849 F.3d 530 (2nd Cir. 2017), 15-94, United States v. Natal

Docket Nº:15-94, 15-1012, 15-1020
Citation:849 F.3d 530
Opinion Judge:Per Curiam:
Party Name:UNITED STATES OF AMERICA, Appellee, v. HECTOR NATAL A/K/A BOOM BOOM, HECTOR MORALES, Defendants-Appellants
Attorney:MICHAEL J. GUSTAFSON (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney, District of Connecticut, New Haven, CT. JESSE M. SIEGEL, Law Office of Jesse M. Siegel, New York, NY, for Hector Natal. HARRY SANDICK (George LoBiondo and Patrici...
Judge Panel:Before: KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge.[*]
Case Date:February 23, 2017
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 530

849 F.3d 530 (2nd Cir. 2017)

UNITED STATES OF AMERICA, Appellee,

v.

HECTOR NATAL A/K/A BOOM BOOM, HECTOR MORALES, Defendants-Appellants

Nos. 15-94, 15-1012, 15-1020

United States Court of Appeals, Second Circuit

February 23, 2017

Argued November 22, 2016

Defendants Hector Natal and Hector Morales appeal from their judgments of conviction and their sentences, imposed by the United States District Court for the District of Connecticut (Arterton, J.). Following a joint jury trial, Natal was convicted of crimes including arson resulting in death, and Morales was convicted of crimes including accessory after the fact to arson, and destruction and concealment of evidence. The district court sentenced, in principal part, Natal to life imprisonment and Morales to 174 months' imprisonment, and the defendants appealed. This opinion addresses the following issues. First, we hold that testimony concerning how cell phone towers operate must be presented by an expert witness, but that the admission in the instant case of lay opinion testimony on this subject was harmless. Second, we hold that Morales's conviction for destruction and concealment of evidence must be vacated in light of the intervening Supreme Court case Yates v. United States, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015), and that Morales is entitled to de novo resentencing. Third, we direct the district court, at Morales's resentencing, to group Morales's three counts of conviction for accessory after the fact pursuant to U.S.S.G. § 3D1.2 . Therefore, we REMAND Morales's case to the district court with instruction to vacate Morales's count of conviction for destruction and concealment of evidence and to conduct de novo resentencing of Morales. In all other respects, we AFFIRM the judgment of the district court.

MICHAEL J. GUSTAFSON (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney, District of Connecticut, New Haven, CT.

JESSE M. SIEGEL, Law Office of Jesse M. Siegel, New York, NY, for Hector Natal.

HARRY SANDICK (George LoBiondo and Patricia S. Kim, on the brief), Patterson Belknap Webb & Tyler LLP, New York, NY, for Hector Morales.

Before: KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge.[*]

OPINION

PER CURIAM:

In this appeal of judgments of conviction and sentence involving crimes that include arson resulting in death, accessory after the fact to arson, and destruction and concealment of evidence, we write to address three issues:

(1) Whether testimony on how cell phone towers operate must be provided by an expert witness rather than a lay witness;

(2) Whether defendant Morales's conviction for destruction and concealment of evidence for re-painting his van must be vacated in light of the Supreme Court's holding in an intervening decision, Yates v. United States, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015), that the statutory provision under which Morales was convicted covers " only objects one can use to record or preserve information" ; and

(3) Whether, in calculating Morales's Sentencing Guidelines range, Morales's convictions for accessory after the fact must be " grouped" pursuant to U.S.S.G. § 3D1.2.

The essential factual background of this case is as follows:

On the early morning of March 9, 2011, three members of the Roberson family -- Jaquetta1 Roberson, Quayshawn Roberson, and Wanda Roberson -- died in an intentionally-caused fire at 48-50 Wolcott Street in New Haven, Connecticut. Hector Natal, a neighbor of the Robersons, was charged with arson resulting in death, and his father, Hector Morales, was charged with being an accessory after the fact to arson for conduct that allegedly included driving Natal away from the scene of the fire after Natal started the blaze. Both Natal and Morales were charged with conspiring to tamper with, and tampering with, witnesses during law enforcement's investigation of the arson, including by seeking to cause witnesses to testify falsely to the grand jury. Additionally, Morales was charged with destruction and concealment of evidence for repainting the van that he had allegedly used to drive Natal away from the fire. Natal was also charged with attempted arson for trying to start a fire at the same New Haven building in approximately October 2010.2 Finally, both Natal and Morales were charged with participation in a drug conspiracy.3

Defendants Natal and Morales were tried jointly in the United States District Court for the District of Connecticut (Arterton, J. ), and on April 18, 2013, a jury found the defendants guilty on all counts. On January 8, 2015, the district court sentenced Morales to 174 months' imprisonment and 36 months of supervised release. On February 25, 2015, the district court sentenced Natal to life imprisonment on the arson counts, 240 months on each of the other charges that went to trial, and 40 years on the conviction resulting from Natal's guilty plea to the cocaine possession charge, all to run concurrently. Following the district court's entry of judgment, both Natal and Morales timely appealed.

On appeal, the defendants raise numerous claims, including allegations that Natal's Confrontation Clause rights were violated at trial, that there was a prejudicial variance between the indictment and the proof at trial, that the district court erroneously admitted lay opinion testimony concerning the operation of cell phone towers, that Morales's conviction for destruction and concealment of evidence must be vacated in light of an intervening Supreme Court decision, that Natal's sentence was imposed in contravention of the Eighth Amendment, and that the district court's calculation of Morales's U.S. Sentencing Guidelines range was procedurally erroneous. In a case with many issues, the district court was thorough and meticulous.

We affirm the district court except as to the following claims. First, we hold that testimony on how cell phone towers operate constitutes expert testimony and may not be introduced through a lay witness. However, the admission in the instant case of lay opinion testimony on the operation of cell phone towers was harmless. Second, we hold that Morales's conviction for destruction and concealment of evidence must be vacated in light of the Supreme Court's decision in Yates v. United States, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015), handed down shortly after Morales filed the instant appeal. We remand Morales's case to the district court to vacate Morales's conviction for destruction and concealment of evidence, and, pursuant to United States v. Powers, 842 F.3d 177 (2d Cir. 2016), to conduct de novo resentencing of Morales. Third, as part of the district court's calculation of Morales's Guidelines range at the resentencing, Morales's three counts of conviction for accessory after the fact should be grouped pursuant to U.S.S.G. § 3D1.2. We reject the defendants' other claims. Consequently, we uphold all counts of conviction except Morales's conviction for destruction and concealment of evidence, and we remand Morales's case to the district court to vacate Morales's conviction for destruction and...

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