13-1799-cr
United States v. Tarantino

                                  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.

        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 10th
day of July, two thousand fifteen.

PRESENT:            JOSÉ A. CABRANES,
                    ROSEMARY S. POOLER,
                    CHRISTOPHER F. DRONEY,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                    Appellee,

                             v.                                       No. 13-1799-cr

CHRISTIAN GEROLD TARANTINO,

                    Defendant-Appellant.


FOR CHRISTIAN GEROLD TARANTINO:                       TODD G. SCHER, Dania Beach, FL.

FOR UNITED STATES OF AMERICA:                         CARRIE N. CAPWELL (James M. Miskiewicz,
                                                      Peter A. Norling, on the brief), Assistant United
                                                      States Attorneys, for Kelly T. Currie, Acting
                                                      United States Attorney for the Eastern
                                                      District of New York, Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Joanna Seybert, Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

       Defendant Christian Gerold Tarantino appeals from the District Court’s April 26, 2013
judgment convicting him, after two jury trials, of willfully endangering the safety of a commercial
motor vehicle operator, resulting in the operator’s death, in violation of 18 U.S.C. § 33, murder to
obstruct justice, in violation of 18 U.S.C. § 1512(a)(1)(C), and conspiracy to commit murder to
obstruct justice, in violation of 18 U.S.C. § 1512(k), and sentencing him principally to three
concurrent terms of life imprisonment. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.

                                   I. Sufficiency of the Indictment

          The District Court properly denied Tarantino’s motions to dismiss the indictment. Count
one plainly tracked the language of the relevant statute, contained the elements of the offense
charged (including the applicable mens rea requirement), and fairly informed Tarantino of the charge
against him. See 18 U.S.C. § 33(a); United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007); United States
v. Frias, 521 F.3d 229, 235 (2d Cir. 2008) (“Typically, to state an offense, an indictment need only
track the language of the statute and, if necessary to apprise the defendant of the nature of the
accusation against him, state time and place in approximate terms.” (internal quotation marks
omitted)). Accordingly, the indictment sufficiently alleged a violation of 18 U.S.C. § 33.

                                      II. Fowler v. United States

       Tarantino next argues that the Supreme Court’s decision in Fowler v. United States, 131 S. Ct.
2045 (2011), requires that we vacate his conviction for the obstruction-of-justice murder of his
accomplice, Louis Dorval. We disagree.

         In Fowler, the Supreme Court held that “where a defendant killed a person with an intent to
prevent that person from communicating with law enforcement officers in general but where the
defendant did not have federal law enforcement officers (or any specific individuals) particularly in
mind . . . . the Government must show that there was a reasonable likelihood that a relevant
communication would have been made to a federal officer.” Id. at 2048. Here, however, the
evidence showed that Tarantino murdered Dorval to prevent him from communicating specifically
with federal law enforcement officers, not “law enforcement officers in general.” Id. Among other
things, just days before his murder, a federal grand jury had indicted Dorval, federal agents had
secured a warrant for his arrest, local newspapers had reported widely on the federal investigation,
and Dorval had subsequently met with Tarantino. Fowler is therefore inapposite and, even if it
applied, there was a “reasonable likelihood” that, had Dorval communicated with law enforcement
officers, at least one relevant communication would have been made to a federal law enforcement
officer. Id. at 2052.

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        Accordingly, the evidence was sufficient to sustain Tarantino’s conviction for Dorval’s
murder, there was no error in the relevant jury instructions, and the District Court did not abuse its
discretion in denying Tarantino’s motion for a new trial.

                                          III. Jury Selection

         Tarantino next complains that his absence from two court teleconferences—at which jury
prescreening on the basis of both hardship and cause took place in the presence of counsel—
violated his right to be present at all stages of trial. We conclude that, even assuming Tarantino had a
right to be present, Tarantino impliedly waived his right. See United States v. Gagnon, 470 U.S. 522,
527–28 (1985). The record reveals that the District Court fully discussed with counsel the process it
would undertake for prescreening. Gov’t App. 5–6. Then, in the presence of Tarantino, the District
Court explicitly directed his counsel to “go through the jury selection questionnaires” with Tarantino
in order to “see what his desire would be in terms of the type of jury he’d like to be seated.” Gov’t
App. 12, 19. On March 22, 2011, with Tarantino present and prior to the start of in-person jury
selection, both the District Court and one of Tarantino’s trial attorneys referenced the court’s prior
rulings on the questionnaires. Tr. of Voir Dire 8:16–19, 12:17–20, United States v. Tarantino, 2:08-cr-
655 (E.D.N.Y. Mar. 22, 2011), ECF No. 467. At no time was there any indication that Tarantino
was not allowed to attend the prescreening, nor was there any request that he attend. Moreover, at
no time before, during, or after trial did Tarantino or his trial counsel object to the procedure
detailed by the District Court or to Tarantino’s absence at the prescreening, at which counsel was
fully present.

        On this record, it is apparent that Tarantino waived his right to be present. See Cohen v.
Senkowski, 290 F.3d 485, 492–93 (2d Cir. 2002); Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir.
1998) (“Under the circumstances, we think waiver may properly be inferred from the conduct of the
defendant and his attorneys.”); see also United States v. Jones, 381 F.3d 114, 122 (2d Cir. 2004) (finding
waiver even though the defendant did not have advance notice of the proceeding in question, as the
“defendant could have objected after the alleged violation took place”).

                                        IV. Evidentiary Ruling

         “We review a district court’s ruling on a motion to suppress for clear error as to the facts
and de novo on questions of law, and pay special deference to the district court’s factual
determinations going to witness credibility.” United States v. Jiau, 734 F.3d 147, 151 (2d Cir. 2013)
(citations omitted). We conclude that the District Court properly denied Tarantino’s motion to
suppress the incriminating audio recording between him and his criminal associate, Vincent
Gargiulo. We see no error, much less clear error, in the District Court’s finding that Gargiulo did not
intercept the communication “for the purpose of committing any criminal or tortious act,” so as to
render it inadmissible under Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
18 U.S.C. § 2511(2)(d). Although Gargiulo later used the recording for blackmail, it is far from clear

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that blackmail was his “primary motivation” or “a determinative factor” at the time he made the
recording. United States v. Dale, 991 F.2d 819, 841 (D.C. Cir. 1993); see United States v. Cassiere, 4 F.3d
1006, 1021 (1st Cir. 1993) (applying same standard); see also Jiau, 734 F.3d at 152 (assessing intent at
the time the recording was made).

        We also conclude that the District Court did not abuse its discretion in declining to hold an
evidentiary hearing. See United States v. Getto, 729 F.3d 221, 226 n.6 (2d Cir. 2013). We note that the
District Court specifically afforded Tarantino an opportunity to come forward with additional
information in support of his request for a hearing. As the record indicates and as the parties’
supplemental letter briefs make clear, Tarantino failed to do so.

                                      V. Ineffective Assistance of Counsel

         Tarantino asserts that he was denied effective assistance of counsel at his first trial because
one of his attorneys labored under an actual conflict of interest. It is well established that, “[w]hen
faced with a claim for ineffective assistance of counsel on direct appeal, we may: (1) decline to hear
the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary
factfinding; or (3) decide the claim on the record before us.” United States v. Morris, 350 F.3d 32, 39
(2d Cir. 2003). The Supreme Court has emphasized that “in most cases a motion brought under
§ 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Massaro v. United
States, 538 U.S. 500, 504 (2003). Because the District Court failed to develop the record with respect
to the alleged conflict, see United States v. Brown, 623 F.3d 104, 113 (2d Cir. 2010), we defer to our
customary practice, see United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003), and preserve this issue
for collateral review.

                                                    VI. Due Process

        Tarantino next contends that the Government violated his due process rights by pursuing
inconsistent theories with respect to the murder of Dorval in successive prosecutions. This claim is
meritless.1 The Government consistently argued that Tarantino participated together with others in
the murder of Dorval. The fact that some witnesses offered sometimes different and inconsistent
accounts of the murder does not, by itself, demonstrate that the Government’s theory was
inconsistent. Moreover, Tarantino was provided full discovery and was allowed to present any
inconsistencies to the jury, which nevertheless found him guilty. See United States v. Orena, 32 F.3d

         1 Neither this Court nor the Supreme Court has squarely addressed whether the Due Process Clause prohibits
the Government from prosecuting defendants based on inconsistent theories. See Bradshaw v. Stumpf, 545 U.S. 175, 187–
88 (2005); see also United States v. Boyle, 283 F. App’x 825, 826 (2d Cir. 2007) (summary order) (“Although we have not yet
addressed the issue, other circuits have found that ‘the use of inherently factually contradictory theories violates the
principles of due process.’” (quoting Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir. 2000))), aff’d on other grounds, 556 U.S.
938 (2009). Because the evidence demonstrates that the Government did not present inconsistent theories in procuring
Tarantino’s convictions, we need not address this question.

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704, 716 (2d Cir. 1994); United States v. GAF Corp., 928 F.2d 1253, 1262 (2d Cir. 1991). On this
record, we discern no due process violation.

                                 VII. Denial of Motion for New Trial

        We also conclude that Tarantino has not established that cooperating defendant Scott
Mulligan offered perjured testimony regarding the murder of Dorval so as to merit a new trial. See
United States v. Zichettello, 208 F.3d 72, 102 (2d Cir. 2000); United States v. Torres, 128 F.3d 38, 49 (2d
Cir. 1997). Again, the fact that Mulligan’s testimony regarding Tarantino’s account of the murder
sometimes differed from other witnesses’ accounts—which themselves were internally
inconsistent—is insufficient to establish that Mulligan’s testimony was false. Accordingly, the
District Court acted well within its discretion in denying Tarantino’s motion for a new trial. See
United States v. James, 712 F.3d 79, 107 (2d Cir. 2013).

                                 VIII. Denial of Motion to Disqualify

          Lastly, we conclude that the District Court properly denied Tarantino’s motion to disqualify
Assistant United States Attorney James Miskiewicz. Tarantino demonstrated neither a “compelling”
nor a “legitimate” reason to call AUSA Miskiewicz as a witness and thereby disqualify him. United
States v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997) (“A defendant who wishes to call a prosecutor as a
witness must demonstrate a compelling and legitimate reason to do so.”).

                                             CONCLUSION

       We have considered all of the arguments raised by Tarantino on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s April 26, 2013
judgment.


                                                           FOR THE COURT:
                                                           Catherine O’Hagan Wolfe, Clerk




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