14-3837 (L)
United States v. Peña

                          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, at 40 Foley Square, in the City of New York, on
the 15th day of March, two thousand sixteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RAYMOND J. LOHIER, JR.,
         CHRISTOPHER F. DRONEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                          v.                                          Nos. 14-3837, 15-0119

RAFAEL FRANCISCO, a/k/a 67, OMAR FLORES, JOSE
SANCHEZ-FERNANDEZ, a/k/a Eddie, ELYN REYNOSO,
a/k/a BB, VLADIMIR DELACRUZ, a/k/a Vladi,

                          Defendants,

HECTOR RAYMOND PEÑA, a/k/a C.O. Montana, JOSE
PEÑA, a/k/a Chelo,

                     Defendants-Appellants.
________________________________________________

For Appellee:                    Laurie A. Korenbaum, Micah W.J. Smith, Margaret Garnett,
                                 Assistant U.S. Attorneys, for Preet Bharara, U.S. Attorney for
                                 the Southern District of New York, New York, NY.

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For Defendant-Appellant
Hector Raymond Peña:              Jane Fisher-Byrialsen, Fisher & Byrialsen PLLC, New York,
                                  NY.

For Defendant-Appellant
Jose Peña:                        Elizabeth E. Macedonio, New York, NY; Matthew B. Keller,
                                  New York, NY.


       Appeal from the United States District Court for the Southern District of New York

(Marrero, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgments of the district court are AFFIRMED.

       Defendants Hector Raymond Peña and Jose Peña appeal from judgments of conviction

entered on October 3, 2014, and December 19, 2014, respectively, in the United States District

Court for the Southern District of New York (Marrero, J.). The charges against the defendants

arose from the deaths of Pedro Medina, Jose Suarez, and Juan Carmona in 1997. The

government alleged that Hector Peña and certain co-conspirators were hired by members of a

drug ring known as “Solid Gold” to murder Pedro Medina, a drug dealer operating on

Manhattan’s Lower East Side, in order to take over his territory. The government further alleged

that, less than two months later, Hector Peña, his brother, Jose Peña, and co-conspirators were

hired by a drug dealer named Jose Acosta to murder Jose Suarez and Juan Carmona in revenge

for the death of Acosta’s brother during a drug robbery. Following a two-week jury trial, Hector

Peña was convicted of three counts of murder for hire in violation of 18 U.S.C. § 1958, two

counts of conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958, and three

counts of murder through use of a firearm during a crime of violence in violation of 18 U.S.C. §

924(j). Jose Peña was convicted of two counts of murder for hire in violation of 18 U.S.C. §

1958, one count of conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958, and

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two counts of murder through use of a firearm during a crime of violence in violation of 18

U.S.C. § 924(j). We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

   I. Hector Peña’s Appeal

       In a counseled brief, Hector Peña argues that the district court abused its discretion by

denying his request to continue the trial date. Trial was originally set to begin on May 21, 2012.

After the trial date was adjourned several times to June 10, 2013, at either the government’s

request or on the joint request of the parties, the government requested a further adjournment so

that the Peñas could be tried jointly with a newly added defendant, Vladimir Delacruz. Over the

Peñas’ objection, the court adjourned the trial date to October 15, 2013, warning counsel, “I will

not allow any further delays after the four months that I have now indicated I am prepared to

consider.” Hector Peña App. 68–71. On August 21, 2013, Hector Peña’s appointed counsel

requested that the trial date be further adjourned to a date in February 2014 because of a

scheduling conflict that he had previously failed to bring to the court’s attention. The district

court denied the adjournment and appointed new counsel to represent Hector Peña at trial, which

went forward on October 15, 2013.

       Hector Peña now argues that the district court’s refusal to adjourn the trial date

constituted an abuse of discretion and deprived him of the right to counsel of his choice. This

argument lacks merit. A district court has “broad discretion … on matters of continuances,”

Morris v. Slappy, 461 U.S. 1, 11 (1983), and we will reverse for abuse of that discretion only

when the denial of the requested continuance “was an ‘arbitrary action that substantially

impaired the defense,’” United States v. O’Connor, 650 F.3d 839, 854 (2d Cir. 2011) (quoting

United States v. Beverly, 5 F.3d 633, 641 (2d Cir. 1993)). Here, the district court based its



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decision on the interest of the defendants in a speedy trial, the demands on the court’s schedule

and docket, and defense counsel’s failure to bring the conflict to the court’s attention in a timely

manner. Given these considerations, the district court was well within its discretion to deny a

continuance. Furthermore, as an indigent defendant, Hector Peña had no right to counsel of his

choice. See United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) (“[T]he right to counsel

of choice does not extend to defendants who require counsel to be appointed for them.”). Nor has

he argued that the attorneys who represented him at trial rendered ineffective assistance.

Accordingly, he has not carried his burden to demonstrate that the denial of a continuance

“substantially impaired the defense.” O’Connor, 650 F.3d at 854 (quoting Beverly, 5 F.3d at

641).

        In a supplemental pro se brief, Hector Peña further argues, first, that the government

failed to present sufficient evidence that he received anything of pecuniary value in exchange for

committing the murders or that he used a facility of interstate commerce; second, that the district

court abused its discretion by admitting testimony regarding and photographs of the condition of

the victims’ bodies when they were discovered; and third, that the murder-for-hire statute is

unconstitutional. These arguments also lack merit.

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

States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). Although we review such a claim de novo,

we must view the evidence in the light most favorable to the government, and we may “enter a

judgment of acquittal only if the evidence that the defendant committed the crime alleged is

nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.”

United States v. Temple, 447 F.3d 130, 136 (2d Cir. 2006) (quoting United States v. Guadagna,

183 F.3d 122, 130 (2d Cir. 1999)).



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       The federal murder-for-hire statute prohibits commission of murder “as consideration for

the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary

value,” which it defines as “anything of value in the form of money, a negotiable instrument, a

commercial interest, or anything else the primary significance of which is economic advantage.”

18 U.S.C. § 1958; see also United States v. Frampton, 382 F.3d 213, 217 (2d Cir. 2004) (holding

that the murder-for-hire statute criminalizes “only those instances in which one party agrees to

commit a murder in exchange for another party’s provision (or future promise) of payment”).

Here, the evidence amply demonstrated that Hector Peña was promised and actually received

things of pecuniary value in exchange for the murders of Pedro Medina, Jose Suarez, and Juan

Carmona. Regarding the Medina murder, one of the government’s cooperating witnesses, Ramon

Flores, testified that he promised Hector Peña and a co-conspirator “$6,000 and whatever Pedro

had on him,” Tr. 230, to carry out the murder, and in fact paid them almost $6,000 and gave

them a Jaguar vehicle after it was complete. Regarding the Suarez and Carmona murders, Flores

testified that Hector Peña, Jose Peña, and an accomplice received an up-front payment from Jose

Acosta, the drug dealer who ordered the hit. Another cooperating witness, Bernardo Sabino,

testified that he delivered an additional payment to the Peñas and their accomplices on Acosta’s

behalf after they carried out the murders. Yet another cooperating witness, Jose Martes, testified

that, before the murders, Hector Peña told him that the contract with Acosta was worth $30,000.

This evidence was plainly sufficient to sustain the jury’s verdict with respect to the pecuniary

gain element. See 18 U.S.C. § 1958(a).

       Hector Peña further argues that the government failed to meet its burden with respect to

the jurisdictional element of the murder-for-hire statute, which requires the government to prove

“travel in interstate or foreign commerce, or … use [of] the mail or any facility of interstate or



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foreign commerce.” 18 U.S.C. § 1958(a). However, Flores testified that he used a pay phone to

contact Hector Peña about the Medina murder on more than one occasion. Similarly, Sabino

testified that he used a pay phone to notify Acosta when the murders were about to be carried

out. The parties entered a stipulation that “all pay phones in New York City including those

providing service from in or about 1994 through in or about 2002 have the capability of placing

and receiving long distance phone calls, including out of state and international phone calls.”

Accordingly, the evidence was sufficient to satisfy the statute’s jurisdictional element. See

United States v. Perez, 414 F.3d 302, 305 (2d Cir. 2005).

       The second argument raised in Hector Peña’s pro se brief is that the district court abused

its discretion by admitting testimony about the condition of Jose Suarez’s and Juan Carmona’s

bodies at the time they were discovered and photographs of the victims’ wrists. At trial, Barbara

Butcher, a forensic investigator from the New York City Medical Examiner’s Office, testified

that the victims’ bodies were extensively charred in a way that suggested that they had been

burned after death. She testified that one of the bodies had a plastic “flex cuff” on one wrist, and

that the other had a pair of metal handcuffs looped around his wrist. Defense counsel did not

object to the admission of this testimony. The court also admitted, without objection, crime scene

photographs showing the victims’ extremities. However, the court denied the government’s

request to admit photographs of Juan Carmona’s body for the purpose of rebutting the defense’s

argument that he may have been alive at the time he and Jose Suarez were discovered inside the

burning car. Hector Peña now argues that the testimony and photographs should have been

excluded under Rule 403 of the Federal Rules of Evidence.

       Rule 403 provides that relevant evidence may be excluded at trial if “its probative value

is substantially outweighed by a danger of … unfair prejudice[.]” Fed. R. Evid. 403. A district



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court has “broad discretion” over the admission of evidence, and we will find that it abused that

discretion “only when the court has ‘acted arbitrarily or irrationally.’” United States v. Nektalov,

461 F.3d 309, 318 (2d Cir. 2006) (quoting United States v. SKW Metals & Alloys, Inc., 195 F.3d

83, 88 (2d Cir. 1999)). Where, as here, an objection has not been raised below, we review only

for plain error. United States v. Marcus, 560 U.S. 258, 262 (2010). Under that standard, the

defendant must demonstrate that “(1) there is an ‘error’; (2) the error is ‘clear or obvious, rather

than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights,

which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and

(4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” Id. (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

        Hector Peña has failed to demonstrate that the district court’s evidentiary decisions

constituted plain error. Both Butcher’s testimony regarding the condition of the bodies and the

crime scene photographs showing restraints on the victims’ wrists were relevant to corroborate

the cooperating witnesses’ descriptions of how the murders were carried out and to rebut the

defense’s contention that their testimony was inconsistent with that of the witnesses who

discovered the bodies. While this evidence may have been shocking, “[p]robative evidence is not

inadmissible solely because it has a tendency to upset or disturb the trier of fact.” United States

v. Salameh, 152 F.3d 88, 123 (2d Cir. 1998). In light of the substantial probative value of the

challenged evidence, the district court did not abuse its discretion, much less commit plain error,

by failing to exclude it.

        Finally, Hector Peña makes a cursory argument that the murder-for-hire statute is

unconstitutional because it “overrule[s] the authority of the State of New York to police within

it’s [sic] borders crimes by the use or with the use of the telephone.” Hector Peña Supp. Br. 10.



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We have previously rejected a similar challenge to the murder-for-hire statute on the ground that

the regulation of a facility of interstate commerce falls squarely within Congress’s Commerce

Clause power. See United States v. McGriff, 287 Fed. App’x 916, 918 (2d Cir. 2008) (summary

order) (“[A] showing that a regulated activity substantially affects interstate commerce is

unnecessary when Congress regulates activity involving an instrumentality or facility of

interstate commerce.” (citing United States v. Gil, 297 F.3d 93, 100 (2d Cir. 2002))). Hector

Peña provides no basis to disturb that conclusion.

   II. Jose Peña’s Appeal

       Jose Peña argues first, that the government failed to present sufficient evidence that he

received anything of pecuniary value in exchange for committing the murders. This argument

fails for substantially the same reasons as discussed above with respect to Hector Peña. Bernardo

Sabino testified that, before the murders, he told Jose Peña and an accomplice that “there was

going to be a job for them,” and explained “what [Acosta] wanted to do” and that “[Acosta] was

willing to pay for [it].” Tr. 636–37. Ramon Flores testified that Jose Peña and the other

conspirators received an up-front payment before the murders, and Sabino testified that he paid

them the balance after the murders were complete. This evidence is more than sufficient to

support the jury’s verdict with respect to the pecuniary value element of 18 U.S.C. § 1958(a).

       Second, Jose Peña argues that the district court abused its discretion by admitting

evidence that he sold cocaine for Solid Gold and that he once enforced a drug debt owed to Solid

Gold. Jose Peña argues that this evidence was inadmissible under Rule 404(b) of the Federal

Rules of Evidence because the charged conduct — the murders of Jose Suarez and Juan

Carmona — was unconnected to Solid Gold. Before trial, the district court initially denied the

government’s motion in limine to admit this evidence. However, in its motion for



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reconsideration, the government argued that the evidence was relevant to establish the

relationship of trust and criminality between Jose Peña and the members of Solid Gold. This

context was relevant, the government argued, to explain why Jose Peña would openly discuss his

participation in the Suarez and Carmona murders with cooperating witnesses who were members

of Solid Gold. The district court then ruled the evidence admissible.

       Rule 404(b) provides that evidence of prior bad acts is “not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in accordance

with the character,” but “may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b). We have “adopted an ‘inclusionary’ approach to other act

evidence under Rule 404(b), which allows such evidence to be admitted for any purpose other

than to demonstrate criminal propensity.” United States v. LaFlam, 369 F.3d 153, 156 (2d Cir.

2004) (quoting United States v. Edwards, 342 F.3d 168, 176 (2d Cir. 2003)). To determine

whether such evidence was properly admitted, we consider “whether (1) it was offered for a

proper purpose; (2) it was relevant to a material issue in dispute; (3) its probative value is

substantially outweighed by its prejudicial effect; and (4) the trial court gave an appropriate

limiting instruction to the jury if so requested by the defendant.” Id. As with other evidentiary

rulings, we review for abuse of discretion. Id. at 155.

       In this case, the district court did not abuse its discretion by admitting the evidence of

Jose Peña’s past acts. The evidence was admitted for the proper purpose of explaining the

“mutual trust” between Jose Peña and the cooperating witnesses who testified about

incriminating statements that he made to them. See United States v. Rosa, 11 F.3d 315, 334 (2d

Cir. 1993). It was relevant to the cooperating witnesses’ credibility, which the defendants



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repeatedly attacked on cross-examination and in summation. Furthermore, any prejudice did not

substantially outweigh its probative value, as the evidence about Jose Peña’s drug-related

activities was not “more sensational or disturbing” than the conduct with which he was charged.

United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990).

       We have considered the defendants’ remaining arguments and find them to be without

merit. For the reasons given, we AFFIRM the judgments of the district court.

                                                    FOR THE COURT:
                                                    Catherine O=Hagan Wolfe, Clerk




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