Filed: Mar. 22, 2019
Latest Update: Mar. 03, 2020
Summary: 18-798 United States v. Galitsa 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 ASUMMARY ORDER
Summary: 18-798 United States v. Galitsa 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 ASUMMARY ORDER@..
More
18‐798
United States v. Galitsa
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 ASUMMARY 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 22nd day of March, two thousand
nineteen.
PRESENT: DENNIS JACOBS,
GERARD E. LYNCH,
Circuit Judges,
LAWRENCE J. VILARDO,*
District Judge.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 18‐798
THIODORE IGOROVICH GALITSA, AKA
KRES KORNIK, AKA FYODOR GALITSA‐
IGOROVICH, AKA TIODORE GALITSA, AKA
Judge Lawrence J. Vilardo, United States District Court for the Western District of New York, sitting by
*
designation.
FEDOR GALITSA, AKA FYODOR HALISTA,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLEE: MICHAEL K. KROUSE, Assistant
United States Attorney (Daniel B.
Tehrani, Assistant United States
Attorney, on the brief), for Geoffrey
S. Berman, United States Attorney
for the Southern District of New
York, New York, NY.
FOR DEFENDANT‐APPELLANT: ALLEGRA GLASHAUSSER, Federal
Defenders of New York, Inc., New
York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Thiodore Galitsa appeals from a judgment from the Southern District of
New York (Caproni, J.) convicting him of illegal reentry and making false
statements following a jury trial. On appeal, he challenges [i] several evidentiary
rulings admitting his prior acts, criminal charges, and convictions, as well as [ii]
the language used to cross‐examine him about those incidents. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
Courts have broad discretion over the admissibility of evidence and the
scope of cross‐examination, and such decisions are reviewed for abuse of
discretion. United States v. Khalil, 214 F.3d 111, 122 (2d Cir. 2000). If an
objection is preserved, we review for harmless error, considering “(1) the overall
strength of the prosecutor’s case; (2) the prosecutor’s conduct with respect to the
improperly admitted evidence; (3) the importance of the wrongly admitted
2
testimony; and (4) whether such evidence was cumulative of other properly
admitted evidence.” United States v. Gomez, 617 F.3d 88, 95 (2d Cir. 2010)
(quoting United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007)). “Where the
erroneously admitted evidence goes to the heart of the case against the
defendant, and the other evidence against the defendant is weak, we cannot
conclude that the evidence was unimportant or was not a substantial factor in the
jury’s verdict.” Id. (quoting United States v. Rigas, 490 F.3d 208, 222 (2d Cir.
2007)). We will reverse only if an error affected “substantial rights.”
Fed.R.Crim.P. 52(a).
Galitsa contends that the government’s inadvertent reference to Galitsa’s
prior arrests, rather than to his prior conduct, was error not rectified by the
court’s curative instruction and in fact compounded by the decision to allow
inquiry into Galitsa’s prior charges and convictions. However, unless there is an
“overwhelming probability that the jury will be unable to follow the courtʹs
instructions and the evidence is devastating to the defense,” we generally
“presume that juries follow limiting instructions.” Gomez, 617 F.3d at 96
(quoting United States v. Becker, 502 F.3d 122, 130 (2d Cir. 2007)). The jury was
instructed that an arrest is not evidence of conduct, references to Galitsa’s arrests
should be disregarded, and no inferences should be drawn against him based on
those arrests. We have no reason to believe the jury was unable to follow the
court’s instruction.
Galitsa also contests the district court’s decision to allow testimony
concerning a 2014 forgery charge that was ultimately dismissed, a 2015
conviction for petit larceny, and a 1997 conviction for burglary. The district
court’s evidentiary rulings may well have been error. But the government
introduced what the district court aptly characterized as “a veritable avalanche
of evidence” against Galitsa that rendered any error harmless. App’x 125.
Galitsa’s defense was that the federal officers responsible for deporting him freed
him at the airport instead of ensuring he boarded a plane bound for Ukraine.
The district court summarized what the jury would have been required to do to
accept this story:
discredit the testimony of ICE agents who testified to the procedures
followed in removing Mr. Galitsa, contemporaneous notes taken by
the ICE agents, and ICE records bearing Mr. Galitsa’s fingerprints
3
that confirmed his removal, passenger manifests and Ukranian
border records confirming that Mr. Galitsa was on the plane to
Ukraine and arrived in Kiev, and bank records showing that Mr.
Galitsa’s bank card was used in Kiev on the day his flight arrived in
Ukraine and that appeared to track Mr. Galitsa’s movements as he
moved around Eastern Europe before returning to the United States.
Id. So although the purported errors arguably go to the lynchpin of Galitsa’s
defense—his credibility—the evidence supporting guilt is compelling. In any
event, the evidence Galitsa challenges is cumulative of other evidence
impeaching his character for truthfulness, including false tax returns he allegedly
created to corroborate his claim that he lived in the United States in 2011 and
2012. Even in combination, the purported evidentiary errors were harmless and
do not require vacatur of the conviction.
We have considered the Appellant’s remaining arguments and find them
to be without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
4