13-0501-cr
United States v. Burke


                          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
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 21st day of January, two thousand fourteen.

PRESENT: RALPH K. WINTER,
                 GUIDO CALABRESI,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                               No. 13-0501-cr

JOHN A. BURKE,
                                 Defendant-Appellant,

JAMES V. CADICAMO, DAVID D’ARPINO,
MICHAEL D. FINNERTY, GUY T. PEDEN, ANGELO
RUGGIERO, JR.,
                                 Defendants.*
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APPEARING FOR APPELLANT:                          YING STAFFORD,         ESQ.,   New   York,
                                                  New York.


* The Clerk of Court is directed to amend the official caption as shown above.

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APPEARING FOR APPELLEE:                   JACQUELYN KASULIS (Amy Busa, Evan M.
                                          Norris, Whitman G.S. Knapp, on the brief),
                                          Assistant United States Attorneys, for Loretta E.
                                          Lynch, United States Attorney for the Eastern
                                          District of New York, Brooklyn, New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Sterling Johnson, Jr., Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 30, 2013, is AFFIRMED.

       Defendant John Burke stands convicted after a jury trial of racketeering conspiracy,

see 18 U.S.C. § 1962(d), murder in aid of racketeering, see id. § 1959(a)(1), murder in

connection with a continuing criminal enterprise, see 21 U.S.C. § 848(e)(1)(A), and use of

a firearm in relation to a crime of violence, see 18 U.S.C. § 924(c)(1)(A)(iii).         In

addressing Burke’s various appellate challenges to his conviction, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1.     Jury Bias

       Burke asserts that he was denied an impartial jury because the venire was exposed

to a New York Post article about his case published on the first day of jury selection. In

fact, only 16 of the 84 prospective jurors and two petit jurors had seen or heard of the

article. Moreover, the record indicates that in the course of the trial court’s careful voir

dire, both petit jurors—one of whom had prior jury experience—unhesitatingly stated that

the article would not influence them or affect their impartial assessment of the evidence.
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In such circumstances, the district court acted well within its discretion in not dismissing

the venire. See United States v. Elfgeeh, 515 F.3d 100, 128 (2d Cir. 2008) (according

deference to district court assessment of juror impartiality absent abuse of discretion); see

also Skilling v. United States, 130 S. Ct. 2896, 2918 (2010). Further undermining Burke’s

argument is his decision not to challenge for cause the two petit jurors exposed to the

article, see Skilling v. United States, 130 S. Ct. at 2923–24; United States v. Ragland, 375

F.2d 471, 476 (2d Cir. 1967), and the fact that virtually all of the information in the article

was put before the jury through evidence admitted at trial.

       In urging otherwise, Burke seeks to have us apply a presumption of prejudice to the

venire’s exposure to the Post article, submitting that a larger number of prospective jurors

likely read the article but did not acknowledge doing so because it would necessarily admit

violation of earlier court instructions. We decline to presume prejudice based on such

speculation, particularly as counsel was afforded an opportunity to propose further voir

dire inquiry and did nothing to develop evidence supporting his speculation. In any event,

the presumption of prejudice from media exposure attends only “extreme” cases. Skilling

v. United States, 130 S. Ct. at 2915; see Murphy v. Florida, 421 U.S. 794, 798–99 (1975)

(discussing circumstances where influence of media “pervaded the proceedings”). A

review of the voir dire convincingly demonstrates that this is not such a case.

       In sum, we conclude that Burke was not denied his right to be tried by a fair jury.




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2.     Prosecutorial Misconduct

       Burke submits that prosecutorial misconduct in summation and the district court’s

refusal to afford him surrebuttal denied him a fair trial. To secure vacatur and a new trial

on this ground, Burke bears a “heavy burden” because he must show not only that the

prosecutor’s actions were objectionable, but that they were so serious as to permeate the

entire trial and deny him due process. See, e.g., United States v. Williams, 690 F.3d 70,

74–75 (2d Cir. 2012). That is not this case.

       First, the prosecutor’s use of the word “bogus” to dispute Burke’s withdrawal

defense did not rise to the level of severity warranting reversal. See United States v.

Millar, 79 F.3d 338, 343–44 (2d Cir. 1996) (reaching same conclusion regarding

prosecutor’s comments that defense was “hog wash” and defense counsel created a

“smokescreen”). As this court has long recognized, a prosecutor is “not an automaton

whose role in summation is limited to parroting factors already before the jury.” United

States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975). Moreover, a summation is not a

“detached exposition [such] as would be appropriate in a lecture,” rather, it is “inevitably

charged with emotion.” United States v. Wexler, 79 F.2d 526, 530 (2d Cir. 1935) (L.

Hand, J.).   In any event, when defense counsel voiced objection, the district court

instructed the prosecutor before the jury not to use the word “bogus” and instructed the jury

that counsel’s summations were not evidence—an instruction repeated in its formal charge.

See United States v. Elias, 285 F.3d 183, 191–92 (2d Cir. 2002) (noting that curative

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instruction in court’s final charge sufficient where prosecutor’s misconduct not severe).

The totality of these circumstances demonstrate no denial of a fair trial.

       Second, insofar as Burke complains of prosecutorial misconduct in rebuttal, his

failure to object at trial limits our review to plain error, “requiring us to reject any

assignment of error that does not amount to flagrant abuse which seriously affects the

fairness, integrity, or public reputation of judicial proceedings, and causes substantial

prejudice to the defendant.” United States v. Williams, 690 F.3d at 70 (internal quotation

marks omitted); see generally United States v. Marcus, 560 U.S. 258 (2010) (discussing

plain error standard). Burke cannot make this showing with respect to prosecutorial

comments suggesting he might be paroled before completing his prison term and resume

criminal activity as he had when previously paroled. Such comments were fair rebuttal to

the defense argument that Burke “may never come home.” Trial Tr. 2221, Gov’t App.

230. See United States v. Farhane, 634 F.3d 127, 167–68 (2d Cir. 2011).

       As for the prosecutor’s observation that “defense witnesses lie,” the statement

responded to Burke’s summation attack on the credibility of cooperating witness Peter

Zuccaro, who had admitted committing perjury when testifying as a defense witness at the

1986 trial of Gambino family boss John Gotti, Sr., and whom defense counsel suggested

was similarly motivated to lie in Burke’s trial based on the “cash and prizes” he was

receiving from the government for his cooperation. “Prosecutors have greater leeway in

commenting on the credibility of their witnesses when the defense has attacked that

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credibility.” United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998). Insofar as Burke

now complains that the prosecutor’s comments might have been understood to suggest that

his defense witnesses were lying, we do not think the context, plainly focused on Zuccaro,

supports that inference, a conclusion reinforced by Burke’s failure to object when he heard

the remark.

       Finally, we identify no abuse of discretion in the district court’s denial of

surrebuttal. See United States v. Bautista, 252 F.3d 141, 145 (2d Cir. 2001).

3.     Lay Opinion Testimony

       Burke argues that prosecution witnesses Anthony Ruggiano, Jr. and Pasquale

Andriano were improperly allowed to provide lay opinion testimony on Burke’s state of

mind in violation of Fed. R. Evid. 701. “We review a trial court’s evidentiary rulings

deferentially, and we will reverse only for abuse of discretion.”          United States v.

Quinones, 511 F.3d 289, 307 (2d Cir. 2007).            We identify no such abuse here.

Ruggiano’s negative response when asked if he had ever heard that Burke was transferred

to another crew stated a fact, not an opinion. Insofar as his negative response to an inquiry

as to whether Burke’s status in the Gambino family changed in any way, and Andriano’s

testimony that Burke was a member of the Gambino family for “[h]is entire life,” Trial Tr.

414, could be viewed to express opinions, they satisfied the requirements of Rule 701, see

United States v. Garcia, 413 F.3d 201, 211 (2d Cir. 2005), and were relevant to the issue of

Burke’s purported withdrawal from the conspiracy prior to July 31, 2003.

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4.       Sufficiency of the Evidence

         Burke argues that the evidence was insufficient to support his conviction for

racketeering conspiracy or for either of the two murder charges.

         While we review a sufficiency challenge de novo, we “must view the evidence in

the light most favorable to the government, crediting every inference that could have been

drawn in the government’s favor and deferring to the jury’s assessment of witness

credibility and its assessment of the weight of the evidence.” United States v. Chavez,

549 F.3d 119, 124 (2d Cir. 2008) (internal quotations marks and alterations omitted). We

will affirm the conviction if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis in original); accord United States v. Jones, 531 F.3d 163, 168 (2d Cir.

2008).

         a.    Racketeering Conspiracy

         Burke argues that evidence of his withdrawal from the Gambino family prior to the

July 31, 2003 start of the limitations period precluded his conviction for racketeering

conspiracy. The argument fails when we assume, as we must on sufficiency review, that

the jury discredited Burke’s witnesses who testified to his purported withdrawal and

credited prosecution witnesses who testified to his continued involvement in and receipt of

benefits from the crime family into the limitations period. See United States v. Payne, 591

F.3d 46, 60 (2d Cir. 2010).

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       b.     Gebert Murder

       Burke contends that the evidence of his involvement in the July 12, 1996 murder of

John Gebert was insufficient to support either of the two murder counts of conviction. In

fact, a number of witnesses who were themselves involved in the Gebert

murder—Pasquale Andriano, Michael Malone, and Peter Zuccaro—testified that Burke

assisted in planning the murder and drove the getaway vehicle.            Further, Anthony

Ruggiano, Jr. stated that when he questioned Burke about the Gebert murder, Burke

effectively admitted his participation, replying “we rolled up on him and blasted him.”

Trial Tr. 192, Gov’t App. 106. Although Burke’s ex-wife and ex-mother-in-law provided

him with an alibi for the night of the Gebert murder, we must assume that a jury resolved

the testimonial conflict in favor of the prosecution, see United States v. Payne, 591 F.3d at

60, in which case the evidence was sufficient to support the murder convictions.

5.     Jury Instructions

       a.     Perjurious Witnesses

       Burke submits that the trial court erred by denying his request for a charge

specifically addressing the credibility implications of government witnesses who admitted

to prior perjury. “To secure reversal based on a flawed jury instruction, a defendant must

demonstrate both error and ensuing prejudice.” United States v. Quinones, 511 F.3d at

313. Burke cannot make that showing here.




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       The district court charged as follows:

              If a witness is shown knowingly or willfully to have testified
              falsely concerning any material matter, or to have previously
              committed perjury, you have a right to distrust such witness’s
              testimony in other particulars and give it such credibility as you
              think it deserves.
Trial Tr. 2335:5–9. Gov’t App. 252. This was sufficient to allow Burke to argue that the

jury should not credit government witnesses who had previously committed perjury.

“While a defendant is entitled to any legally accurate jury instruction for which there is a

foundation in the evidence, he does not have a right to dictate the precise language of the

instruction.” United States v. Banki, 685 F.3d 99, 105 (2d Cir. 2012).

       b.     Withdrawal Charge

       Burke faults the district court for not using his proposed instruction on withdrawal

in charging the jury. Because Burke failed to object to the version of the charge given as

required by Fed. R. Crim. P. 30(d), we review only for plain error, which is not present

here. See United States v. Agrawal, 726 F.3d 235 (2d Cir. 2013).1 Although Burke

complains that the instruction given was more favorable to the prosecution than the one he

proposed, he does not contend that the challenged charge erred in stating the applicable

principles of law, much less show that such error is plainly recognized by precedent or that

he was prejudiced as a result or the fairness of the proceedings called into question.


1
  Because we identify no plain error, we need not decide whether defense counsel’s
statement that he had “no objection” to the charge constituted “true waiver, negating even
plain error review.” United States v. Hertular, 562 F.3d 433, 444 (2d Cir. 2009).
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       Accordingly, we conclude that Burke’s jury instruction challenges are meritless.

6.     Collective Errors

       Burke argues that even if no single trial error warranted reversal, the errors

collectively demand such relief under the harmless standard set forth in Kotteakos v.

United States, 328 U.S. 750 (1946). Because we reject Burke’s claims of error, we

necessarily reject his claim that the collective effect of these “errors” had a “substantial and

injurious effect or influence in determining the jury’s verdict.” Id. at 776.

7.     Conclusion

       We have considered Burke’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O=HAGAN WOLFE, Clerk of Court




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