                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2008

USA v. Delgado
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3741




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                                NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ____________

           No. 06-3741
          ____________

  UNITED STATES OF AMERICA

                v.

      CHRISTIAN DELGADO
           a/k/a Murder
        a/k/a Old C Murder

           Christian Delgado,

                  Appellant
          ____________

           No. 06-3780
          ____________

  UNITED STATES OF AMERICA

                v.

         JOSHUA BAEZ
           a/k/a JOSH

             Joshua Baez,

                 Appellant
          ____________

           No. 06-3846
          ____________

  UNITED STATES OF AMERICA
             v.

   DAVID NDUKA BOSAH
         a/k/a DJ

       David Nduka Bosah,

               Appellant
       ____________

        No. 06-4264
       ____________

UNITED STATES OF AMERICA

             v.

ARGENIS PACHECO MOSCOSO,
     a/k/a HENNESSEY

     Argenis Pacheco Moscoso,

                Appellant
       ____________

        No. 06-4304
       ____________

UNITED STATES OF AMERICA

             v.

     ANGEL FERRER
     a/k/a STRANGE

          Angel Ferrer,

             Appellant
       ____________



             2
                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                        (D.C. Nos. 05-cr-00143-4, 05-cr-00143-6,
                    05-cr-00143-5, 05-cr-00143-1 and 05-cr-00143-2)
                     District Judge: Honorable James Knoll Gardner
                                      ____________

                        Submitted Under Third Circuit LAR 34.1(a)
                                      July 2, 2008

                Before: RENDELL, SMITH and FISHER, Circuit Judges.

                                  (Filed: August 22, 2008)
                                       ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

       Christian Delgado, Joshua Baez, David Bosah, Argenis Moscoso and Angel Ferrer

were convicted of conspiracy to distribute cocaine base (“crack”) in violation of 21

U.S.C. § 846. Moscoso and Ferrer were also convicted of three counts of distribution of

crack, id. § 841(a)(1), three counts of distribution of crack within 1,000 feet of a school,

id. § 860(a), one count of possession of crack with intent to distribute, id. § 841(a)(1), and

one count of possession of crack within 1,000 feet of a school with intent to distribute, id.

§ 860(a). All five defendants appeal their convictions, and Moscoso also appeals his

sentence. For the reasons set forth below we will affirm.




                                              3
                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Between March 2003 and August 2004, the defendants controlled and operated the

Chestnut Street Gang. The Chestnut Street Gang shuttled cocaine from New York City to

Reading, Pennsylvania where gang members processed the cocaine into crack and sold it.

In July 2004 Baez was arrested at one of the properties operated by the Chestnut Street

Gang. He pleaded guilty in state court to possession with the intent to deliver cocaine and

criminal trespass. Local and federal law enforcement agents began investigating the

Chestnut Street Gang and arrested its members in August 2004. The indictment charged

the defendants 1 with conspiracy to distribute crack in Reading, Pennsylvania from March

2003 through August 2004, as well as other substantive drug offenses.

       The trial began on November 28, 2005. During voir dire, prospective jurors were

asked if they knew any potential witnesses from a list of thirty names, including that of

FBI Agent Greg Banis. Juror 3 did not respond. During the trial, the Court was informed

that Agent Banis recognized Juror 3 as a neighbor. As a result, the government agreed

not to call Agent Banis as a witness, and the defendants waived their right to request Juror




       1
        David Lopez was also charged in the indictment, but was later acquitted and does
not participate in this appeal.

                                              4
3’s removal. During a later examination, a government witness mentioned that the

investigation had been turned over to an FBI unit supervised by Agent Banis. The

defendants objected to this reference and requested a mistrial. The District Court

conducted further inquiry and was assured by Juror 3 that although Banis was his

neighbor, he did not “really associate” with Banis and could remain impartial. The

District Court did not remove Juror 3 and denied the request for a mistrial.

         Concurrently, the Court began receiving reports of juror misconduct by Juror 9.

Some of this conduct included making sexual advances on female jurors and other federal

employees, approaching counsel for conversation, arriving late, sleeping during trial and

making racially-charged remarks. After confronting Juror 9 with these allegations, the

Court, over defense counsel’s objection, excused Juror 9 from further participation in the

trial.

         During trial, as evidence of Baez’s participation in the conspiracy, the government

sought to introduce Baez’s certified conviction records, guilty plea, and sentencing order

regarding his July 2004 state drug conviction. Other witnesses were able to corroborate

this evidence. The defendants objected to the introduction of this evidence, asserting that

it was more prejudicial than probative, and that despite being introduced only against

Baez, it inferred that the other defendants were also involved with the conspiracy, and

thus violated their Sixth Amendment right to confrontation. Despite these objections the

Court admitted the conviction records into evidence. The Court gave a limiting



                                              5
instruction to the jury, specifically stating that Baez’s conviction record was “not

evidence that any of those other five defendants [were] guilty of conspiracy, and [was]

not evidence of anything against those other five co-defendants.” The Court also

explained to the jury that Baez “did not plead guilty to conspiracy. He pled guilty to acts

which may or may not have been part of that alleged conspiracy and that’s for you to

determine.” The Court also directed the jury “not to consider Joshua Baez’s plea against

any of the other co-defendants for any reason or any charge.”

       Also during trial, the government examined officers assigned to the F.B.I. Federal

Task Force in charge of the conspiracy investigation. These officers testified that the

defendants dealt drugs near schools and around law-abiding citizens. Video surveillance

of the neighborhood where some of the drug activity occurred was also introduced at this

time. Moscoso objected to the introduction of this evidence.

       Delgado, Baez, Bosah, Moscoso, and Ferrer were eventually convicted and

sentenced. Moscoso, the only defendant who now appeals his sentence, was found guilty

of conspiring to distribute crack, possession with intent to distribute, distribution (three

counts), and distribution of crack within 1,000 feet of a school (three counts), charges

carrying a statutory maximum penalty of life in prison. The Court calculated a base

offense level of 46 and a criminal history category of IV, yielding an advisory Guidelines

sentence of life imprisonment. The Court considered the sentencing factors contained in




                                               6
18 U.S.C. § 3553(a) and sentenced Moscoso to a below-Guidelines sentence of 480

months’ imprisonment.

                                              II.

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 3742. “We review a

district court’s denial of motions for a mistrial and a new trial, as well as its investigation

of jury misconduct, for an abuse of discretion.” United States v. Bertoli, 40 F.3d 1384,

1392 (3d Cir. 1994). We review the District Court’s evidentiary rulings for an abuse of

discretion. United States v. Rutland, 372 F.3d 543, 545 (3d Cir. 2004). However, we

exercise plenary review when we “are considering whether the District Court correctly

interpreted the Federal Rules of Evidence and relevant case law, and [when the

defendants’] challenge implicates the confrontation clause.” United States v. Mitchell,

145 F.3d 572, 576 (3d Cir. 1998). We review the constitutionality of the District Court’s

sentencing procedure de novo. United States v. Barbosa, 271 F.3d 438, 452 (3d Cir.

2001).

                                              III.

         All five defendants contend that the District Court abused its discretion when it

failed to remove Juror 3 or grant their motions for a mistrial. Juror 3 failed to disclose his

acquaintance with Agent Banis during voir dire and was an empaneled juror when he

heard another witness mention that Banis was the F.B.I. agent supervising the conspiracy



                                               7
investigation. We conclude that the District Court did not abuse its discretion when it

found that the non-disclosure was unintentional and did not affect the fairness of the trial.

       In general, in order to obtain a new trial

       a party must first demonstrate that a juror failed to answer honestly a
       material question on voir dire, and then further show that a correct response
       would have provided a valid basis for a challenge for cause. The motives
       for concealing information may vary, but only those reasons that affect a
       juror’s impartiality can truly be said to affect the fairness of a trial.

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). Here, after

conducting an on-the-record inquiry, the District Court found that Juror 3’s failure to

reveal his acquaintance with Banis during voir dire was unintentional, and was either

caused by Juror 3’s inattention or the Court’s mispronunciation of Banis’s name.

“Generally, we will not invalidate a jury verdict because of a juror’s ‘mistaken, though

honest’ response at voir dire.” United States v. Hodge, 321 F.3d 429, 441 (3d Cir. 2003)

(quoting McDonough, 464 U.S. at 555). Defendants have not cited specific evidence

showing that the District Court incorrectly found Juror 3’s actions to have been

unintentional. Regardless, a timely disclosure of Juror 3’s acquaintance with Agent Banis

would not have necessarily resulted in a dismissal for cause. As the District Court found,

the relationship between Juror 3 and Banis was quite weak, noting that Juror 3 did not

“really associate” with Banis. In addition, Banis was not a central figure in the trial,

having no active role, thus mitigating the possibility of partiality. Significantly, and in

contrast to other venirepersons who had been dismissed, Juror 3 also made repeated



                                              8
assurances, accepted by the District Court, that he could and would remain impartial.

See, e.g., United States v. Thorton, 1 F.3d 149, 154 (3d Cir.1993) (a district court

possesses “wide latitude in making the kind of credibility determinations underlying the

removal of a juror”). Thus, we conclude that the District Court did not abuse its

discretion in not declaring a mistrial with respect to the actions of Juror 3.

       Moscoso and Ferrer argue that the District Court abused its discretion when it

dismissed Juror 9 for inappropriate conduct over their objections. The record shows that

Juror 9 engaged in an array of inappropriate behavior, including: approaching trial

counsel for conversation, making inappropriate advances to members of the jury and

others, making racially-charged remarks, sleeping during proceedings, and arriving late to

court. The District Court found that this behavior was “poison to the deliberation process

to the point where jurors cannot have a free and frank interchange.” As we have

previously stated, the District Court is “in a far superior position than this Court to

appropriately consider allegations of juror misconduct.” United States v. Boone, 458 F.3d

321, 329 (3d Cir. 2006). Therefore, as the actions of Juror 9 were egregious, we conclude

that the District Court did not abuse its discretion when it dismissed Juror 9 in order to

preserve the integrity of deliberations.

       Baez argues that the District Court abused its discretion when it permitted his state

conviction records to be admitted as evidence against him. The state conviction records

contain statements made by Baez admitting to possessing and distributing drugs at the



                                               9
same time and location as the federal conspiracy. This evidence was therefore properly

admitted under Rule 801(d)(2) as an admission, as it is probative of his conduct at the

time and place of the federal conspiracy. Baez has not shown compelling grounds to find

that the probative value of this evidence is greatly outweighed by the prejudicial effect of

admitting this evidence, which was corroborated by other testimony. See Fed. R. Evid.

403. Any prejudice or confusion that the admission of Baez’s record may have caused

was mitigated by an explicit jury instruction, explaining that Baez “did not plead guilty to

conspiracy . . . . He pled guilty to acts which may or may not have been part of that

alleged conspiracy.”

       Delgado, Bosah, Moscoso, and Ferrer additionally argue that the admission of

Baez’s state conviction “necessarily implicated them” and because they did not have an

opportunity to cross-examine Baez, their right under the Confrontation Clause was

violated. The defendants rely on the rule enunciated in Bruton v. United States, which

held that a defendant’s right to confrontation was violated where his non-testifying co-

defendant’s confession, which implicated both the defendant and the co-defendant in the

crime, was admitted into evidence. 391 U.S. 123 (1968). Bruton is not applicable when

the admission of a non-testifying co-defendant does not name or “facially incriminate”

any other defendant. Richardson v. Marsh, 481 U.S. 200, 207 (1987). Since Baez’s

admission did not expressly name or reference any other defendant, there is no

Confrontation Clause violation. The defendants, other than Baez, argue that even if the



                                             10
admission did not directly implicate them, it created a strong inference that they were

involved with Baez in the conspiracy to distribute drugs. However, as we stated in United

States v. Belle, “evidentiary linkage or contextual implication may not be utilized to

convert a non-Bruton admissible statement into a Bruton inadmissible statement.” 593

F.2d 487, 494 (3d Cir. 1979). Moreover, the jury was given a limiting instruction,

requested by the defendants, reminding them to consider Baez’s conviction against him

only, and it is an “almost invariable assumption of the law that jurors follow their

instructions.” Richardson, 481 U.S. at 206. We therefore conclude that Baez’s admission

was properly admitted as evidence against him, and that admission of the evidence did not

offend the Sixth Amendment rights of the other defendants.

       Appellant Moscoso argues that the District Court abused its discretion when it

failed to grant his motion for a mistrial after a government witness mentioned that the

investigation was turned over to the FBI and that the drug activity had occurred near to a

school and law-abiding citizens. Moscoso does not dispute the factual basis for these

comments, but rather argues that he was unfairly prejudiced under Federal Rule of

Evidence 403. However, “Rule 403 does not provide a shield for defendants who engage

in outrageous acts . . . . It does not generally require the government to sanitize its case,

to deflate its witnesses’ testimony, or to tell its story in a monotone.” United States v.

Cross, 308 F.3d 308, 325 (3d Cir. 2002) (internal quotation marks and citation omitted).

The references to schools were essential to the government’s standard of proof. The



                                              11
references to innocent bystanders and the FBI were, as the government states “innocuous

and inevitable.” Regardless, Moscoso has not shown that the District Court abused its

discretion when it determined that this material was not substantially more prejudicial

than probative.

       Finally, Moscoso appeals his sentence, arguing that he should be resentenced and

that he “is entitled to have the beneficial aspects of the [United States v. Booker, 543 U.S.

220 (2005)] decision apply without retroactive application of the detrimental aspects.”

Moscoso contends that the “detrimental aspect[]” of Booker is that it allows courts to

sentence defendants above the Guidelines range. “The Ex Post Facto Clause of the

Constitution prohibits application of a law enacted after the date of the offense that

inflicts a greater punishment than the law annexed to the crime when committed.” United

States v. Pennavaria, 445 F.3d 720, 723 (3d Cir. 2006) (internal quotation marks and

citation omitted). No ex post facto violation occurred, first because Moscoso had fair

warning that participation in federal conspiracy to distribute crack was punishable by life

imprisonment under the statute. See id. at 723-24. In addition, Booker “clearly instructed

that both of its holdings should be applied to all cases on direct review.” Pennavaria, 445

F.3d at 724. Here, Moscoso’s sentence of 480 months’ imprisonment is below both the

statutory maximum of life imprisonment and the advisory Guidelines sentence of life

imprisonment. We will therefore affirm the District Court’s judgment of sentence against

Moscoso.



                                             12
                                     IV.

For the reasons set forth above, we will affirm.




                                     13
