11-860-cr
U.S. v. Solano-Fell

                           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 Courthouse, 40 Foley Square, in the City of New York, on the 25th day of
January, two thousand thirteen.

Present:
         ROBERT A. KATZMANN,
         RAYMOND J. LOHIER, JR.,
                     Circuit Judges,
         JED S. RAKOFF,*
                     District Judge.
_______________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                                   No. 11-860-cr

MANOLO RIJO, aka Jose A. Davila-Martinez,
VICTOR A. SPEIGHT,

           Defendants,

ARSENIO Y. SOLANO-FELL, aka Grandes
Ligas,
         Defendant-Appellant.
_______________________________________________


       *
         The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
For Defendant-Appellant:                      PETER J. TOMAO, Garden City, NY

For Appellee:                                 FRANK H. SHERMAN, Assistant United States Attorney,
                                              for William J. Hochul, Jr., United States Attorney for
                                              the Western District of New York, Rochester, NY


     Appeal from a judgment of the United States District Court for the Western District of
New York (Larimer, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Defendant-Appellant Arsenio Y. Solano-Fell appeals from a judgment of conviction

entered on February 22, 2011 by the United States District Court for the Western District of New

York (Larimer, J.). After trial, a jury convicted Solano-Fell of conspiring to distribute and to

possess with intent to distribute five kilograms or more of cocaine. On appeal, Solano-Fell raises

numerous issues. First, he objects to the admission of evidence discovered in an allegedly

unconstitutional search of his vehicle. Second, he argues that the district court misinterpreted

several of the Federal Rules of Evidence. Finally, he challenges the district court’s determination

at sentencing that he was accountable for the distribution of more than fifty kilograms of

cocaine.1 We assume the parties’ familiarity with the relevant facts, the procedural history, and

the issues presented for review.




        1
          While Solano-Fell also contends that his trial attorney provided ineffective assistance of counsel
in violation of the Sixth Amendment, see generally Strickland v. Washington, 466 U.S. 668 (1984), the
parties have not developed the record necessary to fully review that claim. Thus, we “decline to hear the
claim, permitting [him] to raise the issue as part of a subsequent petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2255.” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004); see also
Massaro v. United States, 538 U.S. 500, 504 (2003) (“In light of the way our system has developed, in
most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective
assistance.”).

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       We turn first to Solano-Fell’s objections to the admission of certain evidence and

testimony at trial. Because other evidence—to which Solano-Fell does not

object—overwhelmingly demonstrated his guilt, we conclude that any errors by the district court

were harmless.2 Where, as here, a potential evidentiary error implicates a defendant’s

constitutional rights, “we must be convinced that the error was harmless beyond a reasonable

doubt.” United States v. Reifler, 446 F.3d 65, 87 (2d Cir. 2006). “In assessing the error’s likely

impact, we consider the nature of the violation and the context in which it occurred, taking into

account . . . the strength of the government’s case, the degree to which the [evidence] was

material to a critical issue, the extent to which the [evidence] was cumulative, and the degree to

which the government emphasized the erroneously admitted evidence in its presentation of the

case.” Id. (citation omitted). While no one factor is dispositive, we focus principally on the

strength of the Government’s case. Id.

       Here, three witnesses independently identified Solano-Fell as a member of the relevant

conspiracy. Luis Rodriguez testified that Manolin Rijo, an alleged co-conspirator, had revealed

that Rijo, Solano-Fell, and Jose de la Cruz had made $300,000 distributing cocaine. Rodriguez

also told the jury that, on a separate occasion, Solano-Fell asked him to help sell “3 kilos of

cocaine.” Next, Victor Speight testified that he had purchased cocaine from de la Cruz and

Manolin Rijo until 2002, when de la Cruz was arrested and Manolin Rijo was murdered.

Thereafter, from 2003 to 2007, Speight began purchasing cocaine from Solano-Fell and Manolo

Rijo, obtaining five to seven kilograms every other week. De la Cruz, Manolin Rijo, Manolo


       2
         Given our conclusion that any error was harmless, we need not address the issue of whether the
search of Solano-Fell’s car that uncovered the secret compartment containing cocaine exceeded the scope
of his consent. See generally Florida v. Jimeno, 500 U.S. 248, 250-51 (1991).

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Rijo, and Solano-Fell all used the same system to communicate with Speight. Finally, Carlos

Torres testified that Solano-Fell told him that Manolo Rijo, who had delivered a kilogram of

cocaine to Torres, worked for Solano-Fell.

        The testimony of Rodriguez, Speight, and Torres all indicated that Solano-Fell conspired

with others to sell cocaine. Moreover, aspects of each witness’s testimony corroborated the

details of the others’. Speight and Torres, for example, both identified Manolo Rijo as

Solano-Fell’s partner, and Rodriguez and Speight both testified that de la Cruz and Manolin Rijo

participated in the conspiracy until de la Cruz’s arrest and Manolin Rijo’s death. While the

Government introduced other evidence in order to show that Solano-Fell knowingly and

intentionally joined the conspiracy, the district court explicitly forbade the jury from considering

that evidence “as substitute for proof that Mr. Solano-Fell committed the conspiracy charged.” J.

App’x at 1138. Thus, when the jury found that Solano-Fell participated in the charged

conspiracy, see United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004) (identifying

participation as an element of conspiracy), it necessarily credited the testimony of Rodriguez,

Speight, and Torres. Because the jury believed that Solano-Fell engaged in at least some of the

activities these three witnesses described, we have no trouble concluding beyond a reasonable

doubt that the jury would have also found, based solely on the testimony of these witnesses, that

Solano-Fell did so knowingly and intentionally. One cannot credibly attribute the actions these

witnesses described to ignorance or mistake. Thus, the other evidence of Solano-Fell’s

knowledge and intent was merely “cumulative,” and any error in its admission was harmless. See

Reifler, 446 F.3d at 87.3

        3
       Because the evidence convincingly demonstrated Solano-Fell’s guilt, we further reject his
argument that no reasonable jury could have decided to convict. United States v. Finley, 245 F.3d 199,

                                                    4
         Although we conclude that any evidentiary error was harmless, we note that the district

court departed from our prior cases in at least two respects. First, the district court found that

Federal Rule of Evidence 404(b) permitted the Government to introduce evidence that Solano-

Fell had possessed cocaine after the termination of the charged conspiracy.4 According to the

district court, this evidence was potentially relevant to the question of whether Solano-Fell had

participated in the charged conspiracy knowingly. We review a district court’s application of

Rule 404(b) only for “abuse of discretion.” United States v. Mercado, 573 F.3d 138, 141 (2d Cir.

2009).

         Rule 404(b) prohibits the use of “[e]vidence of a crime, wrong, or other act” in an effort

to prove that, “on a particular occasion,” a person acted “in accordance” with whatever trait of

“character” produced that crime, wrong, or other act. Nonetheless, in appropriate circumstances,

prosecutors may use such evidence for other limited purposes, including to show a defendant’s

“knowledge.” Fed. R. Evid. 404(b)(2). A district court “abuses its discretion when it admits

‘other act’ evidence with a high possibility of jury misuse but with only slightly more probative

value than other evidence on the same issue.” United States v. Curley, 639 F.3d 50, 57 (2d Cir.

2011).

         Here, the evidence had a “high possibility of jury misuse” and very little “probative

value.” Solano-Fell’s possession of cocaine after the end of the conspiracy indicated little, if

anything, about his knowledge at an earlier point in time. Instead, the Government apparently

invited the jury to conclude that, because Solano-Fell had possessed drugs at the time of his


202-03 (2d Cir. 2001).
         4
         The Government never charged Solano-Fell based on this instance of possession, and thus the
jury considered the cocaine only in connection with the conspiracy charge.

                                                   5
arrest, he was a drug dealer, and thus had knowingly participated in the charged conspiracy. But

this chain of reasoning identifies drug-dealing as a trait of Solano-Fell’s “character” in order to

show that, during the charged conspiracy, he acted “in accordance” with that trait. In other

words, the jury was likely to draw the precise inference that Rule 404(b)(1) forbids. Given the

danger of presenting this evidence to the jury and the strength of other evidence showing Solano-

Fell’s knowledge, the district court’s decision to admit the evidence under Rule 404(b)

constituted an abuse of discretion.

       Second, the district court likely erred when it permitted a police officer to testify under

Federal Rule of Evidence 702 as an expert on how drug dealers “typically” transport drugs to

Rochester. J. App’x at 943. “[A]lthough ‘the operations of narcotics dealers are a proper subject

for expert testimony under Fed. R. Evid. 702, we have carefully circumscribed the use of such

testimony to occasions where the subject matter of the testimony is beyond the ken of the

average juror.’” United States v. Mejia, 545 F.3d 179, 191 (2d Cir. 2008) (quoting United States

v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991)). Specifically, we have prohibited experts from

giving an account “of a typical drug transaction that mirror[s] the testimony of the Government’s

fact-witnesses.” United States v. Tapia-Ortiz, 23 F.3d 738, 740 (2d Cir. 1994).

       During the course of her testimony, the Government’s expert informed the jury that drugs

“[t]ypically” come to Rochester from “New York City” in “vehicles with hidden compartments,”

which are driven by individuals who use “bug detector[s]” to engage in “countersurveillance

activities.” J. App’x at 943, 947, 950-51. This testimony mirrored the Government’s evidence,

which showed that Solano-Fell was arrested in Yonkers, New York, that his car had a “secret

compartment” that contained drugs, and that he possessed a “bug detector.” The jury arguably



                                                  6
did not require expert testimony to understand the significance of a secret compartment. See

Castillo, 924 F.2d at 1233. Moreover, although the Government’s expert could have usefully

explained what a “bug detector” is, the jury likely did not need further instruction on the

potentially criminal uses of such a device. When the Government’s expert connected these

pieces of evidence in her account of a typical Rochester drug dealer, she did not simply assist the

jury by explaining unfamiliar terms or concepts, but also appears to have implicitly encouraged

the jury to draw the Government’s preferred inferences, effectively serving as a “summary

prosecution witness.” United States v. Dukagjini, 326 F.3d 45, 55 (2d Cir. 2003). The district

court arguably should not have permitted such testimony.

       Finally, we turn to Solano-Fell’s argument that the district erred by concluding at

sentencing that he was responsible for the distribution of between 50 and 150 kilograms of

cocaine. “We review a sentencing court’s factual findings regarding drug quantity only for clear

error.” United States v. Richards, 302 F.3d 58, 68 (2d Cir. 2002). In a drug conspiracy case, “a

defendant is accountable only for quantities ‘with which he was directly involved’ and . . . for

‘reasonably foreseeable quantities’ within the scope of [jointly undertaken] activity.” United

States v. Chalarca, 95 F.3d 239, 243 (2d Cir. 1996) (quoting U.S.S.G. § 1B1.3 cmt. n.2). “Where

there is no drug seizure or the amount seized does not reflect the scale of the offense, the court

shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1 cmt. n.5. Here,

Speight testified that he had purchased five to seven kilograms from Manolo Rijo and Solano-

Fell every other week from 2003 to 2007. This testimony indicated that Solano-Fell was

“directly involved” in the distribution of hundreds of kilograms of cocaine. The district court did

not err, much less clearly err, by attributing only a fraction of that quantity to Solano-Fell.



                                                  7
       We have considered Solano-Fell’s remaining arguments and find them to be without

merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                        FOR THE COURT:
                                        CATHERINE O’HAGAN WOLFE, CLERK




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