United States v. Michael Aponte, 31 F.3d 86 (2d Cir. 1994). · Go Syfert
United States v. Michael Aponte, 31 F.3d 86 (2d Cir. 1994). Cases Citing This Book View Copy Cite
32 citation events (23 in the last 25 years) across 7 distinct courts.
Treatment trajectory · 1995 → 2026 · click a year to view as-of
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At page 88 Excluding statements to show capacity for deception18 citing casesIt is sufficient for these purposes that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee.7 citing courts put it this way · 17 listed here
  • United States v. Peralta, No. 18-982-cr (2d Cir. Mar. 12, 2019).unpublished
    (It is sufficient for [imposing an obstruction‐of‐justice enhancement] that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee.)
  • United States v. Barraza, 576 F.3d 798 (8th Cir. 2009).published 3 cites
    (fabricated statement and false descriptions were not offered for the truth of the matter asserted and therefore were not hearsay,” but were instead “offered to show . . . capacity for deception)
  • United States v. Mark Reed, 49 F.3d 895 (2d Cir. 1995).published 2 cites
    (It is sufficient for these purposes that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee.)
  • United States v. Johnson, No. 22-1404 (2d Cir. Sept. 11, 2024).unpublished
    With respect to the obstruction of justice enhancement, the fact that a “defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee,” is “sufficient to support imposing an obstruction enhan…
  • United States v. Daciann Dionne Brown, No. 20-4142-cr (L) (2d Cir. Dec. 9, 2021).unpublished
    But “it is sufficient [for purposes of § 3C1.1] that the defendant intended to fail to appear at a judicial proceeding, regardless of [her] reason for desiring to flee.” United States v. Aponte, 31 F.3d 86, 88 (2d Cir. 1994).
  • United States v. Lawani, 588 F. App'x 62 (2d Cir. 2014).unpublished
    (flight with intent to avoid judicial proceedings)
  • United States v. Erick Martinez, 650 F.3d 667 (7th Cir. 2011).published
    (It is sufficient ... that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee.)
  • United States v. Rivera, 28 F. App'x 55 (2d Cir. 2002).unpublished
    (It is sufficient for these purposes that the defendant intended to fail to appear at a judicial proceeding, regardless of [her] reason for desiring to flee.)
  • United States v. Salameh, 261 F.3d 271 (2d Cir. 2001).published
    See United States v. Kang, 225 F.3d 260, 261-62 (2d Cir.2000); United States v. Aponte, 31 F.3d 86, 88 (2d Cir.1994).
  • United States v. Salameh, 261 F.3d 271 (2d Cir. 2001).published
    See United States v. Kang, 225 F.3d 260, 261-62 (2d Cir. 2000); United States v. Aponte, 31 F.3d 86, 88 (2d Cir. 1994).
Show 7 more citing cases
  • United States v. Swanson, 253 F.3d 1220 (10th Cir. 2001).published
    (It is sufficient ... that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee.)
  • United States v. Guy Woodard, 239 F.3d 159 (2d Cir. 2001).published
    Unlike United States v. Aponte, 31 F.3d 86, 88 (2d Cir.1994), where we held that “[i]t [was] sufficient ... that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee,” the distric…
  • United States v. James Colon, Xue Yu Lin, 220 F.3d 48 (2d Cir. 2000).published
    This court reviews the district court’s determination as to the defendant’s role for clear error, see id. at 31 , and reverses the district court’s conclusion only for abuse of discretion, see United States v. Aponte, 31 F.3d 86, 88 (2d Ci…
  • United States v. Mark Reed, 88 F.3d 174 (2d Cir. 1996).published
    (It is sufficient for these purposes that the defendant- intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee.)
  • United States v. Sandra Reavis, United States of Am. v. Lance Thomas, A/K/A Anthony Mack, 48 F.3d 763 (4th Cir. 1995).published
    (abuse of discretion)
  • United States v. Rose, 251 F. App'x 708 (2d Cir. 2007).unpublished
    The district court was not required to find that Borihane had the specific intent to obstruct justice to find an obstruction of justice for these purposes because an attempted escape before trial or sentencing is conduct that “is so inhere…
  • United States v. Dabney, 152 F. App'x 13 (2d Cir. 2005).unpublished
    (It is sufficient ... that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee.)
At page 87 Admissibility of silence and witness conduct evidence7 citing casesprior false descriptions provided by the witness excluded under Rule 608(b) as extrinsic evidence of the witness’s character1 citing court put it this way
  • Hango v. Atkinson, 466 F. App'x 30 (2d Cir. 2012).unpublished
    (prior false descriptions provided by the witness excluded under Rule 608(b) as extrinsic evidence of the witness’s character)
  • United States v. Rosa, No. 05-3621-cr (2d Cir. Nov. 20, 2007).published
    We have 11 said that "an admission by silence is admissible [as evidence] if 12 'there are circumstances which render it more reasonably probable 13 that a man would answer the charge made against him than that he 14 would not.'" United St…
  • United States v. Rosa, No. 05-3621-cr (2d Cir. Nov. 1, 2007).published
    We have 11 said that "an admission by silence is admissible [as evidence] if 12 'there are circumstances which render it more reasonably probable 13 that a man would answer the charge made against him than that he 14 would not.'" United St…
  • United States v. Rosa, 507 F.3d 142 (2d Cir. 2007).published
    We have said that “an admission by silence is admissible [as evidence] if ‘there are circumstances which render it more reasonably probable that a man would answer the charge made against him than that he would not.’” United States v. Apon…
  • United States v. Thomas Tocco, Mario Ferranti Jack Ferranti, 135 F.3d 116 (2d Cir. 1998).published
    United States v. Aponte, 31 F.3d 86, 87 (2d Cir.1994).
  • United States v. Munoz-Mosquera, 101 F.3d 683 (2d Cir. 1996).unpublished
    In addition, some of the statements to which Munoz-Mosquera objects were admissible as his own admissions, see Fed.R.Evid. 801(d)(2)(A), or adoptive admissions, see Fed.R.Evid. 801(d)(2)(B), United States v. Aponte, 31 F.3d 86, 87 (2d Cir.…
  • United States v. Cook, 48 M.J. 236 (C.A.A.F. 1998).published
    See United States v. Aponte, 31 F.3d 86, 87 (2d Cir.1994); United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991); United States v. Andrus, 775 F.2d 825, 839-40 (7th Cir.1985); United States v. Moore, 522 F.2d 1068, 1075 (9th Cir. 1975…
At page 86 “a person ordinarily will respond to 19 an incriminatory or defamatory statement with a denial . . . .”2 citing cases2 citing courts quote it · passage not found verbatim in the opinion (90%)
  • United States v. Rosa, No. 05-3621-cr (2d Cir. Nov. 20, 2007).published
    We have 11 said that "an admission by silence is admissible [as evidence] if 12 'there are circumstances which render it more reasonably probable 13 that a man would answer the charge made against him than that he 14 would not.'" United St…
  • United States v. Rosa, No. 05-3621-cr (2d Cir. Nov. 1, 2007).published
    We have 11 said that "an admission by silence is admissible [as evidence] if 12 'there are circumstances which render it more reasonably probable 13 that a man would answer the charge made against him than that he 14 would not.'" United St…
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Michael APONTE, Defendant-Appellant
1473, Docket 93-1640.
Court of Appeals for the Second Circuit.
Aug 5, 1994.
Published opinion
31 F.3d 86
1994 U.S. App. LEXIS 20619
1994 WL 410015
Austin V. Campriello, Werner & Kennedy, New York City, for defendant-appellant., John M. Desmarais, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D. of N.Y., John W. Auchincloss II, Asst. U.S. Atty., of counsel), for appellee.
Winter, Walker, Ward.
Cited by 27 opinions  |  Published
WINTER, Circuit Judge:

Michael Aponte appeals from a conviction and sentence entered by Judge DiCarlo, [1] following a jury trial. The jury convicted Aponte of conspiracy to rob a United States Postal Service truck, in violation of 18 U.S.C. § 371, and aiding and abetting the armed robbery of a Postal Service truck, in violation of 18 U.S.C. §§ 2, 2114. Aponte was sentenced principally to imprisonment for 108 months. On appeal, Aponte argues that: (1) the admission of a cohort’s prior statement as a non-hearsay adoptive admission violated his Fifth Amendment right to a fair trial and Sixth Amendment right to confront his accuser, (2) the exclusion of certain documentary evidence as hearsay denied him a fair trial and an opportunity to present a defense, (3) the district court erred in sentencing by failing to decrease his base offense level for his minor or minimal role in the offense, and (4) the district court erred in sentencing by increasing his base offense level by two points for obstruction of justice.

First, with regard to the admission of the statement of Aponte’s cohort, Wilfredo Aguilar, an admission by silence is admissible if “there are circumstances which render it more reasonably probable that a man would answer the charge made against him than that he would not.” United States v. Flecha, 539 F.2d 874, 877 (2d Cir.1976) (quoting Wiedemann v. Walpole, 2 Q.B. 534, 539 (1891)). William Mogg testified that on the day after the robbery, Mogg, Aponte, Wilfredo Aguilar, and a person named Irving met in a hotel room. In this hotel room, Aponte sat on the hotel bed while the other three men stood. All four men engaged in conversation and watched television. Mogg testified that Aguilar claimed-to have robbed a post office truck and that Aguilar stated that Aponte “was in a National car.” According to Mogg, Aponte said nothing in response to Aguilar’s statement. The four people in the hotel room were positioned “basically close to each other,” and'Mogg testified that Aponte had participated at least minimally in the conversation.

Given that “a person ordinarily will respond to an incriminatory or defamatory statement with a denial, or at least with some indication that he objects to the statement as untrue,” United States v. Skulman, 624 F.2d 384, 390 (2d Cir.1980), it was within the district court’s discretion to conclude that it was reasonably probable that Aponte would have responded in some way if Aguilar’s incriminatory statement was false.

Aponte further contends that there should be a higher standard for the admissibility of adoptive admissions in criminal trials because of the danger that a defendant’s silence was motivated by fear of self-incrimination. Whatever its merits, this argument is inappo-site in the instant matter because Aguilar’s statement did not occur in a custodial or investigative context, where “silence may be motivated by advice of counsel or realization that ‘anything you say may be used against you.’” Fed.R.Evid. 801 advisory committee’s >note. Compare United States v. Williams, 577 F.2d 188, 194 (2d Cir.) (failure to deny involvement in conspiracy constitutes adoptive admission because statement occurred in non-custodial context), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978) with Flecha, 539 F.2d at 876-78 (failure to respond to incriminating statement does not constitute adoptive admission because statement made while under arrest and in presence of customs agent)..

Second, with regard to the exclusion as hearsay of a sworn statement containing fabrications by government witness Gregory Quiles and of other documents giv[*88] ing false descriptions of “robbers” provided by Quiles, the district court may have applied the wrong evidentiary rule, but the statements were nevertheless properly excluded. Quiles’ fabricated statement and false descriptions were not offered for the truth of the matter asserted and therefore were not hearsay. Fed.R.Evid. 801(c). Rather, the documents were offered to show Quiles’ capacity for deception. However, the statements were excludable as extrinsic evidence of the character and conduct of Quiles. “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility ... may not be proved by extrinsic evidence.” Fed.R.Evid. 608(b); see United States v. Weiss, 930 F.2d 185, 199 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 133, 116 L.Ed.2d 100 (1991); United States v. Schwab, 886 F.2d 509, 511 (2d Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990). Quiles’ prior statements were thus excludable under Fed.R.Evid. 608(b), and the exclusion did not result in constitutional error.

Third, with regard to the district court’s failure to decrease Aponte’s base offense level for his minor or minimal role in the offense, United States Sentencing Commission, Guidelines Manual, § 3B1.2 (Nov. 1992), the district court’s conclusion can be reversed only if it constitutes an abuse of discretion. Because there is evidence that Aponte was involved in the planning pf the Postal Service truck robbery and served as a look-out, we sustain the district court’s conclusion that Aponte did not play a minor or minimal role. Cf. United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990) (describing factors warranting finding of minor or minimal role).

Finally, with regard to the district court’s decision to increase Aponte’s base offense level for obstruction of justice, see U.S.S.G. § 3C1.1 (Nov. 1992), the district court imposed the increase because Aponte failed to appear for several days after his case went to the jury and a verdict was returned. Relying upon our decision in United States v. Stroud, 893 F.2d 504 (2d Cir.1990), Aponte contends that the increase was error because he did not willfully obstruct justice. In Stroud, we stated that “ ‘willfully,’ as used in section 3C1.1, requires that the defendant consciously act with the purpose of obstructing justice.” Id. at 507 (emphasis in original).

However, we have never held that a finding of intentional flight from judicial proceedings also requires an additional finding that the defendant fled with the purpose of obstructing justice. To the contrary, in United States v. Keats, 937 F.2d 58 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991), we held that “intentional flight from judicial proceedings is sufficient to support imposing an obstruction enhancement pursuant to § 3C1.1.” Id. 937 F.2d at 67. It is sufficient for these purposes that the defendant intended to fail to appear at a judicial proceeding, regardless of his reason for desiring to flee. Accord United States v. Taylor, 997 F.2d 1551, 1559-60 (D.C.Cir.1993); United States v. McCarthy, 961 F.2d 972, 979-80 (1st Cir.1992); United States v. St. Julian, 922 F.2d 563, 571 (10th Cir.1990); see also United States v. Teta, 918 F.2d 1329, 1333-34 (7th Cir.1990) (refusing to distinguish intentional failure to appear done with purpose of disregarding law from intentional failure to appear done with purpose of obstructing justice).

Moreover, since Stroud, a revision to the Application Note to section 3C1.1, see U.S.S.G.App.C, Amend. 347 (effective Nov. 1, 1990), provides that the sentence enhancement applies to “escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding.” U.S.S.G. § 3C1.1, comment. (n.3(e)) (emphasis added). This revision is an explicit rejection of appellant’s argument. Because the district court properly found that Aponte had intentionally failed to appear for the return of the verdict, see Fed.R.Crim.P. 43(a) (requiring defendant’s presence “at every stage of the trial including ... the return of the verdict”), we uphold the enhancement for obstruction of justice.

Affirmed.

1

. Chief Judge, United States Court of International Trade, sitting by designation.