United States v. Kirk Tang Yuk

Decision Date15 March 2018
Docket Number15-230 (CON),August Term, 2016,Docket Nos. 15-131 (L),15-141 (CON),15-141,15-230
Citation885 F.3d 57
Parties UNITED STATES of America, Appellee, v. KIRK TANG YUK, AKA Sealed Defendant 3, Gary Thomas, AKA Sealed Defendant 2, and Felix Parrilla, Aka Sealed Defendant 1, AKA Lito, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Christopher P. Conniff, Ropes & Gray LLP, New York, New York, for Kirk Tang Yuk.

Stephen N. Preziosi, Law Office of Stephen N. Preziosi P.C., New York, New York, for Felix Parrilla.

Kye Walker, The Walker Legal Group, Christiansted, St. Croix, U.S. Virgin Islands, for Gary Thomas.

Edward A. Imperatore, Assistant United States Attorney (Emil J. Bove III, Adam S. Hickey, Assistant United States Attorneys, Of Counsel, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for the United States of America.

Before: Chin and Carney, Circuit Judges, and Forrest, District Judge.*

Susan L. Carney, Circuit Judge:

Three defendants found by a jury to have engaged in a criminal conspiracy to distribute and possess with intent to distribute cocaine challenge their convictions, contending that venue did not properly lie in the Southern District of New York, the place of their prosecutions. We consider whether, although the bulk of their joint criminal activity took place in the U.S. Virgin Islands and in Florida, the defendants' activities and knowledge of the related travel to New York by one of their number, who had left Florida with drugs obtained through the conspiracy and traveled to the New York area with plans to sell the drugs there, suffice to support venue in the Southern District as to each defendant. We find the actions of the conspirators in the district, and the defendants' knowledge of that activity, render venue in the Southern District of New York proper. We also reject the defendants' other challenges to their convictions and sentences, which include, inter alia , challenges to the District Court's denial of three suppression motions, a contention that the government failed adequately to disclose impeachment evidence regarding its lead witness, and arguments that the District Court improperly calculated the defendants' Guidelines ranges.

Accordingly, we AFFIRM the judgments of conviction entered by the District Court.

BACKGROUND

Defendants-appellants Kirk Tang Yuk, Felix Parrilla, and Gary Thomas appeal their convictions under 21 U.S.C. §§ 841(b)(1)(A) and 846 for conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine. As we must when evaluating an appeal following a conviction by a jury, we recite the facts in the light most favorable to the government, and as the jury was entitled to find them in its deliberations. United States v. Lange , 834 F.3d 58, 64, 69 (2d Cir. 2016).

A. The conspiracy

In the summer of 2012, Gary Thomas, a resident of St. Croix, asked an acquaintance, Deryck Jackson, a resident of Florida, and not an appellant here, if he wanted to earn money by helping Thomas bring cocaine from St. Croix to Florida. Jackson was willing, and he flew from Miami to St. Croix to meet with Thomas. As Jackson later testified, Thomas told Jackson that he was "getting the drug deal together" and that Jackson should "make [him]self available." TY App'x at 250.1 Thomas told Jackson not to mention the cocaine deal to their mutual friend in Florida, Kirk Tang Yuk, explaining his concern that Tang Yuk had a "big mouth." TY App'x at 250-51. Thomas then introduced Jackson to Felix Parrilla, a Florida resident, and told Jackson that Parrilla would be Jackson's contact person in Florida for the planned transaction.

Later, back in Florida, and despite Thomas's request, Jackson told Tang Yuk that he expected to be involved in a drug transaction. Tang Yuk expressed interest in participating in the transaction.

September 2012 arrived and Thomas called Jackson, advising that he was ready to go forward with the plan. Jackson returned to St. Croix and there, on the site of Paradise Waste Management, Thomas's business, he helped Thomas prepare and package cocaine for shipment. To conceal the drugs during shipment, the two men installed false wooden flooring in a packing crate and sprinkled a chemical in the bottom of the crate to help mask the cocaine's smell. They packed 80 kilograms of cocaine in the crate. Jackson then returned to Florida.

On September 18, Thomas called Jackson again and advised that the cocaine was ready for pickup in Miami. Jackson rented a U-Haul truck and retrieved the crate containing the concealed drugs. He moved the crate to a storage facility, where he repackaged the drugs into four cardboard boxes, placing dryer sheets and rice in the boxes to help mask the cocaine's odor. He then brought the boxes to his apartment.

On the following day—September 19—Jackson visited Parrilla at his place of business, a garage. There, Parrilla informed Jackson that he (Parrilla) would take 53 kilograms of the cocaine and Jackson would keep the remaining 27 kilograms "on consignment." TY App'x at 323-25. Later that afternoon, Jackson on his own initiative spoke with Tang Yuk. The two had a rendezvous at Jackson's apartment, where Jackson gave Tang Yuk two kilograms of Jackson's portion of 27 kilograms, also "on consignment." TY App'x at 337. Tang Yuk promised to pay Jackson $27,000 for each of his allotted two kilograms.

On September 20, Jackson delivered 53 kilograms of the cocaine to Parrilla. Jackson then promptly left Miami to drive with his wife to New York City, where he planned to sell some of his 25 remaining kilograms of cocaine to an associate, Fred Fulton. Jackson and his wife arrived in Queens on September 22, after crossing over the Verrazano-Narrows Bridge from Staten Island over the Narrows into Brooklyn, and then driving on into Queens. That evening, Jackson was arrested at the hotel where he had checked in and delivered the drugs to Fulton.

During the same time period, on September 20, the Drug Enforcement Agency (DEA) executed a "sneak and peek" search warrant on Parrilla's business in Florida. A DEA agent described this type of warrant at trial as a "covert" warrant authorizing a "limited" search of the location without notification to the premises owner. In Parrilla's garage, the agents found brown U-Haul boxes, white rice, dryer sheets, and shrink wrap.

While the agents were conducting the search, they noticed Parrilla driving down the street toward his garage, and then suddenly changing direction and speeding away. About 45 minutes later, Parrilla returned and spoke with some of the agents, who were still at the location. In response to the agents' question whether "he had any cash on him," Parrilla admitted that he did, and pulled out "a wad of cash" from his pants pocket. Combined with cash located in a search of his vehicle, the agents recovered, and returned to Parrilla, approximately $17,000.

After his September 22 arrest in New York City, Jackson agreed to cooperate with the government. In late September and early October, at the government's instance, he made recorded calls to Tang Yuk and Thomas from a court building in Manhattan, in the Southern District. In a call made on October 1, Jackson told Thomas that he was "on the road." Supp. App'x at 174. He also admitted to Thomas that he "gave [Tang Yuk] a little work," but denied that Tang Yuk "kn[e]w anything, where it came from or nothing." Id. at 175.

On October 4, in a telephone conversation recorded by the government, Jackson told Tang Yuk, "Well I am trying to wrap up this thing. I am up here in New York. I am trying to wrap up and come back down." Tang Yuk responded, "Do your thing, man. It ain't nothing." Id. at 186. Jackson and Thomas also spoke that day in a recorded phone conversation, which opened with Thomas demanding of Jackson, "You are in here or what?" and Jackson responding, in part, "Well I am just letting know you [sic] that everything is alright." Jackson told Thomas, "I ain't telling you where I was, but I'm telling you now. I'm up in New York. That's why I'm taking this kind of longer way up. Alright." Id. at 189. The recording then ended.

On October 12, with Jackson still not back in Florida, Thomas sent Jackson a text message, warning, "You need to deal with [Parrilla] now, it's about to get ugly. Give him what you have." TY App'x at 399. Four days later, Jackson called Thomas. He asked, "What kind of messages are you sending me? Listen I finished, I'm on my way back down.... This call, call business and all kind of things you're leaving, you know we don't operate like that man." Supp. App'x at 198. Thomas explained that a mutual friend of theirs had informed Thomas that Jackson had been "picked up." Id. That possible development, he said, "just sent me in a [expletive], what you name there, ok ... in a panic." Id. at 199. Jackson replied, "Yeah then you sent me a text saying that uhm ... the man [Parrilla] said it's about to get ugly or something."Id. Thomas confirmed that Parrilla had told him something similar. Closing the conversation, Jackson promised, "Well listen. Today is what? Tuesday. I'm going to be there by Thursday. Alright I will call you and let you know." Supp. App'x at 199.

Parrilla, Thomas, and Tang Yuk were arrested on June 5, 2013.

B. Procedural history

Before trial, Thomas moved to transfer his case to the St. Croix division of the U.S. District Court for the District of the Virgin Islands. The District Court denied this motion, concluding that the only factor strongly favoring transfer was that Thomas's place of residence was in St. Croix, and, accordingly, transfer was not warranted. United States v. Parrilla , No. 13 Cr. 360(AJN), 2014 WL 1621487, at *13-15 (S.D.N.Y. Apr. 22, 2014). At trial, Thomas unsuccessfully renewed his request to transfer venue, arguing that the government's use of a patois expert from Jamaica, not St. Croix, to...

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