                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-26-2006

USA v. Segura
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5170




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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                    No. 05-5170
                                   ____________

                          UNITED STATES OF AMERICA

                                           v.

                                 DAVID SEGURA,

                                                 Appellant.

                                   ____________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                                 (No. 99-cr-00048-2)
                      District Judge: Hon. Bruce W. Kauffman
                              Argued November 8, 2006

        Before: SLOVITER, CHAGARES, and GREENBERG, Circuit Judges.


                                   ____________

                              (Filed: December 26, 2006)



Counsel for Appellant

Lowell K. Chotiner (Argued)
437 Chestnut Street
Suite 905
Philadelphia, PA 19106


Counsel for Appellee
Karen L. Grigsby (Argued)
Assistant United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106


                               OPINION OF THE COURT


CHAGARES, Circuit Judge.

       Appellant David Segura appeals his conviction for conspiracy to distribute more

than 50 grams of crack cocaine. In this appeal, Segura argues that there is insufficient

evidence to support his conspiracy conviction. Segura also raises three challenges

pertaining to the adequacy of the Criminal Information. Because we find no reversible

error, we will affirm.

                                             I.

       As we write only for the parties, our summary of the facts is brief. On December

9, 1998, police officer Jose Colon, posing as a buyer, called Ylsia Otto Segura (“Ylsia”)

to inquire about purchasing crack cocaine from him, which he had done on three prior

occasions. Ylsia then called his cousin, appellant David Segura, regarding Colon’s

request. While Ylsia was conferring with Segura at Segura’s residence, Colon again

called Ylsia on his cell phone to inquire if he had the crack. Ylsia informed Colon that he

could sell him two ounces; Colon responded that he wanted four. When Ylsia relayed




                                             2
this request to Segura, Segura responded that he would obtain the quantity of crack Colon

wanted, and that once he had done so, he would call Ylsia to pick up the full amount.

       Later that day, Segura called Ylsia to inform him that Ylsia could pick up the crack

Colon had requested. Ylsia then returned to Segura’s house, where Segura produced four

ounces of crack and weighed the drugs in front of Ylsia. Ylsia took the drugs, telling

Segura that he would return with the money. Ylsia did not repackage the crack.

       At approximately 6:20 p.m., Ylsia met Officer Colon in the parking lot at the

Queen City Diner in Reading, Pennsylvania, a meeting place Colon had selected in

advance. After Ylsia delivered approximately 109 grams of crack to Colon, DEA agents

arrested Ylsia.

       Ylsia agreed to cooperate with police, and immediately identified Segura as his

supplier. Ylsia also agreed to make a recorded phone call to Segura. Before he could do

so, many of the officers present at the scene were called away to respond to a shooting in

progress, and the call was delayed until these officers returned. Meanwhile, two officers

waited with Ylsia. While the three men waited, Ylsia’s cell phone rang multiple times.

Each time, Segura’s cell phone number appeared on Ylsia’s caller ID.

       When the other officers returned, Ylsia made the recorded phone call to Segura.

At the direction of the officers, Ylsia informed Segura that the crack buyers were

unhappy with the weight and quality of the crack Ylsia had sold them. Segura replied

that Ylsia was welcome to come get the scale to verify that the crack did in fact weigh

four ounces. Segura then backtracked somewhat, saying, “Like we’ve got time to play

                                             3
games.” Segura concluded by telling Ylsia to tell the buyers that he (Segura) guaranteed

the weight and quality of the drugs, and that if the buyers had concerns about the drugs

they could call him.

       At approximately 8:15 p.m., Ylsia told Segura in another recorded phone call that

he was coming over to Segura’s residence with the money from the sale to Colon. When

Ylsia arrived, however, Segura was not home. Segura surrendered to police the following

day.

       On January 27, 1999, a grand jury returned a two-count indictment charging both

Segura and Ylsia with one count of conspiracy to distribute more than 50 grams of crack,

and with one count of distribution of more than 50 grams of crack.

       On June 9, 1999, Segura proceeded to trial. Ylsia, who had previously pled guilty

in connection with this case, testified for the Government. For his part, Segura argued

that Ylsia’s brother in New York, not Segura, was Ylsia’s supplier. The jury apparently

did not believe Segura’s story, and convicted him on both counts. Thereafter, on

December 3, 1999, the District Court sentenced Segura to 240 months in prison.

       Segura did not file a direct appeal of his sentence or conviction. Rather, several

months after the District Court imposed sentence, Segura sent a pro se letter to the

District Court regarding his case. Thereafter, on April 25, 2000, the District Court filed a

Notice and Order that Segura should inform the District Court whether he wanted the

Court construe his letter as a petition for writ of habeas corpus. The District Court further

specified that if no written directions were received within 30 days of the date of the

                                             4
Order, the Court would disregard Segura’s letter. Finally, the District Court’s Order also

stated that it would grant Segura 120 days to file a new, all-inclusive petition for writ of

habeas corpus if he wished.

       On September 25, 2000, the District Court issued a second Order, noting that

Segura had sent another pro se letter to the District Court. In this letter dated August 17,

2000, Segura inquired how his appeal was progressing. After confirming that Segura had

never filed any such appeal, the District Court issued an Order instructing the Clerk of

Court to close Segura’s case.

       Segura then wrote a third letter to the District Court. In this letter dated October

19, 2000, Segura stated that he had informed his trial counsel to file a notice of appeal on

his behalf. Since his trial counsel apparently failed to do so, Segura requested that the

District Court appoint counsel to represent him.

       On June 28, 2001, Segura filed a motion to vacate his sentence pursuant to 28

U.S.C. § 2255, as well as a motion to hold his § 2255 motion in abeyance. On July 10,

2001, the District Court issued an Order stating that if Segura did not withdraw his § 2255

motion in writing within 30 days, the Court would decide the motion on the merits.

Segura did not respond, and on February 22, 2002, the District Court directed the

Government to respond to Segura’s motion. Before the Government did so, however,

Segura filed a “Clarification of All Issues Presently Before the Court,” in which he

claimed that his trial counsel had never advised him that he was subject to an enhanced

sentence under 21 U.S.C. § 841(b). Thereafter, the Government filed its reply to Segura’s

                                              5
§ 2255 motion. In its reply, the Government argued that Segura’s motion should be

denied on the merits, but stated that it did not oppose granting the motion insofar as

Segura sought to have new counsel appointed so that he could pursue an ineffective

assistance of trial counsel claim for failing to file an appeal, as Segura allegedly had

instructed his trial counsel to do.1

       On June 26, 2003, the District Court appointed Segura a new attorney. On

September 24, 2003, counsel filed a reply on Segura’s behalf to the Government’s answer

to Segura’s § 2255 motion. This reply asked the District Court to vacate its prior

sentence and immediately reimpose the same sentence so that Segura could perfect his

appeal to the Third Circuit; it raised no other claims and sought no other relief.

       In a response dated October 10, 2003, the Government advised the District Court

that it had no objection to the relief Segura sought. Accordingly, on November 12, 2003,

the District Court issued an Order granting in part and denying in part Segura’s § 2255

motion. The Order vacated Segura’s sentence and scheduled a new sentencing hearing,

but denied all other requests for relief without prejudice to his right to raise them on direct

appeal.

       At the sentencing hearing on December 10, 2003, Segura raised two claims for the

first time. First, Segura argued that the Criminal Information charging him was defective



       1
        In this respect, the Government noted that shortly after Segura’s trial concluded,
the Pennsylvania Bar Association suspended Segura’s trial counsel from the practice of
law for five years.

                                              6
because the New Jersey case number listed in the Information did not appear in the

certified record of defendant’s New Jersey conviction. Second, Segura argued that the

Information was defective because it mistakenly cited 21 U.S.C. § 841(b)(1)(B), which

provides a mandatory minimum sentence of 10 years imprisonment upon conviction for a

violation of § 841(a) involving 5 grams or more of crack where the defendant has a prior

conviction for a felony drug offense, when it should have cited 21 U.S.C. § 841(b)(1)(A),

which provides a mandatory minimum sentence of 20 years imprisonment upon

conviction for a violation of § 841(a) involving 50 grams or more of crack where the

defendant has a prior conviction for a felony drug offense. Had he known he was facing a

higher mandatory minimum, Segura argues that he might have pled guilty plea rather than

go to trial. The District Court directed the parties to file briefs on the issues Segura

raised.

          In his brief, Segura also raised a third issue; namely, that there was no evidence

that the Government served the Criminal Information on Segura’s trial counsel. On

February 9, 2004, the Government filed its response to Segura’s objections to an

enhanced penalty based on the Government’s purported failure to serve the Information.

On that same date, the Government filed an amended “Information Charging Prior

Offenses.” The amended Information referenced the same prior felony conviction, but

appended a certified record of that conviction. The amended Information also deleted

reference to 21 U.S.C. § 841(b)(1)(B) and stated that Segura was charged with crimes

involving more than 50 grams of crack.

                                                7
       On November 16, 2005, the District Court held a hearing regarding Segura’s claim

that the Government failed to serve the Information. At that hearing, the District Court

heard testimony from the Assistant United States Attorney who filed and served the

original Information. After argument by counsel, the District Court proceeded to rule on

each of Segura’s claims. Regarding service of the original Information, the Court

concluded that the certificate of service appended to the original Information was

adequate. The District Court also held that there was a presumption under law that the

certificate was true and accurate, and that Segura had presented no evidence to rebut this

presumption. As to the defect in the original Information, the District Court held that

reversal of Segura’s conviction was unwarranted because the citation to the wrong Code

section was a mere “clerical error.” Moreover, given that Segura knew (i) that he was

charged with a violation of § 841(a)(1) involving more than 50 grams of crack; and (ii)

that the Government was seeking to enhance his sentence, Segura was not prejudiced by

this error. Finally, since Segura had only one prior conviction, the District Court rejected

Segura’s argument that because the original Information misstated the date of the prior

offense by three days, Segura was somehow unaware of the prior conviction on which the

Government was relying. The District Court then reimposed its original sentence -- 240

months incarceration.

       Segura timely appealed. He raises in his appeal the three grounds discussed above.

And, for the first time, Segura also argues that there was insufficient evidence to support

his conviction for conspiracy.

                                             8
                                                     II.

       Where a defendant fails to make an objection to the District Court and raises the

issue for the first time on appeal, we review for plain error. United States v. Powell, 113

F.3d 464, 466-67 (3d Cir. 1997). Thus, because Segura did not file a post-trial motion for

judgment of acquittal in the District Court, we review the District Court’s failure to set

aside Segura’s conviction for plain error. We exercise plenary review over the

sufficiency of the government’s notice pursuant to 21 U.S.C. § 851. United States v.

Weaver, 267 F.3d 231, 246 (3d Cir. 2001).

                                              III.

                                              A.

       In considering a sufficiency of the evidence challenge, we must evaluate the

evidence “in the light most favorable to the government and [must] affirm if there is

substantial evidence from which any rational trier of fact could find guilt beyond a

reasonable doubt.” United States v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992). Moreover,

because Segura did not raise this challenge post-trial, we review the District Court’s

failure to set aside the jury verdict for plain error. For his part, Segura argues that the

Government’s evidence proved at most that he and Ylsia engaged in a single sale of

cocaine in which Segura was the seller and Ylsia was the buyer. This limited evidence,

Segura argues, is insufficient to sustain the jury verdict against him on the conspiracy

charge. For the following reasons, Segura’s argument is unpersuasive.




                                               9
       To prove the existence of a conspiracy, the Government must “establish a unity of

purpose between the alleged conspirators, an intent to achieve a common goal, and an

agreement to work together.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).

Once a jury has concluded that the Government has carried this burden, the defendant

faces a daunting task in challenging the jury verdict on sufficiency of the evidence

grounds. To sustain a verdict on appeal, “the evidence [of conspiracy] does not need to

be inconsistent with every conclusion save that of guilt.” United States v. Gonzalez, 918

F.2d 1129, 1132 (3d Cir. 1990) (internal quotations omitted). Rather, the jury verdict

must stand unless “the record contains no evidence, regardless of how it is weighted, from

which the jury could find guilt beyond a reasonable doubt.” United States v. Anderson,

108 F.3d 478, 481 (3d Cir. 1997).

       In this case, the Government presented evidence that Ylsia and Segura acted in

concert to sell crack cocaine for profit. The Government’s evidence showed that Segura

was aware that Ylsia was seeking his assistance in obtaining crack for Officer Colon.

Indeed, the evidence at trial showed that Ylsia conducted some of the negotiations with

Officer Colon (on his cell phone) in front of Segura, and during this call Segura informed

Ylsia that he could obtain the quantity of drugs Officer Colon requested. Moreover, Ylsia

testified that Segura advised him that he (Segura) would need time to obtain additional

crack for Officer Colon, and that he would call Ylsia once he had obtained the drugs,

which Segura did. Thereafter, Ylsia returned to Segura’s house, where Segura gave him

the full amount to deliver to Officer Colon. Thus, there was ample evidence from which

                                            10
a jury could have concluded that Segura was involved in the procurement and delivery of

crack cocaine to Officer Colon.

       Nor was this a mere buyer-seller relationship, as Segura contends. To begin with,

Ylsia did not pay Segura for the drugs at the time Segura delivered them. The fact that

Segura “fronted” Ylsia the drugs on credit is evidence of a conspiracy. Gibbs, 190 F.3d

at 200 (“A credit relationship . . . often evidences the parties’ mutual stake in each other’s

transactions.”). Moreover, when Ylsia informed Segura that Officer Colon had problems

with the quantity and quality of the drugs Ylsia delivered, Segura offered potential

solutions that would assuage Officer Colon’s concerns. Had Segura been in a mere

buyer-seller relationship with Ylsia, as he claims, Segura’s interest in the crack would

have ended once Ylsia took possession of the drugs. See 74A (noting that, in response to

Officer Colon’s protests about the weight and quality of the drugs, Segura responded,

“Like we’ve got time to play games.”) (emphasis added). In light of the evidence, the jury

was entitled to conclude that Segura had an ongoing interest in Ylsia’s resale of the drugs.

For all of these reasons, there was ample evidence from which the jury could have

concluded that Segura had conspired with Ylsia to distribute crack. Accordingly, the

District Court did not commit plain error in allowing the jury verdict to stand.

                                                  B.

       Segura’s argument that the Government failed to serve adequately the Criminal

Information is equally unpersuasive. At Segura’s second sentencing hearing, the District

Court heard testimony from the Assistant United States Attorney (“AUSA”) who served


                                             11
the original Criminal Information. The AUSA testified that, while he had no specific

recollection in November 2005 of the precise manner in which he served the Information

six years prior in May 1999, his typical practice was to sign the certificate of service, and

then give the document to his secretary to mail or to arrange for hand delivery via a

courier service. The AUSA also testified that on some occasions, he would personally

serve an Information if he were going to see defense counsel that day in court. Based on

this testimony, there is reason to believe that the AUSA may have personally served

Segura’s trial counsel: the AUSA testified that the docket indicated that on May 26, 1999

-- the date listed on the certificate of service -- both the AUSA and Segura’s trial counsel

attended a hearing in Segura’s case. Further, absent from the record is any indication

from Segura’s trial counsel that he was not served with the Criminal Information. In any

event, the certificate of service is itself, in the absence of contradictory evidence not

present here, sufficient evidence that the Government gave the requisite notice.

       In response, Segura offers only unsupported speculation that the Government’s

service was inadequate. Segura’s lack of evidence in this regard, combined with the

evidence the Government provided to show that it had in fact properly served the

Criminal Information, compels the conclusion that the District Court properly rejected

Segura’s argument that service was insufficient.

                                              C.

       The District Court also properly rejected Segura’s argument that the original

Information was fatally defective because it listed the wrong date of conviction and failed


                                              12
to list the actual offense for which Segura was convicted. Title 21, United States Code §

851 provides in pertinent part that the Government must file an Information “stating in

writing the previous convictions to be relied upon.” It goes on to provide that “[c]lerical

mistakes in the information may be amended at any time prior to the pronouncement of

sentence.”2 As the District Court noted, given (i) the minor nature of the clerical errors in

the Information; and (ii) given that Segura had only one prior felony conviction, Segura

hardly could have failed to perceive the offense upon which the Government was seeking

an enhancement. Even making the astoundingly tenuous assumption that Segura was

somehow misled by the original Information regarding his prior conviction, it is

undisputed that the Government rectified all of the clerical errors in an amended

Information filed before the District Court reimposed sentence. Thus, under the plain

terms of § 851, Segura’s argument based on the clerical errors in the Information must

fail.

                                               D.

        Finally, the District Court also properly rejected Segura’s contention that the

Government was precluded from seeking a mandatory minimum of 20 years on the

ground that the original Information misstated the statutory provision under which the

Government was seeking a sentencing enhancement. To obtain a reversal on this ground,

Segura must show both that the District Court erred by allowing the flawed sentencing

enhancement, and that Segura was prejudiced by this error. United States v. Toliver, 330

        2
         It is undisputed that these mistakes are clerical in nature.

                                               13
F.3d 607, 617 (3d Cir. 2003) (articulating standard for reversal based on non-

constitutional error). For the following reasons, Segura has failed to show either.

       With respect to error, we made clear in Weaver that clerical mistakes do not render

an Information invalid unless they “rendered the notice constitutionally lacking.”

Weaver, 267 F.3d at 247. Further, Weaver made clear that errors much more numerous

and severe than the ones present here do not create a constitutional deficiency. In that

case, we upheld a conviction even though the Government’s notice contained several

errors, including mislabeling Weaver’s prior conviction for “voluntary manslaughter” as

“involuntary manslaughter”, and mislabeling his prior conviction for robbery involving a

“prohibited offensive weapon” as “armed robbery.” Id. at 247-48. Although Segura

argues that “the misstatement of the mandatory minimum is not a clerical mistake,” he

cites no authority for this proposition, nor does he offer any rationale sufficient to

distinguish Weaver. In view of Weaver’s permissiveness, we cannot say that the

typographical error here -- listing 21 U.S.C. § 841(b)(1)(B) instead of 21 U.S.C. §

841(b)(1)(A) -- renders the Information constitutionally inadequate.

While this Court has never addressed the precise question whether, for sentencing

enhancement purposes, reference to the wrong statutory subsection renders a Criminal

Information fatally flawed, other circuits have concluded that such clerical errors may be

remedied by amending the Criminal Information before sentencing. For instance, in

United States v. Campbell, 980 F.2d 245 (4th Cir. 1992), the Fourth Circuit explained that




                                              14
        [t]he purpose of the section 851 information is to give the person convicted
        and about to be sentenced as a second offender an opportunity to show that
        he is not the person previously convicted. No prejudice resulted from
        allowing the government to amend, because nowhere in section 851 is the
        United States Attorney required to specify which subsection he is relying on
        for enhancement. . . . The purpose of amendment was to correct a clerical
        error.

Id. at 252 (internal citations omitted).

Segura attempts to distinguish Campbell on the ground that Segura’s trial counsel, unlike

Campbell’s attorney, did not concede that his trial strategy would have been the same

even had he understood that his client was facing a mandatory minimum of twenty years

rather than ten. While that may be true, there is ample evidence in the record that Segura

knew or should have known the mandatory minimum he was facing before he chose to

proceed to trial. Specifically, the Pretrial Detention Order explicitly stated that Segura

was facing a mandatory minimum sentence of 20 years, as did the Government’s Motion

for a Detention Hearing and Pretrial Detention. At a minimum, then, it is clear from these

documents that Segura learned some six months prior to trial that he was facing twenty

years in prison -- not ten -- if convicted. For all of these reasons, the District Court did

not err in permitting a sentencing enhancement based on the Criminal Information in this

case.

        Quite apart from this, Segura also cannot show prejudice. This is so because

Segura’s only argument regarding prejudice is that the Government’s misstatement

“affected Segura’s ability to determine whether he should have entered a plea or gone to

trial.” App. Br. at 33. Of course, there is nothing for Segura to determine unless the


                                              15
Government was willing to offer him a plea bargain, and there is no such evidence in this

record. Put more colloquially, to consummate a plea bargain, it takes two to tango, and

there is no reason to believe that the Government wanted to dance. See, e.g., Kingsberry

v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000) (holding, in the context of an

ineffective assistance of counsel claim, that to establish prejudice, the petitioner must

begin by proving that a plea agreement was formally offered by the Government).

Finally, even if there were evidence that the Government offered Segura a plea bargain

(which there is not), there is insufficient evidence that Segura would have taken the deal.

To the contrary, Segura remains noncommittal even now regarding whether he would

actually have accepted a plea. See App. Br. at 37 (stating that, had Segura realized he

faced a twenty year minimum sentence, he “might have entered a plea agreement and

cooperated with the Government. . . .”). This equivocal, after-the-fact speculation is too

slender a reed to sustain Segura’s claim of prejudice. Thus, even had Segura carried his

burden to show that the District Court erred in this respect, he nonetheless has failed to

show prejudice.

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s decision in all

respects.




                                             16
