17‐1001‐cr United States v. Muntslag

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 6th day of March, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 17‐1001‐cr

DINO BOUTERSE, AKA SEALED DEFENDANT 1, Defendant,

EDMUND QUINCY MUNTSLAG, AKA SEALED DEFENDANT 2, AKA BLUE, Defendant‐Appellant.*

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* The Clerk of the Court is directed to amend the official caption to conform to the above.

FOR APPELLEE: MICHAEL D. LOCKARD, Assistant United States Attorney (Andrew DeFilippis, Won S. Shin, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: ROBERT A. CULP, Law Office of Robert A. Culp, Garrison, New York.

Appeal from the United States District Court for the Southern District of

New York (Scheindlin, Nathan, JJ.).1

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Defendant‐appellant Edmund Muntslag appeals from a judgment entered

March 20, 2017, convicting him, after a jury trial, of one count of conspiracy to import

cocaine into the United States, in violation of

, 959(c), and 960(b)(1)(B).

He was sentenced principally to 135 monthsʹ imprisonment. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

Muntslag raises several issues on appeal: (1) the district courtʹs failure to

conduct a formal arraignment; (2) the denial of his motion for a mistrial; (3) the

1 Judge Shira A. Scheindlin, of the United States District for the Southern District of New York, presided over the trial in this matter. On April 11, 2016, this case was reassigned to Judge Alison J. Nathan, of the United States District for the Southern District of New York, who presided over sentencing. ‐ 2 ‐

admissibility of certain evidence at trial; and (4) the procedural and substantive

reasonableness of his sentence. We address each issue in turn.

DISCUSSION

1. Arraignment Challenge

Muntslag contends that the district courtʹs failure to arraign him pursuant

to Rule 10 of the Federal Rules of Criminal Procedure requires us to vacate his

conviction. We disagree. While it is undisputed that Muntslag was not formally

arraigned prior to trial, Muntslag waived his right to challenge his conviction on this

ground by failing to object at any point prior to this appeal. See Garland v. Washington,

(1914) (ʺA waiver ought to be conclusively implied where the parties

had proceeded as if defendant had been duly arraigned . . . and where there was no

objection made on account of its absence until, as in this case, the record was brought to

this court for review.ʺ). In any event, Muntslag clearly had sufficient notice of the

charges and an adequate opportunity to prepare a defense, and thus the district courtʹs

failure to arraign him did not affect any substantial rights. See

. Indeed, at the

first pre‐trial conference, the district court asked the parties whether Muntslag had been

arraigned by the magistrate judge, to which both Muntslagʹs counsel and the

government responded that they believed he had been. We therefore conclude that

reversal is not warranted on this basis.

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2. Motion for Mistrial

Muntslag next argues that the district court erred in denying his motion

for a mistrial based on a confidential sourceʹs testimony that one of the sourceʹs aliases

during the conspiracy was ʺSheikh.ʺ We review a district courtʹs denial of a mistrial

motion for abuse of discretion. United States v. Rodriguez,

(2d Cir.

2009). Although the district court expressly precluded the government from eliciting

testimony regarding the nickname to avoid any association of Muntslag with terrorism,

the single mention was so brief and fleeting that even the district court did not hear it.

See United States v. Deandrade,

(2d Cir. 2010) (holding that ʺa brief and

fleeting comment on the defendantʹs incarceration during trialʺ did not require a

mistrial). Defense counsel also declined a curative instruction. Further, the reference

did not directly implicate Muntslag; the confidential source merely volunteered his own

nickname, which would have required the jury to infer Muntslagʹs potential connection

to any impropriety the alias may have suggested. Thus, because ʺthe risk of prejudice

even to [the confidential source], much less [Muntslag], was virtually non‐existent,ʺ we

conclude that the single reference did not warrant a mistrial. Rodriguez,

.

3. Evidentiary Challenges

Muntslag raises three issues relating to the evidence admitted at trial: he

argues that the district court erred in admitting, first, two recordings of discussions

among Muntslag, his coconspirators, and the confidential sources for which transcripts

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were not produced before trial; second, a confidential sourceʹs testimony as to his

understanding of certain words and phrases used during the recorded conversations;

and, third, recordings of a nontestifying confidential sourceʹs out‐of‐court statements.

These arguments fail.

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

United States v. Barret,

(2d Cir. 2017), which we find only where the

district court ʺruled in an arbitrary or irrational fashion,ʺ United States v. Kelley,

(2d Cir. 2009) (per curiam) (citation omitted). Moreover, even when error is

found, the lower courtʹs decision will be affirmed if the error is harmless. United States

v. McGinn,

(2d Cir. 2015). Where no objection is made below, we

review only for plain error. United States v. Johnson,

(2d Cir. 2008).

A. Timeliness of Transcript Production

We conclude that the district court did not abuse its discretion in

admitting two recordings for which corresponding transcripts were not produced

before trial. First, while the transcripts for the two recordings at issue were not

available pretrial, they were provided prior to their receipt into evidence. Additionally,

all the recordings were produced to Muntslag and his counsel during discovery months

before trial, along with draft transcripts and translations. Moreover, when Muntslag

raised issues as to the operability of some of the tapes, the government took prompt

corrective action. Second, upon Muntslagʹs objection to the two disputed recordings

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and transcripts, the district court excluded the underlying transcripts from evidence.

Third, Muntslag misconstrues our precedent in United States v. Chiarizio as creating a

blanket rule that requires the district court to review all recordings and their transcripts

in camera.

(2d Cir. 1975). The procedures outlined in Chiarizio are

required only where the parties dispute the accuracy of the tapeʹs contents. See United

States v. Chalarca,

(2d Cir. 1996) (discussing Chiarizio in the context of

proffered transcriptʹs accuracy). Muntslag did not raise that argument below and does

not do so now on appeal.

Even assuming the admission of the tapes was error, we do not find the

requisite prejudice to reverse the district courtʹs decision in light of Muntslagʹs failure to

request a continuance and the overwhelming admissible evidence of guilt. See United

States v. Miller,

(2d Cir. 1997) (observing lack of request for

continuance reflects lack of prejudice).

B. Lay Witness Opinion Testimony

Muntslagʹs claim that the confidential sourceʹs testimony interpreting the

coded words and technical jargon used in the recorded conversations violated Rule 701

of the Federal Rules of Evidence is also without merit. Because no objection was made

below we review for plain error. United States v. Groysman,

(2d Cir.

2014). Under Rule 701, a lay witness may testify to those opinions that are

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

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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. Here, as is often the case

in drug trafficking conspiracies, the confidential sourceʹs testimony was helpful to

clarify certain phrases and words used by himself and the other conspiratorial parties,

including Muntslag, that were ʺambiguous or unclear to someone who was not a

participant in the conversation.ʺ United States v. Urlacher,

(2d Cir.

1997). The confidential source based his opinion solely on ʺinsider perceptions of a

conspiracy of which he was a member,ʺ and thus the opinion was not based on the sort

of specialized training or experience that scientific witnesses rely upon. See United

States v. Yannotti,

(2d Cir. 2008); cf. United States v. Garcia,

(2d Cir. 2005). Accordingly, the district court did not plainly err in this respect.

C. Admission of Nontestifying Witnessʹs Out‐of‐Court Statement

Finally, the district court did not err in admitting a nontestifying

confidential sourceʹs recorded out‐of‐court statements into evidence. We review

Muntslagʹs hearsay and confrontation objections for plain error because they were not

raised below. Johnson v. United States,

, 466‐67 (1997). While out‐of‐court

statements that are offered ʺto prove the truth of the matter asserted in the statementʺ

are generally inadmissible, Fed R. Evid. 801(c)(2), statements not offered for their truth,

but instead, for their effect on the listener or for context, may be introduced as non‐

hearsay statements. See United States v. Paulino,

, 217‐18 (2d Cir. 2006);

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United States v. Barone,

(2d Cir. 1990). The challenged out‐of‐court

statements made by the nontestifying confidential source in conversations with

Muntslag were not offered for their truth, but simply to place Muntslagʹs recorded

statements in context. See Barone,

(admitting recordings to establish

context despite the governmentʹs failure ʺto produce as a witness at trial an informant

who is heard in [the] tape‐recorded conversation with the defendantʺ). Accordingly,

because the statements were not admitted for their truth, the Sixth Amendmentʹs

Confrontation Clause is not implicated. See Paulino, 445 F.3d at 216‐17.

Moreover, to the extent that the confidential sourceʹs out‐of‐court

statements did amount to hearsay, any error was harmless in light of the overwhelming

evidence ‐‐ including a suitcase with ten bricks of cocaine that was recovered incident to

Muntslagʹs arrest in Trinidad ‐‐ establishing that Muntslag participated in the narcotics

conspiracy.

4. Sentencing Challenges

Muntslag challenges the procedural and substantive reasonableness of his

sentence, which we review under a deferential abuse of discretion standard. See United

States v. Cavera,

(2d Cir. 2008) (en banc). A district courtʹs

interpretation and application of the Guidelines are reviewed de novo and its factual

findings for clear error. United States v. Kent,

(2d Cir. 2016).

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A. Procedural Reasonableness

As to his procedural challenge, Muntslag argues that the district court

erred in imposing a two‐level sentencing enhancement, pursuant to U.S.S.G.

§ 2D1.1(b)(1), for possessing a dangerous weapon in connection with a narcotics offense

because he never exercised control over any weapon during the alleged conspiracy.

This argument misses the mark, as control is not a prerequisite for the enhancementʹs

application. Rather, the relevant inquiry is whether a defendant could reasonably

foresee coconspirators possessing a dangerous weapon. See United States v. Ortega,

, 767‐68 (2d. Cir. 1996). Here, possession of a firearm by Dino Bouterse, a

coconspirator, was plainly foreseeable to Muntslag. Indeed, Muntslag concedes that

Bouterse displayed a rocket launcher at a conspiratorial meeting and that Bouterseʹs

armed security detail was frequently present during discussions with the confidential

sources. Even assuming the district court erred in applying the enhancement, however,

the error was harmless because ʺthe record indicates clearly that the district court

would have imposed the same sentence in any event.ʺ United States v. Mandell,

(2d Cir. 2014) (per curiam).

B. Substantive Reasonableness

As to his substantive challenge, Muntslag contends that the district court

inadequately considered the harsh conditions of his confinement in Trinidad while

awaiting extradition. We find this claim unpersuasive as the district court explicitly

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referenced Muntslagʹs detention in Trinidad when imposing his well below‐guidelines

sentence and even recommended that the Bureau of Prisons credit this period of

custody. Because we identify no procedural error and ultimately find Muntslagʹs

sentence to be reasonable, ʺwe will not second guess the weight (or lack thereof) that the

judge accorded to a given factor or to a specific argument made pursuant to that factor.ʺ

United States v. Pope,

, 246‐47 (2d Cir. 2009).

Muntslag further claims that his sentence is substantively unreasonable

because his coconspirator Bouterse also received a 135‐month sentence, despite being

more culpable and convicted of more counts. Contrary to Muntslagʹs assertions, the

district court acted well within its discretion in imposing such a sentence because ‐‐

unlike Muntslag ‐‐ Bouterse pled guilty in advance of trial and accepted responsibility.

See United States v. Florez,

, 157‐58 (2d Cir. 2006) (noting that a defendant

who maintained his innocence and went to trial is dissimilarly situated to a codefendant

who pled guilty). Under these circumstances, the reliance on Bouterseʹs sentence is

misplaced.

We have considered Muntslagʹs 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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