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United States v. Martinez

United States Court of Appeals, Second Circuit

July 7, 2017

UNITED STATES OF AMERICA, Appellee,
v.
RANDALL MARTINEZ, a/k/a Randall, a/k/a Jose Rodriguez, a/k/a Jose Rodriguez-Saez, a/k/a Rando Martinez, a/k/a Randall Martinez-Espinal, HENRY FIORENTINO, JOSE TEJADA, and MARCOS RODRIGUEZ, a/k/a Markito, Defendants-Appellants.[*]

          Argued: October 19, 2016

         Appeals from judgments of the United States District Court for the Eastern District of New York, entered by Sandra L. Townes, Judge, against defendants Randall Martinez and Marcos Rodriguez, and by John Gleeson, Judge, against defendants Henry Fiorentino and Jose Tejada, following the defendants' convictions of conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), conspiracy to distribute narcotics, 21 U.S.C. § 846, and other offenses. On appeal, Martinez, who entered pleas of guilty in two prosecutions, challenges, in one case, the adequacy of his plea hearing and the denial of his request for new counsel. The other defendants, convicted following their respective jury trials, principally raise statute-of-limitations and/or evidentiary challenges to their trial proceedings and challenge their sentences. We find no basis for reversals.

         The judgments are affirmed.

          ALEXANDER SOLOMON, SYLVIA SHWEDER, Assistant United States Attorneys, Brooklyn, New York (Robert L. Capers, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

          MARYBETH COVERT, Assistant Federal Public Defender, Buffalo, New York (Marianne Mariano, Federal Public Defender, Jayme L. Feldman, Assistant Federal Public Defender, Buffalo, New York, on the brief), for Defendant-Appellant Martinez.

          JAMES M. BRANDEN, New York, New York, for Defendant-Appellant Fiorentino; Defendant-Appellant Fiorentino also filed briefs pro se.

          ROBERT CALIENDO, New York, New York (Maurice H. Sercarz, Sercarz & Riopelle, New York, New York, on the brief), for Defendant-Appellant Tejada.

          EPHRAIM SAVITT, New York, New York, for Defendant-Appellant Rodriguez.

          Before: KEARSE, JACOBS, and POOLER, Circuit Judges. [*]

          KEARSE, Circuit Judge

         Defendants Randall Martinez ("Martinez") and Marcos Rodriguez ("Rodriguez") appeal from judgments entered in the United States District Court for the Eastern District of New York by Sandra L. Townes, Judge, and defendants Henry Fiorentino and Jose Tejada appeal from judgments entered in that court by John Gleeson, Judge, convicting all four defendants of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846; convicting Martinez and Rodriguez of brandishing a firearm in furtherance of a crime of violence and/or narcotics trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and convicting Tejada of obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2), and conspiring to obstruct an official proceeding, in violation of id. § 1512(k). Defendants were sentenced principally to prison terms of 264 months for Martinez, 264 months for Fiorentino, 216 months for Tejada, and 272 months for Rodriguez. On appeal, Martinez, who entered pleas of guilty in two related cases in two district courts, challenges the adequacy of his plea hearing and the denial of his requests for new counsel in the Eastern District case. The other defendants, convicted following their respective jury trials, principally raise statute-of-limitations arguments and/or evidentiary challenges to their trial proceedings and challenge their sentences. For the reasons that follow, we find no basis for overturning any of the challenged convictions or sentences.

         I. OVERVIEW

         The present prosecutions arise out of a sprawling conspiracy in and around New York City, spanning at least a decade, in which more than two dozen persons are alleged to have committed more than 200 robberies of drug traffickers. One of the coconspirators' main stratagems was to impersonate officers of the New York City Police Department ("NYPD") in order to stop or purport to arrest drug traffickers and search their vehicles or to enter and search premises where the coconspirators had been informed that drugs might be located.

         The record includes evidence that Fiorentino was a leader of crews in the conspiracy, that Rodriguez was one of his principal lieutenants, and that they participated in numerous robberies and thereafter sold their shares of the stolen narcotics. Martinez participated in many robberies, generally as a getaway driver or a lookout. Tejada, for much of the period covered by the conspiracy, was in fact an NYPD police officer. He participated in robberies, and he provided coconspirators with genuine police equipment and with information about ongoing criminal investigations in which they might be targeted.

         Many indictments and superseding indictments were handed down, and one or more of the present defendants appeared before various judges in two federal judicial districts. While the conduct of these defendants was part of the same overall conspiracy, some were active in different branches of it and at different times than others, and none of these defendants were tried together. We consider each defendant's challenge to his convictions in turn.

         II. FIORENTINO

         Fiorentino was charged in a November 18, 2009 three-count indictment with conspiracy to commit robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) ("Hobbs Act robbery") (Count One), conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846 (Count Two), and using a firearm in furtherance of a crime of violence and narcotics trafficking, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Three). In 2014, having earlier pleaded guilty before Judge Townes but been allowed to withdraw that plea, he was tried before Judge Gleeson and a jury. After the government rested its case, the court dismissed Count Three on the ground that there was insufficient evidence of Fiorentino's use of a gun during the statute-of-limitations period; Fiorentino was found guilty on the other two counts and was sentenced principally to 264 months' imprisonment, to be followed by a five-year term of supervised release.

         On appeal, Fiorentino contends principally that the evidence at his trial was insufficient to prove that he was a member of the conspiracy within the statute-of-limitations period and that his sentence was substantively unreasonable. In pro se supplemental briefing, he argues principally that use of evidence with regard to the seizure of some of his property violated his rights under the Fourth and Sixth Amendments. We find no merit in any of his contentions.

         A. The Evidence

         The evidence at Fiorentino's trial included testimony from six of his coconspirators, each of whom had committed robberies with Fiorentino--and with Rodriguez as Fiorentino's "right-hand man"--from approximately 1997 through 2003. They testified in detail about numerous such events in which Fiorentino, leading a shifting cast of supporting characters, dressed as a plainclothes police officer and drove vehicles that were outfitted to look and operate like unmarked police cruisers in order to facilitate robberies of drug dealers. For example, on a tip to coconspirator Sandy Beato in or about 2003 about an impending sale of cocaine, Fiorentino, with Rodriguez, Beato, and one of the other testifying coconspirators, watched the robbery target leave a house in the Bronx and drive off in a truck. The crew followed and soon forced the truck to stop. Beato testified that Fiorentino, dressed in civilian clothes but with a bulletproof vest, a holstered gun, handcuffs, and a badge, spoke with the driver for several minutes. The crew found five kilograms of cocaine in the truck; Rodriguez and Beato drove away with it. Fiorentino pretended to recruit the driver of the truck to be an informant, promising to return the cocaine if he would tell Fiorentino about future drug sales. The five kilograms of cocaine were divided equally among the four robbers and the tipster.

         On another 2003 tip--this time that 160 kilograms of cocaine were present in a certain apartment in a Bronx housing complex--Fiorentino and coconspirator Gabriel Cano-Martinez, outfitted with police clothing, equipment, and badges, went to that apartment, identified themselves as policemen, and handcuffed the occupants. Cano-Martinez testified that they found $120, 000 in cash and 126 kilograms of cocaine, of which he and Fiorentino kept a total of $40, 000 and 38 kilograms of cocaine, giving the rest of the cash and drugs to the tipsters. Rodriguez helped Fiorentino sell his share of the cocaine.

         Fiorentino at trial conceded that he had participated in the conspiracy for a time, but he argued that he had withdrawn from the conspiracy prior to the start of the five-year statute-of-limitations period, see 18 U.S.C. § 3282(a), i.e., prior to November 18, 2004; and each of the cooperating witnesses against him testified that they committed no robberies with him after 2003. However, those witnesses also testified that they themselves continued to commit such robberies and that neither they nor Fiorentino expressed any intention to stop committing robberies together. In addition, some testified that they discussed with Fiorentino committing future robberies after November 2004. Cano-Martinez, who encountered Fiorentino in the Dominican Republic on several occasions in 2006, testified that they "talked about the possibility of getting back together here in the United States . . . . [t]o rob again together." And Beato, who encountered Fiorentino in jail in or after 2009, testified that Fiorentino asked why Beato had not contacted him "to work" after their 2003 robberies. When Beato said he had not known how to reach Fiorentino, Fiorentino said Beato could have contacted him through Rodriguez.

         In addition, encounters between Fiorentino and bona fide NYPD officers revealed that he was well equipped to continue robbery operations after 2004. In a January 2005 stop, officers found in Fiorentino's vehicle handcuffs, a handcuff key, and a replica police badge. In June 2006, officers stopped Rodriguez in a vehicle registered to Fiorentino; upon searching the car, they found a police placard and a police scanner. A later inventory search also uncovered three police badges and naturalization papers, apparently forged, in Fiorentino's name. In September 2006, the police searched Fiorentino's residence, with his consent, and found, inter alia, a police-style flashlight, guns and fake guns, bullets and blanks, wrist restraints, and police radios. There was also sales-records evidence of purchases of this type of equipment by Fiorentino in 2005 and 2006.

         In October 2006, an NYPD detective investigating Fiorentino and Rodriguez seized a Chevrolet Impala that was equipped with lights, sirens, and a PA system of the type found in unmarked police cruisers. An inventory search found handcuffs, holsters, two NYPD rain jackets, and two police shields. The car was registered to Rodriguez and had been seized from a parking spot leased to Fiorentino.

         Rodriguez was arrested in November 2006 and told the arresting officers that Fiorentino had some property stored in Rodriguez's sister's apartment. In a subsequent search with the sister's consent, the officers found, inter alia, branding stamps for heroin packages, a scale, an NYPD K-9 baseball cap, an orange EZ-Pass of the type used by police officers, fake firearms, holsters, handcuffs, bulletproof vests, a police scanner, NYPD jackets, NYPD-style cargo pants, and replica police patches.

         B. The Statute-of-Limitations Defense

         Fiorentino does not challenge the sufficiency of the government's evidence to prove that there existed a conspiracy of which he was a member and that the conspiracy itself continued in existence well into the limitations period. However, he contends that he had withdrawn from the conspiracy more than five years before he was indicted on November 18, 2009, and that the district court should therefore have granted his posttrial motions pursuant to Fed. R. Crim. P. 29 and 33 for acquittal or a new trial. Rule 29 provides that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a); see generally United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008) ("Eppolito") ("The test for sufficiency . . . is whether a rational jury could conclude beyond a reasonable doubt that a defendant is guilty of the crime charged." (internal quotation marks omitted)), cert. denied, 555 U.S. 1148 (2009). Rule 33 provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). We see no error or abuse of discretion in the court's denial of those motions.

         "Conspiracy is generally a continuing crime, " meaning that its commission "'is not complete until the purposes of the conspiracy have been accomplished or abandoned.'" Eppolito, 543 F.3d at 47 (quoting United States v. Rastelli, 870 F.2d 822, 838 (2d Cir.), cert. denied, 493 U.S. 982 (1989)). Accordingly, the limitations period begins only when the purposes of the conspiracy have been accomplished or abandoned. Once the government "has presented sufficient evidence to show a conspiracy that has continuing purposes or goals" and that has continued into the limitations period, "the burden is on the defendant to prove . . . that he took affirmative steps to withdraw." Eppolito, 543 F.3d at 49; see also United States v. Spero, 331 F.3d 57, 60-61 (2d Cir.), cert. denied, 540 U.S. 819 (2003). "Unless a conspirator produces affirmative evidence of withdrawal, his participation in a conspiracy is presumed to continue until the last overt act by any of the conspirators." United States v. Diaz, 176 F.3d 52, 98 (2d Cir.) (internal quotation marks omitted), cert. denied, 528 U.S. 875 (1999).

For a defendant to show that he withdrew from the conspiracy, proof merely that he ceased conspiratorial activity is not enough. . . . He must also show that he performed "some act that affirmatively established that he disavowed his criminal association with the conspiracy, " . . . either the making of a clean breast to the authorities, or communication of the abandonment in a manner reasonably calculated to reach co-conspirators . . . .

Eppolito, 543 F.3d at 49 (quoting United States v. Eisen, 974 F.2d 246, 268 (2d Cir. 1992) (other internal quotation marks omitted), cert. denied, 507 U.S. 1029 (1993)). To effect a withdrawal, the defendant's disassociation with the conspiracy must be complete and permanent; he "'must not take any subsequent acts to promote the conspiracy.'" Eppolito, 543 F.3d at 49 (quoting United States v. Berger, 224 F.3d 107, 118 (2d Cir. 2000)).

         And "'[w]hile arrest or incarceration may constitute a withdrawal from a conspiracy, it does not follow that in every instance it must'"; rather, it is merely a relevant fact that entitles the defendant to a jury instruction on withdrawal. United States v. Flaharty, 295 F.3d 182, 192 (2d Cir.) (quoting United States v. Agueci, 310 F.2d 817, 839 (2d Cir. 1962), cert. denied, 372 U.S. 959 (1963) (emphases in Agueci)), cert. denied, 537 U.S. 936 (2002).

          The jury at Fiorentino's trial was instructed, properly and without objection, with respect to his statute-of-limitations defense based on his claim of withdrawal from the conspiracy prior to November 18, 2004. The evidence described in Part II.A. above as to Fiorentino's discussions with a coconspirator in 2006 as to his desire to participate in additional robberies, and as to his conversations with another coconspirator in or after 2009 questioning why he had not been asked to do so, was more than sufficient to permit a rational inference that Fiorentino had not withdrawn from the conspiracy. And his continued readiness to participate in the conspiracy's robberies of drug dealers and distribution of narcotics was amply confirmed by records of Fiorentino's police-equipment purchases in 2005 and 2006, and by police discoveries in January of 2005 and in June, September, October, and November of 2006 of his drug distribution paraphernalia such as a scale and a money counter and/or his NYPD garments and badges enabling intimidation and restraint of drug dealers while posing as a police officer. In sum, there was abundant evidence on which to permit the jury to find that Fiorentino's membership in the conspiracy continued into the limitations period.

         Fiorentino also challenges his sentence. (See Part VI.C. below.)

         C. Other Challenges

         In a pro se supplemental brief, Fiorentino argues principally that the district court's admission of certain evidence against him violated his rights under the Fourth and Sixth Amendments. His Fourth Amendment argument, liberally construed, is that evidence from the 2006 seizure and search of the Impala and the search of Rodriguez's sister's apartment should have been suppressed because the searches were conducted without warrants. This argument is not properly preserved.

          A request for "suppression of evidence, " "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3)(C). A "suppression argument that was made in an untimely fashion before the district court" is waived "unless there is a showing of cause." United States v. Yousef, 327 F.3d 56, 125 (2d Cir.) (argument waived where the defendant "had ample opportunity to raise and develop [his] argument before the District Court and he has not provided . . . any reasonable excuse for his failure to so"), cert. denied, 540 U.S. 933 (2003). Here there is no indication in the record that Fiorentino ever moved in the district court to suppress the evidence in question. Further, when he was specifically asked at trial whether he had any objection to the admission of proffered evidence that had been found in the Impala or in Rodriguez's sister's apartment, he answered, "None" (Fiorentino Trial Transcript at 610, 621). Accordingly, his present objection has been waived.

         Nor is there any substantive basis for Fiorentino's argument that the government's failure to call Detective Armando Rodriguez as a witness at trial violated his Sixth Amendment right of confrontation as announced in Crawford v. Washington, 541 U.S. 36, 59 (2004) ("[t]estimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine"). At Fiorentino's trial, another detective testified that Detective Rodriguez was involved in these investigations and in the arrest of defendant Marcos Rodriguez; but the government did not offer in evidence any statements by Detective Rodriguez.

         Finally, to the extent that Fiorentino's supplemental pro se reply brief contains arguments not made in either his opening pro se brief or the brief filed by his attorney, we decline to consider them. "[N]ew arguments may not be made in a reply brief." Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999).

         III. RODRIGUEZ

         Rodriguez, like Fiorentino, was indicted on November 18, 2009, and on the same counts: Hobbs Act robbery conspiracy, 18 U.S.C. § 1951(a) (Count One), narcotics distribution conspiracy, 21 U.S.C. § 846 (Count Two), and using a firearm in furtherance of the robbery and drug distribution conspiracies, 18 U.S.C. § 924(c)(1)(A)(ii) (Count Three). Unlike Fiorentino, Rodriguez did not assert a § 3282(a) statute-of-limitations defense at or prior to trial; and at Rodriguez's trial before Judge Townes, all three counts were submitted to the jury. In July 2011, the jury found Rodriguez guilty on all counts; in addition, the jury made express findings that the gun referred to in Count Three had been used in connection with the robbery conspiracy and that it had been brandished.

         In June 2014, some three years after the verdicts were returned, but before he was sentenced, Rodriguez moved pursuant to Fed. R. Crim. P. 29 and 33 for acquittal on all three counts, arguing for the first time that there was no evidence of his participation in the charged conspiracy after November 18, 2004, i.e., during the five-year statute-of-limitations period. He argued that if he was involved in any conspiracy after the limitations period, it was a separate conspiracy from that charged in the indictment. The district court denied the motions, stating that the jury could reasonably infer that there was a single conspiracy until at least 2008 and that Rodriguez never withdrew from it.

         In January 2015, two months after Fiorentino succeeded in having the gun count against him dismissed, Rodriguez supplemented his Rule 33 motion, arguing that the interest of justice required a ruling in Rodriguez's favor on Count Three to parallel the ruling in Fiorentino's case. The district court again denied the motion, stating that Judge Gleeson's dismissal of the firearm count against Fiorentino may have been based on evidence different from that presented at the trial of Rodriguez, and that the evidence at Rodriguez's trial was not based on firearm seizures beyond the statute-of-limitations period.

         The court eventually sentenced Rodriguez principally to 188 months' imprisonment on the conspiracy counts and to the mandatory consecutive, statutory minimum, seven-year term on Count Three for brandishing the firearm--for a total of 272 months' imprisonment--to be followed by five years of supervised release.

         On appeal, Rodriguez's sole contention is that the court should have granted his motion under Rule 29 or Rule 33 on the ground that there was insufficient evidence at his trial to prove that anyone involved in the predicate conspiracies committed any firearms offenses in furtherance of the conspiracies after the summer of 2004, and thus his conviction on Count Three, with its severe mandatory penalties, was barred by the statute of limitations. As Rodriguez did not timely assert his statute-of-limitations defense in the district court, we conclude that it has been waived. See generally Musacchio v. United States, 136 S.Ct. 709, 716-18 (2016).

         "Commission of [a federal] crime within the statute-of-limitations period is not an element of the . . . offense." Smith v. United States, 568 U.S. 106, 112 (2013) (emphasis in original). Rather, "'it is up to the defendant to raise the limitations defense'"; the § 3282(a) statute of limitations "becomes part of a case only if the defendant presses it in the district court" "at or before trial." Musacchio, 136 S.Ct. at 717-18 (quoting Smith, 568 U.S. at 112).

When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. . . . When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment.

Musacchio, 136 S.Ct. at 718 (first emphasis in original; second emphasis added).

         A statute-of-limitations defense not raised "at or before trial" is not reviewable on appeal. Id. Not even plain-error review can come to the rescue because, if the defendant did not raise the statute-of-limitations defense at or prior to trial, "there is no error for an appellate court to correct--and certainly no plain error." Id. (emphasis added).

         As Rodriguez did not raise his present statute-of-limitations contention until long after his trial, the district court properly denied his motion for acquittal. And we see no abuse of discretion in the court's conclusion that a new trial was not warranted in the interest of justice.

         IV. TEJADA

         Tejada--an NYPD officer--was charged in 2013 in a six-count superseding indictment ("S11"): the Hobbs Act robbery conspiracy, 18 U.S.C. § 1951(a) (Count One); the narcotics distribution conspiracy, 21 U.S.C. § 846 (Count Two); using a firearm in furtherance of the robbery and drug distribution conspiracies, 18 U.S.C. § 924(c)(1)(A)(ii) (Count Three); two counts of obstruction of justice, one by corruptly endeavoring to influence or impede the due administration of justice in connection with a federal grand jury proceeding in the Eastern District of New York, in violation of 18 U.S.C. § 1503(a) (Count Four), and the other by corruptly obstructing, influencing, and impeding a grand jury proceeding, or attempting to do so, in violation of 18 U.S.C. § 1512(c)(2) (Count Five); and one count of conspiring to violate § 1512(c)(2), in violation of id. § 1512(k) (Count Six).

         Tejada went through two jury trials. He was first tried in 2013 before Judge Townes on the above six counts. The jury found him guilty on Counts Five and Six--the § 1512 substantive and conspiracy obstruction-of-justice counts--but was unable to reach agreement on the other four counts. In 2014, a four-count superseding indictment was filed ("S12"), recharging Tejada with the counts of the S11 indictment on which, at his 2013 trial, the jury had been unable to agree. The case was reassigned to Judge Gleeson, who presided over the second trial. After the close of the government's evidence, Judge Gleeson dismissed Count Four, the § 1503(a) obstruction count. As to the remaining counts, the jury found Tejada guilty on Counts One and Two, Hobbs Act robbery conspiracy and narcotics distribution conspiracy, respectively, and not guilty on Count Three, use of a firearm.

         The convictions on Counts Five and Six of S11 and Counts One and Two of S12 were consolidated for sentencing before Judge Gleeson, who sentenced Tejada principally to 216 months' imprisonment, to be followed by a three-year term of supervised release.

         On appeal, Tejada argues (1) that the evidence at his first trial was insufficient to support his convictions for obstruction of justice; (2) that the admission of certain out-of-court statements at his second trial was not permitted by Federal Rule of Evidence 801(d)(1)(C); and (3) that the prosecutor, in his rebuttal summation at the second trial, impermissibly vouched for the credibility of government witnesses and inflamed the jury. He also contends that his sentence is procedurally and substantively unreasonable (see Part VI.B below). We find no basis for reversal.

         A. The Obstruction Convictions

         The evidence with respect to the § 1512 obstruction counts on which Tejada was convicted at his first trial included internal police records as to searches by Tejada of NYPD databases, and testimony by several cooperating witnesses as to, inter alia, Tejada's involvement in the conspiracies to rob drug dealers and to profit by selling the proceeds, including testimony from Yvan Tineo, a close friend of Tejada since the early 1990s and a member of the conspiracy since 2003, recruited by Cano-Martinez. In 2006, Tineo recruited Tejada, who was then a police officer, to join the conspiracy. Tineo testified about several robberies that he and Tejada committed either alone or with ...


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