16-4013-cr
United States v. Arreola

                            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 TO 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
20th day of February, two thousand eighteen.

Present:
            RALPH K. WINTER,
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                 v.                                                16-4013-cr

PATRICK EDWARDS, also known as Ernest
Williams, also known as Michel Jaques,
also known as Fifty.

                           Defendant

JUAN PABLO ARREOLA

                           Defendant-Appellant.

_____________________________________




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For Defendant-Appellant:                   Nicholas J. Pinto, New York, NY.

For Appellee:                              Robert W. Allen, Rebekah Donaleski, Anna M. Skotko
                                           Assistant United States Attorneys, for Geoffrey S.
                                           Berman, Interim United States Attorney for the
                                           Southern District of New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Berman, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Juan Pablo Arreola appeals from a judgment entered by the United

States District Court for the Southern District of New York, convicting him of one count of

conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C.

§§ 841(b)(1)(A), 846. After Arreola was indicted on December 10, 2015, three of Arreola’s

co-conspirators, Louis Lombard, Miguel Chavez and Patrick Edwards, pleaded guilty to their

respective roles in the conspiracy and testified against Arreola at trial, pursuant to cooperation

agreements.     On July 21, 2016, after a four-day trial, the jury returned a guilty verdict.   The

district court determined at Arreola’s sentencing that the government proved by “at least a

preponderance of the evidence,” based on trial testimony from Lombard, Chavez, and Edwards,

that Arreola was involved in a conspiracy to distribute at least “57 kilos of heroin[] and 78 kilos

of cocaine.”    J.A. 32.    On November 21, 2016, the district court entered a judgment of

conviction and sentenced Arreola principally to 180 months of imprisonment followed by five

years of supervised release.   This appeal followed.   We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.




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   I.        Evidence of Arreola’s Cocaine Trafficking

        The first issue on appeal is whether the district court erred in admitting evidence that

Arreola was involved in distributing cocaine. Arreola argues that the district court abused its

discretion because his cocaine sales constituted uncharged criminal conduct separate from the

charged heroin conspiracy, and that evidence of those sales was inadmissible pursuant to Federal

Rule of Evidence 404(b).      Alternatively, a limiting instruction was required. We disagree.

The district court properly held that evidence of Arreola’s cocaine dealing was not subject to

Rule 404(b) and should be admitted as direct evidence, without a limiting instruction, because

“the uncharged cocaine trafficking [wa]s inextricably intertwined with the charged heroin

trafficking and . . . [wa]s also background to the conspiracy here to show the relationship

between and among the defendant and the cooperating witnesses.”        J.A. 21; see United States v.

Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (“[E]vidence of uncharged criminal activity is not

considered other crimes evidence under Fed. R. Evid. 404(b) if it arose out of the same

transaction or series of transactions as the charged offense, if it is inextricably intertwined with

the evidence regarding the charged offense, or if it is necessary to complete the story of the crime

on trial.” (citations and internal quotation marks omitted)); United States v. Gaggi, 811 F.2d 47,

61 (2d Cir. 1987) (concluding that limiting instructions are not required for such direct

evidence).

        The record is replete with examples of how Arreola’s uncharged acts of cocaine dealing

were “inextricably intertwined” and “arose out of the same transactions” as the charged acts of

heroin dealing. See Carboni, 204 F.3d at 44. Edwards testified at trial that Arreola supplied

him with heroin and cocaine, and directed him to distribute both drugs together on a monthly

basis, usually in combined shipments comprised of a few kilograms of cocaine and a few

kilograms of heroin.     Lombard also testified that Arreola supplied him with at least one

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kilogram of cocaine while they were primarily engaged in heroin trafficking, and Arreola

explained to Lombard that he sourced the cocaine and heroin from Mexico.                 Arreola’s

relationship with some of his co-conspirators was also based on the fact that he distributed both

cocaine and heroin, and so the government’s decision to include cocaine dealing in the narrative

was “necessary to complete the story of the crime on trial” and provide background information

on Arreola’s conspiracy to act as a wholesale supplier of drugs. Id. at 44; see also United States

v. Escalera, 536 F. App’x 27 (2d Cir. 2013) (summary order) (“Even if the sales were not

inextricably intertwined, the district court would have had the discretion to admit them as

background to the conspiracy, helping the jury understand how the illegal relationship among the

participants developed, and how [the defendant’s] role in the conspiracy evolved.”).       Chavez

first introduced Arreola to Edwards because Chavez knew Arreola “was a good source . . . [for]

getting cocaine.” See S.D.N.Y. 15-cr-824 doc. 65, at 327 (trial transcript).        In addition to

facilitating Arreola’s heroin and cocaine shipments to Edwards’ customer in New York, Edwards

also personally handled several of Arreola’s larger heroin shipments to Lombard and Chavez, by

using the same shipping method as in earlier transactions with Arreola. The district court was

thus well within its discretion, and certainly did not “act[] arbitrarily and irrationally,” in

admitting evidence of Arreola’s cocaine dealing as direct evidence of the charged heroin

conspiracy. See United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002) (district court’s

evidentiary rulings are reviewed for abuse of discretion and we reverse only if “the district court

acted arbitrarily and irrationally” (citation omitted)).

   II.      Constructive Amendment of the Indictment

         Arreola next argues that his indictment was constructively amended because the district

court admitted evidence of his cocaine dealing without a limiting instruction, which

“broaden[ed] the possible bases for conviction from that which appeared in the indictment.”

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United States v. Rigas, 490 F.3d 208, 225 (2d Cir. 2007) (citation omitted).         “We exercise de

novo review of a constructive amendment challenge, which is a per se violation of the Grand

Jury Clause of the Fifth Amendment.”             Id. at 225–26 (citation omitted).        To prove a

constructive amendment, Arreola must demonstrate that “there is a substantial likelihood that [he]

may have been convicted of an offense other than that charged in the indictment.” United States

v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001) (citation omitted). Arreola did not preserve his

objection below, so he must also make a showing of plain error. See United States v. Flaharty,

295 F.3d 182, 195 (2d Cir. 2002) (plain error requires a showing that “(1) there was error, (2) the

error was ‘plain,’ [and] (3) the error prejudicially affected his ‘substantial rights.’” (quoting United

States v. Olano, 507 U.S. 725, 732 (1993)). Arreola fails to meet this heavy burden.

       “[W]e have ‘consistently permitted significant flexibility in proof, provided that the

defendant was given notice of the core of criminality to be proven at trial,’” in part because

“[p]roof at trial need not, indeed cannot, be a precise replica of the charges contained in an

indictment.” Rigas, 490 F.3d at 228 (internal quotation marks, footnote, and citations omitted)

(emphasis in original). Arreola relies heavily on United States v. Wozniak, 126 F.3d 105, 110

(2d Cir. 1997) to argue that if he knew “the government would seek a conviction mostly based

on cocaine evidence, he might have chosen a different trial strategy.” Def.-Appellant Reply Br.

7 (citing Wozniak, 126 F.3d at 110).       This argument is unconvincing.        Arreola should have

been well aware that evidence of his cocaine dealing would be introduced at trial.                 The

indictment charged that Arreola was involved in a conspiracy with Edwards to distribute

controlled substances, and as discussed above, Edwards was a cooperating government witness

who Arreola knew could provide testimony regarding their conspiracy to distribute both cocaine

and heroin.    See Wozniak, 126 F.3d at 111 (“The operative facts were the same even if the



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prosecution failed to realize that the controlled substance in the transaction charged was cocaine

rather than heroin. . . . Therefore, the defendants were aware of the ‘core of criminality’ which

was to be proved at trial.”). A few weeks before trial, moreover, the government filed a motion

in limine seeking to admit evidence of Arreola’s cocaine dealing, and the parties argued the

motion in a hearing that was held one week before trial. Defense counsel even used the fact

that Arreola was only charged with heroin dealing to Arreola’s advantage, by arguing that the

failure to charge Arreola with cocaine dealing cast doubt on the credibility of the government’s

witnesses. See S.D.N.Y. 15-cr-824 doc. 67, at 562–63 (trial transcript) (“The charge of cocaine

is not in this case and it’s from the same witnesses that the government is relying upon the

charge that is in this case.     Is there a lack of credibility?      These were desperate men in

desperate times, in desperate straits.”).    On rebuttal, the government then specifically argued,

“Does the fact that the defendant isn’t charged with cocaine in the indictment have anything to

do with the evidence that you heard?      Obviously not.” Id. at 577.

        Furthermore, Wozniak is inapposite because in that case, the jury was improperly

instructed that “[s]o long as you are satisfied that the government has proven beyond a

reasonable doubt that some controlled substance was involved in the acts charged in that count of

the indictment, it does not matter if such controlled substance is different than that alleged in that

count of the indictment.” Wozniak, 126 F.3d at 108–09.1           In sharp contrast, the jury here was

repeatedly instructed that to find Arreola guilty, they specifically had to find that Arreola agreed

to distribute heroin.   The verdict form also required the jury to make a specific finding of how



1
  Wozniak is also distinguishable because Arreola does not argue here that the government presented
insufficient evidence that he was involved in a conspiracy to distribute heroin. See Wozniak, 126 F.3d at
111 (finding constructive amendment because “[t]he government’s sparse evidence of [the defendant’s]
involvement in cocaine and the court’s jury charge . . . allowed the jury to convict [the defendant] of
offenses based on transactions not charged.”).


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much heroin was involved in the conspiracy.         Arreola’s speculative contention that the jury was

nevertheless confused is contrary to “the law’s general assumption that juries follow the

instructions they are given.” United States v. Agrawal, 726 F.3d 235, 258 (2d Cir. 2013).

Based on the record before us, we cannot say that Arreola has shown a “substantial likelihood

that [he] may have been convicted of an offense other than that charged in the indictment.”

Thomas, 274 F.3d at 670 (citation omitted).

    III.      Improper Vouching

           Finally, Arreola argues that the government improperly vouched for its witnesses on

summation by linking its credibility to that of its witnesses and referring to facts not in evidence.

Specifically, Arreola challenges the second paragraph of the following excerpt from the

government’s rebuttal:2

                  [S]o Lombard is at this meeting, Lombard turns to Chavez and
                  Ed[wards] and says: Hey, guys, bad news. The DEA is on to us, but I
                  have got this awesome plan for what we are going to do if we get
                  caught. Here is the awesome plan:

                  So, I am going to get arrested, I am going to go to jail—downside,
                  but gotta do it—and then I am going to sit through hours and hours
                  of meetings with the government where I am going to be
                  interrogated. And I am going to know all along that the government
                  is going to be doing background research, they are going to be
                  investigating what I am telling them to try to see if I am lying. If I
                  am lying, I know this is a risk, if I am lying, if they find out that I am
                  lying, I’m going to go to jail for a long time. No way around that. No
                  way around that.

S.D.N.Y. 15-cr-824 doc. 65, at 582 (trial transcript).

           To warrant reversal of a conviction, an improper remark by a prosecutor must “cause[]

the defendant substantial prejudice so infecting the trial with unfairness as to make the resulting

conviction a denial of due process.” United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005)
2
  The first paragraph is reproduced here to provide context for better understanding the challenged
statement in the second paragraph.


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(quoting United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999)). And where, as here, Arreola

“did not object to the [government’s] remarks at trial, reversal is warranted only where the

remarks amounted to a ‘flagrant abuse.’” United States v. Germosen, 139 F.3d 120, 128 (2d

Cir. 1998) (quoting United States v. Araujo, 79 F.3d 7, 9 (2d Cir. 1996)).        There is no such

flagrant abuse here.   The challenged statement was properly used as a hypothetical during the

government’s rebuttal in order to point out how defense counsel’s assertion that “all three of [the

government’s witnesses] lied to falsely convict Juan Pablo Arreola” was implausible. S.D.N.Y.

15-cr-824 doc. 65, at 581 (trial transcript); see United States v. Perez, 144 F.3d 204, 210 (2d Cir.

1998) (“Prosecutors have greater leeway in commenting on the credibility of their witnesses

when the defense has attacked that credibility.”); Carr, 424 F.3d at 227 (“[T]he government is

allowed to respond to an argument that impugns its integrity or the integrity of its case, and when

the defense counsel have attacked the prosecutor’s credibility or the credibility of the government

agents, the prosecutor is entitled to reply with rebutting language suitable to the occasion.”

(citation omitted)).

       Arreola’s argument that the government should not have “referred to facts not in evidence”

is also unconvincing. Def.-Appellant Br. 22 (referring to the statement that “the government is

going to be doing background research, they are going to be investigating what I am telling them to

try to see if I am lying”). The challenged hypothetical was clearly used by the government as a

“rhetorical flourish,” United States v. Williams, 690 F.3d 70, 76 (2d Cir. 2012), to point out how

defense counsel’s “explanation . . . for why those three cooperating witnesses would have said

what they said about his client . . . makes no sense whatsoever,” S.D.N.Y. 15-cr-824 doc. 65, at

584 (trial transcript). See also Williams, 690 F.3d at 76 (“Viewed in context, this statement

was not improper vouching but a rhetorical flourish bringing the rebuttal summation to a



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close.”). We have also specifically held that it is proper for the government to explain the

incentives for a cooperating witness to tell the truth.       See Carr, 424 F.3d at 228. And after

using the hypothetical as a rhetorical tool, the government repeatedly reminded the jury to

consider evidence in the record.     See, e.g., S.D.N.Y. 15-cr-824 doc. 65, at 587 (trial transcript)

(“[W]hen you go back to deliberate, make sure that the arguments that [defense counsel] made

are actually supported by the record in this case.”); id. at 591–92 (“Think about all the evidence

in this case, the BBM, the recordings, the testimony you heard from three cooperating

witnesses.”); id. at 592 (“You know that the evidence all lines up . . . .”); see also United States

v. Spinelli, 551 F.3d 159, 169 (2d Cir. 2008) (“The prosecutor is of course entitled to argue

forcefully and vigorously to the jury in support of her witness’s credibility.    But the argument

must be based on evidence in the record.”).           “In a particular context . . . what might

superficially appear to be improper vouching for witness credibility may turn out on closer

examination to be permissible reference to the evidence in the case.”       Perez, 144 F.3d at 210.

That is precisely what happened here.      The government’s comments did not rise to the level of

“flagrant abuse,” Germosen, 139 F.3d at 128, nor did they cause Arreola to suffer “substantial

prejudice,” Carr, 424 F.3d at 227.

                                          *       *       *

       We have considered Arreola’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the District Court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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