23-6649 United States of America v. Cesiro

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 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 1st day of November, two thousand twenty-four.

Present: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 23-6649

THOMAS CESIRO,

Defendant-Appellant. _____________________________________

For Appellee: THOMAS R. SUTCLIFFE, Assistant United States Attorney on behalf of Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY.

For Defendant-Appellee: PETER E. BRILL (on the brief), DAVID GRAY, Brill Legal Group, P.C., Hempstead, NY.

1 Appeal from a judgment of the United States District Court for the Northern District of

New York (D’Agostino, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Thomas Cesiro appeals from a judgment of the United States District

Court for the Northern District of New York (D’Agostino, J.), entered on June 6, 2023, upon a

jury verdict, sentencing him principally to a 120-month term of imprisonment and a 10-year term

of supervised release for attempted coercion and enticement of a minor in violation of

(b). On appeal, Cesiro challenges: (1) the district court’s denial of his motion for spoliation

sanctions; and (2) the sufficiency of the evidence presented against him at trial. 1 We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

I. Denial of Defendant’s Motion for Spoliation Sanctions

A district court’s decision regarding whether to sanction a party for spoliation of evidence

is reviewed for abuse of discretion. See West v. Goodyear Tire & Rubber Co.,

(2d Cir. 1999). We will reject the district court’s factual findings in support of its decision only if

they are clearly erroneous. See United States v. Rahman,

(2d Cir. 1999).

1 While Cesiro also purports to challenge the sufficiency of the indictment against him, the thrust of his claim is that the Government “failed to assert at trial that Cesiro took concrete steps to engage in an[] attempt to violate the New York Penal Law.” Dkt. 20 at 16. He does not argue that his indictment failed to meet the constitutional requirements imposed by the Fifth Amendment’s Grand Jury Clause. See United States v. Lee,

(2d Cir. 2016) (“The Supreme Court has identified two constitutional requirements for an indictment: ‘first, [that it] contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, [that it] enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ ”) (internal citation omitted). Thus, we construe Cesiro’s argument as a challenge to the sufficiency of the evidence presented at trial.

2 Cesiro argues that the district court erred in denying his motion for spoliation sanctions

based on the Government’s failure to preserve data from an online undercover account called

“Dirtymommm” on the “FetLife” platform. We disagree. As a threshold matter, when a criminal

defendant moves for sanctions on the basis of spoliation of evidence, “the record must first show

that evidence has been lost and that this loss is ‘chargeable to the State.’ ”

If this showing has

been made, the defendant must then make a two-pronged showing that (1) the evidence possessed

exculpatory value “that was apparent before [it] was destroyed,” and that (2) it was “of such a

nature that the defendant would be unable to obtain comparable evidence by other reasonably

available means.” California v. Trombetta,

(1984); see also United States v.

Rastelli,

(2d Cir. 1989). In addition, while Brady v. Maryland,

(1963), teaches that good or bad faith is irrelevant when the Government suppresses or fails to

disclose material exculpatory evidence, when the Government has, instead, failed to preserve

evidentiary material that is “potentially useful,” such failure “does not violate due process ‘unless

a criminal defendant can show bad faith’ ” on the part of the Government. Illinois v. Fisher,

, 547–48 (2004) (quoting Arizona v. Youngblood,

(1988)). Failure to

satisfy any of these requirements, including a failure to show the Government’s bad faith, is fatal

to a defendant’s spoliation motion. See Rastelli,

; see also United States v. U.S.

Currency in the Amount of $228,536.00,

(2d Cir. 1990) (noting that “unless a

defendant can show bad faith . . . destruction of potentially useful evidence is not a denial of due

process”).

Here, Cesiro failed to make the threshold showing that the loss of access to the FetLife

profile was “chargeable to the State.” Rahman,

. The data in question was lost

after FetLife, a third party with no relation to the Government, “terminated [the “Dirtymomm”]

3 account without warning and on its own initiative.” Gov. App’x 4; see Rahman,

(holding that an informant’s destruction of evidence was “not chargeable to the Government” in

part because “[t]here is no indication that Government agents made any request or instruction to

destroy any of the tapes”). The primary investigator, Detective Christopher Smith, attested that he

“ha[s] no record of FetLife informing [him] that [his] account would or could be terminated.” Gov.

App’x 4. In fact, Detective Smith even “requested that FetLife reactivate this account” to no avail.

While Cesiro argues that the Government should have taken affirmative steps to preserve the

data on the profile, perhaps by capturing earlier screenshots, he provides “no[] . . . substantive

support for [the] argument that the failure to collect evidence could ground a due process claim in

circumstances analogous to those here.” United States v. Greenberg.

(2d Cir.

2016). Accordingly, the district court did not err in denying Cesiro’s request for spoliation

sanctions.

Even if the loss of the profile was chargeable to the State, the district court did not err in

finding that Cesiro failed to satisfy the other three prerequisites for sanctions. First, Cesiro has not

specified how the evidence on the profile possessed exculpatory value that was apparent before it

was destroyed. While Cesiro claims that he could have used evidence from the profile to verify

Detective Smith’s testimony and to see whether there were other “innocent” interactions between

the fictitious person who supposedly created the profile and other users, he ultimately concedes

that he may only “speculat[e]” as to the potential exculpatory value of the data. Dkt. 20 at 12.

Such speculation is insufficient. See United States v. Walker,

(2d Cir. 2020)

(affirming denial of motion for new trial based on spoliation of video evidence because the

defendant “d[id] not assert that he knows what the missing video footage contained, let alone that

the missing footage was exculpatory”). Second, Cesiro has not shown that the Government acted

4 in bad faith by failing to preserve the profile. Cesiro’s only argument is that the Government has

not offered an explanation for why “Detective Smith failed to preserve the profile information at

the time of the investigation[] despite having been trained to do so.” Dkt. 20 at 12. However, as

previously discussed, the Government was not involved in FetLife’s decision to terminate the

profile. Moreover, Detective Smith attested that he chose not to preserve information relating to

his interactions with other FetLife users, as well as his membership in certain “groups” on the

platform, because he “did not find this information to be relevant to the investigation involving

[Cesiro].” Gov. App’x 3. These facts do not suggest bad faith. Finally, even if the Government

had failed to preserve particular conversations between the “Dirtymomm” profile and Cesiro—

which has not been established—Cesiro has not shown that he was unable to obtain such

conversations through other reasonably available means. In particular, Cesiro does not appear to

dispute that he retained access to his still-active FetLife profile where such conversations would

be available. See Dkt. 20 at 11.

Each of the aforementioned grounds provides an independently sufficient basis for denying

Cesiro’s motion. Accordingly, we affirm the district court’s denial of Cesiro’s motion for

spoliation sanctions.

II. Sufficiency of Evidence

Cesiro also challenges the sufficiency of the evidence supporting his criminal conviction.

A defendant mounting such a challenge bears “a heavy burden.” United States v. Tran,

(2d Cir. 2008). When presented with a sufficiency-of-the-evidence challenge, we must

determine “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia,

(1979); see also United States v. Carlo,

(2d Cir. 2007) (“On an appeal challenging the sufficiency of the evidence to support a

conviction, we view the evidence in the light most favorable to the government, drawing all

reasonable inferences in its favor . . . .”). Notably, when a defendant moves for a judgment of

acquittal on specific grounds and then subsequently raises new arguments on appeal, we review

the new claims for plain error. United States v. Delano,

(2d Cir. 1995) (reviewing

a defendant’s claim for plain error because the defendant, in his initial Rule 29 motion, “stated a

ground different from what he now urges on appeal”).

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact

could have found that Cesiro’s conduct satisfied the essential elements of the crime he was charged

with beyond a reasonable doubt. “To establish enticement under § 2422(b), the Government must

prove four elements: that an individual (i) used a facility of interstate commerce; (ii) to knowingly

persuade, induce or entice, or to attempt to persuade, induce or entice; (iii) any individual who is

younger than eighteen-years old; (iv) to engage in sexual activity of a criminal nature.” United

States v. Brand,

, 201–02 (2d Cir. 2006), abrogated on other grounds by United States

v. Cabrera,

(2d Cir. 2021). Cesiro challenges the sufficiency of the evidence in two

respects, arguing that (1) he did not believe that “Kayla,” the undercover persona he was accused

of enticing, was actually a minor; and (2) his conduct did not constitute a criminal offense in the

State of New York, as the indictment charged, because he was arrested in Vermont and never

entered New York. 2

2 While Cesiro also appears to raise a defense of entrapment, he is precluded from doing so because he failed to raise the defense at trial. United States v. Myers,

(2d Cir. 1982) (“[A] defendant who fails to assert entrapment as a factual defense at his trial, cannot assert it as a legal defense to his conviction.”).

6 Neither argument is availing. The Government has presented ample evidence that Cesiro

believed Kayla was a minor when he made plans to meet with her in Menands, New York. On a

phone call with “Hayley,” the undercover persona that was purportedly Kayla’s mother, he asked

Hayley to clarify Kayla’s age. After Hayley confirmed Kayla was 12 years old, Cesiro reiterated

his desire to have sex with Kayla. Gov. App’x 88 Ex. 11 at 9:15-9:25. After his arrest, Cesiro

told investigators that Kayla was “12, 14, [or] 15” years old. Gov. App’x 88 Ex. 17 at 9:03-9:13.

A jury could reasonably have concluded that, based on this evidence, Cesiro knowingly tried to

entice someone whom he believed to be younger than eighteen years old to engage in sexual

activity.

The Government also presented evidence showing that Cesiro attempted to engage in

conduct that, if successful, would have violated the New York Penal Code. “We have emphasized

that a conviction under § 2422(b) requires a finding only of an attempt to entice or an intent to

entice, and not an intent to perform the sexual act following the persuasion.” United States v.

Douglas,

(2d Cir. 2010) (internal quotations omitted). “In order to establish

that a defendant is guilty of an attempt to commit a crime, the government must prove that the

defendant had the intent to commit the crime and engaged in conduct amounting to a ‘substantial

step’ towards the commission of the crime.” United States v. Yousef,

(2d Cir.

2003) (quoting United States v. Rosa,

(2d Cir. 1993)). “A substantial step must

be something more than mere preparation . . . .” United States v. Manley,

(2d

Cir. 1980). The step “must be necessary to the consummation of the crime and be of such a nature

that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it

was undertaken in accordance with a design to violate the statute.”

at 987–88.

7 Here, Cesiro took a substantial step towards violating the New York statutes in question

when he arranged to meet with Kayla and Hayley at their residence in Menands, New York on

October 20, 2020. In particular, the Government introduced evidence that Cesiro and Hayley

orally agreed to meet at Hayley and Kayla’s residence in New York. Gov. App’x Ex. 7 at 9:24-

10:52. Hayley later texted Cesiro an address in Menands, New York. Gov. App’x 60. Prior to

making plans to meet up, Cesiro had described in detail the various sexual acts he wanted to

perform on or with Kayla, including digital penetration, oral and anal sex, manual stimulation and

oral sex on him, and had referenced having Hayley watch Kayla “lose her cherry to me.” Gov.

App’x 20-23, 34, 45, 53, 54, 67. He additionally mentioned a list of items he planned to use on

Hayley and Kayla, including sugar, a Disney-themed toothbrush, paintbrushes, a wooden spoon,

rope, and anal beads. App’x 273; Gov. App’x 55-56. Investigators found all of these items in

Cesiro’s car after his arrest, as well as handwritten directions to the Menands, New York address.

App’x 400-04, 407, 409. Cesiro himself admitted that the “original[]” plan was for him to go to

New York. App’x 470. The fact that Cesiro traveled to, and was arrested in, Bennington, Vermont

after a last-minute change to the meeting plans only further demonstrates that Cesiro intended to

meet with Hayley and Kayla to engage in sexual conduct prohibited under New York law.

* * *

We have considered Cesiro’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of conviction below.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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