Filed: Sep. 28, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3334-cr (L), 09-3441-cr (Con), 09-3777-cr (Con) United States v. Uvino 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 ELECTRON
Summary: 09-3334-cr (L), 09-3441-cr (Con), 09-3777-cr (Con) United States v. Uvino 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 ELECTRONI..
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09-3334-cr (L), 09-3441-cr (Con), 09-3777-cr (Con)
United States v. Uvino
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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28 th day of September, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT A. KATZMANN,
9 DEBRA A. LIVINGSTON,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15 09-3334-cr
16 -v.- 09-3441-cr
17 09-3777-cr
18 ROBERT DEY, THOMAS FRANZESE,
19 JOHN TRIPI,
20 Defendants,
21
22 PHILIP COSTANZA, MICHAEL UVINO,
23 BRIAN DONO,
24 Defendants-Appellants.
25 - - - - - - - - - - - - - - - - - - - -X
26
27 FOR APPELLANT UVINO: GAIL JACOBS, Great Neck, New
28 York.
29
1 FOR APPELLANT COSTANZA: STEVEN LLOYD BROUNSTEIN, Papa,
2 DePaola & Brounstein, Bayside,
3 New York.
4
5 FOR APPELLANT DONO: CHARLES S. HOCHBAUM, Brooklyn,
6 New York.
7
8 FOR APPELLEE: JAMES D. GATTA and ELIZABETH
9 GEDDES, Assistant United States
10 Attorneys (Jo Ann M. Navickas,
11 Assistant United States
12 Attorney, on the brief), for
13 Loretta E. Lynch, United States
14 Attorney for the Eastern
15 District of New York, Brooklyn,
16 New York.
17
18 Appeal from a judgment of the United States District
19 Court for the Eastern District of New York (Weinstein, J.).
20
21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22 AND DECREED that the judgment of the district court be
23 AFFIRMED.
24
25 Defendants Michael Uvino, Brian Dono, and Philip
26 Costanza appeal from judgments of conviction, entered after
27 trials by juries, at which they were convicted of numerous
28 offenses committed in connection with their membership in
29 and association with the Colombo organized crime family of
30 La Cosa Nostra.
31
32 Uvino was convicted of racketeering, in violation of 18
33 U.S.C. § 1962(c); racketeering conspiracy, in violation of
34 18 U.S.C. § 1962(d); illegal gambling, in violation of 18
35 U.S.C. § 1955; conspiracy to commit assault, in violation of
36 18 U.S.C. § 1959(a)(6); and assault, in violation of 18
37 U.S.C. § 1959(a)(3). Uvino was sentenced to 120 months’
38 imprisonment, three years’ supervised release, a $100,000
39 fine, and special assessments of $700.
40
41 Dono was convicted of racketeering, in violation of 18
42 U.S.C. § 1962(c); racketeering conspiracy, in violation of
43 18 U.S.C. § 1962(d); illegal gambling, in violation of 18
44 U.S.C. § 1955; robbery conspiracy, in violation of 18 U.S.C.
45 § 1951; and assault, in violation of 18 U.S.C. § 1959(a)(3).
46 Dono was sentenced to 46 months’ imprisonment, three years’
47 supervised release, and special assessments of $700.
2
1 Costanza was convicted of conspiracy to commit assault,
2 in violation of 18 U.S.C. § 1959(a)(6); and assault, in
3 violation of 18 U.S.C. § 1959(a)(3). Costanza was sentenced
4 to 24 months’ imprisonment, three years’ supervised release,
5 and special assessments of $300.
6
7 Defendants claim the district court erred in (1)
8 dismissing a juror after the commencement of trial; (2)
9 admitting testimony of an expert law enforcement witness;
10 (3) indicating that it would deny an application to compel
11 the production of two witnesses; and (4) denying motions for
12 acquittal as to the assault in aid of racketeering counts
13 and denying Dono’s motion for acquittal as to the robbery
14 conspiracy count. Defendants further contend that the
15 government adduced insufficient evidence of the interstate
16 commerce nexus on the racketeering counts and insufficient
17 evidence that at least five individuals participated in the
18 illegal gambling business based on bookmaking. Finally,
19 Uvino challenges his sentence, arguing it is substantively
20 unreasonable.
21
22 We assume the parties’ familiarity with the underlying
23 facts, the procedural history, and the issues presented for
24 review.
25
26 [1] After opening statements, Juror Six sent a letter to
27 the court advising that he was “strongly biased” against
28 accepting the testimony of any witnesses testifying pursuant
29 to a cooperation agreement with the government, a phrasing
30 that suggests he was biased when he claimed at voir dire
31 that he could weigh the evidence fairly. We have previously
32 explained that a district judge has “broad discretion under
33 Federal Rule of Criminal Procedure 24(c) to replace a juror
34 at any time before the jury retires if there is reasonable
35 cause to do so.” United States v. Purdy, 144 F.3d 241, 247
36 (2d Cir. 1998). Under the circumstances of this case, the
37 district court’s exercise of discretion to replace Juror Six
38 should not be disturbed. See United States v. Gambino, 951
39 F.2d 498, 503 (2d Cir. 1991).
40
41 [2] Defendants argue that the expert testimony of John
42 Carillo, an investigator employed by the United States
43 Attorney’s Office for the Southern District of New York,
44 violated Federal Rule of Evidence 703 and their rights under
45 the Confrontation Clause. Because defendants did not raise
46 these challenges at trial, we review them for plain error,
47 see United States v. Dukagjini,
326 F.3d 45, 59 (2d Cir.
3
1 2003), and find none. Carillo testified about the
2 structure, hierarchy, rules, and conduct of organized crime;
3 organized crime terminology and code language; and the
4 functioning of illegal gambling operations. These are all
5 subjects on which an officer expert may appropriately
6 testify. See United States v. Mejia, 545 F.3d 179, 189-90
7 (2d Cir. 2008); United States v. Locascio,
6 F.3d 924, 936
8 (2d Cir. 1993).
9
10 [3] Defendants claim that their Sixth Amendment right to
11 compulsory process was violated when the district court
12 indicated that it would quash a subpoena for the testimony
13 of the two victims of the assault. The court and the
14 parties expected that, if subpoenaed, these witnesses would
15 invoke their Fifth Amendment privilege against self-
16 incrimination. As the government points out, defense
17 counsel subsequently withdrew the subpoena and, in any
18 event, counsel never indicated to the district judge that it
19 sought to examine the witnesses on non-privileged subjects.
20 A “district court has the discretion to prevent a party from
21 calling a witness solely to have him . . . invoke the
22 privilege against self-incrimination in front of the jury.”
23 United States v. Deutsch,
987 F.2d 878, 883 (2d Cir. 1993);
24 see also Greiner v. Wells,
417 F.3d 305, 323 n.24 (2d Cir.
25 2005). Moreover, defendants cannot “demonstrate that [they
26 were] deprived of the opportunity to present a witness who
27 would have provided testimony that was ‘both material and
28 favorable to [their] defense.’” Howard v. Walker,
406 F.3d
29 114, 132 (2d Cir. 2005) (quoting United States v.
30 Valenzuela-Bernal,
458 U.S. 858, 867 (1982)). Accordingly,
31 they cannot show that their Sixth Amendment right to
32 compulsory process was violated. See United States v.
33 Scopo,
861 F.2d 338, 339, 345-46 (2d Cir. 1988).
34
35 [4] In reviewing the denial of defendants’ Rule 29 motions
36 de novo, we “view[] the evidence in the light most favorable
37 to the government,” United States v. Pizzonia,
577 F.3d 455,
38 462 (2d Cir. 2009), and conclude that denial of the motions
39 was proper. There is ample evidence that the victims of the
40 assault suffered physical pain as a result of the beating
41 administered by defendants. As the district court observed,
42 the question of whether the victims’ screams were genuine
43 was presented to the jury. Dono himself commented to a
44 cooperating witness that one of the victims was injured
45 badly. The record also establishes that Dono and Costanza
46 aided and abetted Uvino in the assault. See United States
47 v. Best,
219 F.3d 192, 199-200 (2d Cir. 2000). With respect
4
1 to Dono’s assertion that he withdrew from the robbery
2 conspiracy, we may properly deem this defense waived as he
3 never raised it at trial. See United States v. Spero, 331
4 F.3d 57, 60 n.2 (2d Cir. 2003).
5
6 [5] Defendants’ assertion that the government failed to
7 adduce sufficient evidence demonstrating the interstate-
8 nexus element of the racketeering and racketeering
9 conspiracy counts is unavailing. Defendants’ suggestion
10 that the government failed to present sufficient evidence
11 that five or more individuals participated in the illegal
12 bookmaking operation similarly lacks merit. Defendants did
13 not challenge the sufficiency of the evidence on these
14 grounds at trial. Accordingly, we review these contentions
15 only for plain error. See United States v. Draper,
553 F.3d
16 174, 179 (2d Cir. 2009). There is no error, plain or
17 otherwise. The government presented sufficient evidence
18 that, as an enterprise, the Colombo crime family engaged in
19 activities affecting interstate commerce; that is all that
20 is required. See United States v. Feliciano,
223 F.3d 102,
21 119-20 (2d Cir. 2000). With respect to the bookmaking
22 counts, the record supports the finding that Uvino, Dono,
23 Costanza, and at least two other individuals (not implicated
24 by this appeal) participated in the illegal business. See
25 United States v. Gotti,
459 F.3d 296, 341 (2d Cir. 2006).
26
27 [6] Uvino maintains that the sentence imposed by the
28 district court is substantively unreasonable. Our role is
29 “limited to examining a sentence for reasonableness, which
30 is akin to review under an abuse-of-discretion standard.”
31 United States v. Rigas,
583 F.3d 108, 114 (2d Cir. 2009)
32 (internal quotation marks omitted). We will set aside a
33 sentence based on a claim of substantive unreasonableness
34 “only in exceptional cases where the trial court’s decision
35 cannot be located within the range of permissible
36 decisions.”
Id. at 122 (internal quotation marks omitted).
37 This is not such a case. Here, the district court
38 considered all of the appropriate factors under 18 U.S.C. §
39 3553(a) and imposed a sentence it found to be “sufficient,
40 but not greater than necessary to fulfill the purposes of
41 sentencing.” United States v. Cavera,
550 F.3d 180, 189 (2d
42 Cir. 2008) (in banc) (internal quotation marks omitted).
43 Contrary to Uvino’s contention, the district court’s stated
44 goal of deterring others from joining organized crime
45 families was entirely appropriate. See United States v.
46 Dazzo,
672 F.2d 284, 289 (2d Cir. 1982). And, “a reasonable
47 explanation” of the difference between the sentences imposed
5
1 on Uvino and Dono, who was his codefendant at trial, is
2 “readily apparent, namely, the varying degrees of [their]
3 culpability.” United States v. Ebbers, 458 F.3d 110, 129
4 (2d Cir. 2006). Finally, the district court did not abuse
5 its discretion in imposing a fine of $100,000. See U.S.S.G.
6 § 5E1.2. Uvino did not discharge his burden of
7 demonstrating that, in the future, he would lack the assets
8 to pay the fine imposed. See United States v. Salameh, 261
9 F.3d 271, 276 (2d Cir. 2001).
10
11 Finding no merit in any of defendants’ arguments on
12 appeal, we hereby AFFIRM the judgment of the district court.
13
14
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
18
6
