Filed: Jul. 03, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-3-2008 USA v. Cardona-Rosario Precedential or Non-Precedential: Non-Precedential Docket No. 06-1413 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Cardona-Rosario" (2008). 2008 Decisions. Paper 908. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/908 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-3-2008 USA v. Cardona-Rosario Precedential or Non-Precedential: Non-Precedential Docket No. 06-1413 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Cardona-Rosario" (2008). 2008 Decisions. Paper 908. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/908 This decision is brought to you for free and open access by the Opinions of t..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-3-2008
USA v. Cardona-Rosario
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1413
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Cardona-Rosario" (2008). 2008 Decisions. Paper 908.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/908
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-1413
UNITED STATES OF AMERICA
v.
ORLANDO CARDONA-ROSARIO,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cr-00595-5)
District Judge: Honorable John C. Lifland
Submitted Under Third Circuit LAR 34.1(a)
June 24, 2008
Before: SLOVITER, BARRY, and ROTH, Circuit Judges
(Filed: July 3, 2008)
_____
OPINION
SLOVITER, Circuit Judge.
Orlando Cardona-Rosario appeals the judgment of the District Court following a
jury trial on drug conspiracy charges. He argues that the District Court (1) abused its
discretion in admitting evidence of a past drug conviction and allowing hearsay testimony
by a police officer about Cardona-Rosario’s prior conviction; and (2) erred in instructing
the jury that Cardona-Rosario could be convicted if the jury found a “slight connection”
between him and the conspiracy. We will affirm.
I.
On August 12, 2004, Cardona-Rosario and four co-conspirators flew from Puerto
Rico to New York City to retrieve sixty-five kilograms of cocaine they had previously
shipped to Philadelphia. One of the co-conspirators, Eric Fuentes, later identified
Cardona-Rosario as the owner of the cocaine that had been hidden inside furniture and
smuggled into the United States. Once in the United States, one of the other co-
conspirators contacted Fuentes who was accompanied by a confidential informant known
as “Danny.” Danny, unknown to Fuentes, was working for the Drug Enforcement
Administration.
On August 13, 2004, Cardona-Rosario and the other co-conspirators traveled to
Philadelphia from New York (followed by law enforcement) to retrieve the cocaine.
Cardona-Rosario and Fuentes met co-conspirator Hector Rosado-Figueroa in a parking lot
and followed him to the apartment where the cocaine was stored. Cardona-Rosario and
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three co-conspirators were arrested later that evening after stopping at a gas station in
New Jersey, and Fuentes was arrested at his home with the sixty-five kilograms of
cocaine that had been retrieved from Rosado-Figueroa’s apartment. Rosado-Figueroa
was arrested the following day.
Cardona-Rosario, together with five co-defendants, was indicted on August 23,
2004 for conspiracy to distribute and possess with intent to distribute more than fifty
kilograms of cocaine, contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii), and in violation
of 21 U.S.C. § 846. The District Court granted the government’s pre-trial motion seeking
to introduce evidence of Cardona-Rosario’s 1993 conviction in Puerto Rico for
possession of heroin with intent to distribute.1 All of the defendants other than Cardona-
Rosario pled guilty. He was tried from August 4 to August 10, 2005, during which the
jury heard testimony from a police officer involved in the arrest leading to Cardona-
Rosario’s 1993 conviction. The jury returned a verdict of guilty, and Cardona-Rosario
1
In its original motion, the government stated that Cardona-
Rosario had previously been convicted of a cocaine offense, but it
filed a supplemental motion shortly thereafter to explain that
Cardona-Rosario was charged with cocaine and heroin possession
but only pled guilty to heroin possession. Although the District
Court perpetuated this error in its order granting the motion in
limine, Cardona-Rosario did not challenge the government’s
motion on that ground nor did he object to that aspect of the
Court’s order when the evidence was introduced at trial. In fact, he
offered to stipulate to the conviction.
3
was sentenced to 324 months imprisonment.2
II.
Cardona-Rosario argues that the District Court erred in finding that the risk of
unfair prejudice arising from his prior drug conviction, see Fed. R. Evid. 404(b), was
outweighed by the probative value of the prior conviction evidence under Rule 403 of the
Federal Rules of Evidence. Rule 403 provides that “relevant[] evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”
Fed. R. Evid. 403. We review a district court’s Rule 403 balancing for abuse of
discretion, United States v. Givan, 320 F.3d 452, 461 (3d Cir. 2003), and may reverse that
court’s determination only when it is “arbitrary or irrational,” United States v. Universal
Rehab. Servs. (PA), Inc.,
205 F.3d 657, 665 (3d Cir. 2000) (en banc) (citation and internal
quotation marks omitted).
Cardona-Rosario contends that the District Court abused its discretion by failing to
properly consider the length of time between the crimes, the government’s need for the
evidence, and the dissimilarity between the relevant conduct underlying the 1993 and
2005 convictions. These arguments are unavailing.
Although twelve years separated Cardona-Rosario’s 1993 conviction in Puerto
Rico and the 2005 conviction, Rule 404(b) of the Federal Rules of Evidence does not
2
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
4
establish a maximum time interval between the prior conviction and the charged conduct
as a determinant for admissibility of the prior conviction. In its ruling, the District Court
explained that it was admitting evidence of the prior conviction “to prove the defendant’s
knowledge and to rebut his claim of ignorance.” App. at 3. We have sustained the
introduction of such evidence for identical reasons even where the interval was a decade.
In United States v. Lopez, 340 F.3d 169, 171, 174 (3d Cir. 2003), we affirmed the
admission of a 1991 conviction at a 2001 trial “for the purpose of rebutting defense
claims of innocent association, and to prove criminal intent.” Similarly, in this case we
“cannot say that the District Court abused its discretion in admitting evidence of
[Cardona-Rosario’s] prior conviction” solely on the basis of the passage of time following
that conviction.
Id. at 174.
Cardona-Rosario also argues that the government did not seriously need evidence
of the prior conviction to prove its case. This argument must also fail, as Cardona-
Rosario, who indisputably traveled from Puerto Rico to Pennsylvania with several of his
co-conspirators in the days preceding the transaction, continued to assert an innocent
association defense throughout his trial, culminating with the contention during his
closing argument that he, as opposed to his co-conspirators, “had nothing to do with the
drug transaction.” Supp. App. at 453.
Finally, Cardona-Rosario argues that the two crimes are dissimilar. Although the
District Court erroneously stated in its pre-trial order that Cardona-Rosario had pled
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guilty to possession with intent to distribute cocaine, rather than heroin, we have noted
that the fact that different drugs were involved in two separate crimes is “of limited
significance” where the prior act was admitted to prove knowledge, and additionally that
“[i]t is not as if dealing in cocaine and heroin are mutually exclusive endeavors.” Givan,
320 F.3d at 462. Furthermore, the two incidents are not so dissimilar as to compel a
conclusion that the District Court abused its discretion in admitting Cardona-Rosario’s
prior conviction for the limited purposes indicated.
III.
Cardona-Rosario also challenges the admissibility of trial testimony offered by
Daniel Rivera, a Puerto Rican police officer who participated in Cardona-Rosario’s 1993
arrest. When the prosecutor asked Rivera about information that a confidential informant
had given him regarding the group in Puerto Rico with which Cardona-Rosario was
involved, Cardona-Rosario objected on hearsay grounds. At a sidebar conference,
Cardona-Rosario offered to stipulate to the prior conviction, but objected to Rivera’s
testimony as to what the informant said. The District Court sustained the hearsay
objection, but noted that the parties had “essentially an agreement that the subject matter
you are now pursuing is not objectionable” and instructed the prosecutor to finish her line
of questioning “as quickly as you can.” App. at 8. Rivera proceeded to testify about an
undercover officer’s involvement with this group and about the circumstances of
Cardona-Rosario’s arrest.
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Although defense counsel did not raise another objection during the government’s
direct examination, Rivera admitted on cross-examination that parts of his prior testimony
were based on information given to him by someone else. Defense counsel did not
request that that testimony be stricken from the record. On redirect, over Cardona-
Rosario’s objection, Rivera testified that based on his involvement in the investigation, he
believed Cardona-Rosario to be the leader of the organization involved in the 1993
crimes. The Court then issued a limiting instruction, stating that the evidence was
admitted only for the limited purpose of determining whether Cardona-Rosario had the
“requisite intent and knowledge” with respect to the conspiracy charge. App. at 20.
On appeal, Cardona-Rosario argues that the District Court erred in admitting
hearsay testimony that was not based on Rivera’s personal knowledge, in violation of
Rules 802 (hearsay) and 602 (lack of personal knowledge) of the Federal Rules of
Evidence.3 Because the only hearsay objection raised by Cardona-Rosario was sustained
and he did not object to any of Rivera’s subsequent testimony on hearsay grounds or
request that that testimony be stricken from the record, we must consider whether the
3
Cardona-Rosario also contends that it was error to admit
this testimony because the District Court’s Rule 404(b) order
permitted evidence of the conviction, but not necessarily testimony
about the underlying conduct. However, the government’s motion
in limine was not so limited, and Cardona-Rosario never objected
at trial that the government or the District Court misconstrued the
extent of the order. It was not plain error to admit Rivera’s
testimony per se.
7
District Court’s failure to strike Rivera’s testimony sua sponte constitutes “plain error that
affects substantial rights . . . .” Fed. R. Crim. P. 52(b).
It is undisputed that Rivera was a member of the law enforcement team that
monitored the Puerto Rico drug organization and arrested Cardona-Rosario for his role in
that organization. Therefore, Rivera had adequate personal knowledge to testify about the
circumstances of Cardona-Rosario’s arrest, in which he participated. To the extent that
the District Court may have erred by admitting any testimony that was not within Rivera’s
personal knowledge, the government has suggested a “possible legitimate reason” for that
testimony, i.e., as context for Rivera’s subsequent actions. United States v. Rivas, 493
F.3d 131, 137 (3d Cir. 2007); see also United States v. Price,
458 F.3d 202, 205-06 (3d
Cir. 2006) (recognizing “background information” as a proper non-hearsay purpose).
Therefore, any error was not plain.
Rivas, 493 F.3d at 137. Moreover, Cardona-Rosario
“bears the burden of demonstrating that the purported error affected the outcome of the
trial, and he has not done so.”
Id. (citing United States v. Olano,
507 U.S. 725, 734-35
(1993)). The government offered significant co-conspirator testimony and corroborating
evidence of Cardona-Rosario’s role in the 2004 conspiracy, Rivera’s testimony was not
directed at the substantive conduct at issue in Cardona-Rosario’s trial, Cardona-Rosario
offered to stipulate to the admission of his prior conviction, and Rivera’s testimony was
followed by a comprehensive limiting instruction. “We are not convinced that [any of
Rivera’s challenged] testimony affected the outcome of the trial, so any error cannot be a
8
ground for reversal.” Id.
IV.
Finally, Cardona-Rosario argues that the District Court’s jury instruction on
conspiracy, to which he did not object, constituted plain error. Specifically, Cardona-
Rosario challenges the District Court’s statement that, “once a conspiracy is established,
the guilt of a defendant can be established by evidence tending to show beyond a
reasonable doubt that he had at least a slight connection to it and participation in it.”
App. at 92.
First, Cardona-Rosario argues that the “slight connection” instruction too closely
resembles the “slight evidence” instruction that we rejected in United States v. Cooper,
567 F.2d 252, 253 (3d Cir. 1977) (“Clearly, it would be reversible error to charge a jury
that, once the government has shown the existence of a conspiracy, it may connect a
particular defendant to it by ‘slight evidence,’ rather than by evidence proving the
connection beyond a reasonable doubt.”) (citation omitted). However, the jury instruction
in this case uses the phrase “slight connection,” rather than “slight evidence,” and the
District Court specifically stated that this slight connection and participation must be
proven by a reasonable doubt. Indeed, at least two of our sister circuits have concluded
that the phrase “slight connection” addresses the defendant’s role, while “slight evidence”
addresses the standard of proof. See United States v. Anderson,
189 F.3d 1201, 1207
(10th Cir. 1999); United States v. Dunn,
564 F.2d 348, 357 (9th Cir. 1977). We cannot
9
conclude that this aspect of the District Court’s instruction was error, let alone plain error.
Second, Cardona-Rosario challenges the portion of the instruction that discusses
evidence “tending to show beyond a reasonable doubt” a connection to and participation
in the conspiracy. App. at 92 (emphasis added). However, the District Court emphasized
at several points in its instruction that the government is required to prove the elements of
conspiracy beyond a reasonable doubt and provided the jury with a lengthy definition of
reasonable doubt. The language in question must be viewed in the context of the entire
instruction. See United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995). When
evaluating the entire instruction, including the District Court’s clear emphasis on the
government’s burden to prove the elements of the conspiracy beyond a reasonable doubt,
we cannot conclude that the Court committed error.
V.
For the reasons set forth, we will affirm the judgment of the District Court.
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