    17-914-cr
    United States v. Dominguez
                        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.

          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 27th day of February, two thousand eighteen.

    PRESENT:
                   BARRINGTON D. PARKER,
                   PETER W. HALL,
                   RAYMOND J. LOHIER, JR.,
                       Circuit Judges.



    UNITED STATES OF AMERICA,

                           Appellee,

                   v.                                               No. 17-914-cr

    ALVARADO DOMINGUEZ, AKA JOCHI,

                           Defendant-Appellant,

    MARTIN AVALO, ANDY MACCOW, CARLOS VALLEJO,
    AKA YAYO, KROUCHE DELEON,

                           Defendants.


    Appearing for Appellee:            HAGAN SCOTTEN, Assistant United States Attorney,
                                       (David W. Denton, Jr., Daniel B. Tehrani Assistant
                                       United States Attorneys, on the brief), for Geoffrey S.
                                       Berman, United States Attorney for the Southern
                                       District of New York, New York, N.Y.

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Appearing for Appellant:     MEREDITH S. HELLER, Law Office of Meredith S. Heller,
                             PLLC, (Ira D. London, London & Robin, on the brief),
                             New York, N.Y.



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

District of New York (Pauley, III, J.).

      UPON       DUE     CONSIDERATION,         IT   IS    HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Defendant Alvarado Dominguez appeals from a judgment of conviction entered

upon a jury verdict finding him guilty of one count of conspiracy to commit Hobbs Act

robbery in violation of 18 U.S.C. § 1951, one count of attempted Hobbs Act robbery in

violation of 18 U.S.C. § 1951, and one count of firearms possession during the Hobbs

Act conspiracy and attempted robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). We

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

the case, and the issues on appeal.

      Dominguez asserts that the district court erred in conditionally ruling that

cross-examination of a cooperating government witness about the authenticity of the

gun used in the conspiracy and attempted robbery would open the door for the

government to introduce evidence relating to a 2006 home invasion robbery under

Federal Rule of Evidence 404(b). We conclude Dominguez’s failure to challenge the

district court’s adverse decision about the Rule 404(b) evidence, by pursuing the

defense and having the evidence admitted, constitutes a waiver of any claim of error

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in the court’s decision. See United States v. Ortiz, 857 F.2d 900, 906 (2d Cir. 1988).

The court ruled that it would admit evidence of Dominguez’s prior participation in

the 2006 home invasion robbery if defense counsel pursued a defense of the firearm

not being real or operable, but the effect of the court’s decision remained inchoate

because defense counsel did not insist on making that argument, and the evidence of

the previous robbery was never admitted. This Court is therefore precluded from

reviewing this claim on appeal. See id. at 905–06. As the panel in Ortiz held, the

proper method to “preserve a claim of error in similar circumstances is to take the

position that leads to the admission of the adverse evidence, in order to bring a fully

developed record to this Court. Otherwise, as in Luce, the reviewing court is obliged

to indulge in unacceptable appellate speculation.” Id. at 906 (citing Luce v. United

States, 469 U.S. 38 (1984)). For the foregoing reasons, we hold that Dominguez

waived any appellate claim based on the district court’s conditional ruling regarding

the Rule 404(b) other acts evidence.

      Having considered Dominguez’s double jeopardy and collateral estoppel

claims, we conclude they also lack merit. Dominguez was neither prosecuted for, nor

convicted of, the instant conspiracy and attempted robbery charges in the proceeding

in which he pled guilty to conspiring to burglarize pharmacies before Judge Carter.

Even if Judge Carter considered the conspiracy and attempt in sentencing

Dominguez for the pharmacy burglaries, that consideration does not implicate double

jeopardy concerns. See Witte v. United States, 515 U.S. 389, 398 (1995) (“[W]e

specifically have rejected the claim that double jeopardy principles bar a later



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prosecution or punishment for criminal activity where that activity has been

considered at sentencing for a separate crime.” (citing Williams v. Oklahoma, 358

U.S. 576 (1959))). Nor did the district court in the instant case try or punish

Dominguez on any charges but the conspiracy and attempted Hobbs Act robbery and

gun charges relating to the home invasion.

      For the bar of collateral estoppel to apply:

          (1) the issues in both proceedings must be identical, (2) the issue
          in the prior proceeding must have been actually litigated and
          actually decided, (3) there must have been a full and fair
          opportunity for litigation in the prior proceeding, and (4) the issue
          previously litigated must have been necessary to support a valid
          and final judgment on the merits.

Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986). The burden is on the

defendant “to establish that the issue he seeks to foreclose from litigation in the

present prosecution was necessarily decided in his favor by the prior verdict.” United

States v. Citron, 853 F.2d 1055, 1058 (2d Cir. 1988) (quoting United States v. Cala,

521 F.2d 605, 608 (2d Cir. 1975)). Dominguez pled guilty in the pharmacy burglaries

case, and, as a result, the district court in that case never litigated any issues relating

to Dominguez’s participation in the instant and unrelated Hobbs Act conspiracy and

attempted robbery. It is necessarily the case, therefore, that Dominguez is unable to

establish that collateral estoppel should preclude his prosecution. See United States

v. Chestaro, 197 F.3d 600, 609 (2d Cir. 1999); Gelb, 798 F.2d at 44.




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    Accordingly, the judgment of the district court against Dominguez is

AFFIRMED.

                          FOR THE COURT:
                          CATHERINE O’HAGAN WOLFE, Clerk of Court




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