Case 1:20-cr-00182-VEC Document 197 Filed 05/24/23 Page 1 of 8
`Case 21-3006, Document 66, 05/24/2023, 3520739, Page1 of 8
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`21-3006-cr
`United States v. Burgos
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`SUMMARY ORDER
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`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.
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`
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`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 18th day of April, two thousand twenty-three.
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`PRESENT:
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`No. 21-3006-cr
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`PIERRE N. LEVAL,
`DENNY CHIN,
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`EUNICE C. LEE,
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`Circuit Judges.
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`UNITED STATES OF AMERICA,
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`Appellee,
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`v.
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`TYRONE HOWARD, AKA SEALED DEFENDANT 2,
`BOBBY RAMOS, AKA TY, AKA SEALED DEFENDANT
`3, ODALYS ROJAS, AKA SEALED DEFENDANT 4,
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`JONATHAN BURGOS, AKA SEALED DEFENDANTS 1,
`AKA JOHN JOHN,
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`Defendants,
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`Defendant-Appellant.
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`MANDATE
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`MANDATE ISSUED ON 05/24/2023
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`May 24 2023
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`N.Y.S.D. Case #
`20-cr-0182(VEC)
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`Case 1:20-cr-00182-VEC Document 197 Filed 05/24/23 Page 2 of 8
`Case 21-3006, Document 66, 05/24/2023, 3520739, Page2 of 8
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`For Defendant-Appellant:
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`For Appellee:
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`Jonathan Rosenberg,
`Rosenberg Law Firm,
`Brooklyn, NY.
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`Samuel P. Rothschild, Micah F.
`Fergenson, Danielle R. Sassoon,
`Assistant United States Attorneys,
`on behalf of Damian Williams,
`United States Attorney for the
`Southern District of New York,
`New York, NY.
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`Appeal from a judgment of the United States District Court for the Southern District of
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`New York (Caproni, J).
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`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
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`DECREED that the judgment of the district court is AFFIRMED.
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`Jonathan Burgos appeals from a judgment and sentence entered following a jury trial at
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`which he was convicted of one count of conspiracy to distribute narcotics, in violation of 21 U.S.C.
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`§ 846, and one count of possession of narcotics with intent to distribute, in violation of 21 U.S.C.
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`§ 841. On appeal, Burgos argues that the district court: (1) erred in denying his suppression
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`motion; (2) abused its discretion in admitting various evidence; and (3) committed procedural error
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`at sentencing. We assume the parties’ familiarity with the underlying facts, procedural history,
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`and issues on appeal, which we reference only as necessary to explain our decision to affirm.
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`I. Motion to Suppress
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`Burgos was arrested on February 6, 2020, following a months-long New York Police
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`Department (NYPD) investigation into a cocaine ring Burgos allegedly ran. The deaths of two
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`people from drug overdoses prompted the investigation into Burgos, who had allegedly provided
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`the victims with cocaine. The complaint submitted in support of the arrest warrant contained a
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`sworn statement from NYPD Detective Lee Arroyo that a white van involved in an undercover
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`buy of cocaine was “registered to Burgos.” United States v. Burgos et al., 20 Cr. 182 (VEC), Dkt.
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`No. 1 ¶ 7(f) (S.D.N.Y. Feb. 3, 2020). On May 13, 2020, three months after Burgos’s arrest, the
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`government informed defense counsel that this statement was inaccurate because the white van
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`did “not in fact appear to be registered to Burgos.” Id. Dkt. No. 89-1 at A50 (S.D.N.Y. Oct. 15,
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`2020). Following receipt of the letter, Burgos moved to suppress the fruits of the arrest warrant,
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`including drugs and drug paraphernalia recovered pursuant to a search warrant obtained on the
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`basis of evidence Arroyo observed during Burgos’s arrest. In the alternative, Burgos requested a
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`hearing under Franks v. Delaware, 438 U.S. 154 (1978), to determine whether the falsehood in
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`the arrest warrant was material to the finding of probable cause and whether the falsehood was
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`intentional or made with a reckless disregard for the truth.
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`At the subsequent Franks hearing, Arroyo testified that what he meant by the factually
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`inaccurate statement that the white van was “registered” to Burgos was that Burgos owned the
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`vehicle. Arroyo testified that he believed that the van was owned by Burgos because he had been
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`told this by a confidential informant and because, in the course of his investigation, Arroyo had
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`observed Burgos (and no others) driving the white van. Ultimately, the court denied the motion
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`to suppress, concluding that, though the misstatement regarding the registration of the white van
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`was necessary to the finding of probable cause for the arrest warrant, Burgos had not met his
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`burden under Franks of demonstrating that the factual misstatement regarding the van’s
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`registration status was intentionally or recklessly made. On appeal, Burgos argues that this
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`conclusion was erroneous.1
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`1 Burgos also argues that the district court erred in failing to consider the omission from the complaint that Arroyo’s
`knowledge of the van’s ownership came from a confidential informant. According to Burgos, the district court should
`3
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`“It is an axiom of appellate procedure that we review legal questions de novo and questions
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`of fact for clear error,” and this “axiom holds true in the context of Franks hearings.” United
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`States v. Rajaratnam, 719 F.3d 139, 153 (2d Cir. 2013). Whether a person acted intentionally or
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`with “reckless disregard for the truth is a factual question of intent, and we therefore review the
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`court’s decision for clear error.” Id. (internal quotation marks omitted). We “recognize[] clear
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`error only when [we are] left with a definite and firm conviction that a mistake has been
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`committed.” Id. (internal quotation marks omitted). We are not left with that conviction here.
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`The district court’s credibility finding is entitled to “great[] deference,” and we find no clear error
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`in its conclusion that Arroyo’s misstatement did not rise to the level of intentional or reckless
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`disregard for the truth. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985).
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`II. Evidentiary Issues
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`Burgos’s challenges to the district court’s evidentiary rulings fare no better. He challenges
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`two of the district court’s evidentiary rulings: (1) the admission of evidence from a 2016 search of
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`an apartment connected to Burgos; and (2) the admission of testimony from witness Melissa Garcia
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`identifying Burgos. We review both decisions for abuse of discretion. United States v. Litvak,
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`889 F.3d 56, 67 (2d Cir. 2018).
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`A. Evidence of the 2016 Search
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`According to Burgos, evidence of a 2016 search of an apartment located at 1735 Lafayette
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`Avenue (“Lafayette Apartment”) was improperly admitted under Federal Rule of Evidence 404(b)
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`because there was insufficient evidence that the apartment, and thus the contraband found there,
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`was connected to Burgos. In the event that evidence from the 2016 search was admissible, Burgos
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`have analyzed whether this omission was intentional or made with a reckless disregard for the truth. Burgos failed to
`make this argument below and it is therefore waived. United States v. Klump, 536 F.3d 113, 120 (2d Cir. 2008)
`(observing, in the context of a Franks challenge, that “the failure to assert a particular ground in a pre-trial suppression
`motion operates as a waiver”).
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`4
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`argues it should have been excluded as unduly prejudicial under Federal Rule of Evidence 403.
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`Rule 404(b) prohibits the admission of “[e]vidence of any other crime, wrong, or act” to
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`“prove a person’s character in order to show that on a particular occasion the person acted in
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`accordance with the character.” Fed. R. Evid. 404(b)(1). However, such “evidence may be
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`admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,
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`knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). The
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`government argued that the evidence of the 2016 search and the drugs recovered from the Lafayette
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`Apartment were relevant to rebut Burgos’s defense that he only operated a barbershop out of the
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`apartment where he was arrested and thus that he was unconnected to the drugs found there. This
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`was the same claim he made regarding the 2016 search of the Lafayette Avenue apartment. Given
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`this defense, evidence of the 2016 search of the Lafayette Apartment was admissible under Rule
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`404(b)(1) to establish Burgos’s knowledge and intent regarding the drugs recovered from
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`apartments Burgos claimed to use only as barbershops. The district court did not abuse its
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`discretion in admitting the 2016 search of the Lafayette Apartment into evidence.
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`Nor did the district court abuse its discretion in determining that a reasonable jury could
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`find the necessary conditional fact—that Burgos knew of the drugs found in the 2016 search of the
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`Lafayette Apartment—by a preponderance of the evidence. See Huddleston v. United States, 485
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`U.S. 681, 690 (1988) (evidence admitted under Rule 404(b) whose relevance depends on a
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`conditional fact is admissible so long as the court determines that “the jury could reasonably find
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`the conditional fact . . . by a preponderance of the evidence”). Burgos was the only person in the
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`Lafayette Apartment during the 2016 search, he was seen emerging from the back bedroom, and
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`mail addressed to him and bearing the address for the Lafayette Apartment was recovered during
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`the search. Based on this evidence, a reasonable jury could have found that Burgos did more than
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`run a barbershop out of the Lafayette Apartment and that he knew of the drugs contained therein.
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`Finally, the court did not abuse its discretion in admitting evidence of the 2016 search over
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`Burgos’s Rule 403 objection. Burgos’s contention that “the district court failed to make any
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`assessment of unfair prejudice, let alone conduct the conscientious, careful assessment required
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`under Rule 403,” Appellant’s Br. at 50, is contradicted by the district court’s extensive dialogue
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`on the question of prejudice with counsel at the final pre-trial conference and its exclusion of
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`evidence that guns and ammunition were found in the Lafayette Apartment.
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`B. Melissa Garcia’s Testimony
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`During trial, Melissa Garcia, the sister of one of the overdose victims, testified that she
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`learned at her brother’s funeral that Burgos was the cocaine dealer known as “John John.” Burgos
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`now argues that the district court abused its discretion in admitting this testimony because the
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`government failed to lay an adequate foundation for how Garcia came to know that “John John”
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`was Burgos. Trial counsel did not object on this basis below as a strategic matter because laying
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`the foundation, i.e., referencing the funeral at which Garcia allegedly met Burgos, would require
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`revealing that Burgos’s activities had resulted in an overdose death and the government had
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`specifically stipulated that it would not elicit any testimony from Garcia regarding her brother’s
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`death. Accordingly, this argument is waived. United States v. Quinones, 511 F.3d 289, 321 (2d
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`Cir. 2007) (“The law is well established that if, as a tactical matter, a party raises no objection to
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`a purported error, such inaction constitutes a true waiver which will negate even plain error
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`review.” (internal quotation marks omitted)).
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`III.
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`Sentencing
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`The district court sentenced Burgos to 90 months’ imprisonment and five years’ supervised
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`release on December 7, 2021. This sentence reflected an upward variance from the Guidelines
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`Case 1:20-cr-00182-VEC Document 197 Filed 05/24/23 Page 7 of 8
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`range of 41 to 51 months. The district court justified this upward variance on the grounds that (1)
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`above and beyond the average serious drug offense, Burgos was on heightened notice of the impact
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`of his conduct because he was personally aware of the two overdose deaths his sale of drugs had
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`caused and yet had continued to deal drugs; (2) Burgos’s history of drug dealing indicated he had
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`no respect for the law, particularly given that he held a full-time job in tandem with his dealing
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`and was not dealing to feed a personal habit; (3) Burgos was the most culpable of the co-
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`conspirators; (4) Burgos was in particular need of personal deterrence given his history of arrests
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`for similar conduct, including his 2016 arrest where he was found with “drugs, guns, and cash,”
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`and the fact that neither the overdose deaths nor his role as a father had deterred his illegal activity;
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`and (5) there was a need to protect the public given the guns found in 2016 and that he had sold
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`drugs that had resulted in deaths. Burgos urges this Court to find that the district court procedurally
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`erred by basing its upward variance in part on the facts of the 2016 search because it was not
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`proven by a preponderance of the evidence that the criminal evidence recovered during that search
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`belonged to Burgos.
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`Burgos is correct that courts are required to find facts relevant to sentencing by a
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`preponderance of the evidence, see United States v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005), but
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`his argument that the facts of the 2016 search and arrest did not meet the preponderance standard
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`is meritless. As already mentioned, Burgos was the only person in the apartment during the 2016
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`search, he was seen emerging from the back bedroom, and mail addressed to him and bearing the
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`address for the apartment was recovered during the search. This was more than enough evidence
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`for the district court to find the facts of the 2016 search established by a preponderance of the
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`evidence and on which to base its upward variance.
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`*
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`*
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`*
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`For the above reasons, we AFFIRM the judgment of the district court.
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`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk of Court
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