     09-1176-cr
     USA v. Young


                                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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 6th day of July, two thousand ten.
 4
 5   PRESENT:
 6
 7                    RALPH K. WINTER,
 8                    JOSEPH M. McLAUGHLIN,
 9                    DEBRA ANN LIVINGSTON,
10                                     Circuit Judges.
11
12
13   UNITED STATES OF AMERICA,
14                   Appellee,
15
16                    v.                                                         09-1176-cr
17                                                                               Summary Order
18   JOSEPH YOUNG, also known as Joe
19   Black,
20                    Defendant-Appellant,
21
22   GINO GALESTRO, JOHN TUFARELLI,
23   also known as Little John, STEFAN
24   CICALE, JOSE GARCIA,
25                          Defendants.
26
27
28                                                              Winston Y. Chan, Assistant United States
29                                                              Attorney (Benton J. Campbell, United States
30                                                              Attorney, and David C. James, Jack Dennehy,
31                                                              William Schaeffer, Assistant United States
32                                                              Attorneys, on the brief), United States
33                                                              Attorney’s Office, Eastern District of New
34                                                              York, Brooklyn, NY, for Appellee.
 1                                                         Robert A. Soloway, Rothman Schneider
 2                                                         Soloway & Stern, LLP, New York, NY, for
 3                                                         Defendant-Appellant.
 4


 5
 6          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED

 7   that the judgment of the district court is AFFIRMED.

 8          Defendant-Appellant Joseph Young appeals from the March 13, 2009 judgment of conviction

 9   entered after a jury found him guilty of 24 charges, including racketeering, murder in aid of

10   racketeering, murder for hire, carjacking, extortionate collection of credit, and various firearms

11   offenses, all stemming from his involvement with the Bonanno Crime Family. Young argues on

12   appeal that the district court (Ross, J.) erred by empaneling an anonymous and escorted jury and

13   abused its discretion by admitting into evidence a homemade “movie trailer” that featured Young

14   and several of his associates. We assume the parties’ familiarity with the underlying facts and

15   procedural history of the case.

16          “In reviewing an anonymous jury challenge, we ‘balance the defendant’s interest in

17   conducting meaningful voir dire and in maintaining the presumption of innocence, against [the

18   jury’s] interest in remaining free from real or threatened violence and the public interest in having

19   the jury render a fair and impartial verdict.’” United States v. Quinones, 511 F.3d 289, 295 (2d Cir.

20   2007) (quoting United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir.1994)). “As a general rule, a

21   district court may order the empaneling of an anonymous jury upon ‘(a) concluding that there is

22   strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize

23   any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.’”

24   United States v. Stewart, 590 F.3d 93, 124 (2d Cir. 2009) (quoting United States v. Paccione, 949

25   F.2d 1183, 1192 (2d Cir.1991)); accord United States v. Vario, 943 F.2d 236, 240-41 (2d Cir. 1991).

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 1   If “there is evidence to support the district court’s finding of reason to believe the jury needs

 2   protection,” and if “the court has taken reasonable precautions to minimize any prejudicial effects

 3   on the defendant and to ensure protection of his fundamental rights, the decision to empanel an

 4   anonymous jury is reviewed only for abuse of discretion.” Stewart, 590 F.3d at 124 (quoting United

 5   States v. Thai, 29 F.3d 785, 801 (2d Cir. 1994)).

 6          Here, we see no abuse of discretion in the district court’s decision to empanel an anonymous

 7   jury. While, “[t]he invocation of the words ‘organized crime,’ ‘mob,’ or ‘Mafia,’ unless there is

 8   something more, does not warrant an anonymous jury,” Vario, 943 F.2d at 241, in this case the

 9   “something more” was satisfied by the government’s showing that trial evidence would depict a

10   horrific “pattern of violence by the defendant and his associates,” id., including Young’s murder of

11   an associate and subsequent dismemberment and burning of the man’s corpse when this associate

12   was adjudged to have boasted excessively regarding the group’s crimes. Although Young was

13   apparently a low-level figure in the Bonanno organization, and the district court acknowledged that

14   it was therefore “unclear precisely what duty the family owed to [him] . . . and to what lengths the

15   family might go in order to assist him,” Sept. 12, 2008 Order at 4, the government made a sufficient

16   showing of the Bonanno organization’s willingness to subvert the judicial process, see Vario, 943

17   F.2d at 241 (indicating that “a demonstrable history or likelihood of obstruction of justice on the part

18   of the defendant or others acting on his behalf” can support empanelment of an anonymous jury).

19   Moreover, the evidence introduced at trial demonstrated that Young himself was willing to subvert

20   the proceedings by inducing another to provide him with a false alibi. See Quinones, 511 F.3d at

21   295 (“In reviewing [evidence demonstrating the defendant’s willingness to tamper with the judicial

22   process], we are not limited to the facts available at the time of actual empanelment; rather, we may

23   consider any relevant evidence in the record.”). The significant media interest in Young’s trial

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 1   further supported the district court’s decision to empanel an anonymous jury. See, e.g., United

 2   States v. Wong, 40 F.3d 1347, 1377 (2d Cir. 1994) (“The prospect of publicity militates in favor of

 3   jury anonymity to prevent exposure of the jurors to intimidation or harassment.”).

 4          Nor did the district court abuse its discretion by admitting into evidence the homemade film

 5   featuring Young and his associates. Federal Rule of Evidence 403 allows relevant evidence to be

 6   excluded by the trial court if “its probative value is substantially outweighed by” such dangers as

 7   “unfair prejudice.” “On appeal, our review of the district court’s Rule 403 rulings is tightly limited

 8   in recognition of a trial court’s superior position to assess both the probative value and the

 9   prejudicial potential of evidence presented at trial; those rulings must stand absent an abuse of

10   discretion.” United States v. Royer, 549 F.3d 886, 901 (2d Cir. 2008). The district court found the

11   film – which among other things showed Young and various co-defendants together at the mansion

12   at which Young was alleged to have killed their associate – to be probative, and Young concedes

13   that it was relevant evidence. Appellant’s Br. at 33, 35. Although Young contends that the film was

14   prejudicial because it depicted him in the “role of a murderer,” id. at 32, the trailer did not in fact

15   show him killing anyone, and its depiction of him wearing dark clothing and a mask and carrying

16   a firearm corroborated trial testimony regarding his use of such tools in the course of his crimes.

17   Additionally, the district court cautioned the jury that the events depicted in the film were pure

18   fiction, thereby reducing the potential for prejudice. See Royer, 549 F.3d at 901.

19          We have considered all of Young’s other arguments and find them to be without merit. For

20   the reasons stated above, the judgment of the district court is AFFIRMED.

21
22
23                                                          FOR THE COURT:
24                                                          Catherine O’Hagan Wolfe, Clerk
25
26
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