     11-3956-cr
     United States v. Burgos

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROBERT D. SACK,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               11-3956-cr
17
18       Cesar Garcia, AKA Panda, Luis Robles-Roman,
19       AKA Roman, Nathanael R. Ortiz, AKA Bebe,
20       Demetrio Hernandez, AKA Chello, Cesar Garcia,
21       AKA Asabache, Victor Tavares, AKA Daddy
22       Yankee, Alberto Henriquez, AKA Pena, Jose
23       Henriquez, AKA Jelpy,
24                Defendants,
25
26       MIGUEL BURGOS,
27                Defendant-Appellant.
28       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1
 2   FOR APPELLANT:         JAMES A. COHEN (Ian S. Weinstein and
 3                          Michael W. Martin, on the brief;
 4                          Melanie Burke and Manuel F. Gomez,
 5                          law students, arguing and on the
 6                          brief; Zachary Groendyk and Yan Qin,
 7                          law students, on the brief), Lincoln
 8                          Square Legal Services, Inc., Fordham
 9                          University School of Law, New York,
10                          New York.
11
12   FOR APPELLEE:          JESSICA ORTIZ (Todd Blanche and
13                          Justin S. Weddle, on the brief),
14                          Assistant United States Attorneys,
15                          for Preet Bharara, United States
16                          Attorney for the Southern District
17                          of New York, New York, New York.
18
19        Appeal from a judgment of the United States District
20   Court for the Southern District of New York (Stein, J.).
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23   AND DECREED that the judgment of the district court be
24   AFFIRMED.
25
26        Miguel Burgos appeals from the judgment of the United
27   States District Court for the Southern District of New York
28   (Stein, J.), convicting him after a jury trial of conspiracy
29   to commit Hobbs Act robbery, in violation of 18 U.S.C. §
30   1951. We assume the parties’ familiarity with the
31   underlying facts, the procedural history, and the issues
32   presented for review.
33
34   1.   Burgos challenges the adequacy of evidence to support
35   the conscious avoidance instruction. We review a claim of
36   error in jury instructions de novo, reversing only where
37   there was prejudicial error in the charge as a whole.
38   United States v. Ebbers, 458 F.3d 110, 124 (2d Cir. 2006).
39   We are to “examin[e] ‘the entire charge to see if the
40   instructions as a whole correctly comported with the law.’”
41   United States v. Ferguson, 676 F.3d 260, 275 (2d Cir. 2011)
42   (quoting United States v. Jones, 30 F.3d 276, 283 (2d Cir.
43   1994)). When a defendant challenges the factual predicate
44   for a conscious avoidance instruction, we may consider it a
45   challenge to the sufficiency of the evidence, where the
46   defendant bears a heavy burden and we view the evidence in


                                  2
 1   the light most favorable to the government. United States
 2   v. Aina-Marshall, 336 F.3d 167, 171 (2d Cir. 2003).
 3
 4       A conscious avoidance instruction may be given only:
 5
 6       (i) when a defendant asserts the lack of some specific
 7       aspect of knowledge required for conviction, and (ii)
 8       the appropriate factual predicate for the charge
 9       exists, i.e., the evidence is such that a rational
10       juror may reach the conclusion beyond a reasonable
11       doubt that the defendant was aware of a high
12       probability of the fact in dispute and consciously
13       avoided confirming that fact.
14
15   Ferguson, 676 F.3d at 278 (internal quotation marks
16   omitted). Burgos asserts that he did not know the unlawful
17   objectives of the conspiracy. The only question, therefore,
18   is whether a rational juror could conclude beyond a
19   reasonable doubt that Burgos was aware of a high probability
20   of the unlawful objectives and consciously avoided
21   confirming the fact.
22
23        Under Ferguson, “[r]ed flags about the legitimacy of a
24   transaction can be used to show both actual knowledge and
25   conscious avoidance.” Id. We will uphold “a conscious
26   avoidance instruction [if] the prior dealings between the
27   parties . . . and the statements about the
28   transactions . . . provided the factual predicate for the
29   charge.” Id. (emphases added). In addition, a defendant
30   need only be aware of a high probability of some of the
31   conspiracy’s unlawful aims. United States v. Lanza, 790
32   F.2d 1015, 1022-23 (2d Cir. 1986). A conscious avoidance
33   charge is appropriate where a defendant “assert[s] what
34   amounts to ignorance of the specific objectives alleged in
35   the indictment.” Id. at 1023.
36
37        Here, many red flags made Burgos aware of a high
38   probability that the hydraulic pump that he purchased for
39   his childhood friend would be used to commit robberies,
40   including that the pump was advertised for “forcible entry”
41   use and testimony that co-conspirators had discussed some of
42   their robbery plans in front of Burgos, even asking him to
43   join. A rational jury could conclude that Burgos was aware
44   of such a probability and consciously avoided confirming
45   that fact. Contrary to Burgos’s assertion at oral argument
46   and in supplemental briefing, it was not necessary for the
47   government to show that Burgos was aware of a high

                                  3
 1   probability that the pump would be used for robberies of
 2   drug dealers (as charged in the indictment), only that he
 3   was aware of a high probability that the pump would be used
 4   for some of the conspiracy’s unlawful aims, such as
 5   robberies generally. See Lanza, 790 F.2d at 1022-23
 6   (holding that “the government must demonstrate that the
 7   accused had some knowledge of [the conspiracy’s] unlawful
 8   aims” (emphasis in original)).
 9
10        In any event, the charge as a whole made clear that,
11   despite the conscious avoidance instruction, Burgos should
12   not be convicted based on negligence or recklessness.
13   Accordingly, we reject Burgos’s challenge to the conscious
14   avoidance instructions.
15
16   2.   Burgos argues that the district court erred by refusing
17   to instruct the jury that it was necessary for Burgos to
18   have a financial stake in the venture in order to convict
19   him of conspiracy. But “[i]t is not necessary to charge the
20   jury that each conspirator must be found to have a ‘stake in
21   the success’ of the conspiracy for the use of such an
22   expression would be misleading as it might infer that there
23   must be a showing of some personal financial interest in the
24   outcome of the conspiracy.” United States v. Torres, 901
25   F.2d 205, 245 (2d Cir. 1990) (citing United States v.
26   Tramaglino, 197 F.2d 928, 931 (2d Cir. 1952)). Burgos’s
27   requested “stake in the venture” charge is inconsistent with
28   the law, and thus, the district court did not err in
29   refusing to give it.
30
31   3.   Burgos claims that the government suppressed evidence,
32   in violation of Brady v. Maryland, 373 U.S. 83 (1963), by
33   failing to ask one of the cooperating witnesses a specific
34   question during the proffer sessions that led to Burgos’s
35   indictment. Under Brady, “the Government has a
36   constitutional duty to disclose favorable evidence to the
37   accused where such evidence is ‘material’ either to guilt or
38   to punishment.” United States v. Coppa, 267 F.3d 132, 139
39   (2d Cir. 2001) (citing Brady, 373 U.S. at 87). “[A] Brady
40   violation occurs only where the government suppresses
41   evidence that ‘could reasonably [have been] taken to put the
42   whole case in such a different light as to undermine
43   confidence in the verdict.’” Id. (quoting Kyles v. Whitley,
44   514 U.S. 419, 435 (1995)).
45
46        The Brady rule requires prosecutors to learn of any
47   favorable evidence known to other members of the prosecution

                                  4
 1   team, including police. See Strickler v. Greene, 527 U.S.
 2   263, 280-81 (1999); United States v. Locascio, 6 F.3d 924,
 3   949 (2d Cir. 1993). But this duty is not limitless, and
 4   this Court has never held that the “prosecution team”
 5   includes cooperating witnesses. Moreover, “[e]vidence is
 6   not ‘suppressed’ if the defendant either knew, or should
 7   have known, of the essential facts permitting him to take
 8   advantage of any exculpatory evidence.” United States v.
 9   LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) (internal citations
10   omitted). In this case, therefore, the government did not
11   “suppress” any evidence by failing to ask one of the
12   cooperating witnesses a specific question, especially
13   considering that Burgos knew all of the essential facts that
14   would have allowed him to ask that witness the same
15   question.
16
17        For the foregoing reasons, and finding no merit in
18   Burgos’s other arguments, we hereby AFFIRM the judgment of
19   the district court.
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23




                                  5
