19-1379 United States v. Pedro Gonzalez Cueto
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 8th day of May, two thousand twenty. 4 5 Present: JOHN M. WALKER, JR., 6 ROSEMARY S. POOLER, 7 GERARD E. LYNCH, 8 Circuit Judges. 9 _____________________________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee, 14 15 v. 19-1379 16 17 PEDRO GONZALEZ CUETO, 18 19 Defendant-Appellant. 1 20 _____________________________________________________ 21 22 Appearing for Appellant: Devin McLaughlin, Langrock, Sperry & Wool, LLP (William A. 23 Vasilious II, on the brief), Middlebury, VT. 24 25 Appearing for Appellee: David J. Lizmi, Assistant United States Attorney (Amy Busa, 26 Assistant United States Attorney, on the brief), for Richard P. 27 Donoghue, United States Attorney for the Eastern District of New 28 York, Brooklyn, N.Y. 29 . 30
1 The Clerk of Court is directed to amend the caption as above. 1 Appeal from the United States District Court for the Eastern District of New York 2 (Glasser, J.). 3 4 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 5 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 6 7 Pedro Gonzalez Cueto appeals from the May 7, 2019 judgment of the United States 8 District Court for the Eastern District of New York (Glasser, J.) sentencing him to five years’ 9 imprisonment following his conviction of one count of conspiracy to import cocaine, in violation 10 of 21 U.S.C. §§ 963, 960(b)(2)(B)(ii); one count of importation of cocaine in violation of 21 11 U.S.C. §§ 952(a), 960(a)(1), 960(b)(2)(B)(ii); one count of conspiracy to possess with intent to 12 distribute cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(ii)(II); and one count of 13 possession with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 14 841(b)(1)(B)(ii)(II). Gonzalez Cueto was sentenced to five years’ imprisonment and four years’ 15 supervised release. We assume the parties’ familiarity with the underlying facts, procedural 16 history, and specification of issues for review. 17 18 On appeal, Gonzalez Cueto argues that the district court made three erroneous 19 evidentiary rulings. We review evidentiary rulings “for abuse of discretion, which we will 20 identify only if the ruling was arbitrary and irrational.” United States v. Coppola, 671 F.3d 220, 21 244 (2d Cir. 2012) (internal quotation marks and citation omitted). This review “is highly 22 deferential in recognition of the district court’s superior position to assess relevancy and to weigh 23 the probative value of evidence against its potential for unfair prejudice.” Id. (internal quotation 24 marks and citation omitted). 25 26 Gonzalez Cueto argues that the district court abused its discretion in admitting co- 27 conspirator hearsay statements introduced during the testimony of Joel Yarleque. As explained in 28 United States v. Gupta: 29 30 Under Rule 801(d), an out-of-court statement offered for the truth 31 of its contents is not hearsay if the statement is offered against an 32 opposing party and it was made by the party's coconspirator during 33 and in furtherance of the conspiracy. Thus, in order to admit a 34 statement under this Rule, the court must find (a) that there was a 35 conspiracy, (b) that its members included the declarant and the party 36 against whom the statement is offered, and (c) that the statement was 37 made during the course of and in furtherance of the conspiracy. In 38 determining the existence and membership of the alleged 39 conspiracy, the court must consider the circumstances surrounding 40 the statement, as well as the contents of the alleged coconspirator’s 41 statement itself. 42 43 747 F.3d 111, 123 (2d Cir. 2014) (internal quotation marks, brackets, and citations omitted). 44 Yarleque’s testimony was more than sufficient to establish the prerequisites for the admission of 45 the hearsay statements of a co-conspirator pursuant to Fed. R. Evid. 801(d). Gonzalez Cueto 46 argues that the testimony should not have been admitted because the judge’s finding that the 1 prerequisites were met had been made before trial based on a proffer of expected testimony by 2 “CW-1,” and at that time the district court was under the impression that CW-1 was another co- 3 conspirator, Yarleque’s uncle Walter. We review this argument only for plain error because 4 Gonzalez Cueto did not renew his objection at trial when CW-1 turned out to be Yarleque, rather 5 than Walter. See United States v. Pierce, 785 F.3d 832, 840 (2d Cir. 2015) (“[B]ecause [the 6 defendant] failed to raise these objections at trial we review the admission of this evidence for 7 plain error.”). We identify no error, and certainly no plain error, in the admission of the co- 8 conspirator statements. The testimony supported the findings and, if credible, was sufficient 9 regardless of whether Walter or Yarleque provided it. Gonzalez Cueto never argued to the 10 district court that its pretrial ruling should be revisited to address the credibility of the testimony, 11 and the district court never indicated before trial that its ruling hinged on the credibility of Walter 12 (who had not testified in person) nor indicated during trial that it had any reservation about the 13 continued validity of its ruling after hearing live testimony from Joel. 14 15 Gonzalez Cueto next argues that the district court erred by excluding testimony from 16 former defense counsel about incidents suggesting that he was technologically inept, to support 17 his argument that he did not intentionally interfere with the recording application during the 18 controlled delivery. However, there was uncontested testimony that the recording application 19 during the controlled delivery did not require Gonzalez Cueto to operate any technology at all; 20 instead, the application was set to record so long as he left his phone in his pocket, as he was 21 clearly instructed to do. Accordingly, testimony that Gonzalez Cueto struggled with different 22 technology on other occasions was of limited relevance, and the district court did not abuse its 23 discretion by excluding it. 24 25 Finally, Gonzalez Cueto challenges the admission of evidence that he made previous trips 26 to Peru to bring cocaine into the United States, arguing that it was not probative of his 27 knowledge of the contents of his suitcase on the occasion charged in the indictment. We 28 disagree.
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19-1379 United States v. Pedro Gonzalez Cueto
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 8th day of May, two thousand twenty. 4 5 Present: JOHN M. WALKER, JR., 6 ROSEMARY S. POOLER, 7 GERARD E. LYNCH, 8 Circuit Judges. 9 _____________________________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee, 14 15 v. 19-1379 16 17 PEDRO GONZALEZ CUETO, 18 19 Defendant-Appellant. 1 20 _____________________________________________________ 21 22 Appearing for Appellant: Devin McLaughlin, Langrock, Sperry & Wool, LLP (William A. 23 Vasilious II, on the brief), Middlebury, VT. 24 25 Appearing for Appellee: David J. Lizmi, Assistant United States Attorney (Amy Busa, 26 Assistant United States Attorney, on the brief), for Richard P. 27 Donoghue, United States Attorney for the Eastern District of New 28 York, Brooklyn, N.Y. 29 . 30
1 The Clerk of Court is directed to amend the caption as above. 1 Appeal from the United States District Court for the Eastern District of New York 2 (Glasser, J.). 3 4 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 5 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 6 7 Pedro Gonzalez Cueto appeals from the May 7, 2019 judgment of the United States 8 District Court for the Eastern District of New York (Glasser, J.) sentencing him to five years’ 9 imprisonment following his conviction of one count of conspiracy to import cocaine, in violation 10 of 21 U.S.C. §§ 963, 960(b)(2)(B)(ii); one count of importation of cocaine in violation of 21 11 U.S.C. §§ 952(a), 960(a)(1), 960(b)(2)(B)(ii); one count of conspiracy to possess with intent to 12 distribute cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(ii)(II); and one count of 13 possession with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 14 841(b)(1)(B)(ii)(II). Gonzalez Cueto was sentenced to five years’ imprisonment and four years’ 15 supervised release. We assume the parties’ familiarity with the underlying facts, procedural 16 history, and specification of issues for review. 17 18 On appeal, Gonzalez Cueto argues that the district court made three erroneous 19 evidentiary rulings. We review evidentiary rulings “for abuse of discretion, which we will 20 identify only if the ruling was arbitrary and irrational.” United States v. Coppola, 671 F.3d 220, 21 244 (2d Cir. 2012) (internal quotation marks and citation omitted). This review “is highly 22 deferential in recognition of the district court’s superior position to assess relevancy and to weigh 23 the probative value of evidence against its potential for unfair prejudice.” Id. (internal quotation 24 marks and citation omitted). 25 26 Gonzalez Cueto argues that the district court abused its discretion in admitting co- 27 conspirator hearsay statements introduced during the testimony of Joel Yarleque. As explained in 28 United States v. Gupta: 29 30 Under Rule 801(d), an out-of-court statement offered for the truth 31 of its contents is not hearsay if the statement is offered against an 32 opposing party and it was made by the party's coconspirator during 33 and in furtherance of the conspiracy. Thus, in order to admit a 34 statement under this Rule, the court must find (a) that there was a 35 conspiracy, (b) that its members included the declarant and the party 36 against whom the statement is offered, and (c) that the statement was 37 made during the course of and in furtherance of the conspiracy. In 38 determining the existence and membership of the alleged 39 conspiracy, the court must consider the circumstances surrounding 40 the statement, as well as the contents of the alleged coconspirator’s 41 statement itself. 42 43 747 F.3d 111, 123 (2d Cir. 2014) (internal quotation marks, brackets, and citations omitted). 44 Yarleque’s testimony was more than sufficient to establish the prerequisites for the admission of 45 the hearsay statements of a co-conspirator pursuant to Fed. R. Evid. 801(d). Gonzalez Cueto 46 argues that the testimony should not have been admitted because the judge’s finding that the 1 prerequisites were met had been made before trial based on a proffer of expected testimony by 2 “CW-1,” and at that time the district court was under the impression that CW-1 was another co- 3 conspirator, Yarleque’s uncle Walter. We review this argument only for plain error because 4 Gonzalez Cueto did not renew his objection at trial when CW-1 turned out to be Yarleque, rather 5 than Walter. See United States v. Pierce, 785 F.3d 832, 840 (2d Cir. 2015) (“[B]ecause [the 6 defendant] failed to raise these objections at trial we review the admission of this evidence for 7 plain error.”). We identify no error, and certainly no plain error, in the admission of the co- 8 conspirator statements. The testimony supported the findings and, if credible, was sufficient 9 regardless of whether Walter or Yarleque provided it. Gonzalez Cueto never argued to the 10 district court that its pretrial ruling should be revisited to address the credibility of the testimony, 11 and the district court never indicated before trial that its ruling hinged on the credibility of Walter 12 (who had not testified in person) nor indicated during trial that it had any reservation about the 13 continued validity of its ruling after hearing live testimony from Joel. 14 15 Gonzalez Cueto next argues that the district court erred by excluding testimony from 16 former defense counsel about incidents suggesting that he was technologically inept, to support 17 his argument that he did not intentionally interfere with the recording application during the 18 controlled delivery. However, there was uncontested testimony that the recording application 19 during the controlled delivery did not require Gonzalez Cueto to operate any technology at all; 20 instead, the application was set to record so long as he left his phone in his pocket, as he was 21 clearly instructed to do. Accordingly, testimony that Gonzalez Cueto struggled with different 22 technology on other occasions was of limited relevance, and the district court did not abuse its 23 discretion by excluding it. 24 25 Finally, Gonzalez Cueto challenges the admission of evidence that he made previous trips 26 to Peru to bring cocaine into the United States, arguing that it was not probative of his 27 knowledge of the contents of his suitcase on the occasion charged in the indictment. We 28 disagree. Moreover, we fail to see any prejudicial effect, as this evidence was introduced through 29 Joel Yarleque, whose testimony the jury was free to credit or discredit. To the extent the jury 30 believed his testimony that Gonzalez Cueto was a knowing participant in the conspiracy with 31 Joel and Raul with respect to the most recent trip to Peru, then any testimony about his previous 32 trips with the same co-conspirators did not further prejudice him. Accordingly, the district court 33 did not abuse its discretion in admitting this evidence. 34 35 Gonzalez Cueto also challenges the district court’s refusal to provide him with “safety- 36 valve” relief during sentencing. We review the sentencing court’s interpretation of the safety 37 valve provisions de novo. United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997). The safety 38 valve provisions set forth in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 direct a district court to 39 sentence without regard to an applicable statutory mandatory minimum if the defendant 40 establishes five factors, the one relevant here being the fifth: “not later than the time of the 41 sentencing hearing, the defendant has truthfully provided to the Government all information and 42 evidence the defendant has concerning the offense.” Ortiz, 136 F.3d at 883 (internal quotation 43 marks and citation omitted); see also 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The burden is on 44 the defendant to prove entitlement to safety-valve relief by a preponderance of the evidence. See 45 United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006). That is because “[t]he defendant has 1 full knowledge of the scope of his wrongdoing, and it is the defendant who seeks an adjustment 2 in the otherwise applicable sentencing range.” Id. 3 4 The district court did not commit error in rejecting the safety valve application. The 5 district court found that Gonzalez Cueto failed to provide the government with all information 6 and evidence: 7 8 You knew or had a good reason to know that what you were carrying 9 in your suitcase the many times that you traveled from Peru to New 10 York was something that you shouldn’t be bringing to the United 11 States. You knew or didn’t want to know. You had a pretty good 12 idea that what you were being asked to bring to the United States 13 and being given money to do it was wrong because there was 14 something in those suitcases that shouldn’t be being brought into the 15 United States. In this case it was over two kilograms of cocaine. It’s 16 a lot of cocaine . . . His testimony when he was called here to testify 17 was not truthful . . . He pretty much denied everything that was fairly 18 obvious and testified to by witnesses . . . 19 20 App’x at 33-35. Gonzalez Cueto argues that the district court’s reliance on his testimony at trial 21 was in error because he subsequently proffered with the Government. However, Gonzalez Cueto 22 claimed at sentencing that he testified “honestly and truthfully” at trial and that his statements at 23 the proffer session were consistent with that testimony. [App’x 26] Thus, the district court did 24 not err in concluding that Gonzalez Cueto was not entitled to safety-valve relief because it found 25 that he was untruthful about his involvement in the offense at trial, and he maintained that 26 version of the events during the proffer. 27 28 We have considered the remainder of Gonzalez Cueto’s arguments and find them to be 29 without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. 30 31 FOR THE COURT: 32 Catherine O’Hagan Wolfe, Clerk 33 34