19-4286 United States v. Marko Stasiv

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 20th day of October, two thousand twenty-one.

PRESENT: GUIDO CALABRESI, BARRINGTON D. PARKER, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee, v. 19-4286

MARKO STASIV,

Defendant-Appellant. * _____________________________________

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. FOR PETITIONER: PETER F. LANGROCK, Langrock Sperry & Wool, LLP, Middlebury, VT.

FOR RESPONDENT: JONATHAN E. REBOLD, (Anna M. Skotko, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Castel, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of conviction entered on

December 17, 2019, is AFFIRMED.

Defendant-Appellant Marko Stasiv was convicted after a jury trial of

conspiracy to commit bank fraud and wire fraud, in violation of

;

wire fraud, in violation of

; and aggravated identify theft, in

violation of 18 U.S.C. § 1028A. On appeal, Stasiv challenges (1) the district court’s

denial of his motion for a new trial or an evidentiary hearing based on alleged

juror coercion, (2) the district court’s denial of his motion for a new trial based on the submission of allegedly extra-record evidence to the jury, and (3) the

sufficiency of the evidence proving that he participated in a conspiracy to commit

wire fraud or bank fraud. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

We review for abuse of discretion the district court’s denial of a motion for

a new trial on the basis of juror misconduct. United States v. Abrams,

(2d Cir. 1998). Because of “a judicial reluctance . . . to inquire into . . . the

conduct of the jurors during their deliberations,” trial courts must insist on “clear”

and “incontrovertible” evidence of a specific impropriety before holding a hearing

to probe alleged juror misconduct. King v. United States,

(2d Cir.

1978) (citation and quotation marks omitted); see also United States v. Vitale,

(2d Cir. 2006). Ultimately, a district court may “overturn a jury’s

verdict only when its deliberations have taken the most egregious departures from

rational discourse[.]” Anderson v. Miller,

(2d Cir. 2003).

Here, the district court acted well within its discretion in denying Stasiv’s

request for a new trial without holding an evidentiary hearing. Juror 10, who

subsequently expressed regret about her decision to convict, claimed that as she

3 was still considering the evidence, a fellow juror grew “red-faced and agitated,”

and his communications turned from “rational dialogue to a demeaning, heated

tone and expression.” App’x at 111. At one point, Juror 10 thought the

offending juror had become so excited that “he might jump out of his chair.”

App’x at 111. It was only after that episode that Juror 10 decided to join the others

and return a guilty verdict.

We see no basis for disturbing the verdict. We have upheld jury verdicts

despite more egregious jury-room conduct than what was alleged here. See, e.g.,

Anderson,

(affirming the district court’s denial of habeas relief

where juror affidavits alleged name-calling and a shouting match in which court

officers had to intervene during jury deliberations); Jacobson v. Henderson,

, 13–15 (2d Cir. 1985) (affirming the district court’s denial of habeas relief where

juror affidavits alleged instances of “screaming, hysterical crying, fist banging,

name calling, . . . the use of obscene language,” and a chair-throwing incident

during deliberations); United States v. Grieco,

, 414–16 & n.1 (2d Cir.

1958) (affirming conviction where one juror’s verbal abuse left another “shaking

and crying”). Even assuming the truth of Juror 10’s allegations, they reflect “at

4 most” that she “felt [herself] to be under pressure . . . to vote in favor of

conviction.” Anderson,

. That sentiment does not warrant a new

trial under the law of this Circuit, so the district court did not err in declining to

hold a hearing to investigate her allegations before denying Stasiv’s motion for a

new trial. 1

Stasiv also argues he is entitled to a new trial because the jury discovered

inside Stasiv’s backpack – which also contained other undisputedly relevant

evidence, including a driver’s license, permanent resident card, and two Ukranian

passports, all in Stasiv’s name – a cash deposit receipt from the City of New York

Department of Correction (“DOC”) with Stasiv’s name on it. Stasiv argues that

the receipt was prejudicial to him because it likely led the jury to conclude that he

had been detained at Rikers Island. Whatever the relevance of the receipt, we

hold that the district court did not abuse its discretion in denying Stasiv’s request

for a new trial. 2

1 Stasiv’s reliance on Smith v. Phillips,

(1982), is misplaced, as that case involved a specific allegation that a juror had a conflict of interest because, during the trial, he had applied for a position as an investigator in the District Attorney’s Office,

. 2 Stasiv assumes, without offering much support, that the receipt would not have been admitted into evidence had the government specifically offered it, citing only the district court’s decision to exclude evidence of Stasiv’s prior criminal record. We are not so sure. Unlike Stasiv’s

5 At the outset, we doubt that Stasiv is entitled to even raise this objection

because “defense counsel is as responsible as the prosecutor for seeing to it that

only proper exhibits are sent to the jury room, and normally the failure of counsel

to register a timely objection to the submission of improper evidence to the jury

will be deemed a waiver, unless it is shown that the evidence was so prejudicial

that the defendant was denied a fair trial.” United States v. Camporeale,

(2d Cir. 1975) (citation and quotation marks omitted) (alterations

adopted). In any event, assuming that Stasiv did not waive this argument and

that the jury was improperly exposed to extra-record information, Stasiv is still not

entitled to a new trial because he was not prejudiced by this evidence.

Though “extra-record information of which a juror becomes aware is

presumed prejudicial,” United States v. Greer,

(2d Cir. 2002),

“[t]his presumption may be rebutted,” including by a showing “that an abundance

of properly admitted evidence relevant to [the] matter exists.” United States v.

Weiss,

(2d Cir. 1985). That presumption is easily rebutted here.

criminal history, the receipt could have been relevant to, for instance, demonstrating Stasiv’s ownership of the backpack and its contents. But we need not resolve that issue to decide this appeal.

6 The evidence of Stasiv’s guilt was overwhelming, including, among other things,

electronic messages between Stasiv and a coconspirator discussing the creation of

fraudulent utility bills to establish their residence in various states to execute the

fraud, text messages about opening fraudulent bank accounts, testimony by

Stasiv’s coconspirator that implicated him, surveillance video of the members of

the conspiracy opening fraudulent bank accounts, and business records showing

the financial losses resulting from the fraud. On this record, we conclude that

there was more than “an abundance” of evidence of Stasiv’s guilt, so the jury’s

exposure to the DOC receipt was harmless.

Stasiv’s final argument is that the evidence was insufficient as to Count One,

which charged him with conspiracy to commit bank and wire fraud, because it did

not establish his intent to defraud federally insured financial institutions as

required by the bank fraud statute. See

;

§ 20(1). We review

the sufficiency of the evidence de novo, asking whether “any rational trier of fact

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

United States v. Vargas-Cordon,

(2d Cir. 2013) (citation omitted).

In so doing, we “draw all permissible inferences in favor of the government.”

7 United States v. Kozeny,

(2d Cir. 2011).

Although Count One alleges a conspiracy with two objects – bank fraud and

wire fraud – Stasiv challenges the sufficiency of the evidence only with respect to

the bank fraud object. This alone dooms his argument because “it is well-settled

that when a conspiracy ha[s] multiple objectives, a conviction will be upheld so

long as evidence is sufficient to show that [the defendant] agreed to accomplish at

least one of the criminal objectives.” United States v. DeLillo,

(2d

Cir. 1980) (citation and quotation marks omitted). The government produced

extensive evidence of Stasiv’s involvement in a scheme to commit wire fraud, as

Stasiv himself concedes. See Appellant’s Br. 6 (“[T]here is clear evidence of a plan

to defraud check cashing companies[.]”). That scheme involved substantial

reliance on wires, including telephones, to transmit fraudulent information in

interstate commerce for the purpose of obtaining money. See

.

This evidence of wire fraud is more than sufficient to sustain the jury’s conviction

on the conspiracy count.

* * *

8 We have considered Stasiv’s 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 of Court

9