Petition for Writ of Certiorari — Juan Antonio Hernandez Alvarado, aka Tony Hernandez, Petitioner v. United States, et al.
Supreme Court briefJun 10, 2024
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No.
In the
SUPREME COURT of the UNITED STATES
October Term, 2023
JUAN ANTONIO HERNANDEZ ALVARADO, AKA Tony Hernandez,
Petitioner,
against
UNITED STATES OF AMERICA, GEOVANNY FUENTES RAMIREZ, AKA
SEALED DEFENDANT 1,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
________________
PETITION FOR A WRIT OF CERTIORARI
________________
JESSE M. SIEGEL
299 Broadway, Suite 800
New York, NY 10007
212-207-9009
jessemsiegel@aol.com
Attorney of Record for Petitioner Juan
Antonio Hernandez Alvarado
Dated: New York, New York
June 10, 2024
QUESTIONS PRESENTED FOR REVIEW
1. Whether, as a matter of federal law, New York’s “no-contact”
rule, which prohibits an attorney in a case from communicating
with a party he or she knows to be represented by counsel, is
violated when the attorney should know the party is represented
by counsel.
2. Whether a defendant waives his right to counsel when, after
saying he wants to cooperate with law enforcement but first
wants to speak with his lawyer, he is told he will be taken to jail
without being interviewed because agents have been unable to
reach the attorney, and replies by saying he wants to begin
cooperating immediately, and is then interviewed without
counsel present.
3. Whether a trial court ensures a defendant receives a trial by an
impartial jury and due process when it fails to investigate
information that a sitting juror noticed he was photographed
outside court under circumstances that raised safety concerns,
and discussed this with another juror.
i
PARTIES TO THE PROCEEDING
In addition to the parties named in the caption of this petition, the following
individuals were parties to the original proceeding before the district court that
issued the judgment we petition the Court to review: Victor Hugo Diaz Morales,
AKA Victor Hugo Villegas Castillo, AKA Rojo; Mario Jose Calix Hernandez;
Mauricio Hernandez Pineda; Amado Beltran Beltran, AKA Don Amado; Otto Rene
Salguero Morales, AKA Otto Salguero; Ronald Enrique Salguero Portillo, AKA
Ronald Salguero; and Fernando Felix Rodriguez, AKA Don Fernando.
DIRECTLY RELATED CASES
1.
United States District Court for the Southern District of New York
United States v. Juan Antonio Hernandez Alvarado, S2 15 Cr. 379 (PKC)
Judgment entered March 31, 2021
2.
United States Court of Appeals for the Second Circuit
United States v. Juan Antonio Hernandez Alvarado, No. 21-885, Summary
Order entered January 22, 2024, Petition for Panel Rehearing, denied March
12, 2024
United States v. Diaz Morales (Ramirez), No. 22-334, Summary Order
entered January 22, 2024
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ....................................................
ii
PARTIES TO THE PROCEEDING .................................................................
iii
DIRECTLY RELATED CASES .......................................................................
iii
TABLE OF CONTENTS ..................................................................................
iv
TABLE OF AUTHORITIES ............................................................................
vi
OPINIONS BELOW ........................................................................................
1
JURISDICTION ..............................................................................................
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............
1
STATEMENT OF THE CASE .........................................................................
3
A.
The District Court Proceedings - Conviction and Sentence .................
3
1.
The post-arrest statement ..............................................................
4
a.
Factual background .................................................................
4
b.
The district court’s decision .....................................................
8
The out-of-court incident and conversation between jurors ..........
9
a.
Factual background .................................................................
9
b.
The district court’s denial of the request to investigate .........
10
The Appeal and Petition for Rehearing in the Second Circuit .............
10
REASONS FOR GRANTING THE PETITION ...............................................
12
2.
B.
I.
THE SECOND CIRCUIT ERRED WHEN IT HELD THAT
PROSECUTORS DID NOT HAVE CONSTRUCTIVE KNOWLEDGE
THAT MR. HERNANDEZ WAS REPRESENTED BY COUNSEL AND
THEREBY
FAILED
TO
FIND
SUCH
CONSTRUCTIVE
KNOWLEDGE SUFFICIENT TO ESTABLISH A VIOLATION OF
THE NO-CONTACT RULE AS A MATTER OF FEDERAL LAW.
GRANTING CERTIORARI WILL ALLOW THE COURT TO DECIDE
THIS ISSUE OF FIRST IMPRESSION ................................................
iii
12
II.
THE SECOND CIRCUIT ERRED WHEN IT FOUND THAT, EVEN
ASSUMING HE UNEQUIVOCALLY INVOKED IT, MR. HERNANDEZ’S
RIGHT TO COUNSEL WAS NOT VIOLATED, AS HE WAIVED IT BY
REINITIATING CONVERSATION WITH THE AGENT. TO THE
CONTRARY, MR. HERNANDEZ RESPONDED TO STATEMENTS BY THE
AGENT THAT WERE LIKELY TO ELICIT A RESPONSE FROM HIM ..........
16
THE SECOND CIRCUIT ERRED WHEN IT FOUND THE DISTRICT COURT
ENSURED MR. HERNANDEZ RECEIVED A TRIAL BY AN IMPARTIAL
JURY AND DUE PROCESS WHEN, AFTER DISMISSING AN ALTERNATE
JUROR, IT DENIED A REQUEST TO DETERMINE WHETHER ANOTHER
JUROR’S IMPARTIALITY HAD BEEN TAINTED IN THE SAME WAY AND
WHETHER THE TWO JURORS HAD DISCUSSED THEIR COMMON
SAFETY CONCERNS .......................................................................................
22
CONCLUSION ................................................................................................
26
ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED JANUARY 22, 2024 ....................................................
1a
JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, FILED MARCH 31, 2021 .................
29a
TRANSCRIPT EXCERPT OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, FILED
OCTOBER 30, 2019 ..........................................................................................................
42a
TRANSCRIPT EXCERPT OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, FILED JULY 8, 2019....
46a
ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED MARCH 12, 2024 ........................................................
56a
III.
iv
TABLE OF AUTHORITIES
Cases
Page
Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989) .................................................... 21
Edwards v. Arizona, 451 U.S. 477 (1981) ................................................................... 17
Fare v. Michael C., 442 U.S. 707 (1979)...................................................................... 20
Grievance Comm. for S. Dist. of N.Y. v. Simels, 48 F.3d 640 (2d Circuit 1995) ........ 13
Johnson v. Zerbst, 304 U.S. 458 (1938) ....................................................................... 20
Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477 (1985) .............................................. 19
Michigan v. Harvey, 494 U.S. 344 (1990) ................................................................... 18
Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486 (1990)...................................... 18
Miranda v. Arizona, 384 U.S. 486 (1966) ................................................................... 17
Remmer v. United States, 350 U.S. 377 (1956) ........................................................... 23
Smith v. Phillips, 455 U.S. 209 (1982) ........................................................................ 23
United States v. Aiello, 771 F.2d 621 (2d Cir. 1985) .................................................. 23
United States v. Dutkel, 192 F. 3d 893 (9th Cir. 1999) .............................................. 24
United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) .............................................. 8
United States v. Morales, 2024 WL 220402 (2d Cir. 2024) .......................................... 1
United States v. Moten, 582 F.2d 654 (2d Cir. 1978) .................................................. 23
United States v. Ruggiero, 928 F.2d 1289 (2d Cir. 1991) ........................................... 23
United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002) ................................................ 23
Statutes
18 U.S.C. § 1001 ............................................................................................................. 3
18 U.S.C. § 924(c) ........................................................................................................... 3
21 U.S.C. § 963 ............................................................................................................... 3
28 U.S.C. § 1254(1) ........................................................................................................ 1
v
Petitioner Juan Antonio Hernandez Alvarado respectfully prays that a writ
of certiorari issue to review the judgment and opinion of the United States Court
of Appeals for the Second Circuit entered in this proceeding on January 22, 2024.
OPINIONS BELOW
The opinion of the Second Circuit dated January 22, 2024, attached hereto as
Appendix A, pages 1a – 28a, is reported at United States v. Morales, 2024 WL
220402 (2d Cir. 2024). The order of the Court of Appeals of March 12, 2024,
denying Panel rehearing, attached hereto as Appendix B, page 56a, is unreported.
JURISDICTION
This petition for certiorari is being filed within 90 calendar days of the order
denying rehearing, March 12, 2024. (The Summary Order affirming the judgment
was dated January 22, 2024.) This Court’s jurisdiction is invoked under Title 28,
United States Code, section 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.
1
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
Title 28, United States Code, section 530(B) provides:
(a) An attorney for the Government shall be subject to
State laws and rules, and local Federal court rules,
governing attorneys in each State where such attorney
engages in that attorney’s duties, to the same extent and
in the same manner as other attorneys in that State.
(b) The Attorney General shall make and amend rules of
the Department of Justice to assure compliance with this
section.
(c) As used in this section, the term “attorney for the
Government” includes any attorney described in section
77.2(a) of part 77 of title 28 of the Code of Federal
Regulations and also includes any independent counsel, or
employee of such a counsel, appointed under chapter 40.
New York Rule of Professional Conduct 4.2(a), 22 N.Y.C.R.R. § 1200,
provides:
Communication With Person Represented By Counsel
(a) In representing a client, a lawyer shall not
communicate or cause another to communicate about the
subject of the representation with a party the lawyer
knows to be represented by another lawyer in the matter,
unless the lawyer has the prior consent of the other
lawyer or is authorized to do so by law.
2
STATEMENT OF THE CASE
A. The District Court Proceedings - Conviction and Sentence
Petitioner Juan Antonio Hernandez Alvarado (“Mr. Hernandez”), a former
member of the Honduran Congress and brother of the former President of
Honduras, was convicted after trial of conspiring to import cocaine into the
United States, in violation of 21 U.S.C. § 963; using and conspiring to use
machineguns in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c)
and (o); and making false statements to law enforcement, in violation of 18 U.S.C.
§ 1001. He was sentenced principally to a life term of imprisonment followed by a
mandatory consecutive 30-year term of imprisonment.
This petition concerns three decisions by the United States Court of
Appeals for the Second Circuit. First, the Second Circuit affirmed the district
court’s failure to suppress a statement made by Mr. Hernandez after being
arrested, that the government subsequently introduced and relied upon at trial,
despite the fact that it was obtained in violation of the “no-contact” rule, which
bars an attorney (including a prosecutor) from speaking with a party he knows to
be represented by counsel.
Second, the Court affirmed the district court’s decision that the statement
was not obtained in violation of Mr. Hernandez’s right to counsel, as guaranteed
by the Fifth and Sixth Amendments.
3
Third, the Second Circuit found the district court did not violate Mr.
Hernandez’s rights to trial by an impartial jury and due process, guaranteed by
the Sixth and Fifth Amendments, respectively, when it failed to investigate
information that two jurors improperly experienced and communicated about an
out-of-court incident. The court dismissed one of them, an alternate juror, with
the consent of the parties. But it completely failed to investigate whether the
impartiality of the second, a sitting juror, was affected by the incident and
conversation with the alternate juror.
1. The post-arrest statement
a. Factual background
In October 2016, Attorney Manuel Retureta represented Mr. Hernandez at a
proffer with prosecutors (including AUSA Matthew Laroche) and law enforcement
personnel. At the conclusion of the meeting, the prosecution team said they did not
believe Mr. Hernandez had been honest during the session.
On May 19, 2017, Retureta sent AUSA Laroche an email requesting a
telephone call “regarding Tony Hernandez,” and Laroche replied and suggested a
convenient time. In October 2017, Special Agent Fraga, who attended the proffer,
exchanged text messages with Retureta about meeting for lunch to discuss Mr.
Hernandez, among other issues.
On November 23, 2018, DEA agents, including one who had attended the
proffer, arrested Mr. Hernandez at Miami International Airport, where he was
changing planes to return to Honduras. Mr. Hernandez was already indicted.
4
At approximately 11:10 a.m., agents transferred Mr. Hernandez to a private
room. DEA Special Agent Sandalio Gonzalez asked Mr. Hernandez for the code to
unlock his iPhone, which he provided. Gonzalez explained that Mr. Hernandez was
under arrest for drug trafficking and making false statements to federal officials, and
could cooperate with law enforcement or not, or plead guilty to the charges or not.
The defendant responded, in substance, that he wanted to cooperate with the
agents, “and specified that he told his lawyer over a year ago, that he wanted to
cooperate and he (lawyer) told him that he would speak with prosecutors, but never
notified HERNANDEZ-Alvarado.” (Emphasis added). SA Gonzalez “asked
HERNANDEZ-Alvarado if he presently had a lawyer and HERNANDEZ-Alvarado
stated that he had not spoken to ‘Manny’ in over a year but would like to call him
first.” (Emphasis added)1.
Agent Gonzalez contacted AUSAs Emil Bove and Laroche who gave him
permission to call Retureta. Gonzalez placed calls to Retureta at a number in
Washington D.C., at 11:36 a.m. and 11:38, with no answer. He did not leave
messages.
Gonzalez consulted AUSAs Bove and Laroche again after these unanswered
calls. They told him to stop any communications. Gonzalez informed Mr.
Hernandez that he was to be processed and taken to jail without an interview, and
Mr. Hernandez responded that he wanted to begin cooperating. Gonzalez placed
1 At trial, SA Gonzalez testified that “Mr. Retureta” was “an attorney that the
defendant asked that I call prior to him cooperating.” (A-751-52.)
5
another call to Retureta at 11:54, with no answer. Gonzalez asked Hernandez
again, with input from the AUSAs, if he “presently had legal representation,” to
which Hernandez replied that he “did not know.”
Gonzalez informed Mr. Hernandez that if he had an attorney, he would be
entitled to consult that attorney prior to cooperating, but that if he wanted to speak
with agents he would have to agree to this “voluntary participation” in a recorded
interview. He also said that Mr. Hernandez was not being tricked or pressured, and
agreeing to this interview would not result in his release or “avoid him going to jail
later that day.”
At about 12:20 pm, Mr. Hernandez was taken to the DEA office, processed,
and, at 12:37 p.m., given Miranda warnings in Spanish. He signed the advice of
rights forms and agreed to speak to the agents. Special Agent Gonzalez told the
defendant, “[A]s I told you, you can add a lawyer to the process at any time.”
The agent began by saying he wanted to repeat what Mr. Hernandez had told
him earlier, to wit: “That you wish to proceed and make a statement and talk with
us. You do not have legal representation today … now. Huh … You will be talking
to a lawyer in the future, but you wish to start this process now.” Mr. Hernandez
replied, “That’s right. I want to start.” Gonzalez noted, “And we called Mr.
Retureta several times but he did not answer. But you still wish to go ahead.” Mr.
Hernandez answered, “I do.”
Several times during the interrogation, Mr. Hernandez described
conversations he had with Retureta (“Manny”) after the proffer in October 2016. He
6
said that, “what I was discussing with Retureta was that I was prepared to come
over here in case you all wanted to continue having some clarifications or for me to
continue answering questions from you all. And at that time, why, the lawyer told
me: ‘Let’s wait; they will let us know.’” (emphasis added.) Mr. Hernandez said he
had last talked to Retureta about one year earlier, to which Gonzalez replied, “Then
he is not your lawyer today … until you talk to him again.” Noting he had “lost
touch with him,” Mr. Hernandez said, “Let’s hope that he …that he will join the
process.”
Gonzalez warned him that he could not expect to “walk free today” by
minimizing his relationships with drug traffickers. Mr. Hernandez replied, “Yes,
that’s what I would tell Manny. ‘Manny,’ I says to him, ‘how did I participate in
those comings and goings, in whatever. I don’t know. You tell me…’”
Gonzalez said he understood if Mr. Hernandez was afraid of speaking about
certain people. Mr. Hernandez replied that some traffickers who had been extradited
to the United States had threatened that someone in his family would pay for what
his brother, the Honduran President, “did by sending them over here.” He continued,
“Yes, that’s why when I was telling Manny: ‘Manny, people know because they went
on the media saying that I had come over.’ That they said I never came.”
Accused by Gonzalez of not being forthcoming about the traffickers with
whom he had worked, Mr. Hernandez said did not want to “invent” the names of
people and say he had worked with them. He explained, “That’s why, since the last
7
time, I … ‘I want to know,’ I says to Manny. ‘What can I support? What I am being
accused of? To be able to …’”
At approximately 2:41 p.m., after the conclusion of the interrogation,
Retureta sent an email to SA Fraga stating, “I understand you and yours are busy
with Tony Hernández?” At about 2:53, Retureta sent an email to AUSA Laroche
stating, “Please note that I continue to represent [the defendant]. Please make any
necessary inquiries through me as he does not wish to speak without defense
counsel present.” At approximately 3:17, Retureta emailed SA Gonzalez, stating, “I
understand Tony Hernandez was arrested in Miami. You involved? Is Hernandez
detained in Miami? Please note that I continue to represent him and I ask that
there be no questioning outside my presence.”
b. The district court’s decision
The district court denied Mr. Hernandez’s motion to suppress the statement.
It disregarded the argument alleging violation of the no-contact rule, based on
United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988), explaining, “New York
follows a different rule,” and New York Disciplinary “Rule 4.2(a) requires actual
knowledge of the fact in question rather than reasonable belief.” The court held the
government did not have such actual knowledge that Retureta represented Mr.
Hernandez.
The court also rejected the Fifth and Sixth Amendment arguments, finding
there was “no unambiguous invocation on the right to counsel,” and there was a
“knowing and voluntary and intelligent waiver of Miranda.” (A-216.)
8
2. The out-of-court incident and conversation between jurors
a. Factual background
During the testimony of a witness, the court received a note from an
alternate juror, “Juror 14,” stating:
Dear Judge Castel:
Given the uncertain outcome of this trial and the
severe consequences of a negative outcome for both the
defendant as well as the Honduran government and the
country's drug traffickers it occurred to me that it would
be in the interests of several parties to interfere with the
jury either in the form of persuasion or worse. From what
I have seen in the trial thus far, the traffickers have the
means, money, and motive to try something nefarious.
What, if anything, has been discussed on the
government's side to assure the jury's safety?
This in no way affects my impartiality, nor have I
mentioned it to the other jury members. I thank you for
your consideration.
The note continued on the reverse side of the original note:
Since writing this note yesterday, myself and at
least one other juror noticed we were photographed at
close range just outside the courthouse by what appeared
to be an individual with no media logo or identification.
The photo was taken on a cellphone.
(Emphasis added.)
Overnight, the government and defendant conferred. They advised the court
that they agreed the juror should be dismissed. However, defense counsel asked the
court to enquire regarding the second juror who observed the individual taking cell
phone photos, and the discussion between the two jurors regarding their safety
9
concerns; defense counsel specifically asked the court to question Juror 14 regarding
his communications with the other juror.
b. The district court’s denial of the request to investigate
The court denied the request, saying there was “no indication that he
discussed his theories about somebody trying something nefarious with any other
juror.” The court said it did not wish to conduct an inquiry and create the seeds of
concern where none existed. The court dismissed the juror who wrote the note, but
did not ask him about the second or any other jurors.
B. The Appeal and Petition for Rehearing in the Second Circuit
Mr. Hernandez appealed to the Second Circuit and argued that the district
court erred when it denied the motion to suppress the statement. The Second
Circuit declined to decide whether New York’s no-contact rule applied when
“attorneys merely should have known that a witness was represented by counsel,”
as there was “insufficient evidence in the record to support even that form of
constructive knowledge here.” (App2. at 9a.) While the prosecutors knew Retureta
had represented Mr. Hernandez at the “proffer having to do with events underlying
the present indictment,” they had not heard from him in roughly a year and a half.
Further, Mr. Hernandez said “he had lost touch with Retureta and did not know if
he had any legal representation.” Thus, The Second Circuit could not conclude the
2 References to “App.” are to the Appendix to this petition.
10
prosecutors “should have known better than [Mr. Hernandez] himself whether he
was represented by Retureta.” (Id.)
As to the related, right to counsel, issue, the Second Circuit found that,
“[a]ssuming for the sake of argument that [Petitioner]’s statement that he would
like to call Retureta – in response to the question of whether he had a lawyer – was
a clear and unequivocal invocation of his right to counsel, he then voluntarily
reinitiated conversation with the DEA agents.” (App. at 10a.) The Court found he,
and not the agents, initiated the questioning when, “after the agents told him he
would be processed without an interview, he told the agents – without being asked
any further questions – that he wanted to speak to them ‘at th[at] moment and
start cooperating.’” (Id.) The Panel noted he then signed a waiver of his Miranda
rights, voluntarily and knowingly waiving his right to counsel. (Id.)
Mr. Hernandez also argued3 that the district court’s refusal to further
investigate the jurors’ communications deprived him of his right to be tried by an
impartial jury and due process. The Second Circuit found “the note did not evidence
any jury problems beyond the alternate juror’s own individual concerns about
‘nefarious’ traffickers.” (App. at 14a.) Further, “Nor does the note’s additional
mention of ‘at least one other juror notic[ing]’ being photographed suggest that any
discussion took place among the jury or evidence any other improper jury
communications.” (App. at 15a.) The Second Circuit said “questioning the alternate
juror outside the presence of the rest of the jury as to whether he discussed his
3 Mr. Hernandez also raised a fourth ground not before the Court.
11
concerns with others, before dismissing him,” might have “provided additional
assurance that the jury had not been tainted in any way without sowing
unnecessary concerns.” (Id.) However, The Second Circuit concluded it was not an
abuse of discretion not to do so, nor outside the “broad flexibility” afforded a district
court to deal with such matters. (Id.)
Mr. Hernandez sought panel rehearing as to all three issues, but his
application was denied. (App. at 56a.)
REASONS FOR GRANTING THE PETITION
I.
THE SECOND CIRCUIT ERRED WHEN IT HELD THAT
PROSECUTORS DID NOT HAVE CONSTRUCTIVE KNOWLEDGE
THAT MR. HERNANDEZ WAS REPRESENTED BY COUNSEL AND
THEREBY FAILED TO FIND SUCH CONSTRUCTIVE KNOWLEDGE
SUFFICIENT TO ESTABLISH A VIOLATION OF THE NO-CONTACT
RULE AS A MATTER OF FEDERAL LAW. GRANTING CERTIORARI
WILL ALLOW THE COURT TO DECIDE THIS ISSUE OF FIRST
IMPRESSION.
Title 28, United States Code, section 530B(a) provides, "An attorney for the
Government shall be subject to State laws and rules, and local Federal court rules,
governing attorneys in each State where such attorney engages in that attorney's
duties, to the same extent and in the same manner as other attorneys in that
State." Section 530B(b) states, “The Attorney General shall make and amend rules
of the Department of Justice to assure compliance with this section.”
12
The "no-contact" rule of New York's Code of Professional Responsibility,
promulgated in 2009, states:
Communication With Person Represented By Counsel
(a)
In representing a client, a lawyer shall not
communicate or cause another to communicate about the
subject of the representation with a party the lawyer
knows to be represented by another lawyer in the matter,
unless the lawyer has the prior consent of the other
lawyer or is authorized to do so by law.
N.Y. Rules of Prof'l Conduct 4.2(a), 22 N.Y.C. R.R. § 1200 ("Rule 4.2").
As the Second Circuit noted, while the no-contact rule is a New York attorney
disciplinary rule, interpretation of the rule “‘as it applies to federal criminal law
practice should be and is a matter of federal law.’” (App. at 9a) (quoting Grievance
Comm. for S. Dist. of N.Y. v. Simels, 48 F.3d 640, 645-46 (2d Circuit 1995).
Here, Mr. Hernandez argued the district court applied the wrong standard
when it held that prosecutors did not have actual knowledge that he was
represented by counsel, as the rule is violated when an attorney knows or should
know a party is represented by counsel. The Second Circuit declined to resolve the
issue – a matter of first impression under federal law - because it found “insufficient
evidence in the record to support even that form of constructive knowledge here.”
(App. at 9a.)
Thus, based on its cramped reading of Rule 4.2, the Second Circuit declined to
address an issue with profound consequences for both Mr. Hernandez and others
represented by counsel in federal criminal cases, for which there is no federal
precedent.
13
The commentary to Rule 4.2 demonstrates it should be applied broadly:
This Rule contributes to the proper functioning of the
legal system by protecting a person who has chosen to be
represented by a lawyer in a matter against possible
overreaching by other lawyers who are participating in
the matter, interference by those lawyers with the clientlawyer relationship, and un-counseled disclosure of
information relating to the representation.
N.Y. R. Prof. Conduct 4.2 cmt. 1.
Comment 3 states the rule applies “even though the represented party
initiates or consents to the communication.” It also provides, “A lawyer must
immediately terminate communication with a party if after commencing
communication, the lawyer learns that the party is one with whom communication
is not permitted…” N.Y. R. Prof. Conduct cmt. 3.
Comment 5 describes communications that are permitted, including
investigative activities conducted by government lawyers or their agents prior to
the commencement of criminal proceedings. However, it notes,
When communicating with the accused in a criminal
matter, a government lawyer must comply with this Rule
in addition to honoring the state or federal rights of the
accused. The fact that a communication does not violate a
state or federal right is insufficient to establish that the
communication is permissible under this Rule. This Rule
is not intended to effect any change in the scope of the
anti-contact rule in criminal cases.
N.Y. R. Prof. Conduct 4.2 cmt. 5.
Rule 4.2 and the commentary evince a strong intent to prevent exactly what
happened here. The government knew Retureta had represented Mr. Hernandez at
14
the proffer, which concerned the same subject matter as the indictment and
intended interrogation, and that he had continued to reach out to them about Mr.
Hernandez’s desire to cooperate over the following year. They were not told that he
no longer represented Mr. Hernandez. One of the first things Mr. Hernandez said to
the agent was that, while he wanted to cooperate, he wanted to call his lawyer first.
Once the interrogation started, Mr. Hernandez said he hoped his lawyer would join
them during it. He described numerous conversations he had had with his lawyer
during the interim, including conversations about his willingness and desire to
cooperate.
Any ambiguity about Retureta’s representation was introduced by the agent.
If the government had not spoken with Retureta in a year and a half, and Mr.
Hernandez had lost touch with him, that is because the government had decided not
to have Mr. Hernandez cooperate, and had not contacted Retureta. Retureta had
not had any new information to convey to Mr. Hernandez because the government
had not responded to him.
That the prosecutors knew Mr. Hernandez was represented by counsel is
most clearly demonstrated by the fact that they initially instructed the agents not
to speak to him.
The decision by the Second Circuit renders the no-contact rule
unenforceable, at least where an attorney represents a client at a proffer conducted
before charges are filed (at which point the attorney can file a notice of appearance).
Under the Order, such an attorney would have to constantly advise the government
15
that the attorney still represents the client, or face the possibility that the
government could interrogate the client without counsel present and then claim
they no longer “knew,” within the meaning of Rule 4.2, that the client was still
represented by the attorney.
By granting this petition, the Court would be able to clarify that the nocontact rule in New York state, as applied in a federal prosecution, is violated when
a prosecutor questions, or authorizes agents to question, an indicted defendant the
prosecutor knows, or should know, is represented by counsel.
II.
THE SECOND CIRCUIT ERRED WHEN IT FOUND THAT, EVEN
ASSUMING HE UNEQUIVOCALLY INVOKED IT, MR.
HERNANDEZ’S RIGHT TO COUNSEL WAS NOT VIOLATED, AS HE
WAIVED IT BY REINITIATING CONVERSATION WITH THE AGENT.
TO THE CONTRARY, MR. HERNANDEZ RESPONDED TO
STATEMENTS BY THE AGENT THAT WERE LIKELY TO ELICIT A
RESPONSE FROM HIM.
The record establishes that Mr. Hernandez’s statement was elicited within
minutes of invoking his right to counsel and in response to a statement by the
agent. Yet, the Second Circuit found that, “[a]ssuming for the sake of argument that
[Mr. Hernandez]’s statement that he would like to call Retureta – in response to the
question of whether he had a lawyer – was a clear and unequivocal invocation of his
right to counsel, he then voluntarily reinitiated conversation with the DEA agents.”
(App. at 10a.) The Second Circuit found he, and not the agents, initiated the
questioning when, “after the agents told him he would be processed without an
interview, he told the agents – without being asked any further questions – that he
16
wanted to speak to them ‘at th[at] moment and start cooperating.’” (Id.) The Second
Circuit noted he then signed a waiver of his Miranda rights, voluntarily and
knowingly waiving his right to counsel. (Id.)
Once an individual in custody invokes his right to counsel, interrogation
"must cease until an attorney is present"; at that point, "the individual must have
an opportunity to confer with the attorney and to have him present during any
subsequent questioning." Miranda v. Arizona, 384 U.S. 486, 474 (1966). In
Edwards v. Arizona, 451 U.S. 477, 485 (1981), the Court found it "inconsistent
with Miranda and its progeny for the authorities, at their instance, to re-interrogate
an accused in custody if he has clearly asserted his right to counsel."
The Edwards Court noted, "When an accused has invoked his right to have
counsel present during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further police-initiated
custodial interrogation even if he has been advised of his rights." Id. at 484.
Further, an accused who requests an attorney, "having expressed his desire to deal
with the police only through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police." Id. at 484-485.
Edwards is "designed to prevent police from badgering a defendant into
waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S. 344,
17
350, (1990); see also, Minnick v. Mississippi, 498 U.S. 146, 150-51, 111 S. Ct. 486,
489 (1990).
Mr. Hernandez did not re-initiate the questioning. Rather, he said he wanted
to speak to the agents and begin cooperating after he had invoked his right to
counsel and in response to a statement by the agent. This is clear from the context
in which the statement was made.
The conversation began with the agent telling Mr. Hernandez what he was
charged with, and saying he could cooperate with law enforcement or not, or plead
guilty or not (the record does not show the agent said he could fight the charges and
go to trial or not). Mr. Hernandez responded that he had told his lawyer over a year
previously that he wanted to cooperate and would speak with prosecutors. Asked if
he presently had an attorney, Mr. Hernandez responded that he had not spoken
with “‘Manny’ in over a year but would like to call him first.” (At trial, Gonzalez
testified that “Mr. Retureta was “an attorney that the defendant asked that I call
prior to him cooperating.”)
When his minimal efforts to reach Retureta were unsuccessful, the
prosecutors told Gonzalez to cease communications. Gonzalez told Mr. Hernandez
that he would be processed and taken to jail without being interviewed, and Mr.
Hernandez responded by saying that he wanted to begin cooperating.
In the context of the conversation – in which the agent brought up the
possibility of cooperation and Mr. Hernandez said he wanted do so after speaking to
his attorney- the statement that Mr. Hernandez would be taken to jail without
18
being interviewed was likely intended to elicit the response it did elicit from Mr.
Hernandez; i.e., it was intended to push Mr. Hernandez to revoke his request for
counsel. In essence, the agent told Mr. Hernandez: If you want to cooperate, now is
the time to do it.
Once Mr. Hernandez invoked his right to counsel (and confirmed that he was
represented by counsel), the agents were required to stop speaking to him. Once
the right to counsel has attached and been invoked, law enforcement must honor
it. This means more than simply that law enforcement cannot prevent the accused
from obtaining the assistance of counsel. The Sixth Amendment also imposes on the
State an affirmative obligation to respect and preserve the accused's choice to seek
this assistance. Maine v. Moulton, 474 U.S. 159, 170-71, 106 S. Ct. 477, 484 (1985).
At the very least, the prosecutor and police have an affirmative obligation not to act
in a manner that circumvents and thereby dilutes the protection afforded by the
right to counsel. Id.
Instead, they began to muddy the waters by repeatedly asked Hernandez
whether he had a lawyer, until, confused by the agents’ explanation, and after being
prompted by the agent, Mr. Hernandez repeated what the agent said - that he did
not have a lawyer present, so he did not have a lawyer. Yet, he said, “Let’s hope that
he …that he will join the process.”
The lapse of one year since Mr. Hernandez had spoken to Retureta did not
mean that Retureta no longer represented him. Rather, it was due to the fact that
19
the government had not been in touch with him, and there was nothing to report to
Mr. Hernandez.
The agents misled Mr. Hernandez, by saying that because Retureta was not
present, he was not Mr. Hernandez’s lawyer. The agent repeated this several times,
before and during the interview. Gonzalez started the interview saying that
because Retureta did not answer his phone, “You do not have legal representation,
today ... now.” He said that even though Retureta is his lawyer, “he is not your
lawyer today … until you talk to him again.” (Emphasis added.) The agent then
elicited a Miranda waiver based on these false representations.
Waivers of counsel must not only be voluntary, but must also constitute a
knowing and intelligent relinquishment or abandonment of a known right or
privilege, which depends in each case, "upon the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the
accused." Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Fare v. Michael C., 442 U.S.
707, 724-725 (1979).
Because Mr. Hernandez’s request for counsel was deliberately ignored, and
Hernandez was misled into believing that his lawyer’s actual presence had any
bearing on his actual representation, any waiver of his right to counsel was not
knowing or voluntary.
While a defendant may waive his right to counsel if he reinitiates discussions
with law enforcement, the decision must be his and not the product of undue
influence. For example, in Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989),
20
the defendant indicated that he did not want to answer questions and preferred
that law enforcement return later. The prosecutor told Campaneria that if he
wanted to talk with them, "now was the time to do it."
Under these circumstances, the Second Circuit stated “we cannot say that
Campaneria's invocation of his right to remain silent was scrupulously honored.” Id.
While the defendant was clear in this circumstance, “[The prosecutor]'s remark that
‘If you want to talk to us, now is the time to do it’ was not aimed at resolving any
ambiguity in Campaneria's statement, but rather at changing his mind. This is
precisely the sort of conduct the prophylactic rule seeks to prevent.” Id.
This is precisely the case here. The agent did not question Mr. Hernandez to
clarify whether Retureta still represented him, but told Mr.Hernandez that since
his attorney was not present, that he did not have a lawyer. This was clearly
intended to change Mr. Hernandez’s mind and convince him to waive his Miranda
rights.
Because Hernandez unambiguously invoked his right to counsel, his
subsequent Miranda waiver was neither voluntary nor knowing. Granting
certiorari will allow the Court to clarify that the right to counsel is violated when
government agents do not honor a defendant’s invocation of his right to counsel but
instead continue to engage him in conversation likely to elicit a response and
subsequent waiver.
21
III.
THE SECOND CIRCUIT ERRED WHEN IT FOUND THE DISTRICT
COURT ENSURED MR. HERNANDEZ RECEIVED A TRIAL BY AN
IMPARTIAL JURY AND DUE PROCESS WHEN, AFTER DISMISSING
AN ALTERNATE JUROR, IT DENIED A REQUEST TO DETERMINE
WHETHER ANOTHER JUROR’S IMPARTIALITY HAD BEEN
TAINTED IN THE SAME WAY AND WHETHER THE TWO JURORS
HAD DISCUSSED THEIR COMMON SAFETY CONCERNS.
During trial, the court received a note from an alternate juror expressing
concern for his safety, given the nature of the case, and saying that he and at least
one other juror had noticed someone who did not appear to be from the media
taking their pictures. The district court granted the request of both parties to
dismiss the alternate juror, but denied Mr. Hernandez’s request to investigate to
determine if the second juror – and perhaps other jurors – had also been impacted.
The Second Circuit found “the note did not evidence any jury problems beyond
the alternate juror’s own individual concerns about ‘nefarious’ traffickers.” (App. at
14a.) Further, “Nor does the note’s additional mention of ‘at least one other juror
notic[ing]’ being photographed suggest that any discussion took place among the
jury or evidence any other improper jury communications.” (App. at 15a.) The Panel
said “questioning the alternate juror outside the presence of the rest of the jury as
to whether he discussed his concerns with others, before dismissing him,” might
have “provided additional assurance that the jury had not been tainted in any way
without sowing unnecessary concerns.” (Id.) However, the Panel concluded it was
not an abuse of discretion not to do so, nor outside the “broad flexibility” afforded a
district court to deal with such matters. (Id.)
22
A defendant has a constitutional right under the Sixth Amendment to be
tried by an impartial jury, "unprejudiced by extraneous influence, and when
reasonable grounds exist to believe that the jury may have been exposed to . . . an
[improper] influence, the entire picture should be explored. Often, the only way this
exploration can be accomplished is by asking the jury about it." United States v.
Moten, 582 F.2d 654, 664 (2d Cir. 1978) (internal quotation marks and citations
omitted) (citing Remmer v. United States, 350 U.S. 377, 379 (1956).
Concerns like those here also implicate a defendant’s right to due process
under the Fifth Amendment. This Court has held, “Due process means a jury
capable and willing to decide the case solely on the evidence before it, and a trial
judge ever watchful to prevent prejudicial occurrences and to determine the effect of
such occurrences when they happen. Such determinations may properly be made at
a hearing.” Smith v. Phillips, 455 U.S. 209, 217 (1982).
Thus, a district court has a duty to investigate where there is evidence of
juror bias, United States v. Schwarz, 283 F.3d 76, 97 (2d Cir. 2002), and upon
learning about an unauthorized communication, a trial judge must investigate to
determine whether a juror's ability to perform her duty impartially has been
adversely affected. United States v. Ruggiero, 928 F.2d 1289, 1300 (2d Cir. 1991);
see also United States v. Aiello, 771 F.2d 621, 629 (2d Cir. 1985).
The court’s denial of Mr. Hernandez’s request to conduct an investigation is
hard to understand. The court agreed with the parties and dismissed Juror 14,
based on his note indicating he had security concerns because of the nature of the
23
case, which were heightened when he noticed someone taking his picture who did
not appear to be from the media. While the first part of Juror 14’s note said he had
not communicated his safety concerns to other jurors (prior to being photographed),
the second part of the note indicated at least one other juror had also noticed his
picture being taken.
Since Juror 14 was aware of this, he must have spoken to “at least one other”
juror about it. This was sufficient by itself to require the court to conduct an
investigation. It also raised the likelihood that two jurors, sitting in a case like this,
and sharing their observations about being photographed by a person who did not
appear to be from the media, would have shared their security concerns.
The court was required to determine if the concerns that had justified
dismissing Juror 14 made it necessary to also dismiss the other juror. Since Juror
14 said “at least” one other juror had also noticed themselves being photographed,
the court should also have tried to determine if there were other jurors similarly
affected. But the court conducted no such inquiry.
Further, if the juror or jurors believed the photographer was acting on Mr.
Hernandez’s behalf, that belief would have tended to compromise the juror's ability
to function as a fair and impartial juror. See United States v. Dutkel, 192 F. 3d 893,
897 (9th Cir. 1999) ("Where the intrusion is (or is suspected to be) on behalf of the
defendant raising the claim of prejudice, the presumption arises automatically
because jurors will no doubt resent a defendant they believe has made an improper
approach to them.")
24
Finally, while the court was concerned that an inquiry might have raised
“seeds of concern” where none existed, the court could simply have asked Juror 14,
who was going to be dismissed anyway, about what discussions he had had with
other jurors. While the answer might have raised the need for further questioning,
potentially of other jurors, an initial inquiry of Juror 14 would not have had any
such potential, negative consequences.
Defense counsel made a clear and timely request for a further investigation
that was denied by the court. Consequently, Mr. Hernandez’s constitutional rights
to be tried by an impartial jury and to due process were violated.
Granting certiorari will allow the Court to clarify that, while a district court
is given wide latitude to deal with situations in which a juror’s impartiality may be
compromised, its discretion is not unlimited, and a court’s obligation to ensure a
defendant receives a trial by an impartial jury and due process is paramount.
25
CONCLUSION
For these reasons, a writ of certiorari should issue to review the judgment
and opinion of the Second Circuit, and upon such review, the convictions should be
vacated, the case should be remanded for further proceedings, and the courts below
should be directed to suppress Mr. Hernandez’s statement.
Respectfully submitted,
/s/ Jesse M. Siegel
JESSE M. SIEGEL
Attorney of Record for Petitioner
Juan Antonio Hernandez Alvarado
299 Broadway, Suite 800
New York, NY 10007
212-207-9009
jessemsiegel@aol.com
June 10, 2024
26
APPENDIX
i
TABLE OF APPENDICES
Page
O R D E R O F T H E U N I T E D S TAT E S C O U RT O F
A P P E A L S F O R T H E S E C O N D C I R C U I T, F I L E D
JANUARY 22, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
JUDGMENT OF THE UNITED STATES DISTRICT COURT
F O R T H E S O U T H E R N D I S T R I C T O F N E W YO R K ,
FILED MARCH 31, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29a
T RA N S C R I P T E XC E R P T O F T H E U N I T E D S TAT E S
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, FILED OCTOBER 30, 2019 . . . . . . . . . . . . . . . . . . . 42a
T RA N S C R I P T E XC E R P T O F T H E U N I T E D S TAT E S
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, FILED JULY 8, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46a
ORDER OF THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, FILED MARCH 12, 2024 . . . . . . . . 56a
Case 21-885, Document 188, 01/22/2024, 3605096, Page1 of 28
21-885-cr (L)
United States v. Hernandez
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 22nd day of January, two thousand twenty-four.
PRESENT:
GUIDO CALABRESI,
ALISON J. NATHAN,
Circuit Judges.
SARALA V. NAGALA,
District Judge.
_____________________________________
United States of America
Appellee,
v.
No. 21-885-cr (L),
22-334 (Con)
Victor Hugo Diaz Morales, AKA Victor
Hugo Villegas Castillo, AKA Rojo, Mario
Jose Calix Hernandez, Mauricio
Hernandez Pineda, Amado Beltran
1a
Case 21-885, Document 188, 01/22/2024, 3605096, Page2 of 28
Beltran, AKA Don Amado, Otto Rene
Salguero Morales, AKA Otto Salguero,
Ronald Enrique Salguero Portillo, AKA
Ronald Salguero, Fernando Felix
Rodriguez, AKA Don Fernando,
Defendants,
Juan Antonio Hernandez Alvarado, AKA
Tony Hernandez, Geovanny Fuentes
Ramirez, AKA Sealed Defendant 1,
Defendants-Appellants.
_____________________________________
FOR DEFENDANT-APPELLANT
JUAN ANTONIO HERNANDEZ
ALVARADO:
JESSE M. SIEGEL, Law Office of Jesse
Siegel, New York, NY.
FOR DEFENDANT-APPELLANT
GEOVANNY FUENTES RAMIREZ:
JAY S. OVSIOVITCH, Federal Public
Defender’s Office, Western District of
New York, Rochester, NY.
FOR APPELLEE:
JACOB H. GUTWILLIG (Jason Richman,
Hagan Scotten, on the briefs), Assistant
United States Attorneys, for Damian
Williams, United States Attorney for
the Southern District of New York,
New York, NY.
2
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Case 21-885, Document 188, 01/22/2024, 3605096, Page3 of 28
Appeal from judgments of the United States District Court for the Southern
District of New York (Castel, J.).
UPON
DUE
CONSIDERATION,
IT
IS
HEREBY
ORDERED,
ADJUDGED, AND DECREED that the judgments of the district court are
AFFIRMED.
In these consolidated appeals, Defendants-Appellants Juan Antonio
Hernandez Alvarado (Hernandez) and Geovanny Fuentes Ramirez (Fuentes
Ramirez) appeal from judgments of the United States District Court for the
Southern District of New York (Castel, J.) convicting them following separate jury
trials for their roles in a large-scale conspiracy to traffic cocaine from Honduras
into the United States.
On March 31, 2021, Hernandez was convicted of
conspiring to import cocaine into the United States in violation of 21 U.S.C. § 963,
using and conspiring to use machineguns in furtherance of that conspiracy in
violation of 18 U.S.C. § 924(c) and (o), and making false statements to law
enforcement in violation of 18 U.S.C. § 1001.
On February 8, 2022, Fuentes
Ramirez was similarly convicted of conspiring to import cocaine into the United
States and using and conspiring to use machineguns in furtherance of the
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conspiracy, in violation of 21 U.S.C § 963 and 18 U.S.C. § 924(c) and (o). Both were
sentenced principally to life imprisonment followed by a mandatory consecutive
term of 30 years’ imprisonment.
Hernandez and Fuentes Ramirez raise a variety of claims arising from their
separate trials.
We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal, to which we refer only as necessary to
explain our decision.
I.
Hernandez’s Trial
Hernandez advances three claims on appeal that he argues warrant vacating
his conviction. First, he argues that statements he made without counsel during
a post-arrest interview were wrongly admitted at trial because the interview
violated professional ethical rules applying to government attorneys, the Fifth
Amendment, and the Sixth Amendment.
Second, he argues that improper
prosecutorial comments during summation deprived him of a fair trial in violation
of due process. And third, he argues that the district court failed to adequately
investigate potential juror misconduct or bias after an alternate juror raised
concerns about his safety in a note to the court. We consider each argument in
turn.
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A. The Post-Arrest Statement
Hernandez was arrested by Customs and Border Patrol agents in 2018 at the
Miami International Airport, having already been indicted. Shortly thereafter, he
gave a recorded interview without counsel to agents from the Drug Enforcement
Administration (DEA), in which he admitted to knowing various drug traffickers
in Honduras and receiving offers to work with them but denied involvement in
any drug trafficking with them. Hernandez unsuccessfully moved to suppress
the interview.
On appeal, Hernandez advances the same arguments for suppression that
the district court rejected. He argues that government attorneys directed the DEA
agents to interview him without counsel present despite knowing he was
represented by counsel, in violation of applicable ethics rules for attorneys, and
that the agents interviewed him without counsel despite his invocation of his right
to counsel under the Fifth and Sixth Amendments. In an appeal challenging the
denial of a suppression motion, we review the district court’s factual findings for
clear error and its legal holdings de novo. United States v. Stewart, 551 F.3d 187,
190-91 (2d Cir. 2009).
The no-contact rule generally prohibits an attorney from directly contacting
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a party regarding a matter when the attorney knows the party is represented by a
lawyer in that matter. See United States v. Hammad, 858 F.2d 834, 837 (2d Cir.
1988). In Hammad, we held that suppression can be warranted for statements
obtained by prosecutors in violation of the no-contact rule. See id. at 840.
In addition, the Fifth Amendment provides a right to counsel in custodial
interrogations and the Sixth Amendment provides a right to counsel in critical
proceedings
(including
interrogations)
after
criminal
proceedings
have
commenced.
See Edwards v. Arizona, 451 U.S. 477, 481-82 (1981); Montejo v.
Louisiana, 556 U.S. 778, 786 (2009). An individual can waive the right to counsel
under both amendments, if that waiver is knowing, voluntary, and intelligent.
See United States v. Gonzalez, 764 F.3d 159, 166 (2d Cir. 2014); Montejo, 556 U.S. at
786. Moreover, even after invoking the right to counsel under either amendment,
an individual may reinitiate interrogation and then validly waive the right. See
Montejo, 556 U.S. at 798; Gonzalez, 764 F.3d at 166 (citing Edwards, 451 U.S. at 485).
Here, after Hernandez told the DEA agents who arrested him that he wished
to cooperate, the agents asked him, in Spanish, if he currently had a lawyer.
Hernandez replied that he had not spoken in over a year to Manuel Retureta, an
attorney who represented him in connection with a proffer to the government that
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occurred approximately two years prior, but that he “would like to call him first.”
Hernandez App’x at 116. After getting permission from two Assistant United
States Attorneys (AUSAs), the agents then attempted to call Retureta but were
unable to reach him. The agents consulted with the AUSAs again, who advised
them not to interview Hernandez at that time.
In addition to knowing of
Retureta’s representation of Hernandez at the earlier proffer, one of the AUSAs
had also received an email from Retureta about Hernandez roughly a year and a
half before the arrest.
However, after the agents informed Hernandez that they were going to
process him and take him to jail without an interview, Hernandez “stated that he
wanted to speak with Agents at this moment and start cooperating.” Id. At that
point, the agents again tried unsuccessfully to reach Retureta. They again asked
if Hernandez currently had a lawyer, to which he responded that he did not know.
With this information, the AUSAs then told the agents to proceed with an
interview. The agents advised Hernandez of his rights, Hernandez stated that he
understood his rights, and Hernandez read and signed a form waiving his Miranda
rights before proceeding with the interview.
When the videotaped interview began, the agents confirmed, on the record,
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the bottom line of their earlier exchange with Hernandez. One stated, “I just want
. . . to repeat here what you told me earlier. That you wish to proceed and make
a statement and talk with us.” Hernandez App’x at 55. The agent continued:
“You do not have legal representation today . . . now. . . . You will be talking to a
lawyer in the future, but you wish to start this process now.” Id. Hernandez
then replied: “That’s right. I want to start.” Id. On this record, we agree with
the district court that the post-arrest interview should not have been suppressed.
First, admitting statements from the interview did not run afoul of Hammad.
The relevant rule governing the AUSAs’ conduct prohibits a lawyer from
communicating about a matter “with a party the lawyer knows to be represented
by another lawyer in the matter.” N.Y. R. Prof’l Conduct 4.2(a). A comment to
the rule clarifies that “know” here means actual knowledge: “This means that the
lawyer has actual knowledge of the fact of the representation; but such knowledge
may be inferred from the circumstances.”
Id. cmt. 8; see also N.Y. R. Prof’l
Conduct 1.0(k) (“‘Knowingly,’ ‘known,’ ‘know,’ or ‘knows’ denotes actual
knowledge of the fact in question.”).
Based on the record of the interactions
between the AUSAs, the DEA agents, and Hernandez, as well as statements made
by the AUSAs on the record in the suppression hearing, the district court
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concluded that the attorneys did not have actual knowledge that Hernandez had
legal counsel at the time—a finding with which we see no clear error.
Hernandez cites one case from an intermediate New York appellate court
suggesting that, notwithstanding the text of the rule, it can be violated when
attorneys merely should have known that a witness was represented by counsel.
See In Re Izzo, 155 A.D.3d 109, 111-12 (N.Y. App. Div. 2017); but see Grievance Comm.
for S. Dist. Of N.Y. v. Simels, 48 F.3d 640, 645-46 (2d Cir. 1995) (concluding that the
interpretation of New York’s no-contact rule “as it applies to federal criminal law
practice should be and is a matter of federal law”). We do not need to resolve this
issue, because there is insufficient evidence in the record to support even that form
of constructive knowledge here. The government attorneys knew that Retureta
had represented Hernandez in a proffer having to do with events underlying the
present indictment, but they had not heard from Retureta regarding Hernandez in
roughly a year and a half. And according to Hernandez, he had lost touch with
Retureta and did not know if he had any legal representation. Based on these
facts, we cannot conclude that the AUSAs should have known better than
Hernandez himself whether he was represented by Retureta.
Second, the interview did not violate Hernandez’s right to counsel under
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the Fifth and Sixth Amendments.
Assuming for the sake of argument that
Hernandez’s statement that he would like to call Retureta—in response to the
question of whether he had a lawyer—was a clear and unequivocal invocation of
his right to counsel, he then voluntarily reinitiated conversation with the DEA
agents.
As the district court found, after the agents told him he would be
processed without an interview, he told the agents—without being asked any
further questions—that he wanted to speak to them “at th[at] moment and start
cooperating.” Hernandez App’x at 116. It was thus Hernandez, not the DEA
agents, who initiated the questioning. The record shows that Hernandez then
voluntarily and knowingly waived his right to counsel when he signed a waiver
of his Miranda rights.
See Montejo, 556 U.S. at 786-87 (noting that waiver of
Miranda rights is typically sufficient to waive Sixth Amendment right to counsel).
Statements from the interview were therefore properly admitted at trial.
Cf.
United States v. Gonzalez, 764 F.3d at 166-67 (finding that previously invoked right
to counsel was subsequently waived when defendant reinitiated conversation
with law enforcement).
B. Prosecutorial Misconduct
Hernandez takes issue with some of the remarks made by the prosecution
10
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during summation, claiming that the prosecution improperly attacked the
integrity and motives of defense counsel before the jury. In seeking a new trial
on this alleged prosecutorial misconduct, Hernandez faces a “heavy burden,
because the misconduct alleged must be so severe and significant as to result in
the denial of his right to a fair trial.” United States v. Banki, 685 F.3d 99, 120 (2d
Cir. 2012) (cleaned up). He fails to carry that burden in this case.
“The prosecution and the defense are generally entitled to wide latitude
during closing arguments, so long as they do not misstate the evidence.” United
States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998). Even if the prosecution makes
improper comments, we will reverse only when the comments resulted in
substantial prejudice, which we evaluate based on “the severity of the alleged
misconduct, the measures adopted to cure it, and the certainty of conviction absent
the misconduct.” Id. “[R]arely will an improper summation meet the requisite
level of prejudice.” United States v. Daugerdas, 837 F.3d 212, 227 (2d Cir. 2016)
(quotation marks omitted). Finally, where, as here, a party fails to object to the
remarks, we review for plain error—which in this context means that we will
reverse only if we find “flagrant abuse” that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Carr, 424
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F.3d 213, 227 (2d Cir. 2005) (quotation marks omitted).
On this standard, the prosecution’s comments identified by Hernandez do
not warrant reversal.
The prosecution’s comments to the jury that certain
arguments advanced by defense counsel were “[w]rong,” “just wrong,” and
“[a]bsolutely false,” as well as its comment that “[n]othing that the defense counsel
argues now can change the facts that are in evidence,” reflect permissible advocacy
and argument. Nor did the prosecution overstep by characterizing the defense’s
attacks on witness credibility and chains of custody for physical evidence as
distractions. See United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012) (“[W]e do
not think it improper or excessive, without more, for a prosecutor to criticize
defense arguments as merely being attempts to ‘grasp at straws’ or ‘focus on
distractions.’”); Carr, 424 F.3d at 227 (“[T]he government is allowed to respond to
an argument that impugns its integrity or the integrity of the case . . . .”); United
States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992) (allowing remarks in prosecution’s
initial and rebuttal summations that defense arguments were “‘smoke screens,’
game-playing, distractions, and distortions”).
This was certainly not “flagrant abuse.” Carr, 424 F.3d at 227. We thus
find no violation of Hernandez’s right to a fair trial based on the prosecution’s
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remarks.
C. Investigation of Juror Note
During the trial, an alternate juror transmitted a note to Judge Castel in
which he expressed concerns about the safety of the jury and whether “it would
be in the interests of several parties to interfere with the jury either in the form of
persuasion or worse,” since “the traffickers have the means, money, and motive to
try something nefarious.” Hernandez App’x at 768. The note added, “This in
no way affects my impartiality, nor have I mentioned it to the other jury
members.” Id. Finally, it contained an additional message on the reverse side
apparently added a day later: “Since writing this note yesterday, myself and at
least one other juror noticed we were photographed at close range just outside the
courthouse by what appeared to be an individual with no media logo or
identification.
The photo was taken on a cellphone.”
Id.
The district court
dismissed the alternate juror with the parties’ agreement, but, reasoning that the
juror had not communicated these concerns to any others and “loathe [sic] to
conduct an inquiry which plants the seeds of concern where they may not exist,”
the court did not pursue further investigation into potential jury intimidation or
bias as requested by defense counsel. Id. at 775-78.
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On appeal, Hernandez argues that failure to investigate this matter further
deprived him of his rights to due process and a trial by an impartial jury. “A
district court’s investigation of juror misconduct or bias is a delicate and complex
task.” United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (internal quotation marks
omitted). We review the court’s handling of such matters for abuse of discretion,
aware that the district court “has broad flexibility in such matters . . . .”
Id.
(quotation marks omitted). In particular, the court must balance its obligation to
“investigate and, if necessary, correct a problem” with the need to “avoid tainting
a jury unnecessarily.” Id. at 88. Accordingly, “[i]n this endeavor, sometimes less
is more.”
Id. We hold that the district court did not abuse its discretion in
handling this matter.
Here, the note did not evidence any jury problems beyond the alternate
juror’s own individual concerns about “nefarious” traffickers. The alternate juror
adhered to the instructions of the court, which informed jurors at the outset as
follows: “[I]f it becomes necessary to send the Court a note about something you
saw or heard or about any other matter, do not share the content of the note with
your fellow jurors.”
Hernandez App’x at 233.
The alternate juror’s note
explicitly stated that he had not discussed his safety concerns with anyone else.
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Nor does the note’s additional mention of “at least one other juror
notic[ing]” being photographed suggest that any discussion took place among the
jury or evidence any other improper jury communications. Hernandez App’x at
768.
And questioning jurors about the incident could have unnecessarily
magnified the event, causing more harm than good.
Hernandez suggests that the court should have questioned the alternate
juror outside the presence of the rest of the jury as to whether he discussed his
concerns with others, before dismissing him. This approach could have provided
additional assurance that the jury had not been tainted in any way without sowing
unnecessary concerns. But it was not an abuse of discretion to decline to adopt
that approach, and instead to accept the juror’s representation that he had not
spoken with anyone about his safety concerns—which the note's mention of the
photography incident does not contradict. See Cox, 324 F.3d at 87 (“[A] court
should generally presume that jurors are being honest.”).
In dismissing the
alternate juror without conducting a further investigation into the rest of the jury,
the district court did not exceed the bounds of the “broad flexibility” it is afforded
in managing such matters. Id. at 86 (quotation marks omitted); cf. United States v.
Abrams, 137 F.3d 704, 708 (2d Cir. 1998) (finding no abuse of discretion when
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district court declined further investigation of juror note that “did not explain the
nature of any discussions [among jurors] or even indicate whether such
discussions had taken place”). We therefore reject Hernandez’s argument and,
having rejected all of his arguments on appeal, will affirm his conviction.
II. Fuentes Ramirez’s Trial and Sentence
Fuentes Ramirez also advances three claims on appeal, broadly speaking.
First, he makes several related arguments about the statute of limitations for his
charges.
He claims that the charges against him were time-barred, that the
district court should have instructed the jury on the statute of limitations, and that
his trial counsel was constitutionally ineffective for not requesting a specific jury
instruction on the issue. Second, Fuentes Ramirez argues that the district court
abused its discretion in admitting various pieces of evidence and portions of
testimony.
And third, he argues that his sentence of life imprisonment is
substantively unreasonable. As with Hernandez, we consider each of Fuentes
Ramirez’s arguments but conclude that none is availing.
A. Statute of Limitations Arguments
Fuentes Ramirez makes several related arguments concerning the statute of
limitations for the charges against him. First, he raises a sufficiency challenge,
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claiming that there was not enough evidence at trial for a reasonable jury to
conclude that the cocaine trafficking conspiracy he was accused of participating in
continued into the limitations period. He argues that the government presented
no evidence of acts in furtherance of the conspiracy after 2015, five years before he
was indicted. See 18 U.S.C. § 3282(a) (providing five-year statute of limitations).
He further argues that the conspiracy was abandoned in 2013 after he and coconspirator Leonel Rivera ceased working together and Rivera began cooperating
with the DEA. We review de novo a challenge to the sufficiency of evidence and
“affirm if the evidence, when viewed in its totality and in the light most favorable
to the government, would permit any rational jury to find the essential elements
of the crime beyond a reasonable doubt.” United States v. Yanotti, 541 F.3d 112,
120 (2d Cir. 2008) (quotation marks omitted). We conclude that is the case here.
As Fuentes Ramirez acknowledges, conspiracy is a continuing offense, for
which the statute of limitations does not begin to run until the conspiracy is
completed or abandoned. See United States v. Eppolito, 543 F.3d 25, 46-47 (2d Cir.
2008). Moreover, Fuentes Ramirez concedes that the government did not need to
prove any overt acts for the specific drug conspiracy offense under which he was
charged, let alone overt acts within the limitations period. See United States v.
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Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980); United States v. Salmonese, 352 F.3d
608, 620 (2d Cir. 2003) (“In such cases, once the government proves the
conspiracy’s existence, the scheme’s continued operation into the limitations
period is presumed . . . .”). Thus, whether or not the government proved overt
acts in furtherance of the conspiracy after 2015 is of no moment.
As for Fuentes Ramirez’s abandonment argument, the conspiracy the
government charged and presented evidence to prove was far broader than a
simple partnership between Fuentes Ramirez and Rivera.
There was ample
evidence, such as testimony from cooperating witnesses regarding Fuentes
Ramirez’s activities with an array of traffickers, politicians, and Honduran
officials, from which the jury could reasonably conclude that he was a part of a
broader cocaine trafficking conspiracy, which would not end simply because
Rivera and Fuentes Ramirez ceased working together.
Fuentes Ramirez also argues that the district court erred by failing to
instruct the jury on the statute of limitations, as he requested. “A conviction will
not be overturned for refusal to give a requested charge unless that requested
instruction is legally correct, represents a theory of [the] defense with [a] basis in
the record that would lead to acquittal, and the theory is not effectively presented
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elsewhere in the charge.” United States v. Holland, 381 F.3d 80, 84 (2d Cir. 2004)
(cleaned up). The defendant must also carry the “heavy burden of showing that
the charge given was prejudicial.” United States v. Kukushkin, 61 F.4th 327, 332 (2d
Cir. 2023) (internal quotation marks omitted).
After the close of evidence, Fuentes Ramirez’s counsel moved for a
judgment of acquittal, arguing that no evidence demonstrated “any illegal activity
by Mr. Fuentes in the statute of limitations period.” Fuentes Ramirez App’x at
280.
After the district court denied the motion, Fuentes Ramirez’s counsel
requested that the court instruct the jury on the statute of limitations based on this
earlier argument. Counsel suggested that there was an appropriate instruction
in Sand’s Modern Federal Jury Instructions but never provided more detail on a
specific instruction. In fact, as the district court discovered, the only instructions
in Sand were for a different conspiracy offense, which requires proof of an overt
act, and for the affirmative defense of withdrawal. See Leonard B. Sand et al., 1
Modern Federal Jury Instructions: Criminal § 19.01.
As mentioned earlier,
however, the drug conspiracy with which Fuentes Ramirez was charged does not
require proof of an overt act during the limitations period.
And he had not
requested any withdrawal or abandonment instruction. Fuentes Ramirez thus
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failed to request a legally correct instruction regarding the statute of limitations in
this case.
To the extent that Fuentes Ramirez now argues that the district court erred
by failing to instruct the jury on a different theory of the defense—that Fuentes
Ramirez conspired only with Rivera and that the conspiracy was abandoned
before the limitations period when Rivera began cooperating with the DEA—he
did not request any such instruction. In his brief request he did not mention
Rivera or abandonment at all and only referred to his earlier argument regarding
a lack of acts in furtherance of the conspiracy during the limitations period.
Importantly, when the court instructed the jury, Fuentes Ramirez did not
object.
We therefore review any challenge to the instructions given for plain
error. See United States v. Crowley, 318 F.3d 401, 412-414 (2d Cir. 2003). And it
was not plain error for the district court to decline to provide, sua sponte, a jury
instruction regarding an unpresented defense theory. See United States v. Newton,
677 F.2d 16, 17 (2d Cir. 1982) (holding that where defendant made only “a passing
reference to the possibility of [a defense instruction] . . . the trial court was not
under an obligation sua sponte to instruct the jury about the availability of such
an affirmative defense”); United States v. Brettholz, 485 F.2d 483, 490 (2d Cir. 1973)
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(concluding “it was not error, and certainly not ‘plain error’” for court not to give
unrequested instruction concerning an affirmative defense theory).
Lastly, Fuentes Ramirez argues that his trial counsel was constitutionally
ineffective for failing to request a more specific instruction regarding the statute of
limitations based on an abandonment argument. Lacking an appropriate record
to evaluate counsel’s strategic decisions, we deny this claim without prejudice to
its being raised in a 28 U.S.C. § 2255 proceeding—the preferable avenue for raising
this claim in the first instance. See Massaro v. United States, 538 U.S. 500, 504-05
(2003); United States v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003).
B. Evidentiary Challenges
Fuentes-Ramirez also raises a variety of evidentiary challenges on appeal.
“We review evidentiary rulings for abuse of the district court’s broad discretion,
reversing only when the court has acted arbitrarily or irrationally.” United States
v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006) (internal quotation marks omitted).
Our “highly deferential” review is particularly sensitive to “the district court’s
superior position to assess relevancy and to weigh the probative value of evidence
against its potential for unfair prejudice.” United States v. Gabinskaya, 829 F.3d
127, 134 (2d Cir. 2016) (internal quotation marks omitted). As explained below,
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we conclude that the district court did not abuse its discretion in admitting any of
the evidence in dispute.
The district court did not abuse its discretion when it admitted evidence
from the Instagram and iCloud accounts of Fuentes Ramirez’s son, Geovanny
Daniel Fuentes Gutierrez. Specifically, the court admitted photographs of large
amounts of cash and of ammunition and various weapons, some of which were
overlaid with text or a symbol referencing a slang word for “snitch.” In addition
to the statements in some of the photographs, the court also admitted statements
from two online chats. The court held that all of the statements were admissible
pursuant to the hearsay exclusion for statements of coconspirators. See Fed. R.
Evid. 801(d)(2)(E). On appeal, Fuentes Ramirez claims in a single conclusory
sentence that the photographs were substantially more prejudicial than probative.
But he provides no reason to second-guess the district court’s decision to admit
the photographs, which together served as evidence probative of an ongoing
conspiracy.
As for the statements, the court reasonably concluded that a preponderance
of the evidence could show that Gutierrez was a coconspirator with Fuentes
Ramirez and that the statements were made in furtherance of the conspiracy. See
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id.
The photographs support the conclusion that Gutierrez conspired with
Fuentes Ramirez, as do emails between Fuentes Ramirez and Gutierrez discussing
Fuentes Ramirez’s cocaine laboratory. The disputed statements themselves also
support the finding that the two conspired together. See United States v. Gigante,
166 F.3d 75, 82 (2d Cir. 1999) (noting that the challenged hearsay statement itself
can be considered, alongside other evidence, in establishing the existence of a
conspiracy for the purpose of the hearsay exclusion).
In them, Gutierrez
discusses looking into the murder of Fuentes Ramirez’s bodyguards and the
identity of coconspirators discovered by the government investigation that would
eventually lead to Fuentes Ramirez’s trial and conviction. And there is no clear
error in the district court’s determination that these statements concerning events
related to the conspiracy were made in furtherance of it.
See United States v.
Maldonado-Rivera, 922 F.2d 934, 958-59 (2d Cir. 1990) (noting the applicable clear
error standard of review and that “statements between coconspirators that may be
found to be in furtherance of the conspiracy include statements that provide
reassurance, or seek to induce a coconspirator's assistance, or serve to foster trust
and cohesiveness, or inform each other as to the progress or status of the
conspiracy”).
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Fuentes Ramirez principally argues that there was nothing dating this
evidence to after 2013, when he argues the conspiracy terminated.
But as
summarized above, there was ample evidence from which to find a conspiracy
continuing past that date—and so to find by a preponderance of the evidence that
Gutierrez’s statements were made in furtherance of an existing conspiracy
including Fuentes Ramirez.
Fuentes Ramirez’s second evidentiary claim regards the testimony of Leonel
Rivera about statements that Fuentes Ramirez made to him while they were both
in prison. Fuentes Ramirez argues that because Rivera was cooperating with the
government, these statements should have been suppressed under Massiah v.
United States, 377 U.S. 201, 204-06 (1964), which prohibits the government from
circumventing the right to counsel by directing an agent to interrogate a defendant
without counsel present.
But, as the district court held, there was simply no
evidence that the government ever instructed Rivera to approach Fuentes Ramirez
in prison.
Fuentes Ramirez devotes his efforts on appeal to arguing that the
prison encounter was deliberate on the part of Rivera, but he never contests, let
alone refutes, the district court’s reasoning. Because there was no evidence that
the government directed Rivera to approach and elicit information from Fuentes
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Ramirez, the motion to suppress was properly denied.
See United States v.
Whitten, 610 F.3d 168, 193 (2d Cir. 2010).
Lastly, Fuentes Ramirez argues that testimony from Jorge Medina, an
agricultural engineer who had business dealings with Fuentes Ramirez, was
irrelevant and that the probative value of the testimony was substantially
outweighed by its unfair prejudice and tendency to mislead the jury. See Fed. R.
Evid. 403. We disagree. Medina testified that Fuentes Ramirez had police seize
a shipment of agricultural cargo from one of his trucks after a dispute.
The
government presented this testimony to show Fuentes Ramirez’s ability to exercise
control over Honduran police for his own ends, which it alleged he did in other
circumstances in furtherance of his drug trafficking activities. This tendency to
make the government’s case more likely to be true is sufficient to clear the “very
low standard for relevance.” United States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir.
2008).
As for unfair prejudice and the risk of misleading the jury (i.e. to think that
the events Medina testified to could themselves prove the charged cocaine
trafficking conspiracy), the district court gave the jury a limiting instruction. It
told the jury that Medina’s testimony did not “relate to activities of the defendant
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that are charged in the indictment as part of a crime” and was instead “being
offered to show the relationships between the defendant and other groups, other
people.” Fuentes Ramirez App’x at 230. It further instructed that it was “the
government’s position, which the defendant vigorously disagrees with, that this
will show, or help shed some light, on those relationships,” and again emphasized
that Medina’s testimony was “not evidence of the crime charged in this case.” Id.
In light of that limiting instruction and given the seriousness of the charges against
Fuentes Ramirez compared to the conduct Medina testified to, we cannot say that
any unfair prejudice or risk of confusing the jury substantially outweighed the
probative value of Medina’s testimony. Cf. United States v. Williams, 205 F.3d 23,
34 (2d Cir. 2000) (finding “no undue prejudice” when disputed evidence “did not
involve conduct more serious than the charged crime and the district court gave a
proper limiting instruction”). The district court did not abuse its discretion in
admitting Medina’s testimony.
C. Sentencing Challenge
Fuentes Ramirez’s final argument on appeal is that his sentence is
substantively unreasonable.
“[O]ur review of a sentence for substantive
reasonableness is particularly deferential,” and we do not “substitut[e] our own
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judgment for that of district courts . . . .” United States v. Broxmeyer, 699 F.3d 265,
289 (2d Cir. 2012). Sentences are only substantively unreasonable if they are “so
shockingly high, shockingly low, or otherwise unsupportable as a matter of law
that allowing them to stand would damage the administration of justice.” Id.
(internal quotation marks omitted).
Moreover, we note that “[i]n the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within
the broad range of sentences that would be reasonable in the particular
circumstances.” United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011).
Applying our deferential standard of review, we conclude that Fuentes
Ramirez’s Guidelines life sentence followed by a mandatory consecutive sentence
of thirty years is not so shockingly high or unsupportable as a matter of law as to
be substantively unreasonable. As the district court observed, Fuentes Ramirez
participated in a massive and violent drug trafficking conspiracy, controlled a
cocaine laboratory that he protected with individuals armed with machineguns,
and took part in five murders—all over the course of eleven years. As Fuentes
Ramirez had committed some of “the most serious types of crimes that one can
commit,” the court determined that the need for the sentence to provide just
punishment, to adequately deter criminal conduct, and to protect the public from
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further crimes of Fuentes Ramirez was sufficient to warrant the sentence imposed.
Fuentes Ramirez App’x at 366-67; see 18 U.S.C. § 3553(a).
Those sentencing
factors “can bear the weight assigned to [them]” in this case and we will not
reweigh the factors ourselves. United States v. Cavera, 550 F.3d 180, 191 (2d Cir.
2008).
We therefore decline to disturb the sentence as substantively
unreasonable.
*
*
*
Having reviewed the records in these trials and the numerous arguments
raised on appeal, we find no errors that would warrant vacating the judgments of
conviction. Nor do we find that the sentence imposed on Fuentes Ramirez is
substantively unreasonable.
Accordingly, we AFFIRM the judgments of the
district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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Case 1:15-cr-00379-PKC Document 107 Filed 10/30/19 Page 1 of 198
JAATHER1
2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
3
UNITED STATES OF AMERICA,
4
v.
5
JUAN ANTONIO HERNANDEZ
ALVARADO,
1
15 CR 379 (PKC)
6
Defendant.
7
------------------------------x
8
New York, N.Y.
October 10, 2019
10:00 a.m.
9
10
11
Before:
12
HON. P. KEVIN CASTEL,
13
District Judge
14
APPEARANCES
15
16
17
18
19
20
21
GEOFFREY S. BERMAN,
United States Attorney for the
Southern District of New York
EMIL J. BOVE, III
AMANDA HOULE
JASON RICHMAN
Assistant United States Attorneys
OMAR MALONE
MICHAEL R. TEIN
Attorneys for Defendant
22
ALSO PRESENT:
23
24
25
HUMBERTO GARCIA, Interpreter (Spanish)
CRISTINA WEISZ, Interpreter (Spanish)
MERCEDES AVALOS, Interpreter (Spanish)
MARCIA GOTLER, Interpreter (Spanish)
BRIAN FAIRBANKS, DEA
MORGAN HURST, Paralegal, USAO
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
A-773
42a
559
Case 1:15-cr-00379-PKC Document 107 Filed 10/30/19 Page 3 of 198
JAATHER1
1
MR. MALONE:
So we have no objection to him being
2
dismissed, but we do feel that the Court has to conduct some
3
inquiry as discretely as possible without signaling what the
4
issue is in any respect as to the other jurors, and I don't
5
know how to do it.
6
THE COURT:
7
Let me hear from the government.
8
MS. HOULE:
I appreciate that.
Thank you.
Thank you, your Honor.
As to the question
9
that the juror raised about interference, he said that he did
10
not discuss that with any other juror.
11
561
As to the photo, which is a separate issue, the Court
12
has already employed substantial protective measures.
13
already addressed the entire jury to tell them that they could
14
use the other exit.
15
They obviously know that they could have signed a note if they
16
do have a concern.
17
Honor, that it would cause disruption to the jury at this point
18
to start questioning them about the photo.
19
cause for it, given the juror's note.
20
THE COURT:
You have
No other juror expressed any concern.
And so we think that it's unnecessary, your
Thank you.
All right.
And that there's no
I've thought about
21
this, and what struck my eye last night when this note came in
22
was the line in here on the first page of Court Exhibit 3 from
23
this juror, which says, "from what I've seen in the trial thus
24
far, the traffickers have the means, money and motive to try
25
something nefarious."
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
A-775
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JAATHER1
1
562
You can give that a benign interpretation in that
2
that's what the direct testimony of the witnesses are and he's
3
stating that obvious, but it goes on to say what, if anything,
4
has been discussed on the government's side to assure this
5
jury's safety.
6
nor have I mentioned it to the other jury members.
7
He says this in no way affects my impartiality,
That statement gives me concern, and so I'm going to
8
strike juror number 37.
9
the second alternate.
10
I will call him juror 14, because he's
I guess yesterday when I first read this I kind of had
11
it in my mind that he would be stricken, the only question I
12
had was whether I would do it this morning or let it ride a
13
bit, but I think it's prudent to strike him because I don't
14
want him talking to other jurors.
15
Now he says on the reverse side, so the note is
16
complete on the front side of the page, and then it says,
17
"Please see back," and it says, "Since writing this note
18
yesterday, myself and at least one other juror noticed we were
19
photographed at close range just outside the courthouse by what
20
appears to be an individual with no media logo or
21
identification.
22
The photo was taken on a cell phone."
There's no indication that he discussed his theories
23
about somebody trying something nefarious with any other juror.
24
In fact, he says he hasn't.
25
inquiry which plants the seeds of concern where they may not
And I am loathe to conduct an
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JAATHER1
1
exist.
2
call the juror in and excuse him.
3
4
5
563
And therefore, what I'm going to do is I'm going to
Now there was another matter that somebody wanted to
take up with me before the jury came in, or is that it?
MS. HOULE:
Yes, your Honor, it relates to the
6
post-arrest statement of the defendant.
7
in open court to discuss that.
8
THE COURT:
All right.
So we can go back out
Let me do this.
Let me have
9
Flo ask Juror 14 to come in, and if you'll give me a little
10
breathing room.
11
(Juror present)
12
THE COURT:
13
JUROR:
14
THE COURT:
15
JUROR:
16
THE COURT:
17
JUROR:
18
THE COURT:
Good morning.
Good morning.
You are juror 14 at present, correct?
Well, I was 37.
And you were 37 before.
Yes.
I wanted to let you know that I have
19
discussed certain matters with the parties and I have decided
20
that I am going to excuse you.
21
your conscientious attendance at court each day.
22
you to leave your notebooks with Flo, and do you have anything
23
else in the jury room?
24
JUROR:
25
THE COURT:
And I want to thank you for
I would ask
My jacket.
Why don't you do this, without saying to
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2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
3
UNITED STATES OF AMERICA,
4
v.
1
5
7
(S2) 15-cr-379 (PKC)
JUAN ANTONIO HERNANDEZ ALVARADO,
6
Defendant.
Oral Argument
------------------------------x
8
New York, N.Y.
June 27, 2019
2:15 p.m.
9
10
Before:
11
HON. P. KEVIN CASTEL
12
District Judge
13
14
APPEARANCES
15
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
BY: EMIL J. BOVE III, ESQ.
MATTHEW J. LAROCHE, ESQ.
JASON RICHMAN, ESQ.
Assistant United States Attorneys
16
17
18
19
22
THE MALONE LAW FIRM, P.A.
Attorneys for Defendant
BY: OMAR MALONE, ESQ.
-andLEWIS TEIN, P.L.
Attorneys for Defendant
BY: MICHAEL R. TEIN, ESQ.
23
Also Present:
20
21
24
1
Erika de los Rios
Francisco Olivera
Humberto Garcia
Spanish Interpreters
25
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1
THE COURT:
Thank you.
2
Mr. Hernandez has moved to suppress the November 23,
3
2018 post-arrest statements that were made.
There is no
4
question that, in October 2016, Assistant United States
5
Attorney Matthew Laroche and DEA Agents Papadopoulos and Fragga
6
coordinated and conducted a proffer session with Mr. Hernandez
7
through his lawyer, Manuel Retureta.
8
In May of 2017, Retureta and Laroche communicated
9
about Hernandez, and in October 2017, Retureta communicated
10
with DEA Agent Fragga, but there is no basis to conclude that
11
either of the assistant United States attorneys were aware of
12
the October 2017 communication.
13
On November 20, 2018, Hernandez was indicted by a
14
grand jury, and on November 23 was arrested at Miami
15
International airport.
16
and Gonzalez brought him to an office in the airport, and there
17
was a question about, apparently, Hernandez stated that he
18
wanted to cooperate and that, quote, he told his lawyer over a
19
year ago that he wanted to cooperate, and he, the lawyer, told
20
Hernandez that he would speak with the prosecutors but never
21
notified Hernandez.
22
a lawyer, to which Hernandez responded, he, quote, had not
23
spoken to Manny in over a year but would like to call him
24
first.
25
After the arrest, Agents Papadopoulos
Gonzalez asked if Hernandez presently had
There were communications between the agents and the
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1
assistant United States attorneys in New York, and they
2
initially gave a red light, a stop, to any communications.
3
some point in this chronology, Gonzalez called Retureta's
4
cellphone twice with no answer.
5
indicated to the agents that they should not proceed, Gonzalez
6
told Hernandez that he was going to be processed and taken to
7
jail without an interview and without being asked a question,
8
Hernandez stated, quote, that he wanted to speak with agents at
9
this moment and start cooperating.
10
Hernandez, again, the Court assumes, with input from the
11
assistant United States attorneys, whether he presently had
12
legal representation, and Hernandez stated that he did not
13
know.
14
and wanted to consult with this attorney prior to cooperating,
15
that he was entitled to that, and if he wanted to speak to
16
agents and begin cooperating, that he would be advised of his
17
rights and would need to agree to this voluntary participation
18
in a recorded interview.
At
And after the assistants
And Gonzalez asked
Gonzalez informed Hernandez that if he had an attorney
19
It was then that Hernandez was taken from what sounds
20
like the Customs and Border Patrol area to a different office
21
in the airport, and a video interview took place.
22
agents said, "I want to repeat here what you told me earlier,
23
that you wish to proceed and make a statement and talk with us.
24
You do not have legal representation today, now, huh?
25
be talking to a lawyer in the future, but you wish to start
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One of the
You will
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Hernandez responded, "That's right.
51
1
this process now."
I want
2
to start."
3
times but he did not answer, but do you still wish to go
4
ahead?"
5
rights and signed a written waiver of those rights.
6
verbally, orally confirmed that he had not been pressured or
7
threatened and that the conversation was totally voluntary.
8
The agent, referring back to October 2016, said, "I
9
know you said earlier that you came to talk to us over a year
10
ago."
11
I don't know, something like that."
12
that you said something about your wishing to start this
13
cooperation process since some time ago."
14
"Yes.
15
was prepared to come over here in case you all wanted to
16
continue having some clarification or for me to continue
17
answering questions from all of you.
18
the lawyer told me, quote, let's wait, they will let us know,
19
and then time went by, I lost touch with the lawyer, and what
20
happened today happened."
21
last time that you spoke with the lawyer?"
22
think it was one year ago."
23
ago?"
24
unintelligible.
25
lawyer today until you talk to him again?"
And the agent said, "We called Mr. Retureta several
He said, "I do."
Hernandez was then read his Miranda
He
Hernandez responded, "Yes, a year and a half or two ago,
The agent said, "I believe
Hernandez said,
What I was discussing with attorney Retureta was that I
And at that time, while
The agent inquired, "When was the
Hernandez said, "I
The agent inquired, "One year
Hernandez said, "Yes," and something else that was
The agent then asked, "Then he is not your
And Hernandez
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responded, "Until I talk to him again.
2
handling the matter first."
3
said, "But I have lost touch with him.
4
join the process."
5
add a lawyer to the process at any time."
6
"Yes."
7
52
He is the one who was
The agent said, "Aha."
Hernandez
Let's hope that he will
And the agent said, "As I told you, you can
Hernandez said,
And at the end of the interview, the agent said, "You
8
confirmed that you didn't have a lawyer.
9
calling a lawyer to consult, to look for a lawyer, but at this
10
time you do not have a lawyer," to which Hernandez responded,
11
"I do not."
12
You were thinking of
Now, the defendant asserts that the post-arrest
13
interviews should be suppressed because they were taken in
14
violation of Rule of professional conduct 4.2(a), the
15
no-contact rule, and the Fifth and Sixth Amendment.
16
that an attorney, Manuel Retureta, during the post-arrest
17
interview, and -- that Hernandez had an attorney during the
18
interview and that the DEA agents knew that he had a lawyer
19
based on the earlier proffer session that was October 2016 or
20
so.
21
suppressed.
22
They argue
And defendants assert that the statements should be
Let me begin by addressing United States v. Hammad, a
23
1988 decision written by Circuit Judge Irving Kaufman.
24
a decision that applied the Model Code of Professional
25
Responsibility.
It was
And the court said that a court could suppress
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1
a statement for a violation of this provision of the model
2
code, but went on to say, We have confidence that district
3
courts will exercise their discretion cautiously and with clear
4
cognizance that suppression imposes a barrier between the
5
finder of fact and the discovery of truth.
6
Exclusion is not required in every case.
7
said that suppression of evidence is an extreme remedy that may
8
impede legitimate investigatory activities.
9
Well, much has happened since 1988.
That's from Hammad.
And it's also been
The ABA no longer
10
follows the model code.
11
Professional Responsibility.
12
Responsibility are in place and in force in the following
13
number of jurisdictions, in their entirety:
14
state that has wholesale adopted them.
15
model rules in 2009.
16
for professional discipline in Local Civil Rule 1.5(b)(5),
17
quote, absent significant federal interests.
18
They have adopted the Model Rules of
The Model Rules of Professional
Zero.
There's no
New York adopted the
And this court adopted them as a basis
But there is an important point to be made under the
19
rule as it is in existence in New York today.
Rule 4.2(a)
20
provides, "In representing a client, a lawyer shall not
21
communicate or cause another to communicate about the subject
22
of the representation with a party the lawyer knows to be
23
represented by another lawyer in the matter unless the lawyer
24
has the prior consent of the other lawyer or is authorized to
25
do so by law."
Well, one might read that and say, well, that
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1
means something like "knew" or "should have known" or "had a
2
reasonable cause to believe," that's what "know" means.
3
that question is resolved in Rule 1.0(k) of the Rules of
4
Professional Conduct, which I will read.
5
'known,' 'know,' or 'knows' denotes actual knowledge of the
6
fact in question.
7
circumstances."
8
word "know."
9
1.0(r), there is a provision for "reasonable belief," or
10
"reasonably believes," and, when used in reference to a lawyer,
11
denotes that the lawyer believes the matter in question and
12
that the circumstances are such that the belief is reasonable.
13
It also provides in 1.S that "'reasonably should know,' when
14
used in reference to a lawyer, denotes that a lawyer of
15
reasonable prudence and competence would ascertain the matter
16
in question."
17
or "reasonably should know."
18
denotes actual knowledge of the fact in question.
19
But
"'Knowingly,'
A person's knowledge may be inferred from
So it's quite intentional that it uses the
In fact, in the definitions, under definition
But 4.2(a) does not speak of "reasonable belief"
It speaks of "knowing."
And that
Now, this is not gamesmanship here on the part of the
20
assistant United States attorneys.
I accept as the record here
21
that they knew, in the sense of 1.0(k), 23 months before, that
22
Retureta represented Hernandez.
23
ambiguous, but I accept for these purposes that they knew a
24
year and a half before, although that is disputed by the
25
government in terms of their actual knowledge; it could be a
It was somewhat more
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1
lawyer fishing around.
2
based on the representations made by the government here in
3
open court, and therefore I conclude there was no violation of
4
4.2(a) on the record.
5
But the government acted with caution,
Now, in Edwards v. Arizona, the Supreme Court said,
6
"When an accused has invoked his right to have counsel present
7
during a custodial interrogation, a valid waiver of that right
8
cannot be established by showing only that he responded to
9
further police-initiated custodial interrogation, even if he
10
has been advised of his rights.
11
his desire to deal with the police only through counsel is not
12
subject to further interrogation by the authorities until
13
counsel has been made available to him unless the accused
14
himself initiates further communication, exchanges, or
15
conversations with the police."
16
484-485.
17
invocation of the right to counsel.
18
voluntary, and intelligent waiver of Miranda.
19
unambiguous invocation in a Miranda sense.
20
the defendant indicated that he wanted to speak with the
21
agents.
22
assistant United States attorneys, he was told that he was
23
going to be processed and taken to jail without an interview,
24
and, without being asked a question, he stated, quote, that he
25
wanted to speak with agents at this moment and start
An accused having expressed
That's Edwards at 451 U.S.
And, here, I do not see an express unambiguous
Here there was a knowing,
There was no
And even at that,
You will recall that, based on the red light from the
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cooperating.
2
So I find there is no basis to suppress under the
3
no-contact rule.
4
Miranda.
5
Amendment right to counsel, which does attach at critical
6
stages of the criminal proceeding, which includes post-
7
indictment interrogations, may be waived.
8
right to counsel may be waived by a defendant, so long as the
9
relinquishment of the right is voluntary, knowing, and
10
intelligent.
11
not he is already represented by counsel.
12
waive need not be itself counseled.
13
case, Montejo v. Louisiana, 566 U.S. 778 (2009).
14
I find there is no basis to suppress under
And with regard to the Sixth Amendment, the Sixth
The Sixth Amendment
And the defendant may waive the right whether or
The decision to
And that's the Montejo
Montejo also says that when a defendant is read its
15
Miranda rights, which include the right to have counsel present
16
during interrogation, and agrees to waive those rights, that
17
typically -- and those are rights that have their source in the
18
Fifth Amendment, as a general matter -- an accused who is
19
admonished with these warnings under Miranda has been
20
sufficiently apprised of the nature of his Sixth Amendment
21
rights and of the consequence of abandoning those rights, that
22
his waiver on that basis will be considered a knowing and
23
intelligent one.
24
25
So the Court concludes on this record that there is no
basis to suppress the statements of November 23, 2018 under
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1
Rule 4.2(a), which for the purpose of this discussion I assume
2
applies here, the Fifth Amendment to the Constitution, or the
3
Sixth Amendment to the Constitution.
4
Let me inquire of the government, have I set a
5
schedule on 3500 material, on 404(b) evidence, on further
6
proceedings in this case?
7
MR. BOVE:
Yes, your Honor.
8
THE COURT:
All right.
9
Is there anything further from
the government?
10
MR. BOVE:
No, your Honor.
Thank you.
11
THE COURT:
Anything further from the defendant?
12
MR. MALONE:
Judge, I just want to flag one issue, and
13
it may be in accordance with the schedule previously set by the
14
Court.
15
to New York, provided defense counsel with some expert
16
disclosures, as well as some additional evidence of ledgers or
17
related material, not addressing the ledgers part -- I can deal
18
with that -- the expert part, which, the government purports to
19
introduce an expert regarding drug trafficking routes, which we
20
would have an objection to.
21
of an expert as relates to what's referred to as, quote,
22
Honduras and Honduras policies.
23
motion or that issue today.
24
background on that.
25
address it at the appropriate time before trial and it doesn't
The government, two days ago maybe, before we came up
They want to introduce testimony
I'm not trying to argue that
I haven't seen any of the relative
I wanted to flag the issue so that we
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Case 21-885, Document 206, 03/12/2024, 3614683, Page1 of 1
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
____________________________________________
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 12th day of March, two thousand twenty-four,
Before:
Guido Calabresi,
Alison J. Nathan,
Circuit Judges.
Sarala V. Nagala,
District Judge.
____________________________________
ORDER
Docket No. 21-885 (L)
22-334 (Con)
United States of America,
lllllllllllllllllllllAppellee,
v.
Victor Hugo Diaz Morales, AKA Victor Hugo Villegas
Castillo, AKA Rojo, Mario Jose Calix Hernandez, Mauricio
Hernandez Pineda, Amado Beltran Beltran, AKA Don
Amado, Otto Rene Salguero Morales, AKA Otto Salguero,
Ronald Enrique Salguero Portillo, AKA Ronald Salguero,
Fernando Felix Rodriguez, AKA Don Fernando,
lllllllllllllllllllllDefendants,
Juan Antonio Hernandez Alvarado, AKA Tony Hernandez,
Geovanny Fuentes Ramirez, AKA Sealed Defendant 1,
lllllllllllllllllllllDefendants - Appellants.
_______________________________________
Appellant Juan Antonio Hernandez Alvarado having filed a petition for panel rehearing
and the panel that determined the appeal having considered the request,
IT IS HEREBY ORDERED that the petition is DENIED.
For The Court:
Catherine O'Hagan Wolfe,
Clerk of Court
56a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.