U.S. v. Iodice
| Decision Date | 06 May 2008 |
| Docket Number | Docket No. 06-2680-cr. |
| Citation | 525 F.3d 179 |
| Parties | UNITED STATES of America, Appellee, v. John IODICE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief), Brooklyn, NY, for Appellee.
Before: STRAUB, POOLER and SOTOMAYOR, Circuit Judges.
Defendant-Appellant John Iodice appeals from the judgment of the District Court for the Eastern District of New York (Leonard D. Wexler, Judge), entered on June 5, 2006, convicting him after a jury trial of various counts related to three arsons and the robbery of a money courier, and sentencing him principally to 180 months' imprisonment and three years' supervised release. On appeal, he makes three arguments. First, Iodice argues that the federal arson statute, 18 U.S.C. § 844(i), is unconstitutional as applied to the arson of a diner that had been unused for approximately two years at the time of the fire. Second, he contends that the District Court erred in finding credible the arresting agent's account of a warrantless search and therefore erred in denying Iodice's motion to suppress evidence gained as a result of that search. Finally, Iodice claims that his trial counsel made errors that deprived him of the constitutionally required effective assistance of counsel. For the reasons that follow, we affirm the judgment of the District Court.
Iodice was convicted of multiple crimes related to three arson fires and the robbery of a money courier. Specifically, Iodice set fire to his girlfriend's home on February 7, 1999. Iodice then directed her to submit fraudulent insurance claims and to receive and cash the resulting settlement checks. In September 2000, Iodice and three co-conspirators set fire to a boat on the high seas. Iodice had previously arranged for the boat to be insured at an inflated value, and eventually received approximately $45,000 of the insurance proceeds. During the course of an investigation into the boat fire, Iodice gave false statements to an FBI agent. On December 3, 1999, Iodice and co-conspirators robbed a money courier in Glen Cove, New York of approximately $100,000. Finally, on October 13, 2001, Iodice and a co-conspirator set fire to a vacant diner in an attempt to prevent it from opening, as planned, in the spring of 2002.
On April 17, 2002, Iodice was arrested by FBI Special Agent James McCarthy. At the time, Iodice was carrying a plastic shopping bag containing the following incriminating evidence: (1) documents relating to the insurance of the boat, (2) a Newsday article about the boat fire, (3) four loose .38 caliber rounds, (4) a calendar card listing locations for Sunrise Check Cashing, and (5) Iodice's address book.
On May 19, 2004, the District Court held a hearing to hear testimony pertaining to a motion by Iodice to suppress this evidence. At the hearing, Iodice's counsel argued that McCarthy was not a credible witness to testify about the events surrounding Iodice's arrest because McCarthy had given substantially inconsistent accounts of those events on different occasions. The District Court denied Iodice's motion to suppress evidence without further elaboration.
At trial, the government called Lambros Rakkas, the owner of the diner burned by Iodice and a co-conspirator, to provide evidence on its use in interstate commerce. He testified that the restaurant was a Paramount Diner, a movable diner which was "complete and ready to open" when he purchased it in 1999. Rakkas further testified that he did not decide to move the diner to a new location until approximately one and a half years after its purchase. The "projected opening" of the diner was April 2002, but Rakkas did not explain what, if any, specific steps he had taken toward that end prior to the arson. Regardless of the extent of Rakkas's pre-October 2001 efforts to relocate and open the diner, Richard Cuzzi, Iodice's co-conspirator in the arson, testified that Iodice had been contacted by the "Greek Mafia" to destroy the diner in order to prevent competition with another diner already located near the new location.
The jury found Iodice guilty of two counts of mail fraud, two counts of conspiracy to commit mail fraud, one count of using fire to commit felonies, one count of making a false statement to the FBI, one count of conspiracy to obstruct commerce by robbery, and one count of conspiracy to commit arson. Iodice was acquitted of one count of mail fraud, one count of using fire to commit felonies, one count of using and carrying a firearm in furtherance of a crime, one count of obstructing commerce by robbery, and one count of arson. The jury was deadlocked on one count of arson within the special maritime jurisdiction of the United States. Finally, the government successfully moved to dismiss one count of being a felon in possession of ammunition. Iodice was principally sentenced to 180 months' imprisonment.
On appeal, Iodice argues that (1) the federal arson statute is unconstitutional as applied to the arson of a closed diner, (2) that the District Court erred in denying his suppression motion, and (3) that he received constitutionally ineffective assistance of counsel. We find the first two arguments to be without merit and decline to consider the third claim on direct review, instead preserving it for a § 2255 petition.
Iodice's challenges the jury's finding, beyond a reasonable doubt, that Rakkas's diner was "[a] building . . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." 18 U.S.C. § 844(i). Although Iodice explicitly argues that the statute is unconstitutional as applied to the arson of the structure at issue in this case, he also appears to challenge the sufficiency of the evidence presented to the jury regarding the interstate nexus requirement of § 844(i). For purposes of this appeal, we assume that Iodice intends to make both challenges to his § 844(i) conviction.
We first address any argument regarding the sufficiency of the evidence related to the § 844(i) conviction. A defendant challenging the sufficiency of the evidence that was the basis of his conviction at trial "bears a heavy burden." United States v. Parkes, 497 F.3d 220, 225 (2d Cir.2007) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 128 S.Ct. 1320, 170 L.Ed.2d 133 (2008). On such a challenge, "we view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility." Id. We will sustain the jury's verdict "so long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation marks omitted).1
As noted above, section 844(i) requires that the object of the arson be a building "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." 18 U.S.C. § 844(i). For the purpose of this statute, the Supreme Court has interpreted the phrase "used in" to "mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Jones v. United States, 529 U.S. 848, 855, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Moreover, the Supreme Court has instructed that the "proper inquiry" for a court presented with a § 844(i) charge is first to determine "the function of the building itself, and then [to determine] whether that function affects interstate commerce." Id. at 854, 120 S.Ct. 1904. Applying this guidance, we have held that both restaurants and bars have the requisite relationship to interstate commerce under § 844(i). See United States v. Joyner, 201 F.3d 61, 79 (2d Cir.2000) ().2
Iodice does not content that Rakkas's diner was permanently unfit to be used as a business which might affect interstate or foreign commerce. Rather, he argues that, at the time of the arson, the diner was nothing but a vacant building serving no function that might conceivably affect interstate or foreign commerce because it had been closed for at least one and a half years and would presumably have continued to be closed for at least an additional six months. In Iodice's view, such a building may not be considered one "used in" interstate commerce because the Supreme Court has required "active employment" in interstate commerce at the time of the arson. See Jones, 529 U.S. at 855, 120 S.Ct. 1904.
We have observed that "it is always hazardous to seize upon a single word or phrase in a judicial opinion and build upon it a rule that was not in issue in the case being decided." Howard v. Senkowski, 986 F.2d 24, 28 (2d Cir.1993). In that vein, we note that Jones concluded only that § 844(i) did not cover a private, owner-occupied, residential dwelling that served no commercial purpose whatsoever. 529 U.S. at 854, 120 S.Ct. 1904. In doing so, the Court rejected the argument that the structure was "used in" interstate commerce merely due to its receipt of interstate goods like energy and its role in the owner's procurement of insurance and financing. See id. at 855, 120 S.Ct. 1904. However, the Court did not confront and thus did not address those circumstances that serve to remove a commercial building that would otherwise be covered by § 844(i), but is temporarily inoperative, from the protection of that statute. To the extent that Iodice now urges us to adopt...
To continue reading
Request your trial
-
United States v. Colasuonno
...only when the record as a whole leaves it with “the definite and firm conviction that a mistake has been committed.” United States v. Iodice, 525 F.3d 179, 185 (2d Cir.2008). That is not this case. It has long been understood in other contexts that to benefit from an advice-of-counsel defen......
-
United States v. Taylor
...the district court's express finding that the agents who so testified to his condition were credible. See, e.g., United States v. Iodice, 525 F.3d 179, 185 (2d Cir.2008) (emphasizing “particularly strong deference” owed district court's credibility determinations). Accordingly, even if—desp......
-
U.S. v. Hertular
...28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); accord United States v. Iodice, 525 F.3d 179, 186 (2d Cir.2008). Accordingly, we decline to consider it on this III. Conclusion To summarize, we reach the following conclusions: 1. ......
-
United States v. Norman
...testify], we defer to those assessments....”), cert. denied, ––– U.S. ––––, 131 S.Ct. 675, 178 L.Ed.2d 502 (2010); United States v. Iodice, 525 F.3d 179, 185 (2d Cir.2008) (“giv[ing] particularly strong deference” to district court's findings after a suppression hearing where “credibility d......