19-133-cr
U.S. v. Beqiraj

                              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 19th day of December, two thousand nineteen.

PRESENT:          JOSÉ A. CABRANES,
                  RAYMOND J. LOHIER JR.,
                               Circuit Judges,
                  CHRISTINA REISS
                               District Judge.*


UNITED STATES OF AMERICA,

                         Appellee,                             19-133-cr

                         v.

FRANKIE BEQIRAJ,

                         Defendant-Appellant,

FABRICE DIAZ,
                         Defendant.




     *
     Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by
designation.

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FOR APPELLEE:                                             David Denton, Elizabeth Hanft, Anna M.
                                                          Skotko, for Geoffrey S. Berman, United
                                                          States Attorney for the Southern District
                                                          of New York, New York, NY.

FOR DEFENDANT-APPELLANT:                                  Beverly Van Ness, New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Richard M. Berman, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Defendant-Appellant, Frankie Beqiraj (“Defendant”), appeals from a December 28, 2018
judgment of conviction following a trial before Judge Berman and a jury. Superseding Indictment S1
17 Cr. 315 (RMB) charged Defendant, in one count, with participating in a narcotics conspiracy to
distribute heroin and other narcotics, in violation of 21 U.S.C. § 846. The indictment also alleged
that heroin distributed by the conspiracy caused the deaths of Robert Vivolo (“Vivolo”) and
Leonides Madrid (“Madrid”). Defendant was convicted by the jury. The jury found in a special
interrogatory that Defendant was guilty of conspiring to distribute and possess with intent to
distribute at least 100 grams of heroin but less than one kilogram of heroin, and that such conspiracy
resulted in Vivolo’s death. The jury did not hold Defendant liable for Madrid’s death. Judge Berman
sentenced Defendant to 300 months’ imprisonment, a sentence he is currently serving. On appeal,
Defendant challenges the sufficiency of the evidence of his conviction. He also argues that his
constitutional right to be present was violated when the parties exercised their peremptory juror
challenges in Judge Berman’s robing room, without Defendant present. We otherwise assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal. We find all of Defendant’s arguments without merit and affirm the judgment of the District
Court.

                                                   I.

        Defendant argues there was insufficient evidence to support his conviction. Specifically, he
challenges the sufficiency of the evidence supporting the conclusion that the conspiracy caused the
death of Vivolo. We find no merit in this argument.

        “We review sufficiency of evidence challenges de novo, but defendants face a heavy burden, as
the standard of review is exceedingly deferential.” United States v. Baker, 899 F.3d 123, 129 (2d Cir.
2018) (internal quotation marks omitted). “We must view the evidence in the light most favorable to
the [G]overnment, crediting every inference that could have been drawn in the [G]overnment’s
favor, and deferring to the jury’s assessment of witness credibility and its assessment of the weight

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of the evidence.” Id. (internal quotation marks and brackets omitted). “[W]e will sustain the jury’s
verdict if any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (internal quotation marks omitted) (emphasis in original).

        The Government offered substantial evidence at trial that Defendant’s conspiracy caused
Vivolo’s death. This included testimony from a cooperating co-conspirator, Fabrice Diaz (“Diaz”).
Diaz testified that on the morning after Vivolo’s death, Defendant told Diaz during an in-person
conversation between them that Defendant “had seen [Vivolo] the night before and he had given
[Vivolo] two bags of heroin.” Trial Transcript (“Tr.”) at 231. Diaz further testified that Defendant
repeated that admission on multiple separate occasions. Id. at 232. The Government also offered
text messages from Vivolo’s phone that corroborated Diaz’s testimony. Government Exhibit 100A;
Tr. at 414-426. These text messages indicated that Defendant had a drug-dealing relationship with
Vivolo dating back to February 2016. Text messages from Vivolo’s phone also show that on the
night before Vivolo died—the night Defendant is alleged to have sold Vivolo two bags of heroin at
Vivolo’s home—Vivolo texted Defendant asking for drugs and indicating that he was on his porch
and would see Defendant pull up to make the sale.

        Defendant argues that Diaz’s testimony could not be trusted and that the jury had found
Diaz not credible with regard to other aspects of his testimony. Defense counsel at trial subjected
Diaz to rigorous cross-examination. Defense counsel also attacked Diaz’s credibility and alleged
inconsistencies in summation. We must defer to the jury’s credibility determinations of witnesses.
United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011). The jury was also permitted to believe some
parts of Diaz’s testimony and disregard others. United States v. Norman, 776 F.3d 67, 78 (2d Cir.
2015). Additionally, our deference to the jury’s determination of witness credibility does not change
simply because a witness testified pursuant to a government cooperation agreement. United States v.
Glenn, 312 F.3d 58, 64 (2d Cir. 2002). Because we are required to “defer to the jury’s resolution of
the weight of the evidence and the credibility of the witnesses,” United States v. Payne, 591 F.3d 46, 60
(2d Cir. 2010), and to view the evidence both in totality and in the light most favorable to the
Government, we conclude that there was sufficient evidence to sustain the conviction under Count
One.

                                                    II.

        Defendant also argues that he was deprived of his constitutional right to be present during
an in camera session where the parties exercised their peremptory juror challenges, without
Defendant present. The factual circumstances presented here are similar to those in Cohen v.
Senkowski, 290 F.3d 485 (2d Cir. 2002). There we held that Cohen did not have a right to be present
during the in-chambers exercise of juror challenges, where Cohen was “represented by counsel at
these sessions, [ ] given an opportunity to consult with counsel before the sessions began, and
[where] the challenges were later effectuated in open court.” Id. at 490. Assuming arguendo that the


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factual circumstances presented here are distinguishable and that Defendant did have a right to be
present, we conclude that Defendant impliedly waived that right through his conduct.

         “Although trial courts must vigorously safeguard a criminal defendant’s right to be present, a
defendant may expressly or effectively waive the right.” United States v. Fontanez, 878 F.2d 33, 36 (2d
Cir. 1989). Defendant’s assertion that he neither knew he had a right to be present nor was
instructed that he had a right to be present is not dispositive on the question of whether he waived
the right. Cohen, 290 F.3d at 491-492. The trial court’s actions in open court gave Defendant
“sufficient minimal knowledge” of the nature and purpose of the peremptory challenge procedure.
Id. at 491 (internal quotations omitted); see Tr. at 5-6, 121-122. Defendant was represented by
counsel throughout the entire voir dire process. He was present for all other parts of the voir dire,
including the impaneling of the final jury. At no point, however, did he raise the objection he makes
now. Accordingly, we conclude that, under the circumstances presented here, Defendant waived his
right to be present during the in camera juror challenges.

                                          CONCLUSION

        We have reviewed all of the arguments raised by Defendant on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the December 28, 2018 judgment of the
District Court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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