     10-3594
     United States v. Pica

                          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 7th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                              Circuit Judge,
10                RICHARD J. SULLIVAN,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               10-3594-cr
18
19       CHRISTOPHER PRINCE, CHARLES SANTIAGO,
20       SALVATORE MANISCALCO, JR., JOHN
21       DELUTRO, a/k/a Whiz, a/k/a Wizzie,
22
23                    Defendants,


                *
               The Honorable Richard J. Sullivan, of the United
         States District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1
 2   ANTHONY PICA,
 3
 4            Defendant-Appellant.
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANT:             Diarmuid White & Brendan White,
 8                              White & White, New York, NY.
 9
10   FOR APPELLEE:              Tali Farhadian, Peter A.
11                              Norling, Nicole M. Argentieri,
12                              for Loretta E. Lynch, United
13                              States Attorney for the Eastern
14                              District of New York, New York,
15                              NY.
16
17        Appeal from a judgment of the United States District
18   Court for the Eastern District of New York (Amon, J.).
19
20        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21   AND DECREED that the judgment of the district court be
22   AFFIRMED.
23
24        Anthony Pica appeals from a judgment of conviction
25   entered on August 26, 2010 by the United States District
26   Court for the Eastern District of New York (Amon, J.) for
27   conspiracy to commit robbery and attempted robbery in
28   violation of 18 U.S.C. § 1951(a), use of a firearm in a
29   crime of violence in violation of 18 U.S.C. § 924(c)(1)(A),
30   and causing death by use of a firearm in violation of 18
31   U.S.C. § 924(j). We assume the parties’ familiarity with
32   the underlying facts, procedural history, and issues
33   presented for review.
34
35        Pica contends on appeal that the district court erred
36   in failing to admit a videotaped confession of a
37   coconspirator that does not implicate Pica. At trial, that
38   coconspirator, Joseph Gencarelli, identified Pica as the
39   orchestrator of the attempted robbery. On cross
40   examination, Gencarelli repeatedly admitted that he had
41   omitted Pica’s name from his previous confessions and
42   explained that he lied because he and Pica “were close
43   friends” and he “wanted to keep him out of it.” Def.’s App.
44   90, 95-96. The district court excluded the videotape.
45


                                  2
 1        Mindful of the district court’s wide latitude in
 2   determining both whether evidence is admissible, see Manley
 3   v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003), and in
 4   controlling the “mode and order” of examination and
 5   introduction of evidence, Fed. R. Evid. 611(a), we cannot
 6   say that it was an abuse of discretion to exclude the
 7   videotape in the circumstances of this case. In any event,
 8   any error would have been harmless, given the extensive
 9   cross examination of Gencarelli about his admissions that
10   omitted Pica’s involvement and the overwhelming evidence
11   introduced by the government, including that of two other
12   coconspirators, an incriminating statement made by Pica
13   shortly after his arrest, and phone records from the day of
14   the shooting.
15
16        Pica challenges the district court’s admission of
17   testimony about Pica’s past drug-related activity. During
18   the cross examination of one coconspirator, defense counsel
19   painstakingly reviewed the “coverage paragraph” contained in
20   his cooperation agreement, which describes the crimes for
21   which the government had agreed to not pursue charges.
22   Defense counsel elicited as to many of the crimes in the
23   coverage paragraph that Pica was not involved. However,
24   counsel did not ask about the witness’s narcotics
25   distribution--which did involve Pica. As a result, the
26   government sought to introduce testimony on redirect about
27   the witness’s past narcotics-related activity involving Pica
28   to establish a “criminal relationship” between them. The
29   district court properly admitted the testimony. Under the
30   applicable rule set forth in Huddleston v. United States,
31   485 U.S. 681 (1988), we conclude that (1) the evidence was
32   admitted for a proper purpose, in this case to establish a
33   criminal relationship and mutual trust between
34   coconspirators, see United States v. Rosa, 11 F.3d 315, 334
35   (2d Cir. 1993); (2) the evidence was relevant to a disputed
36   issue, in this case whether Pica was involved in the
37   conspiracy with the cooperating coconspirators; (3) the
38   probative value was not “substantially outweighed” by its
39   potential for unfair prejudice; and (4) the district court
40   gave a proper limiting instruction. See Huddleston, 485
41   U.S. at 691-92. As to the issue of unfair prejudice, we
42   also note that the “weighing of relevance under Rule 403 may
43   be altered when a false impression is created by earlier
44   testimony. That is, evidence whose probative value might

                                  3
 1   not ordinarily outweigh its prejudicial effect if offered on
 2   direct examination is admissible to rebut testimony elicited
 3   on cross examination that created a false impression.”
 4   United States v. Bilzerian, 926 F.2d 1285, 1296 (2d Cir.
 5   1991).
 6
 7        Finally, Pica argues that the government failed to
 8   introduce sufficient evidence to support the jury verdict
 9   that the shooting of Louis Antonelli caused his death. The
10   government presented testimony from the trauma surgeon who
11   operated on Antonelli the day of the shooting that (1)
12   Antonelli had suffered two gunshots to his chest that
13   damaged his diaphragm, stomach, and right kidney; (2)
14   Antonelli had left the five-hour surgery in unstable
15   condition suffering from “Adult Respiratory Distress
16   Syndrome,” which basically prevents oxygen from being
17   carried through the body; and (3) Antonelli had left surgery
18   to the intensive care unit where he died thirteen days
19   later. Although it may be ordinary practice for the
20   prosecutor to introduce an autopsy report or testimony from
21   a medical examiner to establish the cause of death, such
22   evidence is not required. A jury is permitted, as it did
23   here, to find an element of a crime proven beyond a
24   reasonable doubt based solely on circumstantial evidence.
25   See United States v. Abu-Jihaad, 630 F.3d 102, 135 (2d Cir.
26   2010). Here, a rational juror could have found beyond a
27   reasonable doubt that Antonelli’s death was caused by the
28   shooting, and we therefore will not disturb that finding.
29   See United States v. Morrison, 153 F.3d 34, 49 (2d Cir.
30   1998).
31
32
33        Finding no merit in Pica’s remaining arguments, we
34   hereby AFFIRM the judgment of the district court.
35
36
37                              FOR THE COURT:
38                              CATHERINE O’HAGAN WOLFE, CLERK
39




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