JOSÉ A. CABRANES, Circuit Judge:
Defendants-appellants Luis Batista and Alexander Alcantara appeal from separate judgments of conviction entered in the United States District Court for the Eastern District of New York (Dora L. Irizarry, Judge), on August 11, 2010, and September 27, 2010, respectively.
Batista appeals from the District Court's judgment convicting him after a jury trial of: (1) conspiracy to distribute cocaine, cocaine base, and ecstasy, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(C); (2) conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1349 and 1344; (3) bank fraud, in violation of 18 U.S.C. § 1344; and (4) obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2); and sentencing him principally to a 180-month term of imprisonment and a $25,000 fine.
Alcantara appeals from the Court's judgment convicting him after a guilty plea of (1) conspiring to distribute and possess with intent to distribute fifty grams or more of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); and (2) distribution of and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and sentencing him principally to a 120-month term of imprisonment.
We have considered each of the appellants' arguments, and having carefully reviewed the record and the judgments of the District Court, we affirm the judgments of the District Court in their entirety.
In 2007 and 2008, Luis Batista, a ten-year veteran of the New York City Police Department ("NYPD"), and Alexander Alcantara were indicted in connection with their membership in a large narcotics trafficking ring centered in Bushwick run by one Virgilio Hiciano. In a superseding indictment filed on August 13, 2008, Batista was charged with: (1) conspiracy to distribute cocaine base ("crack"), cocaine, and ecstasy in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344; (3) bank fraud in violation of 18 U.S.C. § 1344; and (4) one count of obstruction of justice and one count of
The factual background set forth below is drawn from the record of these related proceedings, taken "in the light most favorable to the prosecution," Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
In or about 1992, Batista befriended Hiciano, then a low-level narcotics dealer in a minor Bushwick drug ring. Batista joined the NYPD in 1997 and was promoted to detective in 2004. As the years went by and both Hiciano and Batista rose in the ranks of their respective organizations, Batista and Hiciano continued to socialize several times per week.
By 1999 or 2000, Hiciano had taken over the leadership of the Bushwick drug ring, and the ring grew to be one of the largest in that area of Brooklyn. The government alleges that Hiciano's friendship with Batista, by that time an undercover narcotics officer, then began to pay off: From the late 1990s until 2006, Batista provided Hiciano with a steady and reliable stream of information about police activity in Hiciano's part of Bushwick. Among other services provided to the ring, Batista would tell Hiciano to "be careful" when Batista knew the police were scheduled to be at or near Hiciano's location, permitting Hiciano to warn his street-level narcotics dealers that the area was "hot."
In April 2006, Hiciano was arrested and began cooperating with the government. Two months after his arrest, however, Hiciano fled to the Dominican Republic. While there, he was visited by an "enforcer," who represented several drug suppliers to whom Hiciano owed money, including Alcantara. Apparently as a result of the enforcer's visit, Hiciano's girlfriend— whom Hiciano had left in charge of the Bushwick drug ring—turned over two vehicles to one of the suppliers in order to pay part of the ring's debt.
On August 23, 2006, shortly after Hiciano had fled the country, Alcantara was arrested and immediately agreed to cooperate with investigators. While he originally claimed that he was merely a drug courier, he eventually admitted that he was a major seller of narcotics to Hiciano's organization. He testified at Batista's trial that he had sold Hiciano between 80 and 110 kilos of cocaine through the course of their extended business relationship. The evidence at this trial confirmed that Alcantara was Hiciano's "main supplier."
In late 2006, largely on the basis of information provided by Alcantara, federal investigators applied for and received authorization under Title III
At trial, both Alcantara and Hiciano testified against Batista. Hiciano testified to the extent of Batista's involvement in the drug conspiracy, explaining that Batista would advise him to "be careful"
Batista testified in his own defense, claiming that he had never given information to Hiciano about police activity in Bushwick, and that his relationship with Hiciano was exclusively a social one. He admitted that he continued to accept free drinks from Hiciano after learning that Hiciano was involved in criminal activity, and to other unlawful acts unrelated to Hiciano, but vehemently disputed the government's contention that he had conspired with Hiciano to protect the latter's narcotics trafficking organization.
Batista was convicted by the jury on all charges.
At Batista's sentencing on June 10, 2010, the District Court found that the narcotics conspiracy of which he had been convicted involved possession of a firearm and therefore imposed a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(1). Finding that Batista had made materially false statements to investigators and had committed perjury on the witness stand, the Court also imposed a two-level enhancement for obstruction of justice, under U.S.S.G. § 3C1.1. The Court declined to grant a downward adjustment for a minor or minimal role pursuant to U.S.S.G. § 3B1.2.
The Court concluded that Batista's adjusted Guidelines level was 44, corresponding to a recommended sentence of life imprisonment. Finding that a sentence of life imprisonment would be too harsh, and that a sentence at the mandatory minimum of 120 months would be too lenient, the Court imposed a non-Guidelines sentence consisting primarily of 180 months in prison and a fine of $25,000.
Alcantara was sentenced three months later, on September 15, 2010. On the basis of the government's representation that Alcantara had extensively and productively cooperated with investigators, and on its own observation that his testimony at Batista's trial was truthful, the District Court granted the government's motion for a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). It then imposed a two-level Guidelines enhancement for obstruction of justice under U.S.S.G. § 3C1.1, a four-level enhancement under U.S.S.G. § 3B1.1(a) for a leadership role in the offense, and a two-level enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). The Court also found that Alcantara was responsible for over 150 kilograms of cocaine, rather than the 80 to 110 kilograms Alcantara had admitted to selling at trial.
The District Court calculated Alcantara's adjusted Guidelines level to be 43, with a recommended sentence of life imprisonment. Having granted the government's motion for a downward departure, the Court imposed a non-Guidelines sentence of 120 months in prison.
On appeal, Batista argues that his conviction and sentence should be vacated for eight reasons: (1) the evidence was insufficient to sustain a verdict of guilty on Count One, which charged membership in a conspiracy to possess and distribute cocaine and ecstasy; (2) the government was permitted to introduce evidence at trial that was unduly prejudicial and had little or no probative value; (3) at least one
Alcantara argues on appeal that the District Court's sentence was both procedurally and substantively unreasonable, contending that: (1) the Court erroneously calculated his base offense level by holding him responsible for 150 kilograms of cocaine and 4.5 kilograms of crack; (2) the Court improperly applied an upward adjustment for obstruction of justice; (3) the Court wrongly applied a four-level enhancement for his role in the offense; and (4) the sentence imposed was substantively unreasonable because it was twice the sentence imposed upon another, allegedly more culpable, individual convicted in the offense.
We have considered all of the appellants' claims on appeal and find them to be without merit. We address below only those that merit some degree of special attention.
Batista argues that he was denied due process of law when at least one juror allegedly slept through parts of his trial. Because the District Court is uniquely able to "`continuous[ly] observ[e] ... the jury in court,'" we ordinarily review the Court's "`handling of alleged juror misconduct... for abuse of discretion.'" United States v. Diaz, 176 F.3d 52, 78 (2d Cir. 1999) (quoting United States v. Panebianco, 543 F.2d 447, 457 (2d Cir.1976)). In this case, however, because defense counsel never requested that the juror be removed from the panel, we review the Court's decision not to excuse the juror sua sponte for plain error. See, e.g., United States v. Fernandez-Hernandez, 652 F.3d 56, 75 (1st Cir.2011) (where defense counsel "alerted the trial court" that a juror was "falling asleep," but failed to "raise any due process objection" at the time, the trial court's failure to remove the juror sua sponte was subject to plain error review) (internal quotation marks omitted); cf. United States v. Simels, 654 F.3d 161, 168 (2d Cir.2011).
An action is plainly erroneous where there is "(1) error, (2) that is plain, and (3) that affects substantial rights." Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks and alteration omitted). If we find that an action is plainly erroneous, we "may then exercise [our] discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation
The error alleged by Batista was waived at trial.
We decline to disturb the Court's careful and considered judgment on this issue. See Diaz, 176 F.3d at 78 (upholding conviction where the court had, "from the moment the sleeping juror allegation was raised, investigated the matter and carefully observed the juror in question throughout the trial"). The District Court's decision to permit the juror to continue and to deliberate was not an abuse of discretion, much less plainly erroneous.
Batista also contends that the District Court violated the Court Interpreters Act of 1978, 28 U.S.C. § 1827, by instructing the court interpreter to employ a particular translation of a Spanish slang phrase that Hiciano testified that Batista had used to warn him of police activity. Because Batista did not object to the Court's instruction at the time, he has waived the argument for purposes of appeal.
The controversy arose when Hiciano, in testimony regarding a code he had worked out with Batista to signal police presence in Bushwick, stated that Batista would use the phrase "loco cuídate" to warn of imminent police action. The meaning of the phrase is arguably ambiguous: it could mean either "take care, dude"—perhaps innocuous enough—or "be careful, dude," which was perhaps less innocuous given the context in which the phrase was uttered.
Faced with a potentially decisive issue of translation, the District Court suggested that the witness himself, who was evidently conversant in both English and Spanish, could clarify what he understood Batista to mean by "loco cuídate" and thereby establish the interpretation to be used by the court interpreter. The Court therefore, with the permission of the parties, elicited testimony from Hiciano, outside the presence of the jury, regarding his intended meaning. Hiciano confirmed that he understood Batista to mean "be careful," not "take care" and that Hiciano appreciated the difference between the two meanings. The Court then inquired of counsel for both sides whether they objected to the translation given by the witness, and both sides declared that they had no objection. Only then did the Court instruct the interpreter to use the agreed-upon translation. The Court's action was entirely reasonable; it was not erroneous, much less plainly erroneous.
In the appendix to his opening brief, Batista compiles thirty statements made by the government in its summation, each of which, he contends, was improper. Of the thirty statements listed, Batista objected at trial to only two. We therefore address principally those two statements, and review the government's summation for "egregious misconduct."
A defendant alleging prosecutorial misconduct ordinarily bears "a heavy burden." Locascio, 6 F.3d at 945. In this case, because the two objections asserted by defendant's counsel were sustained and the District Court promptly provided the jury with curative instructions, and because we presume that a jury follows the instructions of the court, the burden is even higher. See Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) ("[E]ven if there were some risk of prejudice, here it is of the type that can be cured with proper instructions, and `juries are presumed to follow their instructions.'" (quoting Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987))).
Upon consideration of the two challenged comments in the context of the entire record, including the trial transcript, see United States v. Canniff, 521 F.2d 565, 571 (2d Cir.1975), it is clear to us that neither statement rose to the "egregious" level required to overturn a jury verdict, see Elias, 285 F.3d at 190. The first comment—an observation that Batista's co-worker and alleged co-conspirator William Valerio had pleaded guilty to bank fraud— referred to a fact already in the record (albeit in a different context). The second, in which the government apparently attempted to appeal to the jury's sense of public duty, was immediately cured by the District Court: it reminded the jurors that their role was not to make a public policy determination, but to decide whether the government had met its burden of proving beyond a reasonable doubt each and every element of the charged crimes. Although perhaps inappropriate, neither comment by the prosecutor, in context, was so "severe and significant" as to deny Batista his right to a fair trial. Locascio, 6 F.3d at 945.
Batista argues that the District Court improperly applied a two-level enhancement to his offense level under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with a drug trafficking offense. The imposition of a sentencing enhancement under § 2D1.1(b)(1) involves questions of fact that we review for clear error. United States v. Stevens, 985 F.2d 1175, 1188 (2d Cir.1993) ("The sentencing court's finding that a firearm was possessed in connection with a drug offense for purposes of § 2D1.1 will not be overturned unless it is clearly erroneous.").
In order for a defendant's projected Guidelines sentence to be enhanced under § 2D1.1(b)(1), "`[t]he defendant need not have had personal possession, or even actual knowledge of the weapon's presence; the enhancement is required so long as the possession of the firearm was reasonably foreseeable to the defendant.'" United States v. Giraldo, 80 F.3d 667, 677 (2d Cir.1996) (quoting Stevens, 985 F.2d at 1188) (abrogated on other grounds by Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)). Accordingly, if one member of a narcotics conspiracy possessed a firearm in furtherance of the conspiracy, the other members of the conspiracy who reasonably could have foreseen such possession are chargeable with possession under § 2D1.1(b)(1). United States v. Soto, 959 F.2d 1181, 1186-87 (2d Cir.1992).
Batista argues that imposition of a sentencing enhancement for possession of a firearm is inappropriate because a firearm was not found in physical proximity to him, and because Hiciano never informed him that a member of the narcotics conspiracy
As the District Court found, Batista was an experienced narcotics detective with the NYPD, who had conducted extensive undercover operations infiltrating illegal narcotics operations, and who was well aware that "drug dealers are often armed." United States v. Batista ("Batista III"), 732 F.Supp.2d 82, 98 (E.D.N.Y.2010). Batista knew the general size and scope of Hiciano's drug ring, and he could easily have foreseen that someone would possess a firearm in relation to the illegal activities of the ring. Indeed, Hiciano himself kept a firearm in an apartment in 441 Wilson Avenue
The majority of Batista's remaining arguments on appeal were addressed by the District Court in four thorough and well-reasoned opinions spanning the lifetime of the case. See Batista III, 732 F.Supp.2d 82 (addressing sentencing issues including minimal/minor role reduction and obstruction of justice enhancement); Batista II, 2010 WL 1193314 (rejecting in part Batista's motion for a judgment of acquittal under Fed.R.Crim.P. 29, rejecting entirely his motion for a new trial under Fed. R.Crim.P. 33, and holding that the government had presented sufficient evidence at trial to support a guilty verdict on all counts other than conspiracy to obstruct justice); United States v. Batista, No. 06-CR-265 S-5, 2009 WL 3134561 (E.D.N.Y. Sept. 23, 2009) (addressing admission of evidence challenged as unduly prejudicial); Batista I, 2009 WL 910357 (addressing the suppression and Franks hearing issues).
We find no error in any of the District Court's holdings, and we affirm the judgment of the District Court as to Batista.
Alcantara, who pleaded guilty pursuant to an agreement with the government, raises a number of sentencing issues on appeal.
Alcantara argues that the District Court erred in calculating his base offense level when it found, by a preponderance
We need not resolve whether the District Court erred in finding by a preponderance of the evidence that Alcantara was responsible for at least 150 kilograms of cocaine. As the District Court explained, evidence that Alcantara knew that Hiciano's ring dealt in crack cocaine as well as powder cocaine, and knew of the quantity of crack that could be made from the quantity of powder he sold to Hiciano, supports the District Court's finding, by a preponderance of the evidence, that Alcantara could and should be held responsible for at least 4.5 kilograms of crack cocaine. The District Court did not clearly err in reaching this conclusion.
Alcantara challenges the enhancement of his offense level by four levels pursuant to U.S.S.G. § 3B1.1(a), which provides that a defendant's offense level should be enhanced if he "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Id. "While the criminal activity must be found to have involved five or more participants, the defendant need not have been the leader of more than one other participant for this adjustment to apply." United States v. Chavez, 549 F.3d 119, 136 (2d Cir.2008). We will overturn "[t]he sentencing court's findings as to the defendant's role in the offense ... only if they are clearly erroneous." United States v. Farah, 991 F.2d 1065, 1068 (2d Cir.1993); see United States v. Zichettello, 208 F.3d 72, 107 (2d Cir. 2000).
As an initial matter, Alcantara argues that the District Court erred in enhancing his offense level by four levels—the designated enhancement for "leaders" or "organizers"—rather than three levels—the designated enhancement for "managers" or "supervisors"—because the Court classified him at sentencing as a "supervisor," rather than as a "leader" or "organizer." See United States v. Gotti, 459 F.3d 296, 348 (2d Cir.2006) (noting that "U.S.S.G. § 3B1.1(b) provides for a three-level enhancement if `the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants'" (quoting § 3B1.1(b))).
Both the Court's use of the word "supervisor" and its citation to § 3B1.1(c)
Alcantara argues that he did not exercise control over Hiciano, and that the District Court's conclusion that he was a leader or organizer of Hiciano's conspiracy was therefore unsupported by the record.
The Court's application of a four-level "leader or organizer" role enhancement was not clearly erroneous. Alcantara was, as the Court observed, a significant supplier of drugs to Hiciano's organization. The Court repeatedly emphasized the influence this position gave Alcantara over Hiciano's management decisions, noting that even though Alcantara did not direct the activities of the distribution ring by issuing orders to its lower-ranked members, his control over Hiciano affected the operation of the distribution ring as a whole.
Accordingly, the District Court did not clearly err in determining that Alcantara's influence over Hiciano was sufficient to support a four-level enhancement for a "leader or organizer" role in the offense.
In any event, even if the District Court could be said to have committed legal error by calling Alcantara a "supervisor" rather than a "leader" or "organizer," or by imposing any role enhancement at all, any such error was harmless. Moreover, where, as here, "the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless." United States v. Jass, 569 F.3d 47, 68 (2d Cir.2009) (internal quotation marks omitted); see United States v. Cavera, 550 F.3d 180, 197 (2d Cir.2008) (en banc). We hold, for two independent and sufficient reasons, that the record clearly indicates that the role enhancement had no effect on Alcantara's sentence.
First, we note that the District Court sentenced Alcantara principally to 120 months' imprisonment. That term of imprisonment constituted the statutory minimum term applicable to his offense of conviction. See 21 U.S.C. § 841(b)(1)(A). No further departure, short of a safety-valve reduction under 18 U.S.C. § 3553(f) (to which Alcantara does not argue he was entitled), could have reduced his sentence below the statutory minimum. Because Alcantara was sentenced to the statutory minimum term of imprisonment, any error in adding the role enhancement was harmless as a matter of law.
Second, and in the alternative, the District Court clearly intended to grant Alcantara a substantial departure from his Guidelines-recommended sentence. The Court calculated that, with a four-level enhancement and other adjustments, Alcantara's final Guidelines level would be 43, which the Court described as "high." The Court then went on to observe that, even if Alcantara's objections to the PSR—including his objection to the four-level enhancement—had been successful, "the guidelines would still be high."
We therefore hold that, even if the District Court had not applied the four-level role enhancement, Alcantara's sentence would have been the same, and that any error in arriving at his sentence was harmless.
We have considered the remainder of Alcantara's arguments on appeal, and find
Having conducted an independent review of the record, we find no error in the District Court's thorough and considered analysis of defendants' various claims. To the extent defendants have raised claims that were not initially brought before the District Court, we hold that they did not reveal error, much less plain error. These complex proceedings were conducted with care and fairness. The judgments of the District Court are AFFIRMED.
In the case on appeal, defense counsel clearly waived, rather than forfeited, its objections to the District Court's handling of the sleeping juror. In one instance, defense counsel declined the government's suggestion that he request the juror's removal, responding that he would have "no problem bringing to the court anything that's on our minds to protect the defendant." On another occasion, the government again invited the defense to raise an objection to the juror. Defense counsel responded, "[D]uring my summations, I started walking in his direction. [E]very time he saw me, he seemed fine." Counsel for Batista's co-defendant reiterated simply: "No motion, Judge."
