07-0256-cr
USA v. Lorenzana

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST 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 2nd day
of June, two thousand ten.

Present:
            ROBERT D. SACK,
            ROBERT A. KATZMANN,
            PAUL J. KELLY, JR.,*
                        Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                       v.                                           No. 07-0256-cr

VICTOR LORENZANA,

            Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                     ROBIN C. SMITH , Brooklyn, NY

For Appellee:                                JOSHUA A. GOLDBERG , Assistant United States
                                             Attorney (Celeste L. Koeleveld, Shane T.
                                             Stansbury, Assistant United States Attorneys, on the
                                             brief), for Preet Bharara, United States Attorney for
                                             the Southern District of New York, New York, NY

       *
          The Honorable Paul J. Kelly, Jr., of the United States Court of Appeals for the Tenth
Circuit, sitting by designation.
      Appeal from the United States District Court for the Southern District of New York
(Keenan, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Defendant Victor Lorenzana appeals from a judgment of conviction entered January 23,

2007 (Keenan, J.), following a jury trial, convicting him of conspiring to commit armed robbery

and attempted armed robbery of persons engaged in narcotics trafficking; committing Hobbs Act

robbery; using, carrying and possessing a firearm during and in relation to a crime of violence or

drug trafficking crime; conspiring to distribute and possess with intent to distribute five

kilograms and more of cocaine and one kilogram and more of heroin; and money laundering.

Lorenzana was sentenced to 87 years’ imprisonment, five years’ supervised release, and a $900

special assessment. We assume the parties’ familiarity with the facts and procedural history of

this case.

        On appeal, Lorenzana first argues that he was deprived of his right to be present at all

material parts of his trial when he was not personally included (although his attorney was

present) in sidebars during voir dire and during the district judge’s in camera questioning of a

juror before deliberation. Even assuming that the sidebars and in camera questioning were

material parts of his trial, Lorenzana and his lawyer failed to object to his exclusion and

therefore waived any right he had to be present at those parts of his trial. See United States v.

Gagnon, 470 U.S. 522, 529 (1985) (“If a defendant is entitled under Rule 43 to attend certain

‘stages of the trial’ which do not take place in open court, the defendant or his counsel must

assert that right at the time; they may not claim it for the first time on appeal.”); United States v.

Peterson, 385 F.3d 127, 138-39 (2d Cir. 2004). Lorenzana further contends that his counsel was

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ineffective in failing to apprise him of what happened during the sidebars and in camera

questioning, and that the district court should have held a hearing on this claim of ineffective

assistance. The district court determined that no hearing was necessary, however, based on an

affidavit of Lorenzana’s trial counsel, the implausibility of Lorenzana’s assertion, and its finding

that Lorenzana was not credible. We conclude that the district court did not abuse its discretion

in so determining. See United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995) (“We will not

reverse the . . . refusal to conduct an evidentiary hearing absent an abuse of discretion.”).

       Lorenzana next argues that the jury instructions regarding the interstate commerce

element of the Hobbs Act robbery counts were improper under United States v. Parkes, 497 F.3d

220 (2d Cir. 2007), because the instructions removed that element from the jury’s consideration.

We agree. In United States v. Gomez, 580 F.3d 94, 98, 100 (2d Cir. 2009), we held that an

almost identical instruction was in error. This error, however, is subject to harmless error

analysis. We “consider the weight of trial evidence bearing on the omitted element; and if such

evidence is overwhelming and essentially uncontroverted, there is no basis for concluding that

the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.”

Id. at 100-01 (quoting United States v. Guevara, 298 F.3d 124, 126-27 (2d Cir. 2002)). To

sustain Lorenzana’s conviction, we must determine that the jury would have returned the same

verdict beyond a reasonable doubt. See id. at 101.

       We conclude that the error here was harmless. Under the Hobbs Act, only “a very slight

effect on interstate commerce” need be shown. United States v. Wilkerson, 361 F.3d 717, 726

(2d Cir. 2004) (internal quotation marks omitted). Here, the government introduced evidence

that the victims of one of the robberies sold drugs in Connecticut, New Jersey, and Maryland,


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and that Lorenzana and his crew used the proceeds of the drug robberies to travel out of state.

Moreover, the targeted drug dealers trafficked in cocaine and heroin, drugs that cannot be

produced in New York. See Gomez, 580 F.3d at 101-02. Accordingly, we conclude the jury

would have returned the same verdict beyond a reasonable doubt.

       We have reviewed Lorenzana’s remaining arguments and conclude that they lack merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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