United States v. Mercado

573 F.3d 138, 2009 U.S. App. LEXIS 15787, 2009 WL 2096234
CourtCourt of Appeals for the Second Circuit
DecidedJuly 17, 2009
DocketDocket 08-1017-cr
StatusPublished
Cited by119 cases

This text of 573 F.3d 138 (United States v. Mercado) 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. Mercado, 573 F.3d 138, 2009 U.S. App. LEXIS 15787, 2009 WL 2096234 (2d Cir. 2009).

Opinions

CALABRESI, Circuit Judge:

Defendant Damion Townsend (“Defendant”) appeals from his conviction for conspiracy to distribute, and possess with intent to distribute, fifty grams or more of cocaine base (“crack”), and an unspecified amount of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(C), and 846, entered by the United States District Court for the Southern District of New York (Keenan, /.). We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal.

I. Sufficiency of the Evidence

Defendant argues that there was insufficient evidence to support his conviction. Specifically, Defendant contends that the Government’s key witness was not credible, that there is no evidence that Defendant planned the drug transaction, and that there is insufficient evidence that De[140]*140fendant was a knowing participant in any illegal conduct and rather that he was just an innocent man driving his friends around.

A. Standard of Review

A defendant challenging the sufficiency of the evidence underlying a criminal conviction bears a “heavy burden,” because this Court “must review the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor.” United States v. Gaskin, 364 F.3d 438, 459 (2d Cir.2004). “Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt.” Id. at 459-60. “In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or ... meager.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003) (internal quotation marks omitted) (omission in original).

B. Discussion

In light of this highly deferential standard of review and the evidence proffered against Defendant, this ground of appeal is meritless. The record includes evidence that Defendant had a relationship with an alleged co-conspirator, Ismaiyl Jones, discussed a drug sale with co-conspirators, drove his co-conspirators around as they planned a drug sale and picked up drugs, went with Jones to pick up cocaine, and helped to turn the cocaine into crack.

Defendant argues that the case against him all depends on Jones being a credible witness and contends that Jones was not credible. To be sure, a great deal of the Government’s case relies upon Jones’ testimony, and because Jones was a paid informant and cooperator, one might reasonably question his credibility. But that does not warrant an acquittal on appeal. For one thing, much of Jones’s testimony was corroborated by eyewitness accounts from law enforcement officers, transmissions heard by a DEA agent, physical evidence, and recordings. Moreover, it is not for us to evaluate the credibility of a witness, a task better left to the jury. See United States v. Thompson, 528 F.3d 110, 119 (2d Cir.2008) (per curiam). The jury that saw Jones testify voted unanimously to convict, and we must accordingly draw all inferences, including inferences as to credibility, in favor of conviction.

Defendant also makes two slightly more specific and related points, that there is no evidence that Defendant planned the drug transaction, and that there is insufficient evidence that Defendant was a knowing participant in any illegal conduct and rather was just an innocent man driving around his friends. Neither of these arguments, however, have any merit. It is necessary that there be evidence that Defendant “knew of the existence of the scheme alleged ... and knowingly joined and participated in it.” United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir.2004) (internal quotation marks omitted). It is, however, in no way necessary that Defendant have planned the encounter. And there is ample evidence that Defendant’s non-planning role was a knowing role. Defendant discussed drug prices, details of a drug transaction, and helped convert cocaine to crack. Defendant contends that this is not enough to support a finding of knowledge on his part. But given our precedents, that argument is unavailing. See, e.g., United States v. Nusraty, 867 F.2d 759, 764 (2d Cir.1989) (listing factors that distinguish innocent conduct from knowing participation in a conspiracy).

II. Admission of Prior Bad Acts Evidence

Defendant further argues that the District Court erred by admitting evidence of [141]*141prior firearms sales, in violation of Rule 404(b) and Rule 408.

We review evidentiary rulings for abuse of discretion. United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d Cir. 2007) (Rule 404(b) determination); United States v. Salameh, 152 F.3d 88, 110 (2d Cir.1998) (per curiam) (Rule 403 determination). “To find such abuse, we must conclude that the trial judge’s evidentiary rulings were arbitrary and irrational.” United States v. Paulino, 445 F.3d 211, 217 (2d Cir.2006) (internal quotation marks omitted). Furthermore, evidentiary rulings are subject to harmless error analysis. Fed.R.Crim.P. 52(a); United States v. Jackson, 301 F.3d 59, 64 (2d Cir.2002). “An erroneous ruling on, the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.” Jackson, 301 F.3d at 65 (quoting United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.1992)).

The Federal Rules of Evidence prohibit admission of “[ejvidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” Fed. R.Evid. 404(b). The Rules, however, do permit such evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
573 F.3d 138, 2009 U.S. App. LEXIS 15787, 2009 WL 2096234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mercado-ca2-2009.