     14-1822-cr
     United States v. Hernandez

                                   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
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 15th day of May, two thousand fifteen.
 4
 5   PRESENT:
 6              CHESTER J. STRAUB,
 7              BARRINGTON D. PARKER,
 8              SUSAN L. CARNEY,
 9                                 Circuit Judges.
10   __________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                                Appellee,
15
16                                v.                                             No. 14-1822-cr
17
18   JOEL A. HERNANDEZ,
19
20                                Defendant-Appellant.
21
22   __________________________________________
23
24   FOR DEFENDANT-APPELLANT:                             MARSHALL ARON MINTZ, Mintz &
25                                                        Oppenheim LLP, New York, NY.
26
27
28   FOR APPELLEE:                                        ELISHA J. KOBRE, Assistant United States
29                                                        Attorney (Justin Anderson, Assistant
30                                                        United States Attorney, on the brief), for
 1                                                       Preet Bharara, United States Attorney for
 2                                                       the Southern District of New York, New
 3                                                       York, NY.
 4
 5          Appeal from a judgment of the United States District Court for the Southern District
 6   of New York (Castel, J.).

 7          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
 8   ADJUDGED, AND DECREED that the May 27, 2014 judgment of the District Court is
 9   AFFIRMED.

10          Defendant-Appellant Joel Hernandez appeals from a judgment of the United States
11   District Court for the Southern District of New York (Castel, J.) convicting him, following a
12   jury trial, of conspiracy to distribute and possess with intent to distribute one kilogram or
13   more of heroin in violation of 21 U.S.C. §§ 841 and 846. On appeal, Hernandez contends
14   that the Court should vacate the judgment because the District Court at trial permitted the
15   government to introduce improper opinion testimony from law enforcement witnesses and
16   inadmissible hearsay statements. We assume the parties’ familiarity with the underlying facts
17   and the procedural history of the case, to which we refer only as necessary to explain our
18   decision.

19          In our review of the District Court’s evidentiary rulings, “[a]ny error, defect,
20   irregularity, or variance that does not affect substantial rights must be disregarded.” Fed. R.
21   Crim. P. 52(a); see also Fed. R. Evid. 103(a), (e). Thus, we will dismiss as harmless the
22   erroneous admission of any testimony that was “unimportant in relation to everything else
23   the jury considered on the issue[s] in question, as revealed in the record.” United States v.
24   Kaplan, 490 F.3d 110, 123 (2d Cir. 2007) (internal quotation marks omitted). Evidence
25   admitted at trial, and whose admission is unchallenged on appeal, included: testimony by
26   undercover agent Cesar Dupree that Hernandez joined Dupree and an associate, Jorge
27   Alvarez, on July 30, 2012, during the course of an arranged heroin sale, carrying thousands
28   of dollars in cash in his pockets; testimony by Dupree that Hernandez displayed the cash at
29   the agent’s request; testimony by Madeline Urena, the case agent in charge of the
30   investigation, that she observed Hernandez and Alvarez arrive together at the site of the
                                                     2
 1   arranged sale in a blue minivan; testimony of a cooperating witness, Edy Pena, that Pena
 2   sold Hernandez heroin for resale on three earlier occasions, and that the sales took place in
 3   the same blue minivan; and testimony by Pena that he was present on another occasion in
 4   which Hernandez attempted to return to Alvarez heroin that Hernandez had difficulty
 5   selling.

 6              Hernandez argues first that the District Court erred in admitting certain testimony by
 7   Dupree and Urena, contending that the testimony was improperly offered by individuals not
 8   qualified as experts. See United States v. Yannotti, 541 F.3d 112, 126 n.8 (2d Cir. 2008)
 9   (explaining that “an investigative agent who offers an opinion about the conduct or
10   statements of conspirators based on his general knowledge of similar conduct learned
11   through other investigations . . . must qualify as an expert pursuant to Rule 702” of the
12   Federal Rules of Evidence). Hernandez focuses on, inter alia, statements that it is the typical
13   practice of drug dealers to carry multiple cell phones and that the word “compadre” and
14   related terms connote friendship. The challenged testimony was presented at trial along with
15   evidence that Hernandez had two cell phones on his person at his arrest and that Alvarez
16   referred to Hernandez as a “compadre.” But the testimony was ultimately of only minor
17   importance for establishing Hernandez’s guilt, because Hernandez’s participation in the drug
18   trade and his relationship with Alvarez were well established—and more directly so—by
19   other evidence. Since the testimony was unimportant, even if the District Court did err in
20   admitting any of it as mere lay opinion testimony, the court’s error was harmless.

21              Hernandez’s related argument that the admission of the testimony was erroneous
22   because the testimony improperly bolstered Pena’s credibility is unavailing as well. Because
23   neither Urena nor Dupree presented a “description of a typical drug transaction” against
24   which the prosecutor compared a similar account by Pena, “this case simply does not
25   present the problem”—charged by Hernandez—“of the Government impermissibly using
26   expert testimony to bolster the credibility of its fact-witnesses by mirroring their version of
27   events.” United States v. Tapia-Ortiz, 23 F.3d 738, 742 (2d Cir. 1994).

28              Hernandez also argues that the District Court erred in permitting Pena to recount
29   statements made to Pena by Alvarez, contending that those statements were inadmissible
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 1   hearsay. Pena testified that Alvarez asked him whether Pena was selling heroin to
 2   Hernandez, and that Alvarez expressed concern that Hernandez, to whom Alvarez regularly
 3   sold heroin, had not contacted him recently. Alvarez’s statements were properly admitted
 4   under Rule 801(d)(2)(E) of the Federal Rules of Evidence, which provides that an out-of-
 5   court statement offered for the truth of the matter asserted is not hearsay if it is offered
 6   against an opposing party and “was made by the party’s coconspirator during and in
 7   furtherance of the conspiracy.” There was ample evidence to support findings that there
 8   existed a heroin conspiracy between Alvarez and Hernandez and that Alvarez’s statement to
 9   Pena was in furtherance of that conspiracy. See United States v. Diaz, 176 F.3d 52, 87 (2d Cir.
10   1999) (finding statements to be in furtherance of a conspiracy when they “served . . . to
11   facilitate and protect . . . drug dealing activities”); see also United States v. Beech-Nut Nutrition
12   Corp., 871 F.2d 1181, 1199 (2d Cir. 1989) (noting that “there is no requirement that the
13   person to whom the statement is made also be a member” of the conspiracy). To the extent
14   that Hernandez also challenges the admission of statements by Alvarez to Pena about a
15   potential cocaine transaction between Pena and Alvarez, any error in admitting those
16   statements was harmless: The statements did not relate to Hernandez and were unimportant
17   for establishing Hernandez’s guilt of the charged heroin offense. Indeed, the court
18   specifically instructed the jury that the testimony was not evidence of the crime charged.

19                                                    * * *

20           We have considered Hernandez’s remaining arguments and find them to be without
21   merit. We AFFIRM the judgment of the District Court.

22

23                                                            FOR THE COURT:
24                                                            Catherine O’Hagan Wolfe, Clerk of Court




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