         10-0742-cr
         United States v. Magassouba

                                 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 11th day of May, two thousand eleven.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                GERARD E. LYNCH,
 8                DENNY CHIN,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                10-0742-cr
18
19       MOUSTAPHA MAGASSOUBA,
20
21                                     Defendant-Appellant.
22
23
24
25       FOR APPELLANT:                JILLIAN S. HARRINGTON, Monroe Township,
26                                     NJ.
27
28       FOR APPELLEE:                 NATALIE LAMARQUE, Assistant United States
29                                     Attorney (Daniel A. Braun, Assistant
30                                     United States Attorney, on the brief),
31                                     for Preet Bharara, United States Attorney
32                                     for the Southern District of New York,
33                                     New York, NY.
1         Appeal from the United States District Court for the
2    Southern District of New York (Patterson, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

5    AND DECREED that the judgment of the district court be

6    AFFIRMED.

7        Defendant-Appellant Moustapha Magassouba appeals from a

8    judgment entered on November 24, 2009 by the United States

9    District Court for the Southern District of New York

10   (Patterson, J.) following trial sentencing him to time

11   served and three years’ supervised release for conspiring to

12   distribute and possess with intent to distribute at least

13   one hundred grams but less than one kilogram of heroin in

14   violation of 21 U.S.C. §§ 846, 841(b)(1)(B).    We assume the

15   parties’ familiarity with the underlying facts, the

16   procedural history, and the issues presented for review.

17       Appellant raises five challenges, which we review in

18   turn.   First, Appellant contends that his conviction should

19   be overturned because it is not supported by sufficient

20   evidence.   “A defendant challenging his verdict on

21   sufficiency grounds bears a heavy burden.”     United States v.

22   Si Lu Tian, 339 F.3d 143, 150 (2d Cir. 2003) (internal

23   quotation marks omitted).   “We must affirm a conviction if,

24   viewing all the evidence in the light most favorable to the

                                   2
1    prosecution, any rational trier of fact could have found the

2    essential elements of the crime beyond a reasonable doubt.”

3    Id. (internal quotation marks omitted).     Appellant cannot

4    meet this heavy burden.     After a thorough review of the

5    evidence presented at trial, we conclude that Appellant’s

6    sufficiency challenge fails.

7        Second, Appellant contends that the district court

8    erred by admitting evidence related to (1) drug transactions

9    involving cocaine and (2) the alleged co-conspirators other

10   than Falou Ndiaye.     We review evidentiary rulings for abuse

11   of discretion, which we will find only if the district court

12   “acted arbitrarily and irrationally,” United States v.

13   Garcia, 291 F.3d 127, 136 (2d Cir. 2002) (internal quotation

14   marks omitted).    If the district court abused its

15   discretion, we apply harmless error analysis.     United States

16   v. Rea, 958 F.2d 1206, 1219-20 (2d Cir. 1992).     Here, the

17   district court did not abuse its discretion in admitting the

18   cocaine evidence because the cocaine transactions were

19   intertwined with the heroin transactions and involved

20   similar conduct.     As to the co-conspirator evidence, even if

21   admitted in error, this evidence was harmless in light of

22   the weight of the evidence against Appellant and the


                                     3
1    district court’s explicit limiting instructions.

2        Third, Appellant contends that the district court erred

3    in denying his motion to suppress the wiretap evidence.

4    “[W]e grant considerable deference to the district court’s

5    decision whether to allow a wiretap, ensuring only that ‘the

6    facts set forth in the application were minimally adequate

7    to support the determination that was made.’”      United States

8    v. Concepcion, 579 F.3d 214, 217 (2d Cir. 2009) (quoting

9    United States v. Miller, 116 F.3d 641, 663 (2d Cir. 1997)).

10   Before admitting wiretap evidence, a court must ensure that

11   the wiretap interception was “conducted in such a way as to

12   minimize the interception of communications not otherwise

13   subject to interception.”   18 U.S.C. § 2518(5).    Once the

14   Government has made a prima facie showing of good-faith

15   compliance with this minimization requirement, the burden

16   shifts to the defendant to show how compliance could have

17   been better achieved.   United States v. Manfredi, 488 F2.d

18   588, 599-600 (2d Cir. 1973).   Here, the district court’s

19   finding that the government minimized in good faith was well

20   supported, and Appellant has not shown how minimization

21   could have been better achieved.   Nor did the government

22   fail to satisfy the required showing that alternative means


                                    4
1    of investigation were unsatisfactory.     The wiretap

2    applications set forth at least six detailed explanations

3    “as to whether or not other investigative procedures have

4    been tried and failed or why they reasonably appear[ed] to

5    be unlikely to succeed if tried or to be too dangerous.”      18

6    U.S.C § 2518(1)(c).     Accordingly, the district court

7    properly admitted the wiretap evidence at trial.

8        Fourth, Appellant disputes the admission of the heroin

9    evidence in light of the fact that the actual heroin

10   recovered in the government’s investigation was destroyed

11   prior to trial.   We are unpersuaded.    “To establish a

12   violation of the right to present a defense based on lost

13   evidence, a defendant must show that the evidence was

14   material and exculpatory, and that it was of such a nature

15   that the defendant would be unable to obtain comparable

16   evidence by other reasonably available means.”     Buie v.

17   Sullivan, 923 F.2d 10, 11 (2d Cir. 1990) (internal quotation

18   marks omitted).   “Moreover, unless the defendant can show

19   bad faith on the part of the state, ‘failure to preserve

20   potentially useful evidence does not constitute a denial of

21   due process of law.’”     Id. at 11-12 (quoting Arizona v.

22   Youngblood, 488 U.S. 51, 58 (1988)).     Appellant does not


                                     5
1    suggest that the evidence might have proved to be something

2    other than heroin, and he submits no facts that would

3    justify displacing the district court’s determination that

4    the government did not act in bad faith.

5        Finally, Appellant contends that the district court

6    improperly denied his request for a multiple conspiracies

7    charge.   We review a district court’s refusal to issue

8    requested jury instructions de novo.   United States v.

9    Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005).   A jury’s

10   conviction will not be vacated on appeal because of a

11   failure to give a requested instruction unless such an

12   instruction “was legally correct, represented a theory of

13   defense with a basis in the record that would lead to

14   acquittal, and the charge actually given was prejudicial.”

15   United States v. Desinor, 525 F.3d 193, 198 (2d Cir. 2008)

16   (internal quotation marks, brackets, and citations omitted).

17   “A refusal to give a multiple conspiracy charge does not

18   prejudice [a] defendant where there was ample proof before

19   the jury for it to find beyond a reasonable doubt that [the]

20   defendant was a member of the conspiracy charged in the

21   indictment.”   United States v. Vazquez, 113 F.3d 383, 386

22   (2d Cir. 1997).   Even assuming that Appellant’s theory had a


                                   6
1    valid basis in the record, Appellant is unable to establish

2    substantial prejudice.   The district court instructed the

3    jury that it could convict only upon finding that Appellant

4    conspired with Ndiaye to distribute heroin.    As a result,

5    Appellant could not have been convicted on the basis of

6    evidence relating only to the alleged alternative

7    conspiracies.

8        We have considered Appellant’s remaining arguments and

9    find them to be without merit.    For the foregoing reasons,

10   the judgment of the district court is hereby AFFIRMED.

11
12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15




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