United States v. Melicharek (Nicosia) ( 2010 )

09-0157-cr
USA v. Melicharek (Nicosia)
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 12th day
of January, two thousand ten.
Present:
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 09-0157-cr
JOHN MELICHAREK, also known as Rocky, MICHAEL IUNI, DOMINICK MEMOLI, also
known as Shakes, LOUIS PIPOLO, DARDIAN CELAJ, ENED GJELAJ, GJELOSH
KRASNIQI, also known as Jimmy,
Defendants,
ANGELO NICOSIA,
Defendant-Appellant.
________________________________________________
For Defendant-Appellant Angelo GILBERTO M. GARCIA , Garcia & Kricko,
Nicosia: Hackensack, NJ
For Appellee: LISA R. ZORNBERG , Assistant United States Attorney
(Katherine Polk Failla, Assistant United States
Attorney, of counsel), for Preet Bharara, United
States Attorney, Southern District of New York, New
York, NY
Appeal from the United States District Court for the Southern District of New York
(Scheindlin, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court entered December 29, 2008, is AFFIRMED.
Defendant-Appellant Angelo Nicosia appeals from a judgment of the United States
District Court for the Southern District of New York (Scheindlin, J.), entered December 29,
2008, convicting him, following a jury trial, of extortion and conspiracy to commit extortion
under the Hobbs Act, 18 U.S.C. § 1951, and sentencing him principally to 46 months’
imprisonment. We assume the parties’ familiarity with the facts, procedural history, and
specification of issues on appeal.
Nicosia, who was charged with extortion and conspiracy to commit extortion on the basis
of events that took place principally in 2004, here challenges the admission, at trial, of evidence
pertaining to an assault that took place in 1997. Before trial, the district court ruled that the
evidence was admissible, primarily on the ground that the facts of the 1997 assault were part of,
or indispensable background to, the 2004 extortion. Nicosia made no objection to the admission
of any evidence pertaining to the 1997 assault when it was introduced at trial. Following the
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trial, for the purposes of sentencing, the district court held a Fatico hearing on the issue of
whether Nicosia had been involved in the earlier assault, and it ultimately found that the
government failed to prove his involvement by a preponderance of the evidence.
On appeal, Nicosia now argues that the district court erred in allowing the government to
present evidence relating to the 1997 assault. Nicosia does not challenge the district court’s
pretrial ruling on this issue but rather argues that error was committed at trial when the evidence
was introduced. Because he made no objection when any of the evidence in question was
presented, we review for plain error pursuant to Fed. R. Crim. P. 52(b). Puckett v. United States,
__ U.S. __, 129 S. Ct. 1423, 1428-29 (2009).
[P]lain-error review . . . involves four steps, or prongs. First, there must be an error or
defect — some sort of deviation from a legal rule — that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to reasonable dispute. Third, the error
must have affected the appellant’s substantial rights, which in the ordinary case means he
must demonstrate that it affected the outcome of the district court proceedings. Fourth
and finally, if the above three prongs are satisfied, the court of appeals has the discretion
to remedy the error — discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.
Id. at 1429 (quotation marks, alterations, and citations omitted).
Nicosia’s principal argument is that error was committed because evidence pertaining to
the 1997 assault was introduced not for the limited purpose allowed by the district court — as
part of the story of the 2004 extortion — but rather in an attempt to show that Nicosia had
committed extortion in the past, a purpose that is impermissible under Fed. R. Evid. 404(b).
Although Nicosia claims that the district court gave directions to the government in this regard
and that the government failed to follow them, he has not identified, in the record, the specific
instructions that were purportedly violated or the specific instances in which the government
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stepped beyond the bounds of the district court’s rulings.1 Our own review of the trial transcript
does not reveal any instances of plain error; on the contrary, the evidence regarding the 1997
assault was properly admitted “to complete the story of the crime on trial,” United States v.
Towne, 870 F.2d 880, 886 (2d Cir. 1989) (quotation marks and alteration omitted), as the district
court contemplated.
To the extent that the nub of Nicosia’s objection is that the testimony of Stephen Galise,
the victim of the 2004 extortion, indicated that Nicosia was involved in the 1997 assault when in
fact he was not, we note that because extortion under the Hobbs Act is defined as “the obtaining
of property from another, with his consent, induced by wrongful use of actual or threatened force,
violence, or fear,” 18 U.S.C. § 1951(b)(2) (emphasis added), Galise’s state of mind was an
aspect of the charged crime. Even if Galise’s testimony indicating that Nicosia was involved in
the 1997 assault was based on a mistake or misunderstanding, it was relevant to showing why, in
2004, he feared violence at the hands of Nicosia and his associates. See United States v. Curcio,
759 F.2d 237, 241 (2d Cir. 1985) (“[E]vidence of an extortion victim’s state of mind is relevant
in Hobbs Act cases . . . .”). If defense counsel was concerned that the jury might have been
misled into thinking that the arguably inaccurate reference to Nicosia’s participation in the 1997
assault constituted substantive evidence against him, a limiting instruction noting the purpose for
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Nicosia points to the district court’s statements, in the context of ruling in limine that
evidence relating to an entirely separate event was inadmissible under Rule 404(b), that “the
government has the highest level of responsibility” and that “the [g]overnment, of course, is held
to the higher standards of presenting evidence.” App’x of Def.-Appellant 44. But these
statements were not only made when ruling on different evidence than the evidence at issue here,
they are also general in nature and do not constitute an instruction that might later have been
violated. The only specific directive given by the district court about the presentation of
evidence pertaining to the 1997 assault was a limitation on Galise’s testimony about his
conversations with Ventor after the assault, an instruction that the government followed closely.
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which the evidence was introduced could have been — but was not — sought.
Nicosia’s reliance on United States v. Gilan, 967 F.2d 776 (2d Cir. 1992), is misplaced.
In Gilan, we held that evidence of prior crimes cannot be admitted for one of the permissible
purposes enumerated in Rule 404(b) when there is no evidence linking the defendant to those
crimes. Id. at 780-81. But “evidence of uncharged criminal activity is not considered ‘other
crimes’ evidence under Fed. R. Evid. 404(b) if it . . . is inextricably intertwined with the evidence
regarding the charged offense, or if it is necessary to complete the story of the crime on trial.”
Towne, 870 F.2d at 886 (quotation marks and alterations omitted). The district court, as noted,
ruled that evidence relating to the 1997 assault was an inextricable part of the story of the 2004
extortion. Rule 404(b) and the requirements for admitting evidence of prior criminal activity
thereunder are therefore inapplicable.
Because we do not discern plain error in the proceedings below, we need not address
whether Nicosia’s substantive rights were affected or whether it would be an appropriate exercise
of discretion for this Court to intervene in this case.
We have considered Nicosia’s other arguments and find them without merit. For the
foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
By:_________________________________
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