     17-0363-cr
     U.S. v. Gracesqui

                                    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.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   5th day of April, two thousand eighteen.
 4
 5   Present:            JOHN M. WALKER, JR.,
 6                       ROSEMARY S. POOLER,
 7                                 Circuit Judges.
 8                       DENISE COTE,1
 9                                 District Judge.
10
11   _____________________________________________________
12
13   UNITED STATES OF AMERICA,
14
15                                    Appellee,
16
17                             v.                                               17-0363-CR
18
19   JOSE LUIS GRACESQUI, AKA Luis Perez, AKA Ramon
20   Ortiz, AKA Onel Colon, AKA Muffler, 2
21
22                                    Defendant-Appellant.
23
24   ____________________________________________________
25
26   Appearing for Appellant:         Anthony Cecutti, New York, N.Y.
27

     1
      Judge Denise Cote, United States District Court for the Southern District of New York, sitting
     by designation.
     2
         The Clerk is respectfully directed to amend the caption as above.
 1   Appearing for Appellee:       Brendan F. Quigley, Assistant United States Attorney (Rebekah
 2                                 Donaleski, Laurie Korenbaum, Daniel B. Tehrani, Assistant United
 3                                 States Attorneys, on the brief), for Geoffrey S. Berman, United
 4                                 States Attorney for the Southern District of New York, New York,
 5                                 N.Y.
 6
 7   Appeal from the United States District Court for the Southern District of New York (Castel, J.).
 8
 9        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
10   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
11
12            Defendant-Appellant Jose Luis Gracesqui appeals from the January 30, 2017 judgment
13   of the United States District Court for the Southern District of New York (Castel, J.), convicting
14   him of three charges related to the murder of Richard Diaz on July 19, 1999, and sentencing him
15   to life imprisonment. We assume the parties’ familiarity with the underlying facts, procedural
16   history, and specification of issues for review.
17
18            Gracesqui first argues that the district court erred by concluding that the government had
19   presented sufficient evidence to sustain a conviction on Count One of the indictment, which
20   charged that Gracesqui killed Diaz while engaged in a conspiracy to distribute one kilogram or
21   more of heroin, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. “We review
22   challenges to the sufficiency of evidence de novo, and will uphold a conviction if any rational
23   trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
24   United States v. Dupree, 870 F.3d 62, 78 (2d Cir. 2017) cert. denied sub nom. Gill v. United
25   States, No. 17-7584, 2018 WL 659984 (U.S. Feb. 26, 2018) (quoting United States v. Rosemond,
26   841 F.3d 95, 113 (2d Cir. 2016)). In assessing the sufficiency of the evidence, we “view the
27   evidence in the light most favorable to the government, crediting every inference that could have
28   been drawn in the government’s favor, and deferring to the jury’s assessment of witness
29   credibility and its assessment of the weight of the evidence.” Dupree, 870 F.3d at 78 (quoting
30   Rosemond, 841 F.3d at 113).
31
32           For a conspiracy charge to withstand a sufficiency of the evidence challenge, “[t]he
33   record must … permit a rational jury to find: (1) the existence of the conspiracy charged; (2) that
34   the defendant had knowledge of the conspiracy; and (3) that the defendant intentionally joined
35   the conspiracy.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) cert denied 555 U.S.
36   1122 (2009) (citations omitted). In Santos, we considered a similar sufficiency of the evidence
37   challenge regarding a 21 U.S.C. § 848(e)(1)(A) conviction, and concluded that the statute had
38   two elements: “one drug offense and one killing.” Santos, 541 F.3d at 69. As to the independent
39   drug offense, the relevant drug conspiracy statute does not require an overt act. Id. at 68.
40   Accordingly, “the conspiracy itself—and no act in furtherance of it, homicidal or otherwise—
41   serves as the predicate drug offense under section 848(e)(1)(A).” Id.
42
43           Gracesqui, like the defendant in Santos, argues that there is insufficient evidence to
44   sustain the jury finding that he knew of and joined a drug conspiracy. But in Santos we
45   concluded that a largely indistinguishable record was sufficient. Here as there, a witness testified
46   that an accomplice explained to the defendant that the plan was to retaliate for a drug-related



                                                      2
 1   theft. Id. at 65-66. In both cases, the testimony reflected that, in this initial planning
 2   conversation, an individual involved in ongoing drug trafficking told the defendant that a higher-
 3   level member of the drug trafficking organization had been robbed of drugs or drug proceeds. Id.
 4   at 66. The defendants in both cases agreed to assist in the retaliation, and ultimately attempted to
 5   carry out the plan by committing murder—though in both cases, the victims who were killed
 6   were not the intended targets of the retaliation. Id. We see no basis to distinguish Santos, given
 7   the striking similarity between the record evidence in both cases. Accordingly, drawing all
 8   inferences in the government’s favor, as we must, there was sufficient evidence for the jury to
 9   conclude that (i) Gracesqui knew that the retaliation would benefit a large drug trafficking
10   organization, and (ii) by agreeing to the plan and ultimately murdering an individual, Gracesqui
11   joined the conspiracy.
12
13           Further, Gracesqui’s reliance on United States v. Atehortva, 17 F.3d 546 (2d Cir. 1994),
14   is misplaced. There, we found that there was insufficient evidence to sustain a drug conspiracy
15   charge. The government did not present any evidence that the defendant was informed of the
16   drug-related purpose of the kidnapping, and the government’s theory of knowledge rested largely
17   on the assertion that the defendant simply “must have known” about the narcotics connection. Id.
18   at 550-51. Here, by contrast, one of Gracesqui’s accomplices testified directly to a conversation
19   where it was explained to Gracesqui that the purpose of the retaliation was to avenge a drug
20   theft. Accordingly, here, the government submitted evidence that Gracesqui was aware of the
21   drug conspiracy, and the jury was entitled to credit this testimony.
22
23           Gracesqui next argues that certain supplemental jury instructions erroneously allowed the
24   jury to convict him on an aiding and abetting theory related to the Diaz murder, even though the
25   government’s theory of the case was that Gracesqui was the shooter. Gracesqui does not
26   challenge the initial charge, only the supplemental instructions. “We review de novo a claim of
27   error in the district court’s jury instructions and will set aside a judgment secured by an
28   erroneous charge only if the appellant shows that the error was prejudicial in light of the charge
29   as a whole. Jury instructions are erroneous if they mislead the jury or do not adequately inform
30   the jury of the law. It is axiomatic, however, that a jury charge should be examined in its entirety,
31   not scrutinized strand-by-strand.” Uzoukwu v. City of New York, 805 F.3d 409, 414 (2d Cir.
32   2015) (quoting SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 119 (2d
33   Cir. 2006)).
34
35            “[T]he district court must exercise special care to see that inaccuracy or imbalance in
36   supplemental instructions do not poison an otherwise healthy trial. This is especially true since
37   the judge’s last word is apt to be the decisive word.” Tart v. McGann, 697 F.2d 75, 77 (2d Cir.
38   1982) (internal quotation marks and citations omitted). “We will vacate a conviction if the initial
39   jury instructions are faulty, the jury expresses confusion, and the court’s supplemental instruction
40   fails to alleviate the jury’s concerns or only adds to the already-existing confusion … Even if an
41   initial instruction is not itself erroneous or highly confusing, a supplemental instruction prompted
42   by a jury question may be so muddled as to warrant vacatur.” United States v. Kopstein, 759 F.3d
43   168, 172 (2d Cir. 2014). However, “[i]f a supplemental charge is legally correct, the district court
44   enjoys broad discretion in determining how, and under what circumstances, that charge will be
45   given.” United States v. Civelli, 883 F.2d 191, 195 (2d Cir. 1989).
46



                                                      3
 1            Count One of the indictment charged that Gracesqui, while acting with “others known
 2   and unknown, intentionally and knowingly killed, and counseled, commanded, induced,
 3   procured, and caused the intentional killing of Richard Diaz,” in violation of 21 U.S.C. §
 4   848(e)(1)(A) and 18 U.S.C. § 2. Supp. App’x at 26. The district court’s initial charge tracked this
 5   language, which is derived from 21 U.S.C. § 848(e)(1)(A). Gracesqui does not challenge this
 6   initial charge, but only certain supplemental charges, in which the district court provided the
 7   dictionary definition of the word “act” and directed the jury to read the initial charge again. Since
 8   these supplemental instructions were legally sound and added little to the original charge, they
 9   were not erroneous. See United States v. Martinez, 419 F. App'x 34, 36-37 (2d Cir. 2011)
10   (summary order) (affirming similar supplemental instructions on 21 U.S.C. § 848(e)(1)(A)
11   charge). Additionally, Gracesqui’s assertion that the jury instructions constituted a prejudicial
12   variance from the indictment is meritless: the indictment charged aiding and abetting liability in
13   the express language of the charge, and included a 18 U.S.C. § 2 charge.
14
15           Gracesqui also argues that the joinder of charges related to the Diaz murder with a charge
16   related to the murder of John Ochoa was erroneous under Fed. R. Crim. P. 8(a) and 14(a). Under
17   Rule 8(a), “[w]e review the District Court’s order to allow joinder of the two counts de novo.”
18   United States v. Lee, 549 F.3d 84, 94 (2d Cir. 2008). Joinder is proper if the offenses have a
19   “sufficient logical connection.” United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990). We
20   conduct a “twofold inquiry: [1] whether joinder of the counts was proper, and if not, [2] whether
21   misjoinder was prejudicial to the defendant.” United States v. Litwok, 678 F.3d 208, 216 (2d Cir.
22   2012) (quoting United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008)). Denial of a Rule 14
23   motion for severance, on the other hand, is reviewed for abuse of discretion. United States v.
24   Sampson, 385 F.3d 183, 190 (2d Cir. 2004). Denials of Rule 14 motions “will not be overturned
25   unless the defendant demonstrates that the failure to sever caused him ‘substantial prejudice’ in
26   the form of a ‘miscarriage of justice.’” Id. (quoting United States v. Blakney, 941 F.2d 114, 116
27   (2d Cir. 1991)).
28
29           Here, joinder was proper. While the Ochoa murder occurred at a different time and place
30   than the Diaz murder, and was not part of a continuous scheme, both murders were drug-related,
31   and both involved Gracesqui and Julio Guerrero. Thus the evidence about the relationship
32   between the two, and their shared history of criminal activity that led to the murders, would have
33   been relevant to both trials. Finally, the fact that the jury acquitted on the only charge related to
34   the Ochoa murder is a strong indication that Gracesqui was not unduly prejudiced by the joinder.
35
36            Last, Gracesqui contends that the district court improperly admitted evidence of prior bad
37   acts under Fed. R. Evid. 404(b), and that the cumulative impact of the evidence was so
38   prejudicial as to require a new trial. “A district court’s evidentiary rulings are subject to review
39   for abuse of discretion.” United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011). “This Circuit
40   has adopted an ‘inclusionary’ approach to other act evidence under Rule 404(b), which allows
41   such evidence to be admitted for any purpose other than to demonstrate criminal propensity.”
42   United States v. Scott, 677 F.3d 72, 79 (2d Cir. 2012) (quoting United States v. LaFlam, 369 F.3d
43   153, 156 (2d Cir 2004). “The district court can, for example, admit evidence of prior acts to
44   inform the jury of the background of the conspiracy charged, in order to help explain how the
45   illegal relationship between participants in the crime developed, or to explain the mutual trust
46   that existed between coconspirators.” Dupree, 870 F.3d at 76 (quoting United States v. Diaz, 176



                                                       4
 1   F.3d 52, 79 (2d Cir. 1999)) (internal quotation marks omitted); see also United States v. Reifler,
 2   446 F.3d 65, 91 (2d Cir. 2006). “We have, however, emphasized that this inclusionary rule is not
 3   a carte blanche to admit prejudicial extrinsic act evidence when … it is offered to prove
 4   propensity.” Scott, 677 F.3d at 79.
 5
 6           “When reviewing evidence admitted pursuant to Rule 404(b), we consider whether: (1)
 7   the prior crimes evidence was offered for a proper purpose; (2) the evidence was relevant to a
 8   disputed issue; (3) the probative value of the evidence was substantially outweighed by its
 9   potential for unfair prejudice pursuant to Rule 403; and (4) the court administered an appropriate
10   limiting instruction.” Curley, 639 F.3d at 56-57 (quoting United States v. McCallum, 584 F.3d
11   471, 475 (2d Cir. 2009)) (internal quotation marks omitted).
12
13           Gracesqui primarily challenges the admissions of evidence of prior criminal activity and
14   gun and weaponry possession. However, the evidence of prior criminal activity was not unfairly
15   prejudicial under our precedents. We have previously permitted similar background evidence to
16   show the evolution of the relationship between participants in the crime, and demonstrate how
17   discussions of extreme criminal activity—that might otherwise seem farfetched—were not
18   atypical for the defendant. Dupree, 870 F.3d at 76-77; Reifler, 446 F.3d at 91-93. Further, the
19   gun- and weaponry-related evidence was clearly relevant to a proper purpose: namely, to show
20   that Gracesqui had access to the specific type of gun used in the murders, and possessed a
21   bulletproof vest, which an eyewitness testified was worn by Diaz’s murderer. Finally, the district
22   court issued appropriate limiting instructions. Accordingly, the district court did not abuse its
23   discretion in admitting this evidence.
24
25          We have considered the remainder of Gracesqui’s arguments and find them to be without
26   merit. Accordingly, the order of the district court hereby is AFFIRMED.
27
28                                                        FOR THE COURT:
29                                                        Catherine O’Hagan Wolfe, Clerk
30




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