        10-3333-cr
        United States of America v. Juncal (Corsey)


                                       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 TO 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 for the Second Circuit, held
 2      at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3      York, on the 19th day of February, two thousand thirteen.
 4
 5      PRESENT:
 6                 Amalya L. Kearse,
 7                 Raymond J. Lohier, Jr.,
 8                       Circuit Judges,
 9                 Lewis A. Kaplan,
10                       District Judge.*
11      _____________________________________
12
13      United States of America,
14
15                                   Appellee,
16
17                         v.                                                 10-3333-cr
18
19      Emerson Earl Corsey,
20
21                                   Defendant-Appellant.**
                 *
                  The Honorable Lewis A. Kaplan, of the United States District Court for the
        Southern District of New York, sitting by designation.
                **
                   The Clerk of Court is directed to amend the official caption to conform to that
        set forth above.
 1   _____________________________________
 2   FOR DEFENDANT-APPELLANT:              EMERSON EARL CORSEY, pro se, Ayer,
 3                                         MA.
 4
 5   FOR APPELLEE:                                      AMY BUSA, CHRISTOPHER C. CAFFARONE,
 6                                                      Assistant United States Attorneys, for
 7                                                      Loretta E. Lynch, United States
 8                                                      Attorney for the Eastern District of New
 9                                                      York, Brooklyn, NY.
10
11          Appeal from a judgment of the United States District Court for the Eastern District

12   of New York (Sandra J. Feuerstein, Judge).

13          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

14   DECREED that the judgment of the District Court is AFFIRMED in part, the sentence is

15   VACATED, and the case is REMANDED for resentencing.

16          Defendant-appellant Emerson Earl Corsey, pro se, appeals from the judgment of

17   conviction entered on August 13, 2010, following a jury trial. Corsey was convicted of

18   conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343 and

19   1349. On appeal, he challenges the District Court’s denial of his motion to sever, the

20   sufficiency of the trial evidence, the District Court’s subject matter jurisdiction, and his

21   sentence. We assume the parties’ familiarity with the underlying facts, the procedural

22   history of the case, and the issues on appeal.

23   I.     Severance

24          Corsey first argues that the District Court erred by denying his motion to sever his

25   trial on the ground that his “role in the organization and his interests” differed from those

26   of his co-defendants at trial. We review the denial of a motion to sever for abuse of

                                                 2
 1   discretion, United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004), recognizing that

 2   “there is a preference in the federal system for joint trials of defendants who are indicted

 3   together,” United States v. Blount, 291 F.3d 201, 208-09 (2d Cir. 2002) (quotation marks

 4   omitted), and that a denial of a severance motion “will be reversed only if a defendant can

 5   show prejudice so severe that his conviction constituted a miscarriage of justice,” United

 6   States v. Diaz, 176 F.3d 52, 102 (2d Cir. 1999) (quotation marks omitted).

 7          We reject Corsey’s argument. First, with respect to Corsey’s role in the

 8   organization, we have observed that “differing levels of culpability and proof are inevitable

 9   in any multi-defendant trial and, standing alone, are insufficient grounds for separate

10   trials.” United States v. Chang An-Lo, 851 F.2d 547, 557 (2d Cir. 1988) (quotation marks

11   omitted). Second, even if the evidence adduced at trial supported Corsey’s characterization

12   of his role as “low-level” and “secretarial,” his defense was not so antagonistic to those of

13   the other defendants that he suffered prejudice. See Zafiro v. United States, 506 U.S. 534,

14   538-39 (1993). Our own review of the record convinces us that this is not a case where the

15   jury, in order to believe one defendant’s testimony, would have to disbelieve the testimony

16   of a co-defendant. See United States v. Carpentier, 689 F.2d 21, 28 (2d Cir. 1982).

17   Corsey’s argument on appeal therefore constitutes nothing more than a simple assertion of

18   “some antagonism,” which “does not require severance.” Id. at 27-28. Accordingly, the

19   District Court did not err in denying Corsey’s motion for severance.1


            1
              Corsey also asserts that “there was exculpatory evidence that was su[p]pressed as
     [a] result of the Appellant being tried with his co-defendants. The evidence would have
                                                    3
 1   II.    Sufficiency of the Evidence

 2          We review de novo Corsey’s claim of insufficiency of the evidence. United States

 3   v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010). “A defendant challenging the sufficiency

 4   of trial evidence bears a heavy burden, and the reviewing court must view the evidence

 5   presented in the light most favorable to the government and draw all reasonable inferences

 6   in the government’s favor.” United States v. Gagliardi, 506 F.3d 140, 149 (2d Cir. 2007)

 7   (quotation marks omitted). We will affirm the conviction if “any rational trier of fact could

 8   have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

 9   Virginia, 443 U.S. 307, 319 (1979). Moreover, “deference to the jury’s findings is

10   especially important” in the context of a charge of conspiracy, conduct that by its nature is

11   secretive. United States v. Rojas, 617 F.3d 669, 674 (2d Cir. 2010) (quotation marks

12   omitted).

13          With these principles in mind, we have no trouble concluding that the trial evidence

14   was sufficient to sustain Corsey’s conviction for conspiracy to commit mail and wire fraud.

15   Among other things, the evidence showed that Corsey told Thomas Re that: (1) Corsey

16   was the chief operating officer and a member of the Board of Directors of the Magnolia

17   International Bank and Trust (“MBT”), the purported assets of which he described; (2)

18   MBT was involved in a joint venture to build an oil pipeline in Siberia; and (3) MBT

19   sought a $3 billion loan to be secured by United States treasury notes worth $5 billion

     been available to the Appellant if he had been tried separately.” Nowhere, however, does
     Corsey describe the nature of this evidence, and the Government has averred that it is
     unaware of any such evidence.
                                                   4
 1   located at Credit Suisse Bank in Austria. Other evidence established that MBT was not a

 2   legitimate bank and did not have the collateral or assets that Corsey described. In sum, the

 3   evidence showed that Corsey knew about the scheme to obtain a $3 billion loan and

 4   intended to participate in it by providing documents and information to Re.

 5   III.   Subject Matter Jurisdiction

 6          Corsey next argues that the District Court lacked subject matter jurisdiction to

 7   sentence him for three reasons: (1) “there is no[t] and never was a hedge fund” actually

 8   interested in loaning MBT $3 billion, and thus no possibility of any hedge fund being

 9   defrauded; (2) he was entrapped by a confidential informant working with the Government;

10   and (3) “the government failed to show that the purported banking organization was FDIC

11   insured.” We reject all three arguments.

12          First, impossibility is not a defense to a conspiracy charge. Rather, “[t]he crime of

13   conspiracy is complete upon the agreement to violate the law, as implemented by one or

14   more overt acts, and is not at all dependent upon the ultimate success or failure of the

15   planned scheme.” United States v. Trapilo, 130 F.3d 547, 552 n.9 (2d Cir. 1997)

16   (alteration and quotation marks omitted); see United States v. Wallach, 935 F.2d 445, 470

17   (2d Cir. 1991) (“[I]t does not matter that the ends of the conspiracy were from the

18   beginning unattainable,” as “[i]mpossibility . . . is not a defense to a conspiracy charge.”)

19   (quotation marks omitted).

20          Second, “[e]ntrapment is an affirmative defense that [Corsey] must show by a

21   preponderance of the evidence.” United States v. Bala, 236 F.3d 87, 94 (2d Cir. 2000).
                                                    5
 1   “The defense has two elements: (1) government inducement of the crime, and (2) lack of

 2   predisposition on the defendant’s part.” Id. (quotation marks omitted). The evidence at

 3   trial revealed that Corsey and his associates initiated the scheme, made several unprovoked

 4   representations to Re, and solicited a loan. There was no evidence showing that the

 5   Government “set the accused in motion.” United States v. Brand, 467 F.3d 179, 190 (2d

 6   Cir. 2006) (quotation marks omitted).

 7          Finally, relying on United States v. Alexander, 679 F.3d 721 (8th Cir. 2012), Corsey

 8   asserts that the Government failed to show that the “purported banking organization was

 9   FDIC insured.” In Alexander, however, the statute at issue was 18 U.S.C. § 1014, which

10   requires the Government to prove that the defendant “knowingly made a false statement to

11   an FDIC-insured institution.” Id. at 726. There is no such requirement in the mail and

12   wire fraud statutes, 18 U.S.C. §§ 1341, 1343, that Corsey was convicted of conspiring to

13   violate.

14   IV.    Sentencing

15          Corsey’s final argument is that the District Court at sentencing failed to properly

16   evaluate the factors set forth in 18 U.S.C. § 3553(a). Because Corsey did not raise this

17   argument before the District Court, we review for plain error. United States v. Cassesse,

18   685 F.3d 186, 188, 192 (2d Cir. 2012); United States v. Villafuerte, 502 F.3d 204, 207-08,

19   211 (2d Cir. 2007). We need not address Corsey’s argument relating to § 3553(a),

20   however, because we agree with the Government that the District Court failed to “state in

21   open court the reasons for its imposition of the particular sentence” in accordance with §
                                                   6
 1   3553(c)(1), and that its failure to do so constituted plain error. Corsey’s sentence is

 2   vacated, and the case is remanded to the district court for resentencing. See United States

 3   v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).

 4          We have considered Corsey’s remaining arguments and conclude that they are

 5   without merit. For the foregoing reasons, the District Court’s judgment is AFFIRMED in

 6   part, Corsey’s sentence is VACATED, and the case is REMANDED to the District Court

 7   for resentencing in compliance with 18 U.S.C. § 3553(c).

 8                                              FOR THE COURT:
 9                                              Catherine O’Hagan Wolfe, Clerk
10




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