     19-1379
     United States v. Pedro Gonzalez Cueto

                                   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   8th day of May, two thousand twenty.
 4
 5   Present:    JOHN M. WALKER, JR.,
 6               ROSEMARY S. POOLER,
 7               GERARD E. LYNCH,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                     Appellee,
14
15                            v.                                                  19-1379
16
17   PEDRO GONZALEZ CUETO,
18
19                           Defendant-Appellant. 1
20   _____________________________________________________
21
22   Appearing for Appellant:          Devin McLaughlin, Langrock, Sperry & Wool, LLP (William A.
23                                     Vasilious II, on the brief), Middlebury, VT.
24
25   Appearing for Appellee:           David J. Lizmi, Assistant United States Attorney (Amy Busa,
26                                     Assistant United States Attorney, on the brief), for Richard P.
27                                     Donoghue, United States Attorney for the Eastern District of New
28                                     York, Brooklyn, N.Y.
29   .
30

     1
         The Clerk of Court is directed to amend the caption as above.
 1          Appeal from the United States District Court for the Eastern District of New York
 2   (Glasser, J.).
 3
 4        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 6
 7           Pedro Gonzalez Cueto appeals from the May 7, 2019 judgment of the United States
 8   District Court for the Eastern District of New York (Glasser, J.) sentencing him to five years’
 9   imprisonment following his conviction of one count of conspiracy to import cocaine, in violation
10   of 21 U.S.C. §§ 963, 960(b)(2)(B)(ii); one count of importation of cocaine in violation of 21
11   U.S.C. §§ 952(a), 960(a)(1), 960(b)(2)(B)(ii); one count of conspiracy to possess with intent to
12   distribute cocaine in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(ii)(II); and one count of
13   possession with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1),
14   841(b)(1)(B)(ii)(II). Gonzalez Cueto was sentenced to five years’ imprisonment and four years’
15   supervised release. We assume the parties’ familiarity with the underlying facts, procedural
16   history, and specification of issues for review.
17
18           On appeal, Gonzalez Cueto argues that the district court made three erroneous
19   evidentiary rulings. We review evidentiary rulings “for abuse of discretion, which we will
20   identify only if the ruling was arbitrary and irrational.” United States v. Coppola, 671 F.3d 220,
21   244 (2d Cir. 2012) (internal quotation marks and citation omitted). This review “is highly
22   deferential in recognition of the district court’s superior position to assess relevancy and to weigh
23   the probative value of evidence against its potential for unfair prejudice.” Id. (internal quotation
24   marks and citation omitted).
25
26          Gonzalez Cueto argues that the district court abused its discretion in admitting co-
27   conspirator hearsay statements introduced during the testimony of Joel Yarleque. As explained in
28   United States v. Gupta:
29
30                  Under Rule 801(d), an out-of-court statement offered for the truth
31                  of its contents is not hearsay if the statement is offered against an
32                  opposing party and it was made by the party's coconspirator during
33                  and in furtherance of the conspiracy. Thus, in order to admit a
34                  statement under this Rule, the court must find (a) that there was a
35                  conspiracy, (b) that its members included the declarant and the party
36                  against whom the statement is offered, and (c) that the statement was
37                  made during the course of and in furtherance of the conspiracy. In
38                  determining the existence and membership of the alleged
39                  conspiracy, the court must consider the circumstances surrounding
40                  the statement, as well as the contents of the alleged coconspirator’s
41                  statement itself.
42
43   747 F.3d 111, 123 (2d Cir. 2014) (internal quotation marks, brackets, and citations omitted).
44   Yarleque’s testimony was more than sufficient to establish the prerequisites for the admission of
45   the hearsay statements of a co-conspirator pursuant to Fed. R. Evid. 801(d). Gonzalez Cueto
46   argues that the testimony should not have been admitted because the judge’s finding that the
 1   prerequisites were met had been made before trial based on a proffer of expected testimony by
 2   “CW-1,” and at that time the district court was under the impression that CW-1 was another co-
 3   conspirator, Yarleque’s uncle Walter. We review this argument only for plain error because
 4   Gonzalez Cueto did not renew his objection at trial when CW-1 turned out to be Yarleque, rather
 5   than Walter. See United States v. Pierce, 785 F.3d 832, 840 (2d Cir. 2015) (“[B]ecause [the
 6   defendant] failed to raise these objections at trial we review the admission of this evidence for
 7   plain error.”). We identify no error, and certainly no plain error, in the admission of the co-
 8   conspirator statements. The testimony supported the findings and, if credible, was sufficient
 9   regardless of whether Walter or Yarleque provided it. Gonzalez Cueto never argued to the
10   district court that its pretrial ruling should be revisited to address the credibility of the testimony,
11   and the district court never indicated before trial that its ruling hinged on the credibility of Walter
12   (who had not testified in person) nor indicated during trial that it had any reservation about the
13   continued validity of its ruling after hearing live testimony from Joel.
14
15           Gonzalez Cueto next argues that the district court erred by excluding testimony from
16   former defense counsel about incidents suggesting that he was technologically inept, to support
17   his argument that he did not intentionally interfere with the recording application during the
18   controlled delivery. However, there was uncontested testimony that the recording application
19   during the controlled delivery did not require Gonzalez Cueto to operate any technology at all;
20   instead, the application was set to record so long as he left his phone in his pocket, as he was
21   clearly instructed to do. Accordingly, testimony that Gonzalez Cueto struggled with different
22   technology on other occasions was of limited relevance, and the district court did not abuse its
23   discretion by excluding it.
24
25           Finally, Gonzalez Cueto challenges the admission of evidence that he made previous trips
26   to Peru to bring cocaine into the United States, arguing that it was not probative of his
27   knowledge of the contents of his suitcase on the occasion charged in the indictment. We
28   disagree. Moreover, we fail to see any prejudicial effect, as this evidence was introduced through
29   Joel Yarleque, whose testimony the jury was free to credit or discredit. To the extent the jury
30   believed his testimony that Gonzalez Cueto was a knowing participant in the conspiracy with
31   Joel and Raul with respect to the most recent trip to Peru, then any testimony about his previous
32   trips with the same co-conspirators did not further prejudice him. Accordingly, the district court
33   did not abuse its discretion in admitting this evidence.
34
35           Gonzalez Cueto also challenges the district court’s refusal to provide him with “safety-
36   valve” relief during sentencing. We review the sentencing court’s interpretation of the safety
37   valve provisions de novo. United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997). The safety
38   valve provisions set forth in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 direct a district court to
39   sentence without regard to an applicable statutory mandatory minimum if the defendant
40   establishes five factors, the one relevant here being the fifth: “not later than the time of the
41   sentencing hearing, the defendant has truthfully provided to the Government all information and
42   evidence the defendant has concerning the offense.” Ortiz, 136 F.3d at 883 (internal quotation
43   marks and citation omitted); see also 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The burden is on
44   the defendant to prove entitlement to safety-valve relief by a preponderance of the evidence. See
45   United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006). That is because “[t]he defendant has
 1   full knowledge of the scope of his wrongdoing, and it is the defendant who seeks an adjustment
 2   in the otherwise applicable sentencing range.” Id.
 3
 4            The district court did not commit error in rejecting the safety valve application. The
 5   district court found that Gonzalez Cueto failed to provide the government with all information
 6   and evidence:
 7
 8                  You knew or had a good reason to know that what you were carrying
 9                  in your suitcase the many times that you traveled from Peru to New
10                  York was something that you shouldn’t be bringing to the United
11                  States. You knew or didn’t want to know. You had a pretty good
12                  idea that what you were being asked to bring to the United States
13                  and being given money to do it was wrong because there was
14                  something in those suitcases that shouldn’t be being brought into the
15                  United States. In this case it was over two kilograms of cocaine. It’s
16                  a lot of cocaine . . . His testimony when he was called here to testify
17                  was not truthful . . . He pretty much denied everything that was fairly
18                  obvious and testified to by witnesses . . .
19
20   App’x at 33-35. Gonzalez Cueto argues that the district court’s reliance on his testimony at trial
21   was in error because he subsequently proffered with the Government. However, Gonzalez Cueto
22   claimed at sentencing that he testified “honestly and truthfully” at trial and that his statements at
23   the proffer session were consistent with that testimony. [App’x 26] Thus, the district court did
24   not err in concluding that Gonzalez Cueto was not entitled to safety-valve relief because it found
25   that he was untruthful about his involvement in the offense at trial, and he maintained that
26   version of the events during the proffer.
27
28          We have considered the remainder of Gonzalez Cueto’s arguments and find them to be
29   without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
30
31                                                         FOR THE COURT:
32                                                         Catherine O’Hagan Wolfe, Clerk
33
34
