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United States v. Yuk

United States Court of Appeals, Second Circuit

March 15, 2018

United States of America, Appellee
v.
Kirk Tang Yuk, AKA Sealed Defendant 3, Gary Thomas, AKA Sealed Defendant 2, and Felix Parrilla, AKA Sealed Defendant 1, AKA Lito, Defendants-Appellants.

          Argued: September 27, 2016

         Three defendants found by a jury to have engaged in a criminal conspiracy to 4 distribute and possess with intent to distribute cocaine challenge their convictions, 5 contending that venue did not properly lie in the Southern District of New York, the 6 place of their prosecutions. The government does not dispute that the bulk of 7 defendants' joint criminal activity took place in the U.S. Virgin Islands and in Florida.

         We consider whether, nonetheless, the defendants' activities and knowledge of the related travel to New York by one of their number, who had left Florida with drugs obtained through the conspiracy and traveled to the New York area with plans to sell the drugs there, suffice to support venue in the Southern District as to each defendant. We conclude the actions of the conspirators in the district, and the defendants' knowledge of that activity, render venue in the Southern District of New York proper. Accordingly, we AFFIRM the judgments of conviction entered by the District Court.

          Christopher P. Conniff, Ropes & Gray LLP, New York, New York, for Kirk Tang Yuk.

          Stephen N. Preziosi, Law Office of Stephen N. Preziosi P.C., New York, New York, for Felix Parrilla.

          Kye Walker, The Walker Legal Group, Christiansted, St. Croix, U.S. Virgin Islands, for Gary Thomas.

          Edward A. Imperatore, Assistant United States Attorney (Emil J. Bove III, Adam S. Hickey, Assistant United States Attorneys, Of Counsel, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for the United States of America.

          Before: Chin and Carney, Circuit Judges, and Forrest, District Judge. [*]

          Susan L. Carney, Circuit Judge.

         Three defendants found by a jury to have engaged in a criminal conspiracy to distribute and possess with intent to distribute cocaine challenge their convictions, contending that venue did not properly lie in the Southern District of New York, the place of their prosecutions. We consider whether, although the bulk of their joint criminal activity took place in the U.S. Virgin Islands and in Florida, the defendants' activities and knowledge of the related travel to New York by one of their number, who had left Florida with drugs obtained through the conspiracy and traveled to the New York area with plans to sell the drugs there, suffice to support venue in the Southern District as to each defendant. We find the actions of the conspirators in the district, and the defendants' knowledge of that activity, render venue in the Southern District of New York proper. We also reject the defendants' other challenges to their convictions and sentences, which include, inter alia, challenges to the District Court's denial of three suppression motions, a contention that the government failed adequately to disclose impeachment evidence regarding its lead witness, and arguments that the District Court improperly calculated the defendants' Guidelines ranges.

         Accordingly, we AFFIRM the judgments of conviction entered by the District Court.

         BACKGROUND

         Defendants-appellants Kirk Tang Yuk, Felix Parrilla, and Gary Thomas appeal their convictions under 21 U.S.C. §§ 841(b)(1)(A) and 846 for conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine. As we must when evaluating an appeal following a conviction by a jury, we recite the facts in the light most favorable to the government, and as the jury was entitled to find them in its deliberations. United States v. Lange, 834 F.3d 58, 64, 69 (2d Cir. 2016).

         A. The conspiracy

         In the summer of 2012, Gary Thomas, a resident of St. Croix, asked an acquaintance, Deryck Jackson, a resident of Florida, and not an appellant here, if he wanted to earn money by helping Thomas bring cocaine from St. Croix to Florida. Jackson was willing, and he flew from Miami to St. Croix to meet with Thomas. As Jackson later testified, Thomas told Jackson that he was "getting the drug deal together" and that Jackson should "make [him]self available." TY App'x at 250.[1] Thomas told Jackson not to mention the cocaine deal to their mutual friend in Florida, Kirk Tang Yuk, explaining his concern that Tang Yuk had a "big mouth." TY App'x at 250-51. Thomas then introduced Jackson to Felix Parrilla, a Florida resident, and told Jackson that Parrilla would be Jackson's contact person in Florida for the planned transaction.

         Later, back in Florida, and despite Thomas's request, Jackson told Tang Yuk that he expected to be involved in a drug transaction. Tang Yuk expressed interest in participating in the transaction.

         September 2012 arrived and Thomas called Jackson, advising that he was ready to go forward with the plan. Jackson returned to St. Croix and there, on the site of Paradise Waste Management, Thomas's business, he helped Thomas prepare and package cocaine for shipment. To conceal the drugs during shipment, the two men installed false wooden flooring in a packing crate and sprinkled a chemical in the bottom of the crate to help mask the cocaine's smell. They packed 80 kilograms of cocaine in the crate. Jackson then returned to Florida.

         On September 18, Thomas called Jackson again and advised that the cocaine was ready for pickup in Miami. Jackson rented a U-Haul truck and retrieved the crate containing the concealed drugs. He moved the crate to a storage facility, where he repackaged the drugs into four cardboard boxes, placing dryer sheets and rice in the boxes to help mask the cocaine's odor. He then brought the boxes to his apartment.

         On the following day-September 19-Jackson visited Parrilla at his place of business, a garage. There, Parrilla informed Jackson that he (Parrilla) would take 53 kilograms of the cocaine and Jackson would keep the remaining 27 kilograms "on consignment." TY App'x at 323-25. Later that afternoon, Jackson on his own initiative spoke with Tang Yuk. The two had a rendezvous at Jackson's apartment, where Jackson gave Tang Yuk two kilograms of Jackson's portion of 27 kilograms, also "on consignment." TY App'x at 337. Tang Yuk promised to pay Jackson $27, 000 for each of his allotted two kilograms.

         On September 20, Jackson delivered 53 kilograms of the cocaine to Parrilla. Jackson then promptly left Miami to drive with his wife to New York City, where he planned to sell some of his 25 remaining kilograms of cocaine to an associate, Fred Fulton. Jackson and his wife arrived in Queens on September 22, after crossing over the Verrazano-Narrows Bridge from Staten Island over the Narrows into Brooklyn, and then driving on into Queens. That evening, Jackson was arrested at the hotel where he had checked in and delivered the drugs to Fulton.

         During the same time period, on September 20, the Drug Enforcement Agency (DEA) executed a "sneak and peek" search warrant on Parrilla's business in Florida. A DEA agent described this type of warrant at trial as a "covert" warrant authorizing a "limited" search of the location without notification to the premises owner. In Parrilla's garage, the agents found brown U-Haul boxes, white rice, dryer sheets, and shrink wrap.

         While the agents were conducting the search, they noticed Parrilla driving down the street toward his garage, and then suddenly changing direction and speeding away. About 45 minutes later, Parrilla returned and spoke with some of the agents, who were still at the location. In response to the agents' question whether "he had any cash on him, " Parrilla admitted that he did, and pulled out "a wad of cash" from his pants pocket. Combined with cash located in a search of his vehicle, the agents recovered, and returned to Parrilla, approximately $17, 000.

         After his September 22 arrest in New York City, Jackson agreed to cooperate with the government. In late September and early October, at the government's instance, he made recorded calls to Tang Yuk and Thomas from a court building in Manhattan, in the Southern District. In a call made on October 1, Jackson told Thomas that he was "on the road." Supp. App'x at 174. He also admitted to Thomas that he "gave [Tang Yuk] a little work, " but denied that Tang Yuk "kn[e]w anything, where it came from or nothing." Id. at 175.

         On October 4, in a telephone conversation recorded by the government, Jackson told Tang Yuk, "Well I am trying to wrap up this thing. I am up here in New York. I am trying to wrap up and come back down." Tang Yuk responded, "Do your thing, man. It ain't nothing." Id. at 186. Jackson and Thomas also spoke that day in a recorded phone conversation, which opened with Thomas demanding of Jackson, "You are in here or what?" and Jackson responding, in part, "Well I am just letting know you [sic] that everything is alright." Jackson told Thomas, "I ain't telling you where I was, but I'm telling you now. I'm up in New York. That's why I'm taking this kind of longer way up. Alright." Id. at 189. The recording then ended.

         On October 12, with Jackson still not back in Florida, Thomas sent Jackson a text message, warning, "You need to deal with [Parrilla] now, it's about to get ugly. Give him what you have." TY App'x at 399. Four days later, Jackson called Thomas. He asked, "What kind of messages are you sending me? Listen I finished, I'm on my way back down. . . . This call, call business and all kind of things you're leaving, you know we don't operate like that man." Supp. App'x at 198. Thomas explained that a mutual friend of theirs had informed Thomas that Jackson had been "picked up." Id. That possible development, he said, "just sent me in a [expletive], what you name there, ok . . . in a panic." Id. at 199. Jackson replied, "Yeah then you sent me a text saying that uhm . . . the man [Parrilla] said it's about to get ugly or something." Id. Thomas confirmed that Parrilla had told him something similar. Closing the conversation, Jackson promised, "Well listen. Today is what? Tuesday. I'm going to be there by Thursday. Alright I will call you and let you know." Supp. App'x at 199.

         Parrilla, Thomas, and Tang Yuk were arrested on June 5, 2013.

         B. Procedural history

         Before trial, Thomas moved to transfer his case to the St. Croix division of the U.S. District Court for the District of the Virgin Islands. The District Court denied this motion, concluding that the only factor strongly favoring transfer was that Thomas's place of residence was in St. Croix, and, accordingly, transfer was not warranted. United States v. Parrilla, No. 13 Cr. 360(AJN), 2014 WL 1621487, at *13-15 (S.D.N.Y. Apr. 22, 2014). At trial, Thomas unsuccessfully renewed his request to transfer venue, arguing that the government's use of a patois expert from Jamaica, not St. Croix, to translate certain recorded telephone conversations was prejudicial to him. The District Court explained that the government witness was qualified as an expert in patois speech generally, not merely in the St. Croix dialect, and that, to the extent the recordings included statements in English, the jury would be instructed to consider the audio tapes themselves, not the expert's testimony or transcripts of the tapes. In denying transfer, the District Court also noted that Thomas had invoked his objection to the patois expert in support of his transfer request only "after a jury was impaneled, long after all parties were put on notice of the government's intention to put forward an expert relating to the transcripts, [and] long after the Court and parties had already expended significant time and energy to try this case in this district." Thomas App'x at 562.

          At the close of the eight-day trial, the District Court charged the jury as follows with regard to venue:

In addition to all of the elements I have described, you must consider the issue of venue; namely, whether any act in furtherance of the crime charged in Count One occurred within the Southern District of New York. The Southern District of New York includes Manhattan and the Bronx, Rockland, Putnam, Dutchess, Orange, and Sullivan Counties and bridges over bodies of water within the boundaries of Manhattan, the Bronx, and Brooklyn, such as the Verrazano-Narrows Bridge.
In this regard, the government need not prove that the entirety of the charged crime was committed in the Southern District of New York or that any of the defendants were present here. It is sufficient to satisfy the venue requirement if any act in furtherance of the crime charged occurred within the Southern District of New York, and it was reasonably foreseeable to the defendant that you are considering that the act would take place in the Southern District of New York.
I also instruct you that a call or text message made between a government cooperator in the Southern District of New York and a defendant who is not in the Southern District of New York can establish venue with respect to that defendant, provided that the defendant used the call or text message to further the objectives of the charged conspiracy, and the defendant knew or could have known that the call or text came from or went to the Southern District of New York.

Parrilla App'x at 805-06.

         The jury convicted each of Parrilla, Thomas, and Tang Yuk, respectively, of one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. All three defendants moved for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29 and for a new trial pursuant to Rule 33. In their post-trial motions, Thomas and Tang Yuk challenged the sufficiency of the government's venue evidence in addition to other aspects of the trial. On December 23, 2014, the district court denied Defendants' motions in a written opinion. United States v. Parrilla, No. 13-CR-360 (AJN), 2014 WL 7496319 (S.D.N.Y. Dec. 23, 2014). It later sentenced them to the following terms of imprisonment: Parrilla, 300 months; Thomas, 216 months; and Tang Yuk, 151 months.

         All three defendants timely appealed. On appeal, they each argue that venue did not properly lie in the Southern District of New York. In addition, Thomas argues that the District Court erred in denying his motion to transfer the case to St. Croix for trial and that he is entitled to a new trial because Jackson perjured himself and the District Court violated his Sixth Amendment rights by limiting his cross-examination of Jackson. Parrilla contends that the District Court erred in denying his motion to suppress evidence obtained as a result of three allegedly unconstitutional searches and in admitting evidence about Parrilla's attempts to intimidate Jackson in prison. Tang Yuk argues that the record evidence was insufficient to convict him of the charged conspiracy-at most, he claims, he participated in a side conspiracy with Jackson to distribute and possess with intent to distribute two kilograms of cocaine. Tang Yuk submits further that the government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by producing possible impeachment evidence in a difficult-to-review format, and that his conviction was tainted by the government's improper comments during summation.

         Finally, all three defendants challenge the District Court's calculation of their Sentencing Guidelines ranges as follows: (1) as to Parrilla and Thomas, that the District Court erred in finding that the conspiracy of which they were convicted involved 80 kilograms of cocaine; (2) as to Parrilla, that the District Court erred in applying various enhancements to his offense level; and (3) as to Tang Yuk, that the District Court erred in failing to apply an offense level reduction for his "minor" or "minimal" role in the offense.

         DISCUSSION

         A. Venue

         1. Applicable law

         Embodying a constitutional principle, see U.S. Const. amend. VI; id. at art. III, § 2, cl. 3, the Federal Rules of Criminal Procedure require the government to "prosecute an offense in a district where the offense was committed, " and the court to "set the place of trial within the district with due regard for the convenience of the defendant[s], any victim, and the witnesses, and the prompt administration of justice, " Fed. R. Crim. P. 18; see also United States v. Lange, 834 F.3d 58, 68 (2d Cir. 2016). If the federal statute defining a particular offense does not specify how to determine "where the offense was committed, " Fed. R. Crim. P. 18., "[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Tzolov, 642 F.3d 314, 318 (2d Cir. 2011) (quoting United States v. Cabrales, 524 U.S. 1, 6-7 (1998)). "Venue is proper only where the acts constituting the offense-the crime's 'essential conduct elements'-took place." Id. (quoting United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999)).

         Constitutional and procedural restrictions on criminal venue, accordingly, do not protect defendants from prosecution in a district far from their homes if they commit a crime in a remote district. As far-reaching communications and travel are now easy and common, the "acts constituting the offense" can, unsurprisingly, span a geographic range that extends far beyond the physical borders of a defendant's district of residence. Venue, moreover, "may lie in more than one place if the acts constituting the crime and the nature of the crime charged implicate more than one location, " Lange, 834 F.3d at 68 (internal quotation marks omitted), or if the crime begins in one location and ends in another, see 18 U.S.C. § 3237(a); see also United States v. Holcombe, No. 16-1429-cr, 2018 WL 1021315, at *2 (2d Cir. Feb. 23, 2018). This observation is particularly apt where, as here, the charged crime is a conspiracy, because "any district in which an overt act in furtherance of the conspiracy was committed" is properly designated as the "district where the offense was committed, " so long the act was performed (1) "by any conspirator, " and (2) was undertaken "for the purpose of accomplishing the objectives of the conspiracy." Tzolov, 642 F.3d at 319-20 (internal quotation marks omitted); see United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999) (finding venue in the Southern District of New York proper when the defendant's co-conspirator performed an overt act in Manhattan in furtherance of their conspiracy).

         a. Foreseeability

         In our Circuit, the venue analysis does not end as to all defendants charged with a conspiracy when we find a single overt act performed in the district of prosecution, however. We have interpreted the venue requirement to demand "some sense of venue having been freely chosen by the defendant." United States v. Davis, 689 F.3d 179, 186 (2d Cir. 2012) (internal quotation marks and alterations omitted). We have said that it must have been "reasonably foreseeable" to each defendant charged with the conspiracy that a qualifying overt act would occur in the district where the prosecution is brought. United States v. Rommy, 506 F.3d 108, 123 (2d Cir. 2007); see also United States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003) (holding that "venue is proper in a district where (1) the defendant intentionally or knowingly causes an act in furtherance of the charged offense to occur in the district of venue or (2) it is foreseeable that such an act would occur in the district of venue").[2] Actual knowledge that an overt act was committed in the district of prosecution is not required, however: venue will lie if a reasonable jury could find that it was "more probable than not" that the defendant "reasonably could have foreseen" that part of the offense would take place in the district of prosecution. Davis, 689 F.3d at 189.

         b. Substantial contacts

         We have "occasion[ally] . . . supplemented our venue inquiry with a 'substantial contacts' test that takes into account a number of factors . . . . includ[ing] the site of the defendant's acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of the [venue] for accurate factfinding." Lange, 834 F.3d at 71 (internal quotation marks omitted). We have acknowledged that this is not a "formal constitutional test, " United States v. Saavedra, 223 F.3d 85, 93 (2d Cir. 2000), but have nevertheless found it to be a valuable safeguard for a defendant whose contacts with the district of prosecution are minimal.

         When an overt act in furtherance of a criminal conspiracy has been committed in the district, however, this supplemental inquiry has no relevance. A defendant who is participating in a conspiracy that is being conducted, in part, in the district of prosecution necessarily has sufficient "substantial contacts" to justify a finding of venue that is otherwise proper. See, e.g., Lange, 834 F.3d at 75 (finding that defendants had substantial contacts with E.D.N.Y. based in part on the fact that "some of [their] co- conspirators' acts occurred in the [E.D.N.Y.]"); see also Tzolov, 642 F.3d at 321 (finding defendant's contacts sufficiently "substantial" where defendant "committed overt acts in furtherance of the conspiracies" in the district of prosecution); United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994) ("Though [United States v.] Reed[, 773 F.2d 477 (2d Cir. 1985)] refers to a 'substantial contacts rule' for determining venue, it is clear that the panel regarded the locale of the defendant's acts as a sufficient basis for establishing venue . . . ." (internal citations omitted)); cf. Saavedra, 223 F.3d at 93 ("The substantial contacts rule offers guidance on how to determine whether the location of venue is constitutional, especially in those cases where the defendant's acts did not take place within the district selected as the venue for trial."); Reed, 773 F.2d at 481 (noting that venue can be proper even when a defendant has "only limited contact" with the district of prosecution if the "acts constituting the crime" occurred in that district and citing "[a] foreign courier attempting to import illegal drugs through Kennedy Airport" and "a co- conspirator in Miami who never set foot in New York" as examples).

         2. Jury instruction regarding venue

         Thomas and Tang Yuk (but not Parrilla) contend that the District Court erred by instructing the jury that "a call or text message made between a government cooperator in the Southern District of New York and a co-conspirator defendant who is not in the Southern District of New York, " Parrilla App'x at 805-06, could be sufficient to establish venue in certain circumstances. We review the District Court's instruction de novo, finding error if the instruction "misleads the jury as to the correct legal standard or does not adequately inform the jury on the law." United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015) (per curiam) (quoting United States v. Naiman, 211 F.3d 40, 50 (2d Cir. 2000)). Even if an instruction was erroneous under this standard, we will not reverse a conviction unless (1) the instruction was prejudicial to the defendant, and (2) the defendant requested an alternative charge that "accurately represented the law in every respect." Id.

         The jury here was properly instructed as to the effect of the phone calls described above on venue. Our prior decisions leave no room for doubt that, in the context of a conspiracy, "phone calls from one district to another by themselves can establish venue in either district as long as the calls further the conspiracy." Smith, 198 F.3d at 382; see also, e.g., United States v. Friedman, 998 F.2d 53, 57 (2d Cir. 1993). A telephone call placed by someone within the Southern District of New York-even a person acting at the government's direction-to a co-conspirator outside the Southern District can render venue proper as to the out-of-district co-conspirator so long as that co-conspirator "uses the call to further the conspiracy." Rommy, 506 F.3d at 122.

         Although both Tang Yuk and Thomas argue that their convictions require an extension of our established venue principles, they fail to identify any statement in the District Court's instruction here that precedent-in particular, our decision in Rommy- does not directly support. In Rommy, we rejected a venue challenge when a confidential informant located in the Southern District of New York called and spoke to the defendant, who was located overseas, on several occasions. Id. at 112-14. During their first call, the informant told the defendant that he was "near the site of the recently destroyed World Trade Center." Id. at 113. During that and subsequent calls, the defendant nevertheless confirmed to the caller and putative co-conspirator details relating to a shared plan to smuggle ecstasy pills into New York ports. Id. at 113-14. On appeal, we rejected the defendant's argument that a call placed from the Southern District of New York at the direction of a law enforcement agent was insufficient to create venue in the district of the caller, explaining that "[w]hat is determinative of venue . . . is whether the conspirator used the telephone call to further the objectives of the conspiracy." Id. at 119, 122.

         The jury here, therefore, was appropriately instructed by the District Court that venue was proper with respect to a defendant if that defendant used "a call or text message [with] . . . a government cooperator in the Southern District of New York . . . to further the objectives of the charged conspiracy . . . ." Parrilla App'x at 805. The District Court also correctly instructed the jury that, in addition to this "act" requirement, venue was proper only if the defendant "knew or could have known" that the call or text came from the Southern District of New York. Id. To the extent that Tang Yuk and Thomas argue that Jackson's calls do not meet the venue standard described in Rommy, their quarrel is with the sufficiency of the evidence establishing venue, not the content of the instruction given.

         3. Sufficiency of evidence

         Because venue is not an element of a crime, the government must prove its propriety by only a preponderance of the evidence. Davis, 689 F.3d at 185. We review de novo the District Court's determination that the evidence was sufficient to support a finding that venue was proper. Lange, 834 F.3d at 69. Because Defendants were convicted after a jury trial, we review the record evidence in the light most favorable to the government, drawing every reasonable inference in support of the jury's verdict. Id.

         a. Jackson's overt act

         As an initial matter, we note that the evidence at trial was undoubtedly sufficient for the jury to find that Deryck Jackson, who later cooperated with the government, committed an overt act in furtherance of the cocaine importation conspiracy with Thomas, Parrilla, and Tang Yuk in the Southern District of New York: on his way from Florida to Queens to meet Fulton and sell his portion of the cocaine, he drove over the Verrazano-Narrows Bridge from Staten Island to Brooklyn, passing over the channel known as "the Narrows" and through the jurisdiction of the Southern District of New York. United States v. Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir. 1987) (finding venue in the Southern District of New York proper for offense of importing cocaine, based on flight of airplane containing cocaine over "the Narrows" before landing in Eastern District, because the Narrows "lies within the joint jurisdiction of the Southern and Eastern Districts of New York"). Because transportation of cocaine to its final point of sale constitutes an "overt act" in ...


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