U.S. v. Reyes

Citation302 F.3d 48
Decision Date26 August 2002
Docket NumberDocket No. 01-1258.
PartiesUNITED STATES of America, Appellant, v. Christopher D. REYES, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Daniel S. Ruzumna, Assistant United States Attorney, New York, N.Y. (Mary Jo White, United States Attorney, Anirudh Bansal, Christine H. Chung, Assistant United States Attorneys, Southern District of New York, New York, NY, of counsel), for Appellant.

Michele Hauser, New York, NY, for Defendant-Appellee.

Before: CARDAMONE, POOLER, and B.D. PARKER, Jr., Circuit Judges.

CARDAMONE, Circuit Judge.

The government appeals from a district court's judgment of acquittal after a jury had found defendant Christopher Reyes guilty of joining a conspiracy to transport stolen automobile airbags in interstate commerce. Among the issues we deal with is the doctrine of conscious avoidance in the context of a conspiracy. Conscious avoidance occurs when a person deliberately closes his eyes to avoid having knowledge of what would otherwise be obvious to him. But such deliberate ignorance, as this case illustrates, does not establish that person's innocence.

BACKGROUND

Between September 1994 and May 1998, Maurizio Percan sold over a million dollars worth of stolen automobile airbags through his business, All-in-One Auto Parts (All-in-One), located in the Bronx, New York. In September 1999 Percan was convicted of the substantive crimes of transporting stolen goods in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2, money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1957, and 2, and was also convicted of a conspiracy to commit these offenses. We affirmed his conviction. See United States v. Kalust, 249 F.3d 106, 109-10 (2d Cir.), cert. denied sub nom. Percan v. United States, ___ U.S. ___, 122 S.Ct. 213, 151 L.Ed.2d 152 (2001). Eileen Kalust, who worked at All-in-One, and several individuals who supplied stolen airbags to All-in-One were convicted on related charges.

Defendant Christopher Reyes was a business associate and personal friend of Percan's, close enough to have attended Percan's wedding. Reyes was the manager of Alpine Motor Cars, a used car and salvage lot located next door to All-in-One. He was arrested in March 2000 and charged with a single count of conspiring to transport stolen property in interstate commerce. See 18 U.S.C. §§ 371, 2314. During his trial, at the close of the government's case-in-chief, defendant moved pursuant to Fed.R.Crim.P. 29(a) for a judgment of acquittal. Rule 29 authorizes a trial court to enter a judgment of acquittal if the evidence is insufficient to support a conviction. U.S. District Court Judge Robert P. Patterson, who presided at the trial, reserved ruling on Reyes' motion. See Fed.R.Crim.P. 29(b). While a district court may reserve decision on a motion for judgment of acquittal, its later ruling on the motion must be based only on the evidence before the court at the time of the reservation. Id.

At the conclusion of the five-day trial the jury returned a guilty verdict. At that time Judge Patterson granted Reyes' motion for a judgment of acquittal, a decision that prompted this appeal. The decision made by our respected district court colleague granting the motion for acquittal is one with which we disagree. We think the jury reasonably could have found Reyes guilty based on the evidence presented in the government's case-in-chief. Hence, we reverse.

A. Government's Case-in-Chief

The relevant evidence in the case is that presented by the prosecution prior to the trial court's reservation on defendant's Rule 29(b) motion. We set out that evidence. Eileen Kalust was the government's first witness. According to her, Reyes dropped in at Percan's All-in-One during the existence of the airbag conspiracy several mornings each week for breakfast and to chat before heading to work next door at Alpine Motor Cars, a business that opened one-half hour later. Kalust testified that from 1994 through 1996 the "vast majority" of All-in-One's business was in stolen airbags, and the company continued to sell stolen airbags into 1997. She further stated that on one occasion during the course of her four-year employment, Reyes brought a pair of airbags into her office at All-in-One and left them with her, after asking for Percan who was not there at the time. These airbags were in a plain, white plastic bag, not accompanied by a receipt. According to Kalust, people that Percan referred to as "thieves" delivered airbags in the same fashion, that is, in a plain wrapper, unaccompanied by a receipt, often with cut connector cables protruding. Kalust believed airbags delivered in this manner were stolen.

In addition, she explained that at Percan's direction she wrote 14 checks to Reyes, all of which were introduced by the government into evidence. These checks, drawn on All-in-One's bank account, were for various amounts and totaled over $17,000.

The prosecution's next witness was New York City Police Detective Thomas Burke who testified as an expert. According to him, the secondhand airbag market consists nearly entirely of stolen airbags. He stated that secondhand airbags that have not been stolen come from limited sources — like insurance companies that acquire vehicles that have been "totaled" in an accident — and that it is rare to find a totaled car with its airbags intact. Once deployed, Burke explained, an airbag is not reusable.

He estimated that in 1996 and 1997 secondhand airbags, whether stolen or not, sold for $700 to $800 a pair. In contrast, a pair of new airbags cost $2000. As a result, there was a strong secondhand market for stolen airbags. Because the lawful supply of secondhand airbags is limited, the detective said, demand for airbags was met largely by airbags stolen from autos on the street and sold by thieves to secondhand auto parts dealers and body shops.

The final witness for the prosecution was FBI Agent Blythe Helmer, who testified, among other matters, with respect to Reyes' post-arrest statements. She told the trial court and jury that "Mr. Reyes did not directly answer the questions that were presented to him" and hesitated before giving his answers. When Agent Helmer showed Reyes "photographs of thieves who provided stolen airbags to [All-in-One]," he admitted knowing "[s]ome of them" but refused to provide her with any information about them. She recalled Reyes had "stated that he did not want to give up any of his friends." The defense did not object to this testimony by Agent Helmer.

According to her, Reyes admitted he had referred customers to All-in-One, but insisted the only compensation he received for this service was an occasional free sandwich or return business referrals from Percan. However, after Agent Helmer confronted defendant with the checks from All-in-One, he admitted having acted as a middleman or broker for Percan and having been paid $50 for each airbag in those cases where he had assisted in the sale. Reyes further admitted to Agent Helmer that he had provided translation services to assist Percan in the sale of airbags.

The agent went on to recite that Reyes explained to her that he had received checks from All-in-One in exchange for his services as "an intermediary or a middleman or a broker" with respect to the sale of airbags. Although Helmer stated she could not remember the exact words used, it was her understanding that Reyes assisted "both with people who were trying to provide air bags to Maurizio Percan and people who were purchasing air bags for [sic] Maurizio Percan." Again, no objection was taken by defendant to this portion of the government's case-in-chief. The transcript also reveals the trial court reminded Agent Helmer several times during direct examination to answer only the question asked her.

Agent Helmer stated that when she asked defendant whether he knew about the theft of airbags and sales of stolen airbags, he responded with an analogy. Reyes said he behaved as someone with a friend who uses drugs: he turned the other way to avoid seeing the illegal activity. At a later point in her direct examination, the agent elaborated on Reyes' drug analogy.

Q: [D]id you ask Mr. Reyes any questions about his state of knowledge about whether the air bags were stolen?

. . .

A: We asked Mr. Reyes at several different junctures about the stolen nature of the merchandise, and at least on two occasions that I remember specifically, there could have been a third occasion, his response was an analogy to drug use and when you see a friend using drugs you see what's happening, but you turn the other way. That's not a quote. It was that, in substance.

And on redirect, she repeated the drug analogy and testified that Reyes made the analogy in response to having been asked if he knew the transactions he was brokering involved stolen airbags.

The prosecution's final proof consisted of two recordings of telephone calls to Reyes from a government informant pretending to be in need of secondhand airbags. These recordings were made after the period of the charged conspiracy, so they were admitted only to show Reyes's knowledge and intent. See Fed.R.Evid. 404(b) (providing that "other act" evidence may be admitted to show knowledge). In the first call, recorded on August 27, 1998, the informant asked defendant for a set of airbags for a 1997 Honda Accord. Reyes told the informant he would check around for the airbags and asked him to call back in an hour. Defendant estimated the set of airbags would cost between $700 and $900. He also stated, "I'm not sure, because I told you that I wasn't dealing too much with that stuff anymore." The same confidential informant called defendant again on November 2, 1998 and asked for airbags for a Honda Civic and a Honda Accord. Reyes told the informant that "things are dead around here." He explained that the mayor was a "hard hitter" and so "the people who...

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