12-1330, 1391
United States v. Palma-Rodriguez


                                   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
27th day of September, two thousand thirteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         DENNIS JACOBS,
         ROSEMARY S. POOLER,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

              Appellee,

                       v.                                           No. 12-1330, -1391-cr

EDISON IVAN MOREIRA-QUIJIJE, aka CAPTAIN JUNIOR,
aka CAPTAIN, DANIEL PALMA-RODRIGUEZ

         Defendants-Appellants.*
________________________________________________

For Appellee:                               Susan Corkery and Douglas M. Pravda, Assistant
                                            United States Attorneys, for Loretta E. Lynch, United
                                            States Attorney for the Eastern District of New York,
                                            Brooklyn, NY.


         *
             The Clerk of Court is directed to amend the caption.
For Defendant-Appellant
Palma-Rodriguez:                           Randall D. Unger, Bayside, NY.



      Appeal from the United States District Court for the Eastern District of New York
(Amon, C.J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Daniel Palma-Rodriguez appeals from a judgment of conviction

filed on March 30, 2012 by the United States District Court of the Eastern District of New York

(Amon, C.J.). Palma-Rodriguez and his co-defendant Edison Moreira-Quijije were convicted of

conspiracy to import heroin, conspiracy to distribute and possess with intent to distrbute heroin,

and attempted possession with intent to distribute heroin.2 He contends that the district court

improperly admitted evidence found in the defendants’ apartment, such as a scale, box of latex

gloves, Ziploc bags, and three kilograms of a chemical used as a narcotic cutting agent, because

(1) the officers did not receive valid consent to search the apartment and (2) the evidence was

inadmissible under Federal Rule of Evidence 404(b). The defendant also argues that the district

court should have granted his motion for a new trial because the government’s key witness was

unreliable and lacked credibility. We assume the parties’ familiarity with the facts and the

procedural history of the case. For the reasons discussed below, we reject Palma-Rodriguez’s

arguments and affirm the district court.



       2
          We resolve Edison Moreira-Quijije’s appeal simultaneously with this Order by
granting the government’s motion for summary affirmance, which had been submitted in
response to an Anders brief filed by Moreira-Quijije’s counsel, and granting the counsel’s
Anders motion as well. See Anders v. California, 386 U.S. 738 (1967).

                                                 2
       Whether an individual has given voluntary consent to a search by the police is a question

of fact, and we therefore review a district court’s determination on that issue for clear error.

United States v. Moreno, 701 F.3d 64, 72 (2d Cir. 2012). The district court did not clearly err in

finding that Angela Quijije-Zambrano, Mr. Moreira-Quijije’s mother, gave valid consent for the

search. Ms. Quijije-Zambrano, who rented the apartment, had the authority to consent and

confirmed her consent both orally and in writing. The officers spoke to her in Spanish, and she

appeared to understand their questions. There was no evidence that she was subjected to any

“duress or coercion, express or implied,” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973),

and she was not under arrest at the time. Although the officers did not explain that she had the

right to refuse consent, there is no requirement that the individual giving consent must know that

she has such a right. See Moreno, 701 F.3d at 77. We also reject as pure speculation the

defendant’s argument that Quijije-Zambrano might have thought that withholding her consent

would have been futile.

       Palma-Rodriguez alternatively contends that some of the evidence obtained from the

search should have been excluded under Federal Rule of Evidence 404(b). Even if he were

correct, however, any error was harmless. See United States v. Spell, 789 F.2d 143, 144 (2d Cir.

1986) (per curiam). A co-conspirator, Lenin Diaz, testified that Palma-Rodriguez was involved

in the drug conspiracy and was present when the perpetrators were waiting for a drug courier to

arrive at LaGuardia Airport. The government also introduced a recorded phone call in which the

defendants’ alleged drug supplier told the courier to call “Daniel” (i.e., Palma-Rodriguez’s first

name) to tell him where to meet the courier. Govt’s App’x at 69. Moreover, the car used by the

defendants on the day of the crime was registered to Palma-Rodriguez’s daughter. Given the




                                                  3
strength of this evidence, the jury would have convicted Palma-Rodriguez even without the

evidence that the defendant argues should have been excluded under Rule 404(b).

       In a final effort to overturn his conviction, Palma-Rodriguez contends that the district

court should have granted him a new trial because Diaz’s testimony was unreliable and

conflicted with other record evidence. However, Diaz’s testimony was highly consistent with

the other evidence and was corroborated by phone records and recorded telephone calls. For

example, contrary to Palma-Rodriguez’s claim, there is no conflict between Diaz’s story and the

parking records at LaGuardia. Diaz testified that the defendants were waiting for the drug

courier outside the terminal, rather than in the parking lot, so the absence of parking records

placing Palma-Rodriguez’s car in the airport lot does not undermine Diaz’s testimony. Although

the defendant argues that Diaz did not mention that Palma-Rodriguez was involved in the

conspiracy when he first spoke with the police, this would not be a sufficient reason to doubt the

veracity of his testimony at trial. Given that courts should only upset a jury verdict under

“exceptional circumstances,” the district court here did not abuse its discretion by denying

Palma-Rodriguez’s motion for a new trial. See United States v. McCourty, 562 F.3d 458, 475

(2d Cir. 2009).

       We have considered Palma-Rodriguez’s remaining arguments and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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