United States v. John Vescuso ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 2 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50441
Plaintiff-Appellee, D.C. No. 3:14-cr-02863-W-2
v.
MEMORANDUM*
JOHN PATRICK VESCUSO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted April 10, 2019
Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District
Judge.
John Vescuso appeals his conviction and sentence for conspiracy to commit
theft of government property for his role in a conspiracy to remove and sell scrap
metal from Camp Pendleton Marine Corps Base. After a jury trial, Vescuso was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
convicted of a single count of conspiracy under 18 U.S.C. § 371 and sentenced to
33 months in prison, restitution of $555,640, and forfeiture of $555,640.
1. Vescuso raises a series of challenges to limitations the district court
placed on his ability to impeach witnesses and introduce specific testimony at trial.
First, Vescuso challenges restrictions the district court placed on his ability
to impeach Cecil Garr, a co-defendant and cooperating witness, about a prior
felony conviction. The conviction was more than 15 years-old and did not involve
a crime of dishonesty. The district court did not abuse its discretion in limiting
Vescuso’s ability to impeach Garr, either directly or indirectly, based on this
conviction. See United States v. Bensimon, 172 F.3d 1121, 1125 (9th Cir. 1999).
Second, Vescuso challenges limitations on his ability to cross-examine Garr
based on Garr’s plea negotiations, which we review for abuse of discretion. United
States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007). As a whole, Vescuso was
able to put before the jury that Garr had pled guilty and agreed to cooperate; and,
in exchange for that guilty plea, Garr had received benefits—a lower loss amount,
a lower amount of restitution, dismissal of one criminal count, and the hope of a
favorable sentencing outcome in exchange for his testimony. Because Vescuso was
able to impeach Garr with the general contours of the benefits conferred through
his plea agreement, we cannot say the district court abused its discretion in limiting
impeachment based on specific details of those benefits. Larson, 495 F.3d at 1101.
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Third, Vescuso challenges the district court’s decision to exclude Vescuso’s
proposed sentencing expert, which we review for abuse of discretion. United States
v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000). Because Vescuso was able to
introduce the general contours of Garr’s cooperation agreement, the district court
did not abuse its discretion in excluding the expert’s testimony, which the court
determined would waste time and would be cumulative. See United States v.
Johnson, 297 F.3d 845, 862 (9th Cir. 2002).
Fourth, Vescuso challenges limitations the district court placed on his use of
a videotaped interrogation of Garr by federal investigators. Specifically, Vescuso
sought to introduce videotaped statements by the investigators that a reasonable
jury could have interpreted as the agents strongly pressuring Garr to implicate
Vescuso. Although the district court clearly erred in excluding those statements on
hearsay grounds (since they were not being offered for their truth), Vescuso could
have conveyed their import by more pointed cross-examination of Garr and by
playing for the jury Garr’s videotaped responses to the agents’ questioning.
Although Vescuso’s counsel may have misunderstood the scope of the district
court’s ruling, the district court only excluded the agents’ statements, and Vescuso
was not prevented from using the video to confront Garr with Garr’s own
videotaped statements. Thus, even though the district court’s exclusion of the
agents’ statements was error, the error was harmless. United States v. Torres, 794
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F.3d 1053, 1063 (9th Cir. 2015).
Fifth, Vescuso challenges the district court’s limitation on Vescuso’s
impeachment of Sylvia O’Brien. Vescuso sought to impeach O’Brien by playing a
recorded telephone conversation she had with Garr. Vescuso sought to introduce
the audio of O’Brien’s call with Garr, during O’Brien’s testimony, because Garr’s
statements, according to Vescuso, were lies. The district court suggested counsel
could ask O’Brien about Garr’s answers, but Garr’s statements could not be played
to impeach O’Brien. The district court did not abuse its discretion in limiting
impeachment in this way. Larson, 495 F.3d at 1101.
2. Vescuso next challenges the district court’s decision, over Vescuso’s
objection, to give an “other acts” limiting instruction to the jury. We review the
district court’s formulation of jury instructions for abuse of discretion. United
States v. Lloyd, 807 F.3d 1128, 1165 (9th Cir. 2015). Given that evidence of
Vescuso’s dealings with Garr prior to April 2010—conduct that was allegedly
illegal but uncharged—was introduced at trial, the district court did not abuse its
discretion in giving the “other acts” instruction. See Lloyd, 807 F.3d at 1167;
Comment, Ninth Circuit Model Jury Instruction 2.11 (noting giving instruction,
similar to Model Instruction 4.3, may be appropriate sua sponte).
3. Vescuso next challenges the district court’s denial of his motion for a
new trial based on newly discovered evidence—evidence suggesting that Garr
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received a bribe from one of his superiors at the base. We review that denial for an
abuse of discretion. United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009).
The new evidence here would not likely have resulted in an acquittal. See United
States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005). The district court did not
err in denying the motion or counsel’s request for additional CJA funds.
4. Finally, Vescuso raises a series of challenges to his sentence, the
restitution imposed, and the forfeiture judgment entered against him.
First, we conclude that any Apprendi error that occurred was harmless. See
United States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011). Second, 18 U.S.C. §
3663A imposes a mandatory restitution amount equal to the loss suffered by the
government. This provision controls the amount of restitution imposed on
Vescuso, regardless of the restitution imposed on Garr.
However, we agree with Vescuso that, based on the record before the district
court, the imposition of a forfeiture judgment for the entirety of the loss suffered
by the government, absent a showing that Vescuso actually acquired the entirety of
that amount, was likely incorrect in light of Honeycutt v. United States, 137 S. Ct.
1626, 1632 (2017). We therefore remand to the district court to determine the
amount of money Vescuso “himself actually acquired as the result of the crime,”
id. at 1635, and to amend the forfeiture judgment, if necessary.
AFFIRMED in part; REVERSED and REMANDED in part.
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