09-3602-cr
USA v. Mercedes


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 1st day of December, two thousand ten.

Present: RALPH K. WINTER,
         GUIDO CALABRESI,
         ROBERT A. KATZMANN,
                           Circuit Judges,
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                                                 No. 09-3602-cr

JOSE ELIAS MERCEDES, also known as Jose Elias Mercedes Delmonte,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         CHERYL MEYERS BUTH , Law Office of Thomas
                                                 Burton, Buffalo, N.Y.

For Appellee:                                    GREGORY L. BROWN , Assistant United States
                                                 Attorney, for William J. Hochul, Jr., United
                                                 States Attorney for the Western District of New
                                                 York, Buffalo, N.Y

.
       Appeal from the United States District Court for the Western District of New York
(Arcara, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Jose Elias Mercedes appeals from an August 18, 2009 judgment of

the United States District Court for the Western District of New York (Arcara, J.), convicting

him, following a jury verdict, of one count of making a false statement in violation of 18 U.S.C.

§ 1001(a)(2). We assume the parties’ familiarity with the underlying facts, procedural history of

this case, and the specification of issues on appeal.

       Section 1001(a)(2) makes it a crime to “knowingly and willfully” “make[] any materially

false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of

the United States government. Mercedes principally argues that the government’s evidence at

trial with respect to both the materiality and falsity of his statement was insufficient to support

his conviction. A defendant challenging the sufficiency of the evidence supporting a jury verdict

“bears a heavy burden, since he must show that ‘no rational trier of fact could have found all of

the elements of the crime beyond a reasonable doubt.’” United States v. Caracappa, 614 F.3d 30,

43 (2d Cir. 2010) (quoting United States v. Schwarz, 283 F.3d 76, 105 (2d Cir. 2002)). We

review such a claim de novo, but we draw all inferences from the evidence and resolve all issues

of credibility in favor of the jury’s verdict. See United States v. Oluwanisola, 605 F.3d 124, 134-

35 (2d Cir. 2010). Here, the evidence at trial, when viewed in the light most favorable to the

government, was more than sufficient to permit a rational jury to conclude that Mercedes was

guilty of the charged crime.



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       Mercedes contends first that the evidence did not establish that his claim of Cuban

citizenship was material because the interviewing agent had “ruled out the possibility of relying

on the statement” prior to its solicitation, Def.’s Br. 20, and Mercedes’s claim was already

documented in his Immigration file. “A false statement is material if it tends to or is capable of

influencing the decision-making body to which it was addressed.” United States v. Stewart, 433

F.3d 273, 318 (2d Cir. 2006). Mercedes concedes that the government does not need to rely on

the statement for it to be material. As the Supreme Court has noted, “making the existence of

this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the

liar) would be exceedingly strange.” Brogan v. United States, 522 U.S. 398, 402 (1998).

Mercedes’s argument to the contrary finds no support in the case law. Here, because of the

Immigration and Customs Enforcement (“ICE”) policy of releasing Cuban aliens back into the

United States after ninety days, rather than deporting them to Cuba, Mercedes’s statement is

clearly of the type that was capable of influencing the agency’s decision-making process, and in

fact, Mercedes had repeatedly avoided deportation prior to the instant case precisely because his

claim of Cuban citizenship had been believed.

       Mercedes also challenges the jury verdict on the sufficiency of the evidence establishing

the falsity of his statement. He argues that “the jury failed to properly consider the

uncontroverted testimony” of his Spanish linguistics expert, who opined that Mercedes spoke

with a native Havana working-class dialect, Def.’s Br. 40, and no witness corroborated

Mercedes’s “alleged admission under interrogation that he was Dominican, not Cuban,” Def.’s

Br. 43. However, the evidence before the jury, including Mercedes’s handwritten and signed

statement admitting that he was, in fact, a citizen of the Dominican Republican, was more than


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sufficient to establish that his claim of Cuban citizenship was false. In light of this and other

evidence supporting his guilt, the jury was free to disregard the expert’s testimony and any other

evidence now emphasized by Mercedes.

       Mercedes next argues that the district court erred in denying his motion for a new trial

based on the government’s purported violations of the district court’s pretrial evidentiary ruling.

Prior to trial, the district court ruled in limine that the government could not elicit testimony

indicating that agents had contacted the defendant’s mother in the Dominican Republic, that a

photograph had been provided to her for identification, or that she had provided a statement.

During the trial, the district court sustained defense counsel’s objections to ICE Deportation

Officer Alvi Castro’s testimony that, inter alia, he had sent a photograph to the Dominican

Republic for identification and that he had received a written statement from that investigation,

and the court immediately directed the jury to disregard the objected-to statements. Rule 33

allows a district court to “vacate any judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33. In denying Mercedes’s motion on this ground, the district court

concluded that the government adhered to the pretrial evidentiary ruling “[f]or the most part,”

and any prejudice that may have resulted from improper questions and answers was

“immediately cured” by the court’s striking of that testimony. J.A. 763.

       We review the district court’s decision denying a new trial for abuse of discretion.

United States v. Josephberg, 562 F.3d 478, 488 (2d Cir. 2009). Courts “normally presume that a

jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it,

unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court’s

instructions, and a strong likelihood that the effect of the evidence would be ‘devastating’ to the


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defendant.” Greer v. Miller, 483 U.S. 756, 767 n.8 (1987) (internal citations omitted). Mercedes

argues that striking the testimony was insufficient to cure the harm of the challenged statements,

which was to “communicate to the jury that an individual or individuals in the Dominican

Republic were able to identify Jose Elias Mercedes [and] provide statements.” Def.’s Br. 38.

Contrary to Mercedes’s contention that “the jury’s verdict undoubtedly hinged on the improper

hearsay identification testimony,” Def.’s Br. 39, we conclude that the Mercedes has failed to

establish that he was prejudiced because there was ample admissible evidence, including his own

written statement, establishing his guilt. Cf. Bank of China v. NBM LLC, 359 F.3d 171, 183 (2d

Cir. 2004) (erroneous evidentiary rulings are subject to harmless error review). Accordingly, we

conclude that district court’s denial of Mercedes’s post-trial motion was appropriate and not an

abuse of discretion.

        We have considered all of Mercedes’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                                 FOR THE COURT:
                                                 CATHERINE O'HAGAN WOLFE, CLERK




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