     12-3839-cr(L)
     United States v. Caraballo
                                       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 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, held
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 1st day of August, two thousand sixteen.
 4
 5   PRESENT:    GUIDO CALABRESI,
 6               GERARD E. LYNCH,
 7               RAYMOND J. LOHIER, JR.,
 8                     Circuit Judges,
 9   _____________________________________
10
11   UNITED STATES OF AMERICA,
12
13            Appellee,
14
15                                v.                                           12-3839-cr(L),
16                                                                             14-4203-cr(Con)
17
18   FRANK CARABALLO,
19
20         Defendant-Appellant,
21   _____________________________________
22
23   FOR DEFENDANT-APPELLANT:                    NATASHA SEN, ESQ. Brandon, VT
24                                               (Mark Kaplan, Kaplan and Kaplan, Burlington, VT on
25                                               the brief),
26
27   FOR APPELLEE:                               PAUL J. VAN DE GRAAF, Chief, Criminal Division,
28                                               (Joseph R. Perella and Gregory L. Waples, Assistant
29                                               United States Attorneys, on the brief), for Eric S.
30                                               Miller, United States Attorney for the District of
31                                               Vermont, Burlington, VT
32



                                                       1
 1           Appeal from judgments of the United States District Court for the District of Vermont

 2   (Reiss, C.J.).

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

 4   DECREED that the judgment entered on November 4, 2014 is AFFIRMED and the appeal of

 5   the judgment entered on September 13, 2012 is DISMISSED for lack of appellate jurisdiction.

 6           Defendant-appellant Frank Caraballo appeals two judgments of conviction entered by the

 7   United States District Court for the District of Vermont (Reiss, C.J.). In the first, Caraballo seeks

 8   to withdraw his guilty plea to five counts of distributing cocaine base, in violation of 21 U.S.C.

 9   §§ 841(a)(1) and 841(b)(1)(C). In the second appeal, Caraballo challenges his conviction at trial

10   of (1) one count of conspiring to distribute heroin, cocaine, and 28 grams or more of cocaine

11   base under 21 U.S.C. §§ 846, 841(b)(1)(B), and 851, (2) one count of causing the death of a

12   person by murder while in possession of a firearm in furtherance of a drug trafficking crime

13   under 18 U.S.C. §§ 924 (j)(1) and 924(c)(1)(A)(i), and (3) one count of possession of a firearm

14   in furtherance of a drug trafficking crime under 18 U.S.C. §§ 924(c)(1)(A)(i) and

15   924(c)(1)(C)(i). We assume the parties’ familiarity with the underlying facts, procedural history,

16   and specification of issues for review.

17           In this summary order, we address Caraballo’s arguments regarding (1) the sufficiency of

18   the evidence supporting his conviction, (2) the District Court’s evidentiary rulings, (3) his

19   Confrontation Clause challenge, and (4) the withdrawal of his plea. A separate opinion issued

20   with this order considers, and similarly rejects, Caraballo’s Fourth Amendment argument.

21           1. Sufficiency of the Evidence

22           Caraballo contends that there was insufficient evidence to convict him of causing the

23   death of Melissa Barratt by murder. Conducting a de novo review and considering the evidence



                                                       2
 1   in the light most favorable to the Government, United States v. Desposito, 704 F.3d 221, 226,

 2   229 (2d Cir. 2013), we hold that a rational trier of fact could have found beyond a reasonable

 3   doubt that Caraballo caused the death of Barratt by murder for substantially the same reasons as

 4   those stated by the District Court in its thorough opinion. See United States v. Caraballo, No.

 5   12-cr-105, 2014 WL 3535348, at *7-10 (D. Vt. July 16, 2014).

 6          2. Evidentiary Rulings

 7          Next, Caraballo challenges a number of the District Court’s evidentiary rulings at trial.

 8   We review these rulings “under a deferential abuse of discretion standard, and we will disturb an

 9   evidentiary ruling only where the decision to admit or exclude evidence was manifestly

10   erroneous.” United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015) (internal quotation marks

11   omitted). “[E]ven if a ruling was ‘manifestly erroneous,’ we will still affirm if the error was

12   harmless.” Id. (internal quotation marks omitted).

13          First, Caraballo argues that District Court erred when it admitted a series of text messages

14   between Barratt and Edward Angelillo, Barratt’s bail bondsman, that were inadmissible hearsay.

15   Though the District Court perhaps incorrectly admitted these messages as business records under

16   Federal Rule of Evidence 803(6), the admission of the texts was not erroneous because they were

17   not offered by the Government for the truth of the matter asserted. Rather, the Government used

18   the texts to demonstrate that Barratt had been in contact with Angelillo up until a certain time, at

19   which point she ceased communicating.

20          Second, Caraballo contends that the District Court abused its discretion in failing to

21   exclude, under Federal Rule of Evidence 403, a statement made by Caraballo to his prison

22   cellmate that he would be in the “gas chamber” if he left his fate “in God’s hands.” App. 2002.

23   As the District Court recognized, Caraballo’s admission has probative value because it could



                                                      3
 1   demonstrate that Caraballo understood himself to have committed an act worthy of significant

 2   punishment. While this statement potentially admits other meanings, and in spite of a risk of any

 3   unfair prejudice that might arise by reference to the death penalty, it was not manifestly

 4   erroneous for the District Court to conclude that probative value of the statement was not

 5   substantially outweighed by the risk of unfair prejudice.

 6          Third, the District Court did not abuse its discretion in finding that Rule 403 did not bar

 7   Joshua Lopez from testifying on redirect that both he and his family had received threats in

 8   connection with his cooperation with the Government.1 On cross examination, Caraballo’s

 9   counsel strongly contested Lopez’s motivation for cooperating with law enforcement and, in fact,

10   elicited testimony from Lopez that he was threatened in the first place. As such, Lopez’s

11   re-direct testimony, which clarified his prior testimony concerning the threats, was not only

12   probative as to Lopez’s motive for testifying against Caraballo, but also hardly prejudicial given

13   that Lopez had already stated that unspecified threats had contributed to his decision to

14   cooperate. The admission of Lopez’s testimony was therefore not erroneous.

15          3. Confrontation Clause

16          Caraballo further contends that the District Court’s admission of an officer’s statement in

17   a video of Caraballo’s interrogation— that Barratt was afraid of Caraballo—violated Caraballo’s

18   rights under the Confrontation Clause.2 The Confrontation Clause prohibits the “admission of

19   testimonial statements of a witness who did not appear at trial unless he was unavailable to



     1
       The Government argues that the admission of this statement should be subject to plain-error
     review. We need not decide whether that is the applicable standard as the statement is admissible
     even were we to apply an ordinary abuse-of-discretion standard.
     2
       Again, the Government argues that the admission of this statement is subject to plain-error
     review because Caraballo failed to raise it below, but the error, if any, from its admission is
     harmless in any event.

                                                      4
 1   testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v.

 2   Washington, 541 U.S. 36, 53-54 (2004).      If we determine that evidence was admitted in

 3   violation of the Confrontation Clause, we may nevertheless affirm if we are “satisfied beyond a

 4   reasonable doubt that the error complained of . . . did not contribute to the verdict obtained.”

 5   United States v. Lee, 549 F.3d 84, 90 (2d Cir. 2008) (internal quotation marks omitted). In

 6   making this determination, we consider: “(1) the overall strength of the prosecution’s case; (2)

 7   the prosecutor’s conduct with respect to the improperly admitted evidence; (3) the importance of

 8   the wrongly admitted testimony; and (4) whether such evidence was cumulative of other

 9   properly admitted evidence.” Id. (internal quotation marks omitted)

10           The admission of the officer’s statement, if erroneous, does not require reversal because

11   any such error would be harmless. Although Caraballo contends that, because the Government’s

12   overall case was weak and the statement was central to its case, the admission of the officer’s

13   statement was not harmless, this argument ignores the fact that, within the same video, officers

14   had already stated that Barratt had told them that she was afraid of Caraballo. Given that

15   Caraballo fails to challenge the admission of this earlier statement, the mere reiteration of this

16   fact would not have been material to the verdict. This is all the more certain in light of the

17   redaction of the challenged testimony from the record and the Government’s failure to reference

18   the statement later at trial.

19           4. Withdrawal of Guilty Plea

20           Finally, we lack jurisdiction to consider Caraballo’s contention that he should be allowed

21   to withdraw his guilty plea. In his reply brief, Caraballo argues that his plea was not a “voluntary

22   and intelligent choice among the alternative courses of action open to [him],” Wilson v.

23   McGinnis, 413 F.3d 196, 198-99 (2d Cir. 2005) (quoting North Carolina v. Alford, 400 U.S. 25,



                                                       5
1    31 (1970)), because he was not aware, at time he filed his notice of appeal, that there was

2    evidence that “suggest[ed]that he was stopped in violation of the Fourth Amendment,” Reply Br.

3    2. The notice of appeal for the September 13, 2012 judgment, however, makes clear that

4    Caraballo’s appeal concerns only his sentence, and not his conviction. As a result, we lack

5    appellate jurisdiction to examine whether Caraballo should be allowed to withdraw his guilty

6    plea. See Fed. R. App. P. 3(c)(1)(B); New Phone Co., Inc. v. City of New York, 498 F.3d 127,

 7   131 (2d Cir. 2007).3

 8          We have considered the remainder of Caraballo’s arguments and find them to be without

 9   merit. Accordingly, we AFFIRM the judgment entered on November 4, 2014, and DISMISS the

10   appeal of the judgment entered on September 13, 2012 for lack of appellate jurisdiction.

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




     3
       In any event, because we conclude, in an opinion issued with this summary order, that the
     Government’s actions in arresting Caraballo did not violate the Fourth Amendment, Caraballo’s
     argument that his plea was involuntary by virtue of this search would fail regardless.

                                                      6
