14-4769(L)
United States v. Miguel Delance, Limet Vasquez, Carlos Urena

                               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, 40 Foley Square, in the City of New York on the
31st day of May, two thousand seventeen.

Present:         JON O. NEWMAN,
                 ROSEMARY S. POOLER,
                 PETER W. HALL,
                            Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                         v.                                                   14-4769(L)
                                                                              15-77(CON)
MIGUEL DELANCE, LIMET VASQUEZ, CARLOS URENA,                                  15-118(CON)
aka SEALED DEFENDANT 4, aka SALCEDO, aka WHITE
BOY,

                        Defendants-Appellants.1
_____________________________________________________

Appearing for Appellant           Deborah Colson, Colson & Harris LLP, New York, NY.
Miguel Delance:

Appearing for Appellant           Don Buchwald, New York, NY.
Limet Vasquez:
                                  Alina Mejer, Kelley Drye & Warren LLP, New York, NY.
1
    The Clerk of the Court is respectfully directed to amend the caption as above.
Appearing for Appellant       Gregory E. Cooper, New York, NY.
Miguel Carlos Urena:

Appearing for Appellee:       Catherine Geddes, Micah W.J. Smith, Assistant United States
                              Attorneys (Margaret Garnett, Assistant United States Attorney, on
                              the brief), for Joon H. Kim, Acting United States Attorney for the
                              Southern District of New York, New York, NY.

      Appeal from the United States District Court for the Southern District of New York
(Engelmayer, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of said District Court be and they hereby are AFFIRMED.

        Defendants-Appellants Carlos Urena and Limet Vasquez appeal from the January 9,
2015 judgments of the United States District Court for the Southern District of New York
(Engelmayer, J.), convicting them, following a seven-week jury trial, of: participating in a
racketeering enterprise, in violation of 18 U.S.C. §§ 1961 and 1962(c); conspiracy to commit
racketeering, in violation of 18 U.S.C § 1962(d); and narcotics conspiracy, in violation of 21
U.S.C. § 846. Additionally, Urena was convicted of murder in aid of racketeering, in violation of
18 U.S.C. §§ 1959(a)(1) and 2; use of a firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(j); three counts of assault and attempted murder in aid of racketeering, in
violation of 18 U.S.C. §§ 1959(a)(3), 1959(a)(5), and 2; and conspiracy to murder in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(5).

       Defendant-Appellant Miguel Delance appeals from the December 19, 2014 judgment of
the United States District Court for the Southern District of New York (Engelmayer, J.),
convicting him, following a guilty plea, of racketeering conspiracy, in violation of 18 U.S.C. §
1962(d). The district court sentenced Delance primarily to 121 months’ imprisonment.

        We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

   I. Prosecutorial Misconduct

       A. Brady/Giglio Violation

        Urena alleges that the government violated its obligations under Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose (1) the
pre-trial arrest of Angel Hernandez and (2) Hernandez’s post-arrest statements to the
government. Urena argues that he could have used this information to interview Hernandez, to
call Hernandez as a trial witness, and to impeach certain cooperating witnesses and a civilian
witness.




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        A Brady/Giglio violation has three elements: “[(1)] [t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; [(2)] that
evidence must have been suppressed by the State, either willfully or inadvertently; and [(3)]
prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Evidence is
impeaching if it “ha[s] the potential to alter the jury’s assessment of the credibility of a
significant prosecution witness.” United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998).

         Under the third prong of the Strickler test, we evaluate whether the impeachment
evidence is material. “Evidence is material . . . when there is a reasonable probability that, had
the evidence been disclosed, the result of the proceeding would have been different, such that the
failure to disclose undermines confidence in the verdict.” United States v. Certified Envtl. Servs.,
Inc., 753 F.3d 72, 91 (2d Cir. 2014) (internal alterations and quotation marks omitted). With
respect to impeachment evidence, “[i]n general, evidence whose function is impeachment may
be considered to be material where the witness in question supplied the only evidence linking the
defendant to the crime” or “supplied the only evidence of an essential element of the offense.”
Avellino, 136 F.3d at 256-57. Moreover, “[i]t is well settled that where ample ammunition exists
to attack a witness’s credibility, evidence that would provide an additional basis for doing so is
ordinarily deemed cumulative and hence immaterial.” United States v. Orena, 145 F.3d 551, 559
(2d Cir. 1998).

        Here, the nondisclosure of Hernandez’s arrest and post-arrest statements did not violate
the government’s obligation under Brady/Giglio because they were not material. At most,
Hernandez’s statements may have been used to impeach cooperating witnesses Jose Cruz and
civilian witness Nicole Mela. Any impeachment material from Hernandez was unlikely to be
material because neither Cruz nor Mela supplied the only evidence linking Urena to the murder
of Ka’Shawn Phillips. See Avellino, 136 F.3d at 256-57. A number of other witnesses identified
Urena as the second shooter and denied that Hernandez’s half-brother, Juan Martinez (“KJ”),
was the first shooter. Additionally, because Urena had access to substantial evidence to impeach
Cruz, any additional evidence obtained from Hernandez would have been deemed cumulative
and immaterial. See Orena, 145 F.3d at 559. Even though the disclosure of Hernandez’s arrest
and post-trial statements may have been useful to Urena, the government’s nondisclosure was
not “so serious that there is a reasonable probability that the suppressed evidence would have
produced a different verdict.” Strickler, 527 U.S. at 281.

       B. Improper Prosecutorial Summation

        Urena argues that the government’s summation included improper references to
propensity evidence, and that those references prejudiced Urena because the jury may have relied
on the propensity evidence to convict Urena for the Phillips murder.

       “A defendant bears a substantial burden in arguing for reversal on the basis of
prosecutorial misconduct in the summation.” United States v. Caracappa, 614 F.3d 30, 41 (2d
Cir. 2010). That is because, in order to prevail, the defendant “must demonstrate misconduct so
egregious that, when viewed in the context of the entire trial, it substantially prejudiced him.”
United States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004). “In assessing whether a defendant
has sustained substantial prejudice, we consider the severity of the alleged misconduct, any


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curative measures taken by the trial court, and the likelihood of conviction absent the challenged
conduct.” Id.

        In this case, Urena appears to complain about the government’s discussion of uncharged
violent incidents in its summation, arguing that their use amounted to the improper use of
propensity evidence. The district court “carefully monitored” the government’s summation and
did not hear “anything . . . that came close to arguing propensity.” Tr. at 5016. Moreover, the
government was permitted to introduce evidence of uncharged offenses to show the existence of
the criminal enterprise, and the admission of such evidence is not subject to Federal Rule of
Evidence 404(b). See United States v. Baez, 349 F.3d 90, 93-94 (2d Cir. 2003) (“It is well settled
that in prosecutions for racketeering offenses, the government may introduce evidence of
uncharged offenses to establish the existence of the criminal enterprise.”). Accordingly, Urena
did not demonstrate that the government engaged in any misconduct—much less misconduct so
severe that, when viewed in the context of the entire trial, substantially prejudiced him.

   II. Evidentiary Rulings

       “We review the district court’s evidentiary rulings for abuse of discretion.” United States
v. Natal, 849 F.3d 530, 534 (2d Cir. 2017). Even if a district court abuses its discretion by
making an erroneous evidentiary ruling, that error is ordinarily subject to harmless error review.
United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009).

       A. Exclusion of Transcript of Unavailable Witness’s Prior Testimony

       Urena argues that the district court abused its discretion by denying his request to admit,
pursuant to Federal Rule of Evidence 807, the transcript of an unavailable witness’s prior
testimony in a state court trial.

        A statement will be admitted under Rule 807, the residual exception, if “(i) it is
particularly trustworthy; (ii) it bears on a material fact; (iii) it is the most probative evidence
addressing that fact; (iv) its admission is consistent with the rules of evidence and advances the
interests of justice; and (v) its proffer follows adequate notice to the adverse party.” United
States v. Morgan, 385 F.3d 196, 208 (2d Cir. 2004). “Congress intended that the residual hearsay
exception[] will be used very rarely, and only in exceptional circumstances.” Parsons v.
Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991) (internal quotation marks omitted).

         Urena sought to introduce prior testimony from Jamal Thomas. Thomas was a witness in
the state court trial of KJ for the murder of Phillips, and testified that KJ was the first shooter.
Thomas was unavailable to testify in the instant trial. The district court conducted a careful, on-
the-record analysis of the admissibility of Thomas’s prior testimony under Rule 807. While the
district court found that Thomas’s prior testimony satisfied the second prong because it pertained
to a material fact, the testimony otherwise failed to meet the remaining prongs for admissibility
under Rule 807. In particular, the district court cited several later-arising facts that undermined
the trustworthiness of Thomas’s prior testimony, identified testimony already presented by
available witnesses that was as probative as Thomas’s on the identity of the first shooter, and
found that it would not serve the interests of justice to permit the defense to rely on the prior


                                                 4
testimony of an unavailable witness when it could present comparable testimony from available
witnesses. We agree with the district court’s well-reasoned explanation for denying Urena’s
request to admit Thomas’s prior testimony.

       B. Exclusion of Evidence from Proffer Interview of Richard Gonzalez

        Vasquez sought to introduce evidence from a proffer interview of Richard Gonzalez to
impeach the testimony of cooperating witness Jose Cruz. The district court denied such evidence
under both Federal Rules of Evidence 613(b) and 403. “We will overturn a trial judge’s
determination under Rule 403 only if we determine that the judge acted arbitrarily or
irrationally.” United States v. Tracy, 12 F.3d 1186, 1195 (2d Cir. 1993).

         We do not address the district court’s determination with respect to Rule 613(b) because
the district court’s decision to exclude the evidence from Gonzalez’s proffer interview under
Rule 403 was not an abuse of discretion. See United States v. King, 560 F.2d 122, 128 (2d Cir.
1977). Given Gonzalez’s limited recollection of his underlying conversation with Cruz about the
Phillips murder and his inability to provide context, the district court was within its discretion in
determining that the statements in Gonzalez’s proffer had low probative value which was
outweighed by the risk of misleading the jury and permitting the jury to speculate about the
meaning of those statements. “[M]indful of a district court’s superior position to assess relevancy
and to weigh the probative value of evidence against its potential for unfair prejudice,” we hold
that there was no abuse of discretion. United States v. Schaffer, 851 F.3d 166, 177 (2d Cir. 2017)
(alterations omitted).

   III. Motions for Mistrial

       Urena argues that the district court erred in denying his motions for mistrial. Urena
sought a mistrial as the result of allegedly prejudicial publicity relating to a New York Daily
News article, and the admission of fear-based testimony by a witness.

       A. Prejudicial Publicity

        “When jurors have been exposed to prejudicial publicity during trial, the trial court must
determine whether the jurors retained the requisite impartiality.” United States v. Scopo, 861
F.2d 339, 349 (2d Cir. 1988) (internal quotation marks omitted). We have established a “simple
three-step process” that a district court may follow in order to determine whether a mistrial is
warranted as a result of prejudicial publicity:

       [F]irst . . . determine whether the coverage has a potential for unfair prejudice[;]
       second, . . . canvass the jury to find out if they have learned of the potentially
       prejudicial publicity[;] and[] third, . . . examine individually exposed jurors—
       outside the presence of the other jurors—to ascertain how much they know of the
       distracting publicity and what effect, if any, it has had on that juror’s ability to
       decide the case fairly.

Id. We review the district court’s determinations under this process for an abuse of discretion. Id.


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        In this case, the parties informed the district court that the New York Daily News had
published an article about Urena’s prosecution. The district court, at defense counsel’s request,
twice questioned the jurors about whether they had “read or seen anything about the case.” Tr.
1522, 1727-28. When no juror raised his or her hand, the district court specifically instructed the
jurors not to read that day’s Daily News or anything about Urena’s case. Under these
circumstances, after completing the first two steps of the three-step process, the district court
“could certainly ascertain that these jurors, who had been given a cautionary instruction and
reported that they did not know the content of the offending article, could remain impartial.” See
United States v. McDonough, 56 F.3d 381, 387 (2d Cir. 1995) (internal quotation marks and
citation omitted). It did not need to take further action to determine whether the jury could
remain impartial. See id. The district court properly denied Urena’s related motion for mistrial.

       B. Striking Testimony from Samuel Fernandez

       Urena challenges the district court’s decision not to strike, in full, the testimony of
witness Samuel Fernandez. Fernandez testified, among other things, that he was afraid that
Urena and the Trinitarios would harm him and his family for testifying.

        During the trial, Urena’s counsel moved to strike Fernandez’s testimony and for a
mistrial. We review a district court’s denial of a motion for mistrial for abuse of discretion.
United States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995).

         The district court initially denied those motions, but later proposed a limiting instruction
to mitigate “potential areas of prejudice” resulting from such testimony, including the risk that
the jury would “consider [the witness’s testimony about fear] as substantive evidence bearing on
the guilt or innocence of [Urena].” Tr. at 2773-74. The district court specifically instructed the
jury it struck parts of Fernandez’s testimony and that that the jury could not consider
Fernandez’s testimony about fear “for any purpose,” and that it “must disregard it altogether.”
Tr. at 3063.

         The district court did not abuse its discretion by denying Urena’s motion for mistrial and
motion to strike Fernandez’s testimony in its entirety. Certain aspects of Fernandez’s testimony
were relevant and admissible—e.g. his testimony about the existence of the Trinitarios
enterprise, the Trinitarios’ meeting in Van Cortlandt Park. Moreover, the district court addressed
concerns about the prejudicial nature of Fernandez’s testimony by striking substantial portions,
including his fear testimony. Because we recognize a “strong presumption” that juries follow [a
district court’s] limiting instructions,” United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006),
the district court’s use of a limiting instruction should have mitigated the concern about any
unduly prejudicial effect of Fernandez’s testimony, see United States v. Elfgeeh, 515 F.3d 100,
127 (2d Cir. 2008); United States v. Anzalone, 626 F.2d 239, 245-46 (2d Cir. 1980) (affirming
the denial of defendant’s mistrial motion). Given the district court’s limiting instruction, its
decision to deny Urena’s motions for a mistrial and to strike the entirety of Fernandez’s
testimony was not an abuse of discretion.




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   IV. Sufficiency of the Evidence

        On appeal, Vasquez argues that there was insufficient evidence to show that he
participated in the narcotics conspiracy during the statute of limitations period: December 5,
2007 to December 5, 2012.

        “We review challenges to the sufficiency of evidence de novo.” United States v. Pierce,
785 F.3d 832, 837 (2d Cir. 2015). A defendant challenging the sufficiency of the evidence
supporting his conviction “bears a heavy burden, as the standard of review is exceedingly
deferential” to the jury’s verdict. United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015). We
“will sustain the jury’s verdict if ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Pierce, 785 F.3d at 838 (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).

        In this case, a rational jury could conclude that Vasquez agreed with another to distribute
narcotics, that he had a specific intent to distribute narcotics, and that he took an overt act in
furtherance of the conspiracy. See United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004).
The government offered evidence that was sufficient for a rational jury to conclude that Vasquez
was involved in the charged narcotics conspiracy during the limitations period. The government
introduced: (1) testimony from NYPD officer Edwin Salas that, in 2009, he witnessed Vasquez
acting as “a lookout or steerer for . . . drug sale[s];” Tr. 3585. (2) that Officer Salas legally
searched an apartment belonging to Vasquez and Anthony Rodriguez (another man suspected of
selling narcotics) and recovered powder cocaine; (3) that Officer Salas heard Vasquez warn
Rodriguez over the latter’s walkie-talkie phone that the police were coming; and (4)
circumstantial evidence that Vasquez’s drug activity in 2009 occurred on blocks controlled by
the Trinitarios until at least 2011—meaning that one either needed to be a Trinitario or receive
permission from them to sell drugs there.

       Given this evidence, a rational jury could have found the essential elements of the crime
proven beyond a reasonable doubt. We will not disturb Vasquez’s conviction.

   V. Reasonableness of Sentence

        This Court reviews challenges to a sentence under a “reasonableness” standard, which is
“a particularly deferential form of abuse-of-discretion review.” United States v. Broxmeyer, 699
F.3d 265, 278 (2d Cir. 2012) (internal quotation marks omitted). “Reasonableness review
requires an examination of the length of the sentence (substantive reasonableness) as well as the
procedure employed in arriving at the sentence (procedural reasonableness).” United States v.
Robinson, 702 F.3d 22, 38 (2d Cir. 2012).

        A sentence is procedurally unreasonable if the district court “fails to calculate the
Guidelines range . . . , makes a mistake in its Guidelines calculation, . . . treats the Guidelines as
mandatory . . .[,] does not consider the [Section] 3553(a) factors, . . . rests its sentence on a
clearly erroneous finding of fact . . . [,] fails adequately to explain its chosen sentence, [or fails
to] include an explanation for any deviation from the Guidelines range.” United States v. Cavera,
550 F.3d 180, 190 (2d Cir. 2008) (internal quotation marks omitted).


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        A sentence is substantively unreasonable and will be set aside “only in exceptional cases
where the trial court’s decision cannot be located within the range of permissible decisions.”
United States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009) (internal quotation marks omitted).
Substantive reasonableness review “provide[s] a backstop for those few cases that, although
procedurally correct, would nonetheless damage the administration of justice because the
sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter
of law.” Id. at 123.

        Delance argues that his 121-month sentence, located at the bottom of his Guidelines
range, was procedurally unreasonable because the district court did not properly apply
Sentencing Guideline Section 5G1.3(b) and was substantively unreasonable because the severity
of the sentence was not supported by Delance’s minor role in the crimes committed. We disagree
and affirm Delance’s sentence.

       Addressing Delance’s claim of procedural unreasonableness first, his sentence was not
procedurally unreasonable because the district court applied Section 5G1.3(b) and carefully
explained its weighing of the 3553(a) factors. Under Section 5G1.3(b):

       If . . . a term of imprisonment resulted from another offense that is relevant
       conduct to the instant offense of conviction . . . the sentence for the instant offense
       shall be imposed as follows:

               (1) the court shall adjust the sentence for any period of imprisonment
                   already served on the undischarged term of imprisonment if the court
                   determines that such period of imprisonment will not be credited to the
                   federal sentence by the Bureau of Prisons; and

               (2) the sentence for the instant offense shall be imposed to run
                   concurrently to the remainder of the undischarged term of
                   imprisonment.

U.S.S.G. § 5G1.3(b).

        The district court adequately explained the effect of Section 5G1.3(b) on Delance’s
sentence. After specifying that the district court would have given Delance a sentence “well, well
above” the Guidelines range of 121-151 months if it were to include a consideration of Delance’s
prior offenses, the district court determined that it would impose a 121-month sentence. Delance
App’x at 338. The district court stated that

       in fashioning today’s sentence[,] I am pointedly adjusting the sentence downward
       to reflect the sentence I believe is appropriate solely to reflect the criminal
       conduct that you have not previously been sentenced for. The sentence I impose,
       therefore, will take into account and reflect an adjustment downwards for the time
       [Delance had] already served on this relevant conduct.



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Id.

        Finally, the district court decided that, pursuant to Section 5G1.3(b)(2), the 121-month
sentence would run concurrently to the 13 months remaining on Delance’s undischarged state
court sentence. Because it is apparent that the district court adjusted its sentence to account for
the period of imprisonment that Delance had already served on his related state conviction, and
the district court made Delance’s sentence concurrent to his undischarged term of imprisonment,
the district court did not err in its application of Section 5G1.3(b). Moreover, the district court
carefully weighed the Section 3553(a) factors and concluded that, “on the basis solely of the acts
for which [Delance] had not previously been held to account,” there was ample justification for a
“very long sentence” in excess of the Guidelines range of 121-151 months. Delance App’x at
334.

        Delance’s sentence was not substantively unreasonable because it was not “shockingly
high, shockingly low, or otherwise unsupportable as a matter of law.” Rigas, 583 F.3d at 123.
The district court had discretion to impose a significant sentence given Delance’s involvement in
a murder and other racketeering acts for which Delance had not yet been punished. The district
court’s imposition of a 121-month sentence for Delance’s unpunished crimes, given their
seriousness and violence, was not outside the range of permissible decisions.

      VI. Conclusion

        We have considered the remainder of Urena’s, Vasquez’s, and Delance’s arguments and
find them to be without merit. Accordingly, the judgments of the district court hereby are
AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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