     17-1660-cr
     United States v. Vazquez


                                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 ASUMMARY ORDER@). A PARTY
CITING TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 9th day of July, two thousand twenty.
 4
 5          PRESENT: GUIDO CALABRESI,
 6                           RAYMOND J. LOHIER, JR.,
 7                           RICHARD J. SULLIVAN,
 8                                   Circuit Judges.
 9          ------------------------------------------------------------------
10          UNITED STATES OF AMERICA,
11
12                          Appellee,
13
14                  v.                                                           No. 17-1660-cr
15
16          JUSTIN VAZQUEZ,
17
18                           Defendant-Appellant.
19          ------------------------------------------------------------------
20          FOR DEFENDANT-APPELLANT:                                  M. Kirk Okay, The Okay Law
21                                                                    Firm, Batavia, NY.
22
 1         FOR APPELLEE:                                  Tiffany H. Lee, Monica J.
 2                                                        Richards, Assistant United
 3                                                        States Attorneys, for James P.
 4                                                        Kennedy, Jr., United States
 5                                                        Attorney for the Western
 6                                                        District of New York,
 7                                                        Rochester, NY.
 8
 9         Appeal from a judgment of the United States District Court for the Western

10   District of New York (Frank P. Geraci, Jr., Chief Judge).

11         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12   AND DECREED that the judgment of the District Court is AFFIRMED.

13         Justin Vazquez appeals from a May 18, 2017 judgment of conviction of the

14   United States District Court for the Western District of New York (Geraci, C.J.),

15   following a jury trial at which Vazquez was found guilty of possession of a

16   firearm and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1)

17   and 924(a)(2). This case was last before us in 2019 when we rejected Vazquez’s

18   challenge on hearsay grounds to the District Court’s admission of a 911 call and

19   affirmed his conviction. United States v. Vazquez, 763 F. App’x 136 (2d Cir.

20   2019). After our decision, Vazquez filed a petition for a writ of certiorari. In

21   February 2020 the Supreme Court granted the petition, vacated our decision, and

22   remanded to this Court for reconsideration in light of the Supreme Court’s prior
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 1   decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). Vazquez v. United

 2   States, 140 S. Ct. 992 (2020) (mem.). On remand, we ordered letter briefing on the

 3   relevance of Rehaif to this appeal. We now conclude that Rehaif does not require

 4   vacatur of Vazquez’s conviction, and we reinstate our prior decision as amended

 5   herein. We assume the parties’ familiarity with the underlying facts and the full

 6   record of prior proceedings, to which we refer only as necessary to explain our

 7   decision to affirm.

 8         1. Rehaif Challenge

 9         In Rehaif, the Supreme Court held that under 18 U.S.C. §§ 922(g) and

10   924(a)(2) the Government must prove “that the defendant knew he possessed a

11   firearm and also that he knew he had the relevant [prohibited] status when he

12   possessed it.” 139 S. Ct. at 2194. In view of Rehaif, the Government was

13   required to prove that, at the moment he possessed the firearm, Vazquez knew

14   that he “ha[d] been convicted in any court of[] a crime punishable by

15   imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).

16         Vazquez now argues that the Government’s failure at trial to prove

17   Vazquez’s knowledge of his prohibited status as a former felon and the District


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 1   Court’s failure to instruct the jury on the knowledge element requires that we

 2   vacate his conviction and order a new trial. We disagree. We considered and

 3   rejected a nearly identical challenge in United States v. Miller, 954 F.3d 551 (2d

 4   Cir. 2020), which also involved a defendant convicted under §§ 922(g)(1) and

 5   924(a)(2) following a jury trial. The defendant in Miller stipulated to the fact of

 6   his prior felony conviction, the Government introduced no other evidence

 7   concerning his prohibited status, and the defendant contested neither the

 8   sufficiency of the evidence against him nor knowledge of his own prohibited

 9   status as a former felon. Id. at 558–59. Taking our cue from Rehaif, we

10   concluded that the jury instructions, to which the defendant also did not object,

11   were “clearly erroneous in their omission of the government’s obligation to prove

12   [the defendant’s] knowledge of his status as a former felon.” Id. at 558. We

13   nevertheless affirmed the conviction based on the fourth prong of plain error

14   review, which requires a showing that “the error seriously affects the fairness,

15   integrity or public reputation of judicial proceedings.” Id. at 557–58 (quotation

16   marks omitted). We reasoned as follows:

17                Under the circumstances, we do not think that rejecting
18                [the defendant’s] argument will seriously affect the

                                               4
 1                fairness, integrity, or public reputation of judicial
 2                proceedings. To the contrary, we think that accepting it
 3                would have that effect.        Because [the defendant]
 4                stipulated to his § 922(g)(1) qualifying status, at trial he
 5                likely would have sought to exclude, and would have
 6                been successful in excluding, the details pertaining to his
 7                prior offense as unnecessary and prejudicial
 8                embellishment on his stipulation. We will not penalize
 9                the government for its failure to introduce evidence that
10                it had but that, prior to Rehaif, it would have been
11                precluded from introducing.

12   Id. at 559–60. Considering the record as a whole, we then concluded that the

13   actual facts of the defendant’s prior conviction “remove[d] any doubt that [the

14   defendant] was aware of his membership in § 922(g)(1)’s class.” Id. at 560.

15         Like the defendant in Miller, Vazquez was convicted of violating

16   §§ 922(g)(1) and 924(a)(2) after a jury trial, stipulated to the fact of his prior felony

17   conviction, did not object to jury instructions that became erroneous under

18   Rehaif, and did not otherwise challenge the sufficiency of the evidence against

19   him. And on top of the felony conviction to which he stipulated, which resulted

20   in a sentence of two to four years’ imprisonment, Vazquez had two other prior

21   felony convictions, one of which also resulted in a sentence of imprisonment of

22   two to four years. Under these circumstances, it is “highly improbable” that

23   Vazquez was unaware of his prohibited status. Id. at 559. As in Miller, we
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 1   therefore conclude that Vazquez has not satisfied the fourth plain error prong.

 2         2. Hearsay

 3         Vazquez’s original appeal challenged the District Court’s admission of a

 4   911 call from Dorene Arroyo, Vazquez’s mother. During the call Arroyo said

 5   that Vazquez had been holding her hostage with a loaded gun for three days and

 6   asked for the police to come immediately. Relying on the hearsay exceptions for

 7   present sense impressions and excited utterances, see Fed. R. Evid. 803(1)–(2), the

 8   District Court admitted the 911 call as evidence of Vazquez’s possession of the

 9   gun, the only contested element of the offense at trial.

10         The District Court did not abuse its discretion in admitting the 911 call as a

11   present sense impression under Rule 803(1) of the Federal Rules of Evidence. See

12   United States v. Jones, 299 F.3d 103, 112–13 (2d Cir. 2002). The present sense

13   impression exception to the rule against hearsay requires that the statement be

14   made “while or immediately after the declarant perceived” the event or condition

15   at issue. Fed. R. Evid. 803(1). Arroyo’s statement during the 911 call easily

16   qualifies. During the call Arroyo described in real time that she felt that Vazquez

17   posed an imminent threat to her safety, even though he was in the shower at the


                                               6
 1   time. See Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004). The call was also

 2   separately admissible as an excited utterance under Rule 803(2) of the Federal

 3   Rules of Evidence, which requires the declarant to be “under the stress of

 4   excitement caused by the event or condition” when making the statement.

 5   United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir. 1990) (quotation marks

 6   omitted). Here, the record of the 911 call clearly establishes that Arroyo was

 7   terrified. She whispered, cried, and pleaded for the police to come

 8   “immediately,” and the officers who found her confirmed that she was crying and

 9   upset. Under these circumstances, we again conclude that the District Court did

10   not abuse its discretion in admitting the 911 call under either the present sense

11   impression or the excited utterance exceptions to the hearsay rule. See Jones, 299

12   F.3d at 113.

13         We have considered all of Vazquez’s remaining arguments and conclude

14   that they are without merit. For the foregoing reasons, the judgment of the

15   District Court is AFFIRMED.

16                                         FOR THE COURT:
17                                         Catherine O’Hagan Wolfe, Clerk of Court




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