         10-2840-cr(L)
         United States v. Rodriguez

                                      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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21st day of November, two thousand twelve.
 5
 6       PRESENT: JOHN M. WALKER, Jr.,
 7                RICHARD C. WESLEY,
 8                PETER W. HALL,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                          -v.-                                     Nos. 10-2840-cr (L),
18                                                                   10-3104-cr (con)
19
20       LUIS RODRIGUEZ,
21
22                                       Defendant-Appellant.
23
24
25       FOR APPELLANT:                  Michael A. Young, New York, NY.
26
27       FOR APPELLEE:                   David C. James, Robert L. Capers and
28                                       Licha M. Nyiendo, Assistant United States
29                                       Attorneys, for Loretta E. Lynch, United
30                                       States Attorney for the Eastern District
31                                       of New York, Brooklyn, NY.
32
33
1         Appeal from the United States District Court for the
2    Eastern District of New York (Trager, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Eastern District of New York be AFFIRMED.

7        Defendant-appellant Luis Rodriguez appeals from an

8    August 2, 2010 judgment of conviction entered by the United

9    States District Court for the Eastern District of New York

10   (Trager, J.), following a jury trial and the district

11   court’s denial of Rodriguez’s motion for a new trial.

12   Rodriguez was convicted of conspiracy to distribute and

13   possess with intent to distribute five kilograms or more of

14   cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

15   and 846; two counts of murder in furtherance of a drug

16   conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A); two

17   counts of murder through use of a firearm, in violation of

18   18 U.S.C. § 924(j)(1), and using and carrying a firearm

19   during and in relation to a drug-trafficking crime, in

20   violation of 18 U.S.C. § 924(c)(1)(A)(iii).

21       On appeal, Rodriguez maintains that (1) the government

22   violated its disclosure obligations under Brady v. Maryland,

23   373 U.S. 83 (1963); (2) there was insufficient evidence to

24   support his convictions; (3) the district court erred in

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1    allowing him to represent himself; (4) the district court

2    erred in denying Rodriguez’s motion to have a witness

3    psychiatrically evaluated; and (5) a cooperating witness

4    perjured himself.   The panel has reviewed the briefs and the

5    record in this appeal and agrees unanimously that oral

6    argument is unnecessary because “the facts and legal

7    arguments [have been] adequately presented in the briefs and

8    record, and the decisional process would not be

9    significantly aided by oral argument.”    Fed. R. App. P.

10   34(a)(2)(C).   We assume the parties’ familiarity with the

11   facts and procedural history of the case.

12       A district court’s denial of a motion for a new trial

13   is reviewed for abuse of discretion.     United States v. Wong,

14   78 F.3d 73, 78 (2d Cir. 1996).    The district court in this

15   case concluded that no new trial was merited under Brady.

16   Under Brady, “‘the suppression by the prosecution of

17   evidence . . . violates due process’” if the evidence is

18   favorable to the accused, the evidence was willfully or

19   inadvertently suppressed by the prosecution, and the

20   suppression results in prejudice.    United States v. Douglas,

21   525 F.3d 225, 244-45 (2d Cir. 2008) (quoting Brady, 373 U.S.

22   at 87).   The suppression of immaterial evidence, even if it


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1    is favorable to the accused, does not violate Brady.      Kyles

2    v. Whitley, 514 U.S. 419, 434 (1995).    To demonstrate

3    materiality, the accused must show that “the favorable

4    evidence could reasonably be taken to put the whole case in

5    such a different light as to undermine confidence in the

6    verdict.”   Id. at 435.   Although suppressed information need

7    not itself constitute admissible evidence, it must at least

8    “potentially lead[] to admissible evidence favorable to the

9    defense.”   United States v. Rodriguez, 496 F.3d 221, 226 n.4

10   (2d Cir. 2007).

11       Rodriguez’s Brady challenge is based on a number of

12   statements by government informants suggesting that one of

13   the people whose murder was the subject of this case was

14   killed by someone other than Rodriguez’s co-conspirators and

15   for a different reason.   The district court analyzed these

16   statements in detail in reference to a similar motion

17   brought by Miguel Santos, one of Rodriguez’s co-defendants,

18   see United States v. Santos, No. CR-01-537, 2010 WL 2985913,

19   at *5-9 (E.D.N.Y. July 27, 2010), aff’d United States v.

20   Santos, No. 10-3218-cr, 2012 WL 2298887, at *2-3 (2d Cir.

21   June 19, 2012), and cited this reasoning when denying

22   Rodriguez’s motion.   In our view, the district court


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1    correctly concluded in Santos that “none of the informants’

2    statements would be admissible at trial or could possibly

3    lead to admissible evidence [because t]hey are all hearsay

4    or speculation.”   Id. at *6.    In addition, substantial

5    corroborating evidence, including telephone records and

6    ballistic evidence, linked Santos and Rodriguez to the

7    shooting.   Id. at *7.   Contrary to Rodriguez’s arguments,

8    the court’s ruling depended on its qualitative analysis of

9    the evidence rather than the timing of Santos’s trial, and

10   thus the reasoning from Santos was properly applied in

11   Rodriguez’s case as well.   There was no abuse of discretion

12   in the court’s ruling that the government’s failure to

13   disclose the informants’ statements did not merit a new

14   trial.

15       Rodriguez’s challenge to the sufficiency of the

16   evidence is reviewed de novo.       United States v. Abu-Jihad,

17   630 F.3d 102, 134 (2d Cir. 2010).      He maintains that

18   evidence regarding a particular amount of stolen money,

19   which allegedly represented the proceeds from a particular

20   quantity of cocaine, was insufficient to establish that

21   cocaine was the drug involved.      The focus of the indictment,

22   however, was not on the particular transaction yielding the


                                     5
1    money at issue but on the general activities of the

2    organization, and the money obtained was not the only

3    evidence indicating that the conspirators were involved with

4    cocaine.   There was also testimony regarding the purchase

5    and transport of cocaine, and the testimony must be taken as

6    true in a challenge to sufficiency of the evidence.     United

7    States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002).

8        The Sixth Amendment guarantees defendants the right to

9    represent themselves at trial so long as “that decision is

10   made intelligently and knowingly, with full awareness of the

11   right to counsel and the consequences of its waiver.”

12   United States v. Tracy, 12 F.3d 1186, 1191 (2d Cir. 1993)

13   (citing Faretta v. California, 422 U.S. 806, 835-36 (1975)).

14   In determining whether a waiver was adequate, “[w]e need not

15   analyze the district court’s every word, so long as the

16   record as a whole demonstrates that the defendant knowingly

17   and intelligently waived [his] right to counsel.”     Torres v.

18   United States, 140 F.3d 392, 401 (2d Cir. 1998).    In this

19   case, the record reflects that the district court engaged in

20   repeated discussions with Rodriguez regarding his choice

21   over the course of four separate status conferences, warned

22   him about the potential practical difficulties of conducting


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1    a trial, and strongly counseled against waiving his right to

2    counsel because it was possible that the government would

3    seek the death penalty.   Rodriguez repeatedly assured the

4    court that he wanted to control his representation and the

5    arguments that were advanced on his behalf.     In addition,

6    not only had Rodriguez been through another federal criminal

7    trial before this one, but he had chosen to represent

8    himself during his previous sentencing as well.     The

9    district court did not err in concluding that Rodriguez

10   “understood [his] rights, knew [his] options, was aware of

11   the risks and voluntarily waived [his] right to counsel.”

12   See Torres, 140 F.3d at 401.

13       We have considered all of Rodriguez’s remaining

14   arguments and find them to be without merit.*    For the

15   reasons stated above, the judgment of the district court is

16   AFFIRMED.
17                               FOR THE COURT:
18                               Catherine O’Hagan Wolfe, Clerk
19
20




         *
          Rodriguez’s perjury claim fails. Rodriguez has
     offered no evidence that Medina did not believe his plea was
     valid or that he faced a maximum sentence of life
     imprisonment–especially as Medina’s plea agreement states
     that his maximum possible sentence was life imprisonment.
     Accordingly, even if Medina’s plea is invalid under Smith v.
     United States, 360 U.S. 1 (1959), there is no basis for
     finding that Medina committed perjury.
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