08-6096-cr
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.
        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 26th day of May, two thousand ten.

PRESENT:
                     JOSÉ A. CABRANES,
                     ROBERT A. KATZMANN ,
                                  Circuit Judges,
                     J. GARVAN MURTHA ,
                                  District Judge.*

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UNITED STATES OF AMERICA ,

                     Appellee,

                     v.                                                                No. 08-6096-cr

LUIS DE JESUS, SIXT POLANCO , also known
as MANNY , also known as LUIS ACEVEDO ,

                     Defendants,

JOSE RAFAEL RODRIGUEZ , also known as OLD
MAN , also known as ANGEL RAMIREZ -PELLOT,

                     Defendant-Appellant.

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FOR APPELLANT:                                                 Jose Rafael Rodriguez, pro se, Phillipsburg, PA.


             *
          The Honorable J. Garvan Murtha, United States District Court for the District of
  Vermont, sitting by designation.

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FOR APPELLEES:                                   Robert M. Spector, Assistant United States Attorney,
                                                 (Nora R. Dannehy, United States Attorney, and William J.
                                                 Nardini, Assistant United States Attorney, on the brief)
                                                 United States Attorney’s Office for the District
                                                 Connecticut, New Haven, CT.

Appeal from a judgment of the United States District Court for the District of Connecticut (Robert N.
Chatigny, Judge).

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

        Defendant appeals from the December 9, 2008 judgment of the District Court, convicting
defendant, following a jury trial, of one count of conspiracy to possess and distribute heroin, in violation
of 21 U.S.C. § 846, and sentencing him principally to 51 months’ imprisonment. Defendant also moves
for leave to file a pro se supplemental brief. On appeal, defendant argues (1) that the District Court erred
in admitting certain allegedly prejudicial evidence; (2) that the District Court erred in permitting the
Government to present evidence of a controlled purchase involving a non-testifying cooperating
witness; (3) that the evidence presented at trial was insufficient to support defendant’s conviction; (4)
that the Government violated its proffer agreement; (5) that the jury was not a representative cross-
section of the community; and (6) that a juror was biased. We assume familiarity with the underlying
facts and procedural history of this case.

        First, we consider whether the District Court erred in admitting evidence that defendant had
previously packaged heroin. We review the evidentiary rulings of the District Court for abuse of
discretion. See United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002); cf. Sims v. Blot, 534 F.3d 117, 132
(2d Cir. 2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of
the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be
located within the range of permissible decisions.” (internal alteration, citations, and quotation marks
omitted)).

         Evidence may “be received at trial for any purpose other than to attempt to demonstrate the
defendant’s ‘criminal propensity.’” United States v. Edwards, 342 F.3d 168, 176 (2d Cir. 2003) (quoting
Garcia, 291 F.3d at 136). To determine if the trial court properly admitted evidence pertaining to other
acts, we consider whether: (1) it was offered for a proper purpose; (2) it was relevant to a disputed trial
issue; (3) its probative value is substantially outweighed by its possible prejudice; and (4) the trial court
administered an appropriate limiting instruction. Id. (citing United States v. Pitre, 960 F.2d 1112, 1119 (2d
Cir. 1992)).

        Here, the Government properly sought admission of evidence that defendant had previously
packaged heroin in order to prove defendant’s knowledge that the substance he was handling was
heroin. We conclude that this evidence was offered both for a proper purpose and was relevant to a

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disputed trial issue—namely, defendant’s knowledge that he was handling heroin. The District Court
also gave a limiting instruction ensuring that the jury considered the evidence only for that purpose.
With the District Court’s limiting instruction, we readily conclude that the evidence was more probative
than prejudicial. Accordingly, we conclude that the District Court did not err in admitting this evidence.

         Next, we consider whether the District Court erred in allowing testimony pertaining to a
controlled purchase involving a non-testifying cooperating witness. Because defendant did not object at
trial, we review the District Court’s admission of this evidence for plain error. See United States v. Morris,
350 F.3d 32, 36 (2d Cir. 2003). We can discern no error, much less plain error, in allowing law
enforcement officers to testify at trial regarding a controlled purchase. Accordingly, we conclude that
the District Court did not err in allowing this testimony.

          Also, we consider whether the evidence presented at trial was sufficient to support defendant’s
conviction. Because “the task of choosing among competing, permissible inferences is for the [jury and]
not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001), we are required
to review the evidence “in the light most favorable to the government,” United States v. Gaskin, 364 F.3d
438, 459 (2d Cir. 2004), and “resolve all issues of credibility in favor of the jury’s verdict,” United States v.
Desena, 287 F.3d 170, 177 (2d Cir. 2002). See generally Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). At
trial, the Government introduced evidence that could support the jury’s verdict. Applying the
deferential standard set forth above, we conclude that there was sufficient evidence to support the jury’s
guilty verdict challenged here.

        Finally, we consider the various arguments raised in defendant’s pro se supplemental brief. To
the extent that defendant argues that the Government breached promises made to him in the proffer
agreement, he has provided nothing to support his allegations that such promises were made. To the
extent that defendant argues that the composition of the jury violated his constitutional rights, he fails to
make the required showing to assert such a claim. See United States v. Bullock, 550 F.3d 247, 251 (2d Cir.
2008). And, finally, to the extent that defendant argues that a juror was biased, defendant fails to offer
any support for that argument.

                                          CONCLUSION
        We have considered all of defendant’s arguments presented both in the counseled and the pro se
supplemental brief, and we 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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