United States v. Escalera

• Decision Date: 20 April 2020
• Docket Number: August Term, 2019,Docket No. 18-2970
• Citation: 957 F.3d 122
• Parties: UNITED STATES of America, Appellee, v. Jose ESCALERA AKA Tank, Charles Hecht, Defendants, Giovanni Cotto AKA Monte, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

957 F.3d 122

UNITED STATES of America, Appellee,

v. Jose ESCALERA AKA Tank, Charles Hecht, Defendants,Giovanni Cotto AKA Monte, Defendant-Appellant.

Docket No. 18-2970

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: November 15, 2019

Decided: April 20, 2020

Martin J. Vogelbaum, Federal Public Defender’s Office, Western District of New York, Buffalo, New York, for Defendant-Appellant.

Monica J. Richards, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee.

Before: Pierre N. Leval, Debra Ann Livingston, Joseph F. Bianco, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Giovanni Cotto ("Cotto") appeals from a September 24, 2018 judgment of conviction in the United States District Court for the Western District of New York (Richard J. Arcara, J. ) following a jury trial in which the jury found him guilty on a single count of retaliating against a witness (Anthony Maldonado) in violation of 18 U.S.C. § 1513(b)(1). The district court applied the specific offense characteristic in U.S.S.G. § 2J1.2(b)(2) to increase Cotto’s base offense level on the grounds that Cotto’s offense resulted in a substantial interference with the administration of justice, and sentenced Cotto principally to 115 months of imprisonment with four years of supervised release. Cotto raises several arguments on appeal. 1) Cotto argues that the Government’s evidence was insufficient to establish that he was aware that Maldonado’s testimony, which motivated Cotto’s retaliation, was in a "proceeding before a judge or court of the United States ," and argues that such knowledge is a required element of the crime of conviction under 18 U.S.C. § 1513(b)(1), see Br. of Appellant at 7 (quoting § 1513(b)(1) ) (emphasis added); 2) Cotto contends that the district court improperly limited his counsel’s cross-examination of a witness at trial and demands a new trial on that basis; 3) Cotto argues that the district court improperly applied the sentencing enhancement under U.S.S.G. § 2J1.2(b)(2) (for substantial interference with the administration of justice) and demands a remand for resentencing; 4) He argues finally that the conditions of his supervised release impermissibly delegated judicial authority to the United States Probation Office, and demands their revision. As to that contention, the Government consents to a limited remand so that the district court can amend the judgment of supervised release. For the reasons below, we affirm the conviction and the sentence, with the exception that, relying on the Government’s consent, we remand for revision of the substance abuse treatment condition of Cotto’s supervised release. We further instruct the district court to consider on remand whether our forthcoming order in United States v. Traficante , No. 18-1962 (2d Cir., submitted Oct. 25, 2019) requires modification of the risk notification provision of supervised release, and grant the parties leave to reinstate this appeal to permit review of the district court’s decision on remand as to the risk notification provision.

A. BACKGROUND

i. Cotto’s crime

In 2014, Cotto was an inmate at the Cattaraugus County Jail. The basis of his conviction in this case was that on May 23, 2014, at the Cattaraugus County Jail, he procured the assault of Anthony Maldonado ("Maldonado"), another Cattaraugus inmate, in retaliation for Maldonado’s having testified for the Government in a federal court trial that was taking place in the Buffalo federal courthouse. Prior to these events, the victim, Maldonado, had admitted to federal authorities that he had participated in the murder of a witness who was, at the time of the murder, cooperating in the federal prosecution of a narcotics conspiracy. Maldonado revealed to federal prosecutors that the witness’s murder had been orchestrated by several individuals, including Jose Martinez. Maldonado’s cooperation led to the indictment and eventual trial in the United States District Court for the Western District of New York before Judge William Skretny of Martinez, Angel Marcial, and several other individuals (the "Martinez trial"). Marcial and Martinez were charged in that case with retaliating against a witness and killing him. Maldonado was a witness for the prosecution at that trial. He provided direct testimony on May 20, 2014, and was cross-examined on May 21 and May 22. The court adjourned for the Memorial Day weekend on May 22, before the completion of Maldonado’s cross-examination, and the trial was set to continue on May 27.

On May 22, 2014, Marcial was in the custody of the U.S. Marshal at the federal courthouse in Buffalo while awaiting his appearance as a co-defendant in the Martinez trial. Also in the U.S. Marshal’s custody at the Buffalo federal courthouse was Jose Escalera, then one of Maldonado’s fellow inmates at the Cattaraugus County Jail. Escalera was at the federal courthouse as a defendant in a separate trial before Judge Arcara. Marcial and Escalera had previously been fellow inmates at another Erie County jail, where they shared access to the same facilities and likely became acquainted. On May 22, 2014, Marcial and Escalera were held in two of three cells on the ninth floor of the federal courthouse and were able to communicate with each other.

At the end of the day on May 22, after the adjournment of the Martinez trial in which Maldonado was testifying, Escalera, Maldonado, and Franky Ramos, also a Cattaraugus inmate, were transported together from the federal courthouse to the Cattaraugus County Jail. During that ride, Escalera told Ramos that Maldonado was "ratting on a big case" in the "federal courthouse." (Ramos testified to that conversation at Cotto’s trial.) App’x at 357–58. Other evidence at Cotto’s trial suggested that Cotto, Ramos, Marcial, and Escalera all were active or former members of the Latin Kings, a gang that operates within the prison system.

According to the testimony of another Cattaraugus inmate, Daniel Colon, upon Ramos’s return to the Cattaraugus County Jail on May 22, Ramos told Cotto that Maldonado had been in court that day. Cotto then called down the cell gallery to Maldonado and asked him "if he went to court today." App’x at 569. Cotto then said to Escalera: "That’s got to be him." App’x at 570.

The next day, Escalera asked Esteban Ramos-Cruz, another Cattaraugus inmate (who testified to that conversation at Cotto’s trial), to tell Cotto that Maldonado "was testifying against a Latin King." App’x at 498. Ramos-Cruz refused, but Escalera then apparently instructed another inmate to give Cotto the message.

No evidence adduced at trial indicates whether Ramos or any other person told Cotto that Maldonado had provided testimony in a federal trial. While several witnesses at Cotto’s trial testified that other inmates at Cattaraugus knew that Maldonado had been "going to federal court day after day," App’x at 566, 719– 20, there was no testimony that Cotto was told that Maldonado was going to federal court.

That same day — May 23, 2014 — Cotto informed another Cattaraugus inmate, Charles Hecht, that Maldonado "was a rat," and instructed Hecht to beat Maldonado in the recreation yard. App’x at 615–16. Later that day, while Cotto, Hecht, and Maldonado were in the recreation yard, Cotto repeated to Hecht that Maldonado was "a rat" that Hecht should "fuck him up." App’x at 622. Hecht then brutally assaulted Maldonado, with the result that he was removed from the recreation yard in a wheelchair. After the assault, Cotto "bragg[ed]" to Ramos that he, Cotto, had sent Hecht to beat Maldonado, and that Maldonado "deserved to get beat up." App’x at 366.

When the Martinez trial resumed on May 27, 2014, Maldonado was unable to continue his testimony because his jaw was wired shut as a result of Hecht’s beating. The trial continued, but Maldonado’s cross-examination was deferred until three weeks later, on June 16, 2014, after Maldonado’s jaw had healed. An Assistant United States Attorney who participated in the Martinez trial testified at Cotto’s trial that, upon Maldonado’s return to court, he "did not seem to remember the details about which he was crystal clear prior to the assault," gave "significantly shorter" answers to questions, and that Maldonado’s "capacity was substantially diminished." App’x at 175. The jury in the Martinez trial found Martinez guilty of a drug conspiracy charge, but found Martinez and the other defendants not guilty on the witness retaliation charge.

ii. Cotto’s indictment and trial

On July 25, 2014, a grand jury returned the present indictment charging Cotto, Escalera, and Hecht with one count of retaliating against a witness in violation of 18 U.S.C. § 1513(b)(1).¹ Cotto and Escalera pled not guilty, and their trial took place in July 2017. Hecht pled guilty and agreed to testify at trial for the Government in the trial of Cotto and Escalera.

At trial, Hecht testified to having assaulted Maldonado at Cotto’s direction. Hecht also testified during his direct examination that he and Cotto devised a cover story to explain the assault. They planned that Hecht would say he was having a bad day, and that Maldonado had said something to Hecht to provoke the assault. Hecht further explained that, after he learned the seriousness of the offense of witness retaliation, he changed his story and told the "true story" to get a better plea deal. App’x at 631. On cross-examination, Hecht testified that he had lied to the officers who first interviewed him about the assault, and that he had told his girlfriend his "cover story" — i.e. , that he assaulted Maldonado because he was "having a bad day." App’x at 673, 692. Cotto sought to discredit Hecht’s corrected account of the events by playing to the jury recordings of several of Hecht’s phone calls with his girlfriend and others in which he asserted his non-retaliatory cover story. When, after playing four of the...