13-3397-cr
United States v. Castelin

                              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 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, at 40 Foley Square, in the City of New York, on
the 11th day of March, two thousand fifteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            JOHN M. WALKER, JR.,
            DENNY CHIN,
                  Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                  Appellee,

                  -v-                                        No. 13-3397-cr

WILNER CASTELIN,

                  Defendant-Appellant,

BRUCE YAZDZIK, AKA Y.B., DAVID GAUDIOSI, AKA WADE, PATRICK SERAFINE,
SANDRA CANFIELD, BERNARD FAMIGLIETTI, EMMANUEL BABE, AKA MANNY,
SAMI NABER, CHRISTOPHER ALLEN, JOHN BEST, AKA JB, BRIGITTE JONES,
MICHAEL BRADY, JUSTIN KOLVES, JESSICA DOUGLAS,

            Defendants.
____________________________________________________________

For Defendant-Appellant:                 JILLIAN S. HARRINGTON, Monroe Township, New Jersey.




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For Appellee:                         RAHUL KALE (Marc H. Silverman, on the brief), for
                                      Deirdre M. Daly, United States Attorney for the District of
                                      Connecticut, New Haven, Connecticut.


       Appeal from the United States District Court for the District of Connecticut (Hall, C.J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Wilner Castelin appeals from a judgment of conviction entered on

August 30, 2013 by the United States District Court for the District of Connecticut (Hall, C.J.).

Castelin was convicted at trial of two counts of conspiracy: the first, conspiracy to distribute and

possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

846; and the second, conspiracy to launder monetary instruments, in violation of

18 U.S.C. § 1956(h). On August 23, 2013, the district court principally sentenced Castelin to

twenty-seven months‟ imprisonment. We assume the parties‟ familiarity with the relevant facts,

procedural history of the case, and the issues presented for review.

       We begin with Castelin‟s contention that there was insufficient evidence to prove that he

intended to participate in the scheme to traffic oxycodone. To sustain a conspiracy conviction,

the government must present “„some evidence from which it can reasonably be inferred that the

person charged with conspiracy knew of the existence of the scheme alleged in the indictment

and knowingly joined and participated in it.‟” United States v. Morgan, 385 F.3d 196, 206 (2d

Cir. 2004) (quoting United States v. Gaviria, 740 F.2d 174, 183 (2d Cir. 1984)). When

evaluating whether the government has presented enough evidence to a support a jury‟s guilty

verdict, “the relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime




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beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original).

        Here, the government put on testimony from two cooperating witnesses, both of whom

testified to events from which a reasonable jury could conclude that Castelin knew that he was

participating in a drug-trafficking scheme. David Gaudiosi testified that, among other things,

Castelin asked him “how much [they] pay for the Oxycodone and how much [they] sell it for.”

Gov‟t App‟x 342. Similarly, Sami Naber testified that that he was present when Castelin agreed

to transport bags of cash which also contained oxycodone pill bottles. And when Naber asked

Castelin about McGilvary‟s business, Castelin replied “I don‟t know and I don‟t want to know.”

Id. at 268; cf. United States v. Sicignano, 78 F.3d 69, 71 (2d Cir. 1996) (per curiam)

(“[K]nowledge of a criminal fact may be established where the defendant consciously avoided

learning the fact while aware of a high probability of its existence . . . .”). Viewing this

testimony in the light most favorable to the prosecution, a reasonable jury could conclude that

Castelin knowingly joined and participated in the scheme to distribute oxycodone. Although

Castelin challenges the credibility of Gaudiosi and Naber, “assessments of the weight of the

evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal

. . . .” Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Accordingly, we reject Castelin‟s

challenge to the sufficiency of the evidence.

        Next, Castelin argues that his trial counsel rendered ineffective assistance, by failing to

object to certain alleged hearsay testimony offered by Gaudiosi concerning the purchase and sale

price of the oxycodone. This argument fails at the threshold, however, because Gaudiosi‟s

testimony was not hearsay. Gaudiosi merely testified that Castelin asked about the purchase and

sale price of the oxycodone, and did not testify about his answer to Castelin‟s question.




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Castelin‟s out-of-court question was offered to show Castelin‟s knowledge of the oxycodone

distribution, and did not assert any fact. By definition, then, Castelin‟s question cannot be

hearsay. See Fed. R. Evid. 801(c), advisory comm. note (“If the significance of an offered

statement lies solely in the fact that it was made, no issue is raised as to the truth of anything

asserted, and the statement is not hearsay.”). Because the testimony was not hearsay, Castelin‟s

counsel did not render ineffective assistance by failing to object.

       Third, Castelin challenges a second supplemental jury instruction given by the district

court during deliberations. The district court delivered this second supplemental instruction to

correct a previous instruction that the court had delivered after the jury asked whether Castelin

had to explicitly know that the substance at issue was oxycodone. Castelin does not question the

legal accuracy of the district court‟s second supplemental instruction, but instead argues that the

instruction prejudiced him by highlighting the fact that the jury could convict him even if he did

not know that the substance was oxycodone. Castelin‟s argument is foreclosed, however, by

United States v. James, 998 F.2d 74, 78 (2d Cir. 1993), which held that when a district court

answers a jury‟s question incorrectly, the court should give “a modified supplemental instruction

correcting [its] prior erroneous statement.”

       Finally, Castelin argues in his pro se brief that the government entrapped him. But while

the government did instruct a cooperator to contact Castelin in May 2011 and ask him to

transport money, Castelin‟s transportation of that money was not part of the charged conspiracy.

Instead, the charged conspiracy was confined to 2010 and January 2011, before the cooperator

began working with the government. Accordingly, the government did not entrap Castelin into

the conduct that formed the basis for his conviction.




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       We have considered the defendant‟s remaining arguments, and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.




                                           FOR THE COURT:
                                           CATHERINE O‟HAGAN WOLFE, CLERK




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