17‐1660‐cr United States v. Vazquez

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 COURT=S 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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 17th day of April, two thousand nineteen. 4 5 PRESENT: GUIDO CALABRESI, 6 RAYMOND J. LOHIER, JR., 7 RICHARD J. SULLIVAN, 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 17‐1660‐cr 15 16 JUSTIN VAZQUEZ, 17 18 Defendant‐Appellant. 19 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 20 FOR APPELLANT: Mehmet K. Okay, The Okay 21 Law Firm, Batavia, NY. 22 1 FOR APPELLEE: Tiffany H. Lee, Assistant 2 United States Attorney, for 3 James P. Kennedy, Jr., United 4 States Attorney for the 5 Western District of New York, 6 Rochester, NY. 7 8 Appeal from a judgment of the United States District Court for the Western

9 District of New York (Frank P. Geraci, Jr., Chief Judge).

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

11 AND DECREED that the judgment of the District Court is AFFIRMED.

12 Justin Vazquez appeals from a judgment of conviction of the District Court

13 (Geraci, C.J.), following a jury trial at which Vazquez was found guilty of

14 possession of a firearm and ammunition by a convicted felon in violation of 18

(g)(1) and 924(a)(2). On appeal, Vazquez’s only argument is that

16 the District Court abused its discretion in admitting a 911 call from Dorene

17 Arroyo, Vazquez’s mother, in which she stated that Vazquez had been holding

18 her hostage with a loaded gun for three days and asked for the police to come

19 immediately. Relying on the hearsay exceptions for present sense impressions

20 and excited utterances, see Fed. R. Evid. 803(1)–(2), the District Court admitted

21 the 911 call as evidence of Vazquez’s possession of the firearm, the only contested

2 1 element of the offense. We assume the parties’ familiarity with the underlying

2 facts and the record of prior proceedings, to which we refer only as necessary to

3 explain our decision to affirm.

4 The District Court did not abuse its discretion in admitting the 911 call.

5 See United States v. Gonzalez,

(2d Cir. 2014) (stating that

6 evidentiary rulings are reviewed for abuse of discretion). Federal Rule of

7 Evidence 803(1), the present sense impression exception, requires that the

8 statement be made “while or immediately after the declarant” perceived the event

9 or condition at issue. Vazquez argues that Arroyo’s 911 call is not admissible

10 under this exception because nothing in the record establishes how much time

11 passed between the 911 call and the events Arroyo described. To the contrary,

12 during the call Arroyo described her contemporaneous circumstances, including

13 that she felt under imminent threat from Vazquez. That Vazquez was in the

14 shower at the time of the call does not change the nature of Arroyo’s statements.

15 See Brown v. Keane,

(2d Cir. 2004) (“Statements based on present

16 sense impressions . . . express knowledge based on direct sensory perception.”);

17 Fed. R. Evid. 803(1). The District Court did not abuse its discretion in admitting

3 1 much of the 911 call as a present sense impression.

2 The call was also fully admissible as an excited utterance pursuant to

3 Federal Rule of Evidence 803(2), which requires the declarant to be “under the

4 stress of excitement caused by the event or condition” when making the

5 statement. United States v. Scarpa,

(2d Cir. 1990). Here,

6 Vazquez argues that “there is no basis in the record to establish that Dorene

7 Arroyo was in a state of excitement when she made the 911 call.” Appellant’s

8 Br. at 21. But the record of the 911 call clearly establishes that Arroyo was

9 terrified: she whispered, cried, and repeatedly pleaded for the police to come

10 “immediately.” The officer who first interacted with Arroyo upon reaching her

11 house testified that Arroyo was very emotional and upset, and that her voice was

12 so shaky that it took some time for the officer to understand her. Based on the

13 considerable distress and fear that Arroyo expressed during the 911 call, the

14 District Court did not abuse its discretion in admitting the call pursuant to the

15 excited utterance exception. See United States v. Jones,

(2d Cir.

16 2002).

4 1 We have considered all of Vazquez’s remaining arguments and conclude

2 that they are without merit. For the foregoing reasons, the judgment of the

3 District Court is AFFIRMED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court

5