United States v. Nicastro

13-2566-cr
United States v. Nicastro
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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of December, two thousand fourteen.
Present:
ROBERT A. KATZMANN,
Chief Judge,
PIERRE N. LEVAL,
PETER W. HALL,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No.13-2566-cr*
CROSS NICASTRO, AKA SEALED DEFENDANT #3,
Defendant-Appellant,
JULIUS DESIMONE, AKA SEALED DEFENDANT #1, DONALD TORRIERO, AKA
SEALED DEFENDANT #2, MAZZA & SONS, INC., AKA SEALED DEFENDANT #5,
DOMINICK MAZZA, AKA SEALED DEFENDANT #4,
*
This appeal was consolidated with lead case United States v. Mazza, No. 13-2540 and
United States v. Mazza & Sons, Inc., No. 13-2710. We resolve those appeals in a separate
summary order filed concurrently. This summary order addresses only the Defendant-Appellant
Cross Nicastro.
Defendants.
________________________________________________
For Defendant-Appellant: ANGELO MUSITANO, Law Office of John J. Molloy, Niagara
Falls, NY
For Appellee: THEKLA HANSEN-YOUNG (Allen M. Brabender and Todd W.
Gleason, on the brief), for Sam Hirsch, Acting Assistant
Attorney General, Washington, DC
Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Cross Nicastro appeals from a June 18, 2013 judgment of conviction entered by the
United States District Court for the Northern District of New York (Hurd, J.), which followed
from an October 16, 2012 jury verdict finding Nicastro guilty of one count of conspiracy in
violation of 18 U.S.C. § 371. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
First, Nicastro argues that there was insufficient evidence of his knowledge of the
conspiracy for a jury to find guilt. We disagree. “A defendant who challenges the sufficiency of
evidence bears a heavy burden. . . . We must credit every inference that the jury may have drawn
in favor of the government. The jury’s verdict must be sustained, if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” United States
v. Gore, 154 F.3d 34, 39–40 (2d Cir. 1998) (internal quotation marks, citations, and emphasis
omitted).
The essential elements of a criminal conspiracy are: “(1) that the defendant agreed with at
least one other person to commit an offense; (2) [that] the defendant knowingly participated in
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the conspiracy with the specific intent to commit the offenses that were the objects of the
conspiracy; and (3) that during the existence of the conspiracy, at least one of the overt acts set
forth in the indictment was committed by one or more of the members of the conspiracy . . . .”
United States v. Salameh, 152 F.3d 88, 145 (2d Cir. 1998) (per curiam). Nicastro concedes that
the jury heard sufficient evidence of the first and third elements but contests the sufficiency of
the evidence of his knowledge and intent.
We have no difficulty concluding that there was sufficient evidence of Nicastro’s intent
to commit two objects of the conspiracy count in the indictment: (i) impeding the U.S.
Environmental Protection Agency and Army Corps of Engineers from enforcing environmental
laws and (ii) violating the Clean Water Act, 33 U.S.C. §§ 1311(a), 1319(c)(1), 1319(c)(2)(A),
1342, and 1344. The government did not need to prove that Nicastro knew that filling his
wetlands violated a specific provision of the Clean Water Act, only such filling was illegal and
that Nicastro intended to fill the wetlands. See Salameh, 152 F.3d at 147–48 (government must
prove that defendant agreed to the “essential nature of the plan”).
The jury heard ample evidence of his intent, including: (i) Nicastro’s grand jury
testimony that he wanted the soggy areas of his property to be more usable, that he signed a
contract with his co-conspirators that included payment to Nicastro of one dollar per ton of fill,
and that the fill site had no permit and lacked fencing, liners, monitors, or other indicia of a legal
landfill; (ii) the testimony of Christopher Nicastro, Nicastro’s neighbor and cousin, that
Nicastro’s property abutted the Mohawk River and that Nicastro intended to fill the property’s
wetlands so that he could build a restaurant overlooking the river; (iii) the testimony of co-
defendant Julius DeSimone that Nicastro was usually present at the property and gave a tour of it
to the co-conspirators, directing them to fill the wetlands up to within “about twenty feet or so”
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of the river, Appellee’s Supplemental App. at 178; and (iv) the testimony of George Luther that
the benefit Nicastro received from the agreement was that he “was getting the wet areas filled in
and it was being clear right to the river,” id. at 217. From this evidence, a jury could find beyond
a reasonable doubt that Nicastro joined the conspiracy with a specific intent to fill his wetlands.
Second, Nicastro argues that he deserves a new trial because of prosecutorial misconduct,
Brady violations, and newly discovered evidence. Nicastro seeks to incorporate the arguments
made by Dominick Mazza and Mazza & Sons, Inc. in their appeals, but the Brady and newly
discovered evidence arguments apply only to counts on which Nicastro was not indicted and the
alleged prosecutorial misconduct consists of statements directed at the other defendants.
Nicastro’s opening brief fails to adequately explain why these arguments apply to his case, so we
decline to address them. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered waived and normally will not be addressed on
appeal.”).
We have considered Nicastro’s remaining arguments and find them to be without merit.
For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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