     10-1539-cr
     United States v. Gaska

                          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 20th day of April, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                DEBRA A. LIVINGSTON,
10                              Circuit Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-1539-cr
17
18       MIROSLAW GASKA,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Aaron M. Goldsmith, Fasulo,
23                                             Shalley & DiMaggio, LLP, New
24                                             York, New York (Jerzy Sokol,
25                                             Brooklyn, New York, on the
26                                             brief).
27
28       FOR APPELLEE:                         Rajit S. Dosanjh, Assistant
29                                             United States Attorney (Daniel
30                                             C. Gardner, Assistant United
 1                              States Attorney, on the brief),
 2                              for Richard S. Hartunian, United
 3                              States Attorney for the Northern
 4                              District of New York, Syracuse,
 5                              New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Northern District of New York (Sharpe, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Miroslaw Gaska was convicted, after a jury trial in the
15   United States District Court for the Northern District of
16   New York (Sharpe, J.), of one count of smuggling aliens for
17   financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii),
18   and one count of transporting aliens for financial gain in
19   violation of 8 U.S.C. § 1324(a)(1)(A)(ii), 1324(a)(1)(B)(i).
20   Gaska was sentenced principally to the mandatory minimum
21   sentence of 36 months’ imprisonment on the smuggling count
22   and 10 months’ imprisonment on the transporting count, to be
23   served concurrently.
24
25        On appeal, Gaska contends that (1) the government’s
26   questioning of trial witnesses was improper and caused him
27   prejudice warranting a remand; (2) insufficient evidence
28   supports the jury’s verdict; and (3) the district court
29   committed procedural error in imposing his sentence. We
30   assume the parties’ familiarity with the underlying facts,
31   the procedural history, and the issues presented for review.
32
33        Gaska did not object to any of the questions he now
34   contends caused him undue prejudice and entitle him to a new
35   trial. We review the alleged errors committed by the
36   prosecution for plain error and find none. See United
37   States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010). This
38   Court allows leading questions when appropriate to develop
39   the testimony of a witness, especially when the native
40   language of the witness is not English. United States v.
41   Ajmal, 67 F.3d 12, 16 (2d Cir. 1995). None of the questions
42   asked by the prosecutor during Gaska’s trial affected the
43   “fairness, integrity or public reputation of [the] judicial
44   proceeding.” Marcus, 628 F.3d at 41. In short, the
45   prosecutor did not err in his questioning at trial and there
46   certainly was no plain error.
47

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 1        A “defendant challenging his verdict on sufficiency
 2   grounds bears a heavy burden.” United States v. Tian, 339
 3   F.3d 143, 150 (2d Cir. 2003) (internal quotation marks
 4   omitted). “We must affirm a conviction if, viewing all the
 5   evidence in the light most favorable to the prosecution, any
 6   rational trier of fact could have found the essential
 7   elements of the crime beyond a reasonable doubt.” Id.
 8   (internal quotation marks omitted). In reviewing
 9   sufficiency challenges, “we defer to the jury’s
10   determination of the weight of the evidence and the
11   credibility of the witnesses, and to the jury’s choice of
12   the competing inferences that can be drawn from the
13   evidence.” Id. (internal quotation marks omitted).
14   Contrary to Gaska’s assertions, based on the evidence
15   adduced at trial, “a rational trier of fact could find
16   beyond a reasonable doubt” that Gaska possessed the
17   requisite mens rea to be found guilty of the crimes for
18   which he was convicted. United States v. Kim, 435 F.3d 182,
19   185 (2d Cir. 2006) (per curiam).
20
21        Sufficient direct and circumstantial evidence supported
22   Gaska’s conviction: (1) Szabranski testified that he told
23   Gaska that Biernacki would be entering the country
24   illegally; (2) Szabranski told Gaska that he would receive
25   more than half of the $1,500 fee Biernacki offered to pay
26   him; (3) Border Patrol agents testified that Gaska was
27   nervous when questioned; (4) On their drive upstate, Gaska
28   and Szabranski made contact with a smuggler; and (5) Gaska
29   and Szabranski picked up the individuals they were smuggling
30   and transporting late at night. See United States v.
31   Gaskin, 364 F.3d 438, 461 (2d Cir. 2004) (observing element
32   of reckless disregard or knowledge “often can be proved only
33   by circumstantial evidence”). Deferring to the jury’s
34   assessments of witness credibility, United States v. Payne,
35   591 F.3d 46, 60 (2d Cir. 2010), we reject Gaska’s
36   sufficiency challenge.
37
38        Gaska contends that his sentence is marked by
39   procedural error because the court failed to adequately
40   explain its reasons for the concurrent sentence of 10
41   months. Gaska did not challenge his sentence in the
42   district court. Accordingly, we review the district court’s
43   sentencing procedure for plain error. United States v.
44   Keller, 539 F.3d 97, 100 (2d Cir. 2008). A sentencing court
45   commits procedural error when it fails to provide an
46   adequate explanation for the sentence imposed. United
47   States v. Cavera, 550 F.3d 180, 190, 193 (2d Cir. 2008) (in

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 1   banc). Here, however, any inadequacy in the court’s
 2   statement of reasons would be harmless because the 10 month
 3   sentence for which the court failed to explain its reasons
 4   was concurrent with the longer statutorily mandated minimum
 5   sentence. See United States v. Chen, 127 F.3d 286, 292 (2d
 6   Cir. 1997). “[B]ecause a remand cannot produce a lesser
 7   sentence,” id., there was no plain error in the sentencing
 8   procedure employed by the district court, see United States
 9   v. Villafuerte, 502 F.3d 204, 208-09 (2d Cir. 2007), and no
10   remand is warranted.
11
12        Finding no merit in any of Gaska’s arguments presented
13   on appeal, we hereby AFFIRM the judgment of the district
14   court.
15
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19




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