16-4038-cr
United States v. Mikhael

                                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 16th day of March, two thousand eighteen.

PRESENT:            JOSÉ A. CABRANES,
                    SUSAN L. CARNEY,
                                 Circuit Judges,
                    LAWRENCE J. VILARDO,
                                 District Judge.*


UNITED STATES OF AMERICA,

                           Appellee,                            16-4038-cr

                           v.

JEAN PIERRE MIKHAEL,

                           Defendant-Appellant.†


FOR APPELLEE:                                               JONATHAN COHEN, Assistant United
                                                            States Attorney (Diane Gujarati, Assistant
                                                            United States Attorney, on the brief), for
                                                            Joon H. Kim, Acting United States


     *
    Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New
York, sitting by designation.
     †
         The Clerk of Court is directed to amend the caption as shown above.

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                                                            Attorney for the Southern District of New
                                                            York, New York, NY.

FOR DEFENDANT-APPELLANT:                                    STEPHEN N. PREZIOSI, Law Office of
                                                            Stephen N. Preziosi, P.C., New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Sidney H. Stein, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 1, 2016 judgment of the District Court be
and hereby is AFFIRMED.

         Defendant-appellant Jean Pierre Mikhael appeals from a December 1, 2016 judgment of the
District Court entered after a jury convicted him of one count of conspiracy to distribute and
possess with the intent to distribute 1,000 kilograms or more of marijuana (“Count One”), in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and one count of distribution of and
possession with the intent to distribute oxycodone (“Count Two”), in violation of 21 U.S.C. §§ 812,
841(a)(1), and 841(b)(1)(C). On appeal, Mikhael argues that: (1) the District Court erred when it
denied Mikhael’s Rule 29 motion for a judgment of acquittal on Count One because the statute of
limitations barred that count as charged in both the indictment of March 19, 2014 (the “Original
Indictment”) and that of February 13, 2015 (the “Superseding Indictment”); (2) the District Court
erred when it denied Mikhael’s Rule 29 motion for a judgment of acquittal on Count Two because
of insufficiency of evidence; (3) the District Court abused its discretion when it admitted evidence of
earlier, uncharged sales of marijuana that predated the charged conspiracy; and (4) his trial counsel
was ineffective because he failed to raise the statutes of limitations issues and agreed to the
admission of the evidence of earlier, uncharged sales of marijuana. Upon review, we conclude that
Mikhael’s arguments are without merit and affirm. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

                                           *        *       *

         Considered independently, the Superseding Indictment was timely filed. Mikhael does not
argue otherwise. Rather, Mikhael contends that the Original Indictment was untimely—a contention
belied by the face of the Original Indictment—and then concludes that the government cannot rely
on the “relation back” doctrine to render the Superseding Indictment timely. Mikhael’s argument
fails for the simple reason that the “relation back” doctrine is irrelevant where the superseding
indictment was “independently timely.” United States v. Ben Zvi, 242 F.3d 89, 98 (2d Cir. 2001); see also
Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 111 (2d Cir. 2013) (noting
that “‘relation back’ doctrine” is only relevant “absent circumstances that would render the newly
asserted claims independently timely”). Here, the February 13, 2015 Superseding Indictment charged
Mikhael with a conspiracy that continued until March 2014. The Superseding Indictment was thus

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filed well within the five-year statute of limitations applicable to conspiracy. Accordingly, we
conclude that the Superseding Indictment under which Mikhael was convicted was not barred by the
statute of limitations. We also reject Mikhael’s argument that the evidence was insufficient to prove
the existence of a single conspiracy spanning the time from 2003 to March 2014. “[W]hether
multiple conspiracies existed is a question of fact for the jury,” United States v. Vazquez, 113 F.3d 383,
386 (2d Cir. 1997), and we will not disturb the jury’s finding that there was a single conspiracy here.

        Mikhael also argues that the District Court erred when it denied his Rule 29 motion for a
judgment of acquittal on Count Two. Mikhael asserts that no rational trier of fact could have found
that he was guilty beyond a reasonable doubt, principally because the government’s trial witness had
serious substance abuse problems and admitted lying in the past, and because that witness’s
testimony on this count was equivocal. We are unpersuaded.

        We review the District Court’s sufficiency decision de novo, but “view the evidence in the
light most favorable to the Government, crediting every inference that could have been drawn in the
Government’s favor, and deferring to the jury’s assessment of witness credibility and its assessment
of the weight of the evidence.” United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015) (internal
quotation marks omitted). Upon such review, we conclude that a rational trier of fact could have
found beyond a reasonable doubt that Mikhael distributed and possessed with the intent to
distribute oxycodone on the basis of the witness’s testimony as corroborated by the text messages
between him and Mikhael. Simply put, the witness’s testimony that Mikhael gave him oxycodone
before a cross-country trip, and that he was “pretty sure” that those pills were 30-milligram
oxycodone pills, App’x at 184, is not so “patently incredible” that it necessitates our “intrud[ing]
upon the jury function of credibility assessment.” United States v. Bell, 584 F.3d 478, 483 (2d Cir.
2009) (internal quotation marks omitted).

         Finally, we conclude that the District Court did not “abuse its discretion” or err when it
admitted, with an appropriate limiting instruction, witness testimony of marijuana sales before the
charged conspiracy began. And because we find Mikhael’s arguments about the statutes of
limitations and the admission of evidence of earlier marijuana sales to be meritless, we also find his
ineffectiveness-of-counsel arguments meritless.

                                           CONCLUSION

        We have reviewed all of the arguments raised by Mikhael on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the December 1, 2016 judgment of the
District Court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk



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