14‐2801‐cr United States of America v. Michael Smith
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 23rd day of October, two thousand fifteen.
PRESENT: CHESTER J. STRAUB, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges.
____________________________________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 14‐2801
MICHAEL SMITH,
Defendant‐Appellant. ____________________________________________
FOR APPELLANT: DIANE POLAN, Polan & Simmons, LLC, New Haven, CT.
FOR APPELLEE: S. DAVE VATTI, (Marc H. Silverman, on the brief), for Deirdre M. Daly, United States Attorney, District of Connecticut, Hartford, CT.
Appeal from the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
After a jury trial, Defendant Michael Smith was convicted of conspiracy to
distribute and to possess with intent to distribute 280 grams or more of cocaine
base and 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846.1 We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues for review.
Smith raises two challenges to his conspiracy conviction on appeal. First,
Smith argues that the district court erred in denying his Motion for Acquittal by
ruling that there was sufficient evidence to support the jury’s quantity
attribution. Whether sufficient evidence existed to support a conviction is
1 The jury also convicted Smith of possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Smith does not challenge this conviction on appeal.
2 reviewed de novo. United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014) (per
curiam). However, the defendant “bears a heavy burden” because “we view the
evidence in the light most favorable to the government, drawing all inferences in
the government’s favor and deferring to the jury’s assessments of the witnesses’
credibility.” Id. (internal quotation marks and citations omitted). “Following
this review, we will sustain the jury’s verdict if ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Id.
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“When a defendant challenges the sufficiency of the evidence in a
conspiracy case, deference to the jury’s findings is especially important because a
conspiracy by its very nature is a secretive operation, and it is a rare case where
all aspects of a conspiracy can be laid bare in court with the precision of a
surgeon’s scalpel.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (internal
quotation marks and alteration omitted). “In a conspiracy punishable under 21
U.S.C. § 841(b)(1)(A), the government must . . . prove . . . that it was either known
or reasonably foreseeable to the defendant that the conspiracy involved the drug
3 type and quantity charged.” Id. at 70‐71 (citing United States v. Adams, 448 F.3d
492, 499 (2d Cir. 2006)).2
Here, viewing the evidence in the light most favorable to the government,
we conclude that the evidence was sufficient to support the jury’s drug quantity
attributions. At trial, FBI Special Agent Michael Zuk properly testified regarding
the lexicon of the narcotics trade. See United States v. Cruz, 363 F.3d 187, 194 (2d
Cir. 2004). The expert testimony provided the jury with ample background
information to decipher the contents of the intercepted communications and to
draw reasonable inferences of fact in light of the wiretap evidence, cooperating
witness testimony, physical surveillance, and physical evidence proffered in
support of the drug quantity attribution at trial. Given the evidence presented to
the jury, the argument that the evidence was insufficient to show that Smith
conspired to distribute 280 grams of cocaine base and 500 grams of cocaine is not
persuasive.
Second, Smith argues that the district court erred in denying his motion to
suppress wiretap evidence because the government exceeded the scope of
permissible disclosure under 18 U.S.C. § 2517(2). “The standard of review for
2 Each defendant in a 21 U.S.C. § 846 conspiracy is responsible for “the aggregate quantity of all the subsidiary transactions attributable to that particular member.” United States v. Pressley, 469 F.3d 63, 66 (2d Cir. 2006) (per curiam).
4 evaluating the district court’s ruling on a suppression motion is clear error as to
the district court’s factual findings, viewing the evidence in the light most
favorable to the government, and de novo as to questions of law.” United States v.
Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004).
In relevant part, Title III expressly provides that “[a]ny investigative or law
enforcement officer who, by any means authorized by this chapter, has obtained
knowledge of the contents of any wire, oral, or electronic communication or
evidence derived therefrom may use such contents to the extent such use is
appropriate to the proper performance of his official duties.” 18 U.S.C. § 2517(2).
The authorization to use evidence obtained through Title III wiretaps clearly
extends to federal prosecutors. See 18 U.S.C. § 2510(7) (“‘Investigative or law
enforcement officer’ means . . . any attorney authorized by law to prosecute or
participate in the prosecution of such offenses.”). The question before this Court,
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14‐2801‐cr United States of America v. Michael Smith
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 23rd day of October, two thousand fifteen.
PRESENT: CHESTER J. STRAUB, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges.
____________________________________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 14‐2801
MICHAEL SMITH,
Defendant‐Appellant. ____________________________________________
FOR APPELLANT: DIANE POLAN, Polan & Simmons, LLC, New Haven, CT.
FOR APPELLEE: S. DAVE VATTI, (Marc H. Silverman, on the brief), for Deirdre M. Daly, United States Attorney, District of Connecticut, Hartford, CT.
Appeal from the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
After a jury trial, Defendant Michael Smith was convicted of conspiracy to
distribute and to possess with intent to distribute 280 grams or more of cocaine
base and 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846.1 We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues for review.
Smith raises two challenges to his conspiracy conviction on appeal. First,
Smith argues that the district court erred in denying his Motion for Acquittal by
ruling that there was sufficient evidence to support the jury’s quantity
attribution. Whether sufficient evidence existed to support a conviction is
1 The jury also convicted Smith of possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Smith does not challenge this conviction on appeal.
2 reviewed de novo. United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014) (per
curiam). However, the defendant “bears a heavy burden” because “we view the
evidence in the light most favorable to the government, drawing all inferences in
the government’s favor and deferring to the jury’s assessments of the witnesses’
credibility.” Id. (internal quotation marks and citations omitted). “Following
this review, we will sustain the jury’s verdict if ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Id.
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“When a defendant challenges the sufficiency of the evidence in a
conspiracy case, deference to the jury’s findings is especially important because a
conspiracy by its very nature is a secretive operation, and it is a rare case where
all aspects of a conspiracy can be laid bare in court with the precision of a
surgeon’s scalpel.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (internal
quotation marks and alteration omitted). “In a conspiracy punishable under 21
U.S.C. § 841(b)(1)(A), the government must . . . prove . . . that it was either known
or reasonably foreseeable to the defendant that the conspiracy involved the drug
3 type and quantity charged.” Id. at 70‐71 (citing United States v. Adams, 448 F.3d
492, 499 (2d Cir. 2006)).2
Here, viewing the evidence in the light most favorable to the government,
we conclude that the evidence was sufficient to support the jury’s drug quantity
attributions. At trial, FBI Special Agent Michael Zuk properly testified regarding
the lexicon of the narcotics trade. See United States v. Cruz, 363 F.3d 187, 194 (2d
Cir. 2004). The expert testimony provided the jury with ample background
information to decipher the contents of the intercepted communications and to
draw reasonable inferences of fact in light of the wiretap evidence, cooperating
witness testimony, physical surveillance, and physical evidence proffered in
support of the drug quantity attribution at trial. Given the evidence presented to
the jury, the argument that the evidence was insufficient to show that Smith
conspired to distribute 280 grams of cocaine base and 500 grams of cocaine is not
persuasive.
Second, Smith argues that the district court erred in denying his motion to
suppress wiretap evidence because the government exceeded the scope of
permissible disclosure under 18 U.S.C. § 2517(2). “The standard of review for
2 Each defendant in a 21 U.S.C. § 846 conspiracy is responsible for “the aggregate quantity of all the subsidiary transactions attributable to that particular member.” United States v. Pressley, 469 F.3d 63, 66 (2d Cir. 2006) (per curiam).
4 evaluating the district court’s ruling on a suppression motion is clear error as to
the district court’s factual findings, viewing the evidence in the light most
favorable to the government, and de novo as to questions of law.” United States v.
Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004).
In relevant part, Title III expressly provides that “[a]ny investigative or law
enforcement officer who, by any means authorized by this chapter, has obtained
knowledge of the contents of any wire, oral, or electronic communication or
evidence derived therefrom may use such contents to the extent such use is
appropriate to the proper performance of his official duties.” 18 U.S.C. § 2517(2).
The authorization to use evidence obtained through Title III wiretaps clearly
extends to federal prosecutors. See 18 U.S.C. § 2510(7) (“‘Investigative or law
enforcement officer’ means . . . any attorney authorized by law to prosecute or
participate in the prosecution of such offenses.”). The question before this Court,
therefore, is whether the prosecutor’s comprehensive disclosure of pertinent
wiretapping evidence across several different indictments is a use “appropriate
to the proper performance of” a prosecutor’s “official duties” under 18 U.S.C. §
2517(2).
5 We conclude that it is. A federal prosecutor has broad duties to disclose
evidence to a defendant in a criminal case. The Federal Rules of Criminal
Procedure provides that the government has a duty to disclose any document
“within the government’s possession” that is “material to preparing the
defense.” Fed. R. Crim. P. 16(a)(1)(E). It is axiomatic that the government also
has a duty to disclose any “evidence favorable to an accused” that is material to
guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Yet the
government’s duty to disclose is narrower in scope than what is appropriate for
it to disclose. See Fed. R. Crim. P. 16(a)(1)(E) (establishing what the government
“must” disclose, without establishing outer limits on what the government
“may” disclose); In Re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93,
124 (2d Cir. 2008) (Rule 16 “establishes base‐line requirements for pretrial
discovery in a criminal case.”).
Incomplete disclosure of wiretap evidence can create information
asymmetries between the government and the defendant. In the present case,
the wiretap applications, affidavits, and communications in the underlying
investigation did not conform to the boundaries later laid down in the
indictments. Thus, the government’s disclosure permitted each defendant to
6 understand the genesis of the entire investigation. In particular, this degree of
disclosure enabled defendants to challenge the probable cause underlying
wiretap applications, since these applications incorporated affidavits referencing
material potentially relating to other indictments. This entirely legitimate
purpose falls squarely within the plain text of 18 U.S.C. § 2517(2).
In light of the government’s disclosure obligations and purposes, the
government’s approach was “appropriate to the proper performance of” a
prosecutor’s “official duties” in this case. 18 U.S.C. § 2517(2). Therefore, the
district court did not err in denying the motion to suppress on this basis.
We have considered all of Smith’s arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk