U.S. v. Garcia

• Citation: 413 F.3d 201
• Decision Date: 21 June 2005
• Docket Number: Docket No. 03-1429-CR(CON).,Docket No. 03-1407-CR(L).
• Parties: UNITED STATES of America, Appellee, v. Yuri GARCIA, aka "Bonitillo," and Francisco Valentin, aka "Chanchi," Defendants-Appellants, v. Alejandro Tejada, LNU1-02CR0477-002, Walmer Dearmas, Gabriel Herrera, and Jacobo Carmona, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

413 F.3d 201

UNITED STATES of America, Appellee, v. Yuri GARCIA, aka "Bonitillo," and Francisco Valentin, aka "Chanchi," Defendants-Appellants, v. Alejandro Tejada, LNU1-02CR0477-002, Walmer Dearmas, Gabriel Herrera, and Jacobo Carmona, Defendants.

Docket No. 03-1407-CR(L).

Docket No. 03-1429-CR(CON).

United States Court of Appeals, Second Circuit.

Argued: November 22, 2004.

Decided: June 21, 2005.

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Brendan White (Diarmuid White, on the brief), White & White, New York, New York, for Defendant-Appellant Yuri Garcia.

Glenn A. Garber, Glenn A. Garber, P.C., New York, New York, for Defendant-Appellant Francisco Valentin.

Katherine Polk Failla, Assistant United States Attorney (Christopher P. Conniff and Peter G. Neiman, 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: CALABRESI, B.D. PARKER, and RAGGI, Circuit Judges.

Judge CALABRESI concurs in the majority opinion and in a separate concurring opinion.

RAGGI, Circuit Judge.

Defendants-Appellants Yuri Garcia and Francisco Valentin appeal from judgments of conviction entered against them on June 23, 2003, and July 3, 2003, respectively, in the United States District Court for the Southern District of New York (Robert J. Ward, Judge) on charges of conspiracy to distribute or possess with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, and substantive distribution or possession with intent to distribute of approximately ten kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).¹ Garcia, whose conviction was based on a jury verdict, submits that the district court erred in allowing a case agent to offer opinion testimony ascribing a partnership role to Garcia in the charged cocaine distribution scheme. He further challenges his 292-month sentence of incarceration on the grounds that the district court erroneously enhanced his sentence pursuant to U.S.S.G. § 3B1.1(c) and improperly calculated his Sentencing Guidelines range by reference to facts neither proved beyond a reasonable doubt to the jury nor supported by a preponderance of the evidence. Valentin, whose conviction was based on a guilty plea, similarly raises a Sixth Amendment challenge to his sentence and also asserts that his former counsel's failure to raise a preponderance challenge to the district court's calculation of his Guidelines range constituted constitutionally ineffective representation.

We agree with Garcia that the agent's opinion testimony at trial as to Garcia's culpable role in the charged crimes was not properly received. Although the government argues that this testimony was admissible under Federal Rule of Evidence 701 as a lay opinion summary of anticipated evidence, we conclude that the necessary predicates of that rule were not satisfied in this case. Nevertheless, because this evidentiary error was harmless, we affirm so much of Garcia's judgment of conviction as reflects the jury verdict of guilty.

As for defendants' sentencing challenges, we conclude that the district court's Guidelines calculations are supported by a preponderance of the evidence. To the extent Garcia argues otherwise or Valentin claims that his attorney was constitutionally ineffective in failing to raise a preponderance challenge, we reject these arguments as without merit. Insofar as defendants invoke Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to support a Sixth Amendment challenge to the Guidelines that was never presented to the district court, we review only for plain error. See Fed.R.Crim.P. 52(b). That review is, of course, now informed by United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which holds that the Sixth Amendment right to trial by jury precludes a district court from relying on facts not admitted by the defendant or proved beyond a reasonable doubt to a jury to increase sentencing ranges pursuant to a mandatory Guidelines scheme, see id. at 764. Because defendants' sentences were imposed pursuant to what, prior to Booker, had been a uniform understanding in the federal courts that the Sentencing Guidelines were mandatory, we are obliged to find that there was error in this case that is now plain. See United States v. Williams, 399 F.3d 450, 460 (2d Cir.2005); see also Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (holding that "it is enough that an error be `plain' at the time of appellate consideration"). For reasons discussed in Williams, as well as in United States v. Crosby, 397 F.3d 103 (2d Cir.2005), we remand the case to the district court for further proceedings necessary to determine whether any such error affected substantial rights so as to require resentencing.²

I. Background

A. The Charges and Guilty Pleas

On May 2, 2002, a grand jury sitting in the Southern District of New York charged Yuri Garcia and Francisco Valentin, together with Alejandro Tejada, Walmer DeArmas, Gabriel Herrera, Jacobo Carmona, and an individual identified only as "El Papa," with conspiring between November 2001 and May 2002 to distribute or possess with intent to distribute five or more kilograms of cocaine. The same indictment charged that, on or about March 20, 2002, Garcia, Valentin, Tejada, and DeArmas did, in fact, distribute or possess with intent to distribute approximately ten kilograms of cocaine. In the weeks immediately preceding the scheduled November 6, 2002 trial, all defendants except Garcia pleaded guilty. Most significantly for purposes of this appeal, Tejada pleaded guilty on October 1, 2002, pursuant to a cooperation agreement with the government that resulted in his testifying as a prosecution witness against Garcia at trial. Soon thereafter, on October 31, 2002, Valentin pleaded guilty, admitting that he "got together with some friends" and "made some phone calls" as part of a conspiracy to transport ten kilograms of cocaine to Manhattan on March 20, 2002, during which time he exercised "some control over what happened to that cocaine." Plea Tr., Oct. 31, 2002, at 16-17.

B. Garcia's Trial

To prove Garcia's guilt at trial, the government relied on (1) the testimony of co-defendant Tejada, (2) telephone conversations among the conspirators recorded pursuant to court orders, (3) the surveillance observations of law enforcement officers who participated in the investigation of the charged conspiracy, and (4) physical items seized from the conspirators following their arrests. Because our resolution of this appeal requires harmless error analysis, we discuss this evidence in some detail.

1. The Evidence of Garcia's Guilt

a. Tejada's Testimony

Alejandro Tejada testified that he became involved in cocaine trafficking with Francisco Valentin and Yuri Garcia in 2000 at the behest of his long-time friend Valentin. Essentially, Tejada acted as a courier, who, on approximately fifteen to twenty occasions between the summer of 2001 and March 2002, picked up and delivered multi-kilogram quantities of cocaine. Tejada could not always recollect whether it was Valentin or Garcia who gave him the necessary instructions as to each particular transport because the two men were generally both present and participating during these encounters. Nevertheless, Tejada unequivocally testified that he received directions from each man many times. Tejada stated that when he delivered cocaine, it was Garcia who always inspected the drugs to confirm their quality. Further, Tejada stated that Garcia was in charge of the operation's finances.

Tejada testified that, on March 18, 2002, he picked up a quantity of cocaine and delivered it to Valentin and Garcia. When the three men unpackaged the drugs, Garcia pronounced them to be "garbage," Trial Tr. at 241, prompting Valentin to call and complain to his direct supplier, Walmer DeArmas. Two days later, on March 20, 2002, as Tejada attempted to return the unsatisfactory drugs to DeArmas, he was arrested by law enforcement authorities who seized the ten kilograms of cocaine then in his possession.

b. The Intercepted Telephone Calls and Surveillance

In a series of recorded telephone conversations played for the jury, Valentin and Garcia discussed their drug operation with each other as well as with fellow conspirators. We focus here on calls relating to the charged March 20, 2002 transaction.

On the morning of March 18, 2002, Valentin and DeArmas discussed an imminent drug transaction and squabbled over price. Later that same day, DeArmas proposed consummating the deal at the site of a previous meeting, whereupon Valentin stated that he would "talk to Yuri, because it was Yuri who was driving the last time." Gov't Ex. 106T at 5 (emphasis added). In another call that evening, Valentin told DeArmas that he was putting "Bonitillo" on the telephone to discuss the meeting site. Gov't Ex. 107T at 16. The monitoring interpreter, who had an opportunity to listen to a voice exemplar given by Garcia, identified Garcia as the person next heard on the recording agreeing to meet DeArmas at "the place where we went that time." Id.³

Case agent Paul Klemick of the Drug Enforcement Administration ("DEA") testified that, at the appointed time, he and other law enforcement officials surveilled the meeting site, which was in the vicinity of the Clearview Expressway and Union Turnpike in Queens, New York. There, Klemick spotted a parked Toyota Camry registered to DeArmas's home address. He further observed two men in a blue Jeep registered to Sophia Toribio, Garcia's common-law wife, at the same address as that on a New York State driver's license in the name of "Yuri Garcia." For a brief time, agents followed the Jeep, but soon after the vehicle began to engage in "evasive action," they abandoned the endeavor. Trial Tr. at...