United States v. Iorio , 465 F. App'x 60 ( 2012 )

11-523
United States v. Iorio
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 9th day of March, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 11-523
17
18 JOSEPH IORIO,
19 Defendant-Appellant.
20
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR APPELLANT: Michael C. Rakower, (Gordon
24 Mehler, Rebecca Stack Campbell,
25 on the brief), Law Offices of
26 Gordon Mehler, PLLC, New York,
27 N.Y.
11
2 FOR APPELLEES: Michael H. Warren (Jo Ann M.
3 Navickas, on the brief),
4 Assistant United States
5 Attorneys, for Loretta E. Lynch,
6 United States Attorney for the
7 Eastern District of New York,
8 Brooklyn, N.Y.
9
10 Appeal from a judgment of the United States District
11 Court for the Eastern District of New York (Amon, C.J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Joseph Iorio (“Iorio”) appeals from a conviction,
18 following a jury trial, for five counts of mail and wire
19 fraud. See 18 U.S.C. §§ 1341, 1343. Iorio argues that the
20 court erred in denying his motion for a judgment of
21 acquittal, see Fed. R. Crim. P. 29, and his motion for a new
22 trial, see Fed. R. Crim. P. 33. We assume the parties’
23 familiarity with the underlying facts, the procedural
24 history, and the issues presented for review.
25
26 “[W]e review de novo the denial of a Rule 29
27 sufficiency challenge, . . . [and] we view th[e] evidence in
28 the light most favorable to the government, assuming that
29 the jury resolved all questions of witness credibility and
30 competing inferences in favor of the prosecution.” United
31 States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010)
32 (citations omitted). “Where a defendant’s Brady claim was
33 raised in a motion for a new trial pursuant to Rule 33 . . .
34 we review the denial of the motion for abuse of discretion.”
35 United States v. Douglas, 525 F.3d 225, 245 (2d Cir. 2008)
36 (internal quotation marks omitted).
37
38 “The elements of mail or wire fraud are (i) a scheme to
39 defraud (ii) to get money or property, (iii) furthered by
40 the use of interstate mail or wires.” United States v.
41 Autori, 212 F.3d 105, 115 (2d Cir. 2000). Iorio’s scheme
42 relied on Yonkers Contracting Company (“YCC”) winning a
43 contract based on an inflated subcontract bid from Leticia,
44 Inc., and therefore on Leticia Rojas not submitting market-
45 rate bids to YCC’s competitors. Rojas’s submission of
46 inflated bids to the competitors--leveling the playing field
47 with YCC--was therefore in furtherance of Iorio’s scheme.
48 See Schmuck v. United States, 489 U.S. 705, 710-11 (1989)
2
1 (“[T]he use of the mails need not be an essential element of
2 the scheme. It is sufficient for the mailing to be incident
3 to an essential part of the scheme or a step in [the] plot.”
4 (second alteration in original; citations and internal
5 quotation marks omitted)); see also United States v. Keats,
6 937 F.2d 58, 63 (2d Cir. 1991) (“That there was a slight
7 variation in the methodology used to achieve [the ultimate
8 goal of the scheme] does not negate the fact that the . . .
9 telephone call was placed for the purpose of furthering
10 [the] scheme.”).
11
12 “A Brady violation occurs only where there is a
13 ‘reasonable probability’ that a different verdict would have
14 resulted from disclosure of the information that the
15 defendant claims was suppressed.” United States v.
16 Rodriguez, 496 F.3d 221, 227 (2d Cir. 2007) (quoting
17 Strickler v. Greene, 527 U.S. 263, 281 (1999)). Iorio does
18 not show he was prejudiced by any delay in the government’s
19 disclosure of evidence that Rojas inflated her bids by only
20 twenty-five cents per ton. Neither does he show a
21 “reasonable probability that earlier disclosure” of the
22 material that the government disclosed on September 10 and
23 14 “would have produced a different result at trial.” See
24 United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001);
25 see also Douglas, 525 F.3d at 245-46. Finally, in light of
26 the government’s other disclosures impugning Rojas’s
27 credibility, Iorio shows no prejudice from the government’s
28 failure to disclose the report of Rojas’s interview before
29 the New Jersey Department of Environmental Protection.
30
31
32 Finding no merit in Iorio’s remaining arguments, we
33 hereby AFFIRM the judgment of the district court.
34
35
36 FOR THE COURT:
37 CATHERINE O’HAGAN WOLFE, CLERK
38
39
40
41
3