United States v. Rojo, 032910 FED3, 09-2294

Docket Nº:09-2294
Opinion Judge:GREENBERG, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. ERIC ROJO, Appellant
Judge Panel:BEFORE: MCKEE, BARRY, and GREENBERG, Circuit Judges
Case Date:March 29, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

UNITED STATES OF AMERICA

v.

ERIC ROJO, Appellant

No. 09-2294

United States Court of Appeals, Third Circuit

March 29, 2010

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) March 9, 2010

On Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 2-07-00827-001) Honorable Peter G. Sheridan, District Judge

BEFORE: MCKEE, BARRY, and GREENBERG, Circuit Judges

OPINION

GREENBERG, Circuit Judge.

This matter comes on before this Court on an appeal from a judgment of conviction and sentence entered on April 29, 2009, following defendant-appellant Eric Rojo's conviction at a jury trial and subsequent sentencing on both counts of a two-count indictment charging him with conspiracy to distribute and possess with intent to distribute 100 grams or more of a controlled substance (heroin) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 21 U.S.C. § 846 (Count One) and distribution and possession with intent to distribute 100 grams or more of a controlled substance (heroin) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count Two). The District Court sentenced Rojo to concurrent custodial terms of 78 months on each of the two counts to be followed by concurrent four-year terms of supervised release. Rojo appeals, contending that "the admission of [Fed. R. Evid.] 404(b) evidence concerning Rojo's alleged drug purchases and use constitutes reversible error" and "it was error for the District Court to charge the jury on willful blindness." Appellant's br. at 2. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.

The case grew from the relationship between Rojo and a co-conspirator, Alberto Valencia-Mosquera. Though only Rojo is an appellant in this case, the government originally also charged Valencia-Mosquera but he pleaded guilty pursuant to an agreement with the government and testified as a government witness at Rojo's trial. Accordingly, to a large extent the facts that we describe come from his testimony.

The evidence showed that Rojo and Valencia-Mosquera, who were employed at the same appliance store in New York City, had a social relationship during the course of which Valencia-Mosquera, who was a drug dealer, supplied Rojo cocaine for his use. In June or July 2006 an undercover police detective with the Jersey City, New Jersey, police department solicited Valencia-Mosquera to sell him a kilogram of heroin. Inasmuch as Valencia-Mosquera did not have a driver's license and feared facing difficulties if the police stopped him while he was driving to a meeting with the purchaser, he asked Rojo to drive him to the meeting. According to Valencia-Mosquera, he told Rojo the purpose of the meeting, and, as an inducement to Rojo to drive him told Rojo that he would pay him $1,000 if the transaction was completed. Rojo accepted the offer and drove Valencia-Mosquera to the meeting with the detective which was held at Liberty State Park. Valencia-Mosquera reached an agreement at the meeting with the detective for the sale to him of one kilogram of heroin for $54,000 at a later time.

Valencia-Mosquera subsequently advised Rojo that the sale would be completed two days later and asked Rojo to take time off from work to drive him to the meeting. As Valencia-Mosquera requested, Rojo drove him to the place of the contemplated transaction near the entrance to the Holland Tunnel in New Jersey. But before they went to the tunnel they went to a store where Valencia-Mosquera obtained a child's car seat in which to hide the heroin. Then they went to the tunnel where Valencia-Mosquera met the detective who, after looking at the heroin, signaled...

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