United States v. Prince ( 2011 )

10-3594
United States v. Pica
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 7th day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 Circuit Judge,
10 RICHARD J. SULLIVAN,*
11 District Judge.
12
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14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 10-3594-cr
18
19 CHRISTOPHER PRINCE, CHARLES SANTIAGO,
20 SALVATORE MANISCALCO, JR., JOHN
21 DELUTRO, a/k/a Whiz, a/k/a Wizzie,
22
23 Defendants,
*
The Honorable Richard J. Sullivan, of the United
States District Court for the Southern District of New York,
sitting by designation.
1
1
2 ANTHONY PICA,
3
4 Defendant-Appellant.
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6
7 FOR APPELLANT: Diarmuid White & Brendan White,
8 White & White, New York, NY.
9
10 FOR APPELLEE: Tali Farhadian, Peter A.
11 Norling, Nicole M. Argentieri,
12 for Loretta E. Lynch, United
13 States Attorney for the Eastern
14 District of New York, New York,
15 NY.
16
17 Appeal from a judgment of the United States District
18 Court for the Eastern District of New York (Amon, J.).
19
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the judgment of the district court be
22 AFFIRMED.
23
24 Anthony Pica appeals from a judgment of conviction
25 entered on August 26, 2010 by the United States District
26 Court for the Eastern District of New York (Amon, J.) for
27 conspiracy to commit robbery and attempted robbery in
28 violation of 18 U.S.C. § 1951(a), use of a firearm in a
29 crime of violence in violation of 18 U.S.C. § 924(c)(1)(A),
30 and causing death by use of a firearm in violation of 18
31 U.S.C. § 924(j). We assume the parties’ familiarity with
32 the underlying facts, procedural history, and issues
33 presented for review.
34
35 Pica contends on appeal that the district court erred
36 in failing to admit a videotaped confession of a
37 coconspirator that does not implicate Pica. At trial, that
38 coconspirator, Joseph Gencarelli, identified Pica as the
39 orchestrator of the attempted robbery. On cross
40 examination, Gencarelli repeatedly admitted that he had
41 omitted Pica’s name from his previous confessions and
42 explained that he lied because he and Pica “were close
43 friends” and he “wanted to keep him out of it.” Def.’s App.
44 90, 95-96. The district court excluded the videotape.
45
2
1 Mindful of the district court’s wide latitude in
2 determining both whether evidence is admissible, see Manley
3 v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003), and in
4 controlling the “mode and order” of examination and
5 introduction of evidence, Fed. R. Evid. 611(a), we cannot
6 say that it was an abuse of discretion to exclude the
7 videotape in the circumstances of this case. In any event,
8 any error would have been harmless, given the extensive
9 cross examination of Gencarelli about his admissions that
10 omitted Pica’s involvement and the overwhelming evidence
11 introduced by the government, including that of two other
12 coconspirators, an incriminating statement made by Pica
13 shortly after his arrest, and phone records from the day of
14 the shooting.
15
16 Pica challenges the district court’s admission of
17 testimony about Pica’s past drug-related activity. During
18 the cross examination of one coconspirator, defense counsel
19 painstakingly reviewed the “coverage paragraph” contained in
20 his cooperation agreement, which describes the crimes for
21 which the government had agreed to not pursue charges.
22 Defense counsel elicited as to many of the crimes in the
23 coverage paragraph that Pica was not involved. However,
24 counsel did not ask about the witness’s narcotics
25 distribution--which did involve Pica. As a result, the
26 government sought to introduce testimony on redirect about
27 the witness’s past narcotics-related activity involving Pica
28 to establish a “criminal relationship” between them. The
29 district court properly admitted the testimony. Under the
30 applicable rule set forth in Huddleston v. United States,
31 485 U.S. 681 (1988), we conclude that (1) the evidence was
32 admitted for a proper purpose, in this case to establish a
33 criminal relationship and mutual trust between
34 coconspirators, see United States v. Rosa, 11 F.3d 315, 334
35 (2d Cir. 1993); (2) the evidence was relevant to a disputed
36 issue, in this case whether Pica was involved in the
37 conspiracy with the cooperating coconspirators; (3) the
38 probative value was not “substantially outweighed” by its
39 potential for unfair prejudice; and (4) the district court
40 gave a proper limiting instruction. See Huddleston, 485
41 U.S. at 691-92. As to the issue of unfair prejudice, we
42 also note that the “weighing of relevance under Rule 403 may
43 be altered when a false impression is created by earlier
44 testimony. That is, evidence whose probative value might
3
1 not ordinarily outweigh its prejudicial effect if offered on
2 direct examination is admissible to rebut testimony elicited
3 on cross examination that created a false impression.”
4 United States v. Bilzerian, 926 F.2d 1285, 1296 (2d Cir.
5 1991).
6
7 Finally, Pica argues that the government failed to
8 introduce sufficient evidence to support the jury verdict
9 that the shooting of Louis Antonelli caused his death. The
10 government presented testimony from the trauma surgeon who
11 operated on Antonelli the day of the shooting that (1)
12 Antonelli had suffered two gunshots to his chest that
13 damaged his diaphragm, stomach, and right kidney; (2)
14 Antonelli had left the five-hour surgery in unstable
15 condition suffering from “Adult Respiratory Distress
16 Syndrome,” which basically prevents oxygen from being
17 carried through the body; and (3) Antonelli had left surgery
18 to the intensive care unit where he died thirteen days
19 later. Although it may be ordinary practice for the
20 prosecutor to introduce an autopsy report or testimony from
21 a medical examiner to establish the cause of death, such
22 evidence is not required. A jury is permitted, as it did
23 here, to find an element of a crime proven beyond a
24 reasonable doubt based solely on circumstantial evidence.
25 See United States v. Abu-Jihaad, 630 F.3d 102, 135 (2d Cir.
26 2010). Here, a rational juror could have found beyond a
27 reasonable doubt that Antonelli’s death was caused by the
28 shooting, and we therefore will not disturb that finding.
29 See United States v. Morrison, 153 F.3d 34, 49 (2d Cir.
30 1998).
31
32
33 Finding no merit in Pica’s remaining arguments, we
34 hereby AFFIRM the judgment of the district court.
35
36
37 FOR THE COURT:
38 CATHERINE O’HAGAN WOLFE, CLERK
39
4