     16-0344(L)
     United States v. Reyes

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                SUMMARY ORDER
 5
 6   RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
 8   APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
 9   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10   OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
11   ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13        At a stated term of the United States Court of Appeals for
14   the Second Circuit, held at the Thurgood Marshall United States
15   Courthouse, 40 Foley Square, in the City of New York, on the
16   13th day of January, two thousand seventeen.
17
18   PRESENT: DENNIS JACOBS,
19            SUSAN L. CARNEY,
20                          Circuit Judges,
21            KATHERINE POLK FAILLA,
22                          District Judge.*
23
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25
26   United States,
27            Appellee,
28
29                -v.-                                           16-0344(L)
30                                                               16-739(con)
31   Ronaldo Reyes,
32            Defendant-Appellant.
33
34   - - - - - - - - - - - - - - - - - - - -X
35


          *    Judge Katherine Polk Failla of the United States
     District Court for the Southern District of New York, sitting
     by designation.
                                                1
 1   FOR APPELLANT:                Benjamin W. Hill, Dreyer Boyajian
 2                                 LLP, Albany, NY.
 3
 4   FOR APPELLEE:                 Douglas G.N. Collyer, Paul D.
 5                                 Silver, Assistant United States
 6                                 Attorneys, for Richard S.
 7                                 Hartunian, United States Attorney
 8                                 for the Northern District of New
 9                                 York, Albany, NY.
10
11        Appeal from a final order of the United States District Court
12   for the Northern District of New York (Scullin, J.).

13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
14   DECREED that the judgment of the district court be AFFIRMED.
15
16         Ronaldo Reyes appeals from a judgment of conviction entered
17   in the United States District Court for the Northern District
18   of New York (Scullin, J.). Reyes was convicted after a jury trial
19   of one count of conspiring to bring and seven counts of bringing
20   aliens to the United States unlawfully for the purpose of
21   commercial advantage and private financial gain, in violation
22   of 8 U.S.C. § 1324(a). He was sentenced principally to a 60-month
23   term of imprisonment. We assume the parties’ familiarity with
24   the underlying facts, the procedural history, and the issues
25   presented for review.

26        1. Reyes was convicted for his role in smuggling aliens
27   on several dates. Reyes argues that his conviction on Counts
28   Three through Six, which relate to one instance of smuggling
29   four aliens, should be vacated because the only evidence
30   regarding his financial incentives was the testimony of a single
31   witness who could not testify that Reyes was paid or otherwise
32   committed the offense for commercial advantage or financial
33   gain.

34        “We review challenges to the sufficiency of evidence de
35   novo,” but while “view[ing] the evidence in the light most
36   favorable to the government, drawing all inferences in the
37   government’s favor and deferring to the jury’s assessments of
38   the witnesses’ credibility.” United States v. Pierce, 785 F.3d
39   832, 837-38 (2d Cir. 2015). “[T]he evidence must be viewed in

                                     2
 1   conjunction, not in isolation,” United States v. Persico, 645
 2   F.3d 85, 104 (2d Cir. 2011), and “[w]e will sustain the jury’s
 3   verdict if any rational trier of fact could have found the
 4   essential elements of the crime beyond a reasonable doubt.”
 5   Pierce, 785 F.3d at 838 (internal quotation marks omitted).

 6        The evidence that Reyes was paid for the particular
 7   smuggling charged in Counts Three through Six was
 8   circumstantial; but taking it together, and viewing it in the
 9   light most favorable to the government, there is enough for a
10   rational trier of fact to convict. Cooperating witness Clarisa
11   Gil-Corcino, who pleaded guilty to her role in the smuggling
12   in question, testified that: (1) Reyes had told Gil-Corcino that
13   he and his uncle were in the alien smuggling business and split
14   the profits; (2) one of the illegally transported aliens had
15   asked Gil-Corcino if she could find someone to transport her;
16   (3) Gil-Corcino asked Reyes what it would cost; (4) Reyes quoted
17   a price; and (5) Reyes offered to pay Gil-Corcino to pick up
18   aliens when they had made it across the border. Gil-Corcino
19   agreed and was caught in the act. A rational jury would be
20   entitled to credit that testimony and, considering its totality,
21   could find beyond a reasonable doubt that the aliens Gil-Corcino
22   picked up on the date charged in Counts Three through Six were
23   sent by Reyes, who had arranged their transport for profit as
24   part of a pattern of alien smuggling that provided sufficient
25   funds for Reyes to pay Gil-Corcino for her role.

26        2. Reyes argues that hearsay testimony elicited at trial
27   violated his Sixth Amendment rights and deprived him of a fair
28   trial. The testimony in question was not admitted, but was
29   erroneously elicited and subsequently stricken. The government
30   asked Gil-Corcino, “And [Reyes] got paid, right?” J.A. 184.
31   The district judge overruled Reyes’s objection, and Gil-Corcino
32   began to answer, “Yes, the illegals,” before the district judge
33   inquired into the basis for that testimony, realized it was
34   hearsay, and struck the question and the answer. J.A. 184-85.

35        The government concedes it was error to elicit Gil-Corcino’s
36   answer, which she could provide only on the basis of statements
37   by third parties. Her brief response was not received in
38   evidence, however: it was immediately stricken, it was not
39   mentioned again, and the jury was instructed to disregard

                                    3
 1   stricken testimony. Juries are generally presumed to “follow
 2   the instructions they are given.” United States v. Agrawal, 726
 3   F.3d 235, 258 (2d Cir. 2013). The evidence was easily sufficient
 4   to sustain the conviction without Gil-Corcino’s interrupted
 5   response to the government’s improper question. Reyes and the
 6   government dispute whether the issue was sufficiently raised
 7   in the district court, and therefore whether review is for plain
 8   error, but in any event the stricken answer did not deprive Reyes
 9   of a fair trial.

10        3. The district court admitted into evidence photographs
11   taken by a “Buckeye Cam” infrared camera placed in the woods
12   near the border. Reyes argues that the district court abused
13   its discretion because the images are of poor quality and lack
14   probative value, and because the Border Patrol Agent through
15   whose testimony the photographs were introduced could not
16   testify as to the camera’s precise location, or as to its
17   technological features.

18        Our review of the decision to admit such evidence “is highly
19   deferential in recognition of the district court’s superior
20   position to assess” it. United States v. Coppola, 671 F.3d 220,
21   244 (2d Cir. 2012) (quotations marks omitted). We will only
22   reverse the district court’s ruling as an abuse of discretion
23   if it “was arbitrary and irrational.” Id. We find no error in
24   this case.

25        The testimony about the camera’s placement and functioning
26   was sufficient to lay a foundation for the photographs’
27   admission. Reyes presents no argument that the images are
28   anything other than what they purport to be. If their grainy
29   quality or vagueness about the camera’s precise location
30   impaired the probative value of the images, their potential to
31   prejudice Reyes would be correspondingly reduced. He presents
32   no plausible argument that he was unfairly prejudiced or deprived
33   of a fair trial because of their admission.

34

35

36


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1        Accordingly, and finding no merit in appellants’ other
2   arguments, we hereby AFFIRM the judgment of the district court.

3                                FOR THE COURT:
4                                CATHERINE O’HAGAN WOLFE, CLERK
5




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