UNITED STATES OF AMERICA, Appellee, v. D’ANGELO NUNEZ and ALEJANDRO BORBON, Defendants-Appellants.

Nos. 07-1218-cr; 07-3417-cr;United States Court of Appeals, Second Circuit.
November 3, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeals from judgments entered in the United States District Court for the Southern District of New York (Cote,J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGEDAND DECREED that the judgments of the district court beAFFIRMED.

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FOR DEFENDANTS-APPELLANTS: KATHERINE ALFIERI, Law Offices of Katherine Alfieri, New York, New York, forD’Angelo Nunez.

STEVEN R. KARTAGENER, Law Office of Steven R. Kartagener, New York, New York, for Alejandro Borbon.
FOR APPELLEE: AVI WEITZMAN, Assistant United States Attorney (Jillian Berman, Jonthan S. Kolodner, on thebrief), for Michael J. Garcia, United States Attorney, Southern District of New York, New York, New York.

PRESENT: HON. DENNIS JACOBS, Chief Judge,HON. RICHARD C. WESLEY, HON. PETER W. HALL,Circuit Judges.

Defendants-appellants D’Angelo Nunez and Alejandro Borbon (collectively “defendants”) appeal from judgments of conviction and sentence entered in the United States District Court for the Southern District of New York (Cote, J.), on March 20, 2007 and July 31, 2007 respectively. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

A jury found Nunez and Borbon guilty of one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 846. The evidence showed that in early August 2005 Nunez met with a confidential informant (“CI”) and a source of information (“SOI”) for the Drug Enforcement Agency, and discussed plans to rob eleven kilograms of cocaine from a Colombian drug dealer. The CI told Nunez that he had been working for this Colombian drug dealer for

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a number of months and, having earned his trust, was ready to rip him off. Nunez responded that he had a “crew” of associates who could conduct the robbery “law enforcement” style, by posing as police officers and “arresting” the Colombian drug-dealer.

Nunez and the CI met over the following days, and many of their conversations were tape-recorded. In a tape-recorded conversation on August 9, 2005, the CI and Nunez met with two other members of Nunez’s crew, including Alejandro Borbon. The robbery plans were discussed further, and Borbon showed off his police-style gold badge and identification card.

The Colombian drug dealer, however, was fictional. When the robbery crew showed up to “arrest” him at a Burger King restaurant in the Bronx, they were immediately arrested. Following arrest, Alejandro Borbon waived his Miranda
rights and gave a statement to the police admitting his involvement in the planned robbery.

[1] Sufficiency of the Evidence and Variance

Nunez and Borbon argue that the evidence at trial may have showed a conspiracy to rob cocaine from a fictitious Colombian drug dealer, but the evidence did not show that it was an object of the conspiracy to distribute any of the narcotics.

At trial, there was audiotape evidence that Nunez planned to drive off from Burger King with the eleven kilograms of cocaine and sell it to a contact in New Jersey. However, the taped conversations concerning this part of the plan were exclusively between Nunez and the CI, and as a matter of law a conspiracy cannot exist exclusively between a defendant and an agent of the government. United States v. Vazquez, 113 F.3d 383, 387 (2d Cir. 1997). Therefore, the defendants argue, there was insufficient evidence of a single conspiracy, or, alternatively, there was a fatal variance between the charge in the indictment and the proof at trial.

“[A] defendant seeking to overturn a conviction based upon insufficiency of the evidence bears a heavy burden.”United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir.

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1995), cert. denied, 516 U.S. 1001 (1995); UnitedStates v. Wallace, 59 F.3d 333, 338 (2d Cir. 1995). A conviction challenged on sufficiency grounds will be affirmed if, viewing all the evidence in the light most favorable to the prosecution, a reviewing court finds that “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original).

A similar analysis applies to variance arguments. UnitedStates v. Desimone, 119 F.3d 217, 226 (2d Cir. 1997) (when reviewing a claim of variance, “we conduct an inquiry substantially similar to that required to evaluate [a defendant’s] claim of insufficiency of the evidence.”). To decide whether a variance exists and, if so, whether it denied a defendant a fair trial, we employ a two-part analysis.United States v. Alessi, 638 F.2d 466, 472-73 (2d Cir. 1980). First, we determine whether the government sufficiently proved the conspiracy alleged in the indictment, and that the defendant was a member of that conspiracy.Id. at 473. Second, if the evidence fails to support such a finding, we must then determine whether the defendant was substantially prejudiced by the variance between the indictment and the proof. Id. at 474-75.

Although there were no tape-recorded discussions amongst the co-conspirators concerning the plan to sell the cocaine, a rational jury could well have inferred that the other co-conspirators knew that an object of the conspiracy was to distribute the cocaine. The defendants were planning to rob from the Colombian drug dealer an enormous quantity of cocaine. And Nunez, who was to drive off to sell the drugs, seems to have been the leader of the crew. The existence of a conspiracy and a particular defendant’s participation in that conspiracy may be established entirely by circumstantial evidence,United States v. Gordon, 987 F.2d 902, 907 (2d Cir. 1993), and the conspiratorial agreement itself may be established by proof of a tacit understanding among the participants, rather than by proof of an explicit agreement.Id. at 906.

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[2] Supplemental Jury Instruction

Along similar lines, Nunez and Borbon contend that a supplemental jury instruction allowed the jury to convict based solely on a distribution of narcotics amongst the defendants or to the CI.

We review jury instructions de novo, and reverse only when the charge, viewed as a whole, constitutes prejudicial error. United States v. Amato, 540 F.3d 153, 164 (2d Cir. 2008). An erroneous instruction requires a new trial unless the error is harmless. LNC Invs., Inc. v. FirstFid. Bank, N.A., 173 F.3d 454, 460 (2d Cir. 1999).

During deliberations, the jury sought guidance on the “distribution” element of 21 U.S.C. § 841(a)(1), specifically, whether a division of narcotics among the co-conspirators themselves amounted to a “distribution.” The government requested a supplemental charge to the effect that a transfer among members of the conspiracy or to the CI would constitute a “distribution” under § 841. Judge Cote refused to instruct the jury that a transfer amongst co-conspirators themselves could be a “distribution” because the “government’s theory all along had been that these were massive quantities of drugs and this wasn’t a division among the co-conspirators for personal use, but rather to sell on the street and get hundreds of thousands of dollars.” But Judge Cote did adopt the government’s other position, and told the jury that while the CI and SOI could not be members of the conspiracy (“you must find that two or more people entered into this agreement without counting or considering in any way the confidential informant or the source of information”), a transfer of drugs to these agents would nevertheless constitute a “distribution” (“distribution to others can be to anyone. As I said before, it could be to the confidential informant; it could be to others unknown; it could be just to no one in particular that we know of.”).

While Judge Cote’s instructions were on the whole proper, this supplemental instruction might have been misleading under a hypothetical set of facts, insofar as it suggested that a transfer of narcotics to a CI or SOI wouldnecessarily be a “distribution” under § 841(a)(1). Under our holding in United States v.Swiderski, 548 F.2d 445, 450 (2d Cir. 1977), co-conspirators who jointly take possession

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of narcotics at the same time and exclusively for their own personal use do not “distribute” narcotics within the meaning of § 841(a)(1), even when they share drugs among themselves. We have not decided whether the Swiderski
holding applies to a sharing of narcotics among co-conspirators with a government agent if the co-conspirators believe that they are sharing the drugs with the government agent only for their collective personal use.

Nevertheless, any potential error here was harmless beyond a reasonable doubt. It is clear that Nunez all along planned to sell the cocaine to a contact in New Jersey, and, given the enormous quantity of cocaine involved, along with the lack of any evidence of personal use on the part of the defendants, any argument under Swiderski would have been frivolous.

[3] Impeachment Procedure.

Judge Cote employed a trial management procedure to prevent cumulative questioning whereby each of the three defense attorneys was allowed to cross-examine each government witness as to the facts of this case, but had to allocate among themselves the various topics of impeachment, such as prior bad acts, cooperation agreements and bias. When one defense attorney asked if, hypothetically, he could supplement one of the other attorney’s questions if he felt that the other attorney had neglected to ask a particular impeachment question, Judge Cote said “probably not,” but ultimately adopted a wait-and-see approach. She suggested that defense counsel confer beforehand to ensure that all relevant impeachment questions would be asked. Nunez and Borbon argue that this procedure violated their rights to counsel and their rights under the Confrontation Clause.

Applied rigidly, this procedure might raise constitutional issues about the ability of a lawyer for a criminal defendant to question government witnesses on matters critical to the defense. However, in this case, Judge Cote did not absolutely limit any questions, and the defendants have not identified any unexplored lines of questioning. There is no indication that any of the defense lawyers ever voiced a concern about a cross-examination conducted by one of the other defense attorneys. And for

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all the record shows, if a defense attorney had voiced such a concern regarding a particular cross-examination that had taken place, Judge Cote might well have allowed that attorney to re-question a witness as to certain impeachment issues. Under these circumstances, Nunez and Borbon were not deprived of the right to counsel, or confrontation.

There was no denial of the right to counsel because each defendant’s counsel was present throughout the proceedings, was able to cross-examine each witness about the facts of the case, and could confer with co-defendants’ counsel as to cross-examination on impeachment matters. The right to counsel of one’s choice is qualified: it “may be overcome when it is outweighed by competing interests in the fair administration of justice or maintaining orderly trial procedures.”Lainfiesta v. Artuz, 253 F.3d 151, 154 (2d Cir. 2001) (citations omitted). It is within “a trial court’s wide latitude [to] balanc[e] the right to counsel of choice against the needs of fairness and against the demands of its calendar.”United States v. Gonzalez-Lopez, 548 U.S. 140, 152
(2006) (internal punctuation and citation omitted) cert. denied 535 U.S. 1019 (2002). The defendants may not have had the counsel of their choice with respect to cross-examination on impeachment matters, but their counsel was always present, and the prosecution’s case was put through “the crucible of meaningful adversarial testing.” United Statesv. Cronic, 466 U.S. 648, 656 (1984).

There was no Confrontation Clause violation because “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about . . . interrogation that is repetitive or only marginally relevant.” Delawarev. Van Arsdall, 475 U.S. 673, 679 (1986). SeeUnited States v. Concepcion, 983 F.2d 369, 391 (2d Cir. 1992)(“So long as the jury has before it sufficient information to make a discriminating appraisal of the witness’s possible motives for testifying falsely in favor of the government, we will uphold the trial court’s exercise of its discretion.”). See also Fed.R.Evid. 611
(trial court “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . avoid needless consumption of time. . . .”). Here, the jury had before it sufficient information on

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impeachment matters, and defendants have not pointed out any impeachment matters that should have come out but did not.

[4] Sentencing Entrapment and Sentencing Manipulation

Nunez and Borbon argue that the government engaged in “sentencing entrapment” or “sentencing manipulation” by inventing an inflated amount of cocaine for the fictional Colombian drug dealer to possess.

This Court has not yet recognized the doctrines of sentencing entrapment or sentencing manipulation. SeeUnited States v. Gomez, 103 F.3d 249, 256 (2d Cir. 1997); United States v. Gagliardi, 506 F.3d 140, 148
(2d Cir. 2007). In any event, however, the defendants could not successfully raise either defense on the facts of this case.

The defense of sentencing entrapment “requires that a defendant convince the fact-finder that government agents induced her to commit an offense that she was not otherwise predisposed to commit.” United States v. Caban, 173 F.3d 89, 93 n. 1 (2d Cir. 1999) (internal citations omitted). The defense of sentencing manipulation is similar, but focuses on the objective element — whether government conduct was outrageous. Id. at 93 n. 1 (noting that sentencing manipulation occurs “when the government engages in improper conduct that has the effect of increasing the defendant’s sentence.” (quoting United States v. Okey, 47 F.3d 238, 240 (7th Cir. 1995)). Nunez and Borbon had committed drug or robbery crimes in the past. And Nunez did not shrink from the prospect of eleven kilograms: he jumped at the CI’s suggestion that the Colombian drug dealer might have fifteen or even twenty kilograms of cocaine on him.

[5] Prior Bad Acts Evidence.

Defendants each object to certain evidence of prior bad acts admitted against them pursuant to Fed.R.Evid. 404(b).

We take an “inclusionary approach” to the admission of other acts evidence for “any purpose other than to show a defendant’s criminal propensity.” United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006) (internal citations and quotation marks omitted). Furthermore, we accord considerable deference to a district court in making such a

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determination, and will reverse only for abuse of discretion.Id.
[A] Nunez objects to the admission of his 2005 New Jersey state conviction for distribution of one ounce of heroin. At trial, a Jersey City police detective testified as to Nunez’s conviction, and also that on an earlier occasion she observed Nunez attempt to sell one kilogram of cocaine to an undercover agent. It was no abuse of discretion to admit this evidence because Nunez’s counsel had placed intent and opportunity in issue by questioning whether there was ever going to be a robbery at the Burger King, and asserting that Nunez was a “small-timer” who could not pull off a “big time drug deal.”

[B] Borbon objects to the admission of physical evidence from a prior 2005 New York State robbery conviction. When Borbon was at the Burger King, he was wearing a badge, handcuffs, and a police-style radio. The government admitted physical evidence from one of Borbon’s prior convictions, including two blue jackets with “Agent” written on the back, a canister of mace, handcuffs, a police-style radio and a bubble light. The prior conviction was probative evidence of Borbon’s intent (which his counsel had placed in issue by suggesting that Borbon had gone to the Burger King to get a hamburger), and any prejudice from the cumulative effect of the physical evidence was harmless.

[6] Alleged Crawford andBruton Violations

Finally, Nunez contends that a number of statements made at trial violated his Confrontation Clause rights underCrawford v. Washington, 541 U.S. 36 (2004), andBruton v. United States, 391 U.S. 123 (1968). Where, as here, a defendant objects at trial, a district court’s Confrontation Clause analysis is reviewed de novo,United States v. Saget, 377 F.3d 223, 230 (2d Cir. 2004), and subject to harmless error review. See,e.g., United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004).

The first two sets of statements of which Nunez complains — several DEA arrest reports and Alejandro Borbon’s plea allocution in a prior conviction — are not Confrontation Clause violations because the statements did not inculpate

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Nunez and Judge Cote gave proper limiting instructions that these statements were only admitted against other defendants.See, e.g., United States v. Sanin, 252 F.3d 79, 85 (2d Cir. 2001); United States v. Ramos-Cardenas, 524 F.3d 600, 607 (5th Cir. 2008)(“the general rule is that when a co-defendant’s prior statement is admitted with an instruction that it be considered as evidence against only the codefendant, and not the other defendants, the other defendants have not suffered a violation of their Confrontation Clause rights.”).

The third set of statements, however, may have violatedCrawford, and possibly Bruton as well. A police detective who was testifying as to Alejandro Borbon’s post-arrest statement twice began to explain what Borbon had said about Nunez, but he was abruptly cut off both times by Judge Cote as soon as he uttered the name “Nunez.” Whether or not the detective’s mentioning of the name “Nunez” violatedBruton turns on whether the statements were “facially incriminating.” Richardson v. Marsh, 481 U.S. 200, 208 (1987). We need not decide that question, however, because any Bruton or Crawford error was harmless beyond a reasonable doubt in light of the overwhelming audiotape evidence linking Nunez to the crime.

We have considered the defendants’ remaining claims and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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