13‐4615‐cr United States v. Acosta

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 10th day of December, two thousand fourteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 13‐4615‐cr

ADRIAN PINZON‐GALLARDO, AKA THE MEXICAN, ARNOLDO AVINA‐ROLON, DAVID CASTELLANO‐ NUNEZ, ZACARIAS CEPEDA‐NUNEZ, AKA CARLOS, JOEL CODERO‐SANTIAGO, AKA RIVERO JOSE, RAMON GOMEZ, AKA MONCHO, WILSON LEMUS, JAVISH ROSA, SERGIO RUBIO, JOSE HERNANDEZ, AKA CHIETO, DWIGHT BROWN, ANGEL FLORES, AKA FLACO, GABRIEL KELLY, GEORGE SOTO, ALBERTO DELGADO, LUIS PLASENCIA, Defendants, ANTOVANY ACOSTA, AKA TONY, Defendant‐Appellant.

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FOR APPELLEE: GABRIEL J. VIDONI, Assistant United States Attorney (S. Dave Vatti, Marc H. Silverman, Assistant United States Attorneys, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut.

FOR DEFENDANT‐APPELLANT: FRANK J. RICCIO II, Law Offices of Frank J. Riccio LLC, Bridgeport, Connecticut.

Appeal from the United States District Court for District of Connecticut

(Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Antovany Acosta appeals from a judgment entered

on November 14, 2013 in the United States District Court for the District of Connecticut

convicting him, following a jury trial, of conspiracy to distribute and to possess with

intent to distribute heroin, and of possession with intent to distribute heroin, in

violation of

, 846. The district court sentenced Acosta principally to 150

monthsʹ imprisonment. On appeal, Acosta argues that the district court: (1) erred in

denying his post‐trial motion for a judgment of acquittal on the conspiracy charge based

on insufficient evidence; (2) abused its discretion in permitting a government witness to

testify about the meaning of specific terms contained in wiretap calls; and (3) imposed a

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substantively unreasonable sentence. We assume the partiesʹ familiarity with the facts,

the procedural history, and the issues presented for review.

A. Sufficiency of the Evidence

In an appeal challenging the sufficiency of the evidence, we review the

evidence in ʺthe light most favorable to the government and credit every inference that

the jury might have drawn in the governmentʹs favor.ʺ United States v. Salameh,

(2d Cir. 1998) (per curiam); see also United States v. Guadagna,

(2d Cir. 1999). ʺA verdict of guilty may be based entirely on circumstantial evidence as

long as the inferences of culpability drawn from the circumstances are reasonable.ʺ

United States v. McPherson,

(2d Cir. 2005). ʺThe ultimate question is not

whether we believe the evidence adduced at trial established defendantʹs guilt beyond a

reasonable doubt, but whether any rational trier of fact could so find.ʺ United States v.

Payton,

(2d Cir. 1998) (emphasis in original); see also Jackson v. Virginia,

(1979).

To prove a charge of conspiracy, the government must demonstrate the

conspiracyʹs existence and the defendantʹs knowing participation in the conspiracy.

United States v. Story,

(2d Cir. 1989). Acosta argues that the evidence at

trial did not support a finding that he had entered into a drug conspiracy with the other

defendants in the case. We disagree.

A reasonable trier of fact could have found Acosta guilty of conspiracy

beyond a reasonable doubt based on the evidence at trial. The government presented ‐ 3 ‐

evidence of three controlled purchases of heroin from Acosta, as well as surveillance of

multiple meetings between him and his co‐conspirator, Pinzon. The police also

recovered twenty‐seven bundles of heroin and $4,769 in cash from Acostaʹs apartment.

Wiretaps revealed that Acosta and other defendants worked together to distribute

heroin and that Acosta was primarily responsible for obtaining large quantities of

heroin from Pinzon for redistribution. Indeed, the wiretaps captured Acosta boasting to

an associate that he obtained ʺ250 grams every 10 daysʺ from ʺa Mexican connectionʺ

(apparently referring to Pinzon). App. at 534. Finally, a DEA agent testified that Acosta

admitted in his post‐arrest statement that he purchased at least fifty grams of heroin for

redistribution from Pinzon on a monthly basis from February 2011 to September 2011.

A reasonable juror could have inferred both the existence of a conspiracy and Acostaʹs

knowledge of it. The district court thus did not err in rejecting Acostaʹs challenge to the

sufficiency of the evidence.

B. The Expert Testimony

ʺWe review the district courtʹs decision to admit or exclude expert

testimony for an abuse of discretion.ʺ United States v. Cruz,

(2d Cir.

2004) (quoting Fashion Boutique of Short Hills v. Fendi USA,

, 59‐60 (2d Cir.

2002)) (internal quotation marks omitted). Under Federal Rule of Evidence 702(a), an

expert may testify if his ʺspecialized knowledge will help the trier of fact to understand

the evidence.ʺ When a law enforcement agent testifies as an expert about ʺthe

operation, symbols, jargon, and internal structure of criminal organizations,ʺ a court ‐ 4 ‐

must be cautious of officers straying from their expert functions and the ʺimpermissible

substitution of expert opinion for factual evidenceʺ that may result. United States v.

Mejia,

(2d Cir. 2008).

Acosta argues that the district court abused its discretion in admitting

Agent Zukʹs testimony as to the meaning of certain terminology used by Acosta and his

co‐defendants. Agent Zuk, however, testified that he did not listen to the wiretaps and

was not involved in the Acosta investigation. His testimony was based on his

experiences generally and not on any personal involvement in the case. We have

upheld the use of expert testimony ʺregarding the parlance of the narcotics trade and

the meaning thereof,ʺ United States v. Nersesian,

(2d Cir. 1987), where

it may help the trier of fact ʺto understand the evidence or to determine a fact in issue,ʺ

United States v. Dukagjini,

(2d Cir. 2003) (quoting Fed. R. Evid. 702(a))

(internal quotation marks omitted). Agent Zukʹs testimony here fell within the

appropriate bounds of expert law enforcement testimony, and thus the district court did

not abuse its discretion.

C. Substantive Reasonableness

A sentence imposed by the district court is substantively unreasonable

only if it ʺcannot be located within the range of permissible decisions.ʺ United States v.

Cavera,

(2d Cir. 2008) (en banc) (quoting United States v. Rigas,

(2d Cir. 2007)) (internal quotation marks omitted). Accordingly, we will set

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aside sentencing decisions only in ʺexceptional cases,ʺ as we will not substitute our

judgment for that of the district court.

In the PSR, the Probation Office calculated a Sentencing Guidelines range

of between 135 and 168 monthsʹ imprisonment and did not identify any factors

warranting a sentence outside of that range. The district court imposed a within‐

Guidelines sentence of 150 monthsʹ imprisonment, citing Acostaʹs organizational and

leadership role in the conspiracy, prior drug felony conviction, lack of remorse, the

quantity of drugs involved, and the consequences to families and drug addicts resulting

from Acostaʹs drug‐trafficking scheme. The district courtʹs sentence was not

substantively unreasonable.

We have reviewed Acostaʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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