U.S.A v. Rojas, Docket No. 09-3007-cr.

• Decision Date: 12 August 2010
• Docket Number: Docket No. 09-3007-cr.
• Citation: 617 F.3d 669
• Parties: UNITED STATES of America, Appellee,v.Nicholas ROJAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

617 F.3d 669

UNITED STATES of America, Appellee,v.Nicholas ROJAS, Defendant-Appellant.

Docket No. 09-3007-cr.

United States Court of Appeals, Second Circuit.

Argued: July 14, 2010.

Decided: Aug. 12, 2010.

COPYRIGHT MATERIAL OMITTED

S. Dave Vatti, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief), for Nora R. Dannehy, United States Attorney for the District of Connecticut, Hartford, CT, for Appellee.

Jonathan J. Einhorn, New Haven, CT, for Defendant-Appellant.

Before JACOBS, Chief Judge, WESLEY and CHIN, Circuit Judges.

WESLEY, Circuit Judge:

On May 16, 2008, a jury found defendant Nicholas Rojas guilty of conspiring to possess with the intent to distribute, and to distribute, five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. The jury also found Rojas guilty of using a telephone to facilitate the commission of a drug trafficking felony in violation of 21 U.S.C. § 843(b). At trial, the government presented evidence that Rojas functioned as a street-level crack dealer in a large-scale narcotics trafficking organization headed by Luis A. Colon, also known as Anthony Colon.

On appeal, Rojas contends that the evidence at trial was insufficient to establish that he joined the charged conspiracy. Specifically, Rojas argues that while he sold drugs he acquired from Colon, he did so only to finance his own drug habit. Rojas also asserts that it was improper for the district court to recall the jury, after it had been declared “discharged” but before it had dispersed, in order to correct a misreading of the written verdict form and to re-poll the jury. We hold that the evidence was sufficient to support the jury's verdict. We further hold that, based on the totality of the facts and circumstances presented by this case, it was not error for the district court to recall the jury. We therefore affirm.

I. BACKGROUND

At trial, the government presented evidence that, in October of 2005, the Federal Bureau of Investigation (“FBI”) commenced an investigation into a drug trafficking organization, which was operating in Waterbury, Connecticut. ¹ At the center of this criminal organization was Anthony Colon, who served as a cooperating witness for the government at trial. The evidence demonstrated that Rojas interacted with Colon on an almost daily basis. According to FBI agent William Aldenberg, who testified at trial, the government intercepted Colon's phone calls over a period of approximately ninety days. Agent Aldenberg estimated that the government introduced twenty-three audio recordings of conversations between Colon and Rojas. Agent Aldenberg further testified that Rojas used thirteen different phones to place calls to Colon, and that the use of multiple phones is common among street-level distributors in drug conspiracies.

In his capacity as a cooperating witness, Colon testified that he had a longstanding relationship with Rojas. Colon explained that he brought Rojas into his drug trafficking organization because he knew him; according to Colon, Rojas was buying drugs on a street corner where Colon's organization operated prior to the point at which Rojas joined the conspiracy. Colon further testified that, at the nascency of their conspiratorial relationship, he told Rojas that he would have to give him a “test” to determine his reliability. Trial Tr. 342:5, May 13, 2008. Once their relationship was established, Colon provided drugs to Rojas “on credit,” Trial Tr. 418:14-15, May 13, 2008, usually when he was assured that Rojas had a customer to whom he would resell the drugs. Colon attested that he “trust[ed]” Rojas. Trial Tr. 342:23, May 13, 2008. As evidence of this trust, he would permit Rojas to pick up crack cocaine “on credit” from his house for resale. Trial Tr. 349:20-25, 350:1, May 13, 2008.

At trial, the government elicited testimony from Colon that, on multiple occasions, he bailed Rojas out of jail because Rojas “was moving product” for him. Trial Tr. 418:19-25, 419:1-12, May 13, 2008. The government introduced the bond paperwork to corroborate Colon's testimony in this regard. As additional evidence of the conspiratorial relationship, a recorded conversation was played at trial in which Rojas referred to himself as Colon's “partner.” Trial Tr. 356:12, May 13, 2008. Colon explained that he understood Rojas to be communicating that he was his “boy.” Trial Tr. 356:14-16, May 13, 2008.

Rojas maintained at trial-and now argues before this Court-that he was merely a drug user who purchased drugs from Colon, but that he was not a member of the charged conspiracy. In light of this contention, the district court instructed the jury that “mere knowledge or acquiescence without participation in the unlawful plan is not sufficient” to form the basis of a conspiracy conviction. Trial Tr. 578:8-10, May 14, 2008. The district court explained to the jury that “the fact that the acts of a defendant, without knowledge, merely happen to further the purposes or the objectives of the conspiracy does not make that defendant a conspirator.” Trial Tr. 578:10-13, May 14, 2008.

The court also provided the jury with what is commonly referred to as a “buyer-seller” instruction. Specifically, the court stated:

[W]ithout more, the mere existence of a buyer/seller relationship is insufficient to establish membership in a conspiracy. In deciding whether parties to a sale of narcotics are merely a buyer and seller, or instead are co-conspirators, the jury may properly consider a number of factors, including the length of time that the buyer affiliated with the seller; whether there was a common goal among the parties to advance the conspiracy's interests; whether there was an agreement or understanding to redistribute drugs; the established method of payment; the extent to which the transactions were standardized; the quantities of drugs involved; and whether there was mutual trust between the buyer and the seller. None of these factors is dispositive, nor is this listing intended to be exhaustive.

Trial Tr. 578:19-25, 579:1-8, May 14, 2008. The court instructed that, in order for Rojas to be deemed a co-conspirator, the government was required to prove, beyond a reasonable doubt, that Rojas “participated with knowledge of at least some of the unlawful purposes or objectives of the conspiracy and with the intention of aiding in the accomplishment of those unlawful ends.” Trial Tr. 578:15-18, May 14, 2008.

On May 16, 2008, the jury returned its verdict, finding Rojas guilty of conspiring to possess with intent to distribute, and to distribute, controlled substances. On the written verdict form prepared by the court, the jury made a specific finding that “it was reasonably foreseeable to Nicholas Rojas that the conspiracy charged ... involved the possession with the intent to distribute or the distribution of five grams or more of a mixture and substance containing a detectable amount of cocaine base.” Def.App. at 127 (emphasis added) (verdict form as to Rojas). It made a finding that the drug quantity attributable to the defendant was five grams or more of cocaine base. Def.App. at 127 (emphasis added) (verdict form as to Rojas). The jury also returned a verdict concluding that Rojas was guilty of two counts of using a telephone to facilitate the commission of a drug trafficking felony in violation of 21 U.S.C. § 843(b). Def.App. at 128 (verdict form as to Rojas).

During the courtroom deputy's reading of the jury's written verdict form, the deputy made several errors, one of which forms a basis for this appeal. First, when reading the jury's verdict as to the conspiracy charge, the deputy omitted the word “base” and simply stated “five grams or more of a mixture and substance containing a detectable amount of cocaine.” Trial Tr. 691:12-14, May 14, 2008 (emphasis added). Similarly, with respect to the counts involving the use of a telephone to facilitate a drug crime, the deputy omitted the word “base” and simply referred to the use of a telephone to “facilitate the knowing, intentional, and unlawful possession with intent to distribute and distribution of cocaine.” Trial Tr. 691:25, 692:1-4, May 14, 2008 (emphasis added).

The error with respect to the telephone counts was brought to the court's attention before the jury was declared “discharged,” and was quickly corrected. Trial Tr. 697:17-25, 698:1-2, May 14, 2008. However, when the court asked if counsel for either party wanted the verdict re-read in its entirety, counsel declined and indicated that they only wished to have the verdict re-read with respect to the telephone counts. Trial Tr. 697:17-21, May 14, 2008. Consequently, the error as to the conspiracy count was not detected until the jury had been polled, pronounced “discharged,” and had returned to the deliberation room to await the thanks of the court for its service. It was at this time that counsel reviewed the transcript of the deputy's reading of the verdict form and realized that the word “base” had also been omitted in the reading of the conspiracy count. The lawyers alerted the district judge to this omission. Counsel for both sides and the court then discussed how to proceed. The court asked defense counsel if he would consent to having the jury returned to the courtroom and re-polled; defense counsel declined to consent to this course of action. Noting defense counsel's objection, the court nonetheless recalled the jury, which had not yet left the jury room. Once the jurors were reassembled in the courtroom, the court explained why they had been asked to return, instructed the deputy to re-read the verdict form, and then re-polled the jury. The jury assented to the corrected reading of the verdict form and was declared “discharge[d]” a second time.

On June 17, 2008, Rojas filed a motion in the district court for a judgment of acquittal, Fed.R.Crim.P. 29, or, in the alternative, for a new trial, Fed.R.Crim.P. 33. This...