United States v. Rodriguez

Opinion

23-7280 United States v. Rodriguez

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 TO 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 May, two thousand twenty- five.

PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-7280

JOSHUA RODRIGUEZ,

Defendant-Appellant. _________________________________________

FOR APPELLANT-DEFENDANT: JAMESA J. DRAKE, Drake Law LLC, Auburn, ME. FOR APPELLEE: COURTNEY HEAVEY (Mathew Andrews, James Ligtenberg, Stephanie Simon, on the brief), Assistant United States Attorneys, for Matthew Podolsky, Acting United States Attorney for the Southern District of New York, New York, NY.

Appeal from a criminal judgment entered in the United States District Court

for the Southern District of New York (Rakoff, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on September 26, 2023,

is AFFIRMED.

Defendant-Appellant Joshua Rodriguez appeals from a criminal judgment

convicting him following a jury trial of, among other charges, murder through the

use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(j)(1). 1

We assume the parties’ familiarity with the underlying facts, procedural history,

and arguments on appeal, to which we refer only as necessary to explain our

decision.

1 Rodriguez was also convicted of (1) conspiracy to distribute or possess with intent to distribute marijuana in violation of 8 U.S.C. §§ 846, 841(b)(1)(C); and (2) possessing with intent to distribute marijuana in violation of 8 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(D). He does not challenge those convictions on appeal.

2 The government introduced evidence at trial that Rodriguez sold marijuana

at 1408 Webster in the Bronx. In 2017, Jaquan Millien began selling marijuana from

the sixth floor of 1408 Webster, where his girlfriend, Yanellie Ramirez, lived.

Rodriguez was upset that Millien’s marijuana business competed with his.

About six months after a physical altercation between Rodriguez and

Millien arising from this conflict, in October 2018, Millien was fatally shot in the

stairwell of 1408 Webster. His five-year-old son was also shot but survived the

incident. Edwin Mena—a resident of the building at the time who was dating

Rodriguez’s mother and was thus familiar with Rodriguez—heard a noise from

the gunshots and went into the hallway of the eighth floor to see what happened.

He heard crying from one of the stairwells, opened the door and started going

down, then saw Rodriguez running up the staircase with a gun in his hand stating

that he had just shot somebody. A couple of months later, at a holiday party,

Rodriguez told Mena that he did not know why he did it.

On the basis of this and other evidence, the jury convicted Rodriguez on the

murder charge. On appeal, he challenges two of the district court’s rulings.

3 I. Present Sense Impression Evidence

“We review a district court’s evidentiary rulings under a deferential abuse

of discretion standard.” United States v. Kandic, 134 F.4th 92, 99 (2d Cir. 2025).

Ramirez testified that two or three times between 2017 and 2018, Rodriguez

asked to speak with Millien in the sixth-floor hallway of 1408 Webster. Millien

complied and, after each occasion, “[a]s soon as” Millien came back inside

Ramirez’s apartment, he told her that Rodriguez said “he didn’t want [Millien] to

have customers come upstairs to the sixth floor.” App’x 32. The district court

admitted these statements over Rodriguez’s objection, determining that they were

admissible as “present sense impressions” because the statements were made

“immediate[ly] or close to immediate[ly]” following Millien’s conversations with

Rodriguez. App’x 25–26. Rodriguez challenges that ruling on appeal.

A present sense impression is defined as “a statement describing or

explaining an event or condition, made while or immediately after the declarant

perceived it.” Fed. R. Evid. 803(1). “Such statements are considered to be

trustworthy because the contemporaneity of the event and its description limits

the possibility for intentional deception or failure of memory.” United States v.

4 Jones, 299 F.3d 103, 112 (2d Cir. 2002). 2 Thus, present sense impressions are

exceptions to the general rule against hearsay. Id.

Asserting that there was a five-minute lapse between Millien’s encounters

with Rodriguez and his statements to Ramirez, Rodriguez argues that the court

should have excluded Ramirez’s recounting of Millien’s statements due to the time

lapse combined with Millien’s “motive for insincerity” because of his competition

with Rodriguez. Appellant’s Br. at 23–24. But the record does not support

Rodriguez’s premise that there was a five-minute lapse. While each encounter

with Rodriguez lasted approximately five minutes, Ramirez testified that Millien

reported the events to her “as soon as” they ended and Millien reentered her

apartment. App’x 32. The advisory committee notes to Rule 803 recognize that

“in many, if not most[] instances[,] precise contemporaneity is not possible and

hence a slight lapse is allowable.” Fed. R. Evid. 803(1) advisory committee’s note

(1972). And, here, the declarant—Millien—reported the events “immediately

after” they occurred, as permitted by the plain text of Rule 803(1).

2 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

5 To the extent that Millien had a “motive for insincerity,” as Rodriguez

argues, that goes to the weight of the evidence, not its admissibility, and Rodriguez

could have explored any such motivation on cross-examination. See, e.g., United

States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (Where a challenge “do[es] not bear

upon the admissibility of evidence” and instead “only [on] the weight of the

evidence,” there is no “basis for reversal.”).

We also reject Rodriguez’s argument that the district court committed

reversible error by allowing Ramirez to offer only summaries of what Millien said

rather than “precise statement[s].” Appellant’s Br. at 24. Neither party points to

any binding precedent involving a present sense impression summarizing or

paraphrasing a statement. But even if Ramirez’s summary was not permissible,

any error here was harmless. See, e.g., United States v. Paulino, 445 F.3d 211, 219 (2d

Cir. 2006).

“An erroneous ruling on the admissibility of evidence is harmless if [we]

can conclude with fair assurance that the evidence did not substantially influence

the jury.” United States v. Cummings, 858 F.3d 763, 774 (2d Cir. 2017). The test for

harmless error is not whether “disregarding the erroneously introduced evidence,

there was other evidence which was independently sufficient to establish [the

6 defendant’s] guilt.” Id. “Rather, we must evaluate the manner in which, in the

total setting of the case, the error influenced the jury.” Id. “The strength of the

government’s case against the defendant is probably the most critical factor in

determining whether an error affected the verdict.” United States v. Colombo, 909

F.2d 711, 714 (2d Cir. 1990).

Here, the objected-to testimony established that Rodriguez warned Millien

not to sell marijuana in the 1408 Webster building. At most, the statements

corroborated other admitted evidence to which Rodriguez did not object. Most

significantly, Ramirez testified that in March 2018 Rodriguez and Millien were in

a physical altercation on the sixth floor of 1408 Webster, which she helped break

up. In the altercation, Rodriguez drew a blade on Millien, and Millien punched

Rodriguez. After the fight, Rodriguez warned Ramirez that she should not allow

Millien to sell marijuana from her apartment. Rodriguez’s hospital records from

March 2018 reflected a report of jaw pain resulting from “blunt force trauma to

[his] jaw” sustained during a “fight.” June 1, 2023 Trial Tr. 184:3–85:16, No. 22-cr-

316 (S.D.N.Y. July 19, 2023), ECF No. 53.

Moreover, Mark Martinez, who lived across the street from 1408 Webster

and bought marijuana from both Rodriguez and Millien, testified that he saw

7 Rodriguez follow people who were buying marijuana from Millien into 1408

Webster and that Rodriguez was “pissed off.” Id. at 203:12–15; see also id. at 203–

04. This evidence highlighted a conflict between Rodriguez and Millien about

marijuana sales in 1408 Webster wholly independent of the objected-to statements.

Because Millien’s statements admitted as present sense impressions are

“cumulative” of other “ample evidence” of a dispute between Millien and

Rodriguez over marijuana sales at 1408 Webster, any claimed error was harmless.

United States v. Ivezaj, 568 F.3d 88, 98–99 (2d Cir. 2009).

II. Summation

During trial, a question arose as to whether Rodriguez could pursue an

“alternative perpetrator” defense, highlighting the presence of other rival dealers

who had incentives to harm Millien. Rodriguez explained that he did not have

“any particular evidence . . . establishing a nexus to a particular individual as the

alternative perpetrator,” but that he wanted to argue in closing, based on the

government’s evidence, that there “were multiple individuals who had the motive

and the opportunity” to murder Millien. App’x 37. Specifically, Rodriguez points

to Martinez’s testimony that individuals selling drugs in the Butler houses—1368

8 Webster and 1408 Webster—could not go to the opposite building to sell drugs as

that could be perceived as infringing upon someone else’s turf.

The district court determined that this testimony was “insufficient to

establish the requisite nexus” for an alternative perpetrator defense, and it

indicated that “subject to whatever else emerges in the evidence,” it would not

permit Rodriguez to make an “alternative perpetrator” argument in summation.

App’x 36.

Before summation, Rodriguez’s counsel revisited the district court’s ruling,

saying, “I understand I’m not permitted to say that any other particular individual

was the perpetrator . . . but I’m certainly free to argue that there’s no proof that my

client is the one who did it, and that perhaps someone else did it and was not

caught.” June 5, 2023 Trial Tr. 618:23-19:2, No. 22-cr-316 (S.D.N.Y. July 19, 2023),

ECF No. 59.

The government responded that Rodriguez was free to argue that

somebody else could have done it, but was not allowed to argue that someone else

did it “because you heard about some drug beef going or some generalized drug

dispute . . . or maybe he was robbed or maybe this was [one of Rodriguez’s

identified confederates in selling marijuana], without any actual nexus.” Id. at

9 620:21-24. Defense counsel responded, “I wasn’t going to argue any of those

things,” and the court noted they apparently had an agreement. Id. at 621:2-3.

In closing, defendant highlighted testimony about other individuals who

sold marijuana at 1408 Webster, and about the turf war involving individuals from

across the street coming into 1408 Webster and making money selling drugs. But

Rodriguez was precluded from arguing specifically that other dealers seeking to

protect their turf at 1408 Webster might have killed Millien.

We review a court’s decision “to limit the scope of summation” for abuse of

discretion. United States v. Lee, 834 F.3d 145, 161 (2d Cir. 2016); cf. United States v.

Ulbricht, 858 F.3d 71, 119–20 (2d Cir. 2017) (reviewing a district court’s decision

whether to permit a defendant to elicit testimony concerning an alternative

perpetrator for abuse of discretion), overruled on other grounds by Carpenter v. United

States, 585 U.S. 296 (2018).

“Although there is no doubt that a defendant has a right to attempt to

establish his innocence by showing that someone else did the crime, a defendant

still must show that his proffered evidence on the alleged alternative perpetrator

is sufficient, on its own or in combination with other evidence in the record, to

10 show a nexus between the crime charged and the asserted alternative perpetrator.”

Wade v. Mantello, 333 F.3d 51, 61–62 (2d Cir. 2003). Speculation is insufficient. Id.

For example, in United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019), we

determined that the defendant did not sufficiently support a misidentification

defense where he pointed to a specific third party who was close with one of the

alleged co-conspirators, was closer to the perpetrator’s age as estimated by an

eyewitness, and got a call from the co-conspirator before and after the robbery. Id.

at 331. Because the evidence did not place the third party near the crime scene or

otherwise establish that he was involved in the crime, we concluded that the

district court did not abuse its discretion in excluding evidence of the third party.

Id.

As Rodriguez concedes here, there was no evidence of a nexus between any

alternative perpetrator and the murder. On this record, the district court acted

within its discretion in limiting closing arguments to the evidence “actually

presented in the case.” United States v. Bautista, 252 F.3d 141, 145 (2d Cir. 2001).

* * *

For the foregoing reasons, the District Court’s judgment is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court