United States v. Abarca

22 F.4th 58

UNITED STATES of America, Appellee,

v.Armando Ernesto ABARCA, Defendant,Raul Everado Ledesma Abarca, Defendant-Appellant.

19-3751-cr

United States Court of Appeals, Second Circuit.

December 15, 2021

FOR APPELLEE: Monica J. Richards , Assistant United States Attorney for Trini E. Ross , United States Attorney for the Western District of New York, Buffalo, NY.

FOR DEFENDANT-APPELLANT: Jillian S. Harrington , Law Offices of Jillian S. Harrington, Monroe Township, NJ.

PRESENT: ROBERT D. SACK, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges.

SUMMARY ORDER

Defendant-Appellant Raul Everado Ledesma Abarca appeals from a judgment of conviction, entered on October 25, 2019, by the United States District Court for the Western District of New York. Following a jury trial that commenced on May 31, 2019 and concluded on June 12, 2019, Abarca was convicted of all three counts charged in the May 18, 2017 indictment: (1) conspiracy to possess with intent to distribute, and to distribute, five kilograms or more of cocaine in violation of 21 U.S.C. § 846 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) ("Count One"); (2) possession of five kilograms or more of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2 ("Count Two"); and (3) maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 ("Count Three"). The district court sentenced Abarca to 324 months' imprisonment on Counts One and Two, and 240 months' imprisonment on Count Three, to be served concurrently to each other, and to be followed by five years of supervised release.

On appeal, Abarca asserts three challenges, which we address in turn. First, Abarca argues that there is insufficient evidence to support his conviction, including a failure to prove that venue was proper in the Western District of New York (the "WDNY") on each count. Second, Abarca asserts that the district court improperly permitted expert testimony by Federal Bureau of Investigation ("FBI") Special Agent Mark Schirching. Finally, Abarca contends that the district court erred in admitting, through hearsay exceptions, two pieces of evidence: an intercepted BlackBerry message and a message containing an image of a Western Union receipt. We assume the parties' familiarity with the underlying facts and procedural history of this case, to which we refer only as necessary to explain our decision to affirm.

I. Sufficiency of the Evidence

Abarca argues that there was insufficient evidence to prove that he was a member of a conspiracy that distributed narcotics in the WDNY, or that he knew or that it was reasonably foreseeable that the narcotics conspiracy in which he participated in Ohio, which defense counsel conceded was supported by evidence adduced at trial, extended to New York. As discussed below, we conclude that the evidence was sufficient on each count to establish proper venue in the WDNY and to convict Abarca of the charged crime.

We review challenges to venue de novo, United States v. Svoboda, 347 F.3d 471, 482 (2d Cir. 2003), and apply the same de novo standard of review to challenges to the sufficiency of trial evidence more generally, United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019). In so doing, we examine the evidence "in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor, and deferring to the jury's assessment of witness credibility and its assessment of the weight of the evidence." United States v. Sheehan, 838 F.3d 109, 119 (2d Cir. 2016) (internal quotation marks omitted).

To convict Abarca on the narcotics conspiracy charged in Count One, 21 U.S.C. § 846, the government must prove: "(1) the existence of the conspiracy charged; (2) that the defendant had knowledge of the conspiracy; and (3) that the defendant intentionally joined the conspiracy." United States v. Barret, 848 F.3d 524, 534 (2d Cir. 2017) (quoting United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008)). If a conspiracy is proven, a co-conspirator may be held responsible for the substantive crimes committed by his co-conspirators so long as those offenses were "reasonably foreseeable to the defendant as a consequence of their criminal agreement." United States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007) (internal quotation marks omitted).

To convict Abarca on the substantive narcotics charge in Count Two, there must be sufficient proof that Abarca knowingly or intentionally possessed with the intent to distribute, and did distribute, five kilograms or more of, as relevant here, cocaine. 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). To sustain a conviction for maintaining a premises for the purpose of manufacturing and distributing drugs under Section 856(a)(1) as charged in Count Three, "it is sufficient for the government to establish beyond a reasonable doubt that the defendant (1) used a place; (2) for the purpose of distributing or packaging controlled substances; and (3) did so knowingly." United States v. Facen, 812 F.3d 280, 290 (2d Cir. 2016).

The government was also required to prove, by a preponderance of the evidence, that venue in the WDNY was proper as to each count. United States v. Tzolov, 642 F.3d 314, 318 (2d Cir. 2011). Venue is proper in the district in which the crime was committed. U.S. Const. art. iii, § 2; U.S. Const. amend. VI; Fed. R. Crim. P. 18. Accordingly, for Counts Two and Three, possession with intent to sell and maintenance of the premises, respectively, the place where the crime was committed is determined "from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Cabrales, 524 U.S. 1, 7, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998) (internal quotation marks omitted). However, for Count One, because the nature of the charged narcotics distribution conspiracy implicates more than one location, proper venue existed in a district where an offense was "begun, continued, or completed." 18 U.S.C. § 3237(a). Nevertheless, venue must be "reasonably foreseeable to a conspirator." United States v. Rommy, 506 F.3d 108, 123 (2d Cir. 2007).

Construing the trial record in the light most favorable to the government, and deferring to the jury's assessment of witness credibility, Sheehan, 838 F.3d at 119, the evidence at trial established the following: Abarca participated in a drug trafficking conspiracy involving the distribution of large amounts of cocaine brought into the United States from Mexico. Two cooperating witnesses—Mario Gonzalez, who received deliveries of cocaine from Abarca, and Gerardo Ballardo, who sold Abarca cocaine—testified at trial as to their participation in the scheme with Abarca and others. Gonzalez testified that Abarca provided cocaine to him in Columbus, Ohio, which Gonzalez delivered to others, returning to Abarca the money he received in exchange. He also testified that he met Abarca's cousin, defendant Armando Abarca, who acted as a driver for Abarca. The other cooperating witness, Ballardo, explained that he initially received FedEx packages of smaller amounts of cocaine, which he would deliver to a person identified as "Black" in Buffalo, New York. Eventually, Ballardo decided to increase his involvement in the drug scheme, at which point he was sent twenty kilograms of cocaine hidden in a compartment of a silver Mercedes from Mexico, which he then sold to Black. A few months thereafter, Ballardo was introduced to Abarca in California through Armando Abarca, and Ballardo began to sell cocaine to Abarca in Columbus. When Ballardo received a shipment of cocaine from Mexico, he split it between Abarca in Columbus and Black in Buffalo. Ballardo testified that he met Abarca in parking lots in Columbus where Abarca would pay for and pick up the cocaine, and that Abarca was sometimes accompanied by his cousin, Armando Abarca. There came a time when Ballardo asked Abarca to go to Buffalo to pick up money Black owed to Ballardo because Black had changed his phone number and Ballardo had not been able to reach him. Ballardo testified that he could not recall if Abarca actually received the money from Black, but he did recall that after Abarca was sent to Black's home, he was able to re-establish communication with Black.

Within a month of Ballardo's arrest, Francisco Abarca, another relative of Abarca, signed a lease agreement for a storage unit in Amherst, New York, which is near Buffalo in the WDNY. That same day, the government, pursuant to a wiretap, intercepted a message sent via BlackBerry Messenger outlining the cocaine distribution operation. Although the sender and receiver of the message were known only as "Lupercio" and "Felix,"¹ respectively, the message referenced kilograms of cocaine going to Ohio, Buffalo, and Tennessee, and stated that kilograms were given to "a friend with the car." Gov't App'x at 8. Further, about one month after renting the storage unit, Armando Abarca sent to Lupercio a photographed image of a Western Union receipt from a Walgreens store located within a block of the storage facility in the WDNY. Based on surveillance video, two other Western Union transactions were made at the same Walgreens store by Armando Abarca and Abarca's brother Efrain Ledesma Abarca, although not by Abarca himself.

Approximately three months after Francisco Abarca rented the storage unit, the storage facility stopped receiving payments on the unit, and its contents were sold at auction. After the auction, it was discovered that the storage unit contained a locked locker, which contained approximately forty-three kilograms of cocaine and a blue poncho with Armando Abarca's latent fingerprints. The storage unit also contained a stand-alone set of plastic storage drawers and a fan, both bearing Abarca's fingerprints.

With respect to Abarca's sufficiency challenge as to venue, we conclude there was sufficient evidence for the jury to rationally conclude that the...