U.S. v. Paulino
| Decision Date | 29 March 2006 |
| Docket Number | No. 04-2553-CR.,04-2553-CR. |
| Citation | 445 F.3d 211 |
| Parties | UNITED STATES of America Appellee, v. Christian PAULINO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Colleen P. Cassidy, Federal Defender Division, The Legal Aid Society, New York, New York, for Defendant-Appellant.
Samidh Guha, Assistant United States Attorney (William A. Burck and Karl Metzner, Assistant United States Attorneys, on the brief), for David N. Kelley, United States Attorney for the Southern District of New York, New York, New York, for Appellee.
Before: OAKES, RAGGI, and WESLEY, Circuit Judges.
Defendant Christian Paulino appeals from a judgment of conviction entered on May 10, 2004, following a jury trial in the United States District Court for the Southern District of New York (Denise Cote, Judge) at which he was found guilty on the sole charge of possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C). Sentenced to a 96-month term of incarceration, which he is presently serving, as well as six years' supervised release and a $100 special assessment, Paulino challenges his conviction on the following grounds: (1) the district court erred (a) in admitting evidence of his father's post-arrest statements to law enforcement officials but in excluding other statements subsequently made by his father to Christian Paulino's defense attorney, and (b) in admitting evidence of Paulino's prior New York State conviction for selling crack cocaine; (2) the prosecution failed timely to disclose material, exculpatory evidence; and (3) the court erred in excusing a juror after the start of deliberations. Because we conclude that these charged errors are without merit, we hereby affirm the judgment of conviction.
Christian Paulino's challenged conviction is based on a seizure of cocaine made from his bedroom closet on May 7, 2003, at which time law enforcement officers were executing an arrest warrant for his father.
In the early morning hours of May 7, 2003, a team of law enforcement officers arrived at Apartment 3W at 303 188th Street in the Bronx, New York, to execute a federal arrest warrant for the defendant's father, Adolfo Paulino. The elder Paulino was then under indictment in the District of Connecticut for his participation in a 2001 conspiracy to traffic in 120 kilograms of cocaine. Upon being admitted to the apartment by Adolfo Paulino's wife Daisy, certain officers placed Adolfo Paulino under arrest, advised him of his constitutional rights, and secured his oral and written consent to search the premises. Meanwhile, other officers conducted a security sweep of the apartment, which revealed the presence of two other persons, the defendant Christian Paulino and his sister Ada. In the bedroom where they found Christian Paulino, the officers observed in plain view on top of a dresser various items associated with drug trafficking, including a black digital scale with white residue on it, a roll of plastic sandwich bags, and a plastic package bearing a red apple symbol and containing clear plastic mini Ziploc bags.
Pursuant to Adolfo Paulino's consent, the arresting officers searched a locked hall closet from which they seized approximately 367 grams of cocaine contained in plastic bags concealed in shoes and a Domino's sugar sack. The statements made by Adolfo Paulino soon after this seizure are at issue on this appeal. Specifically, Adolfo Paulino told the arresting officers that he owned the drugs at issue and that "no one else was involved in the drugs." Trial Tr. at 113. When agents asked if there were any other drugs in the house, Adolfo Paulino stated "that he had no other drugs in the apartment, that that was it." Id. at 113-14.
After advice of rights, Christian Paulino similarly stated that whatever was found in the hall closet belonged to his father and that he did not know of any other drugs in the apartment.
Proceeding to search the rest of the apartment, the officers seized from Adolfo and Daisy Paulino's bedroom a black digital scale, cell phones, currency, and documents. Securing consent from Ada and Christian Paulino to search their bedrooms, the officers seized approximately $2,000 hidden inside a pair of pink socks in Ada's room. From the bedroom that Christian Paulino identified as his alone, they seized the black scale with white residue seen on top of the dresser during the original security sweep, as well as another digital scale found inside the same dresser. Officers further seized the sandwich and Ziploc bags also previously seen on top of Christian's dresser, along with a piece of packaging material, and black rubber bands. Most relevant to this appeal, from underneath clothing and other household items in the bedroom's unlocked closet, officers seized a plastic shopping bag in which they found a Ziploc bag containing approximately 190 grams of cocaine. Subsequent forensics analysis would match the single fingerprint recovered from this shopping bag to Christian Paulino. Similarly, a fingerprint recovered from one of the sandwich bags found on the dresser would be matched to Christian Paulino. As a result of this second cocaine seizure, the officers placed Christian Paulino under arrest.
Christian Paulino submits that his Sixth Amendment right to confrontation was violated by the receipt into evidence of the statements made by his father to law enforcement officers shortly after the seizure of cocaine from the hall closet of the family residence. See U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As noted earlier, in these statements, Adolfo Paulino took full responsibility for the cocaine found in the hall closet but denied knowing of any other cocaine in the residence. Christian Paulino argues that this Sixth Amendment violation was compounded by the district court's refusal to admit — even for purposes of impeachment — other statements subsequently made by Adolfo Paulino to Christian's defense counsel in which the father stated that the drugs for which his son had been arrested, i.e., the drugs seized from Christian's bedroom closet, belonged to Adolfo and not Christian Paulino. See Von Dornum Letter to Judge Cote, Sept. 23, 2003, at 1; Fed.R.Evid. 804(b)(3), 806. Neither argument is convincing.
Preliminarily, we observe that, to the extent Christian Paulino pursues a Sixth Amendment challenge to the district court's evidentiary rulings, his argument suffers from a fundamental flaw: it assumes that Adolfo Paulino's statements to arresting officers were offered for their truth. They were not. The district court specifically charged the jury that it did "not receiv[e] that conversation for the truth," but only to allow the jury to "understand the course of events that unfolded so that you can make a judgment as to whether or not the agent has accurately described that conversation to you." Trial Tr. at 114-15; see also United States v. Paulino, 299 F.Supp.2d 332, 335 (S.D.N.Y. 2004) ().1 Although the record in this case indicates that the government, at times, argued to the court that the statements could be received for their truth pursuant to Federal Rule of Evidence 803(3), relating to out-of-court statements evidencing the declarant's state of mind, the trial judge did not accept that argument and, more important, ably controlled the use of the evidence, both as it was elicited from witnesses and argued in summation, to ensure that it was not used by the government for its truth.2
It has long been the rule that "[s]o long as ... statements are not presented for the truth of the matter asserted, but only to establish a context ..., the defendant's Sixth Amendment rights are not transgressed." United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990). Nothing in Crawford v. Washington is to the contrary. The Court there stated that "[t]he [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford v. Washington, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)); see United States v. Stewart, 433 F.3d 273, 291 (2d Cir.2006) (); United States v. Logan, 419 F.3d 172, 178-79 (2d Cir.2005) (). Equally clearly established is the principle that a statement not offered to prove the truth of the matter asserted may not be impeached under Rule 806. See United States v. Regan, 103 F.3d 1072, 1083 (2d Cir.1997) (); see also 5 Weinstein's Federal Evidence § 806.03[3] (Joseph M. McLaughlin ed., 2d ed. 2005) ( that Rule 806 does not ...
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