Argued: September 27, 2016
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
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
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.
Walker, The Walker Legal Group, Christiansted, St. Croix,
U.S. Virgin Islands, for Gary Thomas.
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. [*]
L. Carney, Circuit Judge.
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.
we AFFIRM the judgments of conviction entered by the District
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).
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. 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.
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
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.
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.
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.
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
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.
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.
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.
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.
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
Thomas, and Tang Yuk were arrested on June 5, 2013.
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.
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.
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.
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.
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.
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
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).
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"). 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.
"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
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).
Jury instruction regarding venue
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.
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.
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.
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.
Sufficiency of evidence
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.
Jackson's overt act
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