U N I T E D STATES COURT OF APPEALS

F O R THE SECOND CIRCUIT

S U M M A R Y ORDER

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E S T O P PE L OR RES JUDICATA.

A t a stated term of the United States Court of Appeals for the Second Circuit, held at

t h e United States Courthouse, Foley Square, in the City of New York, on the 19th day of

Jun e, two thousand six.

PRESENT: H O N O R A B L E JOSEPH M. M c L A U G H L I N ,

H O N O R A B L E REENA RAGGI,

C i r c u i t Judges,

H O N O R A B L E KENNETH M. KARAS,1

D i s t r ic t Judge.

-

U N I TE D STATES OF AMERICA,

A p p e l l e e,

v. No . 05-2981-cr

F R A N T Z BOULOUTE,

D e f e n d a n t - A p p e ll a n t.

A P P E A R I N G FOR APPELLANT: R I C H A R D B. ROSENTHAL, Miami,

F l o r id a .

A P P E A R I N G FOR APPELLEE: P A I G E PETERSEN, Assistant U n i t e d

S t a t e s Attorney, (Susan Corkery, Assistant

U n i t e d States Attorney, on the brief), for

R o s l yn n R. Mauskopf, United States

A tto rn ey, Eastern District of New York, Br o o k l y n , New York.

A p p e a l from the United States District Court for the Eastern District of New York (I.

Le o Glasser, Judge).

U P O N DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND D E C R E E D that the judgment of the district court, entered on June 10, 2005, is AFFIRMED.

D e f e n d a n t Frantz Bouloute was convicted after a jury trial on three counts of kno win gly and intentionally conspiring to import, actually importing, and attempting to p o s s e s s with intent to distribute five or more kilograms of cocaine in violation of 21U.S.C.

§ § 841, 846, 952(a), 960, 963. Presently incarcerated and serving a 130-month term of i n c a r ce r a t io n , Bouloute appeals on the grounds that (1) the trial evidence was legally i n s u f f ic i e n t to support guilty verdicts on any of the counts of conviction, (2) the district court erron eous ly admitted certain prejudicial evidence, and (3) his sentence is unreasonable. In r e v i e wi n g these claims, we assume the parties' familiarity with the facts and the record of p r i o r proceedings.

1. T h e Sufficiency Challenge A defendant raising a sufficiency challenge to his conviction bears a "heavy burden," U n i t e d States v. Xiao Qin Zhou, 428 F.3d 361, 369-70 (2d Cir. 2005), because although our standard of review is de novo, United States v. Reyes, 302 F.3d 48, 52-53 (2d Cir. 2002), we c o n s i d e r the evidence in the light most favorable to the government, crediting every inference t h e jury might have drawn in the government's favor, and deferring to the jury's d e t e r m in a t i o n of the weight of the evidence and the credibility of witnesses, see, e.g., United S t a t e s v. Bruno, 383 F.3d 65, 82 (2d Cir. 2004). We will uphold the jury verdict if "any r a t io n a l trier of fact could have found the essential elements of the crime beyond a reasonable d o u b t . " United States v. Xiao Qin Zhou, 428 F.3d at 369-70; see Jackson v. Virginia, 443 U.S . 307, 319 (1979).

Bo ulou te essentially concedes the sufficiency of all elements of the three counts of c o n v i c ti o n except for mens rea. He contends that the evidence was insufficient to prove his k n o w l e d g e of the cocaine conspiracy and, therefore, his specific intent to traffic in cocaine a s opposed to some other substance. See generally United States v. Svoboda, 347 F.3d 471, 4 7 9 (2d Cir. 2003) (explaining how resolution of knowledge component of mens rea may a l s o resolve issue of intent). The argument is without merit and warrants little discussion.

C o - c o n s p i ra t o r Robert Douyon provided direct evidence of Bouloute's culpable k n o w l e d g e and intent when he testified to a conversation in which Bouloute stated that he h a d a way to smuggle "drugs out of the airport" and asked if Douyon knew anyone who wo uld be interested in that "service." Trial Tr. 84. This testimony, which we must assume t h e jury credited, is sufficient, by itself, to evidence Bouloute's guilty knowledge and intent.

S e e United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006) (collecting cases holding that unc orro bor ated testimony of single accomplice can support federal conviction).

In any event, extensive circumstantial evidence corroborates Bouloute's knowledge a n d intent. See United States v. MacPherson, 424 F.3d 183, 189-90 (2d Cir. 2005) ( c o l le c t in g cases recognizing that circumstantial evidence can, by itself, demonstrate guilty k n o w l e d g e and intent). First, there is no question that the smuggled merchandise was, in fact, cocaine. Second, Bouloute was not some peripheral participant in the smuggling s c h e m e ; he was its instigator. From these facts, as well as Bouloute's statements a c k n o w l e d g i n g past suitcase smuggling ventures worth at least one million dollars, his efforts to take personal possession of the cocaine-laden suitcase in this case, his recruitment of key c o n f e d e r a t e s , and his participation in critical conversations discussing kilogram quantities, p r i c e s , and the involvement of a Colombian cartel, a reasonable jury could certainly infer that Bo ulou te knew that what he was orchestrating was a drug transaction. See United States v. C r u z , 363 F.3d 187, 199 (2d Cir. 2004). Alternatively, the circumstantial evidence permitted t h e jury to conclude that Bouloute was aware of a "high probability" that his smuggling v e nture involved cocaine and that he "consciously avoided" confirming that fact. Such c o n s c i o u s avoidance is sufficient to satisfy the knowledge requirements of a crime. See, e.g., U n i t e d States v. Aina-Marshall, 336 F.3d 167, 171 (2d Cir. 2003); see also United States v. S v o b o d a , 347 F.3d at 477.

Bou lo u te's attempts to hypothesize innocent inferences from the cited circumstances are far-fetched and unconvincing, but even where alternative inferences are plausible, "it is t h e task of the jury, not the court, to choose among competing inferences." United States v. M o r g a n , 385 F.3d 196, 204 (2d Cir. 2004) (internal quotation marks omitted); see also U n i t e d States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). We have "long recognized that d r u g dealers seldom negotiate the terms of their transactions with the same clarity as business p e r s o n s engaged in legitimate transactions." United States v. Garcia, 291 F.3d 127, 139 (2d Cir. 2002). Therefore, the totality of the circumstances in this case suffices to permit a r e a s o nable jury to infer Bouloute's knowing and intentional trafficking in cocaine.

Ac cord ingly, we reject Bouloute's sufficiency challenge as without merit.

2. T h e Evidentiary Challenges W e review a district court's evidentiary rulings only for abuse of discretion, see U n i t e d States v. Paulino, 445 F. 3d 211, 217 (2d Cir. 2006) (collecting cases), and find none in this case.

T he district court properly admitted Bouloute's May 8, 2003 statements acknowledging p r i o r suitcase smuggling both as (1) part of a conversation that proved the existence of the c h a r g e d conspiracy and (2) prior bad acts relevant to the disputed issues of knowledge and i n t e n t without unfair prejudice to the defendant. See Fed. R. Evid. 404(b); Huddleston v. U n i t e d States, 485 U.S. 681, 691 (1988); United States v. Paulino, 445 F.3d at 221-23; United S t a t e s v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999); United States v. Pipola, 83 F.3d 556, 565 (2d Cir. 1996).

A s for Agent Callahan's testimony regarding what a confidential informant told him a b o u t prior cocaine dealing with Bouloute, the evidence appears to be inadmissible hearsay.

T h e defense, however, failed to note such a ground for objection on the record.2 Accordingly, w e review only for plain error, see United States v. Olano, 507 U.S. 725, 732 (1993); United S t a t e s v. Paulino, 445 F.3d at 216 n.1, and find none because the other evidence, when viewed in the light most favorable to the government, overwhelmingly established Bouloute's guilty k n o w l e d g e and intent. Thus, Bouloute "cannot show that the alleged error `affect[ed] his s u b s t a n ti a l rights' or `seriously affect[ed] the fairness, integrity[,] or public reputation of j u d i c ia l proceedings.'" United States v. Paulino, 445 F.3d at 216 n.1 (quoting United States v . Olano, 507 U.S. at 732) (alterations in original). As detailed above, Douyon provided d i r e c t evidence that Bouloute knowingly and intentionally orchestrated a scheme to import c o c a i n e through Newark Airport. Extensive circumstantial evidence demonstrating Bou loute's instigation of and involvement in the drug trafficking operation convincingly f u r t h e r indicated that he had to have known and intended that the object of the scheme was c o c a i n e . Thus, any error in the admission of a hearsay statement about a past cocaine deal wa s plainly harmless. See id. at 219.

A cc or di ng ly, we reject Bouloute's evidentiary challenges to his conviction as without merit. 3. T h e Sentencing Challenge Bo ulou te contends that the 130-month prison term imposed in his case is unreasonable both because the district court failed to consider all the sentencing factors enumerated in 18 U . S. C . § 3553(a), and because his sentence is "greater than necessary" to do justice in this c a s e , id. The first argument is foreclosed by our decision in United States v. Fernandez, w h i c h holds that "we presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged [his] duty to consider the [§ 3553(a)] factors." 4 4 3 F.3d 19, 30 (2d Cir. 2006). Nothing in the record of this case warrants an exception to t h i s presumption.

A s for Bouloute's challenge to the length of his sentence, we have ruled that " [ a ] lt h o u g h the brevity or length of a sentence can exceed the bounds of `reasonableness,' we anticip ate encountering such circumstances infrequently." United States v. Fleming, 397 F.3d 9 5 , 100 (2d Cir. 2005). This is not such a rare case. The 130-month sentence is only ten m o n t h s higher than the ten-year minimum sentence mandated by statute. See 21U.S.C. §§ 841(b)(1)(A )(ii)(II), 960(b)(1)(B)(ii). Further, it is twenty-one months less than the low end o f Bouloute's Sentencing Guidelines range of 151 to 188 months. The district court selected t h e lesser sentence precisely because, after considering all relevant factors, it concluded that a 151-month sentence was greater than necessary to do justice in the case. In these c i r c u m s t a n c e s , we will not substitute our judgment for that of the sentencing judge in deciding t h e precise lesser sentence sufficient but not greater than necessary to do justice. See United S t a t e s v. Florez, 447 F.3d at 157-58; United States v. Fernandez, 443 F.3d at 27.

T h e district court's June 10, 2005 judgment of conviction is hereby AFFIRMED.

F O R THE COURT: R O S E A N N B. MACKECHNIE, CLERK B y:

1 The Honorable Kenneth M. Karas, of the United States District Court for the S o u t h e r n District of New York, sitting by designation.

2 Bouloute acknowledges that the district court understood the defense's objection to O f f i c e r Callahan's testimony to invoke Fed. R. Evid. 404(b). He attempts to excuse his failure to raise a specific hearsay objection by asserting that defense counsel was not p e r m i t te d to state the ground for objection. The record does not support the assertion. In any even t, Bouloute never requested a sidebar to clarify the hearsay ground for his objection nor did he avail himself of the opportunity provided by a sidebar requested by the government to make this point.