     09-3334-cr (L), 09-3441-cr (Con), 09-3777-cr (Con)
     United States v. Uvino


                          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 28 th day of September, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT A. KATZMANN,
 9                DEBRA A. LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15                                                                       09-3334-cr
16                    -v.-                                               09-3441-cr
17                                                                       09-3777-cr
18       ROBERT DEY, THOMAS FRANZESE,
19       JOHN TRIPI,
20                Defendants,
21
22       PHILIP COSTANZA, MICHAEL UVINO,
23       BRIAN DONO,
24                Defendants-Appellants.
25       - - - - - - - - - - - - - - - - - - - -X
26
27       FOR APPELLANT UVINO:                   GAIL JACOBS, Great Neck, New
28                                              York.
29
 1   FOR APPELLANT COSTANZA:    STEVEN LLOYD BROUNSTEIN, Papa,
 2                              DePaola & Brounstein, Bayside,
 3                              New York.
 4
 5   FOR APPELLANT DONO:        CHARLES S. HOCHBAUM, Brooklyn,
 6                              New York.
 7
 8   FOR APPELLEE:              JAMES D. GATTA and ELIZABETH
 9                              GEDDES, Assistant United States
10                              Attorneys (Jo Ann M. Navickas,
11                              Assistant United States
12                              Attorney, on the brief), for
13                              Loretta E. Lynch, United States
14                              Attorney for the Eastern
15                              District of New York, Brooklyn,
16                              New York.
17
18        Appeal from a judgment of the United States District
19   Court for the Eastern District of New York (Weinstein, J.).
20
21        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22   AND DECREED that the judgment of the district court be
23   AFFIRMED.
24
25        Defendants Michael Uvino, Brian Dono, and Philip
26   Costanza appeal from judgments of conviction, entered after
27   trials by juries, at which they were convicted of numerous
28   offenses committed in connection with their membership in
29   and association with the Colombo organized crime family of
30   La Cosa Nostra.
31
32        Uvino was convicted of racketeering, in violation of 18
33   U.S.C. § 1962(c); racketeering conspiracy, in violation of
34   18 U.S.C. § 1962(d); illegal gambling, in violation of 18
35   U.S.C. § 1955; conspiracy to commit assault, in violation of
36   18 U.S.C. § 1959(a)(6); and assault, in violation of 18
37   U.S.C. § 1959(a)(3). Uvino was sentenced to 120 months’
38   imprisonment, three years’ supervised release, a $100,000
39   fine, and special assessments of $700.
40
41       Dono was convicted of racketeering, in violation of 18
42   U.S.C. § 1962(c); racketeering conspiracy, in violation of
43   18 U.S.C. § 1962(d); illegal gambling, in violation of 18
44   U.S.C. § 1955; robbery conspiracy, in violation of 18 U.S.C.
45   § 1951; and assault, in violation of 18 U.S.C. § 1959(a)(3).
46   Dono was sentenced to 46 months’ imprisonment, three years’
47   supervised release, and special assessments of $700.

                                  2
 1        Costanza was convicted of conspiracy to commit assault,
 2   in violation of 18 U.S.C. § 1959(a)(6); and assault, in
 3   violation of 18 U.S.C. § 1959(a)(3). Costanza was sentenced
 4   to 24 months’ imprisonment, three years’ supervised release,
 5   and special assessments of $300.
 6
 7        Defendants claim the district court erred in (1)
 8   dismissing a juror after the commencement of trial; (2)
 9   admitting testimony of an expert law enforcement witness;
10   (3) indicating that it would deny an application to compel
11   the production of two witnesses; and (4) denying motions for
12   acquittal as to the assault in aid of racketeering counts
13   and denying Dono’s motion for acquittal as to the robbery
14   conspiracy count. Defendants further contend that the
15   government adduced insufficient evidence of the interstate
16   commerce nexus on the racketeering counts and insufficient
17   evidence that at least five individuals participated in the
18   illegal gambling business based on bookmaking. Finally,
19   Uvino challenges his sentence, arguing it is substantively
20   unreasonable.
21
22        We assume the parties’ familiarity with the underlying
23   facts, the procedural history, and the issues presented for
24   review.
25
26   [1] After opening statements, Juror Six sent a letter to
27   the court advising that he was “strongly biased” against
28   accepting the testimony of any witnesses testifying pursuant
29   to a cooperation agreement with the government, a phrasing
30   that suggests he was biased when he claimed at voir dire
31   that he could weigh the evidence fairly. We have previously
32   explained that a district judge has “broad discretion under
33   Federal Rule of Criminal Procedure 24(c) to replace a juror
34   at any time before the jury retires if there is reasonable
35   cause to do so.” United States v. Purdy, 144 F.3d 241, 247
36   (2d Cir. 1998). Under the circumstances of this case, the
37   district court’s exercise of discretion to replace Juror Six
38   should not be disturbed. See United States v. Gambino, 951
39   F.2d 498, 503 (2d Cir. 1991).
40
41   [2] Defendants argue that the expert testimony of John
42   Carillo, an investigator employed by the United States
43   Attorney’s Office for the Southern District of New York,
44   violated Federal Rule of Evidence 703 and their rights under
45   the Confrontation Clause. Because defendants did not raise
46   these challenges at trial, we review them for plain error,
47   see United States v. Dukagjini, 326 F.3d 45, 59 (2d Cir.

                                  3
 1   2003), and find none. Carillo testified about the
 2   structure, hierarchy, rules, and conduct of organized crime;
 3   organized crime terminology and code language; and the
 4   functioning of illegal gambling operations. These are all
 5   subjects on which an officer expert may appropriately
 6   testify. See United States v. Mejia, 545 F.3d 179, 189-90
 7   (2d Cir. 2008); United States v. Locascio, 6 F.3d 924, 936
 8   (2d Cir. 1993).
 9
10   [3] Defendants claim that their Sixth Amendment right to
11   compulsory process was violated when the district court
12   indicated that it would quash a subpoena for the testimony
13   of the two victims of the assault. The court and the
14   parties expected that, if subpoenaed, these witnesses would
15   invoke their Fifth Amendment privilege against self-
16   incrimination. As the government points out, defense
17   counsel subsequently withdrew the subpoena and, in any
18   event, counsel never indicated to the district judge that it
19   sought to examine the witnesses on non-privileged subjects.
20   A “district court has the discretion to prevent a party from
21   calling a witness solely to have him . . . invoke the
22   privilege against self-incrimination in front of the jury.”
23   United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993);
24   see also Greiner v. Wells, 417 F.3d 305, 323 n.24 (2d Cir.
25   2005). Moreover, defendants cannot “demonstrate that [they
26   were] deprived of the opportunity to present a witness who
27   would have provided testimony that was ‘both material and
28   favorable to [their] defense.’” Howard v. Walker, 406 F.3d
29   114, 132 (2d Cir. 2005) (quoting United States v.
30   Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). Accordingly,
31   they cannot show that their Sixth Amendment right to
32   compulsory process was violated. See United States v.
33   Scopo, 861 F.2d 338, 339, 345-46 (2d Cir. 1988).
34
35   [4] In reviewing the denial of defendants’ Rule 29 motions
36   de novo, we “view[] the evidence in the light most favorable
37   to the government,” United States v. Pizzonia, 577 F.3d 455,
38   462 (2d Cir. 2009), and conclude that denial of the motions
39   was proper. There is ample evidence that the victims of the
40   assault suffered physical pain as a result of the beating
41   administered by defendants. As the district court observed,
42   the question of whether the victims’ screams were genuine
43   was presented to the jury. Dono himself commented to a
44   cooperating witness that one of the victims was injured
45   badly. The record also establishes that Dono and Costanza
46   aided and abetted Uvino in the assault. See United States
47   v. Best, 219 F.3d 192, 199-200 (2d Cir. 2000). With respect

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 1   to Dono’s assertion that he withdrew from the robbery
 2   conspiracy, we may properly deem this defense waived as he
 3   never raised it at trial. See United States v. Spero, 331
 4   F.3d 57, 60 n.2 (2d Cir. 2003).
 5
 6   [5] Defendants’ assertion that the government failed to
 7   adduce sufficient evidence demonstrating the interstate-
 8   nexus element of the racketeering and racketeering
 9   conspiracy counts is unavailing. Defendants’ suggestion
10   that the government failed to present sufficient evidence
11   that five or more individuals participated in the illegal
12   bookmaking operation similarly lacks merit. Defendants did
13   not challenge the sufficiency of the evidence on these
14   grounds at trial. Accordingly, we review these contentions
15   only for plain error. See United States v. Draper, 553 F.3d
16   174, 179 (2d Cir. 2009). There is no error, plain or
17   otherwise. The government presented sufficient evidence
18   that, as an enterprise, the Colombo crime family engaged in
19   activities affecting interstate commerce; that is all that
20   is required. See United States v. Feliciano, 223 F.3d 102,
21   119-20 (2d Cir. 2000). With respect to the bookmaking
22   counts, the record supports the finding that Uvino, Dono,
23   Costanza, and at least two other individuals (not implicated
24   by this appeal) participated in the illegal business. See
25   United States v. Gotti, 459 F.3d 296, 341 (2d Cir. 2006).
26
27   [6] Uvino maintains that the sentence imposed by the
28   district court is substantively unreasonable. Our role is
29   “limited to examining a sentence for reasonableness, which
30   is akin to review under an abuse-of-discretion standard.”
31   United States v. Rigas, 583 F.3d 108, 114 (2d Cir. 2009)
32   (internal quotation marks omitted). We will set aside a
33   sentence based on a claim of substantive unreasonableness
34   “only in exceptional cases where the trial court’s decision
35   cannot be located within the range of permissible
36   decisions.” Id. at 122 (internal quotation marks omitted).
37   This is not such a case. Here, the district court
38   considered all of the appropriate factors under 18 U.S.C. §
39   3553(a) and imposed a sentence it found to be “sufficient,
40   but not greater than necessary to fulfill the purposes of
41   sentencing.” United States v. Cavera, 550 F.3d 180, 189 (2d
42   Cir. 2008) (in banc) (internal quotation marks omitted).
43   Contrary to Uvino’s contention, the district court’s stated
44   goal of deterring others from joining organized crime
45   families was entirely appropriate. See United States v.
46   Dazzo, 672 F.2d 284, 289 (2d Cir. 1982). And, “a reasonable
47   explanation” of the difference between the sentences imposed

                                  5
 1   on Uvino and Dono, who was his codefendant at trial, is
 2   “readily apparent, namely, the varying degrees of [their]
 3   culpability.” United States v. Ebbers, 458 F.3d 110, 129
 4   (2d Cir. 2006). Finally, the district court did not abuse
 5   its discretion in imposing a fine of $100,000. See U.S.S.G.
 6   § 5E1.2. Uvino did not discharge his burden of
 7   demonstrating that, in the future, he would lack the assets
 8   to pay the fine imposed. See United States v. Salameh, 261
 9   F.3d 271, 276 (2d Cir. 2001).
10
11        Finding no merit in any of defendants’ arguments on
12   appeal, we hereby AFFIRM the judgment of the district court.
13
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17
18




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