21-1412 United States v. Espino

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 “SUMMARY ORDER”). A PARTY CITING TO 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 9th day of September, two thousand twenty-two.

PRESENT:

GUIDO CALABRESI, GERARD E. LYNCH, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 21-1412

RAFAEL ESPINO,

Defendant-Appellant. ∗

__________________________________

∗ The Clerk of Court is respectfully directed to amend the caption as set forth above. FOR DEFENDANT-APPELLANT: SARAH BAUMGARTEL, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY.

FOR APPELLEE: LOUIS A. PELLEGRINO (Dominic A. Gentile, Karl Metzner, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

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

District of New York (Charles R. Breyer, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

Rafael Espino appeals from his judgment of conviction following a jury trial

in which he was found guilty of conspiracy to distribute and possess with intent

to distribute a controlled substance in violation of

(a)(1), 846.

Espino contends that there was insufficient evidence to sustain his conviction and

that two aspects of the district court’s jury instructions were erroneous. Because

2 we hold that sufficient evidence supported Espino’s conviction and that the

district court adequately instructed the jury, we affirm.

On May 30, 2018, Indiana State Police officers stopped a car driven by Oscar

Fabian Garcia-Diaz and seized two duffel bags containing twenty kilograms of

heroin, with a street value of approximately $2 million. After telling the officers

that he was traveling to New York to deliver the drugs at a Ramada Inn in the

Bronx, Garcia-Diaz agreed to work with agents from the United States Drug

Enforcement Administration (the “DEA”), who arranged for a controlled delivery

of sham drugs at the Ramada. On the day of the controlled delivery, Garcia-Diaz

informed his co-conspirator in Mexico that he had secured Room 126 at the

Ramada – a room that did not exist at that hotel.

About an hour later, Espino arrived at the hotel in a dark vehicle, carrying

a nearly empty roller suitcase and a small bag. Espino proceeded to the reception

desk and asked for Room 126, at which point Garcia-Diaz introduced himself to

Espino and explained that the room was not yet ready. After expressing

annoyance at this development, Espino directed Garcia-Diaz to help him carry the

two duffel bags – containing twenty kilograms of sham heroin – to his car.

Garcia-Diaz agreed, whereupon Espino left the lobby toting one of the bags and a

3 roller suitcase, which he placed in the back of a white Honda Pilot. At that

moment, a DEA agent approached Espino, who attempted to walk away before he

was arrested.

At trial, Espino’s counsel argued to the jury that Espino had no connection

to the drug operation, and that he did not know that the object of the conspiracy

was to traffic narcotics, as opposed to some “other type of contraband,” such as

“stolen property or counterfeit goods.” J. App’x at 461; see United States v.

Anderson,

(2d Cir. 2014) (explaining that a conviction for conspiracy

to possess or distribute narcotics requires the government to prove that the

defendant knew “that he was participating in an illicit activity” and that “the illicit

activity involved a controlled substance”). As part of this defense, Espino elicited

testimony that a search of his phone revealed no contacts between him and Garcia-

Diaz or Garcia-Diaz’s co-conspirator in Mexico.

At the charge conference before summations, Espino requested an

instruction that he could “not be convicted if the government’s proof only

establishes that he engaged in suspicious behavior without proof that he [had

knowledge] that his conduct involved narcotics.” J. App’x at 357. The district

4 court declined to give that particular instruction, and instead instructed the jury

that it could

find that the defendant acted knowingly if [it] find[s] beyond a reasonable doubt that the defendant was aware of a high probability that drugs were in the duffel bags and deliberately avoided learning the truth. [It] may not find such knowledge, however, if [it] find[s] that the defendant actually believed that no drugs were in the duffel bags, or if [it] find[s] that the defendant was simply negligent, careless, or foolish.

J. App’x at 439.

The jury convicted Espino, and the district court denied his motions under

Rules 29 and 33 of the Federal Rules of Criminal Procedure for a judgment of

acquittal and a new trial, respectively. Espino timely appealed.

I. Sufficiency of the Evidence

“A defendant seeking to overturn a jury verdict on sufficiency grounds

bears a ‘heavy burden,’” because this Court will “uphold the conviction if any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Anderson,

(quoting United States v. Aguilar,

(2d Cir. 2009)). A sufficiency challenge entails assessing the

evidence “in its totality, not in isolation,” United States v. Huezo,

(2d Cir. 2008) (quoting United States v. Autuori,

(2d Cir. 2000)),

5 and “in a light that is most favorable to the government, . . . with all reasonable

inferences resolved in favor of the government,” United States v. Persico,

(2d Cir. 2011) (quoting United States v. Eppolito,

(2d Cir.

2008)).

“To sustain a conspiracy conviction, the government must present some

evidence from which it can reasonably be inferred that the person charged with

conspiracy knew of the existence of the scheme alleged in the indictment and

knowingly joined and participated in it.” Anderson,

(internal

quotation marks omitted). In connection with drug-conspiracy charges,

“[p]roof that the defendant engaged in suspicious behavior, without proof that he

had knowledge that his conduct involved narcotics, is not enough to support his

conviction for conspiracy to traffic in narcotics.” United States v. Torres,

, 69–70 (2d Cir. 2010). Espino challenges the sufficiency of the evidence only

with respect to this last element: that he had knowledge that the conspiracy

involved drugs.

But the evidence was plainly sufficient for the jury to conclude that Espino

knew the criminal purpose of the conspiracy. First, when he arrived at the

Ramada, Espino asked for the fictitious Room 126, supporting the inference that

6 he had contact with a member of the conspiracy. This inference is particularly

strong since Espino arrived shortly after Garcia-Diaz texted his co-conspirator in

Mexico that he had secured Room 126. Second, Espino arrived at the hotel with

empty bags large enough to hold twenty kilograms of heroin. Luggage of that

size would have been unnecessary to transport many other types of contraband,

such as stolen diamonds or child pornography, which could be transported in a

smaller bag, or even a pocket – further supporting the inference that Espino knew

he was there to transport a substantial amount of drugs. Third, based on the

surveillance video of Espino leaving the hotel with the duffel bag and rolling

suitcase, the jury was certainly free to infer that Espino knew what he was

carrying.

Furthermore, given the value of the drugs at issue, the jury could have also

convicted Espino under a theory that he was a trusted member of the conspiracy

and that he therefore knew the conspiracy’s criminal purpose. We have held that

“jurors may infer a defendant’s knowledge of the object of a conspiracy” when

there is “evidence of a trust relationship between the defendant and other

conspirators.” Anderson,

. A trust relationship can be inferred

based on circumstantial evidence, such as the fact that “drug dealers would be

7 very unlikely to confide hundreds of thousands of dollars’ worth of drugs to the

sole control of a person who was not a trusted member of the conspiracy.”

.

Here, there was ample evidence for the jury to conclude that there was a

trust relationship between Espino and the co-conspirator in Mexico. First, Espino

arrived at the Ramada alone to retrieve what the co-conspirator in Mexico

understood to be $2 million worth of heroin. Espino’s sole control over such an

enormous quantity of drugs was alone sufficient to permit the jury to conclude

that he was a trusted member of the conspiracy. 1 Second, when Espino learned

that Garcia-Diaz had failed to secure a room at the Ramada, Espino unilaterally

changed the plan and took possession of the duffel bags in the lobby – a degree of

authority that further supports a finding that Espino held a position of trust in the

conspiracy. From these facts and inferences, the jury could have reasonably

concluded that Espino had “knowledge of the nature of the conspiracy, i.e.,

distributing illegal drugs.” Anderson,

.

1Espino’s exclusive control over the drugs also distinguishes this case from Torres, where we directed an acquittal for insufficient evidence of knowledge in part because the defendant “was never in a position to be alone with the [p]ackages” containing the drugs.

.

8 In sum, viewing the “totality” of the evidence, Huezo,

, in the

“light that is most favorable to the government,” Persico,

(internal

quotation marks omitted), we hold that a rational juror could have concluded

beyond a reasonable doubt that Espino knew the contraband at issue was

narcotics. We thus reject Espino’s challenge to the sufficiency of the evidence.

II. The District Court’s Jury Instructions

Espino’s challenges to the district court’s jury instructions are also

unavailing. “[A] criminal defendant is entitled to instructions relating to his

theory of defense, for which there is some foundation in the proof.” United

States v. Dove,

(2d Cir. 1990). But we will vacate a conviction for

failure to give a requested instruction only when the proposed “instruction is

legally correct, represents a theory of defense with basis in the record that would

lead to acquittal, and the theory is not effectively presented elsewhere in the

charge.” United States v. Doyle,

(2d Cir. 1997) (internal quotation

marks omitted).

Espino requested an instruction that he could not be convicted without

proof that he knew the conspiracy involved narcotics specifically, as opposed to

some other unlawful purpose. But even assuming that Espino’s requested

9 instruction was legally correct and represented a theory of defense based in the

record that would lead to acquittal if believed, the record is clear that Espino’s

defense was fairly presented elsewhere in the district court’s charge. The district

court instructed the jury that “the government must prove each of the following

elements beyond a reasonable doubt: [f]irst, beginning on or about May 2018,

there was an agreement between two or more persons to distribute heroin; and

[s]econd, the defendant joined in the agreement knowing of its purpose and

intending to help accomplish that purpose.” J. App’x at 436 (emphasis added).

We are hard pressed to see how the district court could have more clearly

conveyed Espino’s desired instruction that he must have known of the specific

illicit purpose of the alleged conspiracy. The district court was not required to

give Espino’s formulation of this instruction in addition to the perfectly adequate

one that it gave.

Espino also challenges the district court’s conscious-avoidance instruction.

Under the doctrine of conscious avoidance, a jury may infer the defendant’s

knowledge of a particular fact when “the evidence is such that a rational juror may

reach the conclusion beyond a reasonable doubt that the defendant was aware of

a high probability of the fact in dispute and consciously avoided confirming that

10 fact.” United States v. Ferrarini,

(2d Cir. 2000) (quoting United

States v. Rodriguez,

(2d Cir. 1993)) (alterations omitted). Espino

argues that (1) there was no basis for a conscious-avoidance charge as a matter of

law because mere knowledge does not amount to the requisite specific intent to

join a conspiracy, and (2) there was no factual basis for a conscious-avoidance

charge because nothing in the record supported an inference that he acted

deliberately to avoid confirming that the contraband was drugs. Neither

argument persuades us.

First, a conscious-avoidance instruction is legally appropriate when a

defendant challenges his knowledge of the object of the alleged conspiracy.

Ferrarini,

. Such is the case here. Indeed, whether Espino had

knowledge of the conspiracy’s purpose lies at the very heart of his appeal. See

United States v. Eltayib,

(2d Cir. 1996) (explaining that “if the

defendant’s participation in the conspiracy has been established, conscious

avoidance may support a finding with respect to the defendant’s knowledge of the

objectives or goals of the conspiracy”); see also United States v. Reyes,

(2d Cir. 2002) (same).

11 Second, there was a sufficient factual predicate for a conscious-avoidance

instruction on the facts before the jury. “When a defendant charged with

knowingly possessing contraband items takes the stand and admits possession of

the contraband but denies having known of the nature of the items, a conscious

avoidance charge is appropriate in all but the highly unusual – perhaps non-

existent – case.” United States v. Aina-Marshall,

(2d Cir. 2003).

To be sure, Espino did not take the stand here. But no one disputed that Espino

had possession of the sham narcotics, and Espino only denied knowing “the

nature of the items.”

Because we see no reason why this case should fall into

the narrow, “perhaps non-existent” exception that Aina-Marshall contemplated,

the conscious-avoidance instruction was appropriate.

Finally, Espino argues that the conscious-avoidance doctrine requires him

to have taken some “deliberate action[]” to avoid learning a relevant fact, Reply

Br. at 16, and that there was no factual basis for inferring a deliberate action in this

case. But a conscious-avoidance charge may also be given when “a defendant’s

involvement in the criminal offense may have been so overwhelmingly suspicious

that the defendant’s failure to question the suspicious circumstances establishes

the defendant’s purposeful contrivance to avoid guilty knowledge.” United

12 States v. Kozeny,

(2d Cir. 2011) (internal quotation marks omitted).

Surely, the jury was entitled to conclude that the circumstances here were

sufficiently suspicious that Espino’s failure to question or investigate them was

indicative of a “purposeful contrivance to avoid guilty knowledge.”

(internal

quotation marks omitted).

Because the district court appropriately conveyed the substance of Espino’s

requested instruction regarding the knowledge the jury was required to find, and

there was adequate factual and legal basis for a conscious-avoidance charge, the

district court did not err in either of the instructions Espino challenges.

* * *

We have considered Espino’s remaining arguments and found them to be

meritless. Accordingly, we AFFIRM the judgment of the district court.

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

13