     08-4247-cr(L), 08-4251-cr(CON), 08-4252-cr(CON), 08-5954-cr(CON)
     United States v. Barris


                          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 17 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       United States of America,
14                Appellee,
15
16                    -v.-                                         08-4247-cr(L),
17                                                                 08-4251-cr(CON),
18                                                                 08-4252-cr(CON),
19                                                                 08-5954-cr(CON)
20
21       Larry Barris, also known as Tony
22       Panic, Anthony Patterson, also known
23       as Rooster, Ronnie Mazier, also known
24       as Robert Anthony Barnes, also known
25       as Bruckey, Matthew Casazza, also
26       known as Estrada,
27                Defendants-Appellants.
28       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1   FOR APPELLANTS:        ALAN M. NELSON, Lake Success, NY,
 2                          for Appellant Barris.
 3
 4                          VIVIAN SHEVITZ, South Salem, NY, for
 5                          Appellant Patterson.
 6
 7                          Beth M. Farber, New York, NY, for
 8                          Appellant Mazier.
 9
10                          AVROM ROBIN, London & Robin, New
11                          York, NY, for Appellant Casazza.
12
13                          Matthew Casazza, pro se, Fort Dix,
14                          NJ.
15
16   FOR APPELLEE:          JULIAN J. MOORE, Andrew L. Fish,
17                          John T. Zach, Assistant United
18                          States Attorneys, of counsel, for
19                          Preet Bharara, United States
20                          Attorney for the Southern District
21                          of New York.
22
23        Appeal from a judgment of the United States District
24   Court for the Southern District of New York (Buchwald, J.).

25        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
26   AND DECREED that the judgment of the district court be
27   AFFIRMED IN PART, VACATED IN PART, and REMANDED.

28        Larry Barris, Matthew Casazza, Ronnie Mazier, and
29   Anthony Patterson appeal from judgments of conviction and
30   sentences entered August 25 and September 8, 2008 in the
31   United States District Court for the Southern District of
32   New York (Buchwald, J.). Appellants were charged in two
33   counts with conspiracy to distribute and possess with intent
34   to distribute 1000 kg or more of marijuana, and with
35   possessing a firearm in furtherance of drug trafficking--as
36   members of the John Shop Crew, a marijuana-distribution
37   operation in the Bronx. Following a jury trial, each was
38   convicted of at least one of the charges, and sentenced
39   principally to a term of imprisonment. We otherwise assume
40   the parties’ familiarity with the underlying facts, the
41   case’s procedural history, and the issues presented for
42   review.


                                  2
 1        Appellants first challenge the sufficiency of the
 2   evidence supporting their convictions. When reviewing a
 3   conviction for sufficiency of evidentiary support, “the
 4   trial evidence is viewed most favorably for the Government”
 5   and “all reasonable inferences a jury may have drawn
 6   favoring the Government must be credited.” United States v.
 7   Wexler, 522 F.3d 194, 206-07 (2d Cir. 2008). We affirm “‘if
 8   any rational trier of fact could have found the essential
 9   elements of [the] crime beyond a reasonable doubt.’” Id. at
10   207 (emphasis omitted) (quoting Jackson v. Virginia, 443
11   U.S. 307, 319 (1979)).

12        With respect to Barris and Casazza, we affirm for
13   substantially the reasons stated in the district court’s
14   July 7, 2008 memorandum decision and order. With respect to
15   Patterson and Mazier, we find ample evidence to support
16   their convictions for conspiracy. Witnesses testified that
17   they were members of the John Shop Crew, that they
18   personally sold marijuana out of the Crew’s stash house on
19   Cruger Avenue, and that they performed other services
20   involving large quantities of drugs on behalf of the Crew.
21   Cf. United States v. Santos, 541 F.3d 63, 70-71 (2d Cir.
22   2008) (elements of drug conspiracy charged are “(1) the
23   existence of the conspiracy charged; (2) that the defendant
24   had knowledge of the conspiracy; . . . (3) that the
25   defendant intentionally joined the conspiracy[; and] (4)
26   that it was either known or reasonably foreseeable to the
27   defendant that the conspiracy involved the drug type and
28   quantity charged” (citations omitted)).

29        Likewise, we find ample evidence to support Patterson’s
30   conviction for firearms possession. Witnesses testified
31   that on more than one occasion Patterson carried a gun while
32   at the Cruger Avenue stash house, and that he would practice
33   brandishing the gun; and that many members of the John Shop
34   Crew carried guns to protect themselves and their business
35   from robbery. Cf. United States v. Chavez, 549 F.3d 119,
36   129-30 (2d Cir. 2008) (elements of firearms possession
37   charged are [1] that the defendant actually or
38   constructively possessed a firearm; and [2] that possession
39   of the firearm was in furtherance of drug trafficking).




                                  3
 1        Casazza challenges the admission of evidence concerning
 2   his prior arrest and conviction for firearms possession. We
 3   review for abuse of discretion, United States v. Wexler, 522
 4   F.3d 194, 201-02 (2d Cir. 2008); and find none. The
 5   admission of this evidence was not contrary to Federal Rule
 6   of Evidence 404(b) because it was relevant to the firearms
 7   possession charged here and to Casazza’s relationship with
 8   alleged co-conspirator Patterson. See, e.g., United States
 9   v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002) (“Evidence of
10   other crimes, wrongs, or acts” is admissible when offered
11   for any purpose other than “to prove the character of a
12   person in order to show action in conformity therewith.”
13   (quoting Fed. R. Evid. 404(b))). Nor is the admission of
14   this evidence contrary to Federal Rule of Evidence 403: The
15   evidence was not inflammatory, pejorative, or otherwise
16   unfairly prejudicial, and had obvious probative value, as
17   described. Cf. United States v. Roldan-Zapata, 916 F.2d
18   795, 804 (2d Cir. 1990) (upholding admission where the
19   “evidence . . . represented only a tiny fraction of the
20   testimony heard by the jury, and did not involve conduct any
21   more sensational or disturbing than the crimes with which
22   [the defendant] was charged”).

23        Appellants next argue that the district court failed to
24   investigate the possibility that an expression of discomfort
25   made by one juror to another may have tainted the panel. We
26   find no abuse of discretion. Cf., e.g., United States v.
27   Sun Myung Moon, 718 F.2d 1210, 1235 (2d Cir. 1983) (standard
28   of review is abuse of discretion). The juror (who was later
29   dismissed at her request) made a single, one-sentence
30   statement to her co-juror; and her discomfort was based on
31   personal, idiosyncratic factors. These circumstances would
32   hardly have raised in the district court’s mind the specter
33   of juror misconduct, let alone prejudice. Cf., e.g., United
34   States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (“A mistrial
35   or other remedial measure is required only if juror
36   misconduct and actual prejudice are found.”). In such
37   circumstances, the court had no warrant to investigate
38   further, especially where further investigation would likely
39   have brought about the very contagion that Appellants claim
40   here to fear.



                                  4
 1        Finally, Barris, Patterson, and Casazza contend that
 2   the district court erred by imposing a consecutive five-year
 3   term of imprisonment for the firearms possession
 4   convictions, in light of United States v. Williams, 558 F.3d
 5   166 (2d Cir. 2009). The government concedes the issue, but
 6   requests that we defer decision until the legal question has
 7   been addressed by the Supreme Court, as the government
 8   expects. Though the Supreme Court has granted cert in two
 9   cases presenting the question, see United States v. Gould,
10   329 F. App’x 569 (5th Cir. 2009), cert. granted, 130 S. Ct.
11   1283 (U.S. Jan. 25, 2010) (No. 09-7073); United States v.
12   Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, 130 S.
13   Ct. 1284 (U.S. Jan. 25, 2010) (No. 09-479), “[a] panel is
14   bound by prior decisions of this court unless and until the
15   precedents established therein are reversed en banc or by
16   the Supreme Court.” United States v. Jass, 569 F.3d 47, 58
17   (2d Cir. 2009). Accordingly, we vacate the sentences and
18   remand for resentencing.

19        Finding no merit in Appellants’ remaining arguments, we
20   accordingly AFFIRM Appellants’ convictions and Mazier’s
21   sentence; and we VACATE the sentences of Barris, Patterson,
22   and Casazza, and REMAND their cases to the district court
23   for re-sentencing.

24
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28




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