United States v. Derosena
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the judgment of the district court be AFFIRMED and the case be REMANDED to the district court for consideration of resentencing in light of United States v. Crosby.
On December 20, 2004, defendant-appellant Jean Derosena was convicted of one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371, and one count of bank fraud, in violation of 18 U.S.C. § 1344. Following conviction, Derosena was sentenced to a prison term of 27 months, to be followed by three years’ supervised release, restitution in the amount of $70,094.62, and a $200 special assessment. On appeal, Derosena challenges both his conviction and his sentence. Familiarity by the parties is assumed as to the facts, the procedural context, and the specification of appellate issues.
I
Derosena was convicted after a jury trial at which the Government presented evidence of both the conspiracy itself and the underlying bank fraud. The backbone of the Government’s case consisted of the testimony of Derosena’s nephew and co-conspirator (and also employee of the defrauded bank), Vitiello Ulysse. To corroborate this testimony, the Government in
II
Derosena bears a “very heavy burden” in challenging the sufficiency of the evidence underlying his conviction. United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002). We will uphold a verdict if “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
First, Derosena raises a swarm of claims regarding the insufficiency of the evidence, most of which center around the Government’s use of Ulysse’s testimony. Derosena claims that Ulysse’s testimony was insufficient as a matter of law because of purported inconsistencies and that “non-hearsay corroboration” was needed to legitimate the “co-conspirator hearsay.” We find both of these objections to be without merit.
Second, Derosena also argues that the district judge improperly admitted evidence of his prior fraudulent acts. He maintains that the district court did not conduct the proper balancing under Federal Rule of Evidence 404(b), which requires the trial judge to weigh the probative value of the evidence against the potential prejudice to the defense. The district judge considered the evidence in limine and decided to allow its introduction because it went to the knowledge and intent of the defendant. The judge thrice gave a limiting instruction to the jury, directing that the evidence only be considered for the proper purpose of establishing Derosena’s knowledge and intent and for the purpose of showing a prior course of dealings between the conspirators. We find that the district court did not abuse its discretion in allowing this evidence, and thus, this decision by the court provides no basis for overturning the conviction.
Third, the defendant claims that his sentence was improperly enhanced based on a Report and Recommendation of the Probation Office. Here, the facts used to enhance the sentence were clearly relevant and were matters as to which evidence had been introduced at the trial, and the district court may, in its discretion, adopt a recommendation of the Probation Office in sentencing. Thus, we find that the court did not abuse its discretion in considering this evidence.
Finally, the defendant argues that his case should be remanded for resentencing because he was sentenced before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We agree that a remand for reconsideration of his sentence is appropriate. See United States v. Crosby, 397 F.3d 103,119 (2d Cir. 2005).
Ill
For the foregoing reasons we AFFIRM the district court’s judgment of conviction; however, we REMAND for consideration of resentencing in accordance with United States v. Crosby.
Reference
- Full Case Name
- United States v. Jean DEROSENA
- Status
- Published