,
289 (2d Cir. 2012). Sentences are only substantively unreasonable if they are “so
shockingly high, shockingly low, or otherwise unsupportable as a matter of law
that allowing them to stand would damage the administration of justice.” Id.
(internal quotation marks omitted). Moreover, we note that “[i]n the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within
the broad range of sentences that would be reasonable in the particular
circumstances.” United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011).
Applying our deferential standard of review, we conclude that Fuentes
Ramirez’s Guidelines life sentence followed by a mandatory consecutive sentence
of thirty years is not so shockingly high or unsupportable as a matter of law as to
be substantively unreasonable. As the district court observed, Fuentes Ramirez
participated in a massive and violent drug trafficking conspiracy, controlled a
cocaine laboratory that he protected with individuals armed with machineguns,
and took part in five murders—all over the course of eleven years. As Fuentes
Ramirez had committed some of “the most serious types of crimes that one can
commit,” the court determined that the need for the sentence to provide just
punishment, to adequately deter criminal conduct, and to protect the public from
27 further crimes of Fuentes Ramirez was sufficient to warrant the sentence imposed.
Fuentes Ramirez App’x at 366-67; see 18 U.S.C. § 3553(a). Those sentencing
factors “can bear the weight assigned to [them]” in this case and we will not
reweigh the factors ourselves. United States v. Cavera, 550 F.3d 180, 191 (2d Cir.
2008). We therefore decline to disturb the sentence as substantively
unreasonable.
* * *
Having reviewed the records in these trials and the numerous arguments
raised on appeal, we find no errors that would warrant vacating the judgments of
conviction. Nor do we find that the sentence imposed on Fuentes Ramirez is
substantively unreasonable. Accordingly, we AFFIRM the judgments of the
district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court