     10-2123-cr
     USA v. Stafford

                                          UNITED STATES COURT OF APPEALS
                                             FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER
     Rulings by summary order do not have precedential effect. Citation to summary orders 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
     Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
     on the 23rd day of May, two thousand eleven.
 1
 2   PRESENT:
 3
 4             ROGER J. MINER,
 5             JOSÉ A. CABRANES,
 6             CHESTER J. STRAUB,
 7                           Circuit Judges,
 8
 9   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
10   UNITED STATES OF AMERICA,
11
12                       Appellee,
13
14                       -v.-                                                                   No. 10-2123-cr
15
16   BRIAN STAFFORD,
17
18                       Defendant-Appellant.
19
20
21   FOR DEFENDANT-APPELLANT:                                     Lawrence Gerzog, New York, NY.
22
23
24   FOR APPELLEE:                                                Sean C. Flynn, Assistant United States Attorney (Loretta
25                                                                E. Lynch, United States Attorney, and Susan Corkery,
26                                                                Assistant United States Attorney, on the brief), United
27                                                                States Attorney’s Office for the Eastern District of New
28                                                                York, New York, NY.
29

                                                                         1
 1           Appeal from a May 13, 2010 judgment of the United States District Court for the Eastern
 2   District of New York (I. Leo Glasser, Judge).
 3
 4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 5   DECREED that the judgment of the District Court is AFFIRMED.
 6
 7            On November 2, 2006, after a trial by jury, defendant-appellant Brian Stafford was convicted of
 8   one count of conspiracy to import cocaine, in violation of 21 U.S.C. § 963, and one count of conspiracy
 9   to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. On May 13,
10   2010, Stafford was sentenced principally to a term of imprisonment of time served and five years of
11   supervised release. This appeal followed. We assume the parties’ familiarity with the remaining factual
12   and procedural history of the case.
13
14                                                          (i)
15           On appeal, Stafford argues that the District Court erred in permitting the government to
16   introduce as evidence the notes that an investigative agent took during an interview with Stafford. We
17   review the evidentiary rulings of a district court for abuse of discretion. See, e.g., United States v. Mercado,
18   573 F.3d 138, 141 (2d Cir. 2009); see also Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining “abuse
19   of discretion”).
20
21           It is undisputed that Stafford participated in a voluntary interview in which he was told that he
22   was free to leave at any time. In the course of that interview, Stafford made various admissions
23   regarding his involvement in the charged conspiracies. At the end, the investigative agent, who had been
24   writing notes during the conversation, reviewed each line of his notes with defendant to ensure that they
25   accurately reflected the contents of the interview. Stafford made minor corrections to the notes, agreed
26   that the information therein (after the appropriate corrections were made) was accurate, and signed his
27   name on the last page.
28
29             At trial, the District Court permitted the government to introduce the notes, over defendant’s
30   hearsay objection, pursuant to Federal Rule of Evidence 801(d)(2)(B). See Fed. R. Evid. 801(d)(2)(B) (“A
31   statement is not hearsay if . . . [it is] a statement of which the party has manifested an adoption or belief
32   in its truth . . . .”). In so doing, the District Court did not err, much less abuse its discretion. Stafford’s
33   thorough review of the agent’s notes and acknowledgment of their accuracy adequately demonstrated his
34   adoption of their contents. They were therefore admissible as non-hearsay. See Fed. R. Evid.
35   801(d)(2)(B) advisory committee’s note (“Adoption or acquiescence may be manifested in any
36   appropriate manner.”).
37
38                                                      (ii)
39          Stafford argues that he was denied the right to a fair trial because his oral and written confession
40   was not corroborated by other evidence. See Smith v. United States, 348 U.S. 147, 152 (1954) (“[A]n
41   accused may not be convicted on his own uncorroborated confession.”).
42
43           Stafford’s claim is without merit. There was ample independent corroboration of his
44   participation in the conspiracies, including, among other things, the testimony of a cooperating witness
                                                          2
 1   about Stafford’s involvement, a recorded telephone conversation between defendant and a
 2   co-conspirator, and law enforcement records that reflected events consistent with those admitted to by
 3   Stafford. Accordingly, we are unpersuaded that Stafford was denied the right to a fair trial.
 4
 5                                                        (iii)
 6           Finally, Stafford asserts that the District Court committed reversible error when, sua sponte, it
 7   gave a jury instruction explaining the instances in which Miranda warnings must be administered to a
 8   prospective defendant. We review de novo a claim of error in jury instructions, reversing “where, viewing
 9   the charge as a whole, there was a prejudicial error.” United States v. Quattrone, 441 F.3d 153, 177 (2d Cir.
10   2006) (internal quotation marks omitted).
11
12           In the circumstances presented here, the District Court did not err. The District Court’s
13   instruction was prompted by defense counsel’s cross-examination of an investigative agent, in which
14   defense counsel’s questions implied that the agent may have violated defendant’s Fifth Amendment
15   rights. Accordingly, the District Court elected to instruct the jury regarding the law under Miranda v.
16   Arizona, 384 U.S. 436 (1966), and its progeny. That instruction was brief, legally accurate, and in no way
17   prejudicial.
18
19                                             CONCLUSION
20         We have considered each of defendant’s claims in turn and find them to be without merit. The
21   judgment of the District Court shall be AFFIRMED.
22
23
24                                                   FOR THE COURT,
25                                                   Catherine O’Hagan Wolfe, Clerk of Court
26




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