19-1680
United States v. Blanco


                                   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 5th day of June, two thousand twenty.

PRESENT:
           BARRINGTON D. PARKER,
           SUSAN L. CARNEY,
                       Circuit Judges,
           LEWIS A. KAPLAN,
                       District Judge. *
_________________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                             v.                                                    No. 19-1680

VIRGINIA BLANCO,

                     Defendant-Appellant,

GIOVANNY MARTE, also known as Gio,
ROWY VAZQUEZ, also known as Trouble,
ANDRES CRUZ, also known as Fifth, JEFFREY
MARTINEZ, also known as Sealed Defendant 1,


 *Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting
by designation.
           Defendants.
_______________________________________

FOR DEFENDANT-APPELLANT:                           STEPHEN R. LEWIS, Stephens, Baroni,
                                                   Reilly & Lewis, LLP, White Plains, NY.

FOR APPELLEE:                                      JAMIE BAGLIEBTER (Sam Adelsberg and
                                                   Anna M. Skotko, on the brief), Assistant
                                                   United States Attorneys, for Geoffrey S.
                                                   Berman, United States Attorney for the
                                                   Southern District of New York, New
                                                   York, NY.

       Appeal from a judgment of the United States District Court for the Southern District
of New York (Seibel, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on May 31, 2019, is
AFFIRMED.

       Virginia Blanco appeals from a judgment of conviction entered following a jury trial
in the United States District Court for the Southern District of New York (Seibel, J.). Blanco
was convicted of one count of conspiracy to commit bank robbery in violation of 18 U.S.C.
§ 371 (“Count One”); one count of bank robbery in violation of 18 U.S.C. § 2113(a) (“Count
Two”); and one count of using and discharging a firearm in furtherance of a crime of
violence in violation of 18 U.S.C. § 924(c) (“Count Three”). The court sentenced Blanco to
one day of imprisonment on each of Counts One and Two, to run concurrently, and
imposed the statutory minimum of ten years on Count Three, to run consecutively; five
years of supervised release; and restitution in the amount of $303,500. We assume the
parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to
which we refer only as necessary to explain our decision to affirm.




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     1. Post-Trial Motions

        Blanco first challenges the district court’s denial of her motion for a judgment of
acquittal under Rule 29 of the Federal Rules of Criminal Procedure, and for a new trial under
Rule 33 of the Federal Rules of Criminal Procedure.

        Rule 29 permits a trial court to set aside a jury’s guilty verdict and enter an acquittal if
it determines the evidence was “insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
We review de novo a district court’s denial of a Rule 29 motion. United States v. Cacace, 796 F.3d
176, 191 (2d Cir. 2015).

        We see no error in the district court’s denial of Blanco’s Rule 29 motion. 1 Blanco
urged that her conviction on Count Three, discharging a firearm in furtherance of a crime of
violence, was not supported by the evidence, on the theory that the jury determined that she
committed a crime of violence under 18 U.S.C. § 924(c)(3)(B). Section 924(c)(3)(B) was
determined to be unconstitutionally vague in United States v. Davis, 139 S. Ct. 2319 (2019),
and therefore cannot serve as a predicate to the crime charged in Count Three.

        But this argument misses the point: We held in United States v. Hendricks that bank
robbery in violation of 18 U.S.C. § 2113(a) is categorically a crime of violence. 921 F.3d 320,
327-28 (2d Cir. 2019). Blanco’s bank robbery conviction under § 2113 thus supplies the
“crime of violence” element. Hendricks renders the jury’s finding on § 924(c)(3)(B) both
irrelevant and unnecessary. Blanco’s sufficiency claim thus fails. 2

        Rule 33, in turn, provides that a trial court may vacate a judgment of conviction and
order a new trial if “justice so requires.” Fed. R. Crim. P. 33(a). We review the denial of a


 1The district court found that Blanco’s post-trial motions were untimely, and made no finding of excusable
neglect. App’x 322-24. We take no position on the timeliness issue, as we affirm that court on the merits.
 2 Blanco also clarified at oral argument that, in her view, Count Three must be vacated because she may have

been convicted on a theory of Pinkerton, or co-conspirator, liability. See Pinkerton v. United States, 328 U.S. 640,
646-47 (1946). We are not persuaded. Even if the jury found Blanco liable for bank robbery based on
Pinkerton, as opposed to under an aiding-and-abetting theory of liability, that would not somehow transform
her conviction for substantive bank robbery into one for bank robbery conspiracy, implicating the residual-clause
concerns explored in Davis and this Court’s subsequent decision in United States v. Barrett, 937 F.3d 126 (2d
Cir. 2019).


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Rule 33 motion for abuse of discretion, assessing the factual findings in support of such a
decision for clear error. United States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009).

       The district court was well within its discretion in rejecting Blanco’s Rule 33 motion.
The motion highlighted numerous aspects of her trial counsel’s performance that she
maintained rendered him ineffective as a matter of law. In Strickland v. Washington, 466 U.S.
668 (1984), the Supreme Court set forth a two-pronged test for ineffective assistance of
counsel. We have described that test as imposing a “heavy burden” on a defendant, United
States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004), for to prevail in overturning a conviction
on this ground it a defendant must show: (1) “that counsel’s performance was deficient,”
and (2) “that the deficient performance prejudiced the defense,” Strickland, 466 U.S. at 687.
Both prongs must be satisfied in order for a court to conclude that the conviction “resulted
from a breakdown in the adversary process that renders the result unreliable.” Id. Largely for
the reasons stated by the district court in its analysis, Blanco has failed to carry that heavy
burden.

       First, Blanco points to certain discovery materials that she became aware of only after
trial, and that trial counsel knew of but did not review with her. She characterizes them as
exculpatory. As an initial matter, we are not aware of any authority requiring defense counsel
to review with his client all of the discovery materials that counsel acquires in the course of
preparing for trial. More important, however, Blanco does not demonstrate how the
allegedly exculpatory material—which consisted primarily of a few statements, made by
individuals without firsthand knowledge of the planning of the robbery, that plans to rob the
bank had been underway before she began working there—would have altered her defense,
proven her innocence, or otherwise changed the outcome of the trial. Thus, even if we
assume that trial counsel committed unprofessional errors by failing to share this material
with Blanco, Blanco fails at the second Strickland prong because she cannot demonstrate
prejudice.

       Second, Blanco takes issue with her trial counsel’s decision not to contact, interview, or
call as witnesses certain individuals who may have been able to provide testimony to rebut
the government’s theory that an insider helped plan the robbery, and to cast doubt on the

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credibility and character of the government’s witnesses. We have been clear that “[t]he
decision not to call particular witness is typically a question of trial strategy that appellate
courts are ill-suited to second-guess.” United States v. Luciano, 158 F.3d 655, 660 (2d Cir.
1998) (per curiam). Even “strategic choices made after less than complete investigation” may
be reasonable provided “that reasonable professional judgments support the limitations on
investigation.” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005). 3 Thus, we “will not normally
fault counsel for foregoing [sic] a potentially fruitful course of conduct if that choice also
entails a significant potential downside.” Id. We have serious doubts, however, as to whether
trial counsel’s failure in this case to interview or even contact potential witnesses falls within
the bounds of reasonable professional judgment. We nevertheless conclude that Blanco has
not shown that the outcome of the trial would have been different had trial counsel
contacted and interviewed the witnesses she identifies: Two of those witnesses could only
have offered impeachment evidence as to collateral matters. See, e.g., United States v. Vargas,
920 F.2d 167, 170 (2d Cir. 1990) (declining to find counsel ineffective for calling defense
witnesses whose proffered testimony related only to collateral matters). The others could
only have acted as character witnesses, proffering testimony as to Blanco’s good reputation
and work ethic. Moreover, Blanco’s trial counsel was able to elicit “[f]avorable testimony
concerning Miss Blanco’s behavior . . . through a government witness,” App’x 186, which
avoided the risk of opening the door for the government to attack Blanco’s character. We
therefore see no abuse of discretion in the district court’s determination.

        Third, Blanco criticizes trial counsel’s cross-examination of the government’s two
cooperating witnesses, arguing that counsel passed up valuable opportunities to impeach
each one. We afford “significant deference . . . [to] a trial counsel’s decision how to conduct
cross examination,” and “refus[e] to use perfect hindsight to criticize unsuccessful trial
strategies.” Eze v. Senkowski, 321 F.3d 110, 132 (2d Cir. 2003). For that reason, we have
stated that “[d]ecisions about whether to engage in cross-examination, and if so to what



 3Unless otherwise noted, this Order omits all alterations, citations, and internal quotation marks in text
quoted from case law.


                                                       5
extent and in what manner, are strategic in nature and generally will not support an
ineffective assistance claim.” Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002). Blanco
highlights claimed inconsistencies in those witnesses’ testimony, but the information she
urges her counsel should have sought to elicit does not obviously contradict their statements
and, in some cases, may have corroborated certain other aspects of the government’s case.
Although she stands on firmer ground in her criticism that her counsel’s “ham-handed”
questioning in one instance (to quote the district court), App’x 345, bolstered the
government’s position that an insider was involved with the robbery, the witness did not
suggest (or know, prior to trial) that the insider was Blanco. We thus think the district court
acted well within its discretion in finding this basis did not support her ineffective assistance
claim.

         Fourth, Blanco identifies three purported shortcomings in trial counsel’s opening
statement. He: (1) offered a “theory of justification” as to why Blanco’s then-boyfriend,
Giovanny Marte, an active co-conspirator in the robbery, “‘gave her up [to the authorities],’
not why he lied”; (2) “lowered the bar of proof in the eyes of the jury telling them that all the
government had as proof were details as to what ‘normal boyfriend girlfriends do’”; and (3)
failed to address Blanco’s lies in her pre-arrest interview with the FBI. Appellant’s Br. 35-36.
Only the first of these grounds has any semblance of merit. Addressing the last contention
first, explaining that Blanco may have lied to the FBI because she felt scared or under
pressure would have committed Blanco to testifying as much. It certainly was not
unreasonable for trial counsel to opt not to do so. Indeed, we have long acknowledged that
it often will be preferable for counsel not to commit to a particular position, leaving himself
“free to develop any defense that might materialize as the prosecution presented its case.”
United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Turning to the
boyfriend/girlfriend commentary, Blanco seems to have misunderstood what her trial
counsel actually said. Far from referencing the government’s burden of proof, he attempted
to minimize what it could prove, suggesting there may be evidence of a romantic relationship
but that fell short of a crime. Finally, there can be little question that trial counsel misspoke
in stating that Blanco’s then-boyfriend “gave her up.” Appellant’s Br. 36. Taken in context,


                                                6
he plainly meant that her then-boyfriend would have no qualms about falsely implicating
Blanco. In the face of the evidence adduced by the government, however, it cannot credibly
be argued that the omission of this one sentence from the opening would have resulted in an
acquittal. In sum, Blanco does not prevail on any ground of her ineffective assistance
counsel claim.

    2. Jury Instruction

        Next, Blanco takes the position that the district court’s jury charge was erroneous for
the same reasons as she set forth in her Rule 29 motion: It asked the jury to make a factual
finding as to whether Count One (robbery conspiracy) or Count Two (robbery) (or both)
were crimes of violence. Because Blanco failed to object to this charge in the district court,
we review for plain error. United States v. Marcus, 560 U.S. 258, 262 (2010). For the reasons
described above, we find no such error here. That the jury made an extraneous finding can be
of little doubt. But, for reasons we have described above, there can be equally little doubt
that, in doing so, the error did not affect “the outcome of the district court proceedings,” or
“the fairness, integrity or public reputation of judicial proceedings.” Id. Accordingly, this
claim fails.

    3. Evidentiary Rulings

        Finally, Blanco asserts that the district court erred by admitting certain evidence
relating to her knowledge of Marte’s use of firearms (the “Gun Evidence”), and her
occasional assistance with his narcotics dealing (the “Firearm Evidence”). The district court
based its determination on its conclusion that the Gun Evidence constituted “other act”
evidence under Rule 404(b) of the Federal Rules of Evidence and that the Drug Evidence
was relevant under Rule 401. We review a trial court’s evidentiary rulings “deferentially,” and
“will reverse only for abuse of discretion.” United States v. Quinones, 511 F.3d 289, 307 (2d Cir.
2007). Further, even when we determine that a district court’s evidentiary ruling was
erroneous, we will not order a new trial “if we can conclude with fair assurance that the
jury’s judgment was not substantially swayed by the error.” United States v. Paulino, 445 F.3d
211, 219 (2d Cir. 2006).



                                                7
       Evidence of uncharged criminal activity is admissible as relevant under Rule 401 of
the Federal Rules of Evidence if it “tend[s] to prove the government’s case.” United States v.
Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997). Rule 401 evidence thus includes evidence that
“directly establishes an element of the crime,” but its sweep is not so narrowly confined. Id.
Evidence may also be relevant if it “provide[s] background for the events alleged in the
indictment.” Id. Such “[b]ackground evidence may be admitted to show, for example, the
circumstances surrounding the events or to furnish an explanation of the understanding or
intent with which certain acts were performed.” Id.

       Alternatively, evidence of uncharged criminal activity may be admissible under Rule
404(b) of the Federal Rules of Evidence. Rule 404(b) provides that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). But it may be admissible for other purposes, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2). To be admissible under this rule, however, evidence of
such “other crimes, wrongs, or acts” must (1) be advanced for a proper purpose; (2) be
“relevant to a material issue in dispute”; and (3) have probative value that is not substantially
outweighed by any unfair prejudicial effect. United States v. Scott, 677 F.3d 72, 79 (2d Cir.
2012). In addition, if so requested, the court must provide an appropriate limiting
instruction. See United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006). Our Circuit evaluates
Rule 404(b) evidence under an “inclusionary approach,” and will allow its admission for any
proper purpose other than to show a defendant’s criminal propensity. United States v. Garcia,
291 F.3d 127, 136 (2d Cir. 2002). Nevertheless, our approach “does not obviate the need to
identify the fact or issue to which the evidence is relevant.” United States v. Figueroa, 618 F.2d
934, 939 n.2 (2d Cir. 1980). In other words, we must be able to identify a clear connection
between the prior act evidence and an issue that is disputed at trial.

       Of course, a trial court may in any event reject the admission of any relevant evidence
that does not satisfy Rule 403 of the Federal Rules of Evidence. Rule 403 permits the
exclusion of such evidence “if its probative value is substantially outweighed by a danger


                                                 8
of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

         As an initial matter, we see no error in the district court’s admission of the Drug
Evidence under Rule 401 because it “gave coherence to the basic sequence of events”
underlying the charged criminal conduct. Gonzalez, 110 F.3d at 942. That Blanco and Marte
were not just living together or dating, but that he trusted her to assist in a criminal drug
scheme, could help the jury understand why Blanco—who had no criminal history herself—
was trusted by Marte, who was the robbery conspiracy’s leader, to play a key role in planning
a risky and dangerous bank robbery. 4 Because the district court allowed the admission of
only limited testimony under the Drug Evidence rubric, and, further, gave a limiting
instruction, we identify no abuse of discretion in the court’s Rule 403 balancing.

         We also agree with the district court’s Rule 404(b) determination as to the Gun
Evidence. That evidence was being advanced for a proper purpose: showing that Blanco—
who was (in the district court’s words) a “seemingly legitimate person,” App’x 135—was
aware of and willing to assist in criminal misconduct. In other words, the evidence was
admissible to help the jury understand how a criminal relationship between Blanco and
Marte developed, and to highlight for the jury their relationship of mutual trust (a
relationship that played an important role in the case). See, e.g., United States v. Mercado, 573
F.3d 138, 140-41 (2d Cir. 2009) (holding district court did not err in admitting evidence of
prior firearm sales because “prior dealings between two conspirators show the basis for the
trust between the co-conspirators” and allow jury to distinguish between “innocent acts of a
friend” and “knowing participation in a conspiracy”). Further, the evidence was
unquestionably relevant to the crimes with which Blanco had been charged (most obviously
Count Three, the firearms count). And as for the Rule 403 balancing, the district court
correctly observed that testimony describing Blanco transporting a gun at the behest of

4 For substantially the same reasons, we observe that, even had the Drug Evidence been subject to Rule 404(b), the court
correctly admitted it because it tended to “show[] the development of the relationship Defendant and [Marte], providing
background for the events alleged in the indictment and enabling the jury to understand the complete story of the crimes
charged, or how the illegal relationship between coconspirators developed.” United States v. Mercado, 573 F.3d 138, 141
(2d Cir. 2009).



                                                           9
Marte, learning from him how to use the gun, and having access to his gun in the apartment
they shared was “no more inflammatory than the charged crimes.” United States v. Livoti, 196
F.3d 322, 326 (2d Cir. 1999). Indeed, arguably, it was less inflammatory; and at the same
time, it was highly probative. App’x 137. In addition, as with the Drug Evidence, the court
gave a limiting instruction, helping to maintain the Rule 403(b) balance.

        In any event, of those evidentiary rulings pointed by Blanco, any—if error at all—
were harmless error, because “there is sufficient corroborating evidence to support the
conviction” even without the Drug Evidence and the Gun Evidence. United States v. Colombo,
909 F.2d 711, 714 (2d Cir. 1990). Thus, even assuming that the district court erred, a new
trial (the relief Blanco seeks) is not warranted on this record.

                                                   * * *

        We have considered Blanco’s remaining arguments and conclude that they are
without merit. To the extent that she seeks to raise issues for the first time on appeal or in
her reply brief, we decline to review them and deem them waived. See, e.g., United States v.
Pereira, 465 F.3d 515, 520 n.5 (2d Cir. 2006). For the reasons set forth above, the district
court’s judgment is AFFIRMED. 5

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




 5 We note that, before she was sentenced Blanco filed a pro se motion seeking relief pursuant to 28 U.S.C. §

2255. The district court correctly denied that motion as premature, and ordered the motion terminated. The
court did not adjudicate the motion on its merits, as Blanco’s sentencing had not yet occurred. Should Blanco
file a § 2255 motion after these proceedings have concluded, such a motion would not be a “second or
successive motion” for purposes of 28 U.S.C. § 2255(h).


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