18-1154-cr
United States v. Skyers

                               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 September, two thousand nineteen.

Present:         RALPH K. WINTER,
                 ROSEMARY S. POOLER,
                 RICHARD J. SULLIVAN,
                             Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                          v.                                                18-1154-cr

ZANE SKYERS,

                        Defendant-Appellant.
_____________________________________________________

For Appellant:                   Marsha R. Taubenhaus, New York, N.Y.

For Appellee:                    David Gopstein, Assistant United States Attorney (Kevin Trowel,
                                 Assistant United States Attorney, on the brief), for Richard P.
                                 Donoghue, United States Attorney for the Eastern District of New
                                 York, Brooklyn, N.Y.

Appeal from the United States District Court for the Eastern District of New York (Brodie, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Defendant-Appellant Zane Skyers appeals from a judgment of conviction entered in the
United States District Court for the Eastern District of New York (Brodie, J.) on April 5, 2018,
following a three-day jury trial. Skyers was found guilty of conspiracy to import cocaine, in
violation of 21 U.S.C. §§ 963 and 960(b)(3), and conspiracy to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). We assume the parties’ familiarity
with the underlying facts, procedural history, and specification of issues for review.

        Skyers primarily argues that (1) the evidence was legally insufficient to support the
inference that he knew that the object of the conspiracy was to import and distribute cocaine, and
(2) the district court erred in failing to sua sponte strike certain portions of the expert testimony
of Detective Hernandez. We reject each argument in turn.

   1. Sufficiency of the Evidence

        Although this Court reviews sufficiency of the evidence claims de novo, see United
States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010), a defendant mounting such a challenge
“bears a heavy burden,” United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) (internal
quotation marks omitted). This is because, in assessing whether the evidence was sufficient to
sustain a conviction, “we view the evidence in the light most favorable to the government,
drawing all inferences in the government’s favor and deferring to the jury’s assessments of the
witnesses’ credibility.” Sabhnani, 599 F.3d at 241 (internal quotation marks omitted). Following
this review, we “must affirm the conviction if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Kozeny, 667 F.3d
122, 139 (2d Cir. 2011) (internal quotation marks omitted).

        To establish that a defendant conspired to import cocaine and conspired to possess with
intent to distribute cocaine, the government must offer evidence that the defendant “agreed to
participate in a joint venture intended to commit an unlawful act.” United States v. Parker, 554
F.3d 230, 234 (2d Cir. 2009) (internal quotation marks omitted). Because “[c]onspiracies are
secretive by their very nature,” the law is “well-settled that the elements of a conspiracy may be
proved by circumstantial evidence.” United States v. Svoboda, 347 F.3d 471, 477 (2d Cir. 2003).
“Circumstantial evidence probative of [a defendant’s knowledge of the object of a] conspiracy
may include, for example, a defendant’s association with conspirators in furtherance of the
conspiracy, his presence at critical stages of the conspiracy that cannot be explained by
happenstance, or his possession of items that are of essential significance to the conspiracy.”
United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014) (citations and internal quotation marks
omitted).

         First, Skyers calls attention to the lack of direct evidence the government produced at
trial. See Anderson, 747 F.3d at 60; see also Svoboda, 347 F.3d at 477. But circumstantial
evidence alone may be sufficient to prove conspiracy. See Svoboda, 347 F.3d at 477. Here,
Skyers not only associated with Nicky, but he orchestrated Silvera’s trip and his introduction to
Nicky. Skyers first approached Silvera, and Skyers drove from Boston to John F. Kennedy



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Airport to pick up Silvera after he completed his task in St. Lucia. Finally, Skyers arranged for
payments to Silvera. Such circumstantial evidence was sufficient for the jury to infer Skyers’s
knowledge of the object of the conspiracy.

        Next, Skyers essentially dissects each piece of evidence the government provided and
explains how a different inference could be drawn from it. For example, Skyers argues that he
could have been “merely a worker for hire like Silvera,” Appellant’s Br. at 37, that he (and
possibly unspecified others) could have simply intended to pick up Silvera, but not the suitcase,
from the airport, and that Nicky offered Silvera $8,000 and Skyers only offered him $4,000
because Nicky, but not Skyers, knew that drugs were involved. But “the task of choosing among
competing, permissible inferences is for the fact-finder, not for the reviewing court,” United
States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001), and “we must credit every inference that
could have been drawn in the government’s favor,” United States v. Masotto, 73 F.3d 1233, 1241
(2d Cir. 1996) (internal quotation marks omitted). Doing so here, we find that a rational jury
could have found the elements of the charged crimes beyond a reasonable doubt.

   2. Expert Testimony

        Skyers next argues that the district court failed to exercise its gatekeeping function when
it allowed Detective Hernandez to give expert testimony that he contends was irrelevant,
unreliable, and unfairly prejudicial. This argument also fails.

         We review a trial court’s decision to admit expert testimony for abuse of discretion.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). “A decision to admit [expert
testimony] is not an abuse of discretion unless it is manifestly erroneous.” United States v.
Salameh, 152 F.3d 88, 129 (2d Cir. 1998) (internal quotation marks omitted). Where a defendant
fails to raise a challenge to expert testimony at trial, this Court’s review is limited to plain error.
See Johnson v. United States, 520 U.S. 461, 466-67 (1997). Under this standard, the defendant
bears the burden of demonstrating “that (1) there was error, (2) the error was plain, [and] (3) the
error prejudicially affected his substantial rights.” United States v. Torrellas, 455 F.3d 96, 103
(2d Cir. 2006) (alteration in original) (internal quotation marks omitted). If the defendant meets
this burden, we may exercise our discretion to correct the error if it “seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in original)
(internal quotation marks omitted).

         First, Skyers argues that Hernandez’s expert testimony concerning the “flow of drug
trafficking money” was irrelevant because it “was simply not at issue.” Appellant’s Br. at 47.
“Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it
would be without the evidence; and . . . the fact is of consequence in determining the action.”
Fed. R. Evid. 401. Under Federal Rule of Evidence 702, an expert witness may provide opinion
testimony if his or her “scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Hernandez
testified that, following distribution of imported narcotics in the United States, “the monies from
the sale of those narcotics will be transported back or sent back to the source of supply.” Gov’t
App’x at 98. As the government correctly summarized, Hernandez generally explained “the way
the drug trafficking circle works, the drugs come in and the money comes out.” Gov’t App’x at



                                                   3
106. Such testimony was relevant to helping the jury understand the general nature of
international narcotics trafficking organizations.

        Next, Skyers argues for the first time on appeal that Hernandez’s expert testimony was
unreliable because Hernandez “testified that cocaine is not exported out of the United States” and
that assertion is not true. Appellant’s Br. at 48. Hernandez was asked, “Now in your experience
have you seen the process that you just described in reverse, such that drugs were leaving the
country and money was coming in?” Gov’t App’x at 115. Hernandez responded, “No. The
United States doesn’t cultivate or produce drugs of the type that come from overseas, such as
cocaine and heroin. Those types of drugs are cultivated outside of the United States. So the
United States being the biggest consumer of especially of cocaine and now of heroin, the drugs
come in and of course the proceeds for those drugs, for the sale of those drugs, go back out to
their sources overseas.” Gov’t App’x at 115. Given that Hernandez answered a question about
his “experience,” the district court did not commit plain error in failing to sua sponte strike the
testimony as unreliable.

         Finally, Skyers argues—also for the first time on appeal—that Hernandez’s testimony ran
“afoul of Rule 704(b)” because Hernandez testified that 1.5 kilograms of cocaine is related to
distribution, rather than personal use. Federal Rule of Evidence 704(b) prohibits an expert
witness in a criminal case from “stat[ing] an opinion about whether the defendant did or did not
have a mental state or condition that constitutes an element of the crime charged or of a defense.”
Fed. R. Evid. 704(b). The rule serves to “disable[] even an expert from expressly stating the final
conclusion or inference as to a defendant’s actual mental state at the time of a crime.” United
States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993) (internal quotation marks omitted). “It
is only as to the last step in the inferential process — a conclusion as to the defendant’s actual
mental state — that Rule 704(b) commands the expert to be silent.” Id. (internal quotation marks
omitted). Here, Hernandez was asked, “In your opinion, possession of just under 1500 grams of
cocaine, is that personal use or distribution?” Gov’t App’x at 120. Hernandez responded, “It is
absolutely not related to personal use. It is absolutely related to distribution.” Gov’t App’x at
120. Hernandez thus testified that 1500 grams of cocaine is related to distribution, rather than
personal use. He did not testify that Skyers intended to distribute cocaine. Accordingly, the
district court did not commit plain error in failing to sua sponte strike Hernandez’s testimony on
the issue of distribution.

        We have considered the remainder of Skyers’s arguments and find them to be without
merit. Accordingly, we hereby AFFIRM the district court’s judgment.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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