US v. Danilo Garcia


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00569-CCB-1 Copies to all parties and the district court/agency. [999987593].. [15-4813, 15-4818]

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Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 1 of 12 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4813 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANILO GARCIA, a/k/a Donny, a/k/a Darreo, Defendant - Appellant. No. 15-4818 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROY LEE CLAY, a/k/a Junior, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, Chief District Judge. (1:11-cr-00569-CCB-1; 1:11-cr-00569-CCB-3) Submitted: November 29, 2016 Decided: December 15, 2016 Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and DAVIS, Senior Circuit Judge. Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 2 of 12 Affirmed by unpublished per curiam opinion. Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia, Maryland; Christopher C. Nieto, BROWN & NIETO, LLC, Baltimore, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Ayn B. Ducao, Christopher J. Romano, Assistant United States Attorneys, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 3 of 12 PER CURIAM: A jury convicted Danilo Garcia and Roy Lee Clay (collectively, “Appellants”) for their involvement in a heroin trafficking conspiracy. On appeal, Appellants claim that two evidentiary errors require a new trial. the sufficiency of the evidence and Clay also challenges his 360-month sentence. Finding no error, we affirm. I. We review a district court’s evidentiary rulings for abuse of discretion. Cir. 2016). the law United States v. Faulls, 821 F.3d 502, 508 (4th Reversal is warranted only if, in consideration of and determination facts “was of the arbitrary case, or the district irrational.” Id. court’s (internal quotation marks omitted). Appellants first contend that the district court erred in allowing Special Agent Todd Edwards to testify as an expert witness on coded language used during intercepted phone calls, arguing that the Government’s expert disclosure was deficient and thus Appellants were prejudiced in their ability to conduct an adequate cross-examination. Rule 16(a)(1)(G), Fed. R. Crim. P., requires the Government, when requested, to “give to the defendant a written summary of any [expert] testimony that the government intends to use . . . during its case-in-chief at 3 Appeal: 15-4813 Doc: 65 trial.” the Filed: 12/15/2016 Pg: 4 of 12 The disclosure “must describe the witness’s opinions, bases and reasons qualifications.” Id. for those opinions, and the witness’s “Rule 16(a)(1)(G) is intended to minimize surprise that often results from unexpected expert testimony, and to provide the opponent with a fair opportunity to test the merit of the examination.” (4th Cir. expert’s testimony through focused cross- United States v. Garcia-Lagunas, 835F.3d 479, 494 2016) (alteration and internal quotation marks omitted). We conclude that the discretion in allowing submitted its initial commencement identifying testify. of Edwards to and phone court did testify. disclosure trial, specific district well before supplemented calls about this which not abuse The Government the its scheduled disclosure Edwards by would Moreover, although the parties appeared before the district court for an evidentiary hearing on an unrelated matter before trial, Appellants failed to challenge the sufficiency of the disclosure until the night before Edwards was scheduled to testify. The district court’s exercise of discretion under the circumstances was wholly permissible. Next, Appellants contend that the district court erred in admitting against Clay testimony from previous a portions trial. 4 of a cooperating Clay contends witness’ that the Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 5 of 12 Government’s efforts to locate the witness prior to trial were insufficient violated about and because events Separately, because that he the was that Garcia his unable to occurred contends witness’ notwithstanding Confrontation the cross-examine after that testimony district Clause the witness trial. rights improperly court’s were previous the his rights were violated implicated instruction him, that the evidence could be considered against Clay only. We review violation. cert. de novo an alleged Confrontation Clause United States v. Reed, 780 F.3d 260, 269 (4th Cir.), denied, Confrontation 136 S. Clause Ct. “bars 112, the 113, 167 admission (2015). of The ‘testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’” 738 F.3d 643, 650 (4th Cir. United States v. Dargan, 2013) (quoting Washington, 541 U.S. 36, 53-54 (2004)). trial qualifies as testimonial Crawford v. Testimony at a prior evidence. United States v. Alvarado, 816 F.3d 242, 251 (4th Cir.), cert. denied, __ S. Ct. __, 2016 WL 3655209 (U.S. Nov. 28, 2016). Clause guarantees an opportunity for “[T]he Confrontation effective cross- examination, not cross-examination that is effective in whatever 5 Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 6 of 12 way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). Rule 804(b)(1), Fed. R. Evid., allows the admission into evidence of a hearsay statement from an unavailable witness who previously testified at a trial, that is offered against a defendant who had an opportunity to challenge the declarant on cross-examination. A declarant is unavailable if “the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance.” R. Evid. Clause, 804(a)(5)(A). “[t]he ultimate For purposes question is of the whether Fed. Confrontation the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.” Ohio v. Roberts, 448 U.S. 56, 74 (1980), abrogated on other grounds by Crawford, 541 U.S. at 36. We conclude that the district court did not err in allowing the witness’ prior testimony into evidence. The witness left the country after his release from a period of incarceration, essentially absconding from a period of community supervision. Upon learning that the witness would be needed for a retrial, the Government immediately took steps to locate the witness, requesting help from both British and French authorities but to no avail. Officials also verified that the witness had not 6 Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 7 of 12 reentered the United States using the passport that he used to depart. Clay’s previous counsel had had an opportunity to conduct cross-examination, and had asked several questions to attempt to undermine the witness’ credibility before the prior jury. Moreover, in accordance with the parties’ agreement, the district court informed the jury about the witness absconding from probation, thus cross-examination. serving to amplify counsel’s previous Additionally, the witness’ testimony did not implicate Garcia by name, and the district court appropriately instructed the jury that testimony against Garcia. it could not consider the witness’ See United States v. Min, 704 F.3d 314, 321 & n.5 (4th Cir. 2013) (noting, in affirming district court’s admission of redacted confession, that “confessions do not become facially incriminatory when the government introduces evidence at trial that links the confession to other defendants”); United States v. Chong Lam, 677 F.3d 190, 204 (4th Cir. 2012) (“[J]uries instructions.” are presumed to follow their (internal quotation marks omitted)). II. Clay next against him. challenges the sufficiency of the evidence In assessing the sufficiency of the evidence, we determine whether there is substantial evidence to support the conviction when viewed in the 7 light most favorable to the Appeal: 15-4813 Doc: 65 Government. 2012). Filed: 12/15/2016 United States v. Engle, 676 F.3d 405, 419 (4th Cir. “Substantial finder of Pg: 8 of 12 fact evidence could is accept as evidence that adequate and a reasonable sufficient support a conclusion of guilt beyond a reasonable doubt.” Thus, “reversal where the for insufficiency prosecution’s failure must is be confined clear.” to Id. to Id. cases (internal quotation marks omitted). “To prove conspiracy, the government must demonstrate beyond a reasonable doubt (1) an agreement between two or more persons to engage in conduct that violates a federal drug law, (2) the defendant’s knowledge of the conspiracy, and (3) the defendant’s knowing conspiracy.” voluntary participation in need “Once the Government proves a conspiracy, the only establish a slight connection between defendant and the conspiracy to support conviction.” States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). may be the United States v. Gomez-Jimenez, 750 F.3d 370, 378 (4th Cir. 2014). evidence and convicted of conspiracy without a United A defendant knowing all of its details and even if he plays only a minor role, so long as he enters the conspiracy understanding that it is willfully joins in the plan at least once. “Circumstantial evidence alone 8 is sufficient unlawful and Id. at 367-68. to support a Appeal: 15-4813 Doc: 65 conviction Filed: 12/15/2016 for conspiracy.” Pg: 9 of 12 Gomez-Jimenez, 750 F.3d at 378 (internal quotation marks omitted). We conclude conviction. and Garcia, Garcia sufficient evidence supports Clay’s The Government introduced phone calls between Clay which transactions. with that Edwards interpreted to refer to drug A cooperating witness placed Clay in New York to discuss bad heroin that Clay had purchased. Garcia also informed the cooperating witness that he supplied two people in Baltimore, one of whom, based on the other trial evidence, was Clay. all of the drug Additionally, while Clay was not tied to transactions proven at trial, he operating in a similar manner to his coconspirators. was seen Finally, a jailhouse informant’s testimony provided additional support for the jury heroin. to find Clay responsible for over one kilogram of Thus, we conclude that there was sufficient evidence to support the jury’s verdict. III. Finally, Clay contends that his sentence is unreasonable because the district court failed to adequately explain his sentence and should have rejected the application of the career offender guideline in this instance. sentence “under a deferential We review a defendant’s abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). 9 standard.” Under this Appeal: 15-4813 Doc: 65 standard, a substantive sentence gave calculated the Pg: 10 of 12 reviewed reasonableness, properly range, is reasonableness. procedural court Filed: 12/15/2016 for Id. we at both 51. consider In whether the defendant’s an opportunity parties procedural determining the advisory to and district Guidelines argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) factors, and sufficiently explained the selected sentence. Id. at 49-51. If a sentence is free of “significant procedural error,” then we review it for substantive reasonableness, “tak[ing] into account the totality of the circumstances.” sentence that is within or below a Id. at 51. properly Guidelines range is presumptively reasonable.” Louthian, 756 F.3d 295, 306 (4th Cir. “Any calculated United States v. 2014). “Such a presumption can only be rebutted by showing that the sentence is unreasonable factors.” In when measured against the 18 U.S.C. § 3553(a) Id. evaluating a sentencing court’s explanation of a selected sentence, we consistently have held that, although the district court must consider the statutory factors and explain the sentence, “it § 3553(a) factors.” need not robotically tick through the United States v. Helton, 782 F.3d 148, 153 (4th Cir. 2015) (internal quotation marks omitted). 10 At the same Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 11 of 12 time, the district court “must make an individualized assessment based on the facts presented.” “individualized assessment Gall, 552 U.S. at 50. need not be elaborate While the or lengthy, . . . it must provide a rationale tailored to the particular case at hand review.” and adequate to permit meaningful appellate United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). We conclude that Clay’s within-Guidelines sentence is reasonable. While the court did not explicitly reference the 18 U.S.C. 3553(a) § factors in explaining its sentence, offered a detailed explanation referring to those factors. court first considered noted Clay’s the particular § 3553(a)(1), (2)(A). to disregard the seriousness of the offense circumstances. See and 18 it The then U.S.C. The court also recognized its discretion career offender guideline, but permissibly found that a sentence within Clay’s advisory guidelines range was appropriate. See id. § 3553(a)(3), (4). Moreover, while the district court recognized that Clay’s sentence would be more severe than those of his coconspirators, the court explained why the disparity was appropriate. as to substantive See id. § 3553(a)(6). reasonableness, we conclude that Finally, Clay has failed to overcome the presumption of reasonableness accorded to his within-Guidelines sentence. 11 Appeal: 15-4813 Doc: 65 Filed: 12/15/2016 Pg: 12 of 12 IV. For all judgments. legal before these we affirm the district court’s We dispense with oral argument because the facts and contentions this reasons, court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 12

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