U.S. v. Desena

Citation260 F.3d 150
Decision Date27 September 2000
Docket NumberBAM-BA,D,GABRIEL,ONE-EY,ONE-EYE,No. 00-1134,TOM-TO,JORGE,No. 2303,KIRK,DEFENDANT-APPELLANT,2303,00-1134
Parties(2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. MICHAEL DESENA, AKA RICHIE BIGFOOT, KEVIN KIERNAN, AKA SIDEWAYS, ORLANDO R. PLACIDO, AKA RIPCORD, ANTHONY LAMBROS, AKA TONY INTENSE, RICHARD RECCHION, AKA RICKY MAGIC, ROBERT DESAUTELS, AKA BOBBY D, THOMAS VANDIVER, AKA TOMMY TRUCKER, AKA TRUCKER, LOUIS CANDELARIA, AKA B.C. ROCK, WILLIAM F. SHARPE, AKA TATTOO BILLY, ANTHONY ROMEO, AKA ECLIPSE, AKA FAT TONY, STEVEN DEFLORIO, AKA SARGE, THOMAS LADUCA, AKAPETERS, AKA EDWARD KICK, JAY A. CLANCY, AKAJAY, AKAGIORDANO, AKA ANTHONY GARY, MICHAEL O'GARA, CHRISTOPHER SOCCI, AKA HOP SING, SALVATORE FIGLIOLIA, AKA STONE COLD, AKA SAL, ANTHONY DIBIASE, AKA TONY THE WIG, EVAN ROSENTHAL, AKA RAIN, NICHOLAS RAGNI, AKA JAMES A. MOOD, ROBERT J. BAUER, AKA BLUTO, PHILLIP PEPE, AKA PHILLY, MICHAEL CONNORS, AKADUQUEN, AKA KATHLEEN M. HAWK, JOSEPH SERRANO, AKA PANHEAD JOE, PAUL BORRERO, AKA APACHE, PATRICK TORRES, AKA TACO, BRYAN WALTON, AKA AS POGO, SCOTT HALPHIN, AKA HOLESHOT, JOHN KOLAKOWSKI, AKA LOUDMOUTH, RALPH RUBINO, DEFENDANTS, PETER A. MIHALITSIANOS, AKA SMOOTH,ocket Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Gary R. Brown, Assistant United States Attorney, Brooklyn, NY (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Susan Corkery and Leonard Lato, Assistant United States Attorneys, on the brief), for Appellee.

Terrence P. Buckley, Law Office of Terrence P. Buckley, Esq., Islandia, Ny, for Defendant-Appellant.

Before: Jacobs, Straub, Sack, Circuit Judges.

Dennis 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 co-defendants 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 Mihalitsianos 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) (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 Mihalitsianos 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 Mihalitsianos 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 Mihalitsianos' 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, Mihalitsianos 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 Mihalitsianos' 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 on 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 Seventeen (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 of 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-Sentence 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). "When reviewing a conviction for an alleged insufficiency of evidence, this Court will view the evidence in the light most favorable to the government, [] construe all permissible inferences in its favor, resolve all issues of credibility in favor of the jury's verdict, and uphold a conviction if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." United States v. Reyes, 157 F.3d 949, 955 (2d Cir. 1998) (quoting United States v. Brown, 937 F.2d 32, 35 (2d Cir. 1991), United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991) and United States v. Puzzo, 928 F.2d 1356, 1357 (2d Cir. 1991) (internal citations, alterations, and quotation marks omitted)); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).

A. Count One

Count One, which was narrowly drawn, charged Mihalitsianos with: "[c]onspiracy to assault members of the Hell's Angels with dangerous weapons, to wit: firearms, axe handles and motor vehicles, and to cause serious bodily injury, in violation of New York Penal Law Sections 105.10 and 120.10." The conspiracy allegedly ran from January 1994 to April 1998. It is not alleged that Mihalitsianos committed a substantive crime in furtherance of the conspiracy, only that he agreed to participate.

The government argues that Mihalitsianos' agreement to participate in the conspiracy is supported by evidence that: (a) the goals of the conspiracy were discussed at weekly meetings of the Suffolk chapter of the Pagans--to which Mihalitsianos belonged; (b) all Pagan recruits were told about the ongoing war with the Hell's Angels; and (c) Mihalitsianos was involved with the attempted arson at Chilly Willy's. Although the arson at Chilly Willy's was not alleged to be a crime in furtherance of the conspiracy, the government argued that Mihalitsianos' participation evidenced the requisite mens rea to harm members of the Hell's Angels. A careful review of the record reveals that the government failed to meet its burden with...

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