     15-1223
     United States of America v. Encarnacion-Lafontaine

                                        UNITED STATES COURT OF APPEALS
                                           FOR THE SECOND CIRCUIT

                                                     SUMMARY ORDER

 1   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 2   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
 3   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 4   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
 5   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
 6   NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
 7   COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 8          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 9   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
10   on the 16th day of February, two thousand sixteen.
11
12   PRESENT:
13              PIERRE N. LEVAL,
14              BARRINGTON D. PARKER,
15              SUSAN L. CARNEY,
16                          Circuit Judges.
17   _________________________________________
18
19   UNITED STATES OF AMERICA,
20
21                       Appellee,
22
23                                 v.                                              No. 15-1223
24
25   EDGAR ENCARNACION-LAFONTAINE,
26
27              Defendant-Appellant.
28   _________________________________________
29
30   FOR APPELLANT:                                          Natali J.H. Todd, Brooklyn, NY.
31
32   FOR APPELLEE:                                           Emil J. Bove III, Michael A. Levy,
33                                                           Assistant United States Attorneys, for Preet
34                                                           Bharara, United States Attorney for the
35                                                           Southern District of New York, New
36                                                           York, NY.
37
 1          Appeal from a judgment of the United States District Court for the Southern District
 2   of New York (Rakoff, J.).

 3          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 4   ADJUDGED, AND DECREED that the judgment entered by the District Court on April
 5   9, 2015, is AFFIRMED.

 6          Following a jury trial, Defendant-Appellant Edgar Encarnacion-Lafontaine
 7   (“Encarnacion”) was convicted of conspiracy to distribute and possess with intent to
 8   distribute marijuana in violation of 21 U.S.C. §§ 841, 846; conspiracy to distribute and
 9   possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841, 846; conspiracy to
10   commit extortion in violation of 18 U.S.C. § 371; extortion in violation of 18 U.S.C.
11   § 875(b); and conspiracy to commit witness tampering in violation of 18 U.S.C. 1512(k).
12   Encarnacion was sentenced principally to concurrent terms of 60 months’ imprisonment on
13   the extortion conspiracy count and 180 months’ imprisonment on all other counts, as well as
14   concurrent five-year terms of supervised release on all counts. We assume the parties’
15   familiarity with the underlying facts and the procedural history of this case, to which we refer
16   only as necessary to explain our decision to affirm.

17          Encarnacion challenges several of the District Court’s evidentiary rulings. We review
18   evidentiary challenges for abuse of discretion. United States v. Nektalov, 461 F.3d 309, 318 (2d
19   Cir. 2006). Any such error will be disregarded if it is harmless. See Fed. R. Crim. P. 52(a).

20          Encarnacion first contends that threatening Facebook messages and a letter left at
21   Rafael Goris’s mother’s house should not have been admitted because they were (1) hearsay
22   and (2) inadequately authenticated. His hearsay challenge is easily dismissed because the
23   messages and the letter were not admitted for the truth of the matters asserted in them. See
24   Fed. R. Evid. 801(c)(2); see also United States v. Bellomo, 176 F.3d 580, 586 (2d Cir. 1999)
25   (“Statements offered as evidence of . . . threats . . . rather than for the truth of the matter
26   asserted therein, are not hearsay.”).

27          His authentication contentions are also unavailing. Evidence may be admitted on a
28   showing “sufficient to support a finding that the item is what the proponent claims it is.”
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 1   Fed. R. Evid. 901(a). “The ultimate determination as to whether the evidence is, in fact,
 2   what its proponent claims is thereafter a matter for the jury.” United States v. Vayner, 769
 3   F.3d 125, 130 (2d Cir. 2014).

 4          As to the Facebook messages, the Government introduced evidence that (1) the
 5   Facebook accounts used to send the messages were accessed from IP addresses connected
 6   to computers near Encarnacion’s apartment; (2) patterns of access to the accounts show that
 7   they were controlled by the same person; (3) in addition to the Goris threats, the accounts
 8   were used to send messages to other individuals connected to Encarnacion; (4) Encarnacion
 9   had a motive to make the threats, and (5) a limited number of people, including
10   Encarnacion, had information that was contained in the messages. This evidence made it
11   reasonably likely that, as the Government contended at trial, the letters and Facebook
12   messages were written by Encarnacion, and it was not error to admit them. See United States
13   v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999).

14          Our decision in Vayner, in which we vacated a conviction because we found social
15   media evidence was improperly admitted at trial, does not require a different result: In that
16   case, the only evidence suggesting that the defendant was the owner of a social media account
17   opened in his name was the fact that the account included his photograph and basic
18   biographical information about him that was known to many others. 769 F.3d at 131-33.
19   Here, there was significantly more evidence from which a jury could reasonably infer that
20   Encarnacion controlled the Facebook accounts used to threaten the Goris family.

21          The letter to Mrs. Goris was also properly authenticated. To support its assertion
22   that Encarnacion was the author of the letter, the Government introduced testimony and
23   cell site data showing that Encarnacion traveled to the neighborhood of Mrs. Goris’s home
24   on two occasions in the week before the letter was discovered, and cell site data confirmed
25   that he returned to that area on the day the letter was discovered. Additionally, Rafael Goris
26   admitted to stealing $30,000 from Encarnacion, which indicates that Encarnacion had a
27   motive to make the threat made in the letter. And in a recorded telephone call, Rafael Goris
28   and Encarnacion discussed the letter in a manner that suggests the inference that

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 1   Encarnacion was responsible for it. Under these circumstances, the District Court did not
 2   abuse its discretion in admitting the letter.

 3          Encarnacion also challenges the Government’s use of certain demonstrative exhibits
 4   created by the government, in the form of maps depicting historical cell site data and the
 5   location of Mrs. Goris’s apartment, and showing the dates a particular MetroCard linked to
 6   Encarnacion was used to access the New York City subway. The maps were shown to the
 7   jury, but not received into evidence. Encarnacion now contends that the maps somehow
 8   misled the jury. Since he does not contend that the maps contained information not in
 9   evidence, his citation to United States v. Groysman does not support his claim that the maps
10   should not have been shown to the jury. See 766 F.3d 147, 151, 159 (2d Cir. 2014). Nor has
11   he demonstrated that their design and layout made the maps in any way misleading. The
12   District Court did not abuse its discretion in allowing the maps to be shown to the jury.

13          Last, Encarnacion contends that there were a number of evidentiary errors which
14   collectively called for reversal of his conviction, even if no one individually would require it.
15   We find no errors.

16          Separate from his evidentiary challenges, Encarnacion contends that there was
17   insufficient evidence to convict him on any of the charges lodged against him. This Court
18   reviews sufficiency of the evidence challenges de novo. United States v. Anderson, 747 F.3d 51,
19   59 (2d Cir. 2014). Sufficiency challenges are subject to an “exceedingly deferential standard
20   of review,” in which a conviction must be upheld if “any rational trier of fact could have
21   found the essential elements of the crime beyond a reasonable doubt.” Id. (emphasis in
22   original) (internal quotation marks omitted).

23          Wiretapped telephone calls provided substantial evidence to support the jury’s verdict
24   that Encarnacion conspired to distribute and possess with intent to distribute marijuana. “In
25   order to convict a defendant of the crime of conspiracy, the government must show that two
26   or more persons entered into a joint enterprise for an unlawful purpose, with awareness of
27   its general nature and extent.” United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010). It is true
28   that the Government adduced no evidence tending to prove that Encarnacion actually

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 1   handled marijuana for the conspiracy. But in the recorded calls, Encarnacion and Manuel
 2   Rodriguez, the head of the marijuana distribution ring, discussed Encarnacion’s planned trip
 3   to California to pick up a marijuana load, his expected arrival, and, eventually, the fact that
 4   he was diverted from his intended route by FedEx. This sufficed to support the marijuana
 5   conspiracy conviction. As to the route change, the jury was entitled to disbelieve
 6   Encarnacion’s testimony that he was lying to Rodriguez and giving him “the runaround,”
 7   App’x at 388, and instead to credit Encarnacion’s recorded statement to Rodriguez that
 8   FedEx had surprised him by sending him on a different route.

 9          Similarly, Rafael Goris’s testimony supported Encarnacion’s conviction on the
10   cocaine conspiracy. Goris testified that he observed Encarnacion transport packages from
11   California to New York on their FedEx truck, and that Encarnacion admitted to him that
12   the packages contained cocaine. Another Government witness, the special agent who
13   interrogated Encarnacion after his initial arrest, also testified that Encarnacion had admitted
14   that “beginning a few months ago and then as recently as two weeks [ago], he had
15   transported cocaine from California to New Jersey.” App’x at 142. The jury’s verdict
16   suggests that they believed the testimony of Goris and the special agent rather than that of
17   Encarnacion. That credibility determination was the jury’s to make. See United States v.
18   O’Connor, 650 F.3d 839, 855 (2d Cir. 2011).

19          Finally, Encarnacion challenges the evidence presented on the charges of conspiracy
20   to commit extortion, extortion, and conspiracy to commit witness tampering. Each of those
21   charges required the Government to prove that Encarnacion or a co-conspirator made
22   threats of physical harm to Rafael Goris, a potential witness and the alleged thief of some of
23   Encarnacion’s drug proceeds, or to Goris’s family. Encarnacion’s sufficiency argument
24   largely reiterates his claim, discussed above, that the Facebook messages and letter to Mrs.
25   Goris should not have been admitted into evidence because there is insufficient evidence to
26   support the Government’s contention that he wrote them. For the reasons given above, the
27   circumstantial evidence adduced at trial about the nature and origin of the messages was
28   sufficient for the jury to infer that Encarnacion authored them, and that he intended to
29   threaten the Gorises with physical harm.
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1                                              * * *

2          We have considered Encarnacion’s remaining arguments on appeal and find them to
3   be without merit. For the reasons set out above, the judgment of the District Court is
4   AFFIRMED.

5                                                      FOR THE COURT:
6                                                      Catherine O’Hagan Wolfe, Clerk of Court




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