14-1285-cr
United States v. Young


                                                     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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
17th day of November, two thousand and fifteen.

Present:
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges,
            CHRISTINA REISS,
                        District Judge.*
____________________________________________________

UNITED STATES OF AMERICA,

                                            Appellee,

                             v.                                                                        No. 14-1285-cr

OSBORNE YOUNG,

                  Defendant-Appellant.
_______________________________________________

For Defendant-Appellant:                                   CHRISTOPHER BOOTH (Brandon Walters on the brief), Lipman &
                                                           Booth, LLC, New York, NY for Osborne Young.

For Appellee:                                              MONICA J. RICHARDS, Assistant United States Attorney, for
                                                           William J. Hochul, Jr., United States Attorney, Buffalo, NY.
                                                            
              *
         Hon. Christina Reiss, United States District Court for the District of Vermont, sitting by
designation.
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____________________________________________________

       Appeal from a judgment of the United States District Court for the Western District of

New York (Arcara, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Following a jury trial, Osborne Young was convicted on charges of importing a

controlled substance into the United States, 21 U.S.C. § 952, possessing with intent to distribute

a controlled substance, 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), and fraudulently importing

merchandise into the United States, 18 U.S.C. § 545. Young, a self-employed truck driver, was

arrested when twenty-six packages of 1-benzylpiperazine, also known as ecstasy, pills were

found in the refrigeration unit of his tractor trailer when he crossed the United States border from

Canada. We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

       Young contends the district court erred in granting the government’s motion in limine to

exclude his expert testimony addressing drug traffickers’ use of “blind mules.” We review the

district court’s decision to exclude expert testimony under Federal Rule of Evidence 702 for

abuse of discretion. United States v. Williams, 506 F.3d 151, 159–60 (2d Cir. 2007). Under

Rule 702, district courts are charged with “the task of ensuring that an expert’s testimony both

rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 597 (1993). In this case, the foundation for Young’s blind mule

theory consisted of his own testimony that a man named Raffi, who he had met in the Truck

Town parking lot on the Canadian side of the border, had likely planted the drugs in his tractor

trailer. Based on Young’s testimony that Raffi gave him information regarding an order pickup


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and that Young sent himself the information on his cell phone via text message, the trial court

ruled that there was insufficient evidence in the record to support admission of the expert

testimony.

       We conclude that the district court did not abuse its discretion in excluding the testimony,

given that Young provided so little factual basis to support its admission. Even if the trial court

had erred in finding the evidence inadmissible, any such error would have been harmless beyond

a reasonable doubt. See Fed. R. Crim. P. 52(a). Young was not prevented from presenting his

blind mule theory of the case and indeed extensively relied on that theory throughout the trial.

Considering the other strong evidence against Young, it is exceedingly unlikely that admission of

the expert testimony would have affected the outcome.

       Young further contends that the prosecution’s reference during summation to his “non-

reaction” when confronted with incriminating evidence by a border patrol agent infringed on his

Fifth Amendment privilege against self-incrimination. As an initial matter, the government’s

contention that the prosecutor commented on the defendant’s demeanor, not his silence, is

unpersuasive. Although the officer testified during trial that the defendant was “calm” and

“didn’t make eye contact,” referring to his demeanor, the prosecutor did not emphasize those

facts during summation but instead emphasized the defendant’s non-reaction, claiming it was

evidence of his guilt. See United States v. Velarde-Gomez, 269 F.3d 1023, 1031 (9th Cir. 2001)

(holding that, where defendant “did not physically or emotionally react when confronting

incriminating evidence,” government’s comment on defendant’s “non-reaction” passed judgment

on his silence, not his demeanor, and infringed his privilege against self-incrimination).

       We need not decide this question of whether the evidence that a suspect remained silent

before he was arrested or taken into custody may be used in the government’s case in chief or



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referred to in its summation because, even assuming without deciding that the district court erred

in allowing these isolated comments, the error was harmless. The prosecutor’s comments were

peripheral to the government’s case. In any event, “[r]emarks of the prosecutor in summation do

not amount to a denial of due process unless they constitute ‘egregious misconduct.’” United

States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999) (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 647 (1974)). “In assessing whether the comments complained of meet this test, we consider

the severity of the misconduct, the measures adopted to cure it, and the certainty of conviction in

the absence of the misconduct.” Id. (internal quotation omitted). Here, the prosecutor’s remarks

on Young’s “non-reaction” were not inflammatory or unfairly prejudicial. Cf. id. at 79

(concluding that accusations during summation that the defendant was a “liar” were not unduly

prejudicial if supported by evidence). Further, the evidence against Young, while not

overwhelming, was strong. See id. at 78.

       Finally, Young contends that his sentence was procedurally and substantively

unreasonable. This court reviews a district court’s sentence for “reasonableness,” a concept that

encompasses both procedural and substantive review. United States v. Cavera, 550 F.3d 180,

187–89 (2d Cir. 2008) (en banc). We review the substantive reasonableness of a sentence under

a “deferential abuse-of-discretion standard.” Cavera, 550 F.3d at 189 (quoting Gall v. United

States, 552 U.S. 38, 41 (2007)). “This degree of deference is only warranted, however, once we

are satisfied that the district court complied with the Sentencing Reform Act’s procedural

requirements,” including proper calculation of the defendant’s guideline range. Id. (emphasis

omitted).

       Young appeals the district court’s application of a two-level enhancement for obstruction

of justice pursuant to U.S.S.G. § 3C1.1. An enhancement under § 3C1.1 is required where the



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district court determines that the defendant “willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the . . . prosecution . . . of the

instant offense of conviction . . . .” The district court’s application of an obstruction-of-justice

enhancement is subject to a mixed standard of review. United States v. Cassiliano, 137 F.3d

742, 745 (2d Cir. 1998). “The sentencing court’s findings as to what acts were performed, what

was said, what the speaker meant by her words, and how a listener would reasonably interpret

those words will be upheld unless they are clearly erroneous.” Id. “A ruling that the established

facts constitute obstruction or attempted obstruction under the Guidelines, however, is a matter

of legal interpretation and is to be reviewed de novo, giving ‘due deference to the district court’s

application of the guidelines to the facts.’” Id. (quoting 18 U.S.C. § 3742(e)) (internal citations

omitted).

        Because the § 3C1.1 enhancement must be imposed only if the obstruction, or attempted

obstruction, was “willful[],” application of the Guideline to such cases is generally limited to

those in which “the defendant had the specific intent to obstruct justice.” Id. at 747 (internal

quotations and citations omitted). “In determining the intent with which a defendant acted, a

district court is entitled to rely on circumstantial evidence and on all reasonable inferences that

may be drawn from all of the evidence.” Id. The facts necessary to support an obstruction-of-

justice enhancement need be proven only by a preponderance of the evidence. United States v.

Khedr, 343 F.3d 96, 102 (2d Cir. 2003).

        Here, it was not error for the district court to find “that the defendant’s denial of

knowledge or possession of drugs was wholly inconsistent with the other testimony and evidence

at trial as well as the jury’s finding.” Sentencing Hr’g Tr. 5. While we are mindful that the mere

“fact that a defendant who testifies at trial is disbelieved by the jury and convicted is not alone



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sufficient evidence of perjury to bring about sentence enhancement,” United States v. Shonubi,

998 F.2d 84, 88 (2d Cir. 1993), Young’s knowledge of the drugs was a specific element of the

offenses for which he was tried. His denial of knowledge during his direct testimony was wholly

incredible, as the district court concluded, and could not be attributed to “confusion, mistake, or

faulty memory.” Id. Thus, Young’s testimony supported a finding that his “false testimony

concerned material matters and was given with a willful intent to provide false testimony.” Id.

       Finally, Young asserts that his mid-Guidelines sentence of 166 months was substantively

unreasonable. Because Young provides no basis for his contention, we decline to address it. See

United States v. Regalado, 518 F.3d 143, 149–50 (2d Cir. 2008) (noting that arguments not

raised on appeal are ordinarily forfeited).

       For these reasons, the judgment of the district court is AFFIRMED.



                                              FOR THE COURT:

                                              CATHERINE O’HAGAN WOLFE, CLERK

 




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