United States v. Rallo (Prosano)

• Court: Court of Appeals for the Second Circuit
• Decided: January 28, 2026
• Docket: 23-6760-cr (L)
• Status: Unpublished

Opinion

23-6760-cr (L) United States v. Rallo (Prosano)

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 28th day of January, two thousand twenty-six.

PRESENT: DENNIS JACOBS, JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee, v. Nos. 23-6760(L), 23-8115(Con)

THOMAS LIBERATORE, PAUL PROSANO, AKA TONY PRO,

Defendants-Appellants, ROBERT RALLO,

Defendant. * ------------------------------------------------------------------

FOR DEFENDANT-APPELLANT PROSANO: Randall D. Unger, Kew Gardens, NY.

FOR DEFENDANT-APPELLANT BEVERLY VAN NESS, New York, LIBERATORE: NY.

FOR APPELLEE: JOCELYN COURTNEY KAOUTZANIS, Assistant United States Attorney (Conor M. Reardon, Elena Lalli Coronado, Assistant United States Attorneys, on the brief), for David X. Sullivan, United States Attorney for the District of Connecticut, New Haven, CT.

Appeal from judgments of the United States District Court for the District

of Connecticut (Kari A. Dooley, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of the District Court are AFFIRMED.

Defendants-Appellants Thomas Liberatore and Paul Prosano were

convicted after a jury trial of (in Liberatore’s case) committing and (in Prosano’s

* The Clerk of Court is respectfully directed to amend the case caption as indicated above. 2 case) aiding and abetting a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a)

and 18 U.S.C. § 2, and of interstate transportation of stolen property in violation

of 18 U.S.C. § 2314. Liberatore was separately also convicted of firearm-related

murder in violation of 18 U.S.C. § 924(j)(1) and 18 U.S.C. § 2. Both Prosano and

Liberatore appeal their convictions, and Prosano also challenges his sentence.

We assume the parties’ familiarity with the underlying facts, the procedural

history, and the issues on appeal, which we reference only as necessary to

explain our decision to affirm.

This case arose out of the armed robbery of Marco Jewelers in Stamford,

Connecticut, and the murder of the store’s owner, Mark Vuono, on March 28,

2020. Evidence at trial detailed that Liberatore, Prosano, and Defendant Robert

Rallo met on the morning of the robbery and drove to Stamford. Video footage

recovered from the jewelry store shows Rallo and Liberatore entering the store

where Vuono was at work. Rallo brandished a handgun, and Vuono reached for

a revolver. Rallo fought with Vuono in the back room of the store while

Liberatore stole jewelry in the front showroom. Rallo beat Vuono and shot him

in the head. Rallo and Liberatore escaped into a car driven by Prosano. The

Defendants were tied to the robbery and murder via video surveillance as well as

3 eyewitness testimony, cell phone extractions, DNA evidence, ballistics evidence

and expert testimony, cell site evidence, photographs, and the recovered jewelry.

Rallo pleaded guilty, while Liberatore and Prosano were convicted at trial on all

counts.

1. Liberatore first argues that his Confrontation Clause rights were

violated by the ballistic examiner’s trial testimony that a second, uncalled

examiner reviewed her findings and reached the same conclusion. Relying on

out-of-circuit cases, he contends that a forensic expert may not testify that a

nontestifying expert corroborated her analysis through a quality control process.

We review for plain error because Liberatore did not raise this objection at trial.

Greer v. United States, 593 U.S. 503, 507-08 (2021). However, “[f]or an error to be

plain, it must, at a minimum, be clear under current law, which means that we

typically will not find such error where the operative legal question is unsettled,

including where there is no binding precedent from the Supreme Court or this

Court.” United States v. Napout, 963 F.3d 163, 183 (2d Cir. 2020) (internal

quotation marks, citation, and alterations omitted). As noted, Liberatore does

not point us to such binding precedent, and he also advances no sufficient reason

to depart from the rule.

4 2. Liberatore next argues that the trial testimony of three law enforcement

officers was improper lay testimony. Liberatore objects in particular to testimony

by Stamford Police Department Sergeant Sean Boeger and FBI Special Agent

Andrew Pappas describing the robbery as depicted in the video footage and

testifying to what could have been seen and heard from where Liberatore stood

during the robbery. Sergeant Boeger testified about arriving at the scene and

collecting video evidence. He provided context to the video of the robbery,

captured from different camera angles throughout and around the store. He

testified that a person at the jewelry counter could see into the back room, which

was offered to show that Liberatore knew that Rallo was armed during the

robbery. As videos of the robbery were played for the jury, Agent Pappas

described what was happening on screen and provided context based on having

met the Defendants and having been inside the jewelry store several times.

Agent Pappas estimated that the distance from the jewelry counter to the back

room is “a matter of feet.” Gov’t App’x at 1540. From this, he testified that

someone behind the counter would be able to see into the back room. Id.

Federal Rule of Evidence 701 limits opinion testimony by a lay witness to

testimony that is “(a) rationally based on the witness’s perception; (b) helpful to

5 clearly understanding the witness’s testimony or to determining a fact in issue;

and (c) not based on scientific, technical, or other specialized knowledge within

the scope of Rule 702.” Fed. R. Evid. 701. Because Liberatore failed to raise this

Rule 701 objection to the testimony of Agent Pappas and Sergeant Boeger at trial,

we review for plain error. Greer, 593 U.S at 507-08.

Agent Pappas’s and Sergeant Boeger’s testimony about the crime footage

was based on their observations at the crime scene and on the ensuing

investigation. Their opinions “‘result[ed] from a process of reasoning familiar in

everyday life,’” and therefore “w[ere] permissible lay opinion testimony

under Rule 701.” United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007) (quoting

Fed. R. Evid. 701, advisory committee’s note to 2000 amend.) (alteration in

original). Admitting Agent Pappas’s and Sergeant Boeger’s respective testimony

was not plain error.

Liberatore also objects to the testimony of Officer George Roper, his parole

officer, arguing that it both was unnecessary to tie him to the robbery and

exposed his prior criminal record. When a defendant preserves his objection at

trial, as Liberatore did here, we “review a district court’s decision to admit

evidence, including lay opinion testimony, for abuse of discretion.” United States

6 v. Kaplan, 490 F.3d 110, 117 (2d Cir. 2007). The government called Officer Roper

“to identify the defendant from video evidence” of the jewelry store robbery.

Appellee Brief at 54. District courts have “discretion to manage [the] risk”

associated with certain law enforcement testimony, but we have held that a

“probation officer” who “had spent many hours with [the defendant] leading up

to the time of the robbery and had the opportunity to observe physical traits such

as his gait, which were on display in the surveillance video but not at trial,” may

properly be called to identify the defendant from video evidence. United States v.

Walker, 974 F.3d 193, 205-06 (2d Cir. 2020).

Although Officer Roper was instructed not to share his employment, at the

outset of his testimony he identified himself as “Officer Roper” and began to say

that he “work[s] for the Department of—” before being interrupted by the

government. Gov’t App’x at 994. But Officer Roper did not reveal that Liberatore

was on parole. He described himself instead as a “business associat[e]” who

“sort of supervised” Liberatore. Id. at 1003. The District Court also charged the

jury that “you must not base your verdict on any perception that you may have

that Mr. Liberatore or Mr. Prosano are of bad character or have a general

propensity to commit crimes.” Id. at 1635. Particularly in light of this curative

7 instruction, an officer’s “inadvertent, ambiguous comment” connected to the

defendant’s “criminal histor[y]” does not warrant a new trial. United States v.

Fermin, 32 F.3d 674, 677 (2d Cir. 1994). And here, the connection to Liberatore’s

criminal history was forestalled by the government.

3. Liberatore also invokes the cumulative error doctrine, which “comes

into play only where the total effect of the errors found casts such a serious doubt

on the fairness of the trial that the convictions must be reversed.” In re Terrorist

Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 147 (2d Cir. 2008) (internal

quotation marks omitted, alterations accepted). Since we identify no errors, that

doctrine is inapplicable. See id. at 151.

4. Prosano challenges the denial of his Rule 29 motion, arguing

insufficiency of evidence. We review this claim de novo, United States v. Mi Sun

Cho, 713 F.3d 716, 720 (2d Cir. 2013) (per curiam), but must affirm if “‘any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.’” Musacchio v. United States, 577 U.S. 237, 243 (2016).

Prosano argues that his conviction should be vacated because of a lack of

direct evidence that he was involved in the planning of the charged robbery or

that he knew what his co-defendants intended to do while he waited for them in

8 the car. We disagree. Circumstantial evidence connected Prosano to the violent

robbery before, during, and after it was committed. Prosano was in contact with

Rallo and Liberatore in the weeks leading up to the crime. His cell phone

accessed a news story about another local jewelry robbery committed by

Liberatore just days before. Prosano’s wife testified that the day before the

robbery, Prosano announced his plan to get up early to help Rallo with a paint

job, which was out of character for him. Evidence showed that Prosano spent the

morning of the crime driving around with Rallo and Liberatore, with video

footage of the trio buying food and parking in a lot in Stamford where Liberatore

and Rallo were seen changing clothes. After the robbery, they returned to New

York in the getaway car and rented a hotel room together. Prosano’s wife

testified that when he arrived home after the robbery, she found a box of jewelry

she had never seen before. Law enforcement recovered from Prosano’s residence

the stolen jewelry, a handgun with the victim’s DNA, and a notebook full of

Prosano’s handwriting—including notes with phrases and tips about robbing a

jewelry store. Viewing the evidence presented to the jury and laid out in the

District Court’s Order, “a rational trier of fact” could have made reasonable

inferences from that evidence to “conclude[] that on March 28, 2020, Rallo,

9 Liberatore and Prosano, acting together, committed the armed robbery of Marco

Jewelers.” Gov’t App’x at 1783 (Dist. Ct. Opinion at 11).

5. Prosano challenges the substantive reasonableness of his sentence,

citing his mitigating factors and his “minor participation in the offense” as the

getaway driver. Appellant Brief at 25. We review a sentence’s “substantive

reasonableness under a deferential abuse-of-discretion standard.” United States

v. Hunt, 82 F.4th 129, 142 (2d Cir. 2023) (internal quotation marks omitted). A

sentence is substantively unreasonable if it “cannot be located within the range of

permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)

(en banc) (internal quotation marks omitted). “[O]nly those sentences that are so

‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law’

that allowing them to stand would ‘damage the administration of justice’” are

substantively unreasonable. United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir.

2012) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).

The sentence was not an abuse of discretion. Thirty years’ imprisonment

was within Prosano’s United States Sentencing Guidelines range: 240 months on

the Hobbs Act robbery count and 120 months on the interstate transportation of

stolen property count, to run consecutively, for a total of 360 months. Over the

10 government’s objection, the court applied a two-level reduction to Prosano’s

offense level “for his lesser role in the offense.” App’x at 104. Notwithstanding

the reduction, the Guidelines range was life imprisonment, above the statutory

maximum of 360 months, “and so, the Guidelines range becomes 360 months.”

Id. at 105.

The District Court then addressed Prosano’s mitigating factors. The court

acknowledged Prosano’s age but noted that “most people, frankly, by the time

they’re 61 years old have decided to put criminal behavior in their rearview

mirror. . . . And [Prosano] had not done that at the time of the offense.” Id. at

118-119. The court also acknowledged Prosano’s “significant health issues” and

considered that they “will make any period of incarceration more difficult [] and

harsher.” Id. at 119. The court also acknowledged Prosano’s “substantial mental

health issues” that were diagnosed “at a very young age,” but concluded that “it

is difficult to find a direct path between those issues and those diagnoses and a

life of violence that followed.” Id. The court weighed these factors against the

crime committed and Prosano’s significant criminal history, noting that Prosano

has left “a wake of victims in [his] past.” Id. at 120. In sum, the court’s

11 assessment of all these factors “under the totality of circumstances in the case”

supported the sentence issued. Cavera, 550 F.3d at 191.

We have considered the parties’ remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgments of the District Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court