         09-1397-cr
         USA v. Spigelman (Rodriguez)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 17 th day of March, two thousand and ten.
 5
 6       PRESENT: PIERRE N. LEVAL,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   09-1397-cr
18
19       JOSE HERNANDO RODRIGUEZ,
20
21                                       Defendant-Appellant,
22
23       JOEL SPIGELMAN, also known as Joe, also known as Judas,
24       RICARDO CASTRO-CUBILLOS, also known as Marco Boniton,
25
26                                       Defendants.
27
28
29




                                                            1
 1   FOR APPELLANT:     ARZA FELDMAN, Feldman & Feldman,
 2                      Uniondale, NY
 3
 4   FOR APPELLEE:      MARISSA B. MOLÉ, KATHERINE POLK FAILLA,
 5                      Assistant United States Attorneys, of
 6                      counsel, for Preet Bharara, United States
 7                      Attorney for the Southern District of New
 8                      York, New York, NY
 9
10
11        Appeal from the United States District Court for the
12   Southern District of New York (Griesa, J.).
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the district court be

16   AFFIRMED.

17       Jose Hernando Rodriguez (“Appellant”) appeals from a

18   judgment of the United States District Court for the

19   Southern District of New York (Griesa, J.), entered on March

20   31, 2009, convicting Appellant of intentional murder in

21   furtherance of a continuing narcotics trafficking enterprise

22   in violation of 21 U.S.C. § 848(e), 18 U.S.C. § 2, and

23   murder through the use of a firearm in violation of 18

24   U.S.C. § 924(j).   We assume the parties’ familiarity with

25   the underlying facts, the procedural history, and the issues

26   presented for review.

27       At trial, the Government demonstrated that in March of

28   1999, Appellant orchestrated the robbery and murder of a

29   woman who was transporting large amounts of cocaine.     The

                                   2
1    Government’s case included the testimony of 14 witnesses, as

2    well as corroborating evidence including, inter alia, an

3    autopsy report and various crime scene photographs.

4    Appellant’s sole argument on appeal is that the district

5    court erred in admitting the testimony of one of the

6    Government’s cooperating witnesses – Mr. Ramos – under the

7    coconspirator exception to the rule against hearsay.   Fed.

8    R. Evid. 801(d)(2)(E). 1

9        We will not disturb a district court’s findings

10   respecting the applicability of the coconspirator exception

11   unless they are clearly erroneous.   See United States v.

12   Gigante, 166 F.3d 75, 82 (2d Cir. 1999). “Moreover, any

13   improper admission of coconspirator testimony is subject to

14   harmless error analysis.”   Id. (citing United States v.

15   Orena, 32 F.3d 704, 711 (2d Cir. 1994)).   Because we are

16   unpersuaded by the Appellant’s argument – and, in any event,

17   any error in the admission of the testimony was harmless as

18   a matter of law – we affirm the judgment of the district

19   court.




         1
           This rule provides that “[a] statement is not hearsay
     if ... [it] is offered against a party and is ... a
     statement by a coconspirator of a party during the course
     and in furtherance of the conspiracy.” 801(d)(2)(E).

                                   3
1        To admit Ramos’s testimony under the coconspirator

2    exception, the district court was required to find two facts

3    by a preponderance of the evidence: (1) that a conspiracy

4    existed that included both the Appellant and the declarants;

5    and (2) that the statements testified to were made during

6    the course, and in furtherance, of that conspiracy.

7    Bourjaily v. United States, 483 U.S. 171, 175 (1987).

8    Although Appellant is correct that Mr. Ramos and the

9    declarants were initially members of a different robbery

10   crew, and each robbery crew began the day in question with a

11   different plan, it is indisputable that the two crews later

12   joined forces to murder the drug courier and divide the

13   proceeds.     Moreover, despite the fact that Mr. Ramos did not

14   participate in the actual robbery and murder, the statements

15   made to him of which he testified were made in furtherance

16   of dividing the proceeds from the conspiratorial crime, and

17   were therefore made in furtherance of the conspiracy.     See

18   United States v. Maldonado-Rivera, 922 F.2d 934, 958-59 (2d

19   Cir. 1990).

20       Furthermore, the admission of Mr. Ramos’s testimony was

21   harmless as a matter of law given the overwhelming evidence

22   against Appellant at trial.     Thus, we “can conclude with



                                     4
1    fair assurance that the evidence did not substantially

2    influence the jury.”   United States v. Rivera, 22 F.3d 430,

3    436 (2d Cir. 1994).

4        The Court has reviewed the Appellant’s remaining

5    arguments and finds them to be without merit.   For the

6    foregoing reasons, the judgment of the district court is

7    hereby AFFIRMED.

 8
 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




                                   5
