Opinion
13-CR-360 (AJN)
12-23-2014
United States of America, v. Felix Parrilla, et al., Defendants.
OPINION AND ORDER
:
On July 17, 2014, following a nine-day jury trial that began on July 7, 2014, Defendants Felix Parrilla, Gary Thomas, and Kirk Tang Yuk were convicted on Count One of a Superseding Indictment, Dkt. No. 148. Count One charged the Defendants with conspiring to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). At the close of the Government's case, all Defendants moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a); the Court reserved decision on the motions at that time. Following the jury verdict, the Defendants renewed their motions for a judgment of acquittal pursuant to Rule 29(c) and also moved for a new trial pursuant to Rule 33. For the reasons discussed below, the motions are DENIED.
BACKGROUND
At trial, the Government presented evidence in the form of witness testimony, phone records, recordings of wiretap interceptions, consensual recordings made by the cooperating witness at the direction of the Government, text messages, a video recording, GPS locational data, and physical evidence collected during the course of the Government's investigation. Viewing this evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, United States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002), the evidence proved the following conspiracy:
Deryck Jackson, the Government's cooperating witness, met Defendant Gary Thomas in the summer of 2010. Tr. 633:20-21. Thomas owned a legitimate waste management business in St. Croix, U.S. Virgin Islands named Paradise Waste Systems, Inc. Tr. 634:11-18. Thomas subsequently introduced Jackson to Defendant Felix Parrilla, whom Jackson knew as Lito, and to Defendant Kirk Tang Yuk. Tr. 634:19-635:1. Jackson began doing odd work here and there for Thomas in the early part of 2012, Tr. 635:13-636:1, but in the summer of 2012, Thomas asked Jackson if he wanted to make some extra money by helping Thomas distribute cocaine, Tr. 636:2-637:1. After Jackson agreed, he traveled from Florida to St. Croix on several occasions to discuss the possible drug transaction. Tr. 637:2-8.
On one of these trips to St. Croix, Thomas explained to Jackson that Parrilla would take some of the cocaine after it was delivered in Florida. Tr. 644:16-645:10. Sometime later, Jackson met with Tang Yuk in Florida and told Tang Yuk that he was expecting to receive some cocaine; he then asked Tang Yuk whether he wanted to sell some of it, Tr. 647:20-648:3, and Tang Yuk agreed, Tr. 650:7-12.
At some point, Jackson purchased a number of pre-paid cellular telephones, which were referred to as "go phones," that he used to communicate with Thomas and Parrilla any time they discussed the drug transaction. Tr. 650:13-651:8, 691:1-8. Jackson programmed the phones and gave two of them to Thomas, who in turn provided one of the phones to Parrilla. Tr. 651:9-17. (Thomas activated his phone on September 13, 2012. GX 1503-A. Parrilla activated his prepaid phone on September 19, 2012, GX 1505-A, which is the same day that Jackson testified that he picked up the cocaine in Florida from Parrilla's shop, Tr. 749:2-750:19, 764:16-22.)
On August 29, 2012, Thomas emailed the Tropical Shipping Company to request a 20-yard container to be delivered to Paradise Waste, which would be used to convey a tire shipment headed to the U.S. mainland. GX 901. Geolocation data from Jackson's phone showed that Thomas and Jackson met at Paradise Waste on August 31, 2012. GX 503-J. Jackson testified that on that day he and Thomas packed 80 kilograms of cocaine into the false bottom of a wooden shipping crate, Tr. 697:15-698:24, 700:9-701:9, and that Thomas poured a chemical with a pungent odor into the crate to mask the smell of the drugs, Tr. 701:14-702:5. While at Paradise Waste, Thomas told Jackson that he would pick up the crate from a man named "Angel" when it arrived at a business near Medley, Florida. Tr. 704:9-705:4.
On September 19, 2012, Thomas used his go phone to call Jackson to tell him to pick up the shipment of cocaine at a company called BJ Retreaders. Tr. 745:16-746:25; GX 504-B. Jackson rented a UHaul truck to move the crates and also bought moving boxes and duct tape to store the cocaine. Tr. 748:2-749:4; GX 400. After collecting the cocaine from BJ Retreaders, Jackson drove the crates to a garage where he unloaded the cocaine and distributed it into the four UHaul boxes that he had bought, along with rice and dryer sheets to mask the scent of the drugs, and then used plastic shrink-wrap and duct tape to seal the boxes. Tr. 753:2-754:15. After Jackson delivered the non-contraband contents of the crate, Thomas contacted Jackson on his go phone and directed Jackson to go to Parrilla's shop in Fort Lauderdale, Florida. Tr. 758:10-19; GX 504-B. Jackson and Parrilla then exchanged calls around 3:00 that afternoon. Tr. 758:22-759:2; GX 504-B, 1105-T. On one of those wiretapped conversations, Jackson informed Parrilla that, "I was dropping off the things for him. His parts, I, I'm secure already, and I told him I'm waiting to hear from you." GX 1105-T.
Jackson arrived at Parrilla's shop around 4:00 p.m. and confirmed that he had picked up the cocaine. Tr. 765:17-18; GX 503-B. Parrilla told Jackson to deliver 53 kilograms of cocaine to him and to take the remaining 27 kilograms on consignment at a price of $26,000 per kilogram. Tr. 765:18-24. At 5:13 p.m., Jackson asked Tang Yuk to come by his apartment. GX 1107-T, Tr. 771:2-8. Outside of his apartment, Jackson gave Tang Yuk two kilograms of cocaine on consignment at a price of $27,000 per kilogram. Tr. 711:9-772:2. Tang Yuk and Jackson then exchanged a number of calls in which they discussed selling the two kilograms of cocaine. GXs 1109-T, 1110-T, 1001-T; Tr. 778:13-780:1; 783:1-784:4; 788:2- 789:17, 791:2-15.
On the evening of September 20, 2012, Jackson delivered 53 kilograms of cocaine to Parrilla at his shop. Tr. 772:9-17; GX 503-E. The cocaine was packed in two of the UHaul boxes that Jackson had purchased, Tr. 776:6-24, and contained rice and dryer sheets, Tr. 777:2-778:2.
Jackson then rented a car at Miami International Airport and drove to New York City with his wife, Lizette Velazquez, and the remaining 25 kilograms of cocaine. Tr. 791:22-792:16; GX 503-F to 503-I. On September 22, 2012, Jackson traversed the Verrazano-Narrows Bridge and checked into a hotel in Queens. Tr. 499:3-17, 794:24-795:10; GX 503-I. DEA agents then arrested Jackson, Velazquez, and an associate named Fred Fulton, and also seized the 25 kilograms of cocaine. GX 2006. Jackson began cooperating with the Government shortly after his arrest.
On September 28, 2012, law enforcement searched Parrilla's shop pursuant to a search warrant and found UHaul boxes, rice, dryer sheets, and shrink-wrap. Tr. 1386:5-1387:11; 775:5-776:12. Law enforcement did not recover any narcotics from this search. During the search, Parrilla slowly drove by the shop and sped off shortly thereafter. Tr. 1393:16-1395:4. He returned about 45 minutes later and consented to a search that revealed that he was carrying $17,000 in cash. Tr. 1393:24-1399:25. The Government introduced phone records from the night that Parrilla's shop was searched showing a flurry of phone calls between Parrilla, Thomas, and Tang Yuk. GXs 504-A, 504-B.
On a call between Thomas and Jackson following the search, Thomas informed Jackson that the search of Parrilla's shop had caused him to "start f***ing panicking." GX 1005-T; GX 1002-T. Thomas also informed Jackson that Parrilla had sold the 53 kilograms of cocaine in a matter of days, GX 1005-T, Tr. 1308:4-8, and had paid Thomas for his role in the conspiracy, GX 1008-T, Tr. 856:13-16. On October 3, 2012, Tang Yuk delivered to Jackson's wife in Florida a backpack containing $25,000 in drug proceeds from the cocaine that he sold. GX 203.
Following Jackson's arrest, Thomas, Parrilla, and Tang Yuk expressed concern regarding the status of the 25 kilograms that were in his possession. For example, on October 12, 2012, Thomas sent two text messages to Jackson stating "call me now" and "you need to deal with my son now its about to get ugly give him what you have." GX 300-A at 6. During a separate call in February 2013, Parrilla and Tang Yuk discussed what might have happened to Jackson. GX 1307-T. The Government had removed Jackson's name from the Bureau of Prisons' online database to ensure that his arrest would not be made public. Tr. 215:5-22. Parrilla noted on the call that if Jackson had been arrested he "would have shown up" on the "BOP" website. GX 1307-T. This led Parrilla to speculate that Jackson "ate the f***ing food," GX 1307-T, which was code for cocaine, Tr. 649:23-24, 781:23-25, suggesting that Parrilla was concerned that Jackson had absconded with the drugs.
On June 5, 2013, Parrilla, Thomas, and Tang Yuk were arrested in connection with this case. Tr. 221.
LEGAL STANDARD
As extensively discussed in United States v. Temple, the relevant question under a Rule 29 motion is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 447 F.3d 130, 136 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Stated differently, "'[a] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.'" Id. (quoting United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999)). And "when a district court reserves decision on a defendant's Rule 29 motion at the close of the Government's evidence, 'it must decide the motion on the basis of the evidence at the time the ruling was reserved.'" United States v. Truman, 688 F.3d 129, 139 (2d Cir. 2012) (quoting Fed. R. Crim. P. 29(b)).
"In assessing the evidence, a court is constrained to bear in mind that Rule 29 'does not provide [it] with an opportunity to substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.'" Temple, 447 F.3d at 136 (quoting Guadagna, 183 F.3d at 129). Thus, the defendant challenging a guilty verdict bears a "heavy burden." Id. at 137 (quoting United States v. Si Lu Tian, 339 F.3d 143, 150 (2d Cir. 2003)) (internal quotation marks omitted). But "this burden is not an impossible one." United States v. Kapelioujnyj, 547 F.3d 149, 153 (2d Cir. 2008) (citing United Stales v. Jones, 393 F.3d 107, 111 (2d Cir. 2004)).
Under Rule 33, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The district court must strike a balance between weighing the evidence and credibility of witnesses and not 'wholly usurping' the role of the jury." United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000)). While "the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, . . . it nonetheless must exercise the Rule 33 authority 'sparingly' and in 'the most extraordinary circumstances.'" Id. at 134 (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Id. That is, "[t]here must be a real concern that an innocent person may have been convicted." Id. (internal quotation marks omitted).
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE AS TO INVOLVEMENT IN THE CONSPIRACY
Both Thomas and Tang Yuk contend that there was insufficient evidence for a finding of guilt as to each of them. As suggested above, "[a] defendant challenging the sufficiency of the evidence supporting a conviction faces a 'heavy burden.'" Glenn, 312 F.3d at 63 (quoting United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). A court will "overturn a conviction on that basis only if, after viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, [it] determine[s] that 'no rational trier of fact' could have concluded that the Government met its burden of proof." Id. (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). As relevant here, each of the Defendants' "conviction[s] for conspiracy must be upheld if there was evidence from which the jury could reasonably have inferred that the defendant knew of the conspiracy . . . and that he associated himself with the venture in some fashion, participated in it . . . or [sought] by his action to make it succeed." United States v. Richards, 302 F.3d 58, 69 (2d Cir. 2002) (quoting United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994)) (internal quotation marks omitted).
Parrilla did not move under Rules 29 or 33 on this basis.
A. Thomas
Thomas argued that there was insufficient evidence to support a finding that he committed an overt act in furtherance of the conspiracy or that he knowingly entered into the charged conspiracy. The Court need not address Thomas's first point other than to note that the Government was not required to prove that he committed an overt act in furtherance of the conspiracy. See, e.g., United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980) ("Unlike the general conspiracy statute, 18 U.S.C. § 371, schemes to import or distribute controlled substances are the subjects of specifically drawn statutes, and the rule in this and other circuits is that overt acts in furtherance of such specifically prohibited agreements need be neither pleaded nor proven." (collecting cases)). In any event, there was abundant evidence of an overt act in furtherance of the conspiracy by Thomas as discussed in detail below.
Turning to Thomas's second point, there was more than sufficient evidence from which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A superficial summary of some of the more incriminating evidence of Thomas's involvement in the charged conspiracy consists of the following: (1) Jackson's testimony that: (a) Thomas invited Jackson to make extra money through cocaine trafficking (Tr. 636:2-13); (b) Thomas summoned Jackson to St. Croix to plan the transportation of the drugs from St. Croix to Florida (Tr. 695:18-701:9); and (c) Thomas gave Jackson instructions as to where and how to retrieve the cocaine after it had been shipped to Florida (Tr. 704:9-705:9); (2) emails and documents corroborating Jackson's testimony that Thomas shipped a container to Florida (GXs 901-05); (3) phone records showing numerous calls between Thomas and Jackson and Thomas and Parrilla on prepaid cellphones (Tr. 650:13-654:2, 691:1-8), including on September 19, 2012 (the date Jackson testified he picked up the cocaine in Florida) and on September 20, 2012 (the date Jackson testified he delivered some of the cocaine to Parrilla and Tang Yuk) (GX 504-B, GT 19); (4) consensually recorded phone calls between Jackson and Thomas in which Thomas discussed: (a) the law enforcement search of Parrilla's garage, including the statement that Thomas "start[ed] f***ing panicking" after he learned that officers from the Broward County Sherriff's Department "kicked in the place," and that he felt "good to hear that everything is cool with you 'cause now I know what's up, I was bugging'" (GXs 1005-T, 1008-T); (b) Tang Yuk's involvement in the conspiracy (GX 1008-T); and (c) Parrilla's apparent search for Jackson, and Parrilla's statement to Thomas that "it's about to get ugly" in apparent reference to Parrilla's belief that Jackson had stolen cocaine (GX 1009-T); (5) an October 12, 2012 text message that Thomas sent to Jackson stating "call me now" and "you need to deal with my son now its about to get ugly give him what you have" (GX 300-A at ); (6) consensually recorded calls between Jackson and Tang Yuk in which Tang Yuk states, inter alia, that "me, Gary, and everybody had a big meeting" and that "I've already brought back the one for you and the paper . . . And when we had the meeting they told me, don't worry, go ahead and deal with the other one and just what number to work with" (GX 1002-T); (7) testimony and documents demonstrating that Thomas delivered a bag with over $20,000 in cash to BJ Retreaders in late September 2012 (Tr. 1540:7-1546:19; GXs 403-A, -B), even though Thomas's company typically paid BJ Retreaders with checks and credit cards (Tr. 1539:22-23); and (8) wire intercepts surrounding a meeting between Thomas and Parrilla in St. Croix on November 6, 2012 in which, inter alia, Thomas tells Parrilla "Travel alone!" and "don't tell anybody where you're at now" (GX 1204-T).
Viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, there was more than sufficient evidence from which the jury could reasonably have inferred that Thomas knew of the conspiracy, associated himself with the venture in some fashion, participated in it, or sought by his action to make it succeed. Richards, 302 F.3d at 69. Contrary to Thomas's assertion that Jackson's testimony was the "single piece of evidence used to tie Thomas to the alleged conspiracy and to weave together the wiretap statements to portray Thomas's otherwise innocent conduct as criminal," Thomas Br. at 7, the summary above demonstrates that there was significant corroborating evidence regarding his knowing involvement with the charged conspiracy that is separate and apart from Jackson's sworn testimony. Thomas also contends that, but for the Court's limitation of his cross-examination of Jackson, he would have been able to further undermine Jackson's credibility to such an extent that there would have been insufficient evidence of his guilt. As discussed below, the Court finds Thomas's and Parrilla's arguments regarding the limitation of Jackson's cross-examination unavailing. But even assuming that the Defendants had been permitted to further undermine Jackson's credibility in the manner that they wished, any rational trier of fact still could have concluded that the Government met its burden of proof in light of the quantity and quality of the evidence corroborating Jackson's testimony.
B. Tang Yuk
Tang Yuk argues that there was insufficient evidence to support a finding that (1) he knowingly entered into the single charged conspiracy as opposed to the multiple conspiracies he alleged existed, and (2) knew or could have reasonably foreseen that the conspiracy involved five or more kilograms of cocaine.
Contrary to Tang Yuk's suggestion, "[t]he government need not show that the defendant knew all of the details of the conspiracy, so long as he knew its general nature and extent." United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010) (quoting United States v. Huezo, 546 F.3d 174, 180 (2d Cir. 2008)) (internal quotation marks omitted); see also United States v. Praddy, 725 F.3d 147, 153 (2d Cir. 2013) ("The coconspirators need not have agreed on the details of the conspiracy, so long as they agreed on the essential nature of the plan." (quoting United States v. Berger, 224 F.3d 107, 114 (2d Cir. 2000))) (internal quotation marks omitted). "Nor need the goals of all the participants be congruent for a single conspiracy to exist, so long as the participants agree on the 'essential nature' of the enterprise and 'their goals are not at cross purposes.'" Id. (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1192 (2d Cir. 1989)). As discussed below, the evidence presented at trial was more than sufficient to support a finding that Tang Yuk knew of the conspiracy's general nature and extent and that it involved at least five kilograms or more of cocaine.
1. Sufficiency of the Evidence Regarding Tang Yuk's Knowledge of the Nature and Extent of the Single Charged Conspiracy
Tang Yuk's principal argument is that a verdict of acquittal or new trial is warranted because the evidence at trial proved multiple conspiracies and not the single conspiracy charged in the indictment and, furthermore, that he suffered prejudice as a result of the variance between the charged conspiracy and the one ultimately proved at trial. Tang Yuk also makes the related, albeit slightly different, point that there was insufficient evidence that he knowingly joined the single charged conspiracy.
As the Second Circuit explained extensively in United States v. Maldonado-Rivera,
[t]he essence of any conspiracy is, of course, agreement, and in order to prove a single conspiracy, the government must show that each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal. The coconspirators need not have agreed on the details of the conspiracy, so long as they agreed on the essential nature of the plan. The goals of all the participants need not be congruent for a single conspiracy to exist, so long as their goals are not at cross-purposes. Nor do lapses of time, changes in membership, or shifting emphases in the locale of operations necessarily convert a single conspiracy into multiple conspiracies. Indeed, it is not necessary that the conspirators know the identities of all the other conspirators in order for a single conspiracy to be found, especially where the activity of a single person was central to the involvement of all.922 F.2d 934, 963 (2d Cir. 1990) (citations and internal quotation marks omitted). The question of whether there were multiple conspiracies or a single conspiracy is one for the jury to decide. United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995). And "[w]here a defendant contends that multiple conspiracies were proven at trial, rather than the single conspiracy charged in the indictment, the defendant bears the burden of showing that 'no rational trier of fact could have concluded that a single conspiracy existed based on the evidence presented.'" United States v. Small, No. 03 CR 1368 (ARR), 2005 U.S. Dist. LEXIS 45474, at *23 (E.D.N.Y. May 27, 2005) (quoting United States v. Sureff, 15 F.3d 225, 230 (2d Cir. 1994)). Finally, if the evidence fails to support the existence of the single conspiracy alleged in an indictment, the court "must then determine whether the defendant was substantially prejudiced by the variance between the indictment and the proof." Johansen, 56 F.3d at 350 (collecting cases).
Tang Yuk concentrates on Jackson's testimony and other isolated evidence at trial that the other members of the conspiracy sought at different times to limit Tang Yuk's knowledge of parts of the conspiracy. For example, Tang Yuk emphasizes Jackson's statement that "I notified [Tang Yuk] that I was going to get some work, and like I said, I was going to give it to him. I didn't go into any specifics telling him who, or when, or where. I just told him that I was expecting to have work." Tr. 707:22-25; see also Tr. 1247:15-1248:21; GX 1005-T ("Thomas: I gave Kirk a little work. He ain't know anything, where it came from or nothing. But I know you ain't wanted to see him."); ("Thomas: Oh, no because you know, that's a . . . that's a . . . A and B thing. I didn't want to get into that. You know, I don't want him to go directly. I don't want him to know that."). Jackson further testified that he was instructed to keep this information from Tang Yuk. Tr. 640:6-641:2; 1040:18-1041:1; 1249:17-25; GX 1008-T. In sum, then, Tang Yuk does not dispute that the evidence clearly established his knowing participation in a conspiracy to distribute cocaine—that is, the general nature of the conspiracy—he just disputes whether he could have possibly known the extent of the conspiracy.
But consensual recordings of conversations reveal that Tang Yuk knew of and had interactions with the other members of the conspiracy, and these same recordings could have allowed the jury to properly infer his knowledge of and involvement in the conspiracy charged. For example, on September 19, 2012, Tang Yuk asked Jackson "What's D and G saying, Deryck and Gary?" to which (Deryck) Jackson replied, "I don't know what D and G are saying at all. I ain't . . . I know what D and D are saying." GX 1107-T. This could reflect Jackson trying to limit Tang Yuk's awareness of the other parts of the conspiracy, including the other members. But on October 1, 2012, Tang Yuk told Jackson that "me, Gary, and everybody had a big meeting. Big, big meeting," and furthermore, "they told me to go ahead and deal with the one and . . . what to deal with you with and that's that." GX 1002-T. Other statements on this same call suggest that Tang Yuk was aware that the conspiracy involved Parrilla and Thomas and that he was aware of and involved with other aspects of the conspiracy, notwithstanding Jackson's earlier attempts to limit his involvement:
Tang Yuk: They told me, "you're going to be O.K." They're going to deal with you accordingly, same way. . . .GX 1002-T.
***
Jackson: But G can't tell you that, you know. That's not G's call. It's got to be the other man.
Tang Yuk: It's not his call! I know, I know, I know, I'm telling you, I know, I know . . . I know exactly who it is.
***
Tang Yuk: It ain't that they don't deal with me. It's something that took place, why they're dealing with me now!
Jackson: Oh O.k.
Tang Yuk: Even G dealing with me straight up now, that's just the story.
Although Parrilla is not mentioned by name on the October 1, 2012 call, three days later on October 4, 2012, Tang Yuk exchanged 11 calls with Parrilla. GX 504-A at 5. The Government also supplied evidence that Tang Yuk and Parrilla met in St. Croix in February 2013, after which Tang Yuk told an unidentified male "We have a new captain now on the team" and "that's how come we're sailing man. We, we got to deal with uhm . . . We gotta change up the crew." GX 1304-T. Tang Yuk also exchanged calls with Parrilla in February 2013 in which he and Parrilla tried to figure out what happened to the cocaine that went missing after Jackson's arrest. GXs 1305-T, 1306-T, 1307-T, 1308-T. For example, on one call the following exchange took place:
Parrilla: That man ate that food.GX 1307-T. By this time, Tang Yuk had already sold the two kilograms of cocaine that Jackson had given him. The jury could have inferred that Tang Yuk's discussion with Parrilla, including his speculation about what happened to the missing "food" that was with Jackson, indicated that Tang Yuk knew that Jackson had in his possession additional kilograms of cocaine that went missing. This was only some of the evidence presented at trial revealing Tang Yuk's knowledge of the general nature and extent of the conspiracy, but it, and other evidence admitted at trial, was more than sufficient for any reasonable jury to conclude that even if Tang Yuk did not know all of the details of the conspiracy, he knew its general nature and extent.
Tang Yuk: I don't know, my son. . . .
***
Parrilla: If anything was with partner, that motherf**er would have shown up on the computer no matter what.
***
Tang Yuk: So now if he didn't get bitten with the food, what happened to everything? That's the question there.
In support of his argument, Tang Yuk cites Torres as an example of a case in which the Second Circuit held that there was insufficient evidence of the defendant's knowledge of the general nature and extent of the charged conspiracy. The Second Circuit reversed the defendant's conviction in that case because "[p]roof that the defendant engaged in suspicious behavior, without proof that he had knowledge that his conduct involved narcotics, is not enough to support his conviction for conspiracy to traffic in narcotics." Torres, 604 F.3d at 66 (citing United States v. Lorenzo, 534 F.3d 153, 160-62 (2d Cir. 2008)). After summarizing the evidence in that case, the Second Circuit highlighted some of the key evidence that was missing:
What we do not see in the record, however, is any evidence that Torres knew the Packages contained narcotics. There was, for example, no cooperating witness testifying at trial. There was no evidence of any drug records implicating him. The cocaine was well concealed and not visible. There was no proof of any narcotics-related conversation to which Torres was a party.Id. at 70. Here, in contrast, there was sufficient evidence from which a reasonable jury could conclude that Tang Yuk knew the conspiracy involved cocaine distribution and that he knew the identities of the other members of the conspiracy. There was also a cooperating witness who testified at trial regarding Tang Yuk's involvement in the conspiracy, and there were several narcotics-related conversations to which Tang Yuk was a party.
Tang Yuk also relies on Small and Johansen in support of his multiple conspiracies point, but neither of these cases bears any resemblance to the facts here. In Small, the district court granted a Rule 29 motion where the Government's evidence at trial showed four separate drug importation schemes that involved the importation of drugs from different countries using different airlines and different techniques depending on the scheme and with only two overlapping members across the various schemes, neither of which was the mastermind of all four schemes. 2005 U.S. Dist. LEXIS 45474, at *22-36. And in Johansen, the "government offered not a whit of evidence that Johansen was aware of the existence of Ferrante and Degel [two other alleged members of the conspiracy], that they shared a common goal, or that Johansen knew that Barwick was processing cards for persons other than himself." 56 F.3d at 351. As extensively discussed above, there was evidence that Tang Yuk knew that the conspiracy involved cocaine, that he knew the identities of and had interactions with the other members of the charged conspiracy, and that he discussed the general nature and extent of the conspiracy with the other members.
2. Sufficiency of the Evidence Regarding Tang Yuk's Knowledge of the Amount Involved in the Charged Conspiracy
With respect to the sufficiency of the evidence regarding quantity, Tang Yuk acknowledges that the evidence showed that he personally sold two kilograms of cocaine that Jackson gave him, but he disputes whether a rational factfinder could have concluded that he knew that the overall conspiracy involved five or more kilograms of cocaine. As discussed above, there was evidence establishing that Tang Yuk was aware that the conspiracy consisted of him, Jackson, Parrilla, and Thomas. Jackson testified that he had met with Thomas and Parrilla in the Virgin Islands to ship 80 kilograms of cocaine to Florida, which was then divided up between Parrilla and Jackson to sell in the mainland United States. Tang Yuk informed Jackson of his "big meeting" with Thomas and "everybody" and that "something that took place, [is] why they're dealing with me now." GX 1002-T. The jury could have reasonably inferred based on Tang Yuk's statement that "[e]ven G [is] dealing with me straight up now," and from his numerous phone calls to Parrilla, that he was aware of the quantity at issue in the conspiracy. Indeed, Jackson testified that he understood Tang Yuk's statements to mean that "he knew about the drug transaction that had taken place," i.e., the shipment of 80 kilograms of cocaine from the Virgin Islands to Florida. Tr. 1304:10-21. Furthermore, the Government presented evidence at trial showing that Jackson was arrested with 25 kilograms of cocaine in Queens. Tr. 170:19-25. The jury could have inferred that Tang Yuk knew that the conspiracy involved five kilograms or more of cocaine based, in part, on his conversation with Parrilla in which they both speculated about what had happened to Jackson and all the "food" that was with him. GX 1307-T.
Moreover, the jury was provided a special interrogatory on drug quantity that instructed them that, if they found Tang Yuk guilty of conspiracy to violate the narcotics laws of the United States, they could find Tang Yuk guilty of a lesser quantity of 500 grams or more of cocaine rather than the 5 kilograms or more charged. Thus, the jury was fully aware that a lesser quantity as to each Defendant was an available option. Because there was sufficient evidence for any rational factfinder to find Tang Yuk guilty of the conspiracy as charged, there is no basis to disturb the jury's verdict as to quantity.
Tang Yuk points to Richards as an example of a case in which a district court found that the evidence at trial was insufficient to sustain the quantity charged. But the facts of that case provide no support for Tang Yuk's arguments here. To begin with, the variance between the amount charged and the amount supported by the evidence in Richards—100 kilograms of marijuana versus 1,000 kilograms—was of an order of magnitude far greater than the difference between 500 grams and 5 kilograms at issue here.
The court essentially concluded that the evidence did not sufficiently provide that Anderson knew about the large quantities of marijuana being transported on the trucks. However, the court did find sufficient support for a quantity finding of 100 kilograms or more, based on evidence regarding the amount of marijuana Anderson personally received and the amounts he should have known others were receiving, given his overall knowledge of Richards's marijuana operation.302 F.3d at 69-70. The amount of marijuana that Anderson personally received was 35 to 40 pounds, or 14 to 18 kilograms, of marijuana. Id. at 64. Thus, like Anderson, Tang Yuk personally received only a fraction of the overall amount involved in the conspiracy. But based on the two kilograms of cocaine that Tang Yuk personally received, combined with his discussions with other members of the conspiracy, there was more than sufficient evidence for any rational factfinder to find that he knew the conspiracy involved five kilograms or more of cocaine.
II. SUFFICIENCY OF THE EVIDENCE AS TO VENUE AND THE VENUE CHARGE
Although none of the Defendants in this case objected to the original joint request to charge concerning venue, see Dkt. No. 126, the issue of venue was raised by the time of the charging conference in this case. Indeed, following the close of the Government's case, Thomas and Tang Yuk moved under Rule 29 for judgments of acquittal based in part on their contention that the Government had not established venue by a preponderance of the evidence. Tr. 1665:17-1667:10. And although the venue charge was substantially revised at the request of Thomas and Tang Yuk, they continue to press their objections to the charge as given. Tang Yuk Br. at 18 n.6; Thomas Br. at 2. They also contend that there was insufficient evidence as to venue to support their convictions.
The Second Circuit has recently questioned whether the jury should be instructed on venue at all. United States v. Davis, 689 F.3d 179, 185 n.2 (2d Cir. 2012) (noting without deciding that "because venue is not an element of a crime, a question might be raised as to whether venue disputes must, in fact, be submitted to a jury" (citing United States v. Rommy, 506 F.3d 108, 119 n.5 (2d Cir. 2007); United States v. Hart-Williams, 967 F. Supp. 73, 76-78 (E.D.N.Y. 1997)); but see Gordon Mehler, et al., Federal Criminal Practice: A Second Circuit Handbook § 48-3 (13th ed. 2013) ("The Second Circuit has held that, where the issue is 'squarely interposed' by the defense, the propriety of venue should be submitted to the jury." (collecting cases)).
Parrilla never objected, at trial or following trial, to the venue charge or the sufficiency of evidence as to venue.
The Court concludes that the charge as given was balanced and accurate in light of prevailing Second Circuit case law, and the Court further concludes that there was sufficient evidence establishing venue as to both Thomas and Tang Yuk.
A. The Venue Charge
As noted above, the Court made substantial revisions to the initial joint charge and ultimately instructed the jury as follows, with emphasis added here to highlight the language in contention:
In addition to all of the elements I have described, you must consider the issue of venue; namely, whether any act in furtherance of the crime charged in Count One occurred within the Southern District of New York. The Southern District of
New York includes Manhattan and the Bronx, Rockland, Putnam, Dutchess, Orange, and Sullivan Counties and bridges over bodies of water within the boundaries of Manhattan, the Bronx, and Brooklyn, such as the Verrazano-Narrows Bridge.Tr. 2044:01-2045:10. As a preliminary matter, it is important to note that the language regarding foreseeability (in italics above) was included at the request of Thomas and Tang Yuk and over the Government's objection. But having included foreseeability as part of the charge, it was also appropriate to accept the Government's request to add the language in the third paragraph (underlined above) with respect to the fact that a single call or text message could be sufficient to satisfy venue, so long as the call or text message was used to further the objectives of the charged conspiracy.
In this regard, the government need not prove that the entirety of the charged crime was committed in the Southern District of New York or that any of the defendants were present here. It is sufficient to satisfy the venue requirement if any act in furtherance of the crime charged occurred within the Southern District of New York, and it was reasonably foreseeable to the defendant that you are considering that the act would take place in the Southern District of New York.
I also instruct you that a call or text message made between a government cooperator in the Southern District of New York and a defendant who is not in the Southern District of New York can establish venue with respect to that defendant, provided that the defendant used the call or text message to further the objectives of the charged conspiracy, and the defendant knew or could have known that the call or text came from or went to the Southern District of New York.
I should note on this issue, and this alone, the government need not prove venue beyond a reasonable doubt, but only by a preponderance of the evidence. Thus, the government has satisfied its venue obligations if you conclude that it is more likely than not that a reasonably foreseeable act in furtherance of the crime was committed in this district. If you find that the government has failed to prove by a preponderance of the evidence that at least one act in furtherance of the charged conspiracy occurred within this district, then you must acquit the defendants.
Beginning with the foreseeability language that the Government objected to at trial, the Second Circuit has repeatedly indicated that acts in furtherance of the conspiracy occurring in a given district must have been known or reasonably foreseeable to other members of the conspiracy to establish venue in a given district with respect to a particular defendant. See, e.g., United States v. Shepard, 500 F. App'x 20, 22-23 (2d Cir. 2012) (noting that venue for a conspiracy charge lies in any district in which an overt act in furtherance of the conspiracy was committed, but then discussing whether these acts were reasonably foreseeable to the defendant); Davis, 689 F.3d at 186 (stating that "there must be some sense of [venue] having been freely chosen by the defendant" which "asks whether the acts' occurrence in the district of venue [would] have been reasonably foreseeable to the defendant" (citations and internal quotation marks omitted)); United States v. Shyne, 388 F. App'x 65, 71 (2d Cir. 2010) (observing that venue was proper where defendants "were aware, or at least reasonably could have foreseen, that the conspiracy involved a New York component" (citing United States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003)); United States v. Kapirulja, 314 F. App'x 337, 339 (2d Cir. 2008) (noting that venue was proper where the government established overt acts in furtherance of the conspiracy occurred in the district of venue and such acts were "reasonably foreseeable" to the defendant); Rommy, 506 F.3d at 123-25 (stating that the law "asks that the overt act's occurrence in the district of venue would have been reasonably foreseeable to a conspirator" (collecting cases)). There was thus ample authority to support Thomas and Tang Yuk's request to include foreseeability as a component of the venue charge in this conspiracy case.
The Second Circuit appears to be alone among its sister circuits in applying a foreseeability requirement to venue. See United States v. Castaneda, 315 F. App'x 564, 569 (6th Cir. 2009) (collecting cases); see also United States v. Gonzalez, 683 F.3d 1221, 1226 (9th Cir. 2012) (noting, in a conspiracy case, that "it does not matter whether [defendant] knew or should have known that the CI was located in the Northern District of California during these calls. Simply put, section 3237(a) does not require foreseeability to establish venue for a continuous offense." (citations omitted)).
At the same time, the Second Circuit has also held that a single call may be sufficient to establish venue. In Rommy, for example, the Second Circuit "conclude[d] that the district court correctly charged the jury that a call placed by a government actor in Manhattan to Rommy in Amsterdam could establish venue in the Southern District of New York provided Rommy used the call to further the objectives of the charged conspiracy." Rommy, 506 F.3d at 125. Thus, having accepted the Defendants' suggestion to include the foreseeability language, it was appropriate, in light of Rommy, to include the Government's request that the jury be further charged that "a call or text message made between a government cooperator in the Southern District of New York and a defendant who is not in the Southern District of New York can establish venue with respect to that defendant, provided that the defendant used the call or text message to further the objectives of the charged conspiracy, and the defendant knew or could have known that the call or text came from or went to the Southern District of New York."
Tang Yuk contends that Rommy is distinguishable from the facts here based on the nature of the call in that case and Rommy's "active projection" into the district of venue. Tang Yuk is correct that there was evidence in Rommy that "it was Rommy's specific conspiratorial purpose to smuggle ecstasy pills into New York" and that Rommy took affirmative steps to distribute narcotics in the district of venue after learning that the intended recipients of the drugs were in New York, Tang Yuk Br. at 20 (citing Rommy, 506 F.3d at 123-25). But there is no indication in the Second Circuit's holding that these facts were necessary, as opposed to sufficient, to establish venue. Accord United States v. Abdullah, 840 F. Supp. 2d 584, 598-99 (E.D.N.Y. 2012) ("[I]t is not legally significant whether the defendant is the conspirator in the district where venue is being sought, or whether the defendant initiated or received the call; rather, phone calls into or out of a district can establish venue in that district so long as they further the ends of the conspiracy"). Thus, events occurring after the call appear to have no bearing on whether the call alone is sufficient to establish venue because the Second Circuit held "that a call placed by a government actor in [the Southern District of New York] to [the defendant outside the district] could establish venue in the Southern District of New York provided [the defendant] used the call to further the objectives of the charged conspiracy." Rommy, 506 F.3d at 125.
In light of this legal authority, the charge as given appropriately balanced Thomas and Tang Yuk's request to include foreseeability as a component of the jury charge while also incorporating the Government's request to clarify for the jury that even a phone call or a text message could be sufficient to satisfy venue so long as the call or text message was in furtherance of the conspiracy and the defendant knew or could have known that the call or text came from or went to the Southern District of New York.
B. Sufficiency of the Evidence Regarding Venue
Turning to the sufficiency of the evidence regarding venue, the Government introduced evidence at trial that prior to his arrest, Jackson, the cooperating witness, drove across the Verrazano-Narrows Bridge on the course of his drive from Florida to the hotel in Queens where he was arrested by law enforcement. Tr. 499:3-17, 794:24-795-10; GX 503-I. As a general matter, "venue is proper in any district in which an overt act in furtherance of the conspiracy was committed." United States v. Tzolov, 642 F.3d 314, 319-320 (2d Cir. 2011) (quoting United States v. Royer, 549 F.3d 886, 896 (2d Cir. 2008)). And "[a]n overt act is any act performed by any conspirator for the purpose of accomplishing the objectives of the conspiracy. The act need not be unlawful; it can be any act, innocent or illegal, as long as it is done in furtherance of the object or purpose of the conspiracy." Id. at 320 (citing Rommy, 506 F.3d at 119). Thus, there is no doubt that Jackson's drive across the Verrazano-Narrows Bridge was an overt act in furtherance of the conspiracy that would be sufficient to establish venue as to him. See Shyne, 388 F. App'x at 70-71 (noting that the Verrazano-Narrows Bridge is part of the Southern District of New York); United States v. Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987) (noting that "the course of [a] flight [that] carried [an] airplane over the Narrows . . . was sufficient to make venue in the Southern District proper"). Indeed, the Second Circuit has articulated the principle that "proof of such activity in a district 'by any of the coconspirators' will support venue there as to all of them." Shepard, 500 F. App'x at 22 (quoting Ramirez-Amaya, 812 F.2d at 816).
Although this principle would appear to conclusively answer the question of venue in this case, in light of the legal authority regarding foreseeability noted above, the Court separately addresses whether there was sufficient evidence that an overt act in furtherance of the conspiracy occurring in the Southern District of New York was foreseeable to Thomas and Tang Yuk. Courts "review the sufficiency of the evidence as to venue in the light most favorable to the government, crediting 'every inference that could have been drawn in its favor.'" Tzolov, 642 F.3d at 318 (quoting United States v. Rosa, 17 F.3d 1531, 1542 (2d Cir. 1994)). For the reasons provided below, the Court concludes that, viewing the evidence in the light most favorable to the Government and crediting every inference that could be drawn in its favor, there was sufficient evidence for a rational trier of fact to conclude that it was more likely than not that Thomas and Tang Yuk could have reasonably foreseen an act in furtherance of the conspiracy occurring in the Southern District of New York.
1. Thomas
The Government introduced a consensually recorded call between Jackson and Thomas in which Jackson informs Thomas: "I'm up in New York. That's why I'm taking this kind of longer way up." GX 1007-T. Knowing that Jackson was in New York, Thomas nonetheless sent him two text messages, one of which told Jackson to give "my son" what you have or "it's about to get ugly." GX 300-A. Jackson and Thomas then had another call on October 16, 2012 in which Jackson states, "Listen I finished, I'm on my way back down. You understand?" to which Thomas replies, "Alright," and the two then proceed to discuss the text message that Thomas had sent. GX 1009-T. A reasonable jury could have inferred that Thomas's calls with Jackson while Jackson was in the Southern District of New York furthered the conspiracy in that they constituted efforts on the part of Thomas and Parrilla to locate the missing drugs. Rommy, 506 F.3d at 124 ("Thus, if the district court had instructed the jury on Rommy's ability to foresee the location of the government agent's calls, we have no doubt that the jury would still have found venue.").
Moreover, and as further indication that Jackson's acts in New York would have been foreseeable to Thomas, at no point did Thomas express surprise that Jackson was in New York. In addition, the Government introduced evidence at trial showing that at the time of Jackson's arrest, the market price of cocaine was significantly higher in New York than it was in Southern Florida, Tr. 212:3-4, from which the jury could have inferred that a member of the conspiracy would attempt to sell the drugs in New York to make more money. The Government also presented evidence that Jackson had been to New York in 2011 on his way to visit his daughter who was in school in New Jersey, Tr. 945:21-25, and that he had previously distributed cocaine in New York, Tr. 948:1-2. The jury could have reasonably drawn the inference that other members of the conspiracy were aware of the significantly higher price for cocaine in New York and Jackson's ties to the area. This inference is only bolstered by the fact that on the phone calls Thomas never expressed surprise that Jackson was in New York and continued to communicate with Jackson in ways that furthered the conspiracy regarding the drugs in Jackson's possession after he was informed that Jackson was in New York. Based on this, the jury could have reasonably concluded that it was foreseeable to the other members of the conspiracy that Jackson would do what he in fact did—drive the drugs up the East Coast to be sold in New York. Cf. Shepard, 500 F. App'x at 23 ("The proximity of the conspiracy's Brooklyn-Queens base of operation to parts of the Southern District of New York, as well as the need to traverse that district in procuring marijuana from New Jersey, permitted a reasonable jury to make a preponderance finding that the aforementioned acts' occurrence in the Southern District was reasonably foreseeable to Shepard.").
2. Tang Yuk
Tang Yuk emphasizes Jackson's testimony that he did not share any information about his plans to go to New York with Tang Yuk. Tr. 1249:09-13; 1295:02-13. But on a September 27, 2012 consensual call, Jackson responded to Tang Yuk's question, "Where are you?" with "Out of town, brother. What you mean where am I?" GX 1001. Tang Yuk expressed no surprise that Jackson was "out of town." And on October 4, 2012, Jackson called Tang Yuk to inform him that "girlie told me you dropped that off," to which Tang Yuk replies, "Yeah. Of course! Why? You know better than that." GX 1006-T. Jackson then states "Alright, Well I am trying to wrap up this thing. I am up here in New York. I am trying to wrap up and come back down." GX 1006-T. To which Tang Yuk replies "Do your thing, man. It ain't nothing." GX 1006-T. Thus, on a call discussing Tang Yuk's drop off of drug proceeds to Jackson's wife, he is informed that Jackson is in New York "trying to wrap up this thing." A reasonable jury could have inferred that these calls furthered the conspiracy in that they constituted efforts on the part of Tang Yuk to determine where to drop off the proceeds of his drug sales. Rommy, 506 F.3d at 124-25.
Moreover, and as further indication that Jackson's acts in New York would have been foreseeable to Tang Yuk, a reasonable jury could have inferred that Tang Yuk knew that cocaine was more valuable in New York and that Jackson had ties to New York, hence why Tang Yuk was not surprised that Jackson was up in New York and encouraged him to "do [his] thing." Thus, based on the phone call with Jackson and other evidence presented at trial, a reasonable jury could have found it more likely than not that Tang Yuk reasonably foresaw that Jackson might commit an act in furtherance of the conspiracy in the Southern District of New York. Cf. Shepard, 500 F. App'x at 23.
C. Substantial Contacts
Finally, at trial and in their post-trial motions, both Thomas and Tang Yuk suggested that in addition to foreseeability, the Court must also conduct a "substantial contacts" analysis regarding venue. The Court first notes that there is some confusion as to whether a "substantial contacts" test is required when there is a showing that an act in furtherance of the conspiracy actually occurred in the district of venue. Compare Kapirulja, 314 F. App'x at 339 (noting that the Second Circuit has been clear that a showing of "substantial contacts" is only required "where no overt acts occurred in the district." (citing United States v. Saavedra, 223 F.3d 85, 89 (2d Cir. 2000)), and Tzolov, 642 F.3d at 321 (finding substantial contacts satisfied where defendant "committed overt acts in furtherance of the conspiracies" in the district of venue without further analysis); with Davis, 689 F.3d at 186 ("To comport with constitutional safeguards, we have construed this language to require more than 'some activity in the situs district'; instead, there must be 'substantial contacts' . . . ." (quoting United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985); Royer, 549 F.3d at 895). For the avoidance of doubt, the Court concludes that even under a substantial contacts test, venue was proper in the Southern District of New York.
Davis stated that an analysis of "substantial contacts" is made with reference to "the site of the defendant's acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding." 689 F.3d at 186. Perhaps the single greatest factor to consider here is the nature of the crime involved: a conspiracy to import narcotics into the United States for distribution. The conspiracy began in the Virgin Islands where Jackson helped Thomas load 80 kilograms of cocaine into a crate that was shipped to Florida. Parrilla then took 53 kilograms of cocaine and sold them in Florida in a number of days. Jackson took the remaining 27 kilograms and gave 2 kilograms of it to Tang Yuk who also sold them in Florida. Jackson took the 25 kilograms that he retained and drove to New York where he intended to distribute them. At the time of his arrest in Queens, Jackson had already given Fulton five kilograms of cocaine. Tr. 203:2-204:10. Applying the substantial contacts test as stated in Davis, the site of the Defendants' primary acts stretched across at least three separate states or territories. The very nature of the crime contemplated multiple actors operating in different locales to distribute and sell cocaine at the highest price possible. The locus, or more accurately the loci, of the effect of the criminal conduct was in Florida and New York, the two locations where the evidence showed drugs were distributed or were on the verge of distribution. Finally, the investigation spanned New York, Florida, and the Virgin Islands, with each only representing a piece of the puzzle that the Government had to put together. For this reason, the suitability of each district for accurate factfinding was dispersed. Thus, for many of the same reasons that the Court denied Thomas's motion to transfer, see Dkt. No. 109 at 21-24, there were substantial contacts with the Southern District of New York such that venue in this District was proper.
III. CROSS-EXAMINATION
Both Thomas and Parrilla contend that the Court's limitation of certain aspects of their cross-examination of the Government's key witness, Jackson, deprived them of their due process and confrontation rights under the Constitution. Jackson's direct testimony spanned the third and fourth day of the trial, Tr. 627:7; 874:8. His cross-examination spanned the fourth, fifth, and sixth days of trial. Tr. 874:10; 1299:23. The Government's redirect, Tr. 1300:17, and the Defendants' re-cross, Tr. 1337:7, took place on the sixth day of trial. Over the course of this extensive cross-examination, Defendants were permitted wide latitude to explore, among other things, Jackson's criminal past and criminal associations, his potential motivations to lie, and his cooperation with the Government. That the Court limited repetitive, confusing, or impermissible questions did not deprive the Defendants of their rights to due process and confrontation.
It has been long recognized that "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (emphasis in original) (quoting Davis v. Alaska, 415 U.S. 308, 315 (1974)). Indeed, "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis, 415 U.S. at 316. But the Supreme Court has also long recognized that the Confrontation Clause does not
prevent[] a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant.Van Arsdall, 475 U.S. at 679. Thus, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. (emphasis in original) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)) (internal quotation marks omitted).
First, Thomas and Parrilla argue that the Court impermissibly limited their inquiry into Jackson's possible exposure as a "career offender" or "career criminal," and, more specifically, whether Jackson "bargained away" his possible career offender status under the U.S. Sentencing Guidelines in his plea agreement with the Government. By way of background, Parrilla's counsel was the first to inquire about whether Jackson faced a possible "career offender" enhancement for his involvement in the conspiracy on trial. Tr. 885:24-888:24. The Court overruled the Government's initial objections to this line of questioning. Then, at a sidebar, the Government objected to the whole line of questioning and asked that it be struck on the grounds that defense counsel "is mischaracterizing the law and using that mischaracterization to suggest that the witness received a benefit that he did not, in fact, receive." Tr. 889:2-7. The Court then permitted the parties to brief the issue that evening so as not to waste the jury's time. Tr. 890:14-15; see also Dkt. No. 202.
The next morning, and with the benefit of the Government's letter, the Court extensively discussed the issue with the parties. Tr. 896:4-914:19. The Court concluded that there was no basis for defense counsel to suggest Jackson had bargained away a "career criminal" status under the U.S. Sentencing Guidelines based on his cooperation with the Government. Tr. 912:4-7. The Court informed defense counsel that
[t]hings that have some reasonable basis in reality are fair game. I'm permitting, obviously, cross-examination on his record. I'm not permitting a question which is wrong. He has not bargained with respect to his career offender status, whether or not he qualifies under 4B1. There's just nothing to support that.Tr. 906:3-8. Therefore, the Court sustained the Government's objection to the line of questioning, ordered portions of Parrilla's cross-examination of Jackson struck, and instructed the jury to disregard counsel's references to the legal terms "career offender" and "career criminal." Tr. 906:20-907:3. In sum, the Court permitted extensive discussion of the penalties Jackson faced based on his prior convictions, but guarded against the confusing use of improper legal terms and repetitive questioning. Tr. 914:1-19; cf. United States v. Salameh, 152 F.3d 88, 132 (2d Cir. 1998) ("Furthermore, the court's decision did not impinge on Abouhalima's confrontation rights because Abouhalima conducted an extensive cross-examination and attacked Moharam's credibility from many angles."). There is no basis to enter a judgment of acquittal or grant a new trial based on the narrow limitations on cross-examination of Jackson's possible "career offender" exposure.
Second, Thomas and Parrilla also argue that the Court impermissibly limited inquiry that was intended to establish the existence of an uncharged conspiracy and that the Court prevented them from pursuing certain lines of questioning, such as probing into Jackson's wife's knowledge of Jackson's transport of drugs to New York and the possibility that Jackson actually conspired with a known drug trafficker, Duane Stapleton, rather than the Defendants. To the contrary, the Court permitted inquiry on each of these and similar topics and only curtailed questioning that was repetitive, that posed the danger of confusing the issues for the jury, or that was otherwise impermissible under the Federal Rules of Evidence. See, e.g., Tr. 978:7-980:13, 1144:17-1145:6, 1146:14-1149:3, 1151:20-1155-19, 1259:4-1264:3, 1280:4-1281:22, 1284:6-1291:6 (permitting inquiry into Duane Stapleton); 980:23-986:9, 990:4-998:23, 1096:15-1098:5, 1143:3-14, 1155:20-1156:7, 1275:13-1279:1 (permitting inquiry into Jackson's wife's knowledge of the conspiracy and possible involvement); 992:12-995:23 (permitting inquiry into why Jackson asked his wife to check who was flying with Dana Grant, the girlfriend of Stapleton, on a particular occasion); 998:24-999:7 (permitting inquiry into someone named Carl Husband); 1049:11-1050:14 (permitting inquiry into why Jackson drove all the way to New York to sell his portion of the cocaine when Parrilla was able to sell his 53 kilograms in Florida in two days); 1073:9-1082:21, 1098:23-1099:18 (permitting inquiry into Jackson's relationship with another alleged drug dealer, Halver Hansen); 1157:11-1159:1 (permitting inquiry into Fulton's role in the conspiracy); 1217:9-1218:6 (permitting inquiry into other conspiracies Jackson may have participated in); 1223:2-1235:25 (permitting inquiry into whether Jackson actually flew the drugs in to New York rather than by car and about photographs of money and cocaine found on Jackson's phone).
With respect to the Defendants' numerous references to Fulton, Velazquez, and Stapleton, the Court stressed "that it would be irrelevant and improper for the jury to consider others not on trial or to speculate why others are not on trial," Tr. 1180:4-6, and noted that the parties' joint requests to charge included an instruction to that effect to which no one objected. "At the same time," the Court noted, "there is a line to be drawn here between suggesting that the government has not charged others and that others are not on trial and properly pointing to Mr. Jackson's relationships with other people that might suggest a bias or motive to lie. On this latter point, I have allowed substantial exploration of this point, and I will continue to allow exploration so long as it is not duplicative, cumulative, or otherwise impermissible." Tr. 1180:17-24. Contrary to Defendants' suggestion, the Court was very clear about the line to be drawn between permissible and impermissible questioning about individuals not on trial, and the Court only limited their cross-examination when the Defendants' questioning overstepped that boundary.
IV. IMPROPER CLOSING REMARKS
Parrilla argues that the Government's closing remarks contained improper comments that disparaged the defense by describing it as a "sideshow" and by suggesting that it failed to meet a nonexistent burden of proof by calling only one witness. Parrilla also contends that the Government claimed, without record evidence, that he was inclined to use deadly violence. Parrilla acknowledges that the Court sustained timely objections to the relevant improper comments, but he claims that the Court erred by failing to deliver contemporaneous curative instructions.
The Second Circuit recently reiterated that "a defendant who seeks to overturn his conviction based on alleged prosecutorial misconduct in summation bears a 'heavy burden.'" United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011) (quoting United States v. Feliciano, 223 F.3d 102, 123 (2d Cir. 2000)).
He must show more than that a particular summation comment was improper. He must show that the comment, when viewed against the entire argument to the jury, and in the context of the entire trial, was so severe and significant as to have substantially prejudiced him, depriving him of a fair trial.Id. (citations and internal quotation marks omitted). "Remarks of the prosecutor in summation do not amount to a denial of due process unless they constitute 'egregious misconduct.'" United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002) (quoting United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999)). And to determine "whether prosecutorial misconduct caused 'substantial prejudice,' [the Second Circuit] has adopted a three-part test: the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct." Id.
First, the prosecution's description of some of the defense's arguments as a "distraction" and a "sideshow" does not amount to "egregious misconduct." Rejecting a similar argument in United States v. Williams, the Second Circuit concluded that "[j]ust as we 'see nothing inherently wrong with characterizing a defense tactic as desperate,' [Elias, 285 F.3d at 190 n.3], we do not think it improper or excessive, without more, for a prosecutor to criticize defense arguments as merely being attempts to 'grasp at straws' or 'focus on distractions.'" 690 F.3d 70, 75 (2d Cir. 2012); see also United States v. Millar, 79 F.3d 338, 343-44 (2d Cir. 1996) (rejecting argument that prosecutor's description of the defendant's defense as "hog wash" or a "smoke screen" and that the defense counsel was trying to "confuse" the jury or "lead them astray" were sufficiently severe to warrant reversal); United States v. Perry, 643 F.2d 38, 51 (2d Cir. 1981) (finding "the Government's statements describing the defense's attack as a 'desperate,' 'struggling' tactic were permissible rebuttal" (citing United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir. 1980)). The limited references to the defense's arguments as distractions and sideshows "is a far cry, indeed, from the sort of sustained attack on the integrity of defense counsel" that the Second Circuit has held to be reversible error. Williams, 690 F.3d at 75 (citing United States v. Friedman, 909 F.2d 705, 708 (2d Cir. 1990)). There is no basis for granting a new trial based on these remarks.
Second, Parrilla points to certain references in the Government's summation of Parrilla's alleged proclivity for violence. For example, in the Government's summation, the prosecutor stated that "you heard what they sounded like in May of 2013 when Parrilla threatened violence, even death, to anyone who interfered with his cocaine trafficking operation." Tr. 1823:19-22. Later, the prosecutor stated that
Defense counsel did not object to this statement.
Thomas was so concerned that he called a woman he knew just moments before that meeting with Parrilla on November 7. You heard Thomas tell the woman about the meeting at this location. Why would he do that? So someone would know where he was just in case Parrilla got violent.Tr. 1854:13-17. Defense counsel objected to this statement and the Court sustained the objection. The prosecutor also stated "What does Parrilla do? He threatens violence, even death against anyone who messes with his drug business. He says, 'Motherf***er thinks he can duck me. I would drive a car over his mother's c**t if I spot him on the side of the road and he plays with me.'" Tr. 1857T6-20. After the summation, defense counsel asked the Court to give the jury some instructions regarding the prosecution's statements because the comments of violence "are not fair comments, based on the evidence." 1876:19-1877:9. But the Court concluded:
I sustained the objection at the moment that I had thought that the specific piece of evidence Mr. Imperatore was referring to, that he was making an inference that was not permissible. There were no other objections to the language. That evidence is in, and so the evidence itself is not - I didn't conclude, it wasn't objected to, as being unduly prejudicial. You were about to argue other inferences to be made, and that is for you in closing argument.Tr. 1878:2-10. As the Court ruled at the time, there was evidence in the record to support the first and third comments, including the quoted statements in text messages and phone calls. See United States v. Zackson, 12 F.3d 1178, 1183 (2d Cir. 1993) ("The government has broad latitude in the inferences it may reasonably suggest to the jury during summation."). With respect to the second statement, the Court sustained the Defendant's objection that it was not permissible to infer that the reason Thomas told a third party that he was meeting with Parrilla at a specific location was "so someone would know where he was just in case Parrilla got violent." But this isolated impermissible inference of violence was not so severe as to rise to the level of "egregious misconduct." Moreover, the Court immediately sustained the objection, and there is no reason to doubt the certainty of the conviction absent the impermissible inference that the Government was attempting to draw.
Defense counsel did not object to this statement.
Tr. 1860:2-5 (Court sustained an objection to the statement that "He's clearly saying here that an associate who was dealing drugs with people ended up killing him"). --------
Finally, Parrilla also argues that the Government impermissibly attempted to suggest that the Defendants bore a burden of proof at trial and, furthermore, that they failed to meet this nonexistent burden when the Government noted the defense only called one witness. The Court agreed that the Government's comment "was out of bounds" and stated that "I am going to instruct the jury, as I have, of the right of the defendant and the burdens of the government. I do think the instruction is clear on that point, that the jury will get afterwards." Tr. 1878:12-22. While noting that the Defendants called only one witness is improper, in the context of the rest of summation, the suggestion was not so severe as to rise to the level of egregious misconduct. For example, at the beginning and end of its rebuttal summation, the Government stressed to the jury that it bore the burden of proof at trial, not the Defendants. Tr. 1956:13-14; 1980:16-18. Moreover, as noted during trial, the Court instructed the jury at the beginning of trial and again at the end of trial regarding the Government's burden and the Defendants' lack of one. Finally, there is no reason to doubt the certainty of conviction absent the improper reference to the Defendants' calling only one witness.
Therefore, the Court concludes that the prosecutors' remarks did not amount to a denial of due process because they did not rise to the level of egregious misconduct, nor was the Defendant substantially prejudiced by the remarks.
V. CONCLUSION
For the reasons stated herein, the Court can find no reason to disturb the jury's verdict in this case. Therefore, the Defendants' motions for a judgment of acquittal under Rules 29(a) and (c) or for a new trial under Rule 33 are DENIED. This resolves Dkt. No. 248. Dkt. No. 241 was resolved by Dkt. No. 245. Dkt. No. 215 was resolved at trial.
SO ORDERED. Dated: December 23, 2014
New York, New York
/s/_________
ALISON J. NATHAN
United States District Judge