United States v. Ferrara

14-2788
United States v. Pinero
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
7 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
8 APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
9 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10 OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
11 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13 At a stated term of the United States Court of Appeals for
14 the Second Circuit, held at the Thurgood Marshall United States
15 Courthouse, 40 Foley Square, in the City of New York, on the
16 12th day of January, two thousand seventeen.
17
18 PRESENT: DENNIS JACOBS,
19 SUSAN L. CARNEY,
20 Circuit Judges,
21 KATHERINE POLK FAILLA,
22 District Judge.*
23
24 - - - - - - - - - - - - - - - - - - - -X
25 United States of America,
26 Appellee,
27
28 -v.- 14-2788
29
30 James Ferrara, Daniel Hanley, Peter
31 Kanakis,
32 Defendants,
33
34 Nelson Pinero,
35 Defendant-Appellant
36 - - - - - - - - - - - - - - - - - - - -X
* Judge Katherine Polk Failla of the United States
District Court for the Southern District of New York, sitting
by designation.
1
1
2 FOR APPELLANT: Nicholas J. Pinto, New York, NY.
3
4 FOR APPELLEE: Susan Corkery, Melody L. Wells,
5 Assistant United States Attorneys,
6 for Robert L. Capers, United States
7 Attorney for the Eastern District
8 of New York, Brooklyn, NY.
9
10 Appeal from a judgment of the United States District Court
11 for the Eastern District of New York (Vitaliano, J.).
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
13 DECREED that the judgment of the district court be AFFIRMED.
14 Nelson Pinero was convicted after a jury trial of conspiracy
15 to collect credit using extortionate means, in violation of 18
16 U.S.C. § 894(a)(1). The district court (Vitaliano, J.)
17 sentenced him to 21 months of imprisonment, which he has already
18 served, and a term of supervised release that is ongoing. Pinero
19 appeals from his judgment of conviction, arguing that the
20 evidence was insufficient to establish that he participated in
21 a conspiracy.
22 “We review challenges to the sufficiency of evidence de
23 novo.” United States v. Pierce, 785 F.3d 832, 837 (2d Cir. 2015).
24 A defendant challenging the sufficiency of evidence bears a heavy
25 burden because “we view the evidence in the light most favorable
26 to the government, drawing all inferences in the government’s
27 favor and deferring to the jury’s assessments of the witnesses’
28 credibility.” Id. at 838. “We will sustain the jury’s verdict
29 if any rational trier of fact could have found the essential
30 elements of the crime beyond a reasonable doubt.” Id. (internal
31 quotation marks omitted) (emphasis omitted). “The jury may
32 reach its verdict based upon inferences drawn from
33 circumstantial evidence,” and on review, “the evidence must be
34 viewed in conjunction, not in isolation.” United States v.
35 Persico, 645 F.3d 85, 104 (2d Cir. 2011).
36 In cases of conspiracy, deference to the jury’s inferences,
37 determinations of credibility, and the weight of the evidence
38 “is especially important . . . because a conspiracy by its nature
2
1 is a secretive operation, and it is a rare case where all aspects
2 of a conspiracy can be laid bare in court with the precision
3 of a surgeon’s scalpel.” United States v. Pitre, 960 F.2d 1112,
4 1121 (2d Cir. 1992) (internal quotation marks and citation
5 omitted). It need not be proven that the conspirators “have
6 agreed on the details of the conspiracy, so long as they agreed
7 on the essential nature of the plan,” United States v. Geibel,
8 369 F.3d 682, 689 (2d Cir. 2004), and “proof of a tacit
9 understanding will suffice.” United States v. Rea, 958 F.2d
10 1206, 1214 (2d Cir. 1992).
11 Evidence at trial established that Pinero and his
12 codefendants Ferrara and Kanakis entered into a conspiracy to
13 collect a debt using extortionate means. The evidence included
14 the testimony of Kanakis, the testimony of the victim, the
15 testimony of an FBI agent, and surveillance video. Kanakis
16 testified that Pinero, Kanakis, and Ferrara met to discuss the
17 debt owed by the victim and that Ferrara suggested Pinero and
18 Kanakis “hit” him or “bloody him up” if necessary to collect
19 it. Suppl. App. 49-50. Kanakis also testified that Pinero
20 asked whether Ferrara would “take care of us” if their actions
21 resulted in legal fees, id. at 60-61, and that Pinero accepted
22 payment for his role, id. at 65-66. That evidence is sufficient
23 to show that Pinero was aware of the nature of the conspiracy,
24 was aware of its illegality, and decided to participate
25 nevertheless.
26 Pinero argues that he did not intend to participate in
27 extortion and that Kanakis’s testimony suggests that Pinero went
28 along on debt-collection trips merely “to watch [Kanakis’s]
29 back.” Appellant Br. 16. However, as the district court
30 observed in its opinion denying Pinero’s post-trial motions:
31 even if Pinero saw himself only as an “‘insurance policy’ for
32 Kanakis, in case something went wrong and Kanakis found his
33 safety in jeopardy,” nevertheless “[t]he fact that the insurance
34 was not needed does not make it dissolve; nor does it preclude
35 a jury from finding that the uncashed policy was still part of
36 the conspiracy.” App. 27. Taken in combination, and viewed in
37 the light most favorable to the government, the evidence at trial
38 was sufficient for a reasonable jury to find Pinero guilty of
39 the convicted offense.
3
1 Accordingly, and finding no merit in appellant’s other
2 arguments, we hereby AFFIRM the judgment of the district court.
3 FOR THE COURT:
4 CATHERINE O’HAGAN WOLFE, CLERK
5
4