12-4188-cr
United States v. DeLaRosa


                                 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
20th day of December, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            RICHARD C. WESLEY,
            DEBRA ANN LIVINGSTON,
                         Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                   Appellee,

                            v.                                     Nos. 12-4188-cr

NOEL DELAROSA,

                   Defendant-Appellant,

JOHN ORLANDO BROOKER, JR., JEREMY D. ZULLO, ZACHARY ADAM GRANT,
MICHAEL ROSS ROSS, JR., GRAYTZ MORRISON, AKA SPACE, AKA SPIZZY,
DONALD CHRISTOPHER PERKINS, JR., AKA D.P., SHAWN A. FRANCIS, AKA S.O.,
ALAN HORICK, GREGORY FLAKE, AKA TONE, THOMAS LUZADER, JERIMIAH JOEL
DURFEE, AKA J-FRO, LAMAR LARRY JOHNSON, AKA BLUB, WILLIAM COREY
WARNER, DANIEL F. WEBSTER, JR., AKA D2, MILES EDWARDS, JULIAN VICTOR DATIL-
RODRIGUEZ, BRIAN KEITH DOMINGO, AKA BRAWLI, AKA GHOST FACE,
LEROY J. RICE, AKA KINFOLK, DANIEL LUGO, AKA FAT ANTHONY, EVELIO BARO,
MOISES ORTIZ, ANTOINE MATHIS,

            Defendants.*
_____________________________________

FOR NOEL DELAROSA:                                           MATTHEW W. BRISSENDEN, Garden City, NY.

FOR APPELLEE:                                                 CRAIG S. NOLAN, Assistant United States
                                                              Attorney (Paul J. Van De Graaf, Assistant
                                                              United States Attorney, on the brief), for
                                                              Tristram J. Coffin, United States Attorney,
                                                              United States Attorney’s Office for the
                                                              District of Vermont, Burlington, VT.


        Appeal from a judgment of conviction, entered October 17, 2012, of the United States
District Court for the District of Vermont (Christina Reiss, Chief Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that judgment of the District Court is AFFIRMED.
         Noel DeLaRosa (“DeLaRosa”) appeals from a judgment of the United States District Court
for the District of Vermont, sentencing him principally to 300 months’ imprisonment for conspiracy
to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. On appeal, DeLaRosa raises a number of issues relating
to the validity of his conviction at trial. We assume the parties’ familiarity with the underlying facts
and the procedural history of the case, to which we refer only as necessary to explain our decision to
affirm.
                                              BACKGROUND
         On June 16, 2009, federal agents arrested narcotics traffickers in Vermont stemming from an
investigation into cocaine and firearms trafficking by John Orlando Brooker, Jr. (“Brooker) and his
associates in Rutland, Vermont. Thereafter, the government built a case against DeLaRosa, his
cousin Daniel Lugo (“Lugo”), and other Schenectady, New York-based conspirators for their supply
of cocaine and marijuana to Brooker. On June 16, 2010, a grand jury returned a 28-count Third
Superseding Indictment (the “Indictment”), which, inter alia, charged DeLaRosa with conspiring
with Brooker, 22 others named in the indictment, and “others known and unknown” to distribute
five kilograms or more of cocaine “in the District of Vermont and elsewhere” from early 2006 to
“on or about June 16, 2009,” in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B).


        * The Clerk of Court is directed to amend the caption of this case to conform to the listing of the parties
shown above.
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        DeLaRosa proceeded to trial. On May 17, 2011, after ten days of evidence, the jury found
DeLaRosa guilty of the conspiracy charged in count one.1 Because, subsequent to trial, DeLaRosa’s
relationship with his attorney had substantially deteriorated, the District Court granted DeLaRosa’s
motion to have new counsel appointed. The new attorney filed a motion for a judgment of
acquittal, and for a new trial based upon claims of ineffective assistance of counsel and newly
discovered evidence. The District Court denied the motions and sentenced DeLaRosa to 300
months’ incarceration. This appeal followed.
                                                 DISCUSSION
                                                          I
        The first issue on appeal is whether the District Court erred in admitting evidence of so-
called “other bad acts.” See Fed. R. Evid. 404(b)(1). DeLaRosa contends that the charged
conspiracy—the object of which was supplying Brooker’s Vermont-based operations—terminated
upon Brooker’s arrest on June 16, 2009. Accordingly, DeLaRosa argues, the Court erred in
permitting evidence at trial of drug trafficking in Arizona postdating June 16, 2009.
        A single conspiracy exists where the government has shown “that each alleged member
agreed to participate in what he knew to be a collective venture directed toward a common goal.”
United States v. Martino, 664 F.2d 860, 876 (2d Cir. 1981). We traditionally examine several factors to
determine when a single conspiracy exists, including the overriding goal of the conspiracy; the core
group who led the conspiracy; if the individual operations shared common participants; if the
individual schemes were independent; and if the participants used distinctive means and methods
common among the individual operations. United States v. Berger, 224 F.3d 107, 115 (2d Cir. 2000).
In addition, “shifting emphases in the locales of operations [do not] necessarily convert a single
conspiracy into multiple conspiracies,” and “a single conspiracy is not transformed into multiple
conspiracies merely by virtue of the fact that it may involve two or more phases or spheres of
operation.” United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990).
        In this case, the District Court could properly held that operations in Schenectady were led
by a core group of participants (with DeLaRosa as the main supplier) and constituted a “collective
venture directed toward a common goal”—namely, the acquisition of narcotics from distributors in
New York, Florida, and Arizona and their delivery in wholesale and retail quantities to customers in
Vermont, New York, and Massachusetts. Trial testimony established that one of DeLaRosa’s many
underlings would travel to either New York, Florida, or Arizona to purchase, or attempt to
purchase, the narcotics, transport them to DeLaRosa’s operations in Schenectady, where they would
be reprocessed, and then delivered by DeLaRosa’s couriers primarily to Brooker, but also to other
customers. The conspiracy did not terminate once operations began to shift away from Vermont
because one customer—albeit DeLaRosa’s largest customer, Brooker—had been arrested. See United

         1 The only other count under which DeLarosa was charged was count 24, which sought forfeiture of the illegal

drug proceeds of the conspiracy charged in count 1.
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States v. Sir Kue Chin, 534 F.2d 1032, 1035 (2d Cir. 1976) (“[T]here is no more reason to say that a
supplier of narcotics is necessarily engaged in two conspiracies because he has two sources of supply
than there would be because he had two purchasers.”). Accordingly, evidence of trafficking
narcotics from Arizona into Massachusetts was not evidence of prior bad acts (which arguably was
excludable from evidence), but rather, direct evidence of the single drug-trafficking conspiracy
orchestrated by DeLaRosa.2
        In the alternative, DeLaRosa argues that the admission of evidence of trafficking in Arizona
postdating July16, 2009 amounts to a constructive amendment of the Indictment or, alternatively,
created a prejudicial variance between the Indictment and the proof adduced at trial. An indictment
has been constructively amended “[w]hen the trial evidence or the jury charge operates to broaden[ ]
the possible bases for conviction from that which appeared in the indictment,” and “[a] variance
occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial
proves facts materially different from those alleged in the indictment.” United States v. Rigas, 490
F.3d 208, 225-26 (2d Cir. 2007) (internal quotations omitted).
         The Indictment here averred that the conspiracy occurred “in the District of Vermont and
elsewhere” from early 2006 to “on or about June 16, 2009.” Accordingly, evidence that DeLaRosa’s
organization unlawfully distributed narcotics after Brooker’s arrest in states other than Vermont is
encompassed by the plain terms of the Indictment. See, e.g., United States v. McGee, 564 F.3d 136, 142
(2d Cir. 2009) (“Where an indictment charges an offense using the ‘on or about’ formulation to
allege the date, the government is not required to prove that the crime occurred on exactly the date
named, but only that it occurred on a date that is ‘reasonably near’ to the date stated.”); United States
v. Williams, 612 F.3d 417, 424 (6th Cir. 2010) (no fatal variance where indictment alleged conspiracy
to distribute drugs “in the Western District of Michigan, and elsewhere” because, “at trial, the
government proved just that: [defendant] conspired to distribute cocaine ‘in the Western District of
Michigan’ (Lansing), ‘and elsewhere’ (Detroit)”).
                                                             II
        We turn next to DeLaRosa’s claims of ineffective assistance of counsel. DeLaRosa first
argues that his counsel should have objected to his brief presentation in court in shackles in the
presence of the jury panel during jury selection. However, “an inadvertent view by jurors of
defendants in handcuffs, without more, is not so inherently prejudicial as to require a mistrial.”
United States v. Taylor, 562 F.2d 1345, 1359 (2d Cir. 1977); see also Ghent v. Woodford, 279 F.3d 1121,
1133 (9th Cir. 2002) (“brief or inadvertent” view of defendant in shackles by jury insufficient to
establish actual prejudice). Moreover, co-defendant Lugo moved for a mistrial based on the



         2 Assuming arguendo that the District Court erred in admitting evidence postdating the charged conspiracy, that
error was harmless in light of the overwhelming evidence of DeLaRosa’s guilt. See United States v. Paulino, 445 F.3d 211,
219 (2d Cir. 2006) (“An evidentiary error not affecting substantial rights is harmless if [this Court] can conclude with fair
assurance that the jury’s judgment was not substantially swayed by the error.” (internal quotations omitted)).
                                                              4
incident, which the District Court denied, so any motion by DeLaRosa’s original trial counsel would
have been cumulative and unnecessary.
        DeLaRosa also argues that his counsel failed to cross-examine witnesses aggressively and
present favorable arguments on his behalf. After a review of the record, however, we conclude
DeLaRosa’s counsel’s decisions concerning these matters were neither deficient nor prejudicial.
          Lastly, DeLaRosa claims his counsel was ineffective for failing to challenge venue in
Vermont. Rule 18 provides that “the government must prosecute an offense in a district where the
offense was committed.” Fed. R. Crim. P. 18. As the crime of conspiracy is a “continuing offense,”
it may be prosecuted in any district in which it was “begun, continued, or completed.” 18 U.S.C.
§ 3237(a). Accordingly, venue in a conspiracy prosecution is proper “in any district in which an
overt act in furtherance of the conspiracy was committed by any of the coconspirators.” United
States v. Rosa, 17 F.3d 1531, 1541 (2d Cir. 1994). A defendant “need not have been present in the
district” to be prosecuted there on a conspiracy charge, United States v. Naranjo, 14 F.3d 145, 147 (2d
Cir. 1994), or “have actual knowledge that an overt act will occur in a particular district to support
venue at that location,” United States v. Rommy, 506 F.3d 108, 123 (2d Cir. 2007).
        In this case, several co-conspirators testified about numerous Vermont connections,
including the frequent deliveries of cocaine from New York to Vermont and subsequent distribution
in Vermont. Accordingly, the requirements of venue are satisfied.3
                                                            III
          DeLaRosa argues next that the government knew or should have known that several
witnesses had committed perjury either at trial or before the grand jury. To secure a new trial on
such grounds, a defendant must show, inter alia, that the witness actually committed perjury, United
States v. Josephberg, 562 F.3d 478, 494 (2d Cir. 2009), defined as “giv[ing] false testimony concerning a
material matter with the willful intent to provide false testimony.” United States v. Dunnigan, 507 U.S.
87, 94 (1993). A review of the record reveals no evidence of perjury inasmuch as the testimony at
issue was either immaterial, the result of faulty memory, subject to extensive cross examination, or
true.




          3 DeLaRosa also argues that his trial counsel elicited harmful and otherwise inadmissible evidence about

DeLaRosa’s prior federal conviction in the Northern District of New York for narcotics sales, and his subsequent status
as a cooperating witness at the time of the alleged offense. As this issue was not raised in DeLaRosa’s post-trial
submission to the District Court, and it was only touched upon briefly in the post-trial proceedings, we refrain from
deciding this issue on direct review. See United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010) (“When ineffective
assistance of counsel is first raised in a court of appeals on direct review of a conviction, it is often preferable for the
court to decline to consider the claim, awaiting its presentation in a collateral proceeding.”). DeLaRosa may pursue this
argument in a subsequent § 2255 petition, however. See Mui v. United States, 614 F.3d 50, 57 (2d Cir. 2010) (defendant
who raised on direct appeal ineffective assistance of counsel claims was not precluded from raising new ineffective
assistance claims in a subsequent § 2255 petition). The other arguments of ineffectiveness of counsel are, of course,
resolved by this order.
                                                             5
                                                  IV
         Finally, DeLaRosa argues on appeal that his right to a jury trial was violated because he was
subjected to a mandatory minimum enhancement based on the District Court’s finding that he had
been previously convicted of a prior drug felony. DeLaRosa relies on the Supreme Court’s recent
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that a fact that increases a
mandatory minimum sentence, such as drug quantity, must be found by a jury. See id. at 2155. In
Alleyne, however, the Supreme Court explicitly acknowledged that it was not revisiting Almendarez-
Torres v. United States, 523 U.S. 224 (1998), which held that a sentencing court may rely upon the fact
of a prior conviction without a jury finding in order to expose a defendant to greater punishment.
See Alleyne, 133 S. Ct. at 2160 n.1. Accordingly, Almendarez-Torres is still binding on this Court, and
this final claim on appeal must be rejected.
                                          CONCLUSION
       We have considered all of the arguments raised by DeLaRosa on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s October 17, 2012
judgment.
                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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