United States v. Santos

449 F.3d 93
CourtCourt of Appeals for the Second Circuit
DecidedOctober 3, 2005
DocketDocket Nos. 03-1639(L), 03-164(CON), 03-1700(CON), 04-2246-CR(CON), 04-2254-CR(CON)
StatusPublished
Cited by24 cases

This text of 449 F.3d 93 (United States v. Santos) 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. Santos, 449 F.3d 93 (2d Cir. 2005).

Opinion

POOLER, Circuit Judge.

Angel Rodriguez (“A.Rodriguez”), Faustino Delarosa (“Delarosa”), Edgardo Vazquez Baez (“Vazquez Baez”), and Kenneth Rodriguez (“KRodriguez”) appeal from judgments of conviction, entered on October 1, 2003, October 2, 2003, October 20, 2003, and April 16, 2004, respectively, in the United States District Court for the Southern District of New York (Duffy, /.).

All four defendants were convicted, after a seven-day jury trial, of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951.1 On appeal, defendants A. Rodriguez, Delarosa, and Vazquez Baez principally argue that (1) the district court [95]*95committed Confrontation Clause error by admitting a post arrest statement made by co-defendant K. Rodriguez’s against them and (2) this error was not harmless. The government concedes that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was decided subsequent to trial, establishes that the district court committed Confrontation Clause error by admitting K Rodriguez’s statement against his three co-defendants. In Crawford, the Supreme Court held that it is Confrontation Clause error to admit a declarant’s prior testimonial statement against a defendant unless the defendant had a prior opportunity to cross-examine the declarant and the declarant is unavailable to testify at defendant’s trial. 541 U.S. at 68, 124 S.Ct. 1354. The government also concedes that the harmless error standard applies because A. Rodriguez, Delarosa, and Vazquez Baez preserved their Confrontation Clause arguments below. The government contends, however, that the district court’s Crawford error was harmless beyond a reasonable doubt.

Angel Rodriguez, Delarosa, and Vazquez Baez also challenge the sufficiency of the evidence against them, claiming that, without K. Rodriguez’s statement, there was insufficient evidence to support a Hobbs Act robbery conviction, which requires that the plan involve “actual or threatened force, or violence, or fear of injury,” see 18 U.S.C. § 1951(a)-(b),2 because their plan was to steal by trick (impersonation of DEA agents), rather than by force. In the event that we affirm their convictions, each defendant challenges the district court’s sentencing determinations and requests a remand for consideration of whether to resentence pursuant to this Court’s decision in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). We address A. Rodriguez, Delarosa, and Vazquez Baez’s Craiv-ford harmless error, sufficiency of the evidence, and Crosby arguments here and resolve all of K. Rodriguez’s claims on appeal in a summary order issued today.3

With respect to defendants’ Crawford claims, we hold that the district court’s erroneous admission of co-defendant K. Rodriguez’s statement against A. Rodriguez, Delarosa, and Vazquez Baez was not harmless beyond a reasonable doubt. With respect to defendants’ sufficiency of the evidence challenges, we hold that only Vazquez Baez satisfied his burden of proof. Because the proper remedy for the Crawford harmless error violation is a retrial and the proper remedy for a successful sufficiency of the evidence claim is acquittal, (1) A. Rodriguez and Delarosa’s Hobbs Act conspiracy convictions are vacated and remanded to the district court for retrials and (2) Vazquez Baez’s Hobbs Act conspiracy conviction is reversed and remanded to the district court with instructions to enter a judgment of acquittal. See United States v. Tubol, 191 F.3d 88, 97-98 (2d Cir.1999) (vacating defendant’s conviction and remanding for retrial based on harmful error determination and declining to [96]*96grant acquittal based on adverse finding on defendant’s sufficiency of the evidence claim); see also United States v. McClain, 377 F.3d 219, 222 (2d Cir.2004) (suggesting that a new trial is appropriate remedy if Confrontation Clause error was not harmless). Vazquez Baez’s illegal reentry conviction is remanded to the district court, pursuant to Crosby, for the limited purpose of providing the district court with an opportunity to consider whether to resen-' tence.

BACKGROUND

I. The May 20, 2002 drug deal

Defendants’ Hobbs Act robbery convictions were based on events that unfolded on May 20, 2002 (“May 20th”), at the corner of 100th Street and West End Avenue in New York City. As part of an investigation into a Canada-New York drug pipeline, an undercover DEA Agent, Louis Mi-lione, arrived on the scene with a bag full of phony drugs to engage in a “drug deal” with an individual named Alejandro Pauli-no. Defendants, unaware that Milione was an undercover DEA agent, attempted to take Milione’s bag, at least in part, by impersonating DEA agents.

Specifically, the following events ensued after Paulino and Milione, with his DEA backup team, arrived on the scene on May 20th. Paulino instructed Milione to remove the bag of drugs from Milione’s car and place it in the car occupied by his cousin, Juan Santos, which was parked nearby. Paulino subsequently departed. Approximately at this time, Milione’s DEA backup team started monitoring a maroon Jeep Cherokee that had arrived. Angel Rodriguez, Delarosa, Vazquez Baez, and K. Rodriguez were later identified as the occupants of the Jeep Cherokee, which was registered in K. Rodriguez’s name. Delarosa exited the Jeep Cherokee, walked over to a phone booth, and made a call on his cell phone. K. Rodriguez also exited the Jeep.

While Agent Milione was following Pau-lino’s instruction to retrieve the bag of “drugs,” K. Rodriguez and Delarosa quickly approached Milione. As K. Rodriguez was approaching Milione, K. Rodriguez appeared to be talking on a walkie talkie. He also removed from his pocket, and placed around his neck, what appeared to the DEA backup team to be a police badge. Delarosa did not appear to be carrying anything as he approached Mi-lione. Approximately at the same time, the Jeep Cherokee, which was driven by A. Rodriguez, proceeded in the direction of Milione, who subsequently gave a distress signal to his DEA backup team.

Initially, the backup team thought defendants were indeed undercover law enforcement officials, in part, because “they were very organized and skilled the way they were handling the situation.” The DEA backup team soon realized these individuals were not actually undercover agents and started making arrests. Dela-rosa was arrested. Police also arrested A. Rodriguez, the driver of the Jeep Cherokee, and Vazquez Baez, who was sitting in the backseat. At the time of these arrests, DEA agents found a knife in A. Rodriguez’s pocket and no weapons on Delarosa and Vazquez Baez. K. Rodriguez escaped but later turned himself in and essentially confessed that he made a plan with others to rob the participants in the May 20th drug deal.

II. The government’s case against defendants: Hobbs Act robbery

Based on the events of May 20th, defendants were charged with, inter alia, conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C.

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United States v. Juan Santos
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Bluebook (online)
449 F.3d 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santos-ca2-2005.