11-4751-cr
United States v. Hernandez (Barreto)

                               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
28th day of March, two thousand thirteen.

Present:
                 CHESTER J. STRAUB,
                 PETER W. HALL,
                 CHRISTOPHER F. DRONEY,

                        Circuit Judges.
____________________________________________________

United States of America,

               Appellee,

v.                                                                  No. 11-4751-cr

Omar Hernandez,

               Defendant,

Jazmine Barreto,

          Defendant - Appellant.
____________________________________________________




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FOR APPELLANT:                    GERALD T. WALSH, Zdarsky, Sawicki & Agostinelli LLP, Buffalo,
                                  New York.


FOR APPELLEE:           STEPHAN J. BACZYNSKI , Assistant United States Attorney, of
                        counsel for William J. Hochul, Jr., United States Attorney for the
                        Western District of New York, Buffalo, New York.
____________________________________________________


        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.

        Defendant-Appellant Jazmine Barreto (“Barreto”) was arrested in 2008, and indicted in

2009 on charges of conspiracy to possess with intent to distribute five hundred grams or more of

cocaine in violation of 21 U.S.C. § 846, and possession with intent to distribute that same

amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).1 Barreto was also

charged with two counts of using a telephone in furtherance of the possession and conspiracy

offenses in violation of 21 U.S.C. § 843(b). She was convicted on all counts on April 20, 2011

after a trial by jury. Post-trial, Barreto moved for a judgment of acquittal under Fed. R. Crim. P.

29 or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33. The district court denied

the motion, and Barreto was sentenced to, inter alia, 63 months’ imprisonment. She now timely

appeals both her conviction and her sentence. We assume the parties’ familiarity with the factual

and procedural background of this case, and will proceed to address each argument in turn.




1
  The government amended the superseding indictment, replacing the 21 U.S.C. § 841(b)(1)(A) charge with the
lesser included offense under § 841(b)(1)(B).


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A. Trial Challenges:

       1. Alleged Perjured Testimony:

       Barreto’s first contention is that a prosecution witness, Nemencio Rosario (“Rosario”)

committed perjury by exaggerating the quantities of cocaine that he purchased from her. Barreto

argues that the price Rosario claims to have paid for the cocaine shows that each of the deals he

testified about would have involved five ounces of cocaine rather than nine ounces as the witness

claimed. Barreto also asserts that wiretapped conversations between Rosario and his brother

showed that Rosiaro routinely had trouble obtaining the necessary funds to purchase larger

quantities of cocaine.

       We “review motions for a new trial under an ‘abuse-of-discretion’ standard.” United

States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009). “A district court abuses or exceeds the

discretion accorded to it when (1) its decision rests on an error of law . . . or a clearly erroneous

factual finding, or (2) its decision-though not necessarily the product of a legal error or a clearly

erroneous factual finding−cannot be located within the range of permissible decisions.” United

States v. Owen, 500 F.3d 83, 87 (2d Cir. 2007) (internal quotation marks omitted). When a

defendant claims that a new trial is required because a witness committed perjury, the defendant

must show that, “(i) the witness actually committed perjury ...; (ii) the alleged perjury was

material ...; (iii) the government knew or should have known of the perjury at [the] time of trial

...; and (iv) the perjured testimony remained undisclosed during trial....” United States v.

Josephberg, 562 F.3d 478, 494 (2d Cir. 2009) (internal quotation omitted). A witness perjures

himself when he, “gives false testimony concerning a material matter with the willful intent to

provide false testimony, as distinguished from incorrect testimony resulting from confusion,




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mistake, or faulty memory.” United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001); see

also United States v. Zichettello, 208 F.3d 72, 102 (2d Cir. 2000).

       Contradictions in testimony that do not amount to perjury are properly considered by the

jury when determining the weight that a witness’s evidence may bear. See United States v.

Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) (“It long has been our rule that trial courts must

defer to the jury’s resolution of the weight of the evidence and the credibility of the witnesses.”)

(internal quotation omitted). Such contradictions should not provide a basis for the court to

usurp the role of the finder of fact. We have previously cautioned that “[r]eversal of a conviction

based upon allegations of perjured testimony should be granted only with great caution and in

the most extraordinary circumstances.” Zichettello, 208 F.3d at 102 (internal quotation omitted).

       The district court, which presided over the trial and is in the best position to evaluate the

evidence before it, determined that Barreto failed to show that a government witness committed

perjury, let alone that the government either knew or should have known of that perjury. The

contradictions in Rosario’s testimony were exposed at trial through the testimony of his brother,

and through wiretap recordings of phone calls. When there are conflicting versions of events, it

is for the jury to decide which witness to credit. Cf. United States v. Ferguson, 246 F.3d 129,

133-34 (2d Cir. 2001) (“Because the courts generally must defer to the jury’s resolution of

conflicting evidence and assessment of witness credibility, it is only where exceptional

circumstances can be demonstrated that the trial judge may intrude upon the jury function of

credibility assessment.”) (internal quotation and alteration omitted).

       In light of the evidence presented, we see no reason on appeal to disturb the lower court’s

conclusion. We note that using either calculation of the weight of the cocaine involved in the

transactions at issue Barreto is still responsible for more than 500 grams of cocaine as was




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charged in the Amended Superseding Indictment, and there is, therefore, no merit to a challenge

to the sufficiency of the evidence. There has been no showing that the witness’s wavering with

respect to the amount involved in each transaction is the result of perjury as opposed to a faulty

memory. The assessment of the witness’s credibility was properly left in the capable hands of

the trial jury.

        2. Evidentiary Objections:

        Barreto next challenges the admission of certain hearsay statements of co-conspirators at

trial. Her main contention is that there was insufficient evidence before the district court for it to

have found that the statements were made during and in furtherance of the charged conspiracy,

which took place from 2007 to 2008. The district court’s admission of “alleged hearsay evidence

is reviewed only for ‘clear error.’” United States v. Padilla, 203 F.3d 156, 161 (2d Cir. 2000)

(citing United States v. Orena, 32 F.3d 704, 711 (2d Cir. 1994)). Prior to admitting a statement

under Rule 801(d)(2)(E) that is asserted to be hearsay, a court must determine that the statement

satisfies the rule. “There must be evidence that there was a conspiracy involving the declarant

and the nonoffering party, and that the statement was made during the course and in furtherance

of the conspiracy.” Bourjaily v. United States, 483 U.S. 171, 175 (1987) (internal quotation

omitted). Preliminary questions of this nature are to be resolved by the court by a preponderance

of the evidence, which may include reference to the hearsay statements themselves so long as

other independent evidence corroborates the fact of the defendant’s participation in the

conspiracy. Id. at 175-76, 181; see also United States v. Desena, 260 F.3d 150, 158 (2d Cir.

2001) (“In determining whether a conspiracy existed, the district court may consider the hearsay

statement itself, but there must be some independent corroborating evidence of the defendant’s

participation in the conspiracy.” (internal quotation omitted)).




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       Any improper admission of co-conspirator testimony is subject to harmless error analysis.

United States v. Monteleone, 257 F.3d 210, 221 (2d Cir. 2001). Under the harmless error

framework, the court considers “‘(1) the overall strength of the prosecution’s case; (2) the

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

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

admitted evidence.’” United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007) (quoting

Zappulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004)). In the present case, there was ample

circumstantial evidence that showed Barreto’s involvement in the charged conspiracy between

2007 and 2008. It is also clear from the challenged testimony that the statements in question

were made during and in furtherance of the charged conspiracy in 2007 and 2008. See Fed. R.

Evid. 801(d)(2)(E). Moreover, in light of the totality of the evidence supporting Barreto’s

conviction, even if the district court did err, any such error was harmless. We decline to vacate

the defendant’s conviction on this ground.

B. Sentencing Challenges:

       This court reviews sentences for reasonableness, which is “a deferential standard limited

to identifying abuse of discretion.” United States v. Lee, 653 F.3d 170, 173 (2d Cir. 2011)

(internal quotation marks omitted). “Reasonableness review consists of two prongs: first, we

must ensure that the district court committed no significant procedural error, and second, if we

find the sentence to be procedurally sound, we must take into account the totality of the

circumstances and consider the substantive reasonableness of the sentence.” Id. (internal

quotation marks omitted). Barreto brings two procedural challenges to her sentence. First, she

claims that the district court erred by declining to hold an evidentiary, or Fatico, hearing where

there were disputed facts regarding whether or not she qualified for safety-valve relief under 18




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U.S.C. § 3553(f). Next, she claims that the district court improperly denied her a departure or

variance in light of the sentencing factors listed in 18 U.S.C. § 3553(a).

       Under 18 U.S.C. § 3553(f)(5), a defendant must give “the Government all information

and evidence [s]he has concerning [her] offense,” in order to be eligible for safety-valve relief

from a mandatory minimum sentence. A defendant who seeks to take advantage of the safety-

valve provision bears the burden of proving by a preponderance of the evidence that “he has

provided the requisite truthful information to the government.” United States v. Jimenez, 451

F.3d 97, 102 (2d Cir. 2006) (per curiam). “Once the government has carried its burden to prove

those facts which trigger imposition of a mandatory-minimum sentence, the safety valve operates

to impose on the defendant the burden to prove that he is eligible for relief from the mandatory

minimum sentence.” Id.

       While it is common for sentencing courts to hold a Fatico hearing in order to resolve

factual disputes at sentencing, “‘[t]he district court is not required, by either the Due Process

Clause or the federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in

resolving sentencing disputes. All that is required is that the court afford the defendant some

opportunity to rebut the Government's allegations.’” United States v. Phillips, 431 F.3d 86, 93

(2d Cir.2005) (quoting United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir.1996)).

       At the initial sentencing in this case, Barreto’s counsel requested a Fatico hearing so that

the district court could hear evidence regarding Barreto’s proffer and determine whether she was

eligible for safety-valve relief. At that time it was undisputed that Barreto had not fully

disclosed all the information that she knew during the proffer because she would not give the

government the name of her cocaine supplier. The court adjourned proceedings for a week in

order to give Barreto an opportunity to decide whether she was willing to make a more full




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disclosure. Barreto then made a more complete proffer to the government, and the court granted

another extension so that the parties could define their positions on the safety-valve issue. After

further submissions by the government, the probation department and Barreto, the court fully

considered the evidence before it and determined that a hearing was not required. Based on the

information before it, and the ample opportunities Barreto had to contest the government’s

evidence through written submissions, the district court did not err in refusing to hold a Fatico

hearing on the issue of the safety-valve proffer.

       After concluding that the § 3553(f) safety-valve did not apply, the district court noted

that, in the alternative, it was unnecessary to resolve the safety-valve and offense-level disputes

because the appropriate custodial sentence was at the intersection of the Guidelines ranges with

and without the safety valve. See United States v. Bermingham, 855 F.2d 925, 931 (2d Cir.

1988). With respect to consideration of the § 3553(a) factors, the district court need not consider

each individually and must “satisfy [this Court] only that it has considered the party’s arguments

and has articulated a reasonable basis for exercising its decision-making authority.” United

States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010). We have made clear that, “disputed

sentencing issues need not be resolved where the sentencing court (i) could, consistent with the

Guidelines, have imposed the same sentence regardless of the outcome of the dispute, and (ii)

indicates that it would have done so.” United States v. Borrego, 388 F.3d 66, 69 (2d Cir. 2004).

This is just such a case. After consideration of all of the relevant facts and circumstances, the

court imposed a sentence of, inter alia, sixty-three months’ imprisonment, which was just three

months above the mandatory minimum and fit squarely and intentionally within the overlap of

the disputed guideline ranges. There is, therefore, no reversible error and the sentence imposed

by the district court is AFFIRMED.




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Conclusion

       We have considered the remainder of Barreto’s arguments and find them without merit.

For the reasons stated above, the judgment of the district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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