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finding no Miranda violation where "defendant was asked a series of questions from a standard police booking form, including whether she had any nicknames or aliases," and she provided a nickname; "the fact that her answer was useful for investigatory as well as booking purposes does not render her answer inadmissible."
Summary of this case from United States v. SylvesterOpinion
No. 07-1341-cr.
October 14, 2008.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is hereby AFFIRMED.
COUNSEL FOR APPELLANT: LAWRENCE MARK STERN, New York, NY.
COUNSEL FOR APPELLEE: LICHA M. NYIENDO, Assistant United States Attorney (United States Attorney Roslynn R. Mauskopf, and Assistant United States Attorney Susan Corkery, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY.
PRESENT: JON O. NEWMAN, ROGER J. MINER, JOSÉ A. CABRANES, Circuit Judges.
Defendant Carol Brown appeals from a judgment of conviction entered in the District Court on April 24, 2007, convicting her, after a jury trial, of one count of conspiracy to import cocaine, in violation of 21 U.S.C. §§ 963, 960(b)(1)(B)(ii); three counts of aiding and abetting the importation of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(b)(2)(B)(ii); one count of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II); and two counts of aiding and abetting the possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(I), 841(b)(1)(B)(ii)(II). The District Court sentenced defendant to a term of 63 months' imprisonment, followed by a term of four years' supervised release, and a mandatory special assessment of $700. We assume the parties' familiarity with the underlying facts and procedural history of the case.
Defendant raises multiple arguments on appeal involving six distinct legal questions. We address each question in turn.
First, defendant argues that there was insufficient credible evidence to support the jury's verdict, a claim that places a "heavy burden" on defendant. United States v. Dhinsa, 243 F.3d 635, 648 (2d Cir. 2001); see also id. at 648-49 ("We consider the evidence presented at trial in its totality . . . [and] will not disturb a conviction on grounds of legal insufficiency of the evidence at trial if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (internal quotation marks and citations omitted)); United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (observing that deference to a jury verdict is particularly important in a conspiracy trial "because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel" (internal quotation marks omitted)). In this case, the evidence was more than sufficient to convict defendant. Sherlon Smith, a cooperating witness, testified that he had given defendant his driver's license so that defendant could help obtain plane tickets to Jamaica for the purpose of smuggling drugs. Several witnesses testified that defendant traveled with her husband, who was her co-defendant, to and from John F. Kennedy International Airport to drop off and pick up drug couriers. The jury also heard testimony that defendant monitored couriers, who were attempting to pass cocaine pellets that they had ingested, and handled the pellets of cocaine after they had been passed. One witness further testified that defendant was present when her husband paid the witness for smuggling drugs. Taken together, this evidence supports the jury's verdict — convicting defendant of multiple counts of consipracy and aiding and abetting — and belies defendant's claims that she was merely a bystander when these transactions occurred. See Pitre, 960 F.2d at 1121 (holding that knowledge of a conspiracy may rationally be inferred from the circumstances despite defendant's assertion that he was merely present when several drug deals took place).
Second, defendant's argument that her waiver of counsel was not knowing and intelligent is unconvincing. Indeed, there is a strong indication that defendant's decision to dismiss her attorney and appear pro se was a strategic choice motivated by the hung jury in the original trial of her husband, who represented himself. At an April 6, 2006 status conference, the District Court explicitly and extensively advised defendant on the record regarding the dangers of self-representation and the potential penalties for each count of the indictment. Nonetheless, defendant stated that she wished to represent herself. The District Court repeated its concerns at an April 17, 2006 pretrial conference, but defendant would not be dissuaded. Under these circumstances, we are unable to conclude that defendant's waiver was not knowing and intelligent. See Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998) (A court "need not analyze the district court's every word, so long as the record as a whole demonstrates that the defendant knowingly and intelligently waived her right to counsel.").
Third, defendant contends that the District Court erred by joining her trial with her husband's retrial because her husband was "incompetent." Rule 8(b) of the Federal Rules of Criminal Procedure permits joinder of charges where defendants "are alleged to have participated in the same act or transaction, or in the same series of acts of transactions, constituting an offense or offenses." Fed.R.Crim.P. 8(b); see also United States v. Stewart, 433 F.3d 273, 314-15 (2d Cir. 2006) (stating that review of a district court's joinder determination "is entitled to considerable deference" and that a defendant must show "substantial prejudice so severe that [the] conviction constituted a miscarriage of justice and that the denial of [the defendant's] motion [to sever the trials] constituted an abuse of discretion" (internal quotation marks omitted)). In this case, joinder was appropriate because the defendant and her husband participated in the same series of acts constituting the charged offenses. Further, the record does not support a conclusion that defendant's husband — her co-defendant — was incompetent. To the contrary, the District Court held a competency hearing on January 19, 2006 and later ruled that defendant's husband was competent to stand trial. We also note that the District Court warned defendant about the dangers of manipulation by her husband prior to accepting her waiver of the right to counsel.
Fourth, the District Court's jury instruction on aiding and abetting was not plainly erroneous. See United States v. Schultz, 333 F.3d 393, 413 (2d Cir. 2003) (reviewing a previously unchallenged jury charge for plain error); see also United States v. Quinones, 511 F.3d 289, 314 (2d Cir. 2007) ("[W]e will reverse only where the charge, viewed as a whole, either failed to inform the jury adequately of the law or misled the jury about the correct legal rule." (internal quotation marks omitted)). Defendant argues that the District Court's charge misstated the issue of intent. The District Court instructed the jury that "[i]t's not necessary . . . that the prosecution prove that the defendant knew or the person aiding and abetting knew that what he or she was doing was illegal. . . . All that must be established is that the person knew that he or she had possession or was distributing a narcotics drug with the intention that the possession be used to distribute it or that the distribution transfer be successful." This charge is consistent with well-established law holding that ignorance of the law is no defense to purposeful and intentional conduct. See, e.g, United States v. Ansaldi, 372 F.3d 118, 128 (2d Cir. 2004) (stating that "[k]nowledge of, or intent to violate, the law is simply not an element" of a possession with intent to distribute narcotics charge).
Fifth, we find no violation of defendant's Miranda rights, see generally Miranda v. Arizona, 384 U.S. 436 (1966), in the routine pedigree questions posed to her as part of standard police booking procedures. See United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989) (holding that routine booking questions regarding a suspect's identity do not violate Miranda); see also United States v. Reyes, 353 F.3d 148, 151 (2d Cir. 2003) (reviewing legal questions relating to the admissibility of post-arrest booking statements de novo and factual findings for clear error). In this case, defendant was asked a series of questions from a standard police booking form, including whether she had any nicknames or aliases; she responded "John-John." Defendant was known only by this nickname to several cooperating witnesses. Consequently, her nickname was an essential link connecting the witnesses' testimony to defendant. However, the fact that her answer was useful for investigatory as well as booking purposes does not render her answer inadmissible. See, e.g., United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975) ("[B]asic identifying data required for booking and arraignment" is admissible at trial to "provide the missing link required to convict.").
Sixth and finally, defendant contends that a cooperating witness has acknowledged in an unspecified manner that she erroneously testified to taking a car ride with defendant from South Carolina to Yonkers in May or June of 2002, when in fact the trip occurred in 2003. See United States v. Festa, 513 F.2d 1313, 1317 (2d Cir. 1975) (outlining factors for analysis of recanted testimony). We note that defendant has not filed any post-trial affidavit by the witness indicating a recantation of her testimony. Further, the government concedes that the witness made a mistake in her testimony and pointed out that mistake to the jury at trial. The witness was asked on direct examination if the trip to Yonkers occurred in 2003 instead of 2002. The prosecutor then attempted to refresh the witness's recollection with documents that showed the correct date. In summation the government argued that the witness was mistaken about the date, noting that defendant was not yet in the country in 2002 and therefore could not have taken the car ride to Yonkers with the witness at that time. For all these reasons, we do not believe the record reveals any new or changed evidence that would have changed the outcome of this trial. See Festa, 513 F.2d at 1317 (noting that new or recanted testimony must have the potential to cause the jury to reach a different conclusion).
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the District Court.