14-3727
United States v. Colella

                                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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
2nd day of November, two thousand fifteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            DENNY CHIN,
                  Circuit Judge,
            P. KEVIN CASTEL,
                  District Judge.*
____________________________________________________________

UNITED STATES OF AMERICA,

        Appellee,

                 -v-                                                   No. 14-3727

ERMINIO COLELLA,

        Defendant-Appellant,

JOSEPH BRANDT, II, ADAM LIDEL, JONATHAN
BUFFUM, JONATHAN MAOR, JASON SARDO,
TIMOTHY DEARBORN, NANCY GREENE,

        Defendants.




*
 The Honorable P. Kevin Castel, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Appellee:                           SOLOMON B. SHINEROCK, Assistant United States Attorney
                                        (Geoffrey J.L. Brown, Steven D. Clymer, Assistant United
                                        States Attorneys, of Counsel, on the brief), for Richard S.
                                        Hartunian, United States Attorney for the Northern District
                                        of New York, Albany, NY.
For Defendant-Appellant:                GEORGE H. LOWE, Bond, Schoeneck & King, PLLC,
                                        Syracuse, NY.


        Appeal from the United States District Court for the Northern District of New York
(Scullin, S.J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the District Court is AFFIRMED.

        Following a jury trial, Defendant-Appellant Erminio Colella was convicted of conspiracy

to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846. The

United States District Court for the Northern District of New York (Scullin, S.J.) sentenced

Colella to 14 months imprisonment. On appeal, Colella argues that the District Court erred in

failing to read his requested instruction to the jury. Colella contends that the jury should have

been instructed on the “buyer-seller exception” to the general conspiracy rule, i.e., that buying

and selling drugs by itself is insufficient to establish a conspiracy to distribute. See, e.g., United

States v. Hawkins, 547 F.3d 66, 71–72 (2d Cir. 2008).

        “We review a district court’s refusal to issue requested jury instructions de novo.” United

States v. Desinor, 525 F.3d 193, 198 (2d Cir. 2008). Nonetheless, “the trial court ‘enjoys broad

discretion in crafting its instructions which is only circumscribed by the requirement that the

charge be fair to both sides.’” United States v. Brand, 467 F.3d 179, 205 (2d Cir. 2006) (quoting

United States v. Russo, 74 F.3d 1383, 1393 (2d Cir. 1996)). Likewise, “[w]hile a defendant is

entitled to any legally accurate jury instruction for which there is a foundation in the evidence, he

does not have a right to dictate the precise language of the instruction. If the substance of a



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defendant’s request is given by the court in its own language, the defendant has no cause to

complain.” United States v. Banki, 685 F.3d 99, 105 (2d Cir. 2011) (citations omitted).

       On appeal, the appellant bears the burden to show that “the requested instruction was

legally correct, represented a theory of defense with a basis in the record that would lead to

acquittal, and the charge actually given was prejudicial.” Desinor, 525 F.3d at 198 (citations and

internal quotation marks omitted). “De novo review leads us to find error if we conclude that a

charge either fails to adequately inform the jury of the law, or misleads the jury as to the correct

legal standard.” United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (quoting United

States v. Quattrone, 441 F.3d 153, 177 (2d Cir.2006)).

       Colella’s sole contention on appeal is that the District Court’s decision not to use his

proposed instruction describing the buyer-seller exception prejudiced his right to a fair trial. He

claims that the jury could have rejected the trial testimony of Joseph Brandt, Colella’s supplier

and co-defendant, as not credible. If so, he argues, there was little other evidence to support the

Government’s claim that Colella was a participant in a conspiracy to distribute cocaine instead of

a buyer within the meaning of the buyer-seller exception.

       In a literal sense, any drug deal constitutes a conspiracy to distribute drugs, regardless of

the quantity of drugs sold or of the intentions of the parties to engage in an extended criminal

enterprise. See United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009) (“As a literal matter,

when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort

to achieve the unlawful transfer of the drugs from the seller to the buyer. According to the

customary definition, that would constitute a conspiracy with the alleged objective of a transfer

of drugs.”). But our case law has created a narrow exception to the general conspiracy rule to

exempt “mere” buyers and sellers, those who transacted illegal drugs but did not belong to




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broader distribution networks. Among other reasons, penalizing users buying drugs for their own

consumption to the same degree as dealers working for criminal enterprises would be

inconsistent with federal narcotics laws, which prescribe harsher penalties for dealers than for

mere users. See id. at 235; see also Hawkins, 547 F.3d at 72 (“The rationale for holding a buyer

and a seller not to be conspirators is that in the typical buy-sell scenario, which involves a casual

sale of small quantities of drugs, there is no evidence that the parties were aware of, or agreed to

participate in, a larger conspiracy.”) (quoting United States v. Medina, 944 F.2d 60, 65 (2d Cir.

1991)).

          In previous cases, this Court and others have identified certain factors relevant to the

determination of whether or not a defendant falls within the exception, including the length of

the relationship between the seller and buyer, the quantity of drugs transacted, and whether the

seller permitted the buyer to purchase drugs on credit. See, e.g., United States v. Rojas, 617 F.3d

669, 675 (2d Cir. 2010) (“While our Circuit has avoided listing factors to guide what is a highly

fact-specific inquiry into whether the circumstances surrounding a buyer-seller relationship

establish an agreement to participate in a distribution conspiracy, we have noted the relevance of

certain factors identified by other circuit courts of appeal. For example, the existence of ‘sales on

credit’. . . ha[s] been used to distinguish between a buyer-seller relationship and a conspiratorial

agreement.”) (citations and internal quotation marks omitted); United States v. Gibbs, 190 F.3d

188, 200 (3d Cir. 1999) (“A credit relationship . . . often evidences the parties’ mutual stake in

each other’s transactions.”). We have also held that the exception “does not apply . . . where, [for

example,] there is advanced planning among the alleged co-conspirators to deal in wholesale

quantities of drugs obviously not intended for personal use. Under such circumstances, the

participants in the transaction may be presumed to know that they are part of a broader




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conspiracy.” Hawkins, 547 F.3d at 72 (alterations in original) (quoting Medina, 944 F.2d at 65–

66). Ultimately, “[t]he critical inquiry . . . is whether the evidence in its totality suffices to permit

a jury to find beyond a reasonable doubt that the defendant was not merely a buyer or seller of

narcotics, but rather that the defendant knowingly and intentionally participated in the narcotics-

distribution conspiracy by agreeing to accomplish its illegal objective beyond the mere purchase

or sale.” Id. at 73–74.

        On appeal, Colella bears the burden to show that his theory of defense—that he was a

mere buyer—had a basis in the record that could have led to his acquittal. He has not met this

burden. At Colella’s trial, the jury heard recordings of 11 conversations between Colella and

Brandt, in which the two discussed the cocaine business, Brandt’s supplier woes, and Colella’s

customers’ needs. Brandt also agreed to provide Colella with wholesale quantities of cocaine on

credit. Indeed, Colella concedes that some of these conversations reflect that Brandt sold cocaine

to Colella on credit, and that Brandt was aware Colella was reselling the cocaine. The recordings

thus demonstrate Brandt’s interest and investment in Colella’s ability to resell the cocaine, and

Colella’s interest and investment in Brandt’s ability to purchase more cocaine. See Parker, 554

F.3d at 236 (“[I]f we consider a hypothetical seller who is running a profit-motivated business of

selling drugs in wholesale amounts, this seller may well realize that his buyers’ ability to buy and

pay for substantial amounts of drugs, and hence, his profit, will depend on the buyers’ ability to

resell.”). Even without Brandt’s testimony, these recordings provided ample evidence that

Colella was more than a mere buyer.

        Moreover, Colella has not pointed to any law or precedent holding that a particular jury

instruction must be read if there is a possibility that the jury will doubt the credibility of a key

witness. Brandt testified that he regularly and continuously sold cocaine to Colella over a seven-




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year period. Brandt also provided commentary on the recorded conversations during his

testimony, explaining how the calls revealed his interest in furthering Colella’s “business,”

when, for example, he inquired about the needs of Colella’s regular customers. Colella concedes

that “the trial testimony of Joseph Brandt, if believed by the jury, would have made the ‘buyer-

seller’ exception inapplicable.” App. 281. Given that testimony, and the conversations between

Brandt and Colella that were introduced into evidence, the District Court correctly found that

there was no basis to support Colella’s argument that the buyer-seller exception applied.

       Colella has also failed to show how he was prejudiced by the District Court’s

instructions. The charge read to the jury accurately related the elements of the conspiracy charge

that the Government had to prove, and included a specific reminder that proof that Colella

purchased drugs was not sufficient to meet the Government’s burden to show that Colella was

part of a larger conspiracy. See App. 271 (“Although you may consider the fact that defendant

Colella may have bought a controlled substance from a member of the charged conspiracy in

determining whether or not defendant Colella has knowingly and intelligently joined the

conspiracy, that alone would not be sufficient to reasonably conclude that the defendant Colella

was a member of the charged conspiracy.”).

       The charge also instructed the jury that the Government needed to “prove beyond a

reasonable doubt that defendant Colella knew of the objectives or goals of the conspiracy, that

defendant Colella joined the conspiracy intending to help further or achieve those goals, and that

defendant Colella and at least one other alleged conspirator arrived at some type of agreement or

understanding that they, and perhaps others, would violate the drug laws by means of some

common plan or course of action.” App. 271–72. The instructions thus clarified that Brandt’s

“mere knowledge” that Colella intended to resell the drugs was insufficient to meet the




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Government’s burden to show that the two had a “common plan.” If the jury doubted Brandt’s

credibility, and found that Colella intended to purchase cocaine but not to “further or achieve”

the goals of the conspiracy, it could have voted to acquit him. It did not do so, and Colella has

not shown how reading his requested instruction to the jury would have changed that outcome.

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

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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