09-3413-cr
U nited States v. Plaza-A ndrades



                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST 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, 500 Pearl Street, in the City of
New York, on the 6 th day of October, two thousand ten.

PRESENT:               ROGER J. MINER,
                       BARRINGTON D. PARKER,
                       REENA RAGGI,
                                 Circuit Judges.

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UNITED STATES OF AMERICA,
                        Appellee,

                                    v.                                                 No. 09-3413-cr

IVAN PLAZA-ANDRADES,
                                                 Defendant-Appellant,

JOSE PIZARRO, a.k.a. Juan Gonzalez,
                              Defendant.*
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APPEARING FOR APPELLANT:                                   STEPHEN LANCE CIMINO, ESQ., Syracuse,
                                                           New York.

APPEARING FOR APPELLEE:                                    WILLIAM C. BROWN, Attorney (Lanny A.
                                                           Breuer, Assistant Attorney General, Greg D.
                                                           Andres, Acting Deputy Assistant Attorney


           *
               The Clerk of the Court is directed to amend the caption to read as shown above.
                                            General, on the brief), United States Department
                                            of Justice, Criminal Division, Washington, D.C.,
                                            for Richard S. Hartunian, United States Attorney
                                            for the Northern District of New York, Syracuse,
                                            New York.

       Appeal from the United States District Court for the Northern District of New York

(David N. Hurd, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on August 10, 2009, is AFFIRMED.

       Ivan Plaza-Andrades was convicted, following a jury trial, of conspiracy to possess

with intent to distribute and to distribute over five kilograms of cocaine, see 21 U.S.C.

§§ 841(b)(1)(A)(ii), 846, and attempted possession with intent to distribute over 500 grams

of cocaine, see id. §§ 841(b)(1)(B)(ii), 846.        Sentenced principally to 121 months’

imprisonment, Plaza-Andrades now challenges (1) the sufficiency of the trial evidence

supporting his conviction on the conspiracy count,1 and (2) the district court’s denial of his

motion for a new trial. We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

       1.       Sufficiency Challenge

       Although we review the sufficiency of the evidence de novo, see United States v.

Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010), defendant “bears a heavy burden because a

reviewing court must consider the evidence ‘in the light most favorable to the prosecution’

and uphold the conviction if ‘any rational trier of fact could have found the essential elements


       1
           Plaza-Andrades does not challenge his conviction on the attempt count.

                                               2
of the crime beyond a reasonable doubt,’” United States v. Aguilar, 585 F.3d 652, 656 (2d

Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson)).

       Plaza-Andrades does not dispute that the trial evidence established that, on eleven

occasions from July to November 2007, he paid Jose Pizarro to receive Express Mail

shipments of cocaine from Puerto Rico at various addresses in Syracuse, New York. He

maintains, however, that this evidence was insufficient to convict him of the charged

conspiracy because (a) his dealings with Pizarro fit within the buyer-seller exception for

conspiracy, and (b) the jury could only speculate as to the drug quantity. We reject both

arguments.

              a.     Buyer-Seller Exception

       Although “[a] transfer of drugs from a seller to a buyer necessarily involves

agreement, however brief, on the distribution of a controlled substance from the former to

the latter,” United States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (internal quotation

marks omitted), the law deems such an agreement insufficient by itself to support a

conspiracy conviction, United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009). Plaza-

Andrades attempts to fit himself within this “narrow” exception, id.,2 by insisting that he

simply purchased drugs from Pizarro. The trial evidence does not support this assertion.



       2
         Plaza-Andrades’s reliance on United States v. Hawkins, No. 3:05cr58, 2007 WL
1732767 (D. Conn. June 15, 2007), to support his expansive buyer-seller argument is
misplaced in light of our reversal of that decision in United States v. Hawkins, 547 F.3d 66.
See also United States v. Parker, 554 F.3d at 236 (discussing Hawkins in noting appellant’s
“fail[ure] to appreciate how limited is the application of the buyer-seller exception”).

                                              3
Pizarro testified that Plaza-Andrades recruited him to work as a drug runner, receiving and

delivering packages of cocaine that were shipped from Puerto Rico to upstate New York

under Plaza-Andrades’s direction. Plaza-Andrades paid Pizarro $500 per shipment for his

services as a drug runner, far less than the $20,000 to $30,000 value of each shipment. We

assume, as we must, that the jury credited Pizarro’s testimony detailing a distribution

agreement between an employer and an employee rather than one between a buyer and a

seller. See, e.g., United States v. Burden, 600 F.3d 204, 214 (2d Cir. 2010); United States

v. Salmonese, 352 F.3d 608, 619 (2d Cir. 2003). Indeed, the documentary evidence

corroborated this account by showing that Plaza-Andrades himself sent several packages to

Puerto Rico, which the jury reasonably could have inferred contained payments to his actual

cocaine supplier. Meanwhile, no evidence indicated that Pizarro ever dealt with cocaine

sources in Puerto Rico, or played the role of an arms-length seller. Because the distribution

agreement between Plaza-Andrades and Pizarro was that of an employer and an employee,

not a buyer and seller, Plaza-Andrades cannot rely on the buyer-seller exception to challenge

his conspiracy conviction. This part of the sufficiency challenge fails on the merits.3


       3
          United States v. Carson, 702 F.2d 351 (2d Cir. 1983), on which Plaza-Andrades
relies, does not compel a different conclusion. There, we identified sufficient circumstantial
evidence to support a drug conspiracy conviction where defendant’s “furtive street-corner
activities” allowed the jury to infer drug transactions and the context of those activities
permitted an inference that defendant was knowingly facilitating a heroin sale. See id. at
361-62. Plaza-Andrades asserts that no similar circumstantial evidence established his
knowing joinder in the charged conspiracy, specifically, no evidence indicating that he
received payments from Pizarro, accounted to Pizarro for drugs sold or money received,
acknowledged acting on Pizarro’s behalf, or received instructions from Pizarro. These
omissions are irrelevant. Direct evidence, in the form of Pizarro’s testimony, established that

                                              4
       Viewing the trial evidence in the light most favorable to the government, we therefore

conclude that a reasonable jury could have found Plaza-Andrades guilty of conspiracy.

              b.     Drug Quantity

       Plaza-Andrades does not dispute that the evidence established that Pizarro received

cocaine shipments on eleven occasions. Nor does he dispute that the November 2, 2007

shipment that led to his arrest contained more than the 500 grams specified in 21 U.S.C.

§ 841(b)(1)(B)(ii). He asserts, however, that the trial evidence was insufficient to permit the

jury to find beyond a reasonable doubt that the total quantity of cocaine involved in the

eleven shipments exceeded the five kilograms specified in 21 U.S.C. § 841(b)(1)(A)(ii). We

disagree. Pizarro testified that each of the eleven packages that he received for Plaza-

Andrades weighed roughly the same as the seized package, except for one heavier package

received in July. The seized package contained 1,244 grams, i.e., over one kilogram, of 79%

pure cocaine. On sufficiency review, we must assume the jury credited Pizarro’s testimony

and drew all reasonable inferences in favor of the government. See, e.g., United States v.

Heras, 609 F.3d 101, 103 (2d Cir. 2010). Applying this “deferential standard,” United States

v. Lombardozzi, 491 F.3d 61, 67 (2d Cir. 2007), we conclude that Pizarro’s testimony about

receiving eleven shipments of roughly the same weight of cocaine together with lab results

showing that the one seized shipment weighed more than one kilogram sufficiently supports

a finding of the necessary drug quantity, see United States v. Oluwanisola, 605 F.3d 124,



Pizarro worked for, took direction from, and accounted to Plaza-Andrades with respect to the
charged cocaine shipments, not the other way around. This evidence sufficed to support the
conspiracy conviction.

                                              5
134-35 (2d Cir. 2010) (affirming conviction when evidence was sufficient to link defendant

to “the drug quantity in question”).

         2.    Denial of Motion for New Trial

         We review the denial of a motion to grant a new trial under Fed. R. Crim. P. 33 for

abuse of discretion. See, e.g., United States v. Bell, 584 F.3d 478, 482-83 (2d Cir. 2009).

“It is well established that trial courts must defer to the jury’s resolution of the weight of the

evidence and the credibility of the witnesses. It is only where exceptional circumstances can

be demonstrated that the trial judge may intrude upon the jury function . . . .” Id. at 483

(quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) (requiring showing

of “manifest injustice”)). For a district court to grant relief under Rule 33, “‘[t]here must be

a real concern that an innocent person may have been convicted.’” United States v.

Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d at

1414). That is not this case. Because Plaza-Andrades’s argument that a new trial was

warranted simply restates his sufficiency challenge, which we have already rejected as

meritless, we identify no abuse of discretion in the district court’s decision that the manifest

injustice standard was not met here.

         We have considered Plaza-Andrades’s other arguments on appeal and conclude that

they lack merit. Accordingly, we AFFIRM the August 10, 2009 judgment of the district

court.

                              FOR THE COURT:
                              CATHERINE O’HAGAN WOLFE, Clerk of Court




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