United States v. Zayac

• Decision Date: 27 August 2014
• Docket Number: Docket No. 11–4900.
• Citation: 765 F.3d 112
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES of America, Appellee, v. Andrew ZAYAC, Defendant–Appellant.

765 F.3d 112

UNITED STATES of America, Appellee,

v.Andrew ZAYAC, Defendant–Appellant.^*

Docket No. 11–4900.

United States Court of Appeals, Second Circuit.

Argued: March 19, 2014.

Final Submission: April 29, 2014.

Decided: Aug. 27, 2014.

Andrew J. Frisch (Jeremy B. Sporn, of counsel), New York, NY, for the Defendant–Appellant.

Michael J. Gustafson (Sandra S. Glover, of counsel), Assistant United States Attorneys, for Deirdre M. Daly, Acting United States Attorney for the District of Connecticut, New Haven, CT, for the Appellee.

Before: STRAUB, SACK, and LOHIER, Circuit Judges.

SACK, Circuit Judge.

Andrew Zayac was convicted after a jury trial on several counts arising from his involvement in the kidnapping, robbery, and murder of a drug dealer. After rejecting his motion for a new trial and acquittal, the district court (Janet C. Hall, Judge ) sentenced Zayac principally to two concurrent terms of life imprisonment. On this appeal, Zayac challenges the sufficiency of the evidence presented against him as to several of the counts of conviction, two of the district court's evidentiary rulings, and the court's refusal to instruct the jury regarding the affirmative defense of duress to the kidnapping and robbery charges. Because we conclude that Zayac has failed to identify any error in his conviction, we affirm the judgment of the district court.

BACKGROUND

The evidence presented at trial established that on the evening of February 8, 2009, Zayac drove from New Rochelle, New York, to the Bronx to pick up Edward Rivera, a man from whom Zayac had previously purchased substantial quantities of marijuana for resale. Also in the car was Zayac's sometime co-worker, Heriberto Gonzalez. Zayac would later tell police that he had agreed with Rivera to purchase more than $100,000 worth of marijuana on this occasion.

Rivera left his building to meet the two men, carrying two duffel bags containing some sixty pounds of marijuana. After placing the bags in the trunk of Zayac's blue Jeep, Rivera got into the back seat, and the three men drove away.

At some point thereafter, Rivera was shot twice at close range as he sat in the Jeep. Zayac and Gonzalez drove to the Padanaram Reservoir in Danbury, Connecticut. It was there that Rivera's 232–pound body was eventually discovered, having apparently been pushed and dragged to the bottom of a hill, some distance from the road.

After disposing of the body, Zayac and Gonzalez drove to the home of Zayac's girlfriend in New Rochelle, where they transferred the drugs to a vehicle that she leased. The two men then drove the Jeep to Gonzalez's residence in the Bronx, where they picked up Gonzalez's car. Surveillance video obtained from a nearby oil company showed the Jeep being set on fire soon afterward, in the early hours of the morning following the murder. Both Zayac and Gonzalez suffered severe burns that night. Zayac later instructed his girlfriend to report the Jeep, which was registered in her name, stolen and to identify him as “Kevin Hill” in her communications with police. She did so.

On March 1, 2009, agents of the United States Drug Enforcement Administration and other federal law enforcement personnel executed a search warrant at the home of Zayac's parents in Scarsdale, New York. In the course of the search, agents discovered three large bags of marijuana concealed behind wall panels, as well as medical supplies for treating burns and documents indicating that Zayac had consulted a plastic surgeon. Zayac and his girlfriend were present at the search. He agreed to speak with investigators, and was taken to a local police station for that purpose.

Zayac met with investigators three times in the days immediately following the search. He met with them again in December 2010. His account of what transpired on the night of Rivera's murder changed each time, but he eventually settled on a narrative that put the blame for Rivera's killing and the destruction of the evidence squarely on Gonzalez.

Although Zayac did not testify at trial, a government witness recounted the version of events he gave investigators. Because that account is relevant to part of our analysis, we briefly recite the pertinent details. According to Zayac, sometime after Rivera got into the Jeep, Gonzalez produced a small semiautomatic handgun from his backpack, along with some zip ties. Gonzalez then ordered Rivera at gunpoint to put the zip ties on himself. Moments later, as Zayac drove the vehicle northward, Gonzalez shot Rivera in the chest. Gonzalez then told Zayac to be happy it was not him who was shot. Once near the Padanaram Reservoir in Danbury, Zayac turned down a secluded road and stopped on the shoulder. Gonzalez insisted that Zayac help him pull Rivera's body from the car. Zayac told investigators that he then returned to the driver's seat of the Jeep while Gonzalez disappeared down the roadside hill with the body for several minutes. When Gonzalez reappeared, the two men drove back to New York, where they proceeded to stow the marijuana at the home of Zayac's girlfriend before burning the Jeep.

The Proceedings in the District Court

Zayac was tried before a jury and convicted of kidnapping, see18 U.S.C. § 1201(a)(1); felony murder, see id. §§ 2, 924(c), 924(j)(1); robbery, see id. §§ 2, 1951(a); possession of marijuana with intent to distribute, see id. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(D); conspiracy to use or possess a firearm in furtherance of a violent felony or drug crime, see18 U.S.C. § 924( o); three counts of destroying or concealing evidence, see id. §§ 2,1519; and one count of conspiracy to destroy or conceal evidence, see id. § 371. Gonzalez was tried separately.

Zayac's defense focused on his attempt to pin responsibility for the crimes on Gonzalez. To that end, Zayac sought to enter into evidence an empty holster and magazine recovered from Gonzalez's home during a consensual search. The defense argued that these items suggested that Gonzalez may have possessed a firearm, and that this tended to corroborate Zayac's claim that Gonzalez had killed Rivera. The district court refused to admit the proffered exhibits on the grounds that they would invite the jury to draw speculative inferences.

For its part, the government introduced the inconsistent statements Zayac had made to investigators. The defense sought to mitigate the effect of these inconsistencies by proffering the testimony of an attorney who had advised Zayac at the time the statements were made. The court heard the proffered testimony out of the presence of the jury. Zayac's former attorney recounted that Zayac had apologized to him for lying to investigators and explained that he had done so because he feared Gonzalez. The court concluded that the testimony was irrelevant, and declined to admit the evidence.

Toward the close of trial, Zayac requested that the court instruct the jury regarding the affirmative defense of duress with respect to the kidnapping, robbery, and destruction of evidence counts. The court declined to do so, concluding that Zayac's defense failed as a matter of law because no reasonable juror could find that he lacked a reasonable opportunity to escape during the course of the criminal conduct.

After trial, Zayac moved for acquittal and a new trial, which the court denied. On November 22, 2011, the court sentenced Zayac to concurrent terms of life in prison on the kidnapping and murder counts, as well as lesser terms of years on seven other counts. This appeal followed.

DISCUSSION

The propriety of the district court's refusal to provide requested jury instructions is a question of law, which we review de novo. United States v. Nouri, 711 F.3d 129, 143 (2d Cir.), cert. denied, ––– U.S. ––––, 134 S.Ct. 309, 187 L.Ed.2d 219 (2013). We also review challenges to the sufficiency of the evidence underlying a criminal conviction de novo. E.g., United States v. Mi Sun Cho, 713 F.3d 716, 720 (2d Cir.2013) (per curiam). The district court's decision to exclude evidence is subject to review for abuse of discretion. United States v. Kozeny, 667 F.3d 122, 137 (2d Cir.2011), cert. denied, ––– U.S. ––––, 133 S.Ct. 1794, 185 L.Ed.2d 810 (2013).

I. Sufficiency of the Evidence

We begin with Zayac's contentions regarding the sufficiency of the evidence underlying his convictions on the kidnapping, robbery, firearms and murder counts. A defendant “challenging the sufficiency of the evidence ... faces an uphill battle, and bears a very heavy burden.” Mi Sun Cho, 713 F.3d at 720 (internal quotation marks and ellipsis omitted). Although our review is de novo, “the evidence must be viewed in the light most favorable to the government, with all reasonable inferences drawn in its favor. The question is not whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt, but rather, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks, brackets, and citations omitted; emphasis in original); accord United States v. Howard, 214 F.3d 361, 363 (2d Cir.) (“[We] resolve all inferences from the evidence and issues of credibility in favor of the verdict.”), cert. denied,531 U.S. 909, 121 S.Ct. 258, 148 L.Ed.2d 187 (2000). Moreover, “the jury's verdict may be based on circumstantial evidence, and the Government is not requiredto preclude every reasonable hypothesis which is consistent with innocence.” United States v. Ogando, 547 F.3d 102, 107 (2d Cir.2008) (internal quotation marks and citation omitted); accord United States v. Glenn, 312 F.3d 58, 64 (2d Cir.2002) (“[T]he prosecution may prove its case entirely by circumstantial evidence so long as guilt is established beyond a reasonable doubt.”).

Zayac claims that his “presence in the Jeep and his association with Gonzalez, even coupled with his (just acquired) knowledge of Gonzalez's murderous and felonious intent, is insufficient to show knowing...