United States v. Gigliotti

UNITED STATES OF AMERICA, Appellee, v. ELEONORA GIGLIOTTI, FRANCO FAZIO Defendants, v. GREGORIO GIGLIOTTI, ANGELO GIGLIOTTI, Defendants-Appellants.

17-1541

17-2166

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

March 2, 2021

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 2^nd day of March, two thousand twenty-one.

Present: DEBRA ANN LIVINGSTON, Chief Judge, JOSÉ A. CABRANES, GERARD E. LYNCH, Circuit Judges.

For Appellee:

KEITH D. EDELMAN, Jo Ann M. Navickas, Margaret E. Gandy, for Seth D. DuCharme, Acting United States Attorney, Eastern District of New York, Brooklyn, NY.

For Defendant-Appellant Gregorio:

SCOTT BRETTSCHNEIDER, Forest Hills, NY.

For Defendant-Appellants:

BRENDAN WHITE, White & White, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Dearie, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendants-Appellants Angelo Gigliotti ("Angelo") and Gregorio Gigliotti ("Gregorio") (collectively, "Defendants-Appellants") appeal from their convictions in the United States District Court for the Eastern District of New York entered on June 27, 2017¹ and April 24, 2017,² respectively. Defendants-Appellants were each convicted of one count of conspiracy to import cocaine, 21 U.S.C. §§ 963, 960(b)(1)(B)(ii); two counts of importation of cocaine, 21 U.S.C. §§ 952(a), 960(b)(1)(B)(ii); one count of conspiracy to possess cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II); and one count of attempted possession of cocaine, 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II). Gregorio was also convicted of unlawful use and possession of firearms, 18 U.S.C. § 924(c)(1)(A)(i), and possession of a defaced firearm, 18 U.S.C. §§ 922(k), 924(a)(1)(B). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

A. Batson Issue

We review de novo a district court's determination that a criminal defendant's discriminatory use of gender-based peremptory challenges violated the Constitution. United States v. Martinez, 621 F.3d 101, 106 (2d Cir. 2010). In doing so, we afford "great deference" to the court's assessments of the credibility of an attorney's explanations for a peremptory challenge, Davis v. Ayala, 576 U.S. 257, 271 (2015) (internal quotation marks omitted), reviewing only for clear error, Rice v. Collins, 546 U.S. 333, 338 (2006). A district court's determination of whether a party has established a prima facie case under Batson is, moreover, subject to abuse of discretion review.³ Martinez, 621 F.3d at 109; Batson v. Kentucky, 476 U.S. 79 (1986).

Defendants-Appellants contend that the district court erred in concluding that their use of peremptory challenges violated Batson because (1) the government's Batson objection was not timely; (2) the district court erroneously rejected the defense's facially neutral reasons for exercising the strikes; and (3) the district court reseated Juror No. 16 even though the government had not objected to defense counsel's justifications for striking this juror. We disagree.

First, we discern no error, much less an abuse of discretion, in the district court's determination to entertain the government's Batson objection while jury selection was still underway. See Martinez, 621 F.3d at 109-10. The government made its objection minutes after the end of the peremptory strikes and while the court was still in the process of screening potential alternate jurors. See McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996); United States v.Biaggi, 909 F.2d 662, 679 (2d Cir. 1990). The district court then instructed counsel to be prepared to offer reasons for striking the jurors at a hearing later the same day. This timing in no way prejudiced defense counsel, nor was defense counsel likely to have forgotten its reasons for exercising the peremptory strikes in the intervening period. Cf. McCrory, 82 F.3d at 1247. Moreover, because the struck jurors were still in the courthouse, had not yet been excused, and were able to report back to the court, a clear remedy was still available at the time of the government's objection.⁴

Second, the district court did not err in applying the three-part burden-shifting framework for evaluating Batson challenges. The district court found that the government had established a prima facie case of gender discrimination based on defense counsel's use of all ten of its peremptory strikes against men. The court then determined that defense counsel had offered non-discriminatory reasons for challenging each juror, except for Juror No. 16. in relation to this juror, defense counsel had suggested that it made the strike based on "gut" after "discussion with [the] client." We agree with the district court that this explanation was insufficient to rebut the prima facie showing of discriminatory intent in defense counsel's strike of Juror 16. See Brown v. Kelly, 973 F.2d 116, 121 (2d Cir. 1992) ("The fact that . . . explanations in the face of a Batson inquiry are founded on these impressions does not make them unacceptable if they are sufficiently specificto provide a basis upon which to evaluate their legitimacy."). At the third step of the burden-shifting framework, the district court further found defense counsel's explanations not credible with respect to the strike of Juror No. 3. Defense counsel had suggested that it challenged Juror No. 3 because this juror "went to verdict in Suffolk County," "had some law enforcement background," and had a "fairly pronounced Spanish accent." The district court found this reasoning unpersuasive because, inter alia, the record did not reflect that this juror had any law enforcement background, or that he had served on a criminal jury.⁵ While Defendants-Appellants now point to record evidence that Juror No. 16 had an aunt in law enforcement, defense counsel did not raise this rationale before the district court, and there is no reason to believe that the district court failed to review the entire record.

Third, the district court did not abuse its discretion by reseating Juror Nos. 3 and 16 to remedy the Batson violation. At the third step of the burden-shifting framework, the district court was required to determine whether the government had established purposeful discrimination by considering "all relevant circumstances surrounding a defendant's prima facie showing of discrimination." Jordan v. LeFevre, 206 F.3d 196, 201 (2d Cir. 2000). After concluding that Jurors Nos. 3 and 16 had indeed been struck due to discrimination, the district court proceeded to fashion an appropriate remedy. See Georgia v. McCollum, 505 U.S. 42, 49 (1992) ("Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same—in all cases, the juror is subjected to open and public . . . discrimination."). The jury clerk called back all of the excused jurors and provided a neutral explanation, thereby avoiding any appearance of irregularity.Accordingly, we conclude that the district court did not clearly err in granting the government's Batson challenge and reseating Jurors Nos. 3 and 16.

B. Administrative Search

Defendants-Appellants next argue that evidence obtained from a search of their restaurant should have been suppressed because law enforcement, in coordination with New York State Liquor Authority ("NYSLA"), carried out a pretextual administrative search of the restaurant prior to obtaining a search warrant. "On appeal from a district court's ruling on a motion to suppress evidence, we review legal conclusions de novo and findings of fact for clear error." United States v. Purcell, 967 F.3d 159, 178 (2d Cir. 2020) (internal quotation marks omitted).

The independent source doctrine "permits the admission of evidence seized pursuant to an unlawful search if that evidence would have been obtained through separate, lawful means." United States v. Vilar, 729 F.3d 62, 83 n.19 (2d Cir. 2013); Segura v. United States, 468 U.S. 796, 814 (1984). This doctrine applies where: (1) the warrant is supported by probable cause "derived from sources independent of the illegal entry;" and (2) the decision to seek the warrant was not "prompted by information gleaned from the illegal conduct." United States v. Johnson, 994 F.2d 980, 987 (2d Cir. 1993). When considering the second prong, the "relevant question is whether the warrant 'would have been sought even if what actually happened had not occurred.'" Id. (quoting Murray v. United States, 487 U.S. 533, 542 n.3 (1988)).

Here, assuming arguendo that the administrative search was improper, suppression of the evidence obtained from the restaurant search was not required because the search warrant later obtained by law enforcement was supported by independent sources, and the administrative search did not prompt the warrant application. As the district court concluded, the search warrant application relied on more than six months' worth of wiretaps carried out prior to the NYLSAinspection. That investigation had revealed that Defendants-Appellants were importing cocaine, and that there was a fair probability that contraband or evidence of a crime would be found in the restaurant. Law enforcement had further seized 55 kilograms...