United States v. Deandrade
Appeal Court of Appeals for the Second Circuit, Case No. 08-4815-cv

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United States v. Deandrade

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2009 6 7 8 (Submitted: December 7, 2009 Decided: March 12, 2010) 9 10 Docket No. 08-4815-cr 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 - v.- 19 20 DANIEL DEANDRADE, 21 22 Defendant-Appellant. 23 24 - - - - - - - - - - - - - - - - - - - -x 25 26 Before: JACOBS, Chief Judge, HALL, Circuit Judge, 27 and MURTHA, District Judge.* 28 29 Appeal from a judgment of conviction, entered in the 30 United States District Court for the Southern District of 31 New York (Sand, J.), on the grounds (1) that the district 32 court improperly denied defendant's two motions for a 33 mistrial after reference was made to his incarceration
J. Garvan Murtha, Senior Judge of the United States

District Court for the District of Vermont, sitting by

designation. 1 during trial and (2) that the sentence took account of a 2 non-jury juvenile conviction, in violation of Apprendi v. 3 New Jersey, 530 U.S. 466 (2000). We affirm both the 4 conviction and the sentence. 5 Arza Feldman, Feldman and 6 Feldman, Uniondale, New York, 7 for Appellant. 8 9 Preet Bharara, John T. Zach, 10 Julian J. Moore, and Iris Lan, 11 United States Attorney's Office 12 of the Southern District of New 13 York, New York, New York, for 14 Appellee. 15 16 17 DENNIS JACOBS, Chief Judge: 18 19 Defendant-Appellant Daniel Deandrade appeals from a 20 judgment, entered following a 2008 jury trial in the United 21 States District Court for the Southern District of New York 22 (Sand, J.), convicting him of two felony narcotics offenses 23 and sentencing him to two concurrent terms of 300 months' 24 imprisonment. He appeals principally on the grounds that 25 (1) references to his incarceration during trial, made by 26 two cooperating witnesses, impaired the presumption of 27 innocence, and that the district court should have granted 28 his motions for a mistrial premised on Estelle v. Williams, 29 425 U.S. 501 (1976); and (2) the sentence improperly took [End Page 2] 1 account of a non-jury juvenile conviction in violation of 2 Apprendi v. New Jersey, 530 U.S. 466 (2000). Deandrade also 3 raises a variety of other challenges, including ineffective 4 assistance of counsel. We affirm the conviction and the 5 sentence. 6 7 I 8 On January 8, 2008, the government filed a two-count 9 indictment in connection with Deandrade's involvement in two 10 drug distribution rings between 1999 and 2006, one in the 11 Bronx, the other in Utica, New York. Count One charged 12 conspiracy to distribute and to possess with intent to 13 distribute 50 grams or more of cocaine base ("crack"), in 14 violation of 21 U.S.C. § 846. Count Two charged 15 distribution and possession with intent to distribute 50 16 grams or more of crack, in violation of 21 U.S.C. 17 §§ 841(a)(1), (b)(1)(A). 18 Pre-trial, the government filed a prior felony 19 information specifying that in December 1990 Deandrade was 20 convicted in Bronx County Family Court of the felony offense 21 of attempted criminal sale of a controlled substance in the 22 fifth degree. The government introduced this juvenile drug [End Page 3] 1 offense because, under federal law, a second felony drug 2 conviction triggers a mandatory minimum sentence of 20 years 3 (with a maximum of life imprisonment). See 21 U.S.C. 4 § 841(b)(1)(A). Deandrade's competing characterization of 5 that proceeding is that he was "adjudicated a juvenile 6 delinquent." 7 The government's case consisted of Deandrade's own 8 post-arrest statement and the testimony of three cooperating 9 witnesses. During the government's examination of two of 10 these witnesses, testimony was elicited (perhaps 11 inadvertently) that Deandrade was incarcerated during the 12 trial. Both times, Deandrade objected and moved for a 13 mistrial, the court denied the motions, and the prosecutor 14 shifted the questioning to a different topic. The 15 government did not later reference this evidence during the 16 trial. 17 The jury convicted Deandrade of both counts on April 18 17, 2008. Before sentencing, the Probation Office submitted 19 a Pre-Sentence Report that calculated a Guideline Sentence 20 of 360 months to life imprisonment and recommended a 21 sentence of 360 months. On September 25, 2008, the district 22 court sentenced Deandrade to two concurrent terms of 300 [End Page 4] 1 months' imprisonment. 2 On appeal, Deandrade submitted a counseled and a pro se 3 brief, each of which contests his conviction and his 4 sentence. As to his conviction, Deandrade argues that the 5 challenged testimony violated his right to be presumed 6 innocent, that the jury may have inferred that he was 7 incarcerated during trial because he was particularly 8 dangerous or a flight risk, that the district court 9 therefore abused its discretion in denying his motions for a 10 mistrial, and that the district court should have issued a 11 curative instruction--notwithstanding that he did not ask 12 for one. As to his sentence, Deandrade argues, first, that 13 his December 1990 juvenile adjudication is not a "prior 14 conviction" for purposes of 21 U.S.C. § 841(b)(1)(A); and 15 second, that, in any event, using his prior juvenile 16 adjudication to enhance his sentence violates Apprendi, 530 17 U.S. 466, because he had no right to a jury trial in that 18 adjudication. His pro se brief raises several other 19 arguments challenging both his conviction and sentence. 20 21 II 22 Deandrade cites two instances in which the government [End Page 5] 1 elicited testimony from its cooperating witnesses that 2 Deandrade was incarcerated during trial. The first occurred 3 during the examination of Ian Martin: 4 AUSA: When was the last time you spoke with the 5 defendant? 6 7 Martin: On the bus yesterday. 8 9 . . . 10 11 AUSA: When you say on the bus yesterday, 12 explain that. 13 14 Martin: He just asked me what was going on. 15 16 AUSA: That's the bus from where to where? 17 18 Martin: From MDC to the courthouse. 19 20 AUSA: Did you discuss your testimony today with 21 the defendant? 22 23 Martin: No. 24 25 AUSA: How would you describe your relationship 26 with the defendant at the time you were 27 dealing drugs with him? 28 29 Martin: We were good friends. 30 31 (emphasis added). In denying Deandrade's motion for a 32 mistrial, the court acknowledged that it was "unfortunate 33 that it came out the way it did," but concluded that it was 34 "appropriate for the government to seek to establish that 35 there had been some contact and some communication to negate 36 any suggestion of any greater contact and I think it's a [End Page 6] 1 relatively minor pleading matter and doesn't warrant a 2 mistrial." 3 The second instance came during the government's 4 examination of Daniel Macias: 5 AUSA: Did you discuss the defendant's case with 6 Mr. [Ian] Martin? 7 8 Macias: Daniel Deandrade? 9 10 AUSA: Right. 11 12 Macias: At the time I don't believe Daniel was 13 in. 14 15 AUSA: Can you tell us how the Utica drug 16 business operated? 17 18 Macias: Utica was split into two sections. . . . 19 20 (emphasis added). Again, Deandrade moved for a mistrial, 21 and again the motion was denied. 22 23 B 24 We review the denial of a motion for a mistrial for 25 abuse of discretion. United States v. Carson, 52 F.3d 1173, 26 1188 (2d Cir. 1995). 27 "The presumption of innocence . . . is a basic 28 component of a fair trial under our system of criminal 29 justice." Estelle, 425 U.S. at 503; see also Coffin v. 30 United States, 156 U.S. 432, 453 (1895). Accordingly, [End Page 7] 1 "courts must be alert to factors that may undermine the 2 fairness of the fact-finding process." Estelle, 425 U.S. at 3 503. We must consider "the likely effects [on the 4 presumption] of a particular procedure, based on reason, 5 principle, and common human experience." Id. at 504. It 6 follows, for example, that a defendant typically cannot be 7 "compelled to go to trial in prison or jail clothing because 8 of the possible impairment of the presumption so basic to 9 the adversary system"; such clothing would provide the jury 10 a "constant reminder of the accused's condition" and would 11 likely constitute "a continuing influence throughout the 12 trial. . . ." Id. at 504-05.2 13 This Court has applied Estelle and its principles in 14 several cases that are factually distinguishable from this 15 appeal. See, e.g., United States v. Gaines, 457 F.3d 238, 16 246 (2d Cir. 2006) (vacating a conviction because the jury 17 instructions allowed consideration of the defendant's 18 interest in the outcome of the case and the resulting motive 19 to testify falsely); United States v. Oshatz, 912 F.2d 534, 20 539 (2d Cir. 1990) (prohibiting guilt-assuming [End Page 2]
Deandrade wore civilian clothes while in the

courtroom during trial.[End Page 8] 1 hypotheticals); United States v. Thomas, 757 F.2d 1359, 2 1363-65 (2d Cir. 1985) (holding that the practice of 3 impaneling an anonymous jury does not violate the 4 presumption of innocence). Several circuits, however, have 5 applied Estelle on facts that are more analogous to this 6 case; and the rule that emerges is that brief and fleeting 7 references are generally allowed, but extended comment is 8 impermissible. See, e.g., United States v. Washington, 462 9 F.3d 1124, 1136-39 (9th Cir. 2006) (finding no plain error 10 in failure to grant a mistrial in part because "referring to 11 a defendant's incarceration is not constant as it is with 12 prison garb"); United States v. Atencio, 435 F.3d 1222, 1237 13 (10th Cir. 2006) (finding no violation in part because the 14 prosecutor made only an isolated comment that the defendant 15 was incarcerated pre-trial); United States v. Villabona- 16 Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995) (same); United 17 States v. Jackson, 549 F.2d 517, 527 n.9 (8th Cir. 1977) 18 (finding no violation where a juror's glimpse of the 19 defendant in prison clothes was fleeting); see also Estelle, 20 425 U.S. at 504-05 (expressing concern over practices that 21 impair the presumption of innocence by constituting a 22 "continuing influence throughout the trial" and a "constant [End Page 9] 1 reminder of the accused's condition"). 2 We adopt that approach, and hold that a brief and 3 fleeting comment on the defendant's incarceration during 4 trial, without more, does not impair the presumption of 5 innocence to such an extent that a mistrial is required. 6 Accordingly, the district court did not abuse its discretion 7 in denying Deandrade's motions for a mistrial. The two 8 instances in which the government witnesses commented on 9 Deandrade's incarceration during trial were isolated, 10 apparently unintentional on the part of the prosecution,3 11 and incidental to legitimate areas of inquiry; moreover, 12 notwithstanding the several comments comprising the first 13 instance, the government never referenced them thereafter. 14 See United States v. Castano, 999 F.2d 615, 618 (2d Cir. 15 1993) (concluding that it was "extremely unlikely" that 16 improperly admitted evidence contributed to the guilty 17 verdict because "[t]he introduction of the evidence was 18 inadvertent [and] . . . the prosecution did nothing to 19 emphasize the statements at the time they were made, and [End Page 3]
The government argues that it did not seek to elicit

the fact that Deandrade was incarcerated during trial. That

is persuasive as to the second instance, and plausible as to

the first.[End Page 10] 1 never referred to them thereafter"). 2 3 C 4 Deandrade also contends that the district court erred 5 in failing to issue a curative instruction prohibiting 6 consideration of the challenged testimony. It is unclear 7 whether Deandrade intends this argument to stand alone as a 8 ground for vacatur, or whether it is part of his mistrial 9 claim. Either way, Deandrade never requested a curative 10 instruction, and we therefore review his claim for plain 11 error. See United States v. Perrone, 936 F.2d 1403, 1413 12 (2d Cir. 1991). Plain error review allows (but does not 13 require) vacatur if the defendant proves: (1) error; (2) 14 that is "clear or obvious, rather than subject to reasonable 15 dispute"; (3) that affected substantial rights, "which in 16 the ordinary case means . . . that it affected the outcome 17 of the district court proceedings"; and (4) that "seriously 18 affect[s] the fairness, integrity or public reputation of 19 judicial proceedings." Puckett v. United States, 129 S. Ct. 20 1423, 1429 (2009) (internal quotation marks and citations 21 omitted). Plain error review is "strictly circumscribed" 22 and "[m]eeting all four prongs is difficult, as it should [End Page 11] 1 be." Id. at 1428, 1429 (internal quotation marks and 2 citations omitted). 3 "Defense counsel's failure to request specific 4 instructions may be overlooked where the prosecutor's 5 misconduct is so prejudicial that no instruction could 6 mitigate its effects"; but "in less egregious cases, the 7 failure to request specific instructions before the jury 8 retires will limit the defense's ability to complain about 9 the relative lack of curative measures for the first time on 10 appeal." United States v. Melendez, 57 F.3d 238, 242 (2d 11 Cir. 1995). This is one of those "less egregious cases." 12 The government never relied upon the challenged testimony, 13 and a curative instruction could easily have done more harm 14 than good by focusing the jurors on two allusive references 15 that they otherwise might have missed or construed as 16 innocuous. 17 Deandrade cites only United States v. Nixon, 779 F.2d 18 126, 133 (2d Cir. 1985); but Nixon does not address whether 19 a court commits plain error in failing to issue a curative 20 instruction sua sponte, and it is therefore of limited 21 utility to Deandrade. Accordingly, we affirm the 22 convictions. [End Page 12] 1 2 III 3 In imposing the sentence of two concurrent terms of 300 4 months' imprisonment, the district court determined that 5 Deandrade's drug-related juvenile adjudication constituted a 6 "prior conviction" that triggered the 20-year mandatory 7 minimum under 21 U.S.C. § 841(b)(1)(A), and that Apprendi, 8 530 U.S. 466, was satisfied notwithstanding that Deandrade 9 was not afforded the right to a jury trial in the juvenile 10 proceeding. On appeal, Deandrade challenges both 11 determinations. We do not consider the merits of these 12 arguments, however, because it is clear that the sentence 13 was unaffected by Deandrade's juvenile drug offense. See 14 Williams v. United States, 503 U.S. 193, 203 (1992) (remand 15 is inappropriate where "the error did not affect the 16 district court's selection of the sentence imposed"). 17 The Guidelines sentence, correctly calculated by the 18 court, was 360 months to life--independent of any 19 consideration of the contested juvenile adjudication. More 20 specifically, his base offense level was 38 (because 344 21 kilograms of crack were attributed to him), and he suffered 22 a four-level enhancement for being the leader of a drug [End Page 13] 1 distribution operation. See U.S. Sentencing Guidelines 2 Manual §§ 2D1.1(c)(1), 3B1.1(a). The combined offense level 3 of 42 called for a recommended Guideline sentence of 360 4 months to life. See id. at the Sentencing Table. The 300- 5 month sentence actually imposed exceeded (by 60 months) the 6 20-year mandatory minimum prescribed by § 841(b)(1)(A). It 7 is hard to see how any consideration of the juvenile 8 adjudication--which mattered only as to that mandatory 9 minimum--contributed to the sentence imposed. The district 10 court made clear that it did not: 11 I find that defendant would be subject to a 20- 12 year mandatory minimum if that [juvenile drug 13 offense] became a basis for the sentence. . . . 14 The presentence report lists the guidelines as 15 being 20 years to life, puts the floor at 20 16 because it proceeds on the correct assumption that 17 there is a 20-year mandatory sentence here. I 18 note, however, that the sentence is greater than 19 20 years without regard to the mandatory minimum, 20 that all that I say on that subject, and I've said 21 in the opinion which I've handed out, may be 22 regarded as dictum. 23 24 (emphasis added). It cannot matter whether the court's 25 dicta was sound, and we neither endorse nor reject it.4 We [End Page 4]
We note, without comment, that on similar facts the

Third Circuit has reached a different conclusion. See

United States v. Huggins, 467 F.3d 359, 361 (3d Cir. 2006)

(holding that a prior adjudication of delinquency may not be

counted as a conviction under 21 U.S.C. § 841(b)(1)(B)

because, unlike the Armed Criminal Career Act, Congress did[End Page 14] 1 are satisfied that this consideration had no influence on 2 the sentence that was imposed. 3 For these reasons, we affirm the sentence. 4 5 IV 6 Deandrade's pro se supplemental brief raises the 7 following claims: (1) the government lacked probable cause 8 for his arrest; (2) his post-arrest statement upon which the 9 government relied at trial should have been suppressed as 10 fruit of the poisonous tree; (3) the government perpetrated 11 a fraud on the court by falsifying documents; (4) the 12 government offered insufficient evidence on which to sustain 13 a conviction on either count; (5) the government offered 14 insufficient evidence that he was a leader of the drug 15 organization (for sentence-enhancement purposes); and (6) 16 his lawyer provided him constitutionally ineffective 17 assistance. We dismiss the ineffective assistance claim 18 without prejudice to it being raised in a future habeas 19 corpus petition. See United States v. Morris, 350 F.3d 32, 20 39 (2d Cir. 2003). We reject the remaining assignments of

not include a specific provision that a delinquency

adjudication should be considered a criminal conviction).[End Page 15] 1 error as conclusory and, in any event, without merit. 2 3 CONCLUSION 4 For the foregoing reasons, we affirm the judgment of 5 the district court.

[End Page 16]


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