Petition for Writ of Certiorari — Marcos Rodriguez, Petitioner v. United States

Supreme Court briefJul 9, 2018

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United States v. Martinez, 862 F.3d 223 (2017)

862 F.3d 223

United States Court of Appeals,

Second Circuit.

UNITED STATES of America, Appellee,

Randall MARTINEZ, a/k/a Randall, a/k/a Jose Rodriguez, a/k/a Jose Rodriguez—

Saez, a/k/a Rando Martinez, a/k/a Randall Martinez—Espinal, Henry Fiorentino,

Jose Tejada, and Marcos Rodriguez, a/k/a Markito, Defendants—Appellants. °

Docket Nos. 14-2759, 15-511, 15-836, 15-1001, 15-3699

August Term, 2016

Argued: October 19, 2016

Decided: July 7, 2017

The Clerk of Court is respectfully directed to amend the caption as set forth above.

Synopsis

Background: Defendants were convicted in the United States District Court for the Eastern

District of New York, Sandra L. Townes, J., and the United States District Court for the

Southern District of New York, John Gleeson, J., of conspiracy to commit Hobbs Act

robbery, conspiracy to distribute narcotics, and other offenses. Defendants appealed.

Holdings: The Court of Appeals, Kearse, Circuit Judge, held that:

[1] evidence was sufficient to permit jury to find that defendant had not withdrawn from

conspiracy prior to limitations period;

[2] defendant waived statute of limitations claim;

[3] evidence was sufficient to permit a rational juror to infer beyond a reasonable doubt that

defendant attempted to obstruct or impede an ongoing or foreseeable grand jury proceeding;

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[4] defendant was not entitled to new trial based on prosecutor's statements in closing

argument;

[5] denial of defendant's motions for new counsel was not abuse of discretion;

[6] defendants’ sentences were substantively reasonable.

Affirmed.

West Headnotes (43)

[1] Criminal Law « Continuing offenses

Conspiracy is generally a continuing crime, meaning that its commission is not

complete until the purposes of the conspiracy have been accomplished or abandoned.

Cases that cite this headnote

[2] Conspiracy « Presumptions and burden of proof

Once the government has presented sufficient evidence to show a conspiracy that has

continuing purposes or goals and that has continued into the limitations period, the

burden is on the defendant to prove that he took affirmative steps to withdraw.

Cases that cite this headnote

[3] Conspiracy « Presumptions and burden of proof

Unless a conspirator produces affirmative evidence of withdrawal, his participation

in a conspiracy is presumed to continue until the last overt act by any of the

conspirators.

| Cases that cite this headnote

[4] Conspiracy + Withdrawal

For a defendant to show that he withdrew from the conspiracy, proof merely that

he ceased conspiratorial activity is not enough; he must also show that he performed

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IS]

[6]

[7]

[3]

some act that affirmatively established that he disavowed his criminal association

with the conspiracy, either the making of a clean breast to. the authorities, or

communication of the abandonment in a manner reasonably calculated to reach coconspirators.

Cases that cite this headnote

Conspiracy «= Withdrawal

To effect a withdrawal, the defendant's disassociation with a conspiracy must be

complete and permanent; he must not take any subsequent acts to promote the

conspiracy.

Cases that cite this headnote

Conspiracy « Withdrawal

Conspiracy » Instructions

While arrest or incarceration may constitute a withdrawal from a conspiracy, it does

not follow that in every instance it must; rather, it is merely a relevant fact that entitles

the defendant to a jury instruction on withdrawal.

Cases that cite this headnote

Conspiracy «= Withdrawal

Evidence of defendant's continued readiness to participate in conspiracy's robberies

of drug dealers and distribution of narcotics was sufficient to permit jury to find

that defendant had not withdrawn. from conspiracy prior to limitations period. 18

US.C.A. § 3282(a).

1 Cases that cite this headnote

Criminal Law « Wrongfully obtained evidence, admission of

Criminal Law ¢ Admission of evidence

Defendant waived appellate review of claim that evidence from warrantless search

and seizure of vehicle and warrantless search of coconspirator's sister's apartment

should have been suppressed at trial for conspiracy to commit Hobbs Act robbery and

conspiracy to distribute narcotics, where defendant failed to move for suppression,

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[9]

[10]

[11]

[12]

and stated he had no objection to admission of the evidence. U.S. Const. Amend. 4;

Fed. R. Crim. P. 12(b)(3)(C).

Cases that cite this headnote

Criminal Law + Time for filing;waiver for failing to file or to timely file

A suppression argument that was made in an untimely fashion before the district

court is waived unless there is a showing of cause. U.S. Const. Amend. 4; Fed. R.

Crim. P. 12(b)(3)(C).

Cases that cite this headnote

Criminal Law « Failure to produce or disclose witnesses or evidence

Government's failure to call detective involved in drug and robbery conspiracy

investigation as a witness at trial did not violate defendant's Sixth Amendment right

of confrontation, as government did not offer in evidence any statements by detective.

U.S. Const. Amend. 6.

Cases that cite this headnote

Criminal Law «= Nature and scope of limitations

Defendant waived any statute of limitations defense by failing to timely assert the

defense in the district court in prosecution for conspiracy to commit Hobbs Act

robbery and conspiracy to distribute controlled substances. 18 U.S.C.A. § 3282(a).

Cases that cite this headnote

Criminal Law s Continuing offenses

Criminal Law ¢ Particular facts

Commission of a federal crime within the statute-of-limitations period is not an

element of the offense; rather, it is up to the defendant to raise the limitations defense

in the district court at or before trial.

1 Cases that cite this headnote

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[13]

[14]

[15]

[16]

Criminal Law ¢= Particular facts

When a defendant presses a limitations defense, the Government then bears the

burden of establishing compliance with the statute of limitations by presenting

evidence that the crime was committed within the limitations period or by establishing

an exception to the limitations period; however, when a defendant fails to press a

limitations defense, the defense does not become part of the case and the Government

does not otherwise have the burden of proving that it filed a timely indictment.

Cases that cite this headnote

Criminal Law « Criminal liability

A statute-of-limitations defense not raised “at or before trial” is not reviewable on

appeal; not even plain-error review can come to the rescue because, if the defendant

did not raise the statute-of-limitations defense at or prior to trial, there is no error for

an appellate court to correct, and certainly no plain error.

Cases that cite this headnote

Obstructing Justice « Nature of Proceedings

Obstructing Justice ¢= Particular crimes

An official proceeding need not be pending or about to be instituted at the time of

the offense in order to support a conviction of corruptly obstructing, influencing, and

impeding an official proceeding, or attempting to do so; however, the government

must prove that such a proceeding was reasonably foreseeable to the defendant. 18

U.S.C.A. § 1512(c)(2), (DC).

Cases that cite this headnote

Obstructing Justice = Nature and Elements of Offense in General

Obstructing Justice «= Particular crimes

To prove obstruction of justice by corruptly obstructing, influencing, and impeding

an official proceeding, or attempting to do so, the government must show that there

was a “nexus” between the defendant's conduct and the pending, or foreseeable,

official proceeding. 18 U.S.C.A. § 1512(c)(2).

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[17]

[18]

119]

Cases that cite this headnote

Obstructing Justice s- Nature and Elements of Offense in General

Obstructing Justice «= Knowledge or intent

Obstructing Justice «= Particular crimes

In a prosecution for corruptly obstructing, influencing, and impeding an official

proceeding, or attempting to do so, elements of corruption and attempt require proof

of some knowledge on the part of the defendant of an ongoing or foreseeable official

proceeding: however, the existence of a nexus between his action and the proceeding

does not depend on the defendant's knowledge, but, rather, is determined by whether

the defendant's acts have a relationship in time, causation, or logic with the judicial

proceedings. 18 U.S.C.A. § 1512(c)(2).

Cases that cite this headnote

Obstructing Justice « Nature and Elements of Offense in General

Nexus requirement for conviction of obstruction of justice by corruptly obstructing,

influencing, and impeding an official proceeding depends upon whether the

defendant's acts have a relationship in time, causation, or logic with the judicial

proceedings, and may be satisfied where discretionary actions of a third person would

be required to obstruct the judicial proceeding. if it was foreseeable to the defendant

that the third party would act on the communication in such a way as to obstruct the

judicial proceeding. 18 U.S.C.A. § 1512(c)(2).

Cases that cite this headnote

Obstructing Justice + Necessity of actual obstruction

Obstructing Justice « Particular crimes

To permit conviction of obstruction of justice, defendant's acts need not be successful

in impeding or obstructing justice; an “endeavor” suffices for a conviction of

corruptly endeavoring to influence or impede the due administration of justice, as

does an “attempt” for conviction of corruptly obstructing, influencing, and impeding

an official proceeding, or attempting to do so. 18 U.S.C.A. §§ 1503(a), 1512(c)(2).

Cases that cite this headnote

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[20]

[21]

[22]

Obstructing Justice «+ Weight and Sufficiency

Obstructing Justice « Attempts

Evidence as a whole was sufficient to permit a rational juror to infer beyond a

reasonable doubt that defendant, a former police officer, attempted to obstruct or

impede an ongoing or foreseeable grand jury proceeding by persistently searching

police databases and reporting back to individuals in conspiracy to commit Hobbs

Act robbery and conspiracy to distribute controlled substances; arrests of many of

defendant's coconspirators made it foreseeable to defendant that there would be

a grand jury proceeding leading to numerous indictments, and it could easily be

inferred that defendant's database searches and reports were intended to make it

possible for coconspirators to avoid arrest by absconding before any outstanding

warrants could be executed, thereby potentially interfering with an ongoing grand

jury proceeding. 18 U.S.C.A. § 1512(c)(2).

Cases that cite this headnote

Criminal Law « Hearsay

Even if admission of detective's testimony as to residents’ out-of-court descriptions of

police imposters who sought entry into their house was error, at trial for conspiracy to

commit Hobbs Act robbery and conspiracy to distribute controlled substances, it was

beyond a reasonable doubt harmless, where codefendant testified he and defendant

had attempted to rob that home while disguised as police officers, and evidence of

defendant's guilt was overwhelming.

Cases that cite this headnote

Criminal Law = Statements as to Facts and Arguments

Criminal Law « Credibility of other witnesses

Defendant was not entitled to new trial on charges including conspiracy to

commit Hobbs Act robbery based on prosecutor's statements in closing argument;

prosecutor's pointing to objective’ bases in the record for the jury to credit the

testimony of the cooperating witnesses was not a personal attestation and did not

constitute improper vouching, and prosecutor's colorful “jailbreak” and “one in a

billion” language was clearly hyperbolic and would not have been taken by the jury

literally.

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[23]

[24]

[25]

[26]

Cases that cite this headnote

Criminal Law = Burden of showing error

Criminal Law e Credibility and Character of Witnesses; Bolstering

Criminal Law ¢ Comments on evidence or witnesses

While the government may not vouch for the credibility of its witnesses, it is allowed

to respond to an argument that impugns its integrity or the integrity of its case,

and a defendant who seeks to overturn his conviction based on alleged prosecutorial

misconduct in summation bears a heavy burden.

Cases that cite this headnote

Criminal Law «= Statements as to Facts, Comments, and Arguments

Court of Appeals will reverse based on prosecutorial misconduct in summation if

there was misconduct that caused the defendant substantial prejudice by so infecting

the trial with unfairness as to make the resulting conviction a denial of due process.

U.S. Const. Amend. 5.

Cases that cite this headnote

Criminal Law ~ Particular Cases -

Denial of defendant's motions for new counsel was not abuse of discretion, in

prosecution for conspiracy to commit Hobbs Act robbery, conspiracy to distribute

narcotics; despite defendant's early requests for the replacement of counsel because

of lack of adequate communication, he did not pursue those requests in the 14

months before he decided to plead guilty, and affirmed at guilty plea that he had

been able to communicate with counsel without difficulty and was satisfied with

counsel's representation, and defendant's post-guilty-plea pre-sentencing request for

new counsel made only conclusory complaints about counsel.

Cases that cite this headnote

Criminal Law « Ascertainment by court;advising and informing accused

Defendant was sufficiently informed about charge of using a firearm in furtherance of

Hobbs Act robbery and narcotics trafficking conspiracies to make his plea of guilty to

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[27]

[28]

[29]

[30]

that charge knowing and voluntary; at plea colloquy, court explained that defendant

was charged with aiding and abetting use of a firearm in furtherance of conspiracy,

and that government did not need to prove defendant actually carried a firearm. 18

U.S.C.A. § 924(c); Fed. R. Crim. P. 11.

Cases that cite this headnote

Criminal Law « Ascertainment by court;advising and informing accused

What is essential in a plea colloquy is that the court determine by some means that

the defendant actually understands the nature of the charges; in all such inquiries,

matters of reality, and not mere ritual, should be controlling. Fed. R. Crim. P. 11.

1 Cases that cite this headnote

Criminal Law = Arraignment and plea

Where a defendant has failed to make a timely Rule 11 objection in the district court,

Court of Appeals conducts only plain-error review. Fed. R. Crim. P. 11.

Cases that cite this headnote

Criminal Law « Necessity of Objections in General

Under the plain-error standard, Court of Appeals will not reverse unless defendant

demonstrated that (1) there was error, (2) the error was plain, (3) the error

prejudicially affected his substantial rights, and (4) the error seriously affected the

fairness, integrity or public reputation of judicial proceedings.

1 Cases that cite this headnote

Criminal Law «+ Arraignment and plea

In order to establish that a Rule 11 violation affected his substantial rights, as

required to establish plain error, defendant must show that there is a reasonable

probability that, but for the error, he would not have entered the plea. Fed. R. Crim.

P. 11.

Cases that cite this headnote

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[31]

[32]

[33]

[34]

[35]

Sentencing and Punishment «= Factors or Purposes in General

Sentencing and Punishment « Effect of applying invalid factor

Sentencing and Punishment # Operation and effect of guidelines in general

Sentencing and Punishment «= Mandatory or advisory

Procedural errors in sentencing include failing to calculate the advisory Guidelines

range, improperly calculating that range, failing to consider the required statutory

factors, or selecting a sentence based on clearly erroneous factual findings.

Cases that cite this headnote

Sentencing and Punishment + Degree of Proof

District court's factual findings at sentencing need be supported only by a

preponderance of the evidence.

Cases that cite this headnote

Criminal Law == Sentencing

In reviewing a sentence, Court of Appeals will not overturn the district court's

findings of fact unless they are clearly erroneous.

Cases that cite this headnote

Criminal Law « Sentencing

Credibility assessments by the judge who presided over the trial and sentencing

proceedings, having an opportunity to hear and view the defendant and the witnesses,

are entitled to considerable deference.

Cases that cite this headnote

Criminal Law « Questions of Fact and Findings

Where there are two permissible views of the evidence, the factfinder's choice between

them cannot be clearly erroneous.

Cases that cite this headnote

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[36] Criminal Law « Sentencing

[37]

[38]

[39]

Criminal Law « Sentencing

Where there is no procedural unreasonableness in sentencing, Court of Appeals’

review of a claim of substantive unreasonableness is narrow, akin to review for abuse

of discretion.

Cases that cite this headnote

Criminal Law « Sentencing

In reviewing a sentence for substantive reasonableness, Court of Appeals will take

into account the totality of the circumstances, evaluating the length of the sentence

imposed in light of the statutory factors. 18 U.S.C.A. § 3553(a).

1 Cases that cite this headnote

Criminal Law ~ Sentencing

Criminal Law «+ Sentencing

Court of Appeals' review of a sentencing court's application of the statutory factors

is highly deferential: the Court will not substitute its own judgment for the district

court's on the question of what is sufficient to meet the statutory considerations in any

particular case, and will instead set aside a district court's substantive determination

only in exceptional cases where the trial court's decision cannot be located within the

range of permissible decisions. 18 U.S.C.A. § 3553(a).

Cases that cite this headnote

Sentencing and Punishment « Arrests, charges, or unadjudicated misconduct

Sentencing and Punishment = Degree of Proof

Because the quantum of proof required for a verdict of guilt is higher than the

quantum required for sentencing, a jury's verdict of acquittal does not prevent the

sentencing court from considering conduct underlying the acquitted charge, so long

as that conduct has been proved by a preponderance of the evidence.

Cases that cite this headnote

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[41]

[42]

[43]

Sentencing and Punishment « Arrests, charges, or unadjudicated misconduct

Sentencing and Punishment ¢= Degree of Proof

Preponderance of evidence showed defendant was present and various uncharged

robberies and attempted robberies, and that defendant either brandished or carried

a gun at the robberies or robbery attempts at which he was present, and thus district

court was entitled to consider such evidence in sentencing defendant for conspiracy

to commit Hobbs Act robbery and other charges.

Cases that cite this headnote

Sentencing and Punishment = Total sentence deemed not excessive

Defendant's 18-year sentence for conspiracy to commit Hobbs Act robbery,

conspiracy to distribute narcotics, obstruction of official proceedings, and conspiring

to obstruct an official proceeding was substantively reasonable; in considering the

statutory factors, the district court stated there was a lot to be said about defendant on

the positive side of the ledger, noting the support he had received from his family and

his exemplary conduct in jail while awaiting trial, and weighed those considerations

against the fact that defendant's conduct constituted a horrific betrayal of public

trust, given his status as a police officer and the violent nature of the crimes. 18

U.S.C.A. § 3553(a).

Cases that cite this headnote

Conspiracy «= Sentence and Punishment

Sentencing and Punishment < Factors or Purposes in General

Defendant's 264-month sentence for conspiracy to commit Hobbs Act robbery and

conspiracy to distribute narcotics was substantively reasonable; defendant's sentence

was well below his Guidelines-recommended range of imprisonment, and district

court adequately considered statutory sentencing factors in imposing sentence. 18

U\S.C.A. § 3553(a).

Cases that cite this headnote

Sentencing and Punishment # Uniform and disparate treatment of offenders

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While the sentencing court is required to consider the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct, a reviewing court's concern about unwarranted disparities

is ata minimum when a sentence is within the Guidelines range. 18 U.S.C.A. § 3553(a)

(6).

Cases that cite this headnote

*229 Appeals from the United States District Court for the Eastern District of New York

Attorneys and Law Firms

ALEXANDER SOLOMON, SYLVIA SHWEDER, Assistant United States Attorneys,

Brooklyn, New York (Robert L. Capers, United States Attorney for the Eastern District of

New York, Emily Berger, Assistant United States Attorney, Brooklyn, New York, on the

brief), for Appellee.

MAR YBETH COVERT, Assistant Federal Public Defender, Buffalo, New York (Marianne

Mariano, Federal Public Defender, Jayme L. Feldman, Assistant Federal Public Defender,

Buffalo, New York, on the brief), for Defendant—Appellant Martinez.

JAMES M. BRANDEN, New York, New York, for Defendant-Appellant Fiorentino;

Defendant—Appellant Fiorentino also filed briefs pro se.

ROBERT CALIENDO, New York, New York (Maurice H. Sercarz, Sercarz & Riopelle,

New York, New York, on the brief), for Defendant—Appellant Tejada.

EPHRAIM SAVITT, New York, New York, for Defendant—Appellant Rodriguez.

Before: KEARSE, JACOBS, and POOLER, Circuit Judges.

Opinion

KEARSE, Circuit Judge:

Defendants Randall Martinez (“Martinez”) and Marcos Rodriguez (“Rodriguez”) appeal

from judgments entered in the United States District Court for the Eastern District of

New York by Sandra L. Townes, Judge, and defendants Henry Fiorentino and Jose Tejada

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appeal from judgments entered in that court by John Gleeson, Judge, convicting all four

defendants of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (a),

and conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846: convicting Martinez

and Rodriguez of brandishing a firearm in furtherance of a crime of violence and/or narcotics

trafficking, in violation of 18 U.S.C. § 924(c)(1)(A) Gi); and convicting Tejada of obstruction

of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2), and conspiring to obstruct

an official proceeding, in violation of id. § 1512(k). Defendants were sentenced principally to

prison terms of 264 months for Martinez, 264 months for Fiorentino, 216 months for Tejada,

and 272 months for Rodriguez. On *230 appeal, Martinez, who entered pleas of guilty in two

related cases in two district courts, challenges the adequacy of his plea hearing and the denial

of his requests for new counsel in the Eastern District case. The other defendants, convicted

following their respective jury trials, principally raise statute-of-limitations arguments and/or

evidentiary challenges to their trial proceedings and challenge their sentences. For the reasons

that follow, we find no basis for overturning any of the challenged convictions or sentences.

I. OVERVIEW

The present prosecutions arise out of a sprawling conspiracy in and around New York

City, spanning at least a decade, in which more than two dozen persons are alleged to have

committed more than 200 robberies of drug traffickers. One of the coconspirators' main

stratagems was to impersonate officers of the New York City Police Department (“NYPD”)

in order to stop or purport to arrest drug traffickers and search their vehicles or to enter and

search premises where the coconspirators had been informed that drugs might be located.

The record includes evidence that Fiorentino was a leader of crews in the conspiracy, that

Rodriguez was one of his principal lieutenants, and that they participated in numerous

robberies and thereafter sold their shares of the stolen narcotics. Martinez participated in

many robberies, generally as a getaway driver or a lookout. Tejada, for much of the period

covered by the conspiracy, was in fact an NYPD police officer. He participated in robberies,

and he provided coconspirators with genuine police equipment and with information about

ongoing criminal investigations in which they might be targeted.

Many indictments and superseding indictments were handed down, and one or more of the

present defendants appeared before various judges in two federal judicial districts. While the

conduct of these defendants was part of the same overall conspiracy, some were active in

different branches of it and at different times than others, and none of these defendants were

tried together. We consider each defendant's challenge to his convictions in turn.

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IT. FIORENTINO

Fiorentino was charged in a November 18, 2009 three-count indictment with conspiracy to

commit robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) (“Hobbs

Act robbery”) (Count One), conspiracy to distribute narcotics, in violation of 21 U.S.C. §

846 (Count Two), and using a firearm in furtherance of a crime of violence and narcotics

trafficking, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i1) and 2 (Count Three). In 2014, having

earlier pleaded guilty before Judge Townes but been allowed to withdraw that plea, he

was tried before Judge Gleeson and a jury. After the government rested its case, the court

dismissed Count Three on the ground that there was insufficient evidence of Fiorentino's use

of a gun during the statute-of-limitations period; Fiorentino was found guilty on the other

two counts and was sentenced principally to 264 months’ imprisonment, to be followed by

a five-year term of supervised release.

On appeal, Fiorentino contends principally that the evidence at his trial was insufficient to

prove that he was a member of the conspiracy within the statute-of-limitations period and

that his sentence was substantively unreasonable. In pro se supplemental briefing, he argues

principally that use of evidence with regard to the seizure of some of his property violated

his rights under the Fourth and Sixth Amendments. *231 We find no merit in any of his

contentions.

A. The Evidence

The evidence at Fiorentino's trial included testimony from six of his coconspirators, each of

whom had committed robberies with Fiorentino—and with Rodriguez as Fiorentino's “righthand man”—from approximately 1997 through 2003. They testified in detail about numerous

such events in which Fiorentino, leading a shifting cast of supporting characters, dressed as

a plainclothes police officer and drove vehicles that were outfitted to look and operate like

unmarked police cruisers in order to facilitate robberies of drug dealers. For example, on

a tip to coconspirator Sandy Beato in or about 2003 about an impending sale of cocaine,

Fiorentino, with Rodriguez, Beato, and one of the other testifying coconspirators, watched

the robbery target leave a house in the Bronx and drive off in a truck. The crew followed and

soon forced the truck to stop. Beato testified that Fiorentino, dressed in civilian clothes but

with a bulletproof vest, a holstered gun, handcuffs, and a badge, spoke with the driver for

several minutes. The crew found five kilograms of cocaine in the truck; Rodriguez and Beato

drove away with it. Fiorentino pretended to recruit the driver of the truck to be an informant,

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promising to return the cocaine if he would tell Fiorentino about future drug sales. The five

kilograms of cocaine were divided equally among the four robbers and the tipster.

On another 2003 tip—this time that 160 kilograms of cocaine were present in a certain

apartment in a Bronx housing complex—Fiorentino and coconspirator Gabriel Cano—

Martinez, outfitted with police clothing, equipment, and badges, went to that apartment,

identified themselves as policemen, and handcuffed the occupants. Cano—Martinez testified

that they found $120,000 in cash and 126 kilograms of cocaine, of which he and Fiorentino

kept a total of $40,000 and 38 kilograms of cocaine, giving the rest of the cash and drugs to

the tipsters. Rodriguez helped Fiorentino sell his share of the cocaine.

Fiorentino at trial conceded that he had participated in the conspiracy for a time, but

he argued that he had withdrawn from the conspiracy prior to the start of the five-year

statute-of-limitations period, see 18 U.S.C. § 3282(a), i.e., prior to November 18, 2004; and

each of the cooperating witnesses against him testified that they committed no robberies

with him after 2003. However, those witnesses also testified that they themselves continued

to commit such robberies and that neither they nor Fiorentino expressed any intention

to stop committing robberies together. In addition, some testified that they discussed

with Fiorentino committing future robberies after November 2004. Cano—Martinez, who

encountered Fiorentino in the Dominican Republic on several occasions in 2006, testified

that they “talked about the possibility of getting back together here in the United States....

[tlo rob again together.” And Beato, who encountered Fiorentino in jail in or after 2009,

testified that Fiorentino asked why Beato had not contacted him “to work” after their 2003

robberies. When Beato said he had not known how to reach Fiorentino, Fiorentino said

Beato could have contacted him through Rodriguez.

In addition, encounters between Fiorentino and bona fide NYPD officers revealed that he

was well equipped to continue robbery operations after 2004. In a January 2005 stop, officers

found in Fiorentino's vehicle handcuffs, ayhandcuff key, and a replica police badge. In June

2006, officers stopped Rodriguez in a vehicle registered to Fiorentino; upon searching the

car, they *232 found a police placard and a police scanner. A later inventory search also

uncovered three police badges and naturalization papers, apparently forged, in Fiorentino's

name. In September 2006, the police searched Fiorentino's residence, with his consent, and

found, inter alia, a police-style flashlight, guns and fake guns, bullets and blanks, wrist

restraints, and police radios. There was also sales-records evidence of purchases of this type

of equipment by Fiorentino in 2005 and 2006.

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In October 2006, an NYPD detective investigating Fiorentino and Rodriguez seized a

Chevrolet Impala that was equipped with lights, sirens, and a PA system of the type found

in unmarked police cruisers. An inventory.search found handcuffs, holsters, two NYPD rain

jackets, and two police shields. The car was registered to Rodriguez and had been seized from

a parking spot leased to Fiorentino.

Rodriguez was arrested in November 2006 and told the arresting officers that Fiorentino

had some property stored in Rodriguez's sister's apartment. In a subsequent search with the

sister's consent, the officers found, inter alia, branding stamps for heroin packages, a scale,

an NYPD K-9 baseball cap, an orange EZ-Pass of the type used by police officers, fake

firearms, holsters, handcuffs, bulletproof vests, a police scanner, NYPD jackets, NYPD-style

cargo pants, and replica police patches.

B. The Statute-of-Limitations Defense

Fiorentino does not challenge the sufficiency of the government's evidence to prove that there

existed a conspiracy of which he was a member and that the conspiracy itself continued in

existence well into the limitations period. However, he contends that he had withdrawn from

the conspiracy more than five years before he was indicted on November 18, 2009, and that

the district court should therefore have granted his posttrial motions pursuant to Fed. R.

Crim. P. 29 and 33 for acquittal or a new trial. Rule 29 provides that “the court on the

defendant's motion must enter a judgment of acquittal of any offense for which the evidence

is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a); see generally United States v.

Eppolito, 543 F.3d 25, 45 (2d Cir. 2008) (“Eppolito’”) (“The test for sufficiency ... is whether

a rational jury could conclude beyond a reasonable doubt that a defendant is guilty of the

crime charged.” (internal quotation marks omitted)), cert. denied, 555 U.S. 1148, 129 S.Ct.

1027, 173 L.Ed.2d 313 (2009). Rule 33 provides that “the court may vacate any judgment

and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). We see no

error or abuse of discretion in the court's denial of those motions.

[1} [2] [3] [4] [5] “Conspiracy 1s generally a continuing crime,” meaning that its

commission “ ‘is not complete until the purposes of the conspiracy have been accomplished

or abandoned.’ ” Eppolito, 543 F.3d at 47 (quoting United States v. Rastelli, 870 F.2d 822, 838

(2d Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. $15, 107 L.Ed.2d 516 (1989)). Accordingly, the

limitations period begins only when the purposes of the conspiracy have been accomplished

or abandoned. Once the government “has presented sufficient evidence to show a conspiracy

that has continuing purposes or goals” and that has continued into the limitations period,

“the burden is on the defendant to prove ... that he took affirmative steps to withdraw.”

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Eppolito, 543 F.3d at 49; see also United States v. Spero, 331 F.3d 57, 60-61 (2d Cir.), cert.

denied, 540 U.S. 819, 124 S.Ct. 100, 157 L.Ed.2d 36 (2003). “Unless a conspirator produces

affirmative evidence of withdrawal, his participation in a conspiracy is presumed to continue

until *233 the last overt act by any of the conspirators.” United States v. Diaz, 176 F.3d 52,

98 (2d Cir.) (internal quotation marks omitted), cert. denied, 528 U.S. 875, 120 S.Ct. 314,

145 L.Ed.2d 153 (1999).

For a defendant to show that he withdrew from the conspiracy, proof merely that he

ceased conspiratorial activity is not enough.... He must also show that he performed

“some act that affirmatively established that he disavowed his criminal association with

the conspiracy,” ... either the making of a clean breast to the authorities, or communication

of the abandonment in a manner reasonably calculated to reach co-conspiratotrs....

Eppolito, 543 F.3d at 49 (quoting United States v. Eisen, 974 F.2d 246, 268 (2d Cir. 1992)

(other internal quotation marks omitted), cert. denied, 507 U.S. 1029, 113 S.Ct. 1840,

123 L.Ed.2d 467 (1993)). To effect a withdrawal, the defendant's disassociation with the

conspiracy must be complete and permanent; he “ ‘must not take any subsequent acts to

promote the conspiracy.’ ” Eppolito, 543 F.3d at 49 (quoting United States v. Berger, 224

F.3d 107, 118 (2d Cir. 2000)).

[6] And “ [while arrest or incarceration may constitute a withdrawal from a conspiracy, it

does not follow that in every instance it must’ ”; rather, it is merely a relevant fact that entitles

the defendant to a jury instruction on withdrawal. United States v. Flaharty, 295 F.3d 182,

192 (2d Cir.) (quoting United States v. Agueci, 310 F.2d 817, 839 (2d Cir. 1962), cert. denied,

372 US. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963) (emphases in Agueci)), cert. denied, 537

U.S. 936, 123 S.Ct. 37, 154 L.Ed.2d 237 (2002).

[7] The jury at Fiorentino's trial was instructed, properly and without objection, with respect

to his statute-of-limitations defense based on his claim of withdrawal from the conspiracy

prior to November 18, 2004. The evidence described in Part II.A. above as to Fiorentino's

discussions with a coconspirator in 2006 as to his desire to participate in additional robberies,

and as to his conversations with another coconspirator in or after 2009 questioning why

he had not been asked to do so, was more than sufficient to permit a rational inference

that Fiorentino had not withdrawn from the conspiracy. And his continued readiness to

participate in the conspiracy's robberies of drug dealers and distribution of narcotics was

amply confirmed by records of Fiorentino's police-equipment purchases in 2005 and 2006,

and by police discoveries in January of 2005 and in June, September, October, and November

of 2006 of his drug distribution paraphernalia such as a scale and a money counter and/or

his NYPD garments and badges enabling intimidation and restraint of drug dealers while

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posing as a police officer. In sum, there was abundant evidence on which to permit the jury

to find that Fiorentino's membership in the conspiracy continued into the limitations period.

Fiorentino also challenges his sentence. (See Part VI.C. below.)

C. Other Challenges

[8] In a pro se supplemental brief, Fiorentino argues principally that the district court's

admission of certain evidence against him violated his rights under the Fourth and Sixth

Amendments. His Fourth Amendment argument, liberally construed, is that evidence from

the 2006 seizure and search of the Impala and the search of Rodriguez's sister's apartment

should have been suppressed because the searches were conducted without warrants. This

argument is not properly preserved.

[9] A request for “suppression of evidence,” “must be raised by pretrial motion *234 if the

basis for the motion is then reasonably available and the motion can be determined without a

trial on the merits.” Fed. R. Crim. P. 12(b)(3)(C). A “suppression argument that was made in

an untimely fashion before the district court” is waived “unless there is a showing of cause.”

United States v. Yousef, 327 F.3d 56, 125 (2d Cir.) (argument waived where the defendant

“had ample opportunity to raise and develop [his] argument before the District Court and

he has not provided ... any reasonable excuse for his failure to so”), cert. denied, 540 U.S.

933, 124 S.Ct. 353, 157 L.Ed.2d 241 (2003). Here there is no indication in the record that

Fiorentino ever moved in the district court to suppress the evidence in question. Further,

when he was specifically asked at trial whether he had any objection to the admission of

proffered evidence that had been found in the Impala or in Rodriguez's sister's apartment,

he answered, “None” (Fiorentino Trial Transcript at 610, 621). Accordingly, his present

objection has been waived.

[10] Nor is there any substantive basis for Fiorentino's argument that the government's

failure to call Detective Armando Rodriguez as a witness at trial violated his Sixth

Amendment right of confrontation as announced in Crawford v. Washington, 541 U.S. 36,

59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“[t]estimonial statements of witnesses absent

from trial [may be] admitted only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine”). At Fiorentino's trial, another

detective testified that Detective Rodriguez was involved in these investigations and in the

arrest of defendant Marcos Rodriguez; but the government did not offer in evidence any

statements by Detective Rodriguez.

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Finally, to the extent that Fiorentino's supplemental pro se reply brief contains arguments

not made in either his opening pro se brief or the brief filed by his attorney, we decline to

consider them. “[N]ew arguments may not be made in a reply brief.” Ernst Haas Studio, Inc.

v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999).

Ill. RODRIGUEZ

Rodriguez, like Fiorentino, was indicted on November 18, 2009, and on the same counts:

Hobbs Act robbery conspiracy, 18 U.S.C. § 1951(a) (Count One), narcotics distribution

conspiracy, 21 U.S.C. § 846 (Count Two), and using a firearm in furtherance of the robbery

and drug distribution conspiracies, 18 U.S.C. § 924(c)(1)(A)@i) (Count Three). Unlike

Fiorentino, Rodriguez did not assert a § 3282(a) statute-of-limitations defense at or prior to

trial; and at Rodriguez's trial before Judge Townes, all three counts were submitted to the

jury. In July 2011, the jury found Rodriguez guilty on all counts; in addition, the jury made

express findings that the gun referred to in Count Three had been used in connection with

the robbery conspiracy and that it had been brandished.

In June 2014, some three years after the verdicts were returned, but before he was sentenced,

Rodriguez moved pursuant to Fed. R. Crim. P. 29 and 33 for acquittal on all three counts,

arguing for the first time that there was no evidence of his participation in the charged

conspiracy after November 18, 2004, i.e., during the five-year statute-of-limitations period.

He argued that if he was involved in any conspiracy after the limitations period, it was

a separate conspiracy from that charged in the indictment. The district court denied the

motions, stating that the jury could reasonably infer that there was a single conspiracy until

at least 2008 and that Rodriguez never withdrew from it.

*235 In January 2015, two months after Fiorentino succeeded in having the gun count

against him dismissed, Rodriguez supplemented his Rule 33 motion, arguing that the interest

of justice required a ruling in Rodriguez's favor on Count Three to parallel the ruling in

Fiorentino's case. The district court again denied the motion, stating that Judge Gleeson's

dismissal of the firearm count against Fiorentino may have been based on evidence different

from that presented at the trial of Rodriguez, and that the evidence at Rodriguez's trial was

not based on firearm seizures beyond the statute-of-limitations period.

The court eventually sentenced Rodriguez principally to 188 months’ imprisonment on the

conspiracy counts and to the mandatory consecutive, statutory minimum, seven-year term

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on Count Three for brandishing the firearm—for a total of 272 months' imprisonment—to

be followed by five years of supervised release.

[11] On appeal, Rodriguez's sole contention is that the court should have granted his motion

under Rule 29 or Rule 33 on the ground that there was insufficient evidence at his trial to

prove that anyone involved in the predicate conspiracies committed any firearms offenses

in furtherance of the conspiracies after the summer of 2004, and thus his conviction on

Count Three, with its severe mandatory penalties, was barred by the statute of limitations.

As Rodriguez did not timely assert his statute-of-limitations defense in the district court, we

conclude that it has been waived. See generally Musacchio v. United States, — U.S. ,

136 S.Ct. 709, 716-18, 193 L.Ed.2d 639 (2016).

[12] [13] “Commission of [a federal] crime within the statute-of-limitations period is not an

element of the ... offense.” Smith v. United States, 568 U.S. 106, 112, 133 S.Ct. 714, 184

L.Ed.2d 570 (2013) (emphasis in original). Rather, “ ‘it is up to the defendant to raise the

limitations defense’ ”; the § 3282(a) statute of limitations “becomes part of a case only if the

defendant presses it in the district court” “at or before trial.” Musacchio, 136 S.Ct. at 717-

18 (quoting Smith, 568 U.S. at 112, 133 S.Ct. 714).

When a defendant presses a limitations defense, the Government then bears

the burden of establishing compliance with the statute of limitations by

presenting evidence that the crime was committed within the limitations

period or by establishing an exception to the limitations period.... When a

defendant fails to press a limitations defense, the defense does not become part

of the case and the Government does not otherwise have the burden of proving

that it filed a timely indictment.

Musacchio, 136 S.Ct. at 718 (first emphasis in original; second emphasis added).

[14] A statute-of-limitations defense not raised “at or before trial” is not reviewable on

appeal. Id. Not even plain-error review can come to the rescue because, if the defendant

did not raise the statute-of-limitations defense at or prior to trial, “there is no error for an

appellate court to correct—and certainly no plain error.” Jd. (emphasis added).

As Rodriguez did not raise his present statute-of-limitations contention until long after his

trial, the district court properly denied his motion for acquittal. And we see no abuse of

discretion in the court's conclusion that a new trial was not warranted in the interest of justice.

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IV. TEJADA

Tejada—an NYPD officer—was charged in 2013 in a six-count superseding indictment

(“S11”): the Hobbs Act robbery conspiracy, 18 U.S.C. § 1951(a) (Count One); the narcotics

distribution conspiracy, *236 21 U.S.C. § 846 (Count Two); using a firearm in furtherance

of the robbery and drug distribution conspiracies, 18 U.S.C. § 924(c)(1)(A)(@i) (Count Three);

two counts of obstruction of justice, one by corruptly endeavoring to influence or impede

the due administration of justice in connection with a federal grand jury proceeding in the

Eastern District of New York, in violation of 18 U.S.C. § 1503(a) (Count Four), and the other

by corruptly obstructing, influencing, and impeding a grand jury proceeding, or attempting

to do so, in violation of 18 U.S.C. § 1512(c)(2) (Count Five); and one count of conspiring to

violate § 1512(c)(2), in violation of id. § 1512(k) (Count Six).

Tejada went through two jury trials. He was first tried in 2013 before Judge Townes on the

above six counts. The jury found him guilty on Counts Five and Six—the § 1512 substantive

and conspiracy obstruction-of-justice counts—but was unable to reach agreement on the

other four counts. In 2014, a four-count superseding indictment was filed (“S12”), recharging

Tejada with the counts of the S11] indictment on which, at his 2013 trial, the jury had been

unable to agree. The case was reassigned-to Judge Gleeson, who presided over the second

trial. After the close of the government's evidence, Judge Gleeson dismissed Count Four, the

§ 1503(a) obstruction count. As to the remaining counts, the jury found Tejada guilty on

Counts One and Two, Hobbs Act robbery conspiracy and narcotics distribution conspiracy,

respectively, and not guilty on Count Three, use of a firearm.

The convictions on Counts Five and Six of $11 and Counts One and Two of S12 were

consolidated for sentencing before Judge Gleeson, who sentenced Tejada principally to 216

months’ imprisonment, to be followed by a three-year term of supervised release.

On appeal, Tejada argues (1) that the evidence at his first trial was insufficient to support

his convictions for obstruction of justice; (2) that the admission of certain out-of-court

statements at his second trial was not permitted by Federal Rule of Evidence 801(d)(1)(C);

and (3) that the prosecutor, in his rebuttal summation at the second trial, impermissibly

vouched for the credibility of government witnesses and inflamed the jury. He also contends

that his sentence is procedurally and substantively unreasonable (see Part VI.B below). We

find no basis for reversal. ;

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A. The Obstruction Convictions

The evidence with respect to the § 1512 obstruction counts on which Tejada was convicted at

his first trial included internal police records as to searches by Tejada of NYPD databases,

and testimony by several cooperating witnesses as to, inter alia, Tejada's involvement in the

conspiracies to rob drug dealers and to profit by selling the proceeds, including testimony

from Yvan Tineo, a close friend of Tejada since the early 1990s and a member of the

conspiracy since 2003, recruited by Cano—Martinez. In 2006, Tineo recruited Tejada, who

was then a police officer, to join the conspiracy. Tineo testified about several robberies that he

and Tejada committed either alone or with other coconspirators (see also Part IV.B. below),

including NYPD officer Jorge Arbaje-Diaz, and about his own and Tejada's reactions when

law enforcement started closing in.

In March 2008, a sting operation resulted in the arrests of eight members of the conspiracy,

including Cano—Martinez. Documentary evidence showed that two days later, Tejada

searched NYPD databases for Tineo's name. In October 2008, Arbaje—Diaz was arrested. He

had committed robberies with, among others, Tejada, Tineo, and Tineo's cousins Ivan and

Ronald Paulino. *237 Concerned that the investigation would soon lead to Tineo and the

Paulinos, Tineo asked Tejada to search for their names through the NYPD computer system

to check for arrest warrants. Tejada did so in January 2009 and reported to Tineo that the

results were negative. Ivan Paulino, who had gone to the Dominican Republic in September

2008, testified that if the searches had revealed any arrest warrants in his name he would have

remained in the Dominican Republic rather than come back to the United States.

[15] There was evidence that Tejada continued to conduct such searches throughout early

2009, and he ran several searches for his own name in January 2010. Tejada, testifying in his

own defense, admitted, inter alia, that he had searched through law enforcement databases

for the names of Tineo and the Paulinos and had communicated the results of his searches to

Tineo. (See Tejada First Trial Transcript, November 13, 2013 (“Tejada 2013 Tr.”), at 2580—

82).

Section § 1512 provides in pertinent part that

(2) ... obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

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(k) Whoever conspires to commit any offense under this section shall be subject to the

same penalties as those prescribed for the offense the commission of which was the object

of the conspiracy.

18 U.S.C. §§ 1512(c)(2), (k) (emphasis added). “For the purposes of this section ... an official

proceeding need not be pending or about to be instituted at the time of the offense....” Id.

§ 1512(f)(1). However, the government must prove that such a proceeding was reasonably

foreseeable to the defendant, see, e.g., Arthur Andersen LLP vy. United States, 544 U.S. 696,

707-08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005); United States v, Binday, 804 F.3d 558, 590-

91 (2d Cir. 2015) (“Binday”), cert. denied, — U:S. . 136 S.Ct. 2487, 195 L.Ed.2d 823

(2016).

[16] [17] In addition, to prove obstruction of justice in violation of § 1512(c)(2), the

government must show that there was a “nexus” between the defendant's conduct and the

pending, or foreseeable, official proceeding, see, e.g., United States v. Reich, 479 F.3d 179,

185-86 (2d Cir.) (“Reich”), cert. denied, 552 U.S. 819, 128 S.Ct. 115, 169 L.Ed.2d 26 (2007);

id. (holding the “ ‘nexus requirement’ ” applied to 18 U.S.C. § 1503 by United States y.

Aguilar, 515 U.S. 593, 599-600, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), equally applicable

to a charge of obstruction in violation of § 1512(c)(2)). Elements of corruption and attempt

of course require proof of some knowledge on the part of the defendant of an ongoing or

foreseeable official proceeding. See generally Nye & Nissen v. United States, 336 U.S. 613,

620, 69 S.Ct. 766, 93 L.Ed. 919 (1949) (aiding and abetting theory supports liability when

the defendant “consciously shares in” the underlying criminal act); United States v. Kumar,

617 F.3d 612, 621 (2d Cir. 2010) (“Kumar”) (to establish that an act was done corruptly,

government must prove wrongful intent), cert. denied, 563 U.S. 1028, 131 S.Ct. 2931, 180

L.Ed.2d 238 (2011); Direct Sales Co. v. United States, 319 U.S. 703, 711-12, 63 S.Ct. 1265,

87 L.Ed. 1674 (1943) (“knowledge 1s the foundation of intent”). However, the existence of a

nexus between his action and the proceeding does not depend on the defendant's knowledge.

See generally Binday, 804 F.3d at 590; *238 Reich, 479 F.3d at 185; cf Kumar, 617 F.3d

at 621 (“a defendant does not need to know with certainty that his conduct would affect

judicial proceedings”). Rather, the existence of a nexus, for obstruction-of-justice purposes,

is determined by whether the defendant's acts “have a relationship in time, causation, or logic

with the judicial proceedings.” Reich, 479 F.3d at 185 (quoting Aguilar, 515 U.S. at 599, 115

S.Ct. 2357).

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[18] The actions of the defendant need not have directly impeded, or attempted to impede

directly, the official proceeding. The nexus requirement is satisfied where “ ‘discretionary

actions of a third person [would be] required to obstruct the judicial proceeding’ if it was

‘foreseeable to [the defendant] that the third party ... would act on the [communication] in

such a way as to obstruct the judicial proceeding.’ ” United States v. Desposito, 704 F.3d 221,

231-32 (2d Cir. 2013) (quoting Reich, 479 F.3d at 185).

[19] Nor, to permit conviction under either § 1512(c)(2) or § 1503, need the defendant's acts be

successful in impeding or obstructing justice; “an ‘endeavor’ suffices” under § 1503, Aguilar,

515 USS. at 599, 115 S.Ct. 2357 (quoting United States v. Russell, 255 U.S. 138, 143, 41 S.Ct.

260, 65 L.Ed. 553 (1921)), as does an “attempt” under § 1512(c)(2), e.g., Reich, 479 F.3d at

186-87, so long as his acts had the natural and probable consequence of interfering with an

official proceeding that was foreseeable even if not then pending.

In the present case, it was easily inferable that the 2008 arrests of many of his coconspirators

made it foreseeable to Tejada—who estimated that as an NYPD officer, he had testified 15-

20 times in grand jury proceedings (see Tejada 2013 Tr. 2457)—that there would be a grand

jury proceeding leading to numerous indictments. And it could easily be inferred that Tejada's

persistent searches of NYPD databases, and his reports back to coconspirators who had

not been arrested, were intended to make it possible for them to avoid arrest by absconding

before any outstanding warrants could be executed, thereby potentially interfering with an

ongoing grand jury proceeding. Indeed, Ivan Paulino—who was eventually arrested in 2010

when he attempted to reenter to the United States—testified that if Tejada's searches had

found Paulino's name among those to be arrested, he would have remained in the Dominican

Republic rather than returning to the United States.

[20] We conclude that the evidence as a whole was sufficient to permit a rational juror to

infer beyond a reasonable doubt that Tejada attempted to obstruct or impede the ongoing

or foreseeable grand jury proceeding in the Eastern District of New York.

Tejada argues that Judge Gleeson's dismissal, at the second trial, of the § 1503 count against

him signified that there was no nexus between his acts and the grand jury proceeding. We

disagree—as did Judge Gleeson when he ultimately considered that argument (see Tejada

Sentencing Transcript (“T.S.Tr.”) 10-11 (“I credit th[e] testimony ... [of] those individuals

whose names were searched in the police department database” who “were in the Dominican

Republic at the time,” that they “would have been notified to ... stay away, which would

essentially frustrate the purpose of the grand jury proceeding.”)).

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B. Out-of-Court Descriptions of Attempted Robbers

Tejada contends that he is entitled to a new trial on the ground that hearsay evidence as to

his participation in an attempted robbery was improperly admitted at his second trial. The

attempt occurred in January 2007 at a house on Schley Avenue in *239 the Bronx (the

“Schley house”), where, according to a tip received by Tineo, 50 kilograms of cocaine were

supposedly stored in the basement.

The residents of the Schley house, Rosa and Joseph Giordano, described the ordeal. They

testified that three men, two of them wearing police attire and carrying guns, arrived at their

home that night and sought entry, announcing that they were responding to a report of shots

fired. While the man in plain clothes waited at the door, the police-attired men searched the

house. After searching, one of them drew his gun and said he was going to handcuff the

Giordanos for everyone's safety; Mr. Giordano refused and became angry, suggesting that

the men consult the Giordanos' next-door neighbor who was a former policeman. The men

then abruptly left the Schley house, after appearing to be in communication with a supervisor.

They sped off in a brown car that looked like an unmarked police car, but with lights and

sirens.

The Giordanos promptly called 911 about the incident. They gave the responding officers

descriptions of the three men. More than three years later, in April 2010, NYPD investigators

showed the Giordanos photo arrays in an attempt to have them identify the men who had

been at their home. Rosa saw some faces that “looked like” those men but she could not

identify anyone with certainty; Joseph could not identify anyone. At trial, Joseph testified

that in January 2007 he and Rosa had described the men as best they could to the responding

officers; but neither of the Giordanos testified to the descriptions they had given.

The government called as a witness one of the detectives who had responded to the

Giordanos' 911 call, and that officer was allowed to testify to the physical descriptions the

Giordanos had given that night in January 2007. The court concluded that his testimony was

admissible under a rule that provides that the court may admit a statement as nonhearsay

if “[t]he declarant testifies and is subject to cross-examination about [the] prior statement,

and the statement ... identifies a person as someone the declarant perceived earlier,” Fed. R.

Evid. 801(d)(1)(C). Tejada contends that the detective's testimony was instead impermissible

hearsay, arguing that the rule applies only if the declarant of the out-of-court statement 1s

the witness testifying to it in court.

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[21] We conclude that we need not resolve this issue because if admission of the detective's

testimony as to the Giordanos' descriptions of the police imposters who came to the Schley

house was error, it was beyond a reasonable doubt harmless. See, e.g., United States v.

McGinn, 787 F.3d 116, 127 (2d Cir. 2015) (“even if a ruling was manifestly erroneous, we will

still affirm if the error was harmless”—that is, “if it is not likely that it contributed to the

verdict” (internal quotation marks omitted)).

Tineo himself testified in detail about the attempted robbery as follows. Shown a photograph

of the Schley house, which both Giordanos had identified as the house in which they lived in

January 2007, Tineo testified that he and Tejada had attempted to rob that home in January

2007, based on a tip that 50 kilograms of cocaine were stored in the basement. On that night

Tejada, having procured a burgundy unmarked police cruiser while on duty, drove Tineo

and one of the tipsters to the Schley house.

Tineo testified that he and Tejada were wearing NYPD clothing. Tejada was armed with his

service weapon, and Tineo was carrying a fake gun. They rang or knocked at the door, and

Tejada announced *240 that they were responding to a report of a disturbance. They were

admitted by the Giordanos, who denied that there had been any disturbance at their home.

Tejada and Tineo entered the house, while the tipster (who had accompanied Tejada and

Tineo to ensure that the tipsters did not get cheated of their share of the loot) remained at

the door. Tejada announced that, for everyone's safety, he wanted to put Mr. Giordano in

handcuffs. Mr. Giordano became irate and refused to be cuffed, saying that their neighbor

was a police officer and would vouch for them. Tineo searched the basement and found no

drugs.

Tineo became persuaded that their tip had brought them to the wrong house, in part

because he found no evidence of any drugs and in part because in their experience as police

impersonators robbing drug dealers, the drug dealers never resisted being handcuffed. Tineo

signaled Tejada that they had the wrong house; Tejada agreed, and they headed for the door.

Tejada took out his radio and pretended to receive another call that they needed to respond

to, and the three men departed in a hurry. The unmarked police car sped off with lights and

sirens going.

In short, the testimony of Tineo describing the robbery attempt at the Schley house closely

matched the descriptions of that event by the Giordanos, and his testimony made clear that

the two robbers dressed as police officers were Tineo and Tejada.

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Further, the Schley house attempted robbery was but a sliver of the evidence as to Tejada's

membership in the robbery conspiracy, for there was abundant detailed evidence that Tejada

had participated in other robberies of drug dealers, as well as in other aspects of the

conspiracy. For example, Tineo testified that he and Tejada robbed a drug courier in the

Bronx and that he and Tejada, with the help of Tejada's fellow NYPD officer Arbaje—Diaz,

carjacked another drug courier in Manhattan. Tineo and two other coconspirators testified

that Tejada participated in the staged arrest at JFK Airport of an airline employee who was

a participant in a drug-smuggling operation seeking a bigger share of the drugs for himself.

In addition, several coconspirators testified that Tejada provided police equipment for their

robberies and that he allowed them to store police-impersonation equipment and stolen

narcotics in his apartment. And virtually the same evidence was introduced at this trial as at

Tejada's first trial (see Part I1V.A. above) describing his NYPD database searches in order to

alert fellow coconspirators as to whether they had been targeted for arrest.

In sum, the evidence that Tejada was a member of the robbery conspiracy was overwhelming.

If it was error to admit the detective's testimony as to the Giordanos' descriptions of the

attempted robbers, it was harmless beyond any reasonable doubt.

C. Challenges to the Government's Summation

Tejada also contends that he should have a new trial on the ground that the government's

rebuttal summation at his second trial was improper and prejudicial. The government in its

initial summation at that trial, anticipating that Tejada would challenge the credibility of

the cooperating witnesses, argued to the jury that it should credit their testimony for three

reasons: that their testimonies were consistent with each other and with other evidence, that

they had no opportunity to coordinate their testimonies, and that they faced serious penalties

if they were caught lying. In his defense summation, Tejada's attorney argued that the jury

should not trust the *241 cooperating witnesses (a) because their repeated interviews with

prosecutors and law enforcement agents had included discussion of false versions of the facts

that they either had consciously adopted in order to increase their chances of leniency, or

had unconsciously actually come to believe because of repeated suggestions, and (b) because

the witnesses had been housed in the same detention facility and could have found ways to

collude in crafting their testimony.

In the government's rebuttal summation, the Assistant United States Attorney (‘AUSA”)

characterized the defense summation as arguing that the jury was presented with “nothing

less than a jailbreak, with all the cooperating witnesses coming here to lie to you,” and argued

that the defense scenario was “impossible.” He pointed out that several of the cooperating

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witnesses had failed to recognize other cooperating witnesses when shown their photographs,

and argued that it was “impossible” for witnesses to collude with others they did not know,

and that even if they were housed in the same detention facility “[t]he odds [we]re one in

a billion or even worse” that “complete strangers could get together to collude to frame”

someone.

[22] Tejada's counsel objected to the government's dubbing his argument a “jailbreak”

scenario. The district court overruled the objections, stating that the AUSA's statements

were “just argument” and “characterization[s]” that the jury could accept or reject. Tejada's

subsequent Rule 33 motion for a new trial on the ground that the government's summation

was inflammatory and that it vouched for the credibility of the cooperating witnesses, was

also denied. On appeal, Tejada pursues his contention that he is entitled to a new trial on

this basis. We disagree.

It is well established that prosecutors may not properly “use arguments calculated to inflame

the passions or prejudices of the jury.” United States v. Modica, 663 F.2d 1173, 1180 (2d

Cir. 1981) (internal quotation marks omitted), cert. denied, 456 U.S. 989, 102 S.Ct. 2269,

73 L.Ed.2d 1284 (1982). It is also well established that it is inappropriate for prosecutors to

“vouch” for their witnesses' truthfulness by “express[ing their] personal belief or opinion as

to the truth” of the testimony. Jd. at 1178-79 (internal quotation marks omitted); see, e.g.,

id. at 1178 (“I'm here to tell you that Mr. Amato's testimony when it relates to the evidence

in this case is truthful,” constituted improper vouching).

[23] [24] However, while the government may not “vouch” for the credibility of its witnesses,

it “is allowed to respond to an argument that impugns its integrity or the integrity of its

case,” United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (“Carr”) (internal quotation

marks omitted), cert. denied, 546 U.S. 1221, 126 S.Ct. 1447, 164 L.Ed.2d 145 (2006), and “[a]

defendant who ... seeks to overturn his conviction based on alleged prosecutorial misconduct

in summation bears a heavy burden,” United States v. Williams, 690 F.3d 70, 74-75 (2d Cir.

2012) (internal quotation marks omitted). We will reverse on this ground only if there was

misconduct that * ‘cause[d] the defendant substantial prejudice by so infecting the trial with

unfairness as to make the resulting conviction a denial of due process.’ ” Carr, 424 F.3d at

227 (quoting United States v. Shareef, 190. F.3d 71, 78 (2d Cir. 1999)).

Tejada has not met this standard. The AUSA's pointing to objective bases in the record for

the jury to credit the testimony of the cooperating witnesses was not a personal attestation

and did not constitute vouching for them. The AUSA's colorful “jailbreak” and “one in a

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billion” language *242 was clearly hyperbolic and would not have been taken by the jury

literally. We see no denial of due process here.

V. MARTINEZ

Martinez was charged with crimes related to this robbery and drug distribution conspiracy in

two districts: in the Eastern District of New York in April 2009 and in the Southern District

of New York in April 2011. In November 2011 in the Eastern District, he pleaded guilty

before Judge Townes to three offenses paralleling those of which Rodriguez was convicted,

i.e., Hobbs Act robbery conspiracy, 18 U.S.C. § 1951(a), narcotics trafficking conspiracy,

21 U.S.C. § 846, and use of a firearm in furtherance of those conspiracies, in violation

of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. In December 2011, with the understanding that his

Southern District case would be consolidated with the Eastern District case for sentencing

in the Eastern District, Martinez pleaded guilty in the Southern District before Judge Paul

D. Gardephe to an attempt to commit a § 1951 Hobbs Act robbery that caused the death of

the intended robbery victim.

Martinez's Southern District case was then consolidated with his Eastern District case

for sentencing before Judge Townes, who eventually sentenced Martinez principally to

264 months' imprisonment, to be followed by a five-year term of supervised release.

Notwithstanding that consolidation, Martinez has appealed separately with respect to his

Eastern District convictions, in No. 14-2759, and his Southern District conviction, in No. 15—

1001, and those appeals have been consolidated in this Court. In his brief on appeal, Martinez

challenges only proceedings in the Eastern District case, contending that his requests for new

counsel were denied in violation of his rights under the Sixth Amendment, and that in his

plea allocution he was inadequately informed of the nature of the § 924(c) firearm charge.

We reject both contentions.

When Martinez was charged in the Eastern District in 2009, the district court, pursuant to

the Criminal Justice Act, appointed Marion A. Seltzer as his attorney. In the spring of 2010,

Martinez wrote to Judge Townes asking that he be assigned new counsel, stating that Seltzer

was “not helping [him] adequately in any of [his] needs regarding [his] case.” He wrote to

the court again a few months later, complaining that Seltzer was not sensitive to Martinez's

lack of knowledge of English, that she did not come to visit him or keep him apprised of

steps she was taking in his case, and that she did not inform him whether she had filed

motions he requested. Prior to Martinez's second letter, Seltzer had unsuccessfully moved

for a bill of particulars, had discussed with Martinez the possibility of a guilty plea, and

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