United States v. Yasmil Minaya

• Court: Court of Appeals for the Third Circuit
• Decided: September 11, 2020
• Docket: 19-3193
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 19-3193 ______________

UNITED STATES OF AMERICA

v.

YASMIL MINAYA, also known as Animal, Appellant ______________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 2:17-cr-00359-001) District Judge: Honorable Kevin McNulty ______________

Submitted Under Third Circuit L.A.R. 34.1(a) September 8, 2020 ______________

Before: CHAGARES, HARDIMAN, and GREENAWAY, JR., Circuit Judges

(Opinion filed: September 11, 2020) ______________

OPINION ∗ ______________

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Circuit Judge.

Yasmil Minaya was charged with, and convicted of, possession with intent to

distribute more than one kilogram of heroin and conspiracy to do the same. On appeal,

he argues that the District Court’s limiting of witnesses at a suppression hearing violated

his due process rights; that the court should have suppressed foreign wiretap evidence

presented against him; that the court erred in denying his motion for a new trial based on

cumulative error; and that his sentence was procedurally and substantively unreasonable.

For the following reasons, we will affirm.

I.

We write for the parties and so recount only the facts necessary to our decision. In

2007, Minaya began working with an individual named Orlando Luna Cruz selling 100-

gram quantities of heroin. Their operation eventually grew to involve numerous co-

conspirators in several countries. From January 2015 to January 2017, the conspiracy

imported approximately 118 kilograms of heroin into the United States.

Cruz lived in the Dominican Republic and made bulk purchases of up to 30

kilograms of heroin, which were transported from Mexico through Los Angeles to New

Jersey. In 2014, Dominican law enforcement obtained approval from a Dominican court

to wiretap Cruz’s phones. The wiretaps picked up conversations about drug trafficking

between Cruz and individuals in New York and New Jersey. Dominican officials

informed the Drug Enforcement Administration (“DEA”) and began passing along

information from the wiretaps.

2 New Jersey police executed four separate seizures yielding large of amounts of

drugs, money, or both. One of these also yielded phones and notebooks containing

information about the criminal enterprise. After one of the seizures, Minaya and Cruz

had a lengthy conversation about the confiscated drug shipment.

Minaya was charged in a two-count indictment with possession with intent to

distribute more than one kilogram of heroin, 21 U.S.C. § 841(a)(1), (b)(1)(A), and

conspiracy to do the same, 21 U.S.C. § 846. Minaya filed an omnibus pretrial motion,

including a challenge to the admissibility of the evidence gleaned from the Dominican

wiretaps, which argued that the wiretap evidence was the result of impermissible

cooperation between United States and Dominican authorities. The District Court held a

limited hearing on the motion. At the hearing, DEA Special Agent Roxana Pulido, who

is based at the agency’s Santo Domingo office and who is familiar with the Dominican

investigation of Cruz, testified that the DEA has no power to obtain wiretaps in the

Dominican Republic and that it played no role in seeking the wiretaps on Cruz. The

court permitted Minaya to cross examine Pulido, but decided not to grant Minaya’s

request to call someone from the Dominican Attorney General’s office or the DEA Santo

Domingo office supervisor to testify. The court reasoned that it would determine if

Pulido’s testimony led to further questions about the nature of the wiretap first. Minaya

agreed to the District Court’s limitations on the hearing.

The District Court ultimately denied Minaya’s motion to suppress the wiretap

evidence. The court noted that the DEA reports about information gleaned from the

wiretaps “explicitly or impliedly stated that the [DEA and Dominican authorities] acted

3 together.” United States v. Minaya, Civ. No. 17-359 KM, 2019 WL 1615549, at *11

(D.N.J. Apr. 16, 2019). But the court concluded that United States and Dominican

authorities did not engage in an impermissible “joint venture,” which would preclude the

admission of the wiretap evidence, because United States authorities “did not initiate” the

Cruz wiretap investigation, “were not involved in the decision to seek” the wiretaps, “did

not control, direct, or supervise” the wiretaps, and “did not participate in the

implementation” of the wiretaps or “the recording of conversations.” Id. at *10–11.

At trial, Cruz and another co-conspirator testified about the criminal enterprise; a

Dominican agent testified about the Dominican investigation of Cruz and the wiretaps;

DEA agents, New Jersey police, and Federal Bureau of Investigation agents testified

about surveilling the conspirators; and the Government presented numerous taped

conversations among the conspirators. The jury found Minaya guilty on both counts in

the indictment. The District Court denied Minaya’s motion for reconsideration of his

motion to suppress the wiretap evidence and denied his motion for a new trial.

For sentencing, the Probation Office calculated an offense level of 46, resulting in

a base offense level of 43 — the Guidelines maximum. The District Court adjusted this

downward, finding that Minaya was a “manager or supervisor” of the enterprise, not an

“organizer or leader” and that he was not directly involved in importing drugs. See

U.S.S.G. § 3B1.1. The District Court then granted a downward variance from life to 288

months to account for lower drug quantity stipulations in the plea agreements of some of

Minaya’s co-conspirators. Minaya did not object to the explanation of his sentence or the

4 District Court’s consideration of the 18 U.S.C. § 3553(a) factors. Minaya timely

appealed his judgment of conviction and sentence.

II. 1

On appeal, Minaya argues that: (1) the witness procedure at his suppression

hearing violated his due process rights; (2) the District Court erred in admitting the

foreign wiretap evidence and in denying his follow-up motion to reconsider suppressing

the wiretap evidence; (3) the District Court erred in denying his motion for a new trial;

and (4) his sentence was procedurally and substantively unreasonable. We find each

argument unavailing.

First, Minaya argues that the District Court violated his due process rights by

limiting the witnesses ordered to appear at the suppression hearing on the foreign

wiretaps and limiting his cross examination of Special Agent Pulido. We are

unpersuaded. Minaya agreed to the witness procedures that the District Court used at the

suppression hearing, so he waived his right to now object to those procedures on appeal.

See United States v. James, 955 F.3d 336, 344–45 (3d Cir. 2020). Regardless, the

District Court did not abuse its discretion in either limiting the scope of the hearing or

limiting Minaya’s opportunity to cross examine Special Agent Pulido. See United States

v. Skulsky, 786 F.2d 558, 562 (3d Cir. 1986) (applying the abuse of discretion standard

for limiting the scope of an evidentiary hearing); United States v. Fattah, 914 F.3d 112,

179 (3d Cir. 2019) (same for limiting cross examination). The District Court reasoned

1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

5 that it wanted to hear from Special Agent Pulido, who had firsthand knowledge of the

wiretaps and the investigation into Cruz, before deciding whether to allow Minaya to call

more witnesses who might not be needed to enable the court to rule on the motion.

Further, Minaya did not object to the court’s limiting his time to cross examine Special

Agent Pulido. And Minaya spent his entire opportunity to do so questioning Pulido about

the wording of the DEA reports on the Cruz wiretaps in an attempt to show

impermissible cooperation. If Minaya failed to elicit the testimony that he sought, the

fault is his own.

Second, Minaya asserts that the District Court should have suppressed the

evidence gleaned from the wiretaps because it was the fruit of an impermissible “joint

venture” between United States and Dominican authorities. Minaya argues that the court

improperly assessed who led and executed the wiretap, discounted DEA reports that

portrayed the wiretap as a cooperative investigation, and ignored the fact that DEA agents

were frequently “in the wire room” with Dominican authorities. Reply Br. 7 (quotation

marks omitted).

We conclude that the District Court did not abuse its discretion in admitting the

wiretap evidence. Foreign wiretap evidence ordered by “foreign officials acting on their

own to enforce foreign law” is admissible in federal criminal cases unless (i) the conduct

of the foreign officials “shock[s] the . . . conscience” or (ii) the foreign officials are acting

as “agents . . . of United States law enforcement” or are cooperating with United States

agents in a way “designed to evade constitutional requirements” — what some of our

sister Courts of Appeals refer to as an impermissible “joint venture.” United States v.

6 Maturo, 982 F.2d 57, 60–61 (2d Cir. 1992) (quotation marks omitted); see also United

States v. Callaway, 446 F.2d 753, 755 (3d Cir. 1971) (holding that the Fourth

Amendment exclusionary rule does not apply to searches in a foreign country which

“were conducted by foreign law enforcement . . . who were not acting in connection or

cooperation with” United States “authorities[,] and the conduct involved was not the type

that would shock the conscience of our courts”).

We have never adopted the “joint venture” doctrine, but, even if we had, Minaya’s

arguments fall short. We agree with the District Court that Dominican officials initiated

the investigation of Cruz and independently sought and executed the wiretaps. Minaya

failed to present any witnesses or other evidence indicating that United States authorities

controlled or were “active participants in the [wiretaps] operation.” United States v.

Valdivia, 680 F.3d 33, 52 (1st Cir. 2012). Standing alone, foreign law enforcement

officials sharing information gleaned from their own activities with United States

authorities — even if cloaked in cooperative terms in agency reports — is not indicative

of an impermissible joint venture, and thus, the District Court did not abuse its discretion

in admitting the wiretap evidence. For the same reasons, we discern no error in the

District Court’s denial of Minaya’s motion to reconsider the suppression of the wiretap

evidence.

Third, Minaya asserts that the District Court should have granted his motion for a

new trial based on cumulative error. We are unconvinced. Some of Minaya’s arguments

are conclusory and unsupported by the record (such as his contention that the DEA

reports were “false” and the seizures of drugs and money “pretextual,” Minaya Br. 30);

7 some are factually inaccurate (such as that no mutual legal assistance treaty exists

between the United States and the Dominican Republic; and others are difficult to discern

and marginally relevant (such as one argument based on a later-corrected attribution error

in a transcript). Regardless, we cannot conclude that the District Court abused its

discretion in denying Minaya’s motion for a new trial because Minaya fails to show that

any purported errors affected the outcome of the trial, especially in the face of the

overwhelming evidence of his guilt. 2

Finally, Minaya argues that his sentence is both procedurally and substantively

unreasonable. He contends that the District Court erred in agreeing with the Probation

Office’s base offense level of 38, in adding three points for an aggravated role, and in

adding two points for obstruction. Minaya also argues that his sentence is based on

“erroneous facts,” is harsher than those of his co-conspirators, and resulted from the

court’s failing to consider meaningfully the 18 U.S.C. § 3553(a) factors. Minaya Br. 45,

52. We disagree.

To satisfy procedural reasonableness, a sentencing court must “(1) correctly

calculate[] the defendant’s advisory Guidelines range; (2) appropriately consider[] any

motions for a departure”; and (3) give “meaningful consideration to the sentencing

2 The Government contends that Minaya made some of the assertions underlying his cumulative error argument for the first time on appeal, and so these should be subject to plain error review. In reviewing for plain error, we “can correct an error not raised” below where: “(1) the district court erred; (2) the error was clear or obvious; and (3) the error affected the appellant’s substantial rights.” United States v. Foster, 891 F.3d 93, 113 n.15 (3d Cir. 2018) (quotation marks omitted). “If those three conditions are met, we then have discretion to remedy the error.” Id. We conclude that Minaya’s cumulative error argument fails under either standard.

8 factors” in § 3553(a). United States v. Freeman, 763 F.3d 322, 335 (3d Cir. 2014). The

District Court correctly calculated Minaya’s Guidelines range based on evidence

presented at trial of the large amounts of heroin distributed by the conspiracy, correctly

imposed a “manager or supervisor” role enhancement based on Minaya’s activities

coordinating transfers of large amounts of drugs and sums of money, and correctly added

an obstruction enhancement because Minaya sent Cruz two letters clearly intended to

threaten Cruz for testifying against him. And the District Court “gave meaningful

consideration,” id., to the factors set forth in § 3553(a) in imposing Minaya’s sentence.

Therefore, the sentence was procedurally reasonable.

In evaluating substantive reasonableness, we consider “whether the record as a

whole reflects rational and meaningful consideration of the” § 3553(a) factors, United

States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc), and we will affirm “unless no

reasonable sentencing court would have imposed the same sentence . . . for the reasons

the district court provided,” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).

Minaya did not object to the District Court’s consideration of the § 3553(a) factors, so we

review only for plain error. See Foster, 891 F.3d at 113 n.15. Minaya fails to support his

argument that his sentence was based on “erroneous facts,” let alone point to factual

errors that meet the plain error standard. Further, while the District Court may consider

sentencing disparities between co-defendants in imposing its sentence, it is not required

to do so. See United States v. Parker, 462 F.3d 273, 276–78 (3d Cir. 2006). And here,

the District Court did vary downward from life to 288 months based on Minaya’s co-

9 defendants having stipulated to lower drug quantities. The sentence was also

substantively reasonable. 3

III.

For these reasons, we will affirm the District Court’s judgment of conviction and

sentence.

3 We have considered Minaya’s other arguments and find them unavailing.