12‐4224‐cr
United States v. Fusco
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.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 21st day of March, two thousand
4 fourteen.
5
6 PRESENT: CHESTER J. STRAUB,
7 ROBERT D. SACK,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 UNITED STATES OF AMERICA,
12
13 Appellee,
14
15 v. No. 12‐4224‐cr
16
17 EMILIO FUSCO,
18
19 Defendant‐Appellant.
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21
The Clerk of the Court is directed to amend the caption of this case as set forth
above.
1
1 FOR APPELLANT: STEPHEN N. PREZIOSI, New York, NY.
2
3 FOR APPELLEE: DANIEL S. GOLDMAN, Assistant United
4 States Attorney (Negar Tekeei and Justin
5 Anderson, Assistant United States
6 Attorneys, on the brief), for Preet Bharara,
7 United States Attorney for the Southern
8 District of New York, New York, NY.
9
10 Appeal from a judgment of the United States District Court for the
11 Southern District of New York (P. Kevin Castel, Judge).
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13 AND DECREED that the judgment of the District Court is AFFIRMED.
14 Emilio Fusco appeals from the District Court’s judgment of conviction
15 entered on October 18, 2012. Following his extradition from Italy and a jury trial,
16 Fusco was convicted of a racketeering conspiracy in violation of 18 U.S.C.
17 § 1962(d), an extortion conspiracy in violation of 18 U.S.C. § 1951, and interstate
18 travel in aid of racketeering in violation of 18 U.S.C. § 1952. The jury acquitted
19 Fusco of a substantive Racketeer Influenced and Corrupt Organizations Act
20 (“RICO”) charge, finding that the Government had not proven his guilt with
21 respect to the predicate acts of murder and conspiracy to murder Adolfo Bruno
22 and Gary Westerman or extortion and conspiracy to extort James Santaniello.
23 The jury also acquitted Fusco of extortion. The District Court sentenced Fusco
24 principally to 300 months’ imprisonment, relying in part on its finding by a
25 preponderance of the evidence that Fusco participated in the conspiracies to
26 murder Bruno and Westerman.
27 On appeal, Fusco argues that (1) his prosecution and sentencing violated
28 the Extradition Treaty between the Government of the United States and the
29 Government of the Italian Republic (“Extradition Treaty”) and the rule of
2
1 specialty, (2) the District Court improperly considered acquitted conduct in
2 determining his sentence, (3) the District Court constructively amended the
3 indictment, (4) the evidence was insufficient for a conviction, (5) the indictment
4 was multiplicitous, and (6) trial counsel was constitutionally ineffective. We
5 assume the parties’ familiarity with the facts and record of the prior proceedings,
6 to which we refer only as necessary to explain our decision to affirm.
7 Fusco argues that he was prosecuted and sentenced for the crime of
8 homicide, a crime punishable by death, in violation of the Extradition Treaty as
9 well as the rule of specialty.1 See generally United States v. Baez, 349 F.3d 90, 92
10 (2d Cir. 2003) (“Based on international comity, the principle of speciality
11 generally requires a country seeking extradition to adhere to any limitations
12 placed on prosecution by the surrendering country.”). We reject his argument
13 because, as the indictment and judgment make clear, Fusco was neither
14 prosecuted nor sentenced for the crime of homicide. Instead, as the Italian
15 Supreme Court of Cassation explained, “[Fusco’s] participation in homicides
16 [was] placed under such a heading solely as a manifestation of racketeering
17 activity committed by Fusco in his role as co‐conspirator.” Moreover, the District
18 Court sentenced Fusco for the racketeering charge with the murders as predicate
19 acts, not for the separate crimes of homicide. See Witte v. United States, 515 U.S.
20 389, 399 (1995) (holding, in double jeopardy context, that the “use of evidence of
21 related criminal conduct to enhance a defendant’s sentence for a separate crime
22 within the authorized statutory limits does not constitute punishment for that
1 We need not resolve whether Fusco has prudential standing to challenge his
prosecution and sentencing on the grounds that they violate the terms of the
Extradition Treaty or the rule of specialty, because his argument plainly fails on
the merits. See United States v. Cuevas, 496 F.3d 256, 262 (2d Cir. 2007).
3
1 conduct”). Accordingly, we conclude that Fusco’s prosecution and sentencing
2 did not violate the Extradition Treaty or the rule of specialty.
3 Nor did the District Court’s consideration of the murders at sentencing
4 violate the requirement that “any fact that increases the penalty for a crime
5 beyond the prescribed statutory maximum must be submitted to a jury, and
6 proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490
7 (2000). The District Court’s judicial factfinding with respect to the murders did
8 not increase the prescribed 45‐year statutory maximum for the convicted crimes,
9 and therefore does not implicate Apprendi or its progeny. See United States v.
10 Norris, 281 F.3d 357, 359 (2d Cir. 2002).
11 Fusco also argues that the District Court constructively amended the
12 indictment with respect to count five—interstate travel in aid of racketeering—by
13 including jury instructions related to 18 U.S.C. § 1952(a)(2), a subsection not
14 included in the indictment, in addition to instructions related to § 1952(a)(1) and
15 § 1952(a)(3), which were included in the indictment. “To prevail on a
16 constructive amendment claim, a defendant must demonstrate that . . . there is a
17 substantial likelihood that the defendant may have been convicted of an offense
18 other than that charged in the indictment.” United States v. D’Amelio, 683 F.3d
19 412, 416 (2d Cir. 2012) (quotation marks omitted). The evidence at trial
20 supported Fusco’s interstate travel conviction based on § 1952(a)(1) or
21 § 1952(a)(3), intent to distribute the proceeds of or to promote, manage, establish,
22 carry on and facilitate gambling and extortion. By contrast, as shown by Fusco’s
23 acquittal of the substantive RICO charge and its predicate murder acts, the
24 evidence did not support a conviction based on § 1952(a)(2), intent to commit a
25 crime of violence. Accordingly, Fusco has failed to demonstrate a “substantial
4
1 likelihood” that the jury relied on § 1952(a)(2) rather than § 1952(a)(1) or
2 § 1952(a)(3) in convicting him of interstate travel in aid of racketeering.
3 We also reject Fusco’s contention that the evidence was insufficient to
4 convict him of interstate travel in aid of racketeering. “A defendant bears a
5 heavy burden in seeking to overturn a conviction on grounds that the evidence
6 was insufficient.” United States v. Cruz, 363 F.3d 187, 197 (2d Cir. 2004).
7 Viewing the evidence in the light most favorable to the Government, a rational
8 juror could have concluded from the testimony of Anthony Arillota, a
9 cooperating witness who described the extortion conspiracy, that Fusco engaged
10 in interstate travel between Massachusetts and New York in aid of racketeering.
11 Fusco’s argument that the RICO conspiracy and the interstate travel in aid
12 of racketeering counts are multiplicitous is also meritless. Although the former
13 count includes interstate travel in aid of racketeering as a predicate act,
14 “the law permits a defendant to be prosecuted—either simultaneously or at
15 separate times—for both substantive racketeering and the predicate crimes
16 evidencing the pattern of racketeering.” United States v. Basciano, 599 F.3d 184,
17 205 (2d Cir. 2010).
18 Finally, Fusco argues that his trial counsel was constitutionally ineffective
19 for not raising the extradition, constructive amendment, and multiplicity
20 arguments before the District Court. We have “entertained ineffective assistance
21 claims for the first time on direct appeal when their resolution is beyond any
22 doubt or to do so would be in the interest of justice.” United States v. Khedr, 343
23 F.3d 96, 100 (2d Cir. 2003) (quotation marks omitted). Because the arguments
24 identified by Fusco are meritless, it is “beyond any doubt” that Fusco’s trial
25 counsel was not constitutionally ineffective for failing to raise them. United
26 States v. Regalado, 518 F.3d 143, 149 n.3 (2d Cir. 2008).
5
1 We have considered Fusco’s remaining arguments and conclude that they
2 are without merit or abandoned. For the foregoing reasons, the judgment of the
3 District Court is AFFIRMED.
4 FOR THE COURT:
5 Catherine O=Hagan Wolfe, Clerk of Court
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