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18‐3415
United States v. Arce

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT,
A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 17
th
day of January, two thousand twenty.

PRESENT: RALPH K. WINTER,
PETER W. HALL,
Circuit Judges,
DENISE COTE,*
District Judge.
_____________________________________

United States of America,

Appellee,

v. 18‐3415

Daniel Monsanto Lopez, AKA Morra, Roberto
Lizardo, AKA Gordo, Osiris Lucho Mesa, AKA
Flaco, Jose Gutierrez,

* Judge Denise Cote, of the United States District Court for the Southern District of
New York, sitting by designation.

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Defendants,

Roberto Arce, AKA Luis,

Defendant‐Appellant.
_____________________________________

For Appellant: M
ICHAEL P. KUSHNER, Kushner Law Group,
PLLC, Brooklyn, NY.

For Appellee: N
ATHAN REHN, Robert B. Sobelman,
Elizabeth Hanft, Assistant United States
Attorneys for Geoffrey S. Berman, United
States Attorney for the Southern District of
New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern
District of New York (Buchwald, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Roberto Arce appeals from a judgment of the United States District
Court
for the Southern District of New York (Buchwald, J.) entered on October 29, 2018
convicting Arce of conspiracy to distribute and possess with intent to distribute
cocaine and sentencing him to 120 months’ imprisonment. We assume the
parties’ familiarity with the underlying facts, the record of prior proceedings, and

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arguments on appeal, which we reference only as necessary to explain our decision
to affirm.
I.
Defendant‐Appellant Roberto Arce was convicted following a jury trial of
conspiracy to distribute and possess with intent to distribute cocaine in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(A). Appellant argues that
the Government
violated Rule 16 of the Federal Rules of Criminal Procedure by belatedly
producing certain materials and that the district court’s ruling that some of these
materials could be entered into evidence at trial was error, warranting reversal of
his conviction. According to Appellant, despite a representation at a March
2017
status conference that it had produced all of the Rule 16 discovery in this case, the
Government produced subsequent packages of Rule 16 material to the defense in
February 2018, shortly before trial was scheduled to begin. Defense counsel
sought suppression of the evidence contained in the February 2018
productions,
or alternatively, a continuance of trial. The district court adjourned trial for three
weeks for defense counsel to review the evidence; defense counsel did not object
to this continuance.
Appellant further contends that all the evidence presented at trial was

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insufficient to sustain his conviction, challenging the direct evidence against him
as not indicative of his involvement in a drug conspiracy and the testimony of
cooperating witnesses tying him to the conspiracy as “unbelievable.” Appellant
Br. at 20. He argues that his conviction should be reversed.
II.
“[A]n order
under Rule 16(d)(2)” to remedy a discovery violation “will not
be set aside except for abuse of discretion.” United States v. Sanchez, 912 F.2d 18,
21 (2d Cir. 1990) (internal quotation marks and citations omitted). We review
insufficiency of evidence claims de novo. United States v. Geibel, 369 F.3d
682, 689
(2d Cir. 2004).
III.
Federal Rule of Criminal Procedure 16(a)(1)(E) provides that:
Upon a defendant’s request, the government must permit the
defendant to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, buildings or places,
or copies or portions of any of these items, if
the item is within the
government’s possession, custody, or control and: (i) the item is
material to preparing the defense; (ii) the government intends to use
the item in its case‐in‐chief at trial; or (iii) the item was obtained from
or belongs to the defendant.

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Appellant argues that the Government belatedly produced certain evidence in
violation of Rule 16(a)(1)(E) and that the district court erred in failing to exclude
this evidence. Instead, the district court granted a three‐week continuance to
allow Appellant’s defense team to review these materials.
We do not find a
violation of Rule 16. Rule 16 requires that the
Government “permit the defendant to inspect and to copy” certain materials
“[u]pon a defendant’s request.” Id. The plain language of the Rule does not
require the Government to produce these materials absent a defendant’s request.
Here, in October 2016,
the Government disclosed the existence of the evidence in
its possession and made the evidence available for inspection. As it gathered
additional evidence shortly before trial, that evidence was promptly produced to
defense counsel. Following the adjournment of the trial, defense counsel had
over one month to review the materials produced
by the Government and did not
object to the district court’s continuance as providing insufficient time in which to
review the materials. On this record, we decline to find a violation of Rule 16.
In any event, even if a violation of Rule 16 had occurred, the district court
was
well within its broad discretion to determine that a continuance, rather than
the exclusion of evidence, sufficed to cure any harm Appellant alleges he suffered.

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Where a violation of Rule 16 has occurred, “the court may . . . grant a continuance”
to remedy such a violation as long as the violation did not cause the defendant
substantial prejudice. Fed. R. Crim. P. 16(d)(2)(B); see also United States v. Lee, 834
F.3d 145, 158
(2d Cir. 2016) (“A district court’s decision not to exclude evidence
that was the subject of a Rule 16(a) violation is not grounds for reversal unless the
violation caused the defendant substantial prejudice.” (citation omitted)). Here,
Appellant received the materials he argues were untimely produced over a month
before trial
ultimately began. Appellant did not suggest below that this was an
insufficient amount of time to review these materials. Appellant also has not
articulated on appeal a basis to find that he was prejudiced by the timing of this
production and one is not easily imagined.
IV.
A conviction will be
upheld against a sufficiency of the evidence challenge
if “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Persico, 645 F.3d 85, 105 (2d Cir.
2011) (internal quotation marks and citation omitted). We view the evidence in
the light most favorable to the Government, United States v. Temple, 447 F.3d 130,

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136 (2d Cir. 2006), taking the evidence as cumulative and crediting each inference
that the jury may have drawn in favor of the prosecution. Persico, 645 F.3d at 104.
Here, there was enough evidence that a rational trier of fact could have
found Appellant guilty. The Government presented evidence
showing, among
other things: Appellant carried a box from a known stash house, and that the box
had similar characteristics to boxes containing cocaine; the IP address for
Appellant’s apartment was used to track packages going to the stash house that
were similar to packages containing cocaine, and some packages
that the evidence
suggested contained cocaine; Appellant was using a “burner phone” provided by
a coconspirator to communicate about the package of drugs; Appellant arranged
for thousands of dollars to be transported to a coconspirator; Appellant picked up
a package that coconspirators understood to contain cocaine, and he explained
that the
contents had been sold already; Appellant had a scale for weighing drugs
and the same vessel used for shipping and hiding the cocaine in his apartment;
and Appellant was listed on what appeared to be a drug ledger found at the stash
house.
Appellant contends that the testimony of three
cooperating witnesses was
not believable and, therefore, much of the evidence tying him to the conspiracy

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should not be credited. This argument fails. “It is the province of the jury and
not of the court to determine whether a witness who may have been inaccurate,
contradictory and even untruthful in some respects was nonetheless entirely
credible in the essentials of his testimony.” United States v.
O’Connor, 650 F.3d 839,
855 (2d Cir. 2011) (internal quotations marks omitted). Appellant has provided no
reason for us to second guess the credibility determinations of the jury, especially
where, as here, the cooperating witnesses testified about their agreements with the
Government and the impact that lying would have on
those agreements.
* * *
We have considered Appellant’s remaining arguments and find them to be
without merit.

We hereby AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court