08-0524-cr(L), 08-2342-cr(CON)
     United States v. Gonzalez


                          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 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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3rd day of November, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                REENA RAGGI,
 9                              Circuit Judge,
10                JED S. RAKOFF,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                        08-0524-cr(L)
19                                                                08-2342-cr(CON)
20       DAVID GONZALEZ, PEDRO GONZALEZ,
21



                *
               The Honorable Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1            Defendants-Appellants.**
 2
 3   - - - - - - - - - - - - - - - - - - - -X
 4
 5   APPEARING FOR APPELLANT:    Marc Fernich, New York, NY, for
 6                               Defendant-Appellant Pedro
 7                               Gonzales.
 8
 9                               Edward D. Wilford, (Karloff
10                               Commissiong, on the brief), New
11                               York, NY, for Defendant-
12                               Appellant David Gonzales.
13
14   APPEARING FOR APPELLEE:     Steve C. Lee, Assistant United
15                               States Attorney (Daniel A.
16                               Braun, Assistant United States
17                               Attorney, on the brief), for
18                               Preet Bharara, United States
19                               Attorney for the Southern
20                               District of New York, United
21                               States Attorney’s Office for the
22                               Southern District of New York,
23                               New York, NY.
24
25        Appeal from judgments of the United States District
26   Court for the Southern District of New York (Preska, J.).
27
28        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
29   AND DECREED that the judgments of the district court be
30   AFFIRMED.
31
32        Pedro Gonzales and David Gonzales appeal from judgments
33   of conviction entered on May 6, 2008 and January 22, 2008
34   (respectively), following a three-week jury trial. We
35   assume the parties’ familiarity with the underlying facts,
36   the procedural history, and the issues presented for review.
37
38   [1] Pedro argues that the delay between his arrest in 2003
39   and the start of his trial in September 2007 was a violation
40   of his speedy trial rights. He emphasizes the one-year
41   delay between the first superseding indictment and the


         **
            The Clerk of the Court is directed to amend the
     official caption to conform to the docket numbers listed
     above.
                                   2
 1   Department of Justice’s decision not to seek the death
 2   penalty for his co-defendants.
 3
 4        The Speedy Trial Act “imposes a unitary time clock on
 5   all co-defendants joined for trial.” United States v.
 6   Vasquez, 

, 337 (2d Cir. 1990). The unitary
 7   clock begins with the running of the clock for the most
 8   recently added defendant. United States v. Gambino, 

  353, 362 (2d Cir. 1995). Any “reasonable period of delay”
10   excluded for one defendant is automatically excluded for all
11   defendants; for a defendant to challenge the
12   “reasonableness” of delay attributable to a co-defendant, he
13   must first have moved for severance. 

  336-37; see 18 U.S.C. § 3161(h)(6). Pedro concedes that his
15   attorney failed to make a written motion for severance
16   during that time period, but he argues that speedy trial
17   concerns raised on several occasions should be construed as
18   an oral motion to sever.
19
20        Pedro’s attorney clearly raised concerns about his
21   client’s speedy trial rights at an early date and mused
22   tentatively about bringing a severance motion. However, his
23   comments were always about the consequences of a potential
24   motion, should he choose to make one. See, e.g., Pedro
25   Gonzales Appendix (“PG App.”) at 109 (“[T]he basis for a
26   severance motion which I will be presenting to the Court . .
27   .”) (emphasis added); 

(“I intend to make a motion
28   which would include as relief severance of this case. . . .”
29   (emphasis added)). The statements by Pedro’s counsel
30   “cannot be measured by [their] unexpressed intention or
31   wants” and “should be treated as nothing but what [they]
32   actually [were].” See Johnson v. N.Y., New Haven & Hartford
33   R.R., 

, 51 (1952).
34
35        In any event, the delay was reasonable between the
36   superseding indictment and the highly sensitive death
37   penalty decision. Moreover, the case was complex, and
38   additional time was necessary for discovery. Pedro
39   consented to several of the exclusions, and it is “plausible
40   to regard [a defendant’s] active participation and
41   acquiescence in such delays as itself a significant
42   indication of their reasonableness.” 

  337. Finally, many of the continuances were afforded (in
44   part) to allow Pedro’s counsel to research the formal motion
45   for severance that was never made. See, e.g., PG App. at
46   83-84.
47

                                  3
 1        At oral argument, Pedro invited us to reconsider
 2   Vasquez, and hold that a severance motion is not required to
 3   challenge the reasonableness of delays attributable to a co-
 4   defendant. We decline the invitation. The making of the
 5   motion is important to give notice of a defendant’s claim of
 6   speedy trial prejudice and to avoid gamesmanship in agreeing
 7   to delays that are later challenged. 

  337.
 9
10        The remainder of the time pre-trial was properly
11   excluded from the speedy trial clock under, among other
12   provisions, 18 U.S.C. § 3161(h)(1)(D) and § 3161(h)(7). As
13   to time excluded under (h)(7) to serve “the ends of
14   justice,” the record makes clear that the district court
15   understood the consequences of the delays and conducted the
16   required balancing under § 3161(h)(7)(B)(i)-(iv). See
17   United States v. Breen, 

, 597 (2d Cir. 2001).
18
19        Pedro’s argument under the Sixth Amendment right to a
20   speedy trial is also unavailing. Of the four factors to be
21   considered under Barker v. Wingo, 

, 530 (1972),
22   one favors Pedro (the length of the delay), while the others
23   favor the government: none of the delays were from
24   deliberate or bad faith efforts by the government; Pedro did
25   not press his speedy trial rights, only objecting to a few
26   of the exclusions; he made no showing of how the delay
27   impaired his defense (he called no witnesses and presented
28   no evidence at trial); and his argument that the delays
29   bolstered the government’s use of its cooperating witnesses
30   is speculative and unconvincing.
31
32   [2] Pedro and David argue that testimony about David’s
33   post-arrest statements was improperly redacted. The
34   argument comes down to the rule of completeness. See Fed.
35   R. Evid. 106. David made a post-arrest statement that Soto
36   robbed drug dealers; the government used it to tie Soto’s
37   murder to the drug conspiracy; it is contended that the jury
38   should also have heard David’s statement that Pedro kept
39   David out of the drug business to protect him.
40
41        The rule of completeness permits a defendant to
42   introduce the remainder of a statement not otherwise
43   admissible if it is “necessary to explain the admitted
44   portion, to place the admitted portion in context, to avoid
45   misleading the jury, or to ensure fair and impartial
46   understanding of the admitted portion.” United States v.
47   Castro, 

, 576 (2d Cir. 1987). We review the

                                  4
 1   district court’s application of the rule of completeness for
 2   abuse of discretion. 

       The admitted portion of David’s statement triggers none
 5   of these concerns. Whether Soto was known to rob drug
 6   dealers is an entirely separate issue from whether Pedro
 7   sought to minimize David’s role in the conspiracy to protect
 8   him; David’s comments about each issue were elicited by
 9   separate questions of the investigator. The completeness
10   doctrine does not “require introduction of portions of a
11   statement that are neither explanatory of nor relevant to
12   the admitted passages.” United States v. Marin, 

  73, 84 (2d Cir. 1982). David’s self-serving exculpatory
14   statement would be inadmissible hearsay even had he been
15   tried alone; the rule of completeness is not a mechanism to
16   bypass hearsay rules for any self-serving testimony. It was
17   within the district court’s discretion to conclude that the
18   admitted portion of David’s statements did not distort the
19   meaning of the full statement or exclude information that
20   was substantially exculpatory. See United States v.
21   Benitez, 

, 1086-87 (2d Cir. 1990).
22
23   [3] Pedro contends the district court improperly denied his
24   request for a jury charge about multiple conspiracies. A
25   criminal defendant is entitled to a jury instruction when
26   there is “some foundation in the proof” for it. United
27   States v. Dove, 

, 47 (2d Cir. 1990). However, if
28   there is a variance between the single conspiracy charged
29   and multiple that have been proved at trial, we reverse only
30   upon a showing of substantial prejudice. United States v.
31   Cambindo Valencia, 

, 625 (2d Cir. 1979).
32
33        Although Pedro had several different primary
34   accomplices during the life of the charged conspiracy,
35   Pedro’s presence was a constant throughout; changes in
36   membership “do not necessarily convert a single conspiracy
37   into multiple conspiracies, . . . especially where the
38   activity of a single person was ‘central to the involvement
39   of all.’” United States v. Eppolito, 

, 48 (2d
40   Cir. 2008) (emphasis added) (citation omitted); see also
41   United States v. Vila, 

, 24 (2d Cir. 1979) (“[A]
42   single conspiracy is not transposed into a multiple one
43   simply by lapse of time, change in membership, or a shifting
44   emphasis in its locale of operations.” (citation omitted)).
45
46   [4] The trial court admitted into evidence an IRS
47   certification that Pedro failed to file tax returns.   Pedro

                                  5
 1   could not cross-examine the records-holder, and on that
 2   ground asserts a challenge under Melendez-Diaz v.
 3   Massachusetts, 

(2009). Melendez-Diaz
 4   expanded the category of materials that cannot be introduced
 5   without affording an opportunity to cross-examine the
 6   preparer. 

(holding that affidavits reflecting
 7   forensic determination that substance was cocaine triggered
 8   Confrontation Clause rights). The government concedes that
 9   the admission of the certificate of nonexistence likely
10   violated the Sixth Amendment right to confrontation.
11   Government Brief at 75.
12
13        Pedro did not object to the admission of the records at
14   trial, however. Unpreserved Confrontation Clause objections
15   are subjected to plain error review. United States v.
16   Dukagjini, 

, 59 (2d Cir. 2002). The
17   certifications (that the IRS had no record of Pedro filing
18   tax returns from 1991-2003) suggested Pedro had no
19   legitimate source of income, leading to an inference that he
20   dealt drugs to buy his cars, residences, and businesses.
21   Pedro’s attorney, however, conceded at trial that Pedro was
22   a drug dealer. PG App. at 831 (“He was a marijuana dealer,
23   no question about that. He made money.”). The IRS records
24   were of minimal importance, and the other evidence
25   supporting his conviction was substantial, including
26   testimony by multiple cooperating co-conspirators, large
27   quantities of drugs provided to an informant by one of
28   Pedro’s partners, a consensual recording of a meeting
29   between a cooperating witness and one of Pedro’s partners
30   discussing a large drug deal, paperwork reflecting lavish
31   purchases, and a video showing a hidden “trap” to carry
32   drugs in one of his cars. Therefore, even if Pedro’s
33   Confrontation Clause rights were violated, the violations do
34   not constitute plain error or warrant reversal.
35
36   [5] Pedro argues that his lawyer rendered constitutionally
37   ineffective assistance in failing to contest a vehicle
38   seizure that produced evidence used at trial. This Court
39   addresses ineffective assistance claims on direct appeal
40   when their resolution is “beyond any doubt.” United States
41   v. Matos, 

, 32 (2d Cir. 1990). Ineffective
42   assistance claims are governed by the two-part test from
43   Strickland v. Washington, 

, 687 (1984).
44
45        This claim does not withstand the Strickland
46   requirement for a showing of prejudice. 

47   introduced documents retrieved from the car, and a video of

                                  6
 1   a “drug trap” in the car was shown to the jury to bolster
 2   the credibility of cooperating witness Geraldo, who
 3   testified to the trap’s existence. The evidence from the
 4   car was not central to the government’s case; if it had been
 5   suppressed, overwhelming evidence (discussed above) would
 6   nevertheless support the conviction. The trial counsel’s
 7   error, if any, was therefore not “so serious as to deprive
 8   the defendant of a fair trial,” 

we
 9   reject Pedro’s ineffective assistance claim.
10
11   [6] David argues there was an impermissible lowering of the
12   burden of proof for his conviction for murder in relation to
13   a drug conspiracy. At bottom, the argument appears to be
14   that the jury charge failed to require premeditation for the
15   18 U.S.C. § 924(j) count. Murder under § 924(j)(1) requires
16   proof of an “unlawful killing of a human being with malice
17   aforethought.” See 18 U.S.C. § 1111(a) (defining murder, as
18   referenced by § 924(j)(1)). The district court explained
19   that a subjective intent to kill was not required and that
20   “[t]he requisite malice can be found when the assailant acts
21   with awareness of a serious risk of death or serious bodily
22   harm.” PG App. at 965. This formulation is firmly
23   supported by our case law. See, e.g., United States v.
24   Velazquez, 

, 214 (2d Cir. 2001) (“[I]n the
25   context of second-degree murder in federal law, the
26   requisite malice can in some circumstances be found when the
27   assailant acts with awareness of ‘a serious risk of death or
28   serious bodily harm.’” (emphasis and citation omitted)).
29   The district court therefore properly defined the standard
30   for 18 U.S.C. § 924(j), and there was no lowering of the
31   burden of proof.
32
33   [7] David claims his Confrontation Clause and due process
34   rights were violated where the trial court limited cross-
35   examination of the cooperating co-conspirators involved in
36   Soto’s murder. David sought to probe whether they pled
37   guilty to the murder as principals or as aiders and
38   abettors, and whether they understood the pleas they made.
39   For Confrontation Clause purposes, a trial judge has wide
40   latitude to impose reasonable limits on cross-examination to
41   avoid “harassment, prejudice, confusion of the issues, the
42   witness’ safety, or interrogation that is repetitive or only
43   marginally relevant.” Delaware v. Van Arsdall, 

  673, 679 (1986) (emphasis added). Such a decision to limit
45   cross examination will be reversed only upon a showing of
46   abuse of discretion. United States v. Maldonado-Rivera, 922

, 956 (2d Cir. 1990).

                                  7
 1         David’s questioning concerning the discussions the
 2   witness had with his lawyer concerning the plea agreement
 3   invaded the witness’s attorney-client privilege. David
 4   further inquired as to whether the witness thought his prior
 5   acts constituted the crimes to which he pled. These
 6   questions sought to elicit a legal conclusion over a
 7   complicated statutory scheme. These lines of questioning
 8   were confusing, repetitive, and only marginally relevant;
 9   the district court acted well within its discretion to limit
10   cross-examination.
11
12   [8] Among his challenges to the jury charge, David argues
13   that it improperly formulated the “substantive connection”
14   requirement of 21 U.S.C. § 848(e)(1)(a) and failed to
15   require a finding that aiding and abetting liability
16   requires membership in the drug conspiracy. We review jury
17   charges that were objected to at trial de novo,1 reversing
18   only “where a charge either failed to inform the jury
19   adequately of the law or misled the jury about the correct
20   legal rule,” United States v. Ford, 

, 209-10 (2d
21   Cir. 2006) (citation omitted), and where the error is not
22   harmless. United States v. Amuso, 

, 1261 (2d
23   Cir. 1994).
24
25        The jury charge adequately instructed the jury.
26   David’s complaint about the “substantive connection”
27   formulation focuses on a passage in an aiding and abetting
28   instruction that David takes out of context; and he omits
29   any discussion about the district court’s prior, more
30   detailed formulation of the standard, see PG App. at 969-70,
31   which adequately instructed the jury on the substantive
32   connection requirement of 21 U.S.C. § 848(e)(1)(a). See
33   United States v. Desinor, 

, 202 (2d Cir. 2008).
34
35        David cites no supporting authority for his claim that
36   aiding and abetting liability for § 848(e)(1)(a) requires
37   membership in the drug conspiracy in order to establish a
38   “substantive connection,” and that the jury must make an
39   explicit finding; the argument misconstrues the requirements
40   of aiding and abetting liability under 18 U.S.C. § 2.


         1
           David did not object to the charge on the ground that
     it failed to restate the need for a “substantive” connection
     between the murder and the charged conspiracy. We therefore
     review that aspect of the charge only for plain error. See
     United States v. Bell, 

, 484 (2d Cir. 2009).
                                  8
 1   Moreover, any error was harmless because the jury found that
 2   he was a member of the drug conspiracy.
 3
 4   [9] David challenges the district court’s refusal to
 5   suppress incriminating post-arrest statements he made on the
 6   way to and at the precinct. In reviewing a challenged
 7   suppression ruling, we review legal conclusions de novo and
 8   factual findings for clear error, in the light most
 9   favorable to the government. United States v. Ivezaj, 568

, 96 (2d Cir. 2009).
11
12        The district court found that David received oral
13   Miranda warnings on the way to the precinct and written
14   Miranda warnings at the precinct; in so doing, it was
15   entitled to credit the written Miranda sheet signed by David
16   at the station and the testimony of the detective about the
17   conversation in the car rather than David’s affidavit to the
18   contrary, which was factually inconsistent with documentary
19   evidence.
20
21        The totality of the circumstances support the
22   conclusion that David’s waivers of his Miranda rights were
23   voluntary: “the product of an essentially free and
24   unconstrained choice by [their] maker.” United States v.
25   Bye, 

, 8-9 (2d Cir. 1990) (citation omitted).
26   David’s statements in the car were prompted by a
27   conversation he initiated to determine why he was being
28   detained; in the station, David was read his rights one-by-
29   one, initialed each one, took time to read the form, and
30   signed it.
31
32        For these reasons, the district court did not err in
33   denying David’s motion to suppress.
34
35   [10] David claims that there was insufficient evidence to
36   support his conviction for the narcotics conspiracy. To
37   succeed on a claim of insufficient evidence, a party has the
38   “heavy burden” of showing that “no rational trier of fact,
39   viewing the evidence in the light most favorable to the
40   government, could have found him guilty beyond a reasonable
41   doubt of the essential elements of the crimes charged.”
42   United States v. Desena, 

, 176-77 (2d Cir.
43   2002). We consider all evidence introduced at trial, even
44   if it was improperly admitted. United States v. Cruz, 363

, 197 (2d Cir. 2004).
46
47

                                  9
 1        There was sufficient evidence for a rational jury to
 2   have found David guilty of the narcotics conspiracy count,
 3   even if the evidence suggests that he did not play a major
 4   role. Testimony by co-conspirators and his own inculpatory
 5   post-arrest statements establish he sold marijuana for
 6   Pedro, steered customers to co-conspirators, cleaned the
 7   apartment where marijuana was grown, delivered money or
 8   drugs to a known drug den, and participated in Soto’s murder
 9   to protect Pedro’s drug business. The evidence did not need
10   to cover the entire twelve-year period alleged in the
11   indictment; without affirmative evidence of withdrawal, a
12   person’s participation in a conspiracy is presumed to
13   continue until the last overt act by any of the
14   conspirators. See United States v. Diaz, 

, 98
15   (2d Cir. 1999).
16
17   [11] David contends the government failed to establish the
18   elements of murder through the use of a firearm in relation
19   to a drug conspiracy, in violation of 18 U.S.C. § 924(j).
20   To the extent he argues that the evidence does not establish
21   his membership in the conspiracy, it is duplicative of his
22   sufficiency of the evidence argument for the conspiracy
23   count discussed above. David also argues that he did not
24   have the knowledge or intent to bring about the death of
25   Soto. However, testimony about David’s confessions and from
26   his co-conspirators suggests that David: knew Soto was in a
27   drug-related dispute with Pedro; retrieved a firearm from
28   his apartment; pursued the victim; gave the gun to a co-
29   conspirator in the lobby where the victim was trapped;
30   cocked the gun after it jammed; and received and hid the gun
31   after the murder. These facts are sufficient for a rational
32   trier of fact to have found David had the requisite mental
33   state for conviction under § 924(j), either as a principal,
34   an aider or abettor, or through the Pinkerton charge.
35
36   We have considered the other arguments of David and Pedro
37   and conclude that they lack merit. For the foregoing
38   reasons, we hereby AFFIRM the judgments of the district
39   court.
40
41
42                              FOR THE COURT:
43                              CATHERINE O’HAGAN WOLFE, CLERK
44
45
46



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