     09-0953-cr
     United States v. Nazario

 1                                UNITED STATES COURT OF APPEALS
 2                                    FOR THE SECOND CIRCUIT
 3
 4                                          SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
 8   BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
 9   W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
10   M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
11   NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
15   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
16   on the 11th day of March, two thousand and ten.
17
18   Present:       JOSEPH M. McLAUGHLIN,
19                             Circuit Judge,
20                  KIMBA M. WOOD,*
21                             District Judge.**
22
23
24   _____________________________________________________
25
26   UNITED STATES OF AMERICA,
27
28                                                        Appellee,
29
30                              -v-                                      (09-0953-cr)
31
32   FERDINAND NAZARIO, also known as PAULIE NAZARIO,
33
34                                                        Appellant.
35
36
37   Appearing for Appellant:         Erika McDaniel Edwards, Donaldson, Chilliest & McDaniel, LLP,
38                                    New York, N.Y.


            *
             The Honorable Kimba M. Wood, United States District Court for the Southern District
     of New York, sitting by designation.
            **
                The Honorable Rosemary S. Pooler, originally a member of the panel, did not
     participate in consideration of this appeal. The two remaining members of the panel, who are in
     agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating
     Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1   Appearing for Appellee:       William J. Harrington, Assistant United States Attorney for the
 2                                 Southern District of New York (Karl Metzner, Assistant United
 3                                 States Attorney, on the brief).
 4
 5          Appeal from the United States District Court for the Southern District of New York

 6   (Batts, Judge.).

 7          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

 8   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

 9          Ferdinand Nazario appeals from a judgment of conviction for one count of possessing

10   ammunition, which had been shipped and transported in interstate commerce, after having been

11   convicted of a crime punishable by imprisonment for a term exceeding one year, and after having

12   had three previous convictions for a violent felony, in violation of 18 U.S.C. §§ 922(g)(1),

13   924(e). We assume the parties’ familiarity with the facts and procedural history of this case, and

14   the issues presented on this appeal.

15          Nazario first claims that the district court erred in failing to suppress ammunition that was

16   found in the course of a search of Nazario’s residence. Nazario claims that the search violated

17   the Fourth Amendment. We disagree. The parole officers who conducted the search did so after

18   determining that Nazario had likely committed two parole violations: he was not in his home

19   after his 9:00 p.m. curfew, and, when he did arrive home, he appeared to be under the influence

20   of drugs. Moreover, the officers were aware of Nazario’s prior criminal history, which included

21   weapons-related conduct. Therefore, the search of Nazario’s bedroom, to ensure that there were

22   no further parole violations, was reasonably related to the parole officers’ duties. See United

23   States v. Newton, 369 F.3d 659, 666-67 (2d Cir. 2004); see also Samson v. California, 547 U.S.

24   843, 857 (2006) (concluding, with respect to a California parolee, that “the Fourth Amendment




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 1   does not prohibit a police officer from conducting a suspicionless search”).1

 2          Nazario next argues that the district court erred in failing to suppress Nazario’s statement

 3   that another person had given him the bullets, which indicated that Nazario knowingly possessed

 4   the ammunition. Nazario argues that he made the statement during a custodial interrogation

 5   without having been informed of his rights. See Miranda v. Arizona, 384 U.S. 436 (1966).

 6   However, the district court properly admitted the statement pursuant to the public safety

 7   exception to Miranda. See New York v. Quarles, 467 U.S. 649, 657 (1984); United States v.

 8   Estrada, 430 F.3d 606, 610 (2d Cir. 2005). Only after finding the bullets did the officers

 9   question Nazario about the origins of the ammunition and whether there was an accompanying

10   weapon. It was clearly reasonable at that point for the officers to conclude that Nazario might

11   have other contraband in his room that would pose a risk to public safety. See Estrada, 430 F.3d

12   at 613 (applying the public safety exception when “the arresting officers had an objectively

13   reasonable need to protect themselves from immediate danger,” and the questioning was not

14   “subterfuge for collecting evidence”).

15          Nazario also argues that he did not make the statement voluntarily. See United States v.

16   Anderson, 929 F.2d 96, 99 (2d Cir. 1991) (explaining that a statement is not voluntary if it results

17   from circumstances “that overbear the defendant’s will at the time it is given”). On a review of

18   all the facts and circumstances, see Green v. Scully, 850 F.2d 894, 901-02 (2d Cir. 1988), we find

19   no merit to the contention that the officers put undue pressure on Nazario to answer their

20   questions.

21          Nazario next claims that the district court abused its discretion by refusing to grant a new



            1
               We need not decide, in this case, the effect of the Supreme Court’s decision in Samson
     v. California on our prior cases assessing the reasonableness of a parolee search.

                                                      3
 1   trial in light of witness notes belatedly produced by the government. Nazario argues, sometimes

 2   interchangeably, that the government’s failure to produce the witness notes warranted a new trial

 3   under the Jencks Act, 18 U.S.C. § 3500(b), under United States v. Brady, 373 U.S. 83 (1963), or

 4   because the notes constituted newly discovered evidence demonstrating that a witness committed

 5   perjury. Because these notes do nothing to exculpate Nazario, and merely provide cumulative

 6   evidence that, at best, would have been useful in further impeaching the government’s witnesses,

 7   we find that the evidence had no reasonable chance of changing the outcome, and thus did not

 8   warrant a new trial. See United States v. Gonzalez, 110 F.3d 936, 943 (2d Cir. 1997) (“[T]he

 9   failure to disclose [evidence in violation of the Jencks Act] may be disregarded if there is no

10   reasonable probability that had the evidence been disclosed, the result would have been

11   different.”); United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (“The government’s

12   Brady obligation to disclose extends only to favorable evidence that is material,” and “evidence

13   is material only if there is a reasonable probability that, had the evidence been disclosed to the

14   defense, the result of the proceeding would have been different.” (internal quotation marks

15   omitted)); United States v. Diaz, 176 F.3d 52, 106 (2d Cir. 1999) (stating that if new evidence

16   demonstrates that a witness committed perjury, and the government was unaware of the perjury,

17   “a new trial is warranted if the court is left with a firm belief that but for the perjured testimony,

18   the defendant would most likely not have been convicted” (internal quotation marks omitted)).

19           Nazario also argues that the district court erred by constructively amending the

20   indictment. “An indictment is constructively amended when the proof at trial broadens the basis

21   of conviction beyond that charged in the indictment.” United States v. Patino, 962 F.2d 263, 265

22   (2d Cir. 1992). Here, the indictment charged that Nazario “unlawfully, willingly, and knowingly,

23   did possess . . . ammunition, to wit, twenty 9 mm bullets, all of which had previously been


                                                        4
 1   shipped and transported in interstate and foreign commerce.” The district court allowed the

 2   government to present evidence proving the interstate nexus element as to just four of the bullets,

 3   not as to all twenty bullets as alleged in the indictment. We conclude that there was no error by

 4   the district court because the indictment provided Nazario “notice of the ‘core of criminality’ to

 5   be proven at trial,” id. at 266, and “[t]he essential element of the offense charged was that [the

 6   defendant] possessed ammunition that had traveled in interstate commerce, not the precise nature

 7   of that ammunition,” United States v. Danielson, 199 F.3d 666, 670 (2d Cir. 1999) (per curiam).

 8          Nazario next takes issue with the district court’s admission of government witness Keith

 9   Prill as an expert. See Fed. R. Evid. 702. Prill testified that four of the bullets found in Nazario’s

10   apartment had been manufactured outside of New York. We have no trouble concluding that the

11   district court acted well within its discretion in admitting Prill as an expert. See United States v.

12   Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999) (“A decision to admit expert testimony rests soundly

13   with the discretion of the trial court and shall be sustained unless manifestly erroneous.” (internal

14   quotation marks omitted)). Prill testified that he had a college degree in Criminal Justice; he had

15   been a police officer for a year and a half; he had worked for several years for the United States

16   Bureau of Alcohol, Tobacco, Firearms and Explosives; he had completed a specialized course

17   related to determining the origin of guns and ammunition; and he had examined thousands of

18   bullets, dozens of which he examined for the express purpose of determining their place of

19   manufacture. While Nazario’s argument that Prill lacked experience as a courtroom expert is

20   true, such argument goes to “the weight of the evidence . . . [which is] to be argued to the trier of

21   fact, [and is] not a basis for reversal on appeal.” Campbell v. Metro. Prop. & Cas. Ins. Co., 239

22   F.3d 179, 186 (2d Cir. 2001).




                                                       5
 1           Finally, Nazario argues that there was insufficient evidence to support the verdict. We

 2   disagree. Twenty bullets were found in Nazario’s bedroom. Nazario admitted, on three separate

 3   occasions, that the bullets were his. Prill testified that at least four of those bullets had been

 4   manufactured outside of New York. Nazario does not contest that he had three or more prior

 5   felony convictions. Thus, there was ample evidence to support the charges. See 28 U.S.C. §§

 6   922(g)(1), 924(e). Any credibility issues associated with the government’s witnesses were for

 7   the jury to evaluate, and the inconsistencies certainly did not compel the jury to disbelieve all of

 8   the officers’ testimony. As such, a “rational trier of fact could have found the essential elements

 9   of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

10           We have considered Nazario’s other arguments and find them without merit.

11   Accordingly, the judgment of the district court hereby is AFFIRMED.

12
13                                                           FOR THE COURT:
14                                                           Catherine O’Hagan Wolfe, Clerk
15




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