United States v. Gigliotti

17-1541(L)
United States v. Gigliotti

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 TO 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
2nd day of March, two thousand twenty-one.

Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 17-1541, 17-2166

ELEONORA GIGLIOTTI, FRANCO FAZIO

Defendants,

v.

GREGORIO GIGLIOTTI, ANGELO GIGLIOTTI,

Defendants-Appellants.
_____________________________________

For Appellee: KEITH D. EDELMAN, Jo Ann M. Navickas, Margaret E.
Gandy, for Seth D. DuCharme, Acting United States
Attorney, Eastern District of New York, Brooklyn, NY.

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For Defendant-Appellant Gregorio: SCOTT BRETTSCHNEIDER, Forest Hills, NY.

For Defendant-Appellants: BRENDAN WHITE, White & White, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New

York (Dearie, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendants-Appellants Angelo Gigliotti (“Angelo”) and Gregorio Gigliotti (“Gregorio”)

(collectively, “Defendants-Appellants”) appeal from their convictions in the United States District

Court for the Eastern District of New York entered on June 27, 2017 1 and April 24, 2017, 2

respectively. Defendants-Appellants were each convicted of one count of conspiracy to import

cocaine, 21 U.S.C. §§ 963, 960(b)(1)(B)(ii); two counts of importation of cocaine, 21 U.S.C.

§§ 952(a), 960(b)(1)(B)(ii); one count of conspiracy to possess cocaine with intent to distribute,

21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II); and one count of attempted possession of cocaine, 21

U.S.C. §§ 846, 841(b)(1)(A)(ii)(II). Gregorio was also convicted of unlawful use and possession

of firearms, 18 U.S.C. § 924(c)(1)(A)(i), and possession of a defaced firearm, 18 U.S.C. §§ 922(k),

924(a)(1)(B). We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

1
Angelo Gigliotti’s final judgment was amended on July 19, 2017 and on December 15, 2017.
2
Gregorio Gigliotti’s final judgment was amended on December 15, 2017.

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 A. Batson Issue

We review de novo a district court’s determination that a criminal defendant’s

discriminatory use of gender-based peremptory challenges violated the Constitution. United States

v. Martinez, 621 F.3d 101, 106 (2d Cir. 2010). In doing so, we afford “great deference” to the

court’s assessments of the credibility of an attorney’s explanations for a peremptory challenge,

Davis v. Ayala, 576 U.S. 257, 271 (2015) (internal quotation marks omitted), reviewing only for

clear error, Rice v. Collins, 546 U.S. 333, 338 (2006). A district court’s determination of whether

a party has established a prima facie case under Batson is, moreover, subject to abuse of discretion

review. 3 Martinez, 621 F.3d at 109; Batson v. Kentucky, 476 U.S. 79 (1986).

Defendants-Appellants contend that the district court erred in concluding that their use of

peremptory challenges violated Batson because (1) the government’s Batson objection was not

timely; (2) the district court erroneously rejected the defense’s facially neutral reasons for

exercising the strikes; and (3) the district court reseated Juror No. 16 even though the government

had not objected to defense counsel’s justifications for striking this juror. We disagree.

First, we discern no error, much less an abuse of discretion, in the district court’s

determination to entertain the government’s Batson objection while jury selection was still

underway. See Martinez, 621 F.3d at 109-10. The government made its objection minutes after the

end of the peremptory strikes and while the court was still in the process of screening potential

alternate jurors. See McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996); United States v.

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The district court employs a three-part burden-shifting framework when evaluating potential Batson
violations. Under this framework, if a party objecting to a peremptory strike establishes a prima facie case
of discrimination, the opposing party must then provide a neutral justification for its exercise of the strike.
See Martinez, 621 F.3d at 108-09. At the third step, the trial court must determine whether the objecting
party has met its ultimate burden to demonstrate that the peremptory challenge was the result of purposeful
discrimination. Id. at 109.

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Biaggi, 909 F.2d 662, 679 (2d Cir. 1990). The district court then instructed counsel to be prepared

to offer reasons for striking the jurors at a hearing later the same day. This timing in no way

prejudiced defense counsel, nor was defense counsel likely to have forgotten its reasons for

exercising the peremptory strikes in the intervening period. Cf. McCrory, 82 F.3d at 1247.

Moreover, because the struck jurors were still in the courthouse, had not yet been excused, and

were able to report back to the court, a clear remedy was still available at the time of the

government’s objection. 4

Second, the district court did not err in applying the three-part burden-shifting framework

for evaluating Batson challenges. The district court found that the government had established a

prima facie case of gender discrimination based on defense counsel’s use of all ten of its

peremptory strikes against men. The court then determined that defense counsel had offered non-

discriminatory reasons for challenging each juror, except for Juror No. 16. In relation to this juror,

defense counsel had suggested that it made the strike based on “gut” after “discussion with [the]

client.” We agree with the district court that this explanation was insufficient to rebut the prima

facie showing of discriminatory intent in defense counsel’s strike of Juror 16. See Brown v. Kelly,

973 F.2d 116, 121 (2d Cir. 1992) (“The fact that . . . explanations in the face of a Batson inquiry

are founded on these impressions does not make them unacceptable if they are sufficiently specific

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We also reject Defendants-Appellants’ unpreserved contention that it was error for the district court to
consider the sufficiency of defense counsel’s proffered basis for striking Juror 16 after the Government
appeared to withdraw its objection to that strike. The Government initially objected to the strikes of all ten
male jurors. Once the district court found a prima facie case of discrimination, which it properly did in this
case, it had an independent obligation to conduct an inquiry and fashion a remedy if necessary. The district
court is obliged to protect (and the Government cannot waive) the rights of prospective jurors not to be
discriminated against. See, e.g., Georgia v. McCollum, 505 U.S. 42, 49-50 (1992) (“Be it at the hands of
the state or the defense, if a court allows jurors to be excluded because of group bias, it is a willing
participant in a scheme that could only undermine the very foundation of our system of justice . . . .”
(citation, internal quotation marks, and alterations omitted)).

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to provide a basis upon which to evaluate their legitimacy.”). At the third step of the burden-

shifting framework, the district court further found defense counsel’s explanations not credible

with respect to the strike of Juror No. 3. Defense counsel had suggested that it challenged Juror

No. 3 because this juror “went to verdict in Suffolk County,” “had some law enforcement

background,” and had a “fairly pronounced Spanish accent.” The district court found this reasoning

unpersuasive because, inter alia, the record did not reflect that this juror had any law enforcement

background, or that he had served on a criminal jury. 5 While Defendants-Appellants now point to

record evidence that Juror No. 16 had an aunt in law enforcement, defense counsel did not raise

this rationale before the district court, and there is no reason to believe that the district court failed

to review the entire record.

Third, the district court did not abuse its discretion by reseating Juror Nos. 3 and 16 to

remedy the Batson violation. At the third step of the burden-shifting framework, the district court

was required to determine whether the government had established purposeful discrimination by

considering “all relevant circumstances surrounding a defendant’s prima facie showing of

discrimination.” Jordan v. LeFevre, 206 F.3d 196, 201 (2d Cir. 2000). After concluding that Jurors

Nos. 3 and 16 had indeed been struck due to discrimination, the district court proceeded to fashion

an appropriate remedy. See Georgia v. McCollum, 505 U.S. 42, 49 (1992) (“Regardless of who

invokes the discriminatory challenge, there can be no doubt that the harm is the same—in all cases,

the juror is subjected to open and public . . . discrimination.”). The jury clerk called back all of the

excused jurors and provided a neutral explanation, thereby avoiding any appearance of irregularity.

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The district court also noted that the defense did not strike two other male jurors who had served on
criminal juries that reached a verdict, nor several females who had served on juries. See Foster v. Chatman,
136 S. Ct. 1737, 1750 (2016) (declining to credit certain explanations offered by counsel where counsel
“willingly accepted” prospective jurors with the same traits).

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Accordingly, we conclude that the district court did not clearly err in granting the government’s

Batson challenge and reseating Jurors Nos. 3 and 16.

B. Administrative Search

Defendants-Appellants next argue that evidence obtained from a search of their restaurant

should have been suppressed because law enforcement, in coordination with New York State

Liquor Authority (“NYSLA”), carried out a pretextual administrative search of the restaurant prior

to obtaining a search warrant. “On appeal from a district court’s ruling on a motion to suppress

evidence, we review legal conclusions de novo and findings of fact for clear error.” United States

v. Purcell, 967 F.3d 159, 178 (2d Cir. 2020) (internal quotation marks omitted).

The independent source doctrine “permits the admission of evidence seized pursuant to an

unlawful search if that evidence would have been obtained through separate, lawful means.”

United States v. Vilar, 729 F.3d 62, 83 n.19 (2d Cir. 2013); Segura v. United States, 468 U.S. 796,

814 (1984). This doctrine applies where: (1) the warrant is supported by probable cause “derived

from sources independent of the illegal entry;” and (2) the decision to seek the warrant was not

“prompted by information gleaned from the illegal conduct.” United States v. Johnson, 994 F.2d

980, 987 (2d Cir. 1993). When considering the second prong, the “relevant question is whether the

warrant ‘would have been sought even if what actually happened had not occurred.’” Id. (quoting

Murray v. United States, 487 U.S. 533, 542 n.3 (1988)).

Here, assuming arguendo that the administrative search was improper, suppression of the

evidence obtained from the restaurant search was not required because the search warrant later

obtained by law enforcement was supported by independent sources, and the administrative search

did not prompt the warrant application. As the district court concluded, the search warrant

application relied on more than six months’ worth of wiretaps carried out prior to the NYLSA

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inspection. That investigation had revealed that Defendants-Appellants were importing cocaine,

and that there was a fair probability that contraband or evidence of a crime would be found in the

restaurant. Law enforcement had further seized 55 kilograms of cocaine from produce containers

connected with one of Gregorio’s produce import/export companies, suggesting that Gregorio used

his businesses as a cover for his criminal operations.

Defendants-Appellants contend that the independent source doctrine cannot apply because

the NYSLA search provided law enforcement with details about the layout of the restaurant. But

the warrant application would not have lacked necessary particularity without this information.

See United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011) (explaining that under the Fourth

Amendment, a warrant application must “particularly describe[e] the place to be searched, and the

persons or things to be seized” (internal quotation marks omitted)); United States v. Ross, 456 U.S.

798, 820-21 (1982) (“A lawful search of fixed premises generally extends to the entire area in

which the object of the search may be found and is not limited by the possibility that separate acts

of entry or opening may be required to complete the search.” (footnote omitted)). Moreover, law

enforcement already knew from the wiretaps and confidential informants that there was a computer

and landline in the restaurant, and that these devices were likely located in the basement of the

restaurant. Accordingly, the district court did not err in applying the independent source doctrine

and denying Defendants-Appellants’ motion to suppress.

C. Foreign Evidence

“We review for abuse of discretion the district court’s denial of a motion for a new trial.”

United States v. Josephberg, 562 F.3d 478, 488 (2d Cir. 2009). A district court “abuses” or

“exceeds” its discretion when: “(1) its decision rests on an error of law (such as application of the

wrong legal principle) or a clearly erroneous factual finding, or (2) its decision—though not

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necessarily the product of a legal error or a clearly erroneous factual finding—cannot be located

within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.

2001) (footnotes omitted). “In determining whether to grant a Rule 33 motion, the ultimate test is

whether letting a guilty verdict stand would be a manifest injustice.” United States v. Walker, 974

F.3d 193, 208 (2d Cir. 2020) (internal quotation marks and alteration omitted).

“[W]iretap evidence may be admissible when foreign officials, acting on their own to

enforce foreign law, properly follow their own law in obtaining the evidence, even where the

subject of the foreign search is an American citizen.” United States v. Maturo, 982 F.2d 57, 60 (2d

Cir. 1992) (citation omitted). In Maturo, this Circuit “recognized two circumstances where

evidence obtained in a foreign jurisdiction may be excluded”: (a) “where the conduct of foreign

officials in acquiring the evidence is so extreme that [it] shock[s] the judicial conscience[,]” or (b)

“where cooperation with foreign law enforcement officials may implicate constitutional

restrictions.” Id. at 60-61 (internal citation and quotation marks omitted). “Within the second

category for excluding evidence, constitutional requirements may attach in two situations: (1)

where the conduct of foreign law enforcement officials rendered them agents, or virtual agents, of

United States law enforcement officials; or (2) where the cooperation between the United States

and foreign law enforcement agencies is designed to evade constitutional requirements applicable

to American officials.” Id. at 61 (citation omitted).

Here, the district court did not abuse its discretion in rejecting Defendants-Appellants’

motion for a new trial, which it construed as a motion to suppress evidence under Fed. R. Crim. P.

12(b)(3). The district court appropriately concluded that the documents provided to the court

concerning the Italian legal proceedings did not demonstrate a violation under Maturo. As it

reasoned, the documents did not suggest that the conduct of Italian law enforcement rendered those

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officials “agents, or virtual agents” of U.S. law enforcement. Id. While Angelo argues that the

district court overlooked testimony provided by Inspector Giampietro Muroni, that testimony does

not call into question the independent nature of the Italian law enforcement effort. See United

States v. Getto, 729 F.3d 221, 231 (2d Cir. 2013) (“Defendant’s allegations, even if credited,

demonstrate only robust information-sharing and cooperation across parallel investigations and do

not contradict the government’s claim that the [foreign] investigation was not controlled or

directed by American law enforcement.”); United States v. Lee, 723 F.3d 134, 141 (2d Cir. 2013)

(finding no Maturo violation despite the Drug Enforcement Administration and Jamaican

authorities having “agreed on several measures designed to facilitate collaboration and cooperation

in transnational drug investigations”). The district court therefore also did not abuse its discretion

by failing to hold a new suppression hearing. United States v. Helmsley, 985 F.2d 1202, 1209-10

(2d Cir. 1993) (“No hearing is required on a new trial motion if the moving papers themselves

disclosed the inadequacies of the defendants’ case, and the opportunity to present live witnesses

would clearly have been unavailing.” (internal alteration and quotation marks omitted)). 6

D. Sufficiency of the Evidence—18 U.S.C. § 924(c)

We review challenges to the sufficiency of the evidence de novo. United States v. Harvey,

746 F.3d 87, 89 (2d Cir. 2014). “A defendant seeking to overturn a jury verdict on sufficiency

grounds bears a heavy burden.” United States v. Anderson, 747 F.3d 51, 59 (2d Cir. 2014) (internal

6
We also reject Defendants-Appellants’ related argument based on Franks v. Delaware, 438 U.S. 154
(1978). Under Franks, evidence obtained pursuant to a wiretap application containing erroneous
information may be suppressed if the defendants show that: “(1) the claimed inaccuracies or omissions are
the result of the affiant’s deliberate falsehood or reckless disregard for the truth; and (2) the alleged
falsehoods or omissions were necessary to the issuing judge’s probable cause or necessity finding.”
United States v. Rajaratnam, 719 F.3d 139, 146 (2d Cir. 2013) (alterations and internal quotation marks
omitted). Here, assuming arguendo that the government’s search warrant application included any minor
errors and omissions, there is no evidence to support the conclusion that such inaccuracies were deliberate
or reckless, or that they were material to the wiretap application, which was supported by ample evidence.

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quotation marks omitted). When assessing a sufficiency challenge, “[w]e must view the evidence

in the light most favorable to the government, crediting every inference that could have been drawn

in the government’s favor, and deferring to the jury’s assessment of witness credibility, and its

assessment of the weight of the evidence.” United States v. Vargas-Cordon, 733 F.3d 366, 375 (2d

Cir. 2013) (internal quotation marks omitted). We will uphold the conviction if “any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” United

States v. Coplon, 703 F.3d 46, 62 (2d Cir. 2012) (internal quotation marks omitted).

To convict under 18 U.S.C. § 924(c), the government must prove that the defendant

knowingly possessed a firearm in furtherance of a drug trafficking crime. See Untied States v.

Finley, 245 F.3d 199, 203 (2d Cir. 2001). Possession is considered “in furtherance of” a drug

trafficking crime within the meaning of § 924(c) if there was “some nexus between the firearm

and the drug [crime].” Id. While “the mere presence of a weapon at the scene of a drug crime,

without more, is insufficient to prove that the gun was possessed ‘in furtherance of’ the drug

crime,” United States v. Snow, 462 F.3d 55, 62 (2d Cir. 2006) (internal quotation marks and

emphasis omitted), this requirement is satisfied where the gun had “the potential of facilitating [a]

drug trafficking offense,” Smith v. United States, 508 U.S. 223, 238 (1993) (internal quotation

marks and alterations omitted). Here, law enforcement recovered seven firearms and a large

collection of ammunition from the basement of the restaurant. One witness, a former co-

conspirator, testified to having seen Gregorio pull a gun out of a drawer in the restaurant basement,

which served as the center of operations for Gregorio’s drug import operation, commenting that

he was in a difficult business and that “[y]ou need to protect the merchandise. You need this.” That

same witness also saw Gregorio with cocaine in the basement. Several of the firearms were found

in safes also containing $100,000 cash, two holsters, illegal brass knuckles, and a ledger

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documenting drug proceeds, and one of the firearms was small enough to fit in a pocket and had a

defaced serial number. While Gregorio argues that the weapons could not have facilitated the drug

scheme because they were locked away, this argument is unavailing. See Finley, 245 F.3d at 203

(finding possession where a defendant “knowingly [had] the power and the intention at a given

time to exercise dominion and control over an object” (internal quotation marks omitted)); United

States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005) (“Possession of a firearm to defend a drug stash

clearly furthers the crime of possession with intent to distribute the contents of that stash.”). A

rational jury could have found a “nexus between the firearm[s] and the drug [crimes].” Finley, 245

F.3d at 203. Accordingly, we reject Gregorio’s sufficiency challenge and affirm his conviction

under 18 U.S.C. § 924(c).

E. Retention of a Juror

Lastly, Defendants-Appellants argue that the district court abused its discretion in declining

to dismiss Juror No. 3, who had informed the court that she needed to leave for a wedding by a

specific time. “Whether in the circumstances ‘just cause’ exists to excuse a juror is a matter within

the discretion of the district court.” United States v. Ruggiero, 928 F.2d 1289, 1300 (2d Cir. 1991)

(internal quotation marks omitted).

In this case, the district court decided not to dismiss the juror but instead called in the jury

and instructed it that it was not to rush and that, if necessary, arrangements would be made to

prevent Juror No. 3 from missing her scheduled event. In total, the jury deliberated for

approximately one full day and acquitted Angelo on two counts. There is no evidence to suggest

that the jury was rushed, and no juror raised any concern about what the jury was to do in the event

that it could not complete deliberations before Juror No. 3’s departure. See United States v.

Herrera, 704 F.3d 480, 489 (7th Cir. 2013). Defense counsel also did not object to the district

11
court’s course of action, despite consulting with the court about the issue. Accordingly, the district

court did not abuse its discretion in declining to dismiss Juror No. 3.

* * *

We have considered Defendants-Appellants’ remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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