United States v. Gaska , 420 F. App'x 60 ( 2011 )

10-1539-cr
United States v. Gaska
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of April, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 DEBRA A. LIVINGSTON,
10 Circuit Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-1539-cr
17
18 MIROSLAW GASKA,
19 Defendant-Appellant.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Aaron M. Goldsmith, Fasulo,
23 Shalley & DiMaggio, LLP, New
24 York, New York (Jerzy Sokol,
25 Brooklyn, New York, on the
26 brief).
27
28 FOR APPELLEE: Rajit S. Dosanjh, Assistant
29 United States Attorney (Daniel
30 C. Gardner, Assistant United
1 States Attorney, on the brief),
2 for Richard S. Hartunian, United
3 States Attorney for the Northern
4 District of New York, Syracuse,
5 New York.
6
7 Appeal from a judgment of the United States District
8 Court for the Northern District of New York (Sharpe, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 Miroslaw Gaska was convicted, after a jury trial in the
15 United States District Court for the Northern District of
16 New York (Sharpe, J.), of one count of smuggling aliens for
17 financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii),
18 and one count of transporting aliens for financial gain in
19 violation of 8 U.S.C. § 1324(a)(1)(A)(ii), 1324(a)(1)(B)(i).
20 Gaska was sentenced principally to the mandatory minimum
21 sentence of 36 months’ imprisonment on the smuggling count
22 and 10 months’ imprisonment on the transporting count, to be
23 served concurrently.
24
25 On appeal, Gaska contends that (1) the government’s
26 questioning of trial witnesses was improper and caused him
27 prejudice warranting a remand; (2) insufficient evidence
28 supports the jury’s verdict; and (3) the district court
29 committed procedural error in imposing his sentence. We
30 assume the parties’ familiarity with the underlying facts,
31 the procedural history, and the issues presented for review.
32
33 Gaska did not object to any of the questions he now
34 contends caused him undue prejudice and entitle him to a new
35 trial. We review the alleged errors committed by the
36 prosecution for plain error and find none. See United
37 States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010). This
38 Court allows leading questions when appropriate to develop
39 the testimony of a witness, especially when the native
40 language of the witness is not English. United States v.
41 Ajmal, 67 F.3d 12, 16 (2d Cir. 1995). None of the questions
42 asked by the prosecutor during Gaska’s trial affected the
43 “fairness, integrity or public reputation of [the] judicial
44 proceeding.” Marcus, 628 F.3d at 41. In short, the
45 prosecutor did not err in his questioning at trial and there
46 certainly was no plain error.
47
2
1 A “defendant challenging his verdict on sufficiency
2 grounds bears a heavy burden.” United States v. Tian, 339
3 F.3d 143, 150 (2d Cir. 2003) (internal quotation marks
4 omitted). “We must affirm a conviction if, viewing all the
5 evidence in the light most favorable to the prosecution, any
6 rational trier of fact could have found the essential
7 elements of the crime beyond a reasonable doubt.” Id.
8 (internal quotation marks omitted). In reviewing
9 sufficiency challenges, “we defer to the jury’s
10 determination of the weight of the evidence and the
11 credibility of the witnesses, and to the jury’s choice of
12 the competing inferences that can be drawn from the
13 evidence.” Id. (internal quotation marks omitted).
14 Contrary to Gaska’s assertions, based on the evidence
15 adduced at trial, “a rational trier of fact could find
16 beyond a reasonable doubt” that Gaska possessed the
17 requisite mens rea to be found guilty of the crimes for
18 which he was convicted. United States v. Kim, 435 F.3d 182,
19 185 (2d Cir. 2006) (per curiam).
20
21 Sufficient direct and circumstantial evidence supported
22 Gaska’s conviction: (1) Szabranski testified that he told
23 Gaska that Biernacki would be entering the country
24 illegally; (2) Szabranski told Gaska that he would receive
25 more than half of the $1,500 fee Biernacki offered to pay
26 him; (3) Border Patrol agents testified that Gaska was
27 nervous when questioned; (4) On their drive upstate, Gaska
28 and Szabranski made contact with a smuggler; and (5) Gaska
29 and Szabranski picked up the individuals they were smuggling
30 and transporting late at night. See United States v.
31 Gaskin, 364 F.3d 438, 461 (2d Cir. 2004) (observing element
32 of reckless disregard or knowledge “often can be proved only
33 by circumstantial evidence”). Deferring to the jury’s
34 assessments of witness credibility, United States v. Payne,
35 591 F.3d 46, 60 (2d Cir. 2010), we reject Gaska’s
36 sufficiency challenge.
37
38 Gaska contends that his sentence is marked by
39 procedural error because the court failed to adequately
40 explain its reasons for the concurrent sentence of 10
41 months. Gaska did not challenge his sentence in the
42 district court. Accordingly, we review the district court’s
43 sentencing procedure for plain error. United States v.
44 Keller, 539 F.3d 97, 100 (2d Cir. 2008). A sentencing court
45 commits procedural error when it fails to provide an
46 adequate explanation for the sentence imposed. United
47 States v. Cavera, 550 F.3d 180, 190, 193 (2d Cir. 2008) (in
3
1 banc). Here, however, any inadequacy in the court’s
2 statement of reasons would be harmless because the 10 month
3 sentence for which the court failed to explain its reasons
4 was concurrent with the longer statutorily mandated minimum
5 sentence. See United States v. Chen, 127 F.3d 286, 292 (2d
6 Cir. 1997). “[B]ecause a remand cannot produce a lesser
7 sentence,” id., there was no plain error in the sentencing
8 procedure employed by the district court, see United States
9 v. Villafuerte, 502 F.3d 204, 208-09 (2d Cir. 2007), and no
10 remand is warranted.
11
12 Finding no merit in any of Gaska’s arguments presented
13 on appeal, we hereby AFFIRM the judgment of the district
14 court.
15
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
19
4