United States v. Razzoli , 548 F. App'x 733 ( 2013 )

13-126 (L)
United States v. Razzoli
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 23rd day of December, two thousand thirteen.
PRESENT: REENA RAGGI,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 13-126 (L)
No. 13-315 (CON)
KEVIN RAZZOLI,
Defendant-Appellant.
______________________________________
FOR APPELLANT: Kevin Razzoli, pro se, Glenville,
West Virginia.
FOR APPELLEE: Damian Williams (Brent S. Wible, on the
brief), Assistant United States Attorneys, for
Preet Bharara, United States Attorney for the
Southern District of New York,
New York, New York.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Denise L. Cote, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant Kevin Razzoli, proceeding pro se, appeals from a January 14, 2013 judgment
of conviction following a jury trial, at which he was found guilty on two counts of willfully
and forcibly interfering with the performance of duties of Deputy United States Marshals, see
18 U.S.C. §§ 111(a)(1), 1114, for which he was sentenced to concurrent terms of 30 months’
imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
Razzoli raises numerous challenges to various rulings of the district court, none of
which has merit.
First, Razzoli faults the district court’s denial of his motion to recall prosecution
witnesses for further cross-examination. The district court denied recall because Razzoli’s
counsel had a full opportunity to cross-examine the witnesses during the government’s case-in-
chief. Because Razzoli offers no explanation for failing to question the witnesses more fully
during cross-examination, the district court did not abuse its discretion in denying his request
to recall. See United States v. Blackwood, 456 F.2d 526, 529–30 (2d Cir. 1972) (explaining
that district court’s discretion to limit cross-examination is “especially broad” where defendant
challenges decision not to allow recall “without showing any valid reason for his failure to use
the material then in his possession during his earlier cross-examination of that witness”); see
2
also United States v. Scotti, 47 F.3d 1237, 1247–48 (2d Cir. 1995) (applying abuse of
discretion standard to denial of recall motion).
Second, Razzoli argues that the district court erred by rejecting his motion for a new
trial based on the alleged destruction of unidentified evidence. See Fed. R. Crim. P. 33.
“[Rule 33] motions are granted only in extraordinary circumstances, and are committed to the
trial court’s discretion.” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (internal
quotation marks omitted) (alteration in original). Because Razzoli does not identify what
evidence was purportedly destroyed and, thus, does not explain why he is entitled to a new
trial, the court did not abuse its discretion in denying the motion. See id.
Third, Razzoli argues that trial counsel was ineffective for failing to file an interlocutory
appeal from the district court’s denial of his Rule 33 motion. An ineffective assistance claim
may be raised on direct appeal if it can be decided on the current record. See United States v.
Brown, 623 F.3d 104, 112–13 (2d Cir. 2010). This is such a case. As the district court
properly denied Razzoli’s Rule 33 motion two months before entry of judgment, there would
have been no appellate jurisdiction over an interlocutory appeal of that order, and thus Razzoli
cannot demonstrate prejudice from counsel’s failure to file such an appeal. See Florida v.
Thomas, 532 U.S. 774, 777 (2001); see also Strickland v. Washington, 466 U.S. 668, 694
(1984) (holding that to succeed on ineffective assistance claim, defendant must establish
prejudice from counsel’s “unprofessional errors”); United States v. Ferguson, 246 F.3d 129,
138 (2d Cir. 2001).
3
Fourth, Razzoli challenges the district court’s denial of his motion to subpoena a
clergyman who purportedly would have testified about the significance of the scapular that
Razzoli was wearing when he assaulted the Deputy United States Marshal. Because the
appearance of a scapular or its significance had no bearing on the illegality of Razzoli’s
conduct, the district court did not abuse its discretion in denying the request. See United States
v. Stewart, 433 F.3d 273, 310–11 (2d Cir. 2006).
Fifth, Razzoli challenges the district court’s denial of his claim–made in his Rule 33
motion–that the government was improperly recording his telephone conversations with his
attorney. As Razzoli had access to a private telephone line that was not recorded and there was
no evidence that any of Razzoli’s calls with his attorney were in fact recorded or that the
government listened to any such recordings, the district court did not abuse its discretion in
denying a new trial on this basis. See United States v. McCourty, 562 F.3d at 475.
Sixth, Razzoli challenges the district court’s decision not to conduct an evidentiary
hearing at sentencing. See United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979). Although
Razzoli does not identify why a hearing was necessary, our review of the record indicates that
a hearing was sought because Razzoli believed that his conviction was the product of false
testimony, and a hearing was necessary to expose “cover ups” that supported a separate civil
claim. As Razzoli does not explain how either of these allegations, if true, had any bearing on
sentencing, the district court did not abuse its discretion in denying the request for a hearing.
See United States v. Ghailani, 733 F.3d 29, 54–55 (2d Cir. 2013) (reviewing district court’s
decision not to hold evidentiary hearing at sentencing for abuse of discretion).
4
Seventh, Razzoli’s objections to the Presentence Investigation Report lack merit as there
is no indication those purported inaccuracies were relevant to sentencing. Cf. United States
v. McDavid, 41 F.3d 841, 843–44 (2d Cir. 1994) (“[A] judge’s material misapprehension of
fact is ground for vacating a sentence, because it may constitute a denial of due process.”
(emphasis added)).
Finally, Razzoli argues that the district court improperly denied his request to subpoena
witnesses and certain videotapes for consideration at sentencing. Razzoli has not explained
the import of these witnesses and video footage or demonstrated how they would have affected
sentencing. Insofar as Razzoli challenges the denial of his request to subpoena witnesses for
trial, the district court considered each potential witness and determined that the bulk of the
individuals had no information related to the triable issues. Accordingly, we find no abuse of
discretion in this decision. See United States v. Stewart, 433 F.3d at 310–11.
We have reviewed Razzoli’s remaining arguments and find them to be without merit.
For the foregoing reasons, we AFFIRM the judgment of conviction of the district court entered
on January 14, 2013.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5