22-2712-cr United States v. Pandrella

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 8th day of April, two thousand twenty-four.

Present:

EUNICE C. LEE, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 22-2712-cr

ANTHONY PANDRELLA,

Defendant-Appellant. _____________________________________

For Appellee: M. KRISTIN MACE (Jo Ann M. Navickas, Matthew R. Galeotti, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY. For Defendant-Appellant: JONATHAN SAVELLA (James R. Froccaro Jr., Law Office of James R. Froccaro, Jr., Port Washington, NY, on the brief), New York, NY.

Appeal from an April 27, 2023 amended judgment of the United States District Court for

the Eastern District of New York (Brodie, C.J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Anthony Pandrella (“Pandrella”) appeals from an amended judgment

entered following a jury trial at which he was convicted of three counts: one count of Hobbs Act

robbery, in violation of

(a); one count of using and carrying a firearm during and

in relation to the robbery, in violation of

(c)(1)(A); and one count of using the

firearm to knowingly and intentionally cause a person’s death in the perpetration of the robbery,

in violation of

(j)(1). These convictions stem from the robbery and murder of

Vincent Zito (“Zito”), which occurred on October 26, 2018. Pandrella timely appealed his

conviction.

On appeal, Pandrella argues that: (1) the government failed to establish Hobbs Act

jurisdiction by not presenting sufficient evidence of the robbery’s effect on interstate commerce;

(2) the district court improperly excluded Pandrella’s statements to a government witness as

inadmissible hearsay; and (3) the district court erred by admitting “other acts” evidence of

Pandrella’s association with purported criminal figures. We assume the parties’ familiarity with

the underlying facts, the procedural history, and the issues on appeal, to which we refer only as

necessary to explain our decision to affirm.

2 BACKGROUND

For decades, Zito operated a loansharking business out of his home. He stored cash from

his loansharking in boxes around the house, and customers came to his residence to borrow money.

He charged a weekly interest rate of three percent, although he sometimes gave lower rates to

individuals he knew well. To protect his business, Zito had surveillance cameras that recorded

his home’s entrances and guns hidden in the areas where he met his customers. 1 When Zito

sensed he was under law enforcement scrutiny—i.e., “hot”—he would bring his cash and guns to

either Pandrella, his best friend, or a neighbor for safekeeping.

About a year before Zito’s death, in 2017, Pandrella warned Zito that Zito was “hot.”

In response, Zito gave $750,000 to Pandrella to hold until things calmed down. Approximately

two months before Zito’s death, Zito asked Pandrella for the money back, but Pandrella was unable

to return the full amount. Zito was “irate.” Appellant’s App’x at 151. The relationship

between the two deteriorated as Pandrella remained unable to return the money.

On October 25, 2018, Zito told multiple witnesses that he was expecting to meet with

Pandrella the next day. Specifically, he told his son, Joseph Zito, that he was expecting Pandrella

to bring him a substantial amount of money at the meeting. The following day, October 26,

2018, at approximately 2:43 p.m., Zito’s grandson discovered Zito’s deceased body after getting

home from school. At the crime scene, police officers recovered a revolver along with two

discharged bullets, one from Zito’s head and one from the floor near his body. Additionally, four

luxury watches which had been given to Zito as collateral for a $50,000 loan were missing.

1 Pandrella asserts that the security cameras “had been blind to two whole sides of the House.” Appellant’s Br. at 6. However, the evidence adduced at trial showed that the areas not covered by surveillance did not contain working entrances.

3 In the window of time in which Zito was last seen alive and before his grandson returned

home, Zito’s surveillance system showed only a single person entering and leaving the home:

Pandrella. Specifically, Pandrella had arrived at approximately 8:10 a.m. and left at

approximately 10:25 a.m. This period corresponded with the time Zito’s teenage nephew, John

Mosca (“Mosca”), who had been home watching television on the first floor, heard “two bangs.”

Gov’t App’x at 14.

On the evening of Zito’s death, various family members and friends, including Pandrella,

gathered at Zito’s home. When the conversation turned to the fact that Mosca had been home

during the incident, Pandrella urgently asked Mosca’s mother, Rose Zito, “Roe, Roe, Johnny Boy

was home? Johnny was home? Roe, Johnny was home?” Appellant’s App’x at 64.

DISCUSSION

I. There Was Sufficient Evidence to Establish Hobbs Act Jurisdiction.

We reject Pandrella’s argument that the government “failed to satisfy the nexus element

of” Hobbs Act robbery and that such failure “triggers the reversal of Pandrella’s convictions.”

Appellant’s Br. at 16.

We review a challenge to the sufficiency of the evidence de novo. United States v. Alston,

(2d Cir. 2018). In reviewing whether a conviction is supported by sufficient

evidence, “we are required to draw all permissible inferences in favor of the government and

resolve all issues of credibility in favor of the jury’s verdict.” United States v. Willis,

(2d Cir. 2021). We require only a de minimis showing of an effect on interstate

commerce to establish Hobbs Act jurisdiction. United States v. Rose,

(2d Cir.

2018); see also United States v. Silverio,

(2d Cir. 2003) (“[I]t is the law in our

4 circuit that ‘[i]f the defendants’ conduct produces any interference with or effect upon interstate

commerce, whether slight, subtle or even potential, it is sufficient to uphold a prosecution under

the Hobbs Act.’” (quoting United States v. Perrotta,

(2d Cir. 2002))). “Sufficient

proof to support a violation of the Act has been presented if the robbery . . . ‘in any way or degree,’

affects commerce, even though the effect is not immediate or direct or significant, but instead is

postponed, indirect and slight.” United States v. Jones,

, 284–85 (2d Cir. 1994)

(quoting United States v. Augello,

, 1169–70 (2d Cir. 1971)). Moreover, we have

held that loansharking can have an effect on interstate commerce. United States v. Fabian,

, 555–56 (2d Cir. 2002) (holding that stealing a loansharking business’s assets “depleted

the available assets for that business”); United States v. McIntosh, No. 14-1908,

,

at *3 (2d Cir. Jan. 25, 2023) (summary order) (holding that the government sufficiently established

the interstate commerce element when it showed that the loan shark who was robbed had loaned

money to individuals who “used it for out-of-state contracts”).

Here, there was sufficient evidence for the jury to conclude that Pandrella’s theft of the

luxury watches depleted Zito’s business assets, and therefore had at least a potential effect on

interstate commerce. During the trial, multiple witnesses testified that they borrowed money

from Zito and still had outstanding debts at the time of his death in 2018. For instance, Michael

McKnight testified that he received two interest free loans of $4,000 from Zito in 2018. Yuriy

Zayonts (“Zayonts”) testified that he borrowed $50,000 from Zito in August, shortly before Zito’s

death in October. Instead of requiring the standard three-percent interest on the loan, Zito insisted

that Zayonts need not pay any interest at all. But Zayonts wanted Zito to “have peace of mind”

5 so he gave Zito a case of luxury watches worth approximately $30,000 as “security for the loan.” 2

Appellant’s App’x at 227. Further, various witnesses testified that they used Zito’s loans to

purchase goods made outside of the state. See, e.g., Appellant’s App’x at 191, 193–94 (witness

testifying that he borrowed money from Zito to purchase drywall made by National Gypsum);

Gov’t App’x at 231–32 (stipulation agreeing that National Gypsum products were manufactured

outside of New York State). Thus, the jury could reasonably conclude that stealing the watches

depleted the loansharking business’s assets, which had at least a de minimis effect on interstate

commerce.

II. Any Error in the Exclusion of Pandrella’s Out-Of-Court Statements Was Harmless.

During Pandrella’s cross-examination of Rose Zito, he sought to elicit the fact that when

Pandrella gathered with the Zito family on the evening of October 26, 2018, he told Rose Zito and

others that he had brought Zito breakfast that morning. The government objected, arguing that it

was hearsay, and the district court agreed. The district court determined that Pandrella could not

“offer the out-of-court statement[] itself” but could “confront [Rose] about whether or not she had

any conversation with him.” Appellant’s App’x at 74–75 (emphasis added).

On appeal, Pandrella argues that the district court erred in excluding the statements as

2 Pandrella argues that because the loan to Zayonts was “interest-free” it was “personal” with no connection to the lending “business.” Appellant’s Br. at 19 (emphasis omitted). However, there was sufficient evidence at trial for the jury to conclude that Zito’s loan to Zayonts was a part of his loansharking business and accordingly that the watches were assets of the business. See Appellant’s App’x at 167–68 (witness describing Zayonts as Zito’s “customer”); see also United States v. Wilkerson,

(2d Cir. 2004) (“[T]he fact that a robbery takes place at a residence does not transform the robbery from the robbery of a business into the random robbery of an individual . . . so long as the evidence supports the conclusion that the robbery targeted the assets of a business.”).

6 inadmissible hearsay because they were offered “not as proof of the facts asserted—i.e.[,] that he

had breakfast with Zito—but as circumstantial evidence of [his] state of mind.” Appellant’s Br.

at 30. We need not address Pandrella’s argument because, even if the statements were

erroneously excluded, the error was harmless.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can

conclude with fair assurance that the evidence did not substantially influence the jury.” United

States v. Cadet,

(2d Cir. 2011) (quoting United States v. Jackson,

(2d Cir. 2002)). Here, the jury heard testimony from a Federal Bureau of Investigations (“FBI”)

case agent that Pandrella had openly told the FBI that he brought Zito breakfast the morning of

Zito’s death, and that Pandrella “didn’t hide that fact” and “consistently maintained his innocence”

during all interviews. Appellant’s App’x at 252. These admitted statements accomplished the

same thing the excluded statements would have—that is, they demonstrated Pandrella’s purported

“consciousness of innocence.” Appellant’s Reply at 9. Thus, we conclude that excluding

Pandrella’s substantively similar statements to Rose Zito did not substantially influence the jury.

III. The District Court Did Not Erroneously Admit “Other Act” Evidence.

We reject Pandrella’s argument that the government violated Federal Rule of Evidence

Rule 404 by relying on “undisclosed ‘other act[]’ evidence to insinuate a criminal relationship

between Pandrella and an alleged mafioso named George Lombardozzi [(“Lombardozzi”)].”

Appellant’s Br. at 32. We review a district court’s evidentiary rulings with deference and reverse

only if we find an abuse of discretion. 3 United States v. Cuti,

(2d Cir. 2013).

3 The parties dispute whether Pandrella properly contemporaneously objected to the evidence regarding Lombardozzi at trial, and thus, they dispute the relevant standard for reversal. We do

7 Rule 404 states that “[e]vidence of any other crime, wrong, or act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in accordance

with the character.” Fed R. Evid. 404(b).

According to Pandrella, the government violated the rule by introducing evidence to

associate him with Lombardozzi and the latter’s connections to organized crime. However, the

evidence Pandrella objects to, which establishes his relationship with Lombardozzi, was

specifically used to explain his activities in the hours after the crime, which included dropping off

a bag of items at Lombardozzi’s home—presumably containing the stolen watches. Thus, the

evidence at issue was “inextricably intertwined with the evidence regarding the charged offense”

and therefore properly admitted. United States v. Quinones,

(2d Cir. 2007)

(quoting United States v. Towne,

(2d Cir. 1989)); see also United States v.

Robinson,

(2d Cir. 2012) (explaining that evidence of other acts does not violate

Rule 404(b) “if it is necessary to complete the story of the crime on trial” (quoting United States

v. Carboni,

(2d Cir. 2000))).

* * *

For the reasons set forth above, we AFFIRM the district court’s judgment.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

not address this issue because we conclude that the evidence was properly admitted, even under the more demanding abuse of discretion standard.

8