Filed: Aug. 22, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-22-2008 USA v. Delgado Precedential or Non-Precedential: Non-Precedential Docket No. 06-3741 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Delgado" (2008). 2008 Decisions. Paper 632. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/632 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-22-2008 USA v. Delgado Precedential or Non-Precedential: Non-Precedential Docket No. 06-3741 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Delgado" (2008). 2008 Decisions. Paper 632. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/632 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-22-2008
USA v. Delgado
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3741
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Delgado" (2008). 2008 Decisions. Paper 632.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/632
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
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-3741
____________
UNITED STATES OF AMERICA
v.
CHRISTIAN DELGADO
a/k/a Murder
a/k/a Old C Murder
Christian Delgado,
Appellant
____________
No. 06-3780
____________
UNITED STATES OF AMERICA
v.
JOSHUA BAEZ
a/k/a JOSH
Joshua Baez,
Appellant
____________
No. 06-3846
____________
UNITED STATES OF AMERICA
v.
DAVID NDUKA BOSAH
a/k/a DJ
David Nduka Bosah,
Appellant
____________
No. 06-4264
____________
UNITED STATES OF AMERICA
v.
ARGENIS PACHECO MOSCOSO,
a/k/a HENNESSEY
Argenis Pacheco Moscoso,
Appellant
____________
No. 06-4304
____________
UNITED STATES OF AMERICA
v.
ANGEL FERRER
a/k/a STRANGE
Angel Ferrer,
Appellant
____________
2
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 05-cr-00143-4, 05-cr-00143-6,
05-cr-00143-5, 05-cr-00143-1 and 05-cr-00143-2)
District Judge: Honorable James Knoll Gardner
____________
Submitted Under Third Circuit LAR 34.1(a)
July 2, 2008
Before: RENDELL, SMITH and FISHER, Circuit Judges.
(Filed: August 22, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Christian Delgado, Joshua Baez, David Bosah, Argenis Moscoso and Angel Ferrer
were convicted of conspiracy to distribute cocaine base (“crack”) in violation of 21
U.S.C. § 846. Moscoso and Ferrer were also convicted of three counts of distribution of
crack, id. § 841(a)(1), three counts of distribution of crack within 1,000 feet of a school,
id. § 860(a), one count of possession of crack with intent to distribute,
id. § 841(a)(1), and
one count of possession of crack within 1,000 feet of a school with intent to distribute,
id.
§ 860(a). All five defendants appeal their convictions, and Moscoso also appeals his
sentence. For the reasons set forth below we will affirm.
3
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Between March 2003 and August 2004, the defendants controlled and operated the
Chestnut Street Gang. The Chestnut Street Gang shuttled cocaine from New York City to
Reading, Pennsylvania where gang members processed the cocaine into crack and sold it.
In July 2004 Baez was arrested at one of the properties operated by the Chestnut Street
Gang. He pleaded guilty in state court to possession with the intent to deliver cocaine and
criminal trespass. Local and federal law enforcement agents began investigating the
Chestnut Street Gang and arrested its members in August 2004. The indictment charged
the defendants 1 with conspiracy to distribute crack in Reading, Pennsylvania from March
2003 through August 2004, as well as other substantive drug offenses.
The trial began on November 28, 2005. During voir dire, prospective jurors were
asked if they knew any potential witnesses from a list of thirty names, including that of
FBI Agent Greg Banis. Juror 3 did not respond. During the trial, the Court was informed
that Agent Banis recognized Juror 3 as a neighbor. As a result, the government agreed
not to call Agent Banis as a witness, and the defendants waived their right to request Juror
1
David Lopez was also charged in the indictment, but was later acquitted and does
not participate in this appeal.
4
3’s removal. During a later examination, a government witness mentioned that the
investigation had been turned over to an FBI unit supervised by Agent Banis. The
defendants objected to this reference and requested a mistrial. The District Court
conducted further inquiry and was assured by Juror 3 that although Banis was his
neighbor, he did not “really associate” with Banis and could remain impartial. The
District Court did not remove Juror 3 and denied the request for a mistrial.
Concurrently, the Court began receiving reports of juror misconduct by Juror 9.
Some of this conduct included making sexual advances on female jurors and other federal
employees, approaching counsel for conversation, arriving late, sleeping during trial and
making racially-charged remarks. After confronting Juror 9 with these allegations, the
Court, over defense counsel’s objection, excused Juror 9 from further participation in the
trial.
During trial, as evidence of Baez’s participation in the conspiracy, the government
sought to introduce Baez’s certified conviction records, guilty plea, and sentencing order
regarding his July 2004 state drug conviction. Other witnesses were able to corroborate
this evidence. The defendants objected to the introduction of this evidence, asserting that
it was more prejudicial than probative, and that despite being introduced only against
Baez, it inferred that the other defendants were also involved with the conspiracy, and
thus violated their Sixth Amendment right to confrontation. Despite these objections the
Court admitted the conviction records into evidence. The Court gave a limiting
5
instruction to the jury, specifically stating that Baez’s conviction record was “not
evidence that any of those other five defendants [were] guilty of conspiracy, and [was]
not evidence of anything against those other five co-defendants.” The Court also
explained to the jury that Baez “did not plead guilty to conspiracy. He pled guilty to acts
which may or may not have been part of that alleged conspiracy and that’s for you to
determine.” The Court also directed the jury “not to consider Joshua Baez’s plea against
any of the other co-defendants for any reason or any charge.”
Also during trial, the government examined officers assigned to the F.B.I. Federal
Task Force in charge of the conspiracy investigation. These officers testified that the
defendants dealt drugs near schools and around law-abiding citizens. Video surveillance
of the neighborhood where some of the drug activity occurred was also introduced at this
time. Moscoso objected to the introduction of this evidence.
Delgado, Baez, Bosah, Moscoso, and Ferrer were eventually convicted and
sentenced. Moscoso, the only defendant who now appeals his sentence, was found guilty
of conspiring to distribute crack, possession with intent to distribute, distribution (three
counts), and distribution of crack within 1,000 feet of a school (three counts), charges
carrying a statutory maximum penalty of life in prison. The Court calculated a base
offense level of 46 and a criminal history category of IV, yielding an advisory Guidelines
sentence of life imprisonment. The Court considered the sentencing factors contained in
6
18 U.S.C. § 3553(a) and sentenced Moscoso to a below-Guidelines sentence of 480
months’ imprisonment.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 3742. “We review a
district court’s denial of motions for a mistrial and a new trial, as well as its investigation
of jury misconduct, for an abuse of discretion.” United States v. Bertoli, 40 F.3d 1384,
1392 (3d Cir. 1994). We review the District Court’s evidentiary rulings for an abuse of
discretion. United States v. Rutland,
372 F.3d 543, 545 (3d Cir. 2004). However, we
exercise plenary review when we “are considering whether the District Court correctly
interpreted the Federal Rules of Evidence and relevant case law, and [when the
defendants’] challenge implicates the confrontation clause.” United States v. Mitchell,
145 F.3d 572, 576 (3d Cir. 1998). We review the constitutionality of the District Court’s
sentencing procedure de novo. United States v. Barbosa,
271 F.3d 438, 452 (3d Cir.
2001).
III.
All five defendants contend that the District Court abused its discretion when it
failed to remove Juror 3 or grant their motions for a mistrial. Juror 3 failed to disclose his
acquaintance with Agent Banis during voir dire and was an empaneled juror when he
heard another witness mention that Banis was the F.B.I. agent supervising the conspiracy
7
investigation. We conclude that the District Court did not abuse its discretion when it
found that the non-disclosure was unintentional and did not affect the fairness of the trial.
In general, in order to obtain a new trial
a party must first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a correct response
would have provided a valid basis for a challenge for cause. The motives
for concealing information may vary, but only those reasons that affect a
juror’s impartiality can truly be said to affect the fairness of a trial.
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). Here, after
conducting an on-the-record inquiry, the District Court found that Juror 3’s failure to
reveal his acquaintance with Banis during voir dire was unintentional, and was either
caused by Juror 3’s inattention or the Court’s mispronunciation of Banis’s name.
“Generally, we will not invalidate a jury verdict because of a juror’s ‘mistaken, though
honest’ response at voir dire.” United States v. Hodge,
321 F.3d 429, 441 (3d Cir. 2003)
(quoting
McDonough, 464 U.S. at 555). Defendants have not cited specific evidence
showing that the District Court incorrectly found Juror 3’s actions to have been
unintentional. Regardless, a timely disclosure of Juror 3’s acquaintance with Agent Banis
would not have necessarily resulted in a dismissal for cause. As the District Court found,
the relationship between Juror 3 and Banis was quite weak, noting that Juror 3 did not
“really associate” with Banis. In addition, Banis was not a central figure in the trial,
having no active role, thus mitigating the possibility of partiality. Significantly, and in
contrast to other venirepersons who had been dismissed, Juror 3 also made repeated
8
assurances, accepted by the District Court, that he could and would remain impartial.
See, e.g., United States v. Thorton, 1 F.3d 149, 154 (3d Cir.1993) (a district court
possesses “wide latitude in making the kind of credibility determinations underlying the
removal of a juror”). Thus, we conclude that the District Court did not abuse its
discretion in not declaring a mistrial with respect to the actions of Juror 3.
Moscoso and Ferrer argue that the District Court abused its discretion when it
dismissed Juror 9 for inappropriate conduct over their objections. The record shows that
Juror 9 engaged in an array of inappropriate behavior, including: approaching trial
counsel for conversation, making inappropriate advances to members of the jury and
others, making racially-charged remarks, sleeping during proceedings, and arriving late to
court. The District Court found that this behavior was “poison to the deliberation process
to the point where jurors cannot have a free and frank interchange.” As we have
previously stated, the District Court is “in a far superior position than this Court to
appropriately consider allegations of juror misconduct.” United States v. Boone, 458 F.3d
321, 329 (3d Cir. 2006). Therefore, as the actions of Juror 9 were egregious, we conclude
that the District Court did not abuse its discretion when it dismissed Juror 9 in order to
preserve the integrity of deliberations.
Baez argues that the District Court abused its discretion when it permitted his state
conviction records to be admitted as evidence against him. The state conviction records
contain statements made by Baez admitting to possessing and distributing drugs at the
9
same time and location as the federal conspiracy. This evidence was therefore properly
admitted under Rule 801(d)(2) as an admission, as it is probative of his conduct at the
time and place of the federal conspiracy. Baez has not shown compelling grounds to find
that the probative value of this evidence is greatly outweighed by the prejudicial effect of
admitting this evidence, which was corroborated by other testimony. See Fed. R. Evid.
403. Any prejudice or confusion that the admission of Baez’s record may have caused
was mitigated by an explicit jury instruction, explaining that Baez “did not plead guilty to
conspiracy . . . . He pled guilty to acts which may or may not have been part of that
alleged conspiracy.”
Delgado, Bosah, Moscoso, and Ferrer additionally argue that the admission of
Baez’s state conviction “necessarily implicated them” and because they did not have an
opportunity to cross-examine Baez, their right under the Confrontation Clause was
violated. The defendants rely on the rule enunciated in Bruton v. United States, which
held that a defendant’s right to confrontation was violated where his non-testifying co-
defendant’s confession, which implicated both the defendant and the co-defendant in the
crime, was admitted into evidence. 391 U.S. 123 (1968). Bruton is not applicable when
the admission of a non-testifying co-defendant does not name or “facially incriminate”
any other defendant. Richardson v. Marsh,
481 U.S. 200, 207 (1987). Since Baez’s
admission did not expressly name or reference any other defendant, there is no
Confrontation Clause violation. The defendants, other than Baez, argue that even if the
10
admission did not directly implicate them, it created a strong inference that they were
involved with Baez in the conspiracy to distribute drugs. However, as we stated in United
States v. Belle, “evidentiary linkage or contextual implication may not be utilized to
convert a non-Bruton admissible statement into a Bruton inadmissible statement.” 593
F.2d 487, 494 (3d Cir. 1979). Moreover, the jury was given a limiting instruction,
requested by the defendants, reminding them to consider Baez’s conviction against him
only, and it is an “almost invariable assumption of the law that jurors follow their
instructions.”
Richardson, 481 U.S. at 206. We therefore conclude that Baez’s admission
was properly admitted as evidence against him, and that admission of the evidence did not
offend the Sixth Amendment rights of the other defendants.
Appellant Moscoso argues that the District Court abused its discretion when it
failed to grant his motion for a mistrial after a government witness mentioned that the
investigation was turned over to the FBI and that the drug activity had occurred near to a
school and law-abiding citizens. Moscoso does not dispute the factual basis for these
comments, but rather argues that he was unfairly prejudiced under Federal Rule of
Evidence 403. However, “Rule 403 does not provide a shield for defendants who engage
in outrageous acts . . . . It does not generally require the government to sanitize its case,
to deflate its witnesses’ testimony, or to tell its story in a monotone.” United States v.
Cross, 308 F.3d 308, 325 (3d Cir. 2002) (internal quotation marks and citation omitted).
The references to schools were essential to the government’s standard of proof. The
11
references to innocent bystanders and the FBI were, as the government states “innocuous
and inevitable.” Regardless, Moscoso has not shown that the District Court abused its
discretion when it determined that this material was not substantially more prejudicial
than probative.
Finally, Moscoso appeals his sentence, arguing that he should be resentenced and
that he “is entitled to have the beneficial aspects of the [United States v. Booker, 543 U.S.
220 (2005)] decision apply without retroactive application of the detrimental aspects.”
Moscoso contends that the “detrimental aspect[]” of Booker is that it allows courts to
sentence defendants above the Guidelines range. “The Ex Post Facto Clause of the
Constitution prohibits application of a law enacted after the date of the offense that
inflicts a greater punishment than the law annexed to the crime when committed.” United
States v. Pennavaria,
445 F.3d 720, 723 (3d Cir. 2006) (internal quotation marks and
citation omitted). No ex post facto violation occurred, first because Moscoso had fair
warning that participation in federal conspiracy to distribute crack was punishable by life
imprisonment under the statute. See
id. at 723-24. In addition, Booker “clearly instructed
that both of its holdings should be applied to all cases on direct review.”
Pennavaria, 445
F.3d at 724. Here, Moscoso’s sentence of 480 months’ imprisonment is below both the
statutory maximum of life imprisonment and the advisory Guidelines sentence of life
imprisonment. We will therefore affirm the District Court’s judgment of sentence against
Moscoso.
12
IV.
For the reasons set forth above, we will affirm.
13
