United States v. Yevakpor

271 F. App'x 19
CourtCourt of Appeals for the Second Circuit
DecidedMarch 25, 2008
DocketNo. 06-4206-cr
StatusPublished

This text of 271 F. App'x 19 (United States v. Yevakpor) 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. Yevakpor, 271 F. App'x 19 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Defendant-Appellant Kofi Yevakpor appeals from a judgment of conviction and sentence of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge), the defendant having been convicted of attempting to import more than one kilogram of heroin into the United States, 21 U.S.C. § 963, and possession with intent to distribute more than one kilogram of heroin, 21 U.S.C. § 841(a)(1), and having been sentenced principally to 120 months’ imprisonment. Yevakpor advances four grounds on appeal: (1) that there was insufficient evidence presented at trial for a reasonable jury to find, beyond a reasonable doubt, that he knew he possessed and was transporting a controlled substance; (2) that the District Court exceeded its allowable discretion in admitting the expert testimony of New York State Police Investigator Samuel Mercado; (3) that the admission of the Mercado testimony, even if otherwise proper, constructively amended the indictment; and (4) that the District Court improperly instructed the jury on the issue of the requisite guilty knowledge to convict Yevakpor. We assume the parties’ familiarity with the underlying facts and procedural history in this case.

The first basis for Yevakpor’s appeal is his assertion that there was insufficient evidence relating to his knowledge of his possession and transportation of a controlled substance presented at trial for the jury to convict him of the two counts charged in the indictment. Although Yevakpor concedes that he possessed the suitcase in which the heroin was discovered, he argues that “there was no evidence connecting that possession with knowledge of what was hidden inside.” Without specifying anything in particular, Yevakpor argues that the evidence supporting a finding of the requisite knowledge “was almost [21]*21entirely based upon circumstantial evidence and inferences drawn from the admission of other uncharged criminal conduct.”

It is established that a defendant bears a “heavy burden” to overturn a conviction on the ground of insufficient evidence. See United States v. Snow, 462 F.8d 55, 61 (2d Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 1022, 166 L.Ed.2d 770 (2007). “The burden is heavy, in part, because we view the evidence at trial in the light most favorable to the government, and we draw every inference in its favor. So long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the jury’s verdict will stand.” Id. at 61-62 (internal citation omitted). Where, as here, the defendant moves for a judgment of acquittal at the close of the government’s case pursuant to Federal Rule of Criminal Procedure 29 but fails to renew that motion at the close of his defense, we review the sufficiency challenge for “plain error” or “manifest injustice.” See United States v. Finley, 245 F.3d 199, 202 (2d Cir.2001), cert. denied, 534 U.S. 1144, 122 S.Ct. 1101, 151 L.Ed.2d 997 (2002).

The evidence presented at Yevakpor’s trial was sufficient for a reasonable jury to find him guilty, beyond a reasonable doubt, of the two counts charged in the indictment. In addition to Yevakpor’s admitted possession of the suitcase containing heroin, his companion in the car, Abbas Rahim, testified that Yevakpor made several incriminating statements once the Customs and Border Protection Officer began examining the suitcase, including “I’m in trouble” and “I’m finished; my life is done.” In addition, the officer himself testified that the suitcase had an “overwhelming smell of mothballs,” which he stated could serve as a smuggling technique to mask any odor associated with hidden contraband. Moreover, the jury was entitled to find implausible Yevakpor’s testimony that an individual by the name of “Cool Down” gave him the suitcase, that Yevak-por planned to return the suitcase to Cool Down in New York, but that Yevakpor did not know where Cool Down lived. Although Yevakpor argues that the evidence presented at trial regarding his knowledge consisted of nothing more than circumstantial evidence and admissions of uncharged criminal conduct, we have observed that “[pjroof of knowledge may be, and often is, circumstantial.” United States v. Hastings, 918 F.2d 369, 373 (2d Cir.1990) (rejecting defendant-appellant’s argument that the government had presented insufficient evidence that he knowingly possessed a firearm because the only evidence was circumstantial). After reviewing the evidence and considering Ye-vakpor’s arguments regarding their sufficiency, we reject Yevakpor’s contention that there was insufficient evidence presented as to the element of knowledge for two charged crimes.

Yevakpor’s second challenge to his conviction is that the District Court exceeded its allowable discretion in permitting Mercado to testify under Federal Rule of Evidence 702 because the jury did not need expert testimony to understand the origin and use of heroin. Furthermore, Yevakpor argues that, irrespective of his Rule 702 challenge, the District Court also violated Federal Rule of Evidence 403 by admitting the Mercado testimony because the probative value of the testimony was substantially outweighed by the danger of unfair prejudice.1

[22]*22“Because the district court has broad discretion regarding the admission of expert testimony, we will sustain the district court’s admission of the testimony unless it was manifestly erroneous.” United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir.2003) (internal quotation marks omitted). We have stated that “the operations of narcotics dealers are a proper subject for expert testimony under [Rule] 702 ... where the subject matter of the testimony is beyond the ken of the average juror.” United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir.1991), cert. denied, 513 U.S. 829, 115 S.Ct. 101, 130 L.Ed.2d 50 (1994). In Castillo, we held that the district court erroneously admitted the testimony of the government’s expert where the subject matter of that testimony consisted of topics within the expected knowledge of the average juror — such as the fact that drug dealers use scales to weigh drugs and that drugs may be kept in plastic bags or wrapped in tinfoil — and where an eye witness had already testified to those facts and their purposes. See id. at 1233. Although an expert may properly testify as to the meaning of drug-related codes or jargon, a district court fails in its “gatekeeping” function when such an expert strays beyond such topics to interpret “ambiguous words or phrases [where] there is no evidence that these terms were drug codes.” See United States v. Cruz, 363 F.3d 187, 196-97 (2d Cir.2004).

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Related

United States v. Rigas
490 F.3d 208 (Second Circuit, 2007)
Kotteakos v. United States
328 U.S. 750 (Supreme Court, 1946)
United States v. Earl Clayton Hastings
918 F.2d 369 (Second Circuit, 1990)
United States v. Manuel Castillo and Juan Fernandez
924 F.2d 1227 (Second Circuit, 1991)
United States v. Alan Finkelstein
229 F.3d 90 (Second Circuit, 2000)
United States v. Terry Finley
245 F.3d 199 (Second Circuit, 2001)
United States v. Federico Giovanelli
464 F.3d 346 (Second Circuit, 2006)
Snow v. United States
127 S. Ct. 1022 (Supreme Court, 2007)
United States v. Dukagjini
326 F.3d 45 (Second Circuit, 2002)

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Bluebook (online)
271 F. App'x 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yevakpor-ca2-2008.