15-3280
United States v. Ventura

                           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 15th day of December, two thousand sixteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RALPH K. WINTER,
                     Circuit Judge,
         SIDNEY H. STEIN
                     District Judge.1
________________________________________________

UNITED STATES OF AMERICA,

                      Appellee,

                v.                                                        No. 15-3280

JORGE LAFONTAINE, JOSE LAFONTAINE,
KEVIN VENTURA

                      Defendants,

JOSÉ ISMAEL VENTURA

                  Defendant-Appellant.
________________________________________________

For Appellee:                     MICAH W.J. SMITH, Assistant United States Attorney (Margaret
                                  Garnett, Assistant United States Attorney, on the brief), for
1
 Judge Sidney H. Stein, Senior Judge of the United States District Court for the Southern
District of New York, sitting by designation.

                                               1
                                   Preet Bharara, U.S. Attorney for the Southern District of New
                                   York, New York, NY.

For Defendant-Appellant:           PETER GOLDBERGER (Pamela A. Wilk, on the brief), Ardmore,
                                   PA.


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

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

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

       Defendant José Ismael Ventura appeals from a judgment of the United States District

Court for the Southern District of New York (Koeltl, J.) convicting him after a jury trial of one

count of conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958, one count of

murder for hire in violation of 18 U.S.C. § 1958, and one count of intentionally killing another

in connection with the distribution of 1,000 kilos or more of marijuana in violation of 21 U.S.C.

§ 848(e)(1)(A). On appeal, he argues first that the district court improperly admitted at trial

prejudicial evidence of an uncharged murder; and second that the district court erred by

removing a juror during deliberations. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

I.     Evidence of an Uncharged Murder

       Ventura operated a marijuana distribution business in northern Manhattan in the 1980s

and 1990s. In 2015, he was convicted after a jury trial for his role in the 1996 murders of Eugene

Garrido and Carlos Penzo. At Ventura’s trial on those charges, the government introduced

evidence of an uncharged crime allegedly committed by Ventura’s son and others associated

with Ventura’s marijuana enterprise. Those individuals shot and killed Noel Montanez in the

course of an arson targeting a 99-cent store selling marijuana in Ventura’s drug territory.



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          Ventura objected in limine to any mention of the Montanez arson-murder at trial. The

district court ruled that such evidence was relevant and not unfairly prejudicial and thus refused

to exclude it. Ventura now argues that the government “went far beyond its promised limits” at

trial when introducing evidence on this topic. Def. Br. 27. Because Ventura did not object at trial

to the government’s presentation of evidence as inconsistent with its pretrial representations, we

review his argument for plain error. See United States v. Birbal, 62 F.3d 456, 465 (2d Cir. 1995)

(noting that Rule 403 objections challenging “specific inflammatory statements” ordinarily

“must be made at trial” to be preserved); see also United States v. McDermott, 245 F.3d 133,

140–41 nn.3–4 (2d Cir. 2001) (in limine objections only preserved if “not contextually bound”).

“Plain error review requires a defendant to demonstrate that (1) there was error, (2) the error was

plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously affected

the fairness, integrity or public reputation of judicial proceedings.” United States v. Pattee, 820

F.3d 496, 505 (2d Cir. 2016) (quoting United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)).

Harmless error does not meet this standard. See United States v. Olano, 507 U.S. 725, 734

(1993).

          Even if, arguendo, the government exceeded the bounds of its pretrial representations and

presented excessive and somewhat prejudicial evidence of the Montanez arson-murder, such

error was harmless. “The strength of the prosecution’s case is probably the single most critical

factor in determining whether error was harmless,” United States v. Castano, 999 F.2d 615, 618

(2d Cir. 1993) (per curiam), and the government presented a very strong case against Ventura.

Two witnesses with firsthand knowledge of the Garrido murder, including one of the men

Ventura and his son hired to kill Garrido, testified against Ventura. Admittedly, these

cooperating witnesses had agreements with the government and there are thus questions about



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their credibility. See United States v. Murray, 103 F.3d 310, 320 (3d Cir. 1997) (single

corroborating eyewitness did not render error harmless because that witness had serious

credibility issues). However, the government also elicited testimony from Ventura’s sister Clara,

who testified that Ventura called her a week before Garrido, her son, was murdered. She further

testified that during this call, Ventura told her that if Garrido did not cede his role in the drug

business back to Ventura, Ventura “was going to have [Garrido] killed,” Trial Tr. 647:3.

Additionally, the government elicited testimony from Nuris Castellanos, a friend of Ventura’s

girlfriend, who testified that she heard Ventura’s girlfriend on the phone with Ventura after

Garrido was murdered telling Ventura that the “job” was done, which Castellanos took to mean

that Garrido was dead. Trial Tr. 238:1-14. Because the testimony of cooperating witnesses was

corroborated by the compelling testimony of these two witnesses, who had no agreements with

the government, we conclude that “[t]he evidence of [Ventura’s] . . . guilt was overwhelming,”

United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004), and thus that Ventura has not met

his burden of showing that the admission of evidence of the uncharged murder was plain error.

II.    Juror Removal

       Ventura next challenges the removal of Juror No. 2 after deliberations had commenced.

On the first full day of deliberations, the district court received a note from the jury expressing

some concerns about Juror No. 2. After reading the note and consulting with the parties, the

district court drafted a note in response urging the jurors to listen to one another and to follow his

instructions. Overnight, the government made inquiries into Juror No. 2’s background. During

this investigation, the government uncovered a variety of minor arrests and summonses, some

recent and some older, including several that had been adjourned in contemplation of dismissal

or sealed. In voir dire, the district court had asked if any juror had “ever been involved in an



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offense involving the drug laws,” App. 140, but Juror No. 2 did not disclose his prior arrest for

possession of marijuana. The government also discovered that Juror No. 2 had been the victim of

an assault more than a decade prior, but he did not disclose this on voir dire when asked whether

he had ever been the victim of a crime. After the government informed the district court of these

items, the district court summoned Juror No. 2 to discuss his lack of candor on voir dire. After a

lengthy exchange and over defense counsel’s objection, the district court dismissed Juror No. 2

because that juror “deliberately gave false answers to questions” during voir dire. App. 491. On

the next day of trial, defense counsel requested dismissal of the charges against Ventura because

the government had only conducted research on “the one juror whom the jury’s notes indicated

might not have been satisfied with the government’s proof.” App. 516–519. The district court

denied the request.

       Ventura argues that the district court abused its discretion by removing Juror No. 2 based

on the results of an investigation that the government conducted due to that juror’s views of the

sufficiency of the government’s evidence. See United States v. Thomas, 116 F.3d 606, 621–22

(2d Cir. 1997) (quoting United States v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987)). The

government argues its investigation was not motivated by its perception of the juror’s views of

the evidence, but instead on certain of the juror’s statements and conduct that caused it to believe

that juror had “some undisclosed connection to this case,” App. 521, an “extrinsic bias” not

subject to the rule articulated in Thomas, United States v. Spruill, 808 F.3d 585, 587, 594 (2d Cir.

2015). The district court rejected Ventura’s argument that the government had an improper

motive for conducting its investigation of Juror No. 2. Because the district court did not find that

the government had specifically targeted Juror No. 2 for an investigation because of his

perceived views on the evidence or had otherwise acted in bad faith, the district court did not



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abuse its discretion by removing Juror No. 2 for his untruthfulness in voir dire unearthed by that

investigation. See United States v. Parse, 789 F.3d 83, 111 (2d Cir. 2015).

       We have considered Ventura’s remaining arguments and find them to be without merit.

For the reasons given, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O=Hagan Wolfe, Clerk




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