     08-5035-cr
     U nited States v. V allombroso

 1                                    UNITED STATES COURT OF APPEALS
 2                                        FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. W HEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 21 st day of April, two thousand ten.
17
18   PRESENT:              GUIDO CALABRESI,
19                         ROBERT D. SACK,
20                         GERARD E. LYNCH,
21                                         Circuit Judges.
22
23   ------------------------------------------------------------------
24   UNITED STATES OF AMERICA,
25                                             Appellee,
26                            v.                                                  No. 08-5035-cr
27
28   JENNIFER VALLOMBROSO,
29                                             Defendant-Appellant.
30   --------------------------------------------------------------------
31   APPEARING FOR APPELLANT:                          Julia Pamela Heit, New York, New York.
32
33   APPEARING FOR APPELLEE:                           Edward Chang, Assistant United States Attorney
34                                                     (William Nardini, Assistant United States
35                                                     Attorney, of counsel, on the brief), for Nora
36                                                     Dannehy, United States Attorney for the District
37                                                     of Connecticut.

38              Appeal from the United States District Court for the District of Connecticut (Janet

39   Bond Arterton, Judge).

40              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

41   DECREED that the judgment of the district court is AFFIRMED.
 1          A jury convicted Jennifer Vallombroso of conspiracy to distribute five grams or

 2   more of cocaine base in violation of 21 U.S.C. §§846, 841(a)(1) and (b)(1)(B)(iii), and

 3   the district court sentenced her to 120 months imprisonment to be followed by five years

 4   of supervised release. Vallombroso appeals both her conviction and her sentence. We

 5   assume the parties’ familiarity with the relevant facts and procedural history of this case,

 6   and the issues presented in this appeal.

 7   I. Conviction

 8          Vallombroso argues that her conviction was defective because: (1) the

 9   Government failed to prove that she had the requisite intent to join the conspiracy; and (2)

10   the district court erroneously allowed a lay witness to offer expert testimony. Both

11   arguments fail.

12          A. Sufficiency of Evidence

13          “To be guilty of conspiracy, there must be some evidence from which it can

14   reasonably be inferred that the person charged with conspiracy knew of the existence of

15   the scheme alleged in the indictment and knowingly joined and participated in it.” United

16   States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (internal quotation marks omitted).

17   Vallombroso argues that the government failed to prove that she intended to join or

18   participate in the conspiracy.

19          We review a claim of insufficient evidence de novo. United States v. Yannotti, 541

20   F.3d 112, 120 (2d Cir. 2008). The jury’s verdict must be sustained if “any rational trier of

21   fact could have found the essential elements of the crime beyond a reasonable doubt.”



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 1   Jackson v. Virginia, 443 U.S. 307, 319 (1979).

 2            The trial evidence showed that Vallombroso participated in the conspiracy in a

 3   number of ways: by advising her husband during his conversation with the confidential

 4   informant, by speaking on the telephone with the confidential informant, by texting a

 5   potential supplier, and by leaving a voicemail for a potential supplier. The evidence also

 6   showed that during the relevant periods Vallombroso was aware of her surroundings.

 7   This evidence sufficed to permit a jury to find beyond a reasonable doubt that

 8   Vallombroso intentionally participated in the conspiracy.

 9            Vallombroso argues that the evidence showed only that she was trying to obtain

10   drugs to feed her addiction. A reasonable jury could easily find that the desire for drugs

11   explains her motive for joining the conspiracy, and is not inconsistent with an intention to

12   do so.

13            B. Admission of Testimony

14            To preserve a claim that the district court improperly admitted evidence at trial, a

15   party must “stat[e] the specific ground of objection, if the specific ground was not

16   apparent from the context.” Fed. R. Evid. 103(a)(1). “If . . . the party consciously

17   refrains from objecting as a tactical matter, then that action constitutes a true ‘waiver,’

18   which will negate even plain error review.” United States v. Yu-Leung, 51 F.3d 1116,

19   1122 (2d Cir. 1995).

20            Vallombroso argues that the district court erred by allowing the confidential

21   informant to testify as an expert on the effects of methadone. But Vallombroso waived



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 1   this argument by agreeing to allow the informant to testify on this topic.

 2          On the second day of trial, defense counsel told the court that it would offer a

 3   portion of Vallombroso’s medical records that showed both that she was addicted to

 4   drugs and that she was taking methadone during the conspiracy. When the district court

 5   judge admitted those records, the following colloquy ensued:

 6                 The Court: And the understanding here is that when those go
 7                 in, then the government’s entitled on rebuttal to recall Mr.
 8                 Cobb for his vast expertise in drug effects and he will be
 9                 asked about methadone, if he knows anything about that.
10
11                 Defense counsel: Certainly, your Honor.
12
13                 The Court: So does that satisfy you, Mr. Chang?
14
15                 Government: Yes, it would. Thank you, your Honor.
16
17                 The Court: We have our lay pharmacological expert.
18
19                 Government: It’s all we can do at the last second, your
20                 Honor. We just got these records today.
21
22   Defense counsel did not object.

23          We conclude that because defense counsel affirmatively agreed to permit the

24   informant to testify about methadone’s effects, Vallombroso waived the argument she

25   makes on appeal, and we need not reach it.

26          Even if Vallombroso did not waive this argument, she forfeited it because she

27   failed to object to the testimony at trial on the ground she now raises on appeal.1 See Yu-

28   Leung, 51 F.3d at 1122 (where party’s failure to object to evidence is “a matter of
     1
       Defense counsel objected to portions of the informant’s testimony on the bases of, inter
     alia, lack of personal knowledge and lack of foundation. But none of these objections
     suggested that the informant’s testimony was improper expert testimony.

                                                  4
 1   oversight, then such oversight qualifies as a correctable ‘forfeiture’). In that case, we

 2   would review her argument for plain error. See United States v. Dukagjini, 326 F.3d 45,

 3   60-61 (2d Cir. 2003) (applying “plain error” test where defense counsel objected to the

 4   admission of testimony on appeal but did not clearly object at trial). To demonstrate plain

 5   error, Vallombroso must show: “(1) error, (2) that is plain, and (3) that affects substantial

 6   rights. If all three conditions are met, an appellate court may then exercise its discretion

 7   to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,

 8   or public reputation of judicial proceedings.” United States v. Polouizzi, 564 F.3d 142,

 9   154 (2d Cir. 2009) (internal quotation marks, citations, and brackets omitted). Any error,

10   if there was one, did not affect Vallombroso’s substantial rights because the disputed

11   testimony was at best tangential to the main issue of whether Vallombroso intended to

12   join the conspiracy. Thus the district court did not plainly err by admitting the

13   informant’s testimony.

14   II. Sentence

15          We review sentences under a “deferential abuse-of-discretion standard.” United

16   States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc), quoting Gall v. United

17   States, 552 U.S. 38, 41 (2007). In coming to a procedurally reasonable sentence, a

18   district court must consider the factors listed in 18 U.S.C. § 3553(a), including the

19   advisory Sentencing Guidelines range, and “conduct its own independent review of the

20   sentencing factors, aided by the arguments of the prosecution and defense,” in order to

21   reach “an informed and individualized judgment . . . as to what is ‘sufficient, but not



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 1   greater than necessary’ to fulfill the purposes of sentencing.” Id., quoting 18 U.S.C. §

 2   3553(a).

 3          Vallombroso argues that her sentence was procedurally unreasonable for three

 4   reasons. First, she says the court incorrectly presumed that the Sentencing Guidelines

 5   should apply. But the court made no such presumption. It recognized that the Guidelines

 6   are “only the advisory starting point for the Court’s analysis,” and said that the court “is .

 7   . . not bound beyond the point of considering them.”

 8          Second, Vallombroso argues that the district court failed to consider the sentencing

 9   disparity between crack cocaine and powder cocaine. But the record shows the opposite.

10   The judge calculated what Vallombroso’s offense level and Guidelines range would have

11   been for the equivalent amount of powder cocaine, and she asked the Government for

12   guidance on how to exercise her discretion to consider the disparity. Ultimately, the

13   judge said she was “deeply troubled” by the disparity and that she was “aware that I can

14   take that into consideration,” but she “nonetheless . . . reached the conclusion that a

15   sentence of 120 months is the appropriate sentence.”

16          Third, Vallombroso argues that the district court miscalculated the quantity of

17   drugs because it incorrectly included drugs intended for her personal use. But the court

18   only considered drugs that the confidential informant purchased and that the Government

19   then kept in custody. Those drugs were not available for her personal use. Her sentence

20   was therefore not procedurally unreasonable on any of the above grounds.




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 1          Nor was it substantively unreasonable. The district court explicitly stated that it

 2   had considered the § 3553(a) factors, and noted that the sentence should promote respect

 3   for the law, afford adequate deterrence, and protect the public before sentencing

 4   Vallombroso to the bottom of the unchallenged guidelines range of 120 to 150 months

 5   imprisonment. Given Vallombroso’s extensive criminal history, this sentence was well

 6   within the limits of the district court’s discretion. See id. (“We will . . . set aside a

 7   district court’s substantive determination only in exceptional cases where the trial court’s

 8   decision cannot be located within the range of permissible decisions.” (emphasis and

 9   internal quotations marks omitted)).

10          For the foregoing reasons, the judgment of the district court is AFFIRMED.

11
12                                        FOR THE COURT:
13                                        CATHERINE O’HAGAN WOLFE, Clerk of Court
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