     08-5952-cr
     United States v. Pepin

                          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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1 st day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                              Senior Circuit Judge,
10                CHRISTOPHER F. DRONEY, *
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       United States of America,
15                Appellee,
16
17                    -v.-                                               08-5952-cr
18
19       Humberto Pepin, also known as Homberto
20       Pepin Taveras, also known as Tony,
21                Defendant-Appellant.
22       - - - - - - - - - - - - - - - - - - - -X
23


                *
               Christopher F. Droney, Judge of the United States
         District Court for the District of Connecticut, sitting by
         designation.

                                                  1
 1   APPEARING FOR APPELLANT:   LOUIS M. FREEMAN (Zoe J. Dolan,
 2                              of counsel, on the brief),
 3                              Freeman Nooter & Ginsberg, New
 4                              York, NY.
 5
 6   APPEARING FOR APPELLEE:    PETER A NORLING (Lee J.
 7                              Freedman, Walter Norkin, Carter
 8                              Burwell, on the brief),
 9                              Assistant United States
10                              Attorneys, of counsel, for
11                              Benton J. Campbell, United
12                              States Attorney, Eastern
13                              District of New York, Brooklyn,
14                              NY.
15
16        Appeal from a judgment of the United States District
17   Court for the Eastern District of New York (Weinstein, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the judgment of the district court be
21   AFFIRMED.
22
23        Humberto Pepin appeals from a judgment of conviction
24   and sentence entered November 14, 2008 in the United States
25   District Court for the Eastern District of New York
26   (Weinstein, J.). During a previous incarceration for
27   narcotics offenses, Pepin confessed to two murders.
28   Prosecutors brought charges and sought the death penalty.
29   He was convicted of two counts of murder while engaged in
30   drug trafficking in violation of 21 U.S.C. § 848(e)(1)(A)
31   and one count of obstruction of justice in violation of 18
32   U.S.C. § 1512(b)(3), and sentenced principally to two terms
33   of life imprisonment without the possibility of release and
34   one term of ten years. We otherwise assume familiarity with
35   the underlying facts and the case’s procedural history.
36
37        Pepin raises four issues on appeal, none justifying
38   vacatur.
39
40   [1] First, Pepin argues that his uncounseled confessions
41   were admitted at trial in violation of his Sixth Amendment
42   right to counsel with respect to his previous narcotics
43   offenses. In considering this argument, “we review findings
44   of fact for clear error and questions of law de novo,”
45   United States v. Mills, 412 F.3d 325, 328 (2d Cir. 2005);
46   and we apply harmless error analysis, e.g. Milton v.
47   Wainwright, 407 U.S. 371, 372 (1972). There was no error

                                  2
 1   because Pepin waived his Sixth Amendment right. The
 2   district court found that Pepin’s July 31, 2002 1 statements
 3   were made after he was read his Miranda rights, verbally
 4   confirmed that he understood them, and signed the Miranda
 5   card. (Pepin does not take issue with these findings.)
 6   These actions were sufficient to waive Pepin’s Sixth
 7   Amendment right to counsel. See Patterson v. Illinois, 487
 8   U.S. 285, 288, 293 (1988) (defendant who was read his
 9   Miranda rights and signed a Miranda waiver, and then
10   voluntarily answered questions, waived his Sixth Amendment
11   right to counsel).
12
13   [2] Pepin next argues that the district court erred by
14   admitting certain hearsay statements under the former
15   testimony exception set out in Rule 804(b)(1) of the Federal
16   Rules of Evidence. We review for abuse of discretion, e.g.
17   United States v. Wexler, 522 F.3d 194, 201-02 (2d Cir.
18   2008), and apply harmless error analysis, Fed. R. Evid.
19   103(a). Though we recognize that the government did not
20   attempt to locate the hearsay declarant abroad (even though
21   he had testified previously that he intended to return to
22   his native Dominican Republic), any error in admitting the
23   hearsay statements (assuming there was error) was harmless.
24   The substance of the contested hearsay statements was
25   independently supplied by the testimony of Julia Mendez and
26   by Pepin himself.
27
28   [3] Third, Pepin argues that the district court improperly
29   instructed the jury on the elements of the obstruction
30   charge. We review jury instructions de novo, applying
31   harmless error analysis. United States v. Hassan, 578 F.3d
32   108, 128 (2d Cir. 2008) (amended opinion). There is no
33   error. Pepin’s contention that the district court should
34   have instructed the jury to find that Pepin “knew . . . that
35   the criminal proceeding [obstructed] was or would be
36   federal” 2 is rebutted by statute and caselaw. See 18 U.S.C.


         1
           Although Pepin mentions his July 31, 2002; October
     15, 2002; and January 15, 2002 statements in his papers, he
     assigns error only to the admission of his July 31, 2002
     statements.
         2
           Insofar as Pepin also argues for the first time in
     his reply brief that the district court should have
     instructed the jury to find a nexus between Pepin’s actions
     and a foreseeable proceeding, that argument is forfeited.

                                   3
 1   § 1512(g) (“no state of mind need be proved with respect to
 2   the circumstance” that the affected proceeding or officer is
 3   federal); United States v. Diaz, 176 F.3d 52, 90-91 (2d Cir.
 4   1999) (same).
 5
 6   [4] Finally, Pepin contends that the evidence adduced at
 7   trial was insufficient to sustain his conviction for
 8   obstruction. In reviewing a conviction for sufficiency of
 9   evidentiary support, “the trial evidence is viewed most
10   favorably for the Government” and “all reasonable inferences
11   a jury may have drawn favoring the Government must be
12   credited.” Wexler, 522 F.3d at 206-07. We affirm “‘if any
13   rational trier of fact could have found the essential
14   elements of [the] crime beyond a reasonable doubt.’” Id. at
15   207 (emphasis omitted) (quoting Jackson v. Virginia, 443
16   U.S. 307, 319 (1979)). Julia Mendez testified at trial that
17   she said “nice” things about Pepin to court officers because
18   he forced her to do so by threat. A reasonable inference is
19   that Mendez’s statements to the officers would have been
20   different had she not been threatened. Mendez knew about
21   both murders at issue in this case, and was therefore in a
22   position to tell the officers about them. On these facts, a
23   rational juror could easily have concluded that Pepin
24   “knowingly . . . threaten[ed]” Mendez “with intent to . . .
25   prevent the communication to a law enforcement officer . . .
26   of the United States of information relating to the
27   commission or possible commission of a Federal offense or a
28   violation of conditions of probation[,] supervised
29   release,[] parole, or release pending judicial
30   proceedings[].” 18 U.S.C. § 1512(b)(3). We therefore
31   conclude that Pepin’s conviction for obstruction of justice
32   is adequately supported by the evidence.
33
34        Finding no merit in Pepin’s remaining arguments, we
35   hereby AFFIRM the judgment of the district court.
36
37
38                              FOR THE COURT:
39                              CATHERINE O’HAGAN WOLFE, CLERK
40




     See, e.g., Tischmann v. ITT/Sheraton Corp., 145 F.3d 561,
     568 n.4 (2d Cir. 1998).

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