United States v. Pereyra ( 2011 )

10-2774-cr
United States v. Pereyra
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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. 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.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 30th day of June, two thousand eleven.
Present: PIERRE N. LEVAL,
ROSEMARY S. POOLER,
Circuit Judges,
DENISE COTE,
District Judge.*
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v.- 10-2774-cr
ELEAZAR PEREYRA,
Defendant-Appellant.
For Appellee: Douglas M. Pravda, William David Sarratt (on the brief), David C.
James (on the brief), Assistant United States Attorneys (Loretta E.
Lynch, United States Attorney), Eastern District of New York,
Brooklyn, NY.
*
The Honorable Denise Cote, District Judge of the United States District Court for the
Southern District of New York, sitting by designation.
For Appellant: David J. Klem, Washington Square Legal Services, Inc., New
York, NY.
Appeal from the United States District Court for the Eastern District of New York
(Irizarry, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said district court be and hereby is AFFIRMED.
Eleazar Pereyra appeals his conviction for resisting arrest, see 36 C.F.R. § 2.32(a)(1), and
disorderly conduct, see id. § 2.34(a)(1), on federal park land, for which he was sentenced to six
months of probation and a $500 fine. Pereyra was convicted after, inter alia, trying to shove a
police officer of the United States Park Police, resisting being handcuffed, and grabbing the
police officer’s holstered gun, while on a crowded beach. Pereyra principally argues that “[t]he
trial court committed clear error in both crediting the contradictory accounts of the two witnesses
and in failing to resolve the sharp factual disputes between those witnesses.” Pereyra also
contends that the arresting officer’s testimony about how Pereyra grabbed his gun described a
“physically impossible” maneuver that the court could not have credited. We assume the
parties’ familiarity with the underlying facts, procedural history, and issues presented on appeal.
“When reviewing a claim of insufficiency of the evidence, ‘the standard of review is
exactly the same regardless whether the verdict was rendered by a jury or by a judge after a
bench trial.’” United States v. Pierce, 224 F.3d 158, 164 (2d Cir. 2000). “We will not disturb
[a] conviction if, viewing the evidence in the light most favorable to the government, ‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” United States v. Greer, 631 F.3d 608, 613 (2d Cir. 2011) (quoting United States v. Xiao
Qin Zhou, 428 F.3d 361, 370 (2d Cir. 2005)).
In light of these principles, we conclude for substantially the same reasons articulated by
the district court that the evidence presented at trial is sufficient to support Pereyra’s convictions.
We have considered all of Pereyra’s remaining arguments and find them to be without
merit. For the foregoing reasons, the district court’s judgment is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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