throbber
14-2494-cr(L)
`United States v. Vasquez
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`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 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 1st day of December, two thousand sixteen.
`
`
`PRESENT: ROBERT A. KATZMANN,
`Chief Judge,
`
`
`
`
`RALPH K. WINTER,
`REENA RAGGI,
`
`Circuit Judges.
`
`
`------------------------------------------------------------------
`UNITED STATES OF AMERICA,
`Appellee,
`
`Nos. 14-2494-cr(L)
` 14-3630-cr(Con)
`
`
`v.
`
`EMILIANO VASQUEZ, AKA “Patalarga,” and ALEJO
`POLANCO, AKA “Hondo,”
`Defendants-Appellants,*
`
`CARMELO DANILO ARAUJO, EDWIN
`TAVARES, AKA “Chegui,” and GILBERTO ARIAS,
`AKA “Troy,”
`Defendants.
`
`
`
`
`------------------------------------------------------------------
`FOR APPELLANT EMILIANO
`Donna R. Newman, Law Offices of Donna R.
`VASQUEZ:
`Newman, PA, New York, New York; Clara
`Kalhous, Esq. New York, New York.
`
`
`
`
`* The Clerk of Court is directed to amend the case caption as set forth above.
`
`1
`
`
`
`

`

`FOR APPELLANT ALEJO
`POLANCO:
`
`FOR APPELLEE:
`
`Ephraim Savitt, Esq., New York, New York.
`
`Nathan D. Reilly, Soumya Dayananda, and
`David C. James, Assistant United States
`Attorneys, for Robert L. Capers, United States
`Attorney for the Eastern District of New York,
`Brooklyn, New York.
`
`Appeal from a judgment of the United States District Court for the Eastern District
`
`of New York (Raymond J. Dearie, Judge).
`
`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
`
`AND DECREED that the judgments entered on July 7, 2014 and September 17, 2014 are
`
`AFFIRMED.
`
`Defendants Emiliano Vasquez and Alejo Polanco were convicted after a jury trial
`
`of conspiracy to distribute and possess with intent to distribute heroin, cocaine, and
`
`marijuana, see 21 U.S.C. §§ 841, 846; conspiracy to commit Hobbs Act robbery, see 18
`
`U.S.C. § 1951(a); discharge of a firearm in relation to a drug trafficking crime or a crime
`
`of violence, see id. § 924(c)(1)(A), and causing death through the use of a firearm, see id.
`
`§ 924(j)(1). Vasquez challenges his convictions on the grounds that (1) the district court
`
`should have deemed him incompetent to stand trial, or held a second competency
`
`hearing; (2) his firearms-related offenses were not reasonably foreseeable consequences
`
`of the robbery and narcotics conspiracies; and (3) it cannot be determined whether his
`
`firearms offenses validly rested on any “crime of violence” or “drug trafficking crime.”
`
`Polanco’s counsel moves to be relieved under Anders v. California, 386 U.S. 738 (1967),
`
`and the government moves for summary affirmance of Polanco’s conviction. We
`
`2
`
`
`
`

`

`assume the parties’ familiarity with the facts and record of prior proceedings, which we
`
`reference only as necessary to explain our decision to grant Anders relief to Polanco’s
`
`counsel and to affirm the convictions of both defendants.
`
`
`
`1.
`
`
`
`Emiliano Vasquez
`
`a.
`
`Competency
`
`Vasquez faults Judge Townes’s finding, made after an evidentiary hearing, that he
`
`was competent to stand trial and Judge Dearie’s failure sua sponte to order a new hearing
`
`after the case was reassigned to him.
`
`To find a defendant competent to stand trial, a district court must make a
`
`preponderance finding that the defendant has “(1) ‘sufficient present ability to consult
`
`with his lawyer with a reasonable degree of rational understanding’ and (2) ‘a rational as
`
`well as factual understanding of the proceedings against him.’” United States v.
`
`Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (quoting United States v. Nichols, 56 F.3d 403,
`
`410 (2d Cir. 1995)). The determination may rest on both medical evidence and the
`
`court’s own observations of the defendant. See United States v. Nichols, 56 F.3d at 411.
`
`Where, as here, counsel makes no motion for a new competency hearing, the district
`
`court must nonetheless “be alert” to changes in the defendant’s competency, Drope v.
`
`Missouri, 420 U.S. 162, 181 (1975), and order a new hearing sua sponte “if there is
`
`reasonable cause to believe” that such status has changed, 18 U.S.C. § 4241(a). We
`
`review the district court’s competency finding for clear error, see United States v.
`
`Morrison, 153 F.3d at 46, and the failure to order a new hearing for abuse of discretion,
`
`3
`
`
`
`

`

`
`
`see United States v. Arenburg, 605 F.3d 164, 168–69 (2d Cir. 2010). We identify
`
`neither here.
`
`Judge Townes’s competency finding was made after conducting a hearing to
`
`explore the inconsistent opinions of government and defense psychologists. Judge
`
`Townes’s decisions to credit the findings and opinion of the government expert, and not
`
`to rely on those of the defense expert, were not clearly erroneous given record evidence
`
`that the defense expert lacked formal or institutional training in forensic psychology;
`
`deemed 85–90% of all persons he examined incompetent to stand trial; had employed an
`
`excessively exacting competency standard; and had been criticized by several state and
`
`federal courts for prior competency examinations. See, e.g., United States v. Gigante,
`
`166 F.3d 75, 84 (2d Cir. 1999) (describing competency review as “highly deferential,”
`
`and observing that choice between “two permissible views of the evidence” does not
`
`manifest clear error (internal quotation marks omitted)). To the extent Vasquez urges a
`
`different standard for assessing a defendant’s competency than is presently recognized in
`
`our precedents, this panel is bound by that precedent unless it is reversed by this court en
`
`banc or by an intervening contrary ruling by the Supreme Court. See Centurion v.
`
`Holder, 755 F.3d 115, 123 (2d Cir. 2014).
`
`We further conclude that Judge Dearie did not abuse his discretion in failing sua
`
`sponte to order a new competency hearing. The record here shows Vasquez stating that
`
`he fully understood the charges against him and both he and his counsel professing to the
`
`district court their ability to communicate effectively with one another. At sentencing,
`
`Judge Dearie acknowledged his awareness of Vasquez’s mental health issues, but stated
`
`4
`
`
`
`

`

`
`
`that such issues did not give rise to competency concerns because Vasquez was “entirely
`
`cogent.” App’x 1733. On this record, the district court would not have cause to
`
`believe that Vasquez’s competency had deteriorated since Judge Townes had found him
`
`fit for trial.
`
`In urging otherwise, Vasquez highlights his refusal to plead guilty to firearms
`
`violations under a Pinkerton theory of liability, and his disagreements with four attorneys.
`
`The district court was alert to such issues. Indeed, it specifically found that Vasquez’s
`
`difficulty dealing with counsel was a function of his personality, not his competency. It
`
`further found his plea decision to reflect not incompetency but a strong, if mistaken,
`
`belief that he was less responsible for the loss of life in the robbery because he was
`
`“separat[ed] from the more violent ends of the[] conspiracies,” App’x 1733. Thus,
`
`neither Vasquez’s plea decision nor his relations with counsel manifest the district court’s
`
`abuse of discretion in not sua sponte ordering a new competency hearing. Compare,
`
`e.g., United States v. Kerr, 752 F.3d 206, 217 (2d Cir. 2014) (holding that district court
`
`did not abuse discretion in declining to order new competency hearing based on
`
`defendant’s “obstinate, belligerent, and obsessive behavior,” “obsession with his [own]
`
`theories of defense,” “distrust of his attorneys,” or desire to represent himself at trial),
`
`with United States v. Auen, 846 F.2d 872, 875, 878 (2d Cir. 1988) (declining to order
`
`competency hearing constituted abuse of discretion where defendant consistently gave
`
`incomprehensible responses
`
`to court
`
`inquiries and claimed
`
`to be victim of
`
`“psychopolitical terrorism by the Internal Revenue Service”), and United States v.
`
`5
`
`
`
`

`

`
`
`Arenburg, 605 F.3d at 168 (same, where defendant’s
`
`trial strategy
`
`involved
`
`cross-examining witnesses on “microwave channels broadcasting his thoughts”).
`
`Accordingly, Vasquez’s competency challenges fail on the merits.
`
`b.
`
`Reasonable Foreseeability
`
`Vasquez argues that the evidence was insufficient to support his 18 U.S.C.
`
`§ 924(c) and (j) convictions premised on Polanco’s discharge of a firearm during the
`
`charged narcotics and robbery conspiracies and the resultant death of Liliana Colmenares.
`
`We review a sufficiency challenge “de novo, viewing the evidence in the light most
`
`favorable to the government, with all reasonable inferences drawn in its favor.” United
`
`States v. Rowland, 826 F.3d 100, 107 (2d Cir. 2016) (internal quotation marks omitted).
`
`A defendant may be guilty of a crime committed by a co-conspirator “in
`
`furtherance of the conspiracy” if it is “reasonably foreseeable to the defendant as a
`
`consequence of their criminal agreement.” United States v. Parkes, 497 F.3d 220, 232
`
`(2d Cir. 2007) (citing Pinkerton v. United States, 328 U.S. 640 (1946) (internal quotation
`
`marks omitted)). “Whether a particular substantive crime is foreseeable and in
`
`furtherance of the conspiracy is a question of fact to be decided by the jury.” United
`
`States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996).
`
`Vasquez argues that the jury could not find foreseeability proved in the absence of
`
`evidence of an agreement that “weapons would be discharged” during the conspiracy,
`
`and in light of Polanco’s statements to his co-conspirators that Liliana Colmenares’s
`
`death was an “accident.” Def.’s Br. 47–48. The argument fails because Pinkerton
`
`liability extends not only to co-conspirators’ desired results, but to all reasonably
`
`6
`
`
`
`

`

`
`
`foreseeable results in furtherance of the conspiracy. Here, the jury could reasonably
`
`have concluded that even an unintended shooting death was a “natural,” and therefore,
`
`foreseeable “consequence of a robbery . . . premised on the use of overmastering force
`
`and violent armed confrontation.” United States v. Parkes, 497 F.3d at 232. The trial
`
`evidence showed that Vasquez’s co-conspirators always carried firearms during their
`
`prior robberies and knew that they were robbing drug dealers, who might well be armed.
`
`The discharge of a firearm and ensuing death are reasonably foreseeable consequences of
`
`such criminal activity. See id. (upholding Pinkerton liability for death despite
`
`defendants’ expectation that armed robbery would be “easy”). No different conclusion
`
`is warranted by the fact that, as a getaway driver, Vasquez was not in the room when the
`
`discharge of the firearm or the death occurred, see United States v. Heras, 609 F.3d 101,
`
`110 (2d Cir. 2010). In sum, the evidence was sufficient to support the foreseeability
`
`finding necessary for Vasquez’s convictions under 18 U.S.C. § 924(c) and (j).
`
`c.
`
`“Crime of Violence” or “Drug Trafficking Crime” Predicate
`
`Vasquez further challenges his § 924 convictions on the ground that the general
`
`verdict form fails to show whether guilt was premised on (1) firearms use “during and in
`
`relation to” the charged narcotics conspiracy (a “drug trafficking crime”) or (2) the
`
`charged Hobbs Act robbery conspiracy. He argues that Hobbs Act robbery is not a
`
`predicate “crime of violence” under the Supreme Court’s reasoning in Johnson v. United
`
`States, 135 S. Ct. 2551 (2015),1 raising a Yates concern. See United States v. Agrawal,
`
`
`1 While this court specifically rejected a Johnson challenge to Hobbs Act robbery in
`United States v. Hill, 832 F.3d 135, 138 (2d Cir. 2016), the mandate has not yet issued.
`
`7
`
`
`
`

`

`
`
`726 F.3d 235, 250 (2d Cir. 2013) (noting that general verdict of guilty may manifest legal
`
`error under Yates v. United States, 354 U.S. 298 (1957), where (1) “disjunctive theories
`
`of culpability” were submitted to jury, (2) it is “impossible to tell which ground the jury
`
`selected,” and (3) “[one] of the theories was legally insufficient” (alteration in original)).
`
`Whether we review this argument based on intervening law for plain error, see
`
`United States v. Marcus, 560 U.S. 258, 262 (2010) (requiring showing of (1) error;
`
`(2) that is clear and obvious; (3) affecting “substantial rights”; and (4) seriously
`
`impugning “fairness, integrity, or public reputation of judicial proceedings”), or modified
`
`plain error, see United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1990) (placing burden on
`
`government to show absence of prejudice when applicable law is clarified after trial),
`
`abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997), it necessarily
`
`fails for lack of any error.
`
`Even if Hobbs Act robbery were not a categorical crime of violence, Vasquez’s
`
`§ 924 convictions are clearly supported by a narcotics predicate presenting no legal
`
`concern. That is because the sole Pinkerton theory supporting Vasquez’s § 924
`
`convictions is that co-conspirator Polanco fatally discharged a firearm in furtherance of
`
`an agreement to rob drug dealers and to distribute any recovered narcotics and narcotics
`
`proceeds. Thus, there was no possibility that the jury’s § 924(c) verdict rested only on a
`
`Hobbs Act robbery predicate because (1) the robbery was an act inextricably intertwined
`
`with and, indeed, in furtherance of the charged narcotics conspiracy, and (2) the jury
`
`found that narcotics conspiracy proved beyond a reasonable doubt.
`
` In these
`
`circumstances, where a challenged § 924 verdict undoubtedly rests on a valid
`
`8
`
`
`
`

`

`
`
`drug-trafficking predicate, no Yates concern arises from a possible defect in a related
`
`“crime of violence” predicate. See United States v. Zvi, 168 F.3d 49, 55–56 (2d Cir.
`
`1999) (rejecting Yates challenge where time-barred money-laundering predicate
`
`implicitly required finding of valid wire-fraud predicate); see also United States v.
`
`Coppola, 671 F.3d 220, 237–38 (2d Cir. 2012) (holding any Yates error harmless where
`
`predicates rested on same extortive acts of which jury found defendants guilty).
`
`To the extent Vasquez hypothesizes a way in which the firearms discharge and
`
`resulting murder could have related to the robbery, but not the narcotics conspiracy, he
`
`points to nothing in the record showing that such distinct theories were ever advanced at
`
`trial. Rather, the record shows only, as earlier noted, that the robbery scheme was
`
`presented as a part of the proved narcotics scheme. Accordingly, we affirm Vasquez’s
`
`§ 924(c) and (j) convictions based on the narcotics trafficking predicate without needing
`
`to decide if they could also rest on the robbery predicate.
`
`2.
`
`
`
`Alejo Polanco
`
`Polanco’s court-appointed counsel does not challenge his conviction but, rather,
`
`moves to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) (allowing
`
`counsel to ask for permission to withdraw if convinced, after conscientious investigation,
`
`that appeal is frivolous). The government, in turn, moves for summary affirmance.
`
`“We will not grant an Anders motion unless we are satisfied that counsel has
`
`diligently searched the record for any arguably meritorious issue in support of his client’s
`
`appeal, and defense counsel’s declaration that the appeal would be frivolous is, in fact,
`
`legally correct.” United States v. Whitley, 503 F.3d 74, 76 (2d Cir. 2007) (internal
`
`9
`
`
`
`

`

`
`
`quotation marks omitted)). Assessing the potential merit of an appeal is the role of
`
`counsel, and this court ordinarily will not “independently determine the merits of an
`
`appeal[] absent a properly prepared Anders brief.” United States v. Burnett, 989 F.2d
`
`100, 104 (2d Cir. 1993). Here, Polanco’s counsel did aver that he had searched the
`
`record for any arguments available on appeal, but did not, like counsel for his
`
`co-defendant, supplement the record in light of Johnson v. United States, 135 S. Ct. 2551
`
`(2015). To the extent such an argument is even “arguably meritorious,” it was counsel’s
`
`duty either to supplement the Anders motion or to join in briefing filed on behalf of
`
`Vasquez. We do not lightly excuse such an omission but, in the particular
`
`circumstances presented here, we are able “independently [to] determine the merits of
`
`[the] appeal” without further briefing on this issue. See United States v. Burnett, 989 F.2d
`
`at 104.
`
`First, Polanco and Vasquez were convicted, after a joint trial, of the same offenses.
`
`Polanco, however, cannot pursue the first two challenges raised by Vasquez because
`
`(1) his competency was never at issue, and (2) his § 924 liability was not premised on
`
`Pinkerton, but on his role as the actual shooter. Second, while Polanco’s counsel failed
`
`to raise any Johnson argument akin to that advanced by Vasquez’s counsel, such an
`
`argument would fail for the reason just discussed: that is, both defendants’ § 924
`
`convictions are supported by a proved narcotics conspiracy predicate that is inextricably
`
`intertwined with the Hobbs Act robbery predicate but without the latter’s possible
`
`10
`
`Johnson issue.
`
`
`
`

`

`
`
`Third, counsel’s discussion of the substantive and procedural reasonableness of
`
`Polanco’s sentence, see United States v. Whitley, 503 F.3d at 77, while brief, was
`
`adequate. As to procedural reasonableness, Polanco’s killing of Liliana Colmenares
`
`made him statutorily eligible for a life sentence. See 18 U.S.C. § 924(j). The district
`
`court noted that the § 924(j) conviction generated a total offense level of 44, see U.S.S.G.
`
`§ 2A1.1, App. A, elevating Polanco’s Guidelines sentencing range to life imprisonment,
`
`see 2013 U.S.S.G. Manual Ch. 5 Pt. A, Sentencing Table, which sentence the government
`
`urged. As to substantive reasonableness, the district court sentenced Polanco to a
`
`below-Guidelines 27-year prison term, finding that Polanco had not intended to kill
`
`Colmenares, and appeared “contrite” and “haunted” by her death, see August 20, 2014
`
`Sentencing Transcript, at 16:23, 17:4–6. In general, a below-Guidelines sentence is
`
`strong evidence that a sentence is not substantively unreasonable, see United States v.
`
`Messina, 806 F.3d 55, 66 (2d Cir. 2015), and Polanco has no colorable argument here
`
`that the 27-year sentence was outside the broad range of discretion afforded sentencing
`
`judges, see United States v. Cavera, 550 F.3d 180, 188–89 (2d Cir. 2008) (en banc);
`
`United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008). No other non-frivolous issues
`
`are apparent.
`
`Finally, the record demonstrates that counsel provided Vasquez with a copy of his
`
`motion and accompanying brief, and wrote to Polanco, even before filing his brief, to
`
`explain its consequences and to clarify that Polanco had a right to pursue his appeal pro
`
`se or to seek new counsel. Counsel directed Polanco to obtain the assistance of a
`
`bilingual inmate in reviewing the message, and thereafter, Polanco confirmed that he
`
`11
`
`
`
`

`

`
`
`understood the message and was consenting to counsel’s withdrawal. While counsel
`
`was also required to append to his brief a transcript of the district court proceedings, see
`
`United States Court of Appeals for the Second Circuit, How to File an Anders Brief,
`
`http://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_case/pdf/Anders%20brief%2
`
`0instructions%20and%20checklist%20combined%2010-11.pdf, his failure to do so does
`
`not here require denial of the motion because copies of the relevant transcripts were
`
`available through Vasquez’s appeal and the district court’s docket.
`
`Accordingly, as to Polanco, we grant counsel’s Anders motion to withdraw and
`
`the government’s motion for summary affirmance.
`
`3.
`
`Conclusion
`
`We have considered Vasquez’s remaining arguments and conclude that they are
`
`without merit. Accordingly, the Anders motion of Polanco’s counsel is GRANTED and
`
`the judgments of conviction as to both Polanco and Vasquez are AFFIRMED.
`
`FOR THE COURT:
`CATHERINE O’HAGAN WOLFE, Clerk of Court
`
`12
`
`
`
`
`
`

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