United States v. Veliz

• Decision Date: 19 August 2015
• Docket Number: 13–953–cr.,Docket Nos. 13–914–cr
• Citation: 800 F.3d 63
• Parties: UNITED STATES of America, Appellee, v. Cristobal VELIZ, Narcisa Veliz Novack, also known as Narcy Novack, Defendants–Appellants, Denis Ramirez, Joel Gonzalez, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

800 F.3d 63

UNITED STATES of America, Appellee
v.
Cristobal VELIZ, Narcisa Veliz Novack, also known as Narcy Novack, Defendants–Appellants
Denis Ramirez, Joel Gonzalez, Defendants.

Docket Nos. 13–914–cr
13–953–cr.

United States Court of Appeals, Second Circuit.

Argued: May 6, 2015.
Decided: Aug. 19, 2015.

800 F.3d 65

Yvonne Shivers, Levitt & Kaizer, New York, N.Y., for Defendant–Appellant Narcisa Veliz Novack.

Katherine Alfieri, Law Offices of K. Alfieri, Inc., New York, N.Y., for Defendant–Appellant Cristobal Veliz.

Elliot Jacobson, Assistant United States Attorney (Andrew S. Dember, Brian A. Jacobs, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y.

Before: LEVAL, LYNCH, and LOHIER, Circuit Judges.

Opinion

GERARD E. LYNCH, Circuit Judge:

Narcisa Veliz Novack (“Novack”) and her brother Cristobal Veliz (“Veliz”) appeal from judgments of conviction entered following a two-month jury trial in the United States District Court for the Southern District of New York (Kenneth M. Karas, Judge ). Both were convicted of numerous offenses, including one count of racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c), and one count of RICO conspiracy, 18 U.S.C. § 1962(d).¹ Those charges arose from defendants' participation in an association-in-fact RICO enterprise with the primary purpose of assaulting Novack's husband, Ben Novack, and her mother-in-law, Bernice Novack, in order to gain control of their assets. Defendants raise a host of challenges to their convictions and their sentences of life imprisonment, most of which we reject in a summary order issued simultaneously with this opinion. See United States v. Veliz, 800 F.3d 63, No. 13–914–cr, 13–953–cr, 2015 WL 4923625 (2d Cir. Aug. 19, 2015). This opinion addresses Veliz's challenges to his witness

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tampering convictions, which warrant greater discussion.

Veliz was convicted of two counts of witness tampering in violation of 18 U.S.C. § 1512(b)(3), which provides that “[w]hoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense” shall be guilty of a crime.² Those charges arose from two occasions on which Veliz solicited associates to murder Alejandro Garcia—whom Veliz had hired to assault Ben and Bernice Novack—in order to prevent Garcia from communicating information about those crimes to law enforcement.

First, Veliz argues that his conduct did not violate § 1512(b)(3) because solicitation to murder does not constitute the use or attempted use of “intimidation, threat[s], or corrupt[ ] persua[sion].” We reject that argument, because solicitation of a third party to murder a witness constitutes attempted corrupt persuasion under the statute.

Second, Veliz contends that the evidence was insufficient to show, as required by § 1512(b)(3), “that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.”Fowler v. United States, 563 U.S. 668, 131 S.Ct. 2045, 2048, 179 L.Ed.2d 1099 (2011) (second emphasis added). That argument fails because the evidence that Veliz had committed multiple related crimes across multiple states was sufficient to support the jury's finding that communication with a federal investigator was reasonably likely.

Third, Veliz argues that his witness-tampering convictions must be vacated because the district court's jury charge erroneously instructed that § 1512(b)(3) could be violated by the use or attempted use of “physical force,” in addition to “intimidation, threat[s], or corrupt[ ] persua[sion].” Reviewing that unpreserved challenge for plain error, we reject Veliz's argument because he has not shown a reasonable probability that the challenged instruction affected the jury's verdict.

Finally, Veliz contends that the inclusion of the term “physical force” in the jury charge constructively amended the indictment. Again reviewing for plain error, we reject that argument because the government's theory of guilt was consistent from indictment to summation and the jury clearly based its verdict on the conduct charged in the indictment. Accordingly, for the reasons given in this opinion and in the accompanying summary order, we affirm the judgments of conviction.

BACKGROUND

We recount the facts and procedural history of the case only as relevant to the witness tampering charges. Because the jury found Veliz guilty of those charges, “we view the evidence in the light most favorable to the government.” United States v. Mergen, 764 F.3d 199, 202 (2d Cir.2014) (internal quotation marks omitted).

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In February and March of 2009, Veliz traveled from New York to Florida to orchestrate an assault on Novack's 86–year–old mother-in-law, Bernice Novack. After several aborted attempts, Veliz hired an acquaintance, Alejandro Garcia, to carry out the attack. On the night of April 4, 2009, Veliz drove Garcia to Bernice Novack's home in Fort Lauderdale with instructions to “give her a good beating and to knock off [sic] her teeth.” Trial Tr. 870. Despite those chilling but limited instructions, there was sufficient evidence for the jury to conclude that Veliz and Novack intended that the assault on Bernice Novack would be fatal, so that her wealth would be inherited by Novack's husband Ben, whom Novack and Veliz intended to kill or incapacitate in turn, leaving Novack in control of the assets of both victims. Garcia, lurking behind trash cans until Bernice Novack arrived, followed her into the garage and beat her to death with a wrench. Veliz then paid Garcia for his participation, and the following day told him that he had done a “good job.” Trial Tr. 371.

Shortly after the attack on Bernice Novack, Veliz recruited Garcia for a “larger job” that entailed assaulting Ben Novack at a convention in New York. Trial Tr. 374–75, 381. The purpose of the assault, Veliz explained, was to disable Ben Novack so that Veliz and Novack could take control of his business, and to punish him for his sexual abuse of Novack. In early July 2009, Veliz, Garcia, and Joel Gonzalez (whom Garcia had enlisted in the plot on Veliz's instructions) drove from Florida to New York, purchased weapons and other tools for use in the assault, and checked in at a hotel near the Hilton Hotel in Rye Brook, New York, where the attack would take place. In the early morning of July 12, 2009, Novack let Garcia and Gonzalez into the Novacks' room, and directed them to her sleeping husband. The two assailants, with Novack's encouragement, then tied up Ben Novack, cut out his eyes, and beat him to death with a pair of dumbbells. In the weeks following the attack, Novack secured control of assets of Ben and Bernice Novack.³

On August 13, 2009, Westchester County Police officers investigating the Ben Novack murder questioned Veliz at his apartment in Philadelphia. During that interview, the officers observed a Western Union receipt for $500 addressed to Alejandro Garcia in Miami. Two weeks later, Veliz told one of the investigating officers that he had discovered that Garcia was the perpetrator. On November 18, 2009, Garcia was arrested in Miami on unrelated theft charges. After learning of the arrest, the investigating officers traveled to Florida to question Garcia about Ben Novack's murder. Garcia initially refused to cooperate. In January 2010, the Federal Bureau of Investigation joined the investigation of Ben Novack's murder.

Veliz, unaware of the arrest, believed that Garcia had fled to Nicaragua, his home country. In late 2009, to prevent Garcia from resurfacing and revealing Veliz's involvement, Veliz approached Yader Tinoco, an associate who had played an ancillary role in the killings. Veliz told Tinoco that Garcia “was opening his

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mouth,” and asked him to “go to Nicaragua ... [s]o you can go hush his mouth.” Trial Tr. 1830. Tinoco declined. Undeterred, Veliz in late 2009 or early 2010 contacted Melvin Medrano—who had assisted in planning the attack on Bernice Novack—in Nicaragua through a mutual acquaintance, Juan Carlos Castillo. On a three-way conference call, Veliz stated that he “wanted to know where [Garcia] was,” and that he “was worried because [Garcia] could talk to the cops about something they have done.” Trial Tr. 1874. Veliz asked Medrano “to work [Garcia], to make him disappear,” which Castillo interpreted to mean “to have him killed.” Id. Medrano agreed, but with Garcia in jail in Miami, nothing came of Veliz's solicitation.

In April 2010, after pleading guilty to the Florida theft offense, Garcia was transferred to the Southern District of New York, where he admitted his role in the crimes and implicated his accomplices, including Veliz and Novack. Pursuant to a plea agreement, Garcia pleaded guilty on June 28, 2010 to one...