11-3483-cr
United States v. Dominguez-Gabriel


                                 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 TO 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 4th day of February, two thousand thirteen.

PRESENT: REENA RAGGI,
                 PETER W. HALL,
                 CHRISTOPHER F. DRONEY,
                         Circuit Judges.
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UNITED STATES OF AMERICA,
                           Appellee,

                    v.                                                   No. 11-3483-cr

HECTOR DOMINGUEZ-GABRIEL, a/k/a “Kinko,”
a/k/a “John Richard Bellefleur,”
                    Defendant-Appellant,

MANUEL ALEXANDER ARAUJO,
                         Defendant.*
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          *
           The Clerk of Court is respectfully directed to amend the official caption as shown
above.
APPEARING FOR APPELLANT:                  IAN WEINSTEIN (James A. Cohen, on the
                                          brief), Lincoln Square Legal Services, Inc.,
                                          Fordham University School of Law, New York,
                                          New York.

APPEARING FOR APPELLEE:                   BENJAMIN NAFTALIS (Justin S. Weddle, on
                                          the brief), Assistant United States Attorneys, for
                                          Preet Bharara, United States Attorney for the
                                          Southern District of New York, New York, New
                                          York.

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

(Robert P. Patterson, Jr., Judge).

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

DECREED that the judgment entered on August 18, 2011, is AFFIRMED.

       Hector Dominguez-Gabriel appeals from a judgment of conviction entered after a jury

trial. Proceeding both through counsel and pro se, Dominguez-Gabriel raises myriad

challenges to his conviction and to his 20-year prison sentence. We assume the parties’

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1.     Multiple Conspiracies

       In this case, in which Dominguez-Gabriel stands convicted of two drug conspiracies,

one to distribute cocaine in the United States (Count Two), and another to import cocaine

into the United States (Count Three), he complains that (1) the record evidence in fact




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established multiple conspiracies, some of which excluded or marginalized him,1 (2) the

district court erred in failing to give the jury a multiple-conspiracies charge, and (3) a

variance between the conspiracies charged and proved denied him a fair trial. On de novo

review of these related questions of law, we reject them as without merit.

         In fact, the record evidence, viewed in the light most favorable to the government, see

United States v. Rosa, 11 F.3d 315, 340 (2d Cir. 1993), supports a jury finding that, as to

both the charged distribution and importation conspiracies, there was a common goal served

by various schemes that were interdependent by virtue of Dominguez-Gabriel’s place at their

hub and the use of overlapping core participants and similar methods of operation. See

United States v. Payne, 591 F.3d 46, 61–62 (2d Cir. 2010); United States v. Berger,

224 F.3d 107, 114–15 (2d Cir. 2000); United States v. Johansen, 56 F.3d 347, 351 (2d Cir.

1995).

         Even if the record showed multiple conspiracies beyond the two charged, however,

Dominguez-Gabriel would not be entitled to relief on appeal absent a showing of substantial

prejudice. See United States v. Johansen, 56 F.3d at 351 (identifying factors relevant to

prejudice assessment). He cannot show that he was prejudiced by the jury charge because



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        Dominguez-Gabriel contends that evidence of his drug dealing with confederates
Manuel Alexander Araujo and David Marin reflected distinct distribution and importation
schemes, rather than the single distribution and importation conspiracies charged in the
indictment. He submits that Araujo’s dealings with “Guido” and with confidential informant
Miguel Duarte reflected uncharged schemes in which he played no role.

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the trial court plainly instructed that the government’s burden was to prove the charged

conspiracies beyond a reasonable doubt, and the evidence was sufficient to permit a jury to

find that it carried this burden. See United States v. Vazquez, 113 F.3d 383, 386 (2d Cir.

1997) (“A refusal to give a multiple conspiracy charge does not prejudice defendant where

there was ample proof before the jury for it to find beyond a reasonable doubt that defendant

was a member of the conspiracy charged in the indictment.”). Further, Dominguez-Gabriel

was tried alone, a circumstance that we have recognized generally to preclude a showing of

prejudicial spillover from multiple conspiracies. See United States v. Cusimano, 123 F.3d

83, 89 (2d Cir. 1997). His conviction is not premised on Pinkerton v. United States, 328 U.S.

640 (1946), and no evidence was received—much less shocking and inflammatory

evidence—that would not have been admissible against Dominguez-Gabriel on the charged

conspiracies, see United States v. Johansen, 56 F.3d at 351.

       Accordingly, we identify no merit to the various errors he raises in connection with

his multiple-conspiracies claim.

2.     Hearsay

       Dominguez-Gabriel’s challenge to hearsay statements by non-testifying government

informant Miguel Duarte merits little discussion.

       Dominguez-Gabriel’s failure to object to these statements at trial limits our review to

plain error. See United States v. Gore, 154 F.3d 34, 41 (2d Cir. 1998). We identify none.

No different conclusion is warranted by defendant’s claim that he was unaware of Duarte’s

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informant status until the close of the government’s case. The record shows that defendant

was aware of Duarte’s status from the very start of trial, as evidenced by his counsel’s

opening statement to the jury.

       Further, insofar as many of the challenged statements were deliberately elicited by

defense counsel as part of an overall strategy to focus the jury’s attention on the informant,

such conduct constitutes a true waiver of any hearsay objection, precluding appellate review

even for plain error. See United States v. Terry, 702 F.2d 299, 317 (2d Cir. 1983); see also

United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007).

       Finally, Dominguez-Gabriel cannot show any error, let alone plain error, in the

admission of questions posed—rather than statements made—by Duarte, as these do not

constitute hearsay. See Fed. R. Evid. 801(a), (c). Moreover, statements attributed by

co-conspirator Manuel Alexander Araujo to Dominguez-Gabriel rather than to Duarte were

admissible as declarations of a party opponent under Fed. R. Evid. 801(d)(2).

       Accordingly, defendant is entitled to no relief on his hearsay challenge.

3.     Sixth Amendment Right to Compulsory Process

       Dominguez-Gabriel asserts that he was denied his constitutional right to compulsory

process by the government’s refusal to produce Duarte as a witness. The government

contends that this argument fails because defendant’s request was made at a time when the

government no longer controlled Duarte and did not know his whereabouts, except that he

was not in the United States. See United States v. Greco, 298 F.2d 247, 251 (2d Cir. 1962);

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see also United States v. Yousef, 327 F.3d 56, 114 n.48 (2d Cir. 2003). Insofar as

Dominguez-Gabriel relies on Ramchair v. Conway, 601 F.3d 66 (2d Cir. 2010), that case is

inapplicable here because nothing in the record indicates that the government took actions

to render Duarte unavailable, see id. 68–70.

       We need not pursue this point further, however, because Dominguez-Gabriel’s

argument fails for a more fundamental reason: he does not show how Duarte’s testimony

would have been favorable to his defense. See Howard v. Walker, 406 F.3d 114, 132 (2d Cir.

2005); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 871 (1982). To the extent

Dominguez-Gabriel argues that Duarte could have provided material testimony about a

meeting attended by the two men in Colombia, the record indicates that the meeting concerned

drug distribution and money laundering, circumstances unlikely to be favorable to Duarte.

In sum, in the absence of any “effort to explain what material, favorable evidence” Duarte

would have provided, Dominiguez-Gabriel’s Sixth Amendment challenge fails on the merits.

United States v. Valenzuela-Bernal, 458 U.S. at 874 (emphasis added).




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4.     Pro Se Challenges

       We have considered Dominguez-Gabriel’s remaining challenges, including those he

presents pro se, and we conclude that they are uniformly without merit, largely for the reasons

stated in opposition by the government.

       The judgment of conviction is hereby AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk of Court




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