12-2618-cr
United States v. Minaya

                           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
1st day of November, two thousand thirteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         AMALYA L. KEARSE,
         RICHARD C. WESLEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                   v.                                           No.12-2618-cr

JOSE MINAYA, AKA Leche,

           Defendant-Appellant,

LISANDRO ANTONIO TAVAREZ GUZMAN,

         Defendant.
________________________________________________

For Appellee:                            SANTOSH ARAVIND (Justin Anderson, on the brief),
                                         Assistant United States Attorneys, for Preet Bharara,
                                         United States Attorney for the Southern District of New
                                         York, New York, NY.
For Defendant-Appellant:                  ANDREW H. FREIFELD, Law Office of Andrew Freifeld,
                                          New York, NY.



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

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Jose Minaya appeals from a June 18, 2012, judgment of the United

States District Court for the Southern District of New York (Keenan, J.) convicting him,

following a jury trial, of conspiracy to distribute five kilograms and more of cocaine and 100

grams and more of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii), and

841(b)(1)(B)(i); distribution and possession of heroin, in violation of 21 U.S.C. §§ 812,

841(a)(1), and 841(b)(1)(C); and distribution and possession with intent to distribute 100 grams

and more of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). He

challenges only his conviction for conspiracy to distribute cocaine. Although he admits that he

distributed cocaine, he contends that there was insufficient evidence to prove that he conspired to

distribute as much as five kilograms of cocaine. He argues that the testimony of the key witness

(his co-conspirator, Lisandro Tavarez Guzman) was not specific enough or, in the alternative,

was so incredible that a jury could not have reasonably relied on it. We assume the parties’

familiarity with the facts, the procedural history of the case, and the issues presented for review.

       A defendant “bears a heavy burden” when challenging the sufficiency of the evidence.

United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). We must uphold a jury verdict if

“any rational trier of fact could have found the essential elements of the crime beyond a

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reasonable doubt.” United States v. Persico, 645 F.3d 85, 105 (2d Cir. 2011) (internal quotation

marks omitted). We must also view all evidence in the light most favorable to the government

and “credit[] every inference that the jury might have [reasonably] drawn in favor of the

government.” United States v. Temple, 447 F.3d 130, 136-37 (2d Cir. 2006) (internal quotation

marks omitted).

       Minaya cannot meet this heavy burden. We first reject his contention that Tavarez

Guzman’s testimony was not specific enough to establish the quantity of cocaine that Minaya

conspired to distribute. Tavarez Guzman testified about three primary types of cocaine

transactions in which Minaya participated: (1) sales of small quantities of cocaine, totaling about

40 or 50 grams per week, at a video store owned by Tavarez Guzman in which Minaya was an

employee; (2) sales of 50 or 100 grams per week out of Tavarez Guzman’s minivan after the

video store closed; and (3) four or five wholesale transactions, each of which involved a

kilogram or more of cocaine. Combining the sales from these categories, a reasonable jury could

have concluded that Minaya conspired to distribute at least five kilograms of cocaine.

       For example, with respect to the small transactions in the video store, Tavarez Guzman

estimated sales of, at a minimum, about 40 grams per week, and Minaya worked at the video

store for at least a year and a half (i.e., 78 weeks). Based on Tavarez Guzman’s testimony,

therefore, they sold about 3,120 grams of cocaine (or 3.12 kilograms) from the store during the

relevant period.

       Minaya contends that he cannot be held accountable for all of these sales because he only

worked at Tavarez Guzman’s store part-time. However, a co-conspirator is “responsible not

only for the cocaine that he himself conspired to [distribute] but also for the cocaine his co-


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conspirators conspired to [distribute], provided [that it was within the scope of their conspiracy

and] he knew of his co-conspirator’s illicit activities or the activities were reasonably foreseeable

by him.” United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003). Here, the jury could have

inferred from Tavarez Guzman’s testimony that Minaya was a participant in the conspiracy and

that the total amount of cocaine was reasonably foreseeable to him. Tavarez Guzman testified on

multiple occasions that he and Minaya usually did their drug deals together; Tavarez Guzman

even placed Minaya in control of the operation at times. Moreover, because Minaya helped

package and sell the drugs, the jury could infer that he also had an idea about the amount of

cocaine entering the store and the amount that was sold on a given day. Minaya cannot escape

responsibility for conspiring to distribute these drugs simply because he was not always at the

store when they were sold.

       With respect to the wholesale transactions, Minaya concedes that the jury could have

found that he conspired to distribute two or three kilograms of cocaine through this type of large

sale. See Appellant’s Br. at 44. He also does not challenge Tavarez Guzman’s testimony that

Minaya facilitated a two-kilogram sale of cocaine when Tavarez Guzman was unavailable. The

jury could have reasonably added these two kilograms to the 3.12 kilograms from the video store

to conclude that Minaya had conspired to distribute a total amount of cocaine exceeding five

kilograms. Moreover, this total does not take into account the other wholesale transactions in

which Tavarez Guzman said that Minaya participated or the sales from Tavarez Guzman’s

minivan after the video store closed. Even if there were room for doubt about some of these

transactions, there is no doubt that a reasonable jury could have found that Minaya conspired to

distribute more than five kilograms of cocaine.


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       We also reject Minaya’s claim that Tavarez Guzman’s testimony was too inconsistent

and self-serving to be found credible. Despite offering seemingly contradictory testimony on

direct examination, Tavarez Guzman later clarified that he sold 40 or 50 grams of cocaine per

week in small packages but sometimes sold 100 or 200 grams if buyers came in looking for

larger quantities. The jury was entitled to credit this explanation. Moreover, although Tavarez

Guzman was testifying pursuant to a cooperation agreement in the hope of receiving a reduced

sentence, the defense counsel thoroughly questioned the witness on this matter, and the jury had

the opportunity to consider his credibility. “[T]he credibility of the witnesses . . . [is an issue]

within the province of the jury, and we are not entitled to second-guess the jury’s assessments.”

United States v. Rea, 958 F.2d 1206, 1221-22 (2d Cir. 1992). We find that the jury was entitled

to credit Tavarez Guzman’s testimony.

       We have considered Minaya’s remaining arguments and find them to be without merit.

Accordingly, the judgment of the district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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