     12-1172-cr
     United States v. Miguel Guerrero

                           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 21st day of October, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHESTER J. STRAUB,
 8                              Circuit Judges,
 9                WILLIAM F. KUNTZ,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                      -v.-                                             12-1172-cr
17
18       Reuben Alvarez, Alfred Glover, Douglas
19       Bond,Victor Tavarez,
20                Defendants,


                 *
                  The Honorable William F. Kuntz, of the United
         States District Court for the Eastern District of New York,
         sitting by designation.
                                                   1
 1   MIGUEL GUERRERO
 2            Defendant-Appellant.
 3   - - - - - - - - - - - - - - - - - - - -X
 4
 5   FOR APPELLANT:               Kim P. Bonstrom, Bonstrom &
 6                                Murphy, Shelter Island, NY.
 7
 8   FOR APPELLEE:                Brent S. Wible, Assistant United
 9                                States Attorney, for Preet
10                                Bharara, United States Attorney
11                                for the Southern District of New
12                                York.
13
14        Appeal from a judgment of the United States District
15   Court for the Southern District of New York (Holwell, J.).
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19        Miguel Guerrero appeals the judgment convicting him of

20   conspiracy to distribute and to possess with intent to

21   distribute at least five kilograms of cocaine and at least

22   fifty grams of crack, in violation of 21 U.S.C. § 846.1    He

23   was sentenced in the U.S. District Court for the Southern

24   District of New York (Holwell, J.) to 240 months’

25   imprisonment.    Guerrero appeals on the grounds that (1) he

26   was denied his statutory and constitutional rights to a

27   speedy trial, and (2) the district court improperly admitted

28   evidence.   We assume the parties’ familiarity with the



         1
              The Government did not proceed on the crack
     cocaine aspect of this conspiracy charge at trial.
                                    2
1    underlying facts,2 the procedural history, and the issues

2    presented for review.

3        A.     The Speedy Trial Act mandates that the trial of a

4    criminal defendant commence “within seventy days from the

5    filing date . . . of the . . . indictment, or from the date

6    the defendant has appeared before a judicial officer of the

7    court in which such charge is pending, whichever date last

8    occurs.”    18 U.S.C. § 3161(c)(1).   “Failure of the defendant

9    to move for dismissal prior to trial or entry of a plea of

10   guilty or nolo contendere shall constitute a waiver of the

11   right to dismissal under [the Speedy Trial Act].”     18 U.S.C.

12   § 3162(a)(2); see also United States v. Abad, 514 F.3d 271,

13   274 (2d Cir. 2008) (per curiam).

14       Guerrero concedes that “no pre-trial motion to dismiss

15   on speedy trial grounds was made.”      Appellant’s Br. 15.

16   He argues that he should be deemed to have preserved this

17   claim because (1) at least one co-defendant in the case

18   asked his attorney to file a Speedy Trial Act motion to



         2
              “Because [Guerrero] appeals from a judgment of
     conviction entered after a jury trial, [the] facts are drawn
     from the trial evidence and described in the light most
     favorable to the government.” United States v. Wilson, 709
     F.3d 84, 85 (2d Cir. 2013) (per curiam); accord United
     States v. Rosen, 716 F.3d 691, 694 (2d Cir. 2013).
                                    3
1    dismiss, and (2) Guerrero argued to the district court post-

2    trial that his own counsel had been ineffective for failing

3    to file such a motion on Guerrero’s behalf.       Appellant’s Br.

4    at 15 & n.6.   He cites two Ninth Circuit cases, United

5    States v. Lloyd, 125 F.3d 1263 (9th Cir. 1997), and United

6    States v. Hall, 181 F.3d 1057 (9th Cir. 1999), for the

7    proposition that “a defendant may preserve his statutory

8    right to dismissal by alerting the court directly of his

9    desire not to waive those rights” where defense counsel does

10   not file a motion to dismiss.       Appellant’s Br. 16.

11        Although Lloyd and Hall “treated a defendant’s own

12   pretrial assertions of his speedy trial rights as adequate

13   to preserve those rights on appeal,” Hall, 181 F.3d at 1060,

14   neither case suggests that those rights may be preserved by

15   asserting them post-trial or by a co-defendant’s pre-trial

16   suggestion to counsel that such a motion be filed.

17       Guerrero filed no pre-trial Speedy Trial Act motion to

18   dismiss or took any step pre-trial to preserve those rights.

19   Accordingly, this claim is waived.       See § 3162(a)(2); Abad,

20   514 F.3d at 274; Hall, 181 F.3d at 1060.

21       We also deny Guerrero’s claim that his trial counsel

22   was constitutionally ineffective for failing to file a pre-



                                     4
1    trial motion to dismiss under the Speedy Trial Act, see

2    Appellant’s Br. 17, because no violation of that statute

3    occurred.   See, e.g., United States v. Regalado, 518 F.3d

4    143, 149 n.3 (2d Cir. 2008)(“[F]ailure to make a meritless

5    argument does not amount to ineffective assistance.”)

6    (quotation marks omitted).3

7        B.   Guerrero argues that the interval between his

8    arrest and trial violated his Sixth Amendment right to a

9    speedy trial.

10       “[F]our factors . . . must be considered in analyzing

11   whether a defendant’s constitutional right to a speedy trial

12   has been violated: (1) the length of the delay; (2) the

13   reasons for the delay; (3) whether the defendant asserted

14   his right in the run-up to the trial; and (4) whether the


         3
              As explained in the Government’s briefing, only 69
     days – not 168 as Guerrero contends - of non-excludable time
     elapsed from Indictment to trial. See Appellee’s Br. 12-17.
     Guerrero does not argue that the district court failed to
     properly invoke 18 U.S.C. § 3161(h)(7)(A) when excluding
     time “in the interests of justice” to grant the parties
     sufficient time to review discovery, engage in plea
     negotiations, or prepare pretrial motions. Rather, Guerrero
     merely omits from his calculation a number of oral orders
     excluding time that do not appear as individual entries on
     the district court’s docket. The Government has supplied
     transcripts of the pre-trial proceedings that verify the
     calculations provided in its brief. See Appellee’s Br. 12-
     17.
                                   5
1    defendant was prejudiced by the failure to bring the case to

2    trial more quickly.”   United States v. Cain, 671 F.3d 271,

3    296 (2d Cir. 2012) (citing Barker v. Wingo, 407 U.S. 514,

4    530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).   “These

5    factors ‘must be considered together with such other

6    circumstances as may be relevant,’ and ‘have no talismanic

7    qualities.’”   Id. (quoting Barker, 407 U.S. at 533).

8    “Rather, they require courts to ‘engage in a difficult and

9    sensitive balancing process.’” Id. (quoting Barker, 407 U.S.

10   at 533).

11       1.     The length of delay “is in effect a threshold

12   question: ‘by definition, [a defendant] cannot complain that

13   the government has denied him a ‘speedy’ trial if it has, in

14   fact, prosecuted his case with customary promptness.’”     Id.

15   (quoting Doggett v. United States, 505 U.S. 647, 652, 112 S.

16   Ct. 2686, 120 L. Ed. 2d 520 (1992)).   Guerrero cites the

17   nearly 29-month delay between his Indictment and the

18   commencement of his trial.   However, given the nature of

19   this conspiracy prosecution, with multiple defendants,

20   allegations spanning multiple years and states, and

21   voluminous discovery, including thousands of intercepted

22   phone calls (many in Spanish), the delay here weighs only


                                    6
1    modestly in Guerrero’s favor.       Cf. id. (holding that a 22-

2    month delay was “particularly understandable” and “largely

3    neutral” with respect to the first Barker factor, “given the

4    presence of multiple defendants, the large number of

5    allegations and the complexity of the” charges and

6    evidence).

7        2.   As Guerrero concedes, “the reason for the delay .

8    . . favors neither Guerrero nor the government, as both

9    sides consented to repeated adjournments for the stated

10   purposes of conducting discovery and ‘consider[ing] any

11   motions.’”   Appellant’s Br. 21-22.      Thus, this factor does

12   not support Guerrero’s claim.

13       3.   Because Guerrero failed to invoke his speedy trial

14   rights pre-trial, that consideration favors the Government.

15       4.   Under Barker, prejudice should be assessed in

16   light of three interests: “(i) to prevent oppressive

17   pretrial incarceration; (ii) to minimize anxiety and concern

18   of the accused; and (iii) to limit the possibility that the

19   defense will be impaired.”   Barker, 407 U.S. at 532.      “Of

20   these, the most serious is the last, because the inability

21   of a defendant adequately to prepare his case skews the

22   fairness of the entire system.”       Id.


                                     7
1        Guerrero claims he was prejudiced in two ways.     First,

2    he states that the years of pre-trial incarceration were

3    oppressive and anxiety-inducing, Appellant’s Br. 23, an

4    assertion that is undermined by his failure to complain pre-

5    trial.   See Barker, 407 U.S. at 531 (“The more serious the

6    deprivation, the more likely a defendant is to complain.”).

7    And although some prejudice may be presumed based on the

8    length of delay, “presumptive prejudice cannot alone carry a

9    Sixth Amendment claim without regard to the other Barker

10   criteria.”   Doggett, 505 U.S. at 656.

11       Second, Guerrero claims that “but for the prolonged

12   delay, co-defendant-turned-cooperating-witness Victor

13   Tavarez would not have been available to provide devastating

14   evidence against Guerrero.”   Appellant’s Br. 23.    Even if

15   true, “this is not the sort of prejudice contemplated by

16   Barker’s fourth factor.”   Abad, 514 F.3d at 275.    As we have

17   explained,

18             [Barker] prejudice is concerned with

19             impediments to the ability of the defense

20             to make its own case (e.g., if defense

21             witnesses are made unavailable due to the

22             government’s delay); the opportunity for



                                   8
1             the prosecution to prepare for trial does

2             not, on its own, amount to prejudice to

3             the defense.

4    Id. (citing Barker, 407 U.S. at 532); see also, e.g., United

5    States v. Toombs, 574 F.3d 1262, 1275 (10th Cir. 2009)

6    (concluding that a delay that permitted the government to

7    “procure the testimony of [a] co-defendant and the primary

8    witness against him [was not prejudicial] . . . in the sense

9    envisioned by the Barker analysis”).

10       Thus, Guerrero suffered little, if any, prejudice from

11   the delay in proceeding to trial.    In light of Guerrero’s

12   weak showing on every other Barker factor, the delay –

13   almost entirely excusable and due often to the

14   understandable needs of Guerrero’s counsel - did not amount

15   to a violation of the Sixth Amendment.

16       C.   Guerrero challenges the admission of the following

17   evidence: (1) Guerrero’s wounding in a drug-related

18   shooting; and (2) Guerrero’s arrest in North Carolina in

19   2002 while driving a car with methamphetamine stashed in a

20   hidden compartment (a “trap”).

21       1.   The Shooting Evidence.     The Government introduced,

22   over Guerrero’s objection, evidence that in April 2006 he


                                  9
1    was shot on a highway in Pennsylvania and robbed of twenty

2    kilograms of cocaine.   Guerrero characterizes this as

3    irrelevant and inflammatory “other acts” evidence under

4    Federal Rule of Evidence 404(b).   However, the evidence was

5    admitted as direct evidence of the charged conspiracy, so

6    the strictures of Rule 404(b) have no bearing on

7    admissibility.   Cf. United States v. Carboni, 204 F.3d 39,

8    44 (2d Cir. 2000) (“[E]vidence of uncharged criminal

9    activity is not considered other crimes evidence under

10   [Rule] 404(b) if it arose out of the same transaction or

11   series of transactions as the charged offense, if it is

12   inextricably intertwined with the evidence regarding the

13   charged offense, or if it is necessary to complete the story

14   of the crime on trial.”).

15       Guerrero also objects on the ground that its “probative

16   value is substantially outweighed by a danger of . . .

17   unfair prejudice.”   Fed. R. Evid. 403.   Prejudice is

18   “unfair” only if it “involves some adverse effect . . .

19   beyond tending to prove the fact or issue that justified its

20   admission into evidence.”   Perry v. Ethan Allen, Inc., 115

21   F.3d 143, 151 (2d Cir. 1997) (citation omitted).    Given a

22   trial court’s “broad discretion to balance the evidence’s



                                   10
1    potential prejudice to the defendant against its probative

2    value,” our “review [of] the district court’s judgment

3    regarding the admissibility of a particular piece of

4    evidence under [Rule] 403, [] generally ‘maximize[s] its

5    probative value and minimize[s] its prejudicial effect.’”

6    United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002)

7    (citation and internal alteration omitted)).

8        We see no abuse of discretion in the district court’s

9    decision to admit this evidence, which consisted of an

10   officer’s testimony about his investigation of the shooting,

11   including his search of telephones recovered from in and

12   around Guerrero’s van, as well as wiretap recordings in

13   which Guerrero discussed capturing the robber and turning

14   him over to the supplier to satisfy his debt to the

15   supplier.   The evidence was highly probative of the fact

16   that Guerrero conspired to smuggle drugs in the manner that

17   the Government alleged, and “explain[ed] why the Government

18   . . . never caught Guerrero himself with drugs, a fact that

19   the jury might otherwise have found significant.”

20   Appellee’s Br. 42-43.   Nor was it “needlessly cumulative,”

21   Appellant’s Br. 39, in light of the testimony of Victor

22   Tavarez: it corroborated Tavarez’s testimony, and therefore



                                   11
1    reinforced his credibility (which Guerrero attacked

2    throughout trial), while also adding “evidentiary depth” to

3    the Government’s case-in-chief.       See Old Chief v. United

4    States, 519 U.S. 172, 190 (1997).

5        Finally, Guerrero argues that the fact that he was shot

6    should have been excluded under Rule 403 because it “left

7    the jury free impermissibly to infer . . . that Guerrero

8    participated in a conspiracy in which wanton violence was an

9    accepted way of conducting business.”      Appellant’s Br. 43.

10   The Government, however, never accused Guerrero of

11   committing any acts of violence.      In any event, such an

12   inference would not be unfair or impermissible: Guerrero

13   trafficked in vast quantities of cocaine through many

14   states, even after being shot and robbed, and wanted to turn

15   a traitorous associate over to his dealer in payment of a

16   debt.    Guerrero’s counsel did not even request a limiting

17   instruction to preclude the jury from making this

18   “impermissible” inference, “indicat[ing] counsel’s own

19   difficulty in finding any prejudice.”      United States v.

20   Canniff, 521 F.2d 565, 572 (2d Cir. 1975).

21       2.    The Arrest Evidence.    Finally, Guerrero objects to

22   the introduction of testimony and photographs regarding his


                                      12
1    2002 arrest in North Carolina while driving a car with

2    methamphetamine stashed in a trap.

3        Although Rule 404(b) prohibits admission of “[e]vidence

4    of a crime, wrong, or other act . . . to prove a person’s

5    character in order to show that on a particular occasion the

6    person acted [in conformity therewith],” it expressly allows

7    the admission of such evidence as proof of knowledge and

8    intent.   Fed. R. Evid. 404(b).    This Court “has adopted an

9    ‘inclusionary’ approach to other act evidence under Rule

10   404(b), which allows such evidence to be admitted for any

11   purpose other than to demonstrate criminal propensity.”

12   United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004)

13   (per curiam).   Absent abuse of discretion or “arbitrary and

14   irrational” action by the district court, its decision to

15   admit evidence pursuant to Rule 404(b) will be affirmed.

16   United States v. Lombardozzi, 491 F.3d 61, 78 (2d Cir.

17   2007).

18       To determine whether other act evidence was properly

19   admitted, we consider “whether (1) it was offered for a

20   proper purpose; (2) it was relevant to a material issue in

21   dispute; (3) its probative value is substantially outweighed

22   by its prejudicial effect; and (4) the trial court gave an



                                   13
1    appropriate limiting instruction to the jury if so requested

2    by the defendant.”   LaFlam, 369 F.3d at 156.

3        The evidence of Guerrero’s arrest was admitted under

4    Rule 404(b) as evidence of his intent to join the charged

5    conspiracy,4 which is a proper purpose under Rule 404(b).

6    See United States v. Ramirez-Amaya, 812 F.2d 813, 817 (2d

7    Cir. 1987).   Guerrero claims that his defense case did not

8    place the issue of intent in dispute, but his own

9    submissions indicate otherwise.    See Appellant’s Br. 46

10   (quoting Guerrero’s motion in limine: “he anticipates

11   arguing that he understood what his buyers intended to do,

12   but did not share their intent to distribute cocaine”).

13   Given Guerrero’s concession that he sold cars and trucks

14   outfitted with traps to persons whom he knew to be engaged

15   in drug distribution, intent to join the conspiracy was the

16   decisive issue.   See Monaco, 194 F.3d at 386.

17       Nor was the arrest evidence “needlessly cumulative” or

18   otherwise inadmissible under Rule 403.   The evidence spoke

19   directly to Guerrero’s intent, and also served to


         4
              To prove its conspiracy charge, the Government had
     to show that Guerrero “agreed with another to commit the
     offense; that he knowingly engaged in the conspiracy with
     the specific intent to commit the offenses that were the
     objects of the conspiracy; and that an overt act in
     furtherance of the conspiracy was committed.” United States
     v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (internal
     quotation marks omitted).
                                   14
1    corroborate Tavarez’s testimony implicating Guerrero in the

2    transport of controlled substances using traps.    Because the

3    arrest evidence was of the same general character as the

4    charged offense, any prejudice accruing from it to Guerrero

5    was not unfair under Rule 403 - particularly in light of the

6    district court’s limiting instruction.   Accordingly, it was

7    not an abuse of the district court’s broad discretion to

8    admit the arrest evidence.

9        Even if the District Court did err in admitting the

10   arrest evidence, any error was harmless given the strength

11   of the Government’s case.    See United States v. Madori, 419

12   F.3d 159, 168 (2d Cir. 2005) (“A district court's decision

13   to admit evidence is subject to harmless error analysis.”).

14   In conducting harmless error review, we consider the

15   following factors: “(1) the overall strength of the

16   prosecution's case; (2) the prosecutor's conduct with

17   respect to the improperly admitted evidence; (3) the

18   importance of the wrongly admitted [evidence]; and (4)

19   whether such evidence was cumulative of other properly

20   admitted evidence.”   United States v. Kaplan, 490 F.3d 110,

21   123 (2d Cir. 2007) (internal citations omitted).    We have

22   repeatedly held that the strength of the government’s case

23   is the most critical factor in assessing whether error was




                                    15
1    harmless.   See, e.g., United States v. Lombardozzi, 491 F.3d

2    61, 76 (2d Cir. 2007).

3        Here, although the Government made use of the arrest

4    evidence during summation and rebuttal, the case against

5    Guerrero was indisputably strong.     Tavarez provided

6    extensive testimony about Guerrero’s participation in the

7    conspiracy, including his central role in organizing the

8    trafficking of dozens of kilos of cocaine.     Several of

9    Guerrero's recorded conversations with co-conspirators were

10   heard by the jury.     Notably, Tavarez’s explanation of the

11   shooting was substantiated by a wiretap recording from after

12   the shooting in which Guerrero proposes capturing the robber

13   and turning him over to his supplier in order to satisfy his

14   debt.   Additionally, the jury heard evidence that law

15   enforcement officers seized a Honda Civic outfitted with a

16   trap holding 5 kilos of cocaine, which Guerrero said on a

17   taped call belonged to him.     Guerrero’s defense did nothing

18   to call into question this damaging evidence.     Finally, the

19   district court gave a limiting instruction that the arrest

20   evidence could not be used to show inherent character or

21   propensity to crime.     Given the weight of the evidence

22   against Guerrero and the limiting instruction we can

23   “conclude with fair assurance” that the introduction of the

24   arrest evidence “did not substantially influence the jury.”

                                     16
1    United States v. McCallum, 584 F.3d 471, 477-78 (2d Cir.

2    2009) (internal citations omitted).

3                            Conclusion

4        For the foregoing reasons, and finding no merit in

5    Guerrero’s other arguments, we hereby AFFIRM the judgment of

 6   the district court.
 7
 8                              FOR THE COURT:
 9                              Catherine O’Hagan Wolfe, Clerk
10
11




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