14‐2823‐cr(L) United States v. Gomez

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 11th day of February, two thousand sixteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 14‐2823‐cr(L) 14‐3740‐cr(Con) ADRIAN PINZON‐GALLARDO, AKA The Mexican, ARNOLDO AVINA‐ROLON, ZACARIAS CEPEDA‐ NUNEZ, AKA Carlos, JOEL CODERO‐SANTIAGO, AKA Rivero Jose, WILSON LEMUS, JAVISH ROSA, SERGIO RUBIO, JOSE HERNANDEZ, AKA Chieto, DWIGHT BROWN, ANGEL FLORES, AKA Flaco, GABRIEL KELLY, GEORGE SOTO, ANTOVANY ACOSTA, AKA Tony, ALBERTO DELGADO, LUIS PLASENCIA, Defendants, RAMON GOMEZ, AKA Moncho, DAVID CASTELLANO‐NUNEZ, Defendants‐Appellants.

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FOR APPELLEE UNITED STATES OF S. DAVE VATTI, Robert M. Spector, Assistant AMERICA: United States Attorneys, for Deirdre M. Daley, United States Attorney for the District of Connecticut, New Haven, Connecticut.

FOR DEFENDANT‐APPELLANT ROBERT J. BOYLE, New York, New York. RAMON GOMEZ:

FOR DEFENDANT‐APPELLANT BRUCE R. BRYAN, Syracuse, New York. DAVID CASTELLANO‐NUNEZ:

Appeal from the United States District Court for the District of

Connecticut (Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED,

except that they are MODIFIED to the extent that the fines imposed on defendants are

stricken.

Following a jury trial in the United States District Court for the District of

Connecticut, defendants‐appellants Ramon Gomez and David Castellano‐Nunez were

convicted of conspiracy to distribute and to possess with intent to distribute one

kilogram or more of heroin in violation of

(a)(1), (b)(1)(A), 846. Both

defendants now appeal: Gomez from a July 31, 2014 judgment that principally

sentenced him to 120 monthsʹ imprisonment and a $50,000 suspended fine, and

‐ 2 ‐ Castellano‐Nunez from an October 3, 2014 judgment that principally sentenced him to

120 monthsʹ imprisonment and a $17,500 suspended fine. We assume the partiesʹ

familiarity with the underlying facts, procedural history of the case, and issues on

appeal.

We address in turn (1) the sufficiency of the evidence as to Castellano‐

Nunez, (2) certain evidentiary rulings, (3) Confrontation Clause violations as to Gomez,

and (4) the reasonableness of defendantsʹ fines.

1. Sufficiency of the Evidence as to Castellano‐Nunez

We review de novo the sufficiency of evidence, but ʺwe will uphold the

judgments of conviction if ʹany rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.ʹʺ United States v. Coplan,

(2d Cir. 2012) (quoting Jackson v. Virginia,

(1979)). We ʺmust view

the evidence in the light most favorable to the government, crediting every inference

that could have been drawn in the governmentʹs favor, and ʹdeferring to the juryʹs

assessment of witness credibilityʹ and its assessment of the weight of the evidence.ʺ

United States v. Chavez,

(2d Cir. 2008) (citations omitted) (quoting

United States v. Bala,

(2d Cir. 2000)).

Castellano‐Nunez contends that there was insufficient evidence to prove

that he joined the conspiracy or reasonably foresaw the distribution of more than one

kilogram of heroin. See United States v. Snow,

(2d Cir. 2006) (requiring

‐ 3 ‐ quantity to be reasonably foreseeable). The evidence at trial, however, demonstrated

the following. Castellano‐Nunezʹs brother, Antovany Acosta, ran a heroin distribution

operation out of an apartment at 28 Maltby Place in New Haven, Connecticut.

Castellano‐Nunez lived there, he was arrested there, and 27 bundles of heroin were

found on site when he was arrested. Further, an ongoing wiretap on Castellano‐

Nunezʹs phone revealed that he informed Acosta of potential customers, retrieved

heroin from 28 Maltby Place on behalf of Acosta for customers, and negotiated directly

with customers for single‐digit gram quantities of heroin. Other wiretaps confirmed

that Acosta, in turn, obtained ʺ250 grams [of heroin] every 10 daysʺ for distribution and

in fact purchased that quantity (or a similar quantity) on at least five occasions between

June and August 2011. Castellano‐Nunez App. at 774. As Castellano‐Nunez closely

worked with his brother in servicing customers, a reasonable jury could have inferred

that Castellano‐Nunez was a member of the heroin distribution conspiracy who

reasonably foresaw that the conspiracy involved more than one kilogram of heroin.

2. Evidentiary Issues

We review a district courtʹs evidentiary rulings for abuse of discretion and

vacate the conviction only if the error was not harmless. See United States v. Garcia,

(2d Cir. 2005). Gomez and Castellano‐Nunez both contest the admission

of voice identification testimony of a Spanish‐speaking Drug Enforcement Agency

(ʺDEAʺ) interpreter who monitored their wiretapped phones, and Castellano‐Nunez

‐ 4 ‐ also contests the admission of testimony by a Federal Bureau of Investigation (ʺFBIʺ)

special agent about drug terminology. Neither argument is persuasive.

A. Admission of Voice Identification Testimony

A district court may admit ʺ[a]n opinion identifying a personʹs voice . . .

based on hearing the voice at any time under circumstances that connect it with the

alleged speaker.ʺ Fed. R. Evid. 901(b)(5). Such an opinion may be admitted as either a

lay opinion or an expert opinion.

advisory committeeʹs notes (commenting that,

generally, ʺaural voice identification is not a subject of expert testimonyʺ); United States

v. Cambindo Valencia,

(2d Cir. 1979) (finding no ʺclear abuse of

discretion to qualify [an Spanish‐language interpreter] as an expertʺ); accord 31 Charles

Alan Wright & Victor James Gold, Federal Practice & Procedure § 7110, at 88 (2000) (ʺRule

901(b)(5) permits both lay and expert opinions identifying a voice.ʺ). To permit lay

opinion to identify a voice, a district court must determine that the opinion is

ʺ(a) rationally based on the witnessʹs perception; (b) helpful to clearly understanding

the witnessʹs testimony or to determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge.ʺ Fed. R. Evid. 701; see United States v.

Mendiola,

(7th Cir. 2013) (requiring that testimony must meet the

requirements of both Rule 901 and Rule 701).

‐ 5 ‐ The district court here admitted the lay opinion of a Spanish‐language

interpreter who had translated the wiretaps on Gomez and Castellano‐Nunez. See

Mendiola, 707 F.3d at 739‐42 (permitting similar evidence). That interpreter, after

listening to stipulated‐to voice exemplars of the defendants, then identified the voices

on those wiretaps as belonging to Gomez and Castellano‐Nunez.

The district court did not abuse its discretion in admitting this evidence.

First, the interpreterʹs opinion was grounded in her own perception ‐‐ she spent many

hours listening to numerous wiretaps of the defendants. On appeal, Gomez and

Castellano‐Nunez contend that the interpreter impermissibly formed her opinion

ʺbased on the totality of information gathered by various persons in the course of an

investigation.ʺ Garcia,

. This suggestion that the voice identification was

based on a joint law enforcement effort is not, however, borne out by the record. The

interpreter testified that, though law enforcement provided useful information, her

opinions were ultimately formed by listening to the wiretaps and voice exemplars.

Second, the opinion helped the jury confirm that Gomez and Castellano‐Nunez

participated in certain phone calls ‐‐ especially as the defendants often did not identify

themselves on the phone. And third, the opinion was not an improper attempt to

introduce specialized knowledge into the trial. Though there is some appeal to Gomez

and Castellano‐Nunezʹs argument that the Spanish language is ʺspecialized knowledgeʺ

beyond the ken of the average juror, the record does not demonstrate any particular

‐ 6 ‐ expertise on the part of the interpreter. Indeed, the interpreter formed her opinion

based on faculties familiar to any layperson ‐‐ by examining tone, mannerisms, pitch,

inflections, and dialect. Accordingly, the Spanish‐language interpreterʹs testimony was

within the bounds of admissible lay opinion on voice identification.

B. Admission of Testimony on Drug Terminology

ʺ[W]e have consistently upheld the use of expert testimony to explain both

the operations of drug dealers and the meaning of coded conversations about drugs.ʺ

United States v. Dukagjini,

(2d Cir. 2003). Indeed, Acosta appealed the

admission of the very testimony on drug terminology that Castellano‐Nunez now

challenges, and we affirmed. See United States v. Pinzon‐Gallardo, 593 F. Appʹx 49, 52 (2d

Cir. 2014). We likewise find no abuse of discretion. The FBI agent testified as to drug

parlance and heroin distribution chains generally, and the district court properly

instructed the jury that it was free to reject this testimony.

3. Confrontation Clause Violation as to Gomez

Where, as here, no objection is raised below, ʺwe evaluate the district

courtʹs admission of testimony in violation of the Confrontation Clause for plain error.ʺ

Dukagjini,

. We examine if there is ʺ(1) error, (2) that is plain, and (3) that

affects substantial rights,ʺ and we correct that error ʺonly if (4) the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.ʺ Johnson v. United

States,

(1997). For an error to affect substantial rights, it must not be

‐ 7 ‐ harmless, meaning that there must be ʺa reasonable probability that the error affected

the outcome of the trial.ʺ United States v. Marcus,

(2010).

Gomez contends that his Confrontation Clause rights were violated when

the district court admitted statements that Castellano‐Nunez gave to a DEA agent when

he was arrested at 28 Maltby Place and statements that Acosta provided to another DEA

agent after he was arrested. Castellano‐Nunez told the DEA agent that ʺMonchoʺ (later

established to be Gomezʹs nickname) lived in one of the bedrooms at 28 Maltby Place

where bundles of heroin were found and that ʺMonchoʺ was in the Dominican Republic

(where Gomez was confirmed to have been visiting at that time). Acosta told the other

DEA agent the identity of his supplier, who was arrested with nearly three kilograms of

heroin.

Even assuming the district court erred in admitting the statements, we

conclude that the error was harmless. This was not, after all, ʺa close case that hinged

directly on the juryʹs credibility determinations.ʺ United States v. Gaines,

(2d Cir. 2006). Numerous translated wiretaps chronicled that ʺMonchoʺ bought and

sold heroin in 100‐gram quantities in the larger Acosta conspiracy. And, as described

above, an interpreter provided voice identification testimony that ʺMonchoʺ was

Gomez. Further, phone bills revealed that a wiretapped phone number used by

ʺMonchoʺ was registered under Gomezʹs name, with 28 Maltby Place listed as the

address. On this record, we cannot conclude that there is a reasonable probability that

‐ 8 ‐ the outcome of the trial would have been different had the jury not heard Castellano‐

Nunezʹs statement linking ʺMonchoʺ to Gomez and Acostaʹs statement as to quantity.

Accordingly, we find no need to vacate Gomezʹs conviction in the interests of fairness,

integrity, or the public reputation of judicial proceedings. See Johnson,

.

4. Reasonableness of the Fines

Finally, we review all aspects of a sentence for reasonableness under a

ʺdeferential abuse‐of‐discretion standard.ʺ United States v. Aldeen,

(2d

Cir. 2015) (quoting Gall v. United States,

(2007)). The district court

imposed on Gomez and Castellano‐Nunez mandatory minimum terms of

imprisonment and suspended fines of $50,000 and $17,500, respectively, after finding

that the defendants would have the capacity to pay those fines.

Guidelines § 5E1.2(a) provides that ʺ[t]he court shall impose a fine in all

cases, except where the defendant establishes that he is unable to pay and is not likely

to become able to pay any fine.ʺ ʺIf the defendant is indigent, a fine should not be

imposed absent evidence in the record that he will have the earning capacity to pay the

fine after release from prison.ʺ United States v. Rivera,

(2d Cir. 1992).

ʺ[I]t is ordinarily an abuse of discretion to impose a fine that exceeds a defendantʹs

ability to pay.ʺ United States v. Salameh,

(2d Cir. 2001).

Both Gomez and Castellano‐Nunez were indigent and represented by

court‐appointed attorneys. Gomezʹs attorney attested in a financial affidavit that Gomez

‐ 9 ‐ owned no assets, and Gomezʹs Presentence Report (ʺPSRʺ) described him as having a

second‐grade education and typically working temporary construction jobs. Gomez

PSR ¶¶ 57‐62. Likewise, Castellano‐Nunezʹs PSR stated that ʺit does not appear that

Mr. Castellano‐Nunez is able to pay a fine at the present time, nor is he likely to become

able to pay one in the future.ʺ Castellano‐Nunez PSR ¶ 53. At oral argument, the

Government advised this Court that it had not asked for a fine for either defendant

below, because it appeared from the defendantsʹ financial affidavits that neither

defendant had the capacity to pay a fine.

The district courtʹs contrary finding regarding the defendantsʹ ability to

pay, however, did not rest on any specific ʺevidence in the record.ʺ Rivera,

. The district court noted only that Gomez and Castellano‐Nunez were both ʺable‐

bodiedʺ and were able to earn a living or employable. Gomez App. at 202; Castellano‐

Nunez App. at 868. Under these circumstances, the district court exceeded the bounds

of its permissible discretion by imposing fines that were greater than the defendantsʹ

ability to pay. See Rivera,

(vacating fine where PSR represented an

inability to pay and when district court stated only that the defendant was ʺyoungʺ and

ʺwill eventually be workingʺ). Accordingly, we modify the judgments by striking the

fines imposed on Gomez and Castellano‐Nunez. See, e.g., United States v. White,

(2d Cir. 1969).

‐ 10 ‐ We have reviewed defendantsʹ remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgments of the district court, except

that we MODIFY the judgments by striking the fines.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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