United States v. Caicedo
Opinion of the Court
AMENDED SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED.
Martha Janet Caicedo appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Ross, J.) on August 25, 2004. Appellant was convicted, after a jury trial, of both counts of a two-count indictment charging her with (i) conspiring to rob a drug trafficker in Queens, New York, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and (ii) knowingly using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). We assume familiarity by the parties- as to the facts, the procedural context, and the specification of issues.
Caicedo challenges the admission of two plea allocutions in violation of the Sixth Amendment’s Confrontation Clause. See U.S. Const, amend VI. Because Caicedo made only a limited hearsay objection at trial, our review is for plain error. See United States v. Bruno, 383 F.3d 65, 78 (2d Cir. 2004); United States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2003). This Court may vacate the conviction only if there is “(1) error, (2) that is plain, and (3) that affects substantial rights.” Bruno, 383 F.3d at 78. Even where all three conditions are met, we will not exercise our discretion to notice the forfeited error unless “(4) the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in original).
The first two conditions are met. First, admission of the allocutions was “error” under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See Bruno, 383 F.3d at 78; United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004). Second, that error is “plain” at the time of appellate consideration. See Bruno, 383 F.3d at 78-79. The Government concedes these points.
We conclude that admission of the allocutions did not contribute to the verdict. One question before the jury was whether drug proceeds were one object of the robbery. The defense argued that the sole object of the robbery was a prostitute’s money and that Caicedo had merely speculated that drug proceeds might possibly be present as well. However, Caicedo’s statement at the time of her arrest clearly revealed that Caicedo believed that the prostitute had brothers involved in the drug trade and stored the proceeds of their drug enterprise at her apartment. Furthermore, Caicedo’s counsel, recognizing the strength of the Government’s case, conceded her participation in the robbery. The Government’s brief reference to the allocution in its summation to the jury on this charge does not alter our view that the error was harmless.
For similar reasons, we conclude that the derivative § 924(c)(1)(A) conviction,
Lastly, Caicedo moves for a remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) if her appeal is denied and her conviction upheld. That motion is granted and the matter remanded to the district court for the purpose of determining whether, in light of the Supreme Court’s ruling in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court
Any appeal taken from the district court decision following this remand, and resentencing, if it occurs, can be initiated only by filing a new notice of appeal. See Fed. R.App. P.3, 4(b). A party will not waive or forfeit any appropriate argument on remand or on any appeal post-remand by not filing a petition for rehearing of this remand order.
For the reasons set forth above, the judgment of the district court is hereby AFFIRMED and the case is remanded for further proceedings consistent with this order.
. Because we reach our conclusion under the more exacting standard applicable to error that is "non-structural” and where the burden is on the defendant to prove plain error prejudice, we do not need to address here whether a violation of Crawford is structural or nonstructural, see Bruno, 383 F.3d at 79, or whether our modified plain error rule noted in United States v. Thomas, 274 F.3d at 668 n. 15, has been implicitly overruled by Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). See Bruno, 383 F.3d at 79 & n. 8.
. Section 924(c)(1)(A) requires relation to "any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States...."
Reference
- Full Case Name
- United States v. Martha Janet CAICEDO
- Status
- Published