United States v. Romero

304 F. App'x 14
CourtCourt of Appeals for the Second Circuit
DecidedDecember 18, 2008
DocketNos. 06-1199-cr(L), 07-2369-cr(Con)
StatusPublished

This text of 304 F. App'x 14 (United States v. Romero) 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. Romero, 304 F. App'x 14 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Defendants-appellants Christopher Romero and Vincent Ferrerio appeal from judgments of conviction of the District Court — entered on March 3, 2006 and May 17, 2007, respectively — sentencing Romero principally to 262 months’ imprisonment and Ferrerio principally to 87 months’ imprisonment. A jury found each defendant guilty of Hobbs Act extortion and conspiring to commit Hobbs Act extortion. See 18 U.S.C.1951. The jury also found Romero guilty of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine. See 21 U.S.C. § 846. We assume parties’ familiarity with the facts and procedural history of this case.

Defendants raise several claims on appeal. Ferrerio argues that the evidence presented at trial was insufficient to sustain his convictions and that his sentence was both procedurally and substantively unreasonable. Both Ferrerio and Romero contend that the District Court’s instruction to the jury concerning the interstate commerce element of a Hobbs Act violation amounted to reversible error. Romero posits also that the District Court erred in (1) admitting into evidence certain of his victim’s out-of-court statements, (2) limiting his cross examination of certain government witnesses, and (3) instructing the jury that the victim of Romero and Ferrerio, Anna Kontakosta, who did not testify but invoked her Fifth Amendment privilege against self-incrimination, was “equally unavailable” to all parties. Romero further argues that his due process rights were violated when the government declined to grant immunity to the victim and when, according to Romero, the government improperly vouched for a government witness during its closing argument. Finally, Romero contends, and the government agrees, that his case should be remanded so that the District Court may consider whether the $10,000 fine it imposed was appropriate in this case.

A.

Ferrerio’s insufficiency claim, which hinges on the contention that the jury could not have found that he helped Romero hold the victim as part of an extortion scheme to recover Romero’s property, is without merit. In seeking to overturn a conviction on the grounds that evidence was insufficient, a defendant bears the “heavy burden,” United States v. Cruz, 363 F.3d 187, 197 (2d Cir.2004), of demonstrating that, “viewing the evidence in the light most favorable to the government, ... no reasonable trier of fact could have found all of the elements of the crime beyond a reasonable doubt.” United States v. Desinor, 525 F.3d 193, 202 (2d Cir.2008). Viewed in the light most favorable to the government, the evidence easily demonstrated that Ferrerio and Romero agreed to hold their victim hostage in Ferrerio’s apartment while employing threats of physical harm to her to extort property from Torres, the victim’s boyfriend. That Ferrerio might also have wanted to hold the victim hostage because of sexual designs on her, see Appellant’s Br. at 32, does not negate the evidence which supported the jury’s finding that he agreed to join and further Romero’s extortion scheme.

The District Court’s instructions on the interstate commerce element of the Hobbs Act, to which defendants failed to object at trial, did not amount to plain error. See, e.g., United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir.2007) (“Issues not raised in the trial court ... are [17]*17normally deemed forfeited on appeal unless they meet our standard for plain error.”); see also Fed.R.Crim.P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”). Defendants correctly observe that in United States v. Parkes, which we decided after the trial in this case, held that a Congressional finding that local drug trafficking had a substantial effect on interstate commerce did not “dispense with the need for a jury finding that each element of the Hobbs Act has been proven beyond a reasonable doubt.” 497 F.3d 220, 229 (2d Cir.2007). Assuming, for the sake of argument, that the instruction at issue amounted to “error” that was “plain,” we may not exercise our discretion to notice it because the government has demonstrated that the putative error does not affect the defendants’ substantial rights, see Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)—ie., it has not “affected the outcome of the district court proceedings,” United States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001)— and that it has not “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).1

B.

We hold that the District Court did not err in admitting into evidence certain out-of-court statements — namely, those of the victim (Kontakosta), government witness Daniel Macias, and Detective Mark Fishstein. The admission of these statements violated neither Romero’s Sixth Amendment rights under the Confrontation Clause, nor the Federal Rules of Evidence. As a general rule, “[ejvidentiary rulings are reversed only if they are ‘manifestly erroneous,’ such that the admission constitutes an abuse of discretion.” See United States v. SKW Metals & Alloys, 195 F.3d 83, 87-88 (2d Cir.1999). Here, the District Court did not abuse its discretion in determining that some of the victim’s statements were admissible as excited utterances, see Fed.R.Evid. 803(2), statements for purposes of medical diagnosis or treatment, see Fed.R.Evid. 803(4), or statements against interest, see Fed. R.Evid. 804(b)(3). Furthermore, none of the victim’s challenged out-of-court statements were testimonial, see Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); United States v. Saget, 377 F.3d 223, 228 (2d Cir.2004) (observing that Crawford

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Related

United States v. Parkes
497 F.3d 220 (Second Circuit, 2007)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Johnson v. United States
520 U.S. 461 (Supreme Court, 1997)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Ramse Thomas
274 F.3d 655 (Second Circuit, 2001)
United States v. James Saget, Also Known as Hesh
377 F.3d 223 (Second Circuit, 2004)
United States v. Sean Carr
424 F.3d 213 (Second Circuit, 2005)
United States v. Bernard J. Ebbers
458 F.3d 110 (Second Circuit, 2006)
United States v. Villafuerte
502 F.3d 204 (Second Circuit, 2007)
United States v. Desinor
525 F.3d 193 (Second Circuit, 2008)
United States v. Feliz
467 F.3d 227 (Second Circuit, 2006)

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Bluebook (online)
304 F. App'x 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-romero-ca2-2008.