United States v. Kemp

• Decision Date: 26 January 2023
• Docket Number: 21-1684-cr CON
• Parties: United States of America, Appellee, v. Joshua Kemp, Rene Ruiz, AKA Lil' Rene, AKA Nae Nae, Wilfredo Gonzalez, AKA Alfredo Gonzalez, AKA Freddy, Domingo Ramos, AKA Mingo, Amar Ahmed, AKA Omar, Zaie Escribano, AKA Zaieto, Carlos Osorio-Perez, Jaime Gonzalez, AKA Jimbo, Jordan Mcdonald, AKA Umi, Edward Nelson, AKA Boo, AKA Bugatti, Christopher Correa, AKA Chris, Mark Fernandez, AKA Mark, William Russell, AKA Billy, Dennis Pomales, Defendants, Jason Polanco, AKA Jin, Defendant-Appellant. [*]
• Court: U.S. Court of Appeals — Second Circuit

United States of America, Appellee,
v.
Joshua Kemp, Rene Ruiz, AKA Lil' Rene, AKA Nae Nae, Wilfredo Gonzalez, AKA Alfredo Gonzalez, AKA Freddy, Domingo Ramos, AKA Mingo, Amar Ahmed, AKA Omar, Zaie Escribano, AKA Zaieto, Carlos Osorio-Perez, Jaime Gonzalez, AKA Jimbo, Jordan Mcdonald, AKA Umi, Edward Nelson, AKA Boo, AKA Bugatti, Christopher Correa, AKA Chris, Mark Fernandez, AKA Mark, William Russell, AKA Billy, Dennis Pomales, Defendants, Jason Polanco, AKA Jin, Defendant-Appellant. ^[*]

No. 21-1684-cr CON

United States Court of Appeals, Second Circuit

January 26, 2023

UNPUBLISHED OPINION

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 TO 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 26^th day of January, two thousand twenty-three.

FOR APPELLEE: DANIELLE R. SASSOON, Assistant United States Attorney (Celia V. Cohen, Won S. Shin, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

FOR DEFENDANT-APPELLANT: ROBERT J. BOYLE, Attorney at Law, New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Engelmayer, J.).

1

PRESENT: ROBERT D. SACK, JOSEPH F. BIANCO, EUNICE C. LEE, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Jason Polanco appeals from an amended judgment of conviction, entered on July 7, 2021, in connection with an alleged drug distribution conspiracy operating on Decatur Avenue in the Bronx, New York, and acts of violence allegedly committed by Polanco and other members of this drug crew, including the murder of Shawn Ross in 2014 and a series of armed robberies of commercial businesses in Manhattan and the Bronx.

Following a jury trial, Polanco was found guilty of: (1) conspiracy to distribute one kilogram or more of heroin and a quantity of marijuana, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (Count One); (2) using a firearm to commit murder in relation to the narcotics conspiracy, in violation of 18 U.S.C. § 924(j) (Count Two); (3) murder while engaged in the narcotics conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A) (Count Three); (4) robbery conspiracy, in violation of 18 U.S.C. § 1951 (Count Four); (5) robbery, in violation of 18 U.S.C.

2

§ 1951 (Count Five); and (6) using, carrying and possessing firearms, which were brandished and discharged, during and in relation to crimes of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count Six). ^[1] Polanco was sentenced principally to 510 months' imprisonment.

On appeal, Polanco argues that: (1) the evidence was insufficient to find him guilty of Counts One, Two and Three; (2) the district court abused its discretion in admitting certain out-ofcourt statements as co-conspirator statements and statements against penal interest; (3) the district court abused its discretion in admitting evidence of other shootings that occurred prior to Ross's murder; (4) the district court abused its discretion in declining to sever the robbery charges (Counts Four through Six) from the narcotics conspiracy and murder charges (Counts One through Three); and (5) the sentence of 510 months' imprisonment was substantively unreasonable. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues on appeal, to which we refer only as necessary to explain our decision to affirm.

I. Sufficiency of the Evidence

Polanco argues that the evidence at trial was insufficient to find him guilty of Counts One, Two, and Three of the indictment because the government failed to prove either that he was a member of a narcotics conspiracy to distribute heroin, or that he murdered Ross in furtherance of that conspiracy. Thus, Polanco contends that the district court erred in denying his motion for acquittal on these counts under Federal Rule of Criminal Procedure 29(c).

3

We review a challenge to the sufficiency of the evidence de novo. See United States v. Laurent, 33 F.4th 63, 75 (2d Cir. 2022). However, a defendant who makes such a challenge "bears a heavy burden, as the standard of review is exceedingly deferential." United States v. Gahagen, 44 F.4th 99, 108 (2d Cir. 2022) (internal quotation marks and citation omitted). In reviewing whether a conviction is supported by sufficient evidence, "we are required to draw all permissible inferences in favor of the government and resolve all issues of credibility in favor of the jury's verdict." United States v. Willis, 14 F.4th 170, 181 (2d Cir. 2021). We must affirm the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Connolly, 24 F.4th 821, 832 (2d Cir. 2022) (internal quotation marks and citation omitted). "The same standards apply to the district court's consideration of an insufficiency argument in a motion under Fed. R. Crim. P. 29 for acquittal." United States v. Hamilton, 334 F.3d 170, 179-80 (2d Cir. 2003).

As set forth below, we find Polanco's challenge to the sufficiency of the evidence on Counts One, Two and Three to be without merit. We examine each of Polanco's challenges in turn.

A. Count One: Narcotics Conspiracy Charge

Polanco argues that the evidence was insufficient to find him guilty on Count One for participating in a narcotics conspiracy to distribute one kilogram or more of heroin. In particular, although Polanco does not dispute the sufficiency of the evidence regarding his participation in marijuana sales on Decatur Avenue, he contends that there was insufficient evidence to link that activity to the heroin business operated by Rene Ruiz and Wilfredo Gonzalez on the same block, such that Polanco could be held to be a member of the heroin conspiracy. We disagree.

4

A defendant is guilty of a conspiracy if he "knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it." United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008). To be guilty of participating in a narcotics conspiracy, "a defendant need not be actively engaged in the distribution of drugs." United States v. Santos, 541 F.3d 63, 68 (2d Cir. 2008) (internal quotation marks and citation omitted); see also Ocasio v. United States, 578 U.S. 282, 288 (2016) ("[A] specific intent to distribute drugs oneself is not required to secure a conviction for participating in a drug-trafficking conspiracy." (internal quotation marks and citation omitted)). Instead, a defendant may participate in a narcotics conspiracy by "performing ancillary functions such as . . . enforcing discipline [and] chastising rivals," Santos, 541 F.3d at 72 (alteration in original) (internal quotation marks and citation omitted), or using "violence to secure the organization's drug turf," United States v. Estrada, 320 F.3d 173, 183 (2d Cir. 2003) (internal quotation marks and citation omitted). The evidence necessary to link a defendant to the conspiracy "need not be overwhelming and may be circumstantial in nature." United States v. Gaskin, 364 F.3d 438, 460 (2d Cir. 2004).

Drawing all permissible inferences in the government's favor, we find that the evidence at trial established that Polanco knowingly participated in the heroin conspiracy charged in Count One, even in the absence of any evidence that he sold heroin. Specifically, the evidence at trial showed that, in 2014, Polanco sold marijuana on a block on Decatur Avenue in the Bronx (the "block") that was controlled by two heroin dealers: Gonzalez and Ruiz. Gonzalez and Ruiz controlled who could sell drugs on the block, including who could sell marijuana, and defended their territory from other drug dealers. Polanco sold marijuana primarily in front of Decatur Deli, alongside drug dealers who sold heroin for Gonzalez and Ruiz. The evidence also established

5

that Polanco and other dealers selling heroin on the block assisted one another in various ways, including by referring customers and alerting each other to the presence of law enforcement by yelling the code word "snag." For instance, one heroin dealer who operated on the block referred marijuana customers to Polanco, while another dealer who sold heroin for Gonzalez and used violence to protect the block helped Polanco sell marijuana. Additionally, as a marijuana seller on the block, Polanco received Gonzalez's protection: on one occasion, Gonzalez helped Polanco banish a rival marijuana dealer who had attempted to make sales out of Decatur Deli. As held by the district court, taken together, this collective evidence was sufficient to permit the jury to conclude that Polanco was embedded in an "integrated and singular conspiracy" run by Gonzalez and Ruiz, in which "the sales of the two types of narcotics [marijuana and heroin] were symbiotic." App'x at 101.

Moreover, a jury could rationally find that, as part of that symbiotic relationship, Polanco was an enforcer for the heroin conspiracy and advanced the objectives of that conspiracy by murdering Ross, a member of a rival drug crew (the "Gatta Crew"), following a series of violent disputes over drug territory between that crew and Gonzalez's and Ruiz's crew.^[2] See Santos, 541 F.3d at 69 (explaining that,...