United States v. Desena

260 F.3d 150, 2001 WL 897146
CourtCourt of Appeals for the Second Circuit
DecidedAugust 9, 2001
DocketNo. 2303, Docket 00-1134
StatusPublished
Cited by21 cases

This text of 260 F.3d 150 (United States v. Desena) 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. Desena, 260 F.3d 150, 2001 WL 897146 (2d Cir. 2001).

Opinion

JACOBS, Circuit Judge:

Peter A. Mihalitsianos appeals from a judgment of conviction and sentence entered in the United States District Court for the Eastern District of New York (Hurley, J.). Mihalitsianos was convicted, after a jury trial, on five counts of a thirty-three count superseding indictment that charged him and seven codefendants with criminal offenses arising out of the activities of the Pagans Outlaw Motorcycle Club.

Mihalitsianos challenges his conviction and sentence on numerous grounds. As to Count One, which charged a conspiracy from January 1994 to April 1998 to assault members of the Hell’s Angels with dangerous weapons in violation of 18 U.S.C. § 1959(a)(6), we reverse on the ground that the evidence was insufficient. The conviction rests chiefly on Mihalitsianos’ membership in the Pagans, which is indisputably an affinity group with purposes and interests that are not predominantly criminal. The evidence of membership was supplemented by other evidence that, for reasons stated in this opinion, is insufficient to preserve the conviction.

We reject Mihalitsianos’ challenges to the remaining four counts of conviction, as well as his arguments as to why his sentence on those counts should be vacated, except to the extent Mihalitsianos argues that the district court erred in refusing to downwardly depart to a lower Criminal History Category, which portion of the appeal we dismiss for lack of jurisdiction.

BACKGROUND

The charges against Mihalitsianos arose out of his involvement with the Pagans Outlaw Motorcycle Club (the “Pagans”). According to the government, the Pagans is an organization that, in addition to its legitimate pursuits, is involved in racketeering activities, such as murder, arson, extortion and robbery. Under the government’s theory, much of the Pagans’ illegal conduct is connected to an ongoing war between the Pagans and a rival motorcycle club, the Hell’s Angels.

The superseding indictment charged Mi-halitsianos with five counts: conspiracy to assault with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(6) (Count One); threatening to commit a crime of violence in violation of 18 U.S.C. § 1959(a)(4) [153]*153(Count Ten); attempted arson in violation of 18 U.S.C. § 844(i) (Count Seventeen); possession of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (Count Twenty-Five); and possession of a firearm by an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3) (Count Thirty-Three).

The evidence at trial established that Mihalitsianos was a member of the Pagans in October 1992. In mid-1994,1 Mihalitsia-nos was expelled because of his drug use. In November of 1994, Mihalitsianos and another Pagan unsuccessfully attempted to burn down a restaurant-called Chilly Willy’s in West Hempstead, New York, in which the Hell’s Angels were scheduled to party the following day. By 1996 Mihalitsi-anos had been asked to leave the Pagans three times. There was evidence that in late 1996 or early 1997 Mihalitsianos was attempting to regain admission and, specifically, that he participated in a robbery to curry favor, with the leader of the Pagans. Additional evidence sheds light on Mihalit-sianos’ involvement with the Pagans and will be discussed infra in connection with Mihalitsianos’ claims of evidence insufficiency.

The jury convicted Mihalitsianos on Counts One, Ten, Seventeen and Twenty-Five. As to Count Thirty-Three, Mihalitsi-anos elected to have the jury determine whether he possessed a weapon and whether the weapon met the interstate commerce element of 18 U.S.C. § 922(g)(3), and to have the district-judge determine at the sentencing hearing whether he was an “unlawful user” of a controlled substance for purposes of that provision.

After the verdict but before sentencing, Mihalitsianos moved pursuant to Fed. R. Crim. P. 29(c) for a judgment of acquittal on Counts One, Ten, Seventeen and Twenty-Five. In a January 11, 2000 Memorandum and Order, the district court denied Mihalitsianos’ motion as to Counts Ten and Seventeen, and reserved decision on Count One pending oral argument. See United States v. Mihalitsianos, No. 98-CR-399 (E.D.N.Y. Jan. 11, 2000). The written order inadvertently omits any discussion of Count Twenty-Five. Immediately before the sentencing hearing, the district court denied Mihalitsianos’ Rule 29(c) motion as to Count Twenty-Five and entered a conviction on Count Thirty-Three. After oral argument on whether the evidence in the record supported Mihalitsia-nos’ conviction for conspiracy, the district court denied Mihalitsianos’ Rule 29(c) motion with respect to Count One as well.

Mihalitsianos was principally sentenced to 36 months of imprisonment on Count One; 48 months on Count Ten (to run consecutively with Count One); 84 months on both Count Seventeen and Count Thirty-Three (concurrent with Counts One and Ten); and 60 months on Count Twenty-Five (consecutive to the sentences imposed oh Counts One, Ten, Seventeen and Thirty-Three), for a total sentence of 144 months of imprisonment.

On appeal, Mihalitsianos makes several challenges to his conviction and sentence. As to his conviction, Mihalitsianos argues that: (a) the evidence was insufficient to support his conviction on any of the five counts beyond a reasonable doubt; (b) various hearsay statements offered as to Count Seyenteen (arson) were improperly admitted; (c) his omnibus motion alleging several grounds for reversal should have been granted; (d) the prosecutor committed misconduct; and (e) the district court erred in the jury charge, the denial of defendant’s Rule 29 motion, the admission [154]*154of certain testimony at trial, and in other respects.

As to his sentence, Mihalitsianos argues that: (a) the district judge improperly refused a downward departure from Criminal History Category IV to III; (b) the failure to give him an updated Pre-Sen-tence Report (“PSR”) denied him due process; and (c) various other calculation errors were committed by both the Probation Department and the district court.

DISCUSSION

I. Sufficiency of the Evidence

A defendant challenging a conviction based on sufficiency grounds bears a heavy burden. See United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994).

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United States v. Desena
260 F.3d 150 (Second Circuit, 2001)

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260 F.3d 150, 2001 WL 897146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-desena-ca2-2001.