United States v. Capri

111 F. App'x 32
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 10, 2004
DocketNo. 03-1579
StatusPublished
Cited by1 cases

This text of 111 F. App'x 32 (United States v. Capri) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Capri, 111 F. App'x 32 (2d Cir. 2004).

Opinion

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, AD[34]*34JUDGED, AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED in part and VACATED and REMANDED in part.

Defendant-Appellant Anthony Bazzini appeals from the judgment of the United States District Court for the Southern District of New York (Casey, /.), convicting him, following a jury trial, of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371, and making extortionate extensions of credit, in violation of 18 U.S.C. § 892. We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Bazzini first argues that the evidence was insufficient to sustain his conviction for conspiracy to commit securities fraud. We review de novo a challenge to the sufficiency of evidence and “affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt.” United States v. Geibel, 369 F.3d 682, 689 (2d Cir.2004). In order to prove the crime of conspiracy, the government must establish:

(1) that the defendant agreed with at least one other person to commit an offense; (2) [that] the defendant knowingly participated in the conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy; and (3) that during the existence of the conspiracy, at least one of the overt acts set forth in the indictment was committed by one or more of the members of the conspiracy.

United States v. Salameh, 152 F.3d 88, 145-46 (2d Cir.1998) (per curiam). The conspiratorial agreement need not be “formal or express,” United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994), and, once a conspiracy has been shown to exist, “the evidence sufficient to link another defendant to it need not be overwhelming,” United States v. Rivera, 971 F.2d 876, 891 (2d Cir.1992) (internal quotation marks omitted).

There was ample proof for a rational jury to convict Bazzini of conspiracy to commit securities fraud. The unindicted co-conspirator, David Weeks, testified that he told Bazzini about the securities fraud scheme and described it to him as producing profits for those involved but losses for the non-participants. Bazzini asked to participate, set the terms of his participation, wired seed money into Weeks’s account, and later received money from the scheme. The evidence thus satisfied all of the Salameh requirements.

Next, Bazzini challenges the enhancement to his sentence pursuant to U.S.S.G. § 2E2.1(b)(l)(C) (1998), which provides that, “if a dangerous weapon (including a firearm) was brandished, displayed or possessed” in the course of a loansharking offense, the base offense level is to be increased by three levels. We review the district court’s ultimate conclusion de novo and the court’s findings of fact supporting its conclusion for clear error. See United States v. Sicurella, 367 F.3d 82, 85 (2d Cir.2004).

Weeks testified about two statements that Bazzini made to him, which the district court used to apply the enhancement. Bazzini made the first statement in his car, objecting to a smaller-than-anticipated payment from Weeks. Banging the steering wheel, Bazzini complained:

God damn it, I told you this. This doesn’t stop here. I don’t understand. ... You say you’re going to do something and you don’t do it. Why are you trying to hurt me like this? I don’t understand. If you want to hurt me, there is a bat back there. You can whack me with it. But then you better run because I’m going to come and get you.

[35]*35Bazzini uttered the second statement at a diner, after the host had offered to take Bazzini’s and Weeks’s coats. Weeks testified: “And so I said no, and [Bazzini] said no, and the guy walked away. And then [Bazzini] had said, Could you imagine the look on that dude’s face when he picked up my coat and felt my gun in there?” On appeal, Bazzini asserts that a baseball bat is not a dangerous weapon, Weeks did not know if there actually was a bat in the car, and there was insufficient evidence to prove that he possessed a firearm in furtherance of the offense.

Under the Guidelines, a dangerous weapon is defined as “an instrument capable of inflicting death or serious bodily injury.” U.S.S.G. § 1B1.1, cmt. n. l(d)(i) (1998). Clearly, a bat qualifies as a “dangerous weapon” for purposes of § 2E1.1. See United States v. Wilson, 369 F.3d 329, 333-34 (3d Cir.2004) (finding that a baseball bat is a dangerous weapon). A gun is, of course, a firearm. See U.S.S.G. § 1B1.1, cmt. n. 1(e)(1). The evidence showed that Bazzini was engaged in the loansharking offense when he referred to these dangerous weapons, and therefore the enhancement was warranted.

Bazzini’s objection that Weeks never saw the bat or gun is meritless. Bazzini’s statements concerning their presence were admissible, pursuant to Federal Rule of Evidence 801(d)(2)(A), which provides that a statement is not hearsay if it is offered against a party and is the party’s own statement. The district court properly relied on these statements as evidence of the fact that Bazzini possessed the bat and gun during the course of the loansharking offense. See United States v. Dukagjini, 326 F.3d 45, 62-63 (2d Cir.2003) (“Miller’s testimony that Griffin had told him about his possession of a gun was properly admissible as the party’s own statement, pursuant to Rule 801(d)(2)(A).”). Accordingly, the district court did not err in applying the § 2E2.1(b)(l)(C) enhancement.

Bazzini’s next claim, that the district court abused its discretion in not granting him a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978), regarding the dangerous weapon enhancement, is meritless. “The district court is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes.” United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir.1996). “All that is required is that the court afford the defendant some opportunity to rebut the Government’s allegations.” Id. (internal quotation marks omitted). Counsel opposed the enhancement in written submissions and in oral argument.

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Bluebook (online)
111 F. App'x 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-capri-ca2-2004.