United States v. Ramirez, 100614 FED2, 13-1955-cr
|Party Name:||United States of America, Appellee, v. Juan Ramirez, AKA Scarface, AKA Tony TKO, Defendant-Appellant.|
|Attorney:||FOR APPELLANT: Jesse Michael Siegel, Law Office of Jesse M. Siegel, New York, NY. FOR APPELLEE: Michael D. Lockard & Karl Metzner, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.|
|Judge Panel:||Present: ROSEMARY S. POOLER, PETER W. HALL, SUSAN L. CARNEY, Circuit Judges,|
|Case Date:||October 06, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
AMENDED 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, 40 Foley Square, in the City of New York, on the 6th day of October, two thousand fourteen.
Appeal from a judgment of the United States District Court for the Southern District of New York (Robert Carter, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Juan Ramirez appeals his 2002 conviction on numerous charges, including racketeering and racketeering conspiracy; kidnapping, murder, attempted murder, assault, and interstate travel in aid of racketeering; conspiracy to distribute narcotics; and robbery and conspiracy to commit robbery. In its indictment, the Government alleged that Ramirez was the leader of the "165th St. Organization" (the "Organization") that from 1992 to 1998 operated a car theft scheme, engaged in narcotics trafficking, and committed various acts of murder, attempted murder, and robbery in furtherance of those endeavors. During Ramirez's jury trial, which lasted nearly two months, the Government introduced the transcripts of plea allocutions given by five co-conspirators in which those co-conspirators admitted to their involvement in various criminal acts that formed the bases of some of the charges against Ramirez. The jury ultimately found Ramirez guilty of the above charges but acquitted him of several others. Ramirez now argues that the admission at trial of the five co-conspirator plea allocutions violated his right to confront the witnesses against him, as articulated in Crawford v. Washington, 541 U.S. 36 (2004).1 We assume the parties' familiarity with the underlying facts and the procedural history of the case, which we reference only as necessary to explain our decision.
Crawford holds that the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53– 54. It is constitutional error, therefore, to admit "as substantive evidence a plea allocution by a co-conspirator who does not testify at trial unless the co-conspirator is unavailable and there has been a prior opportunity for cross-examination." United States v. Riggi, 541 F.3d 94, 102 (2d Cir. 2008) (internal quotation marks omitted). Although the Government concedes that, in the wake of Crawford, it was error to admit the five plea allocutions at Ramirez's trial, Ramirez did not object to their admission, and so this Court's review is for plain error. See id.
Plain error is "(1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Hardwick, 523 F.3d 94, 98 (2d Cir. 2008) (internal quotation marks omitted). If all three conditions are met, this Court "may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affected the fairness, integrity, or public reputation of [the] judicial proceedings." Id. (internal quotation marks omitted). In this case, the admission of the plea allocutions easily satisfies the first two conditions—the Government concedes the error and that error is "clear" and "obvious" in light of Crawford and this Court's decisions holding that co-conspirator plea allocutions are testimonial hearsay. Id. (citing cases and observing that "[a]n error is plain if it is clear or obvious at the time of appellate consideration" (internal quotation marks omitted)). The success of Ramirez's appeal therefore turns on the third condition of the plain error test: whether the error affected his substantial rights. To meet this standard, he must show that the error was "prejudicial, " meaning that "there must be a reasonable probability that the error affected the outcome of the trial." United States v. Marcus, 560 U.S. 258, 262 (2010); see also Riggi, 541 F.3d at 102.2 Because we ultimately find that Ramirez does not make the required showing on this factor, we need not address the fourth condition and...
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