Opinion
No. 07-0256-cr.
June 2, 2010.
Appeal from the United States District Court for the Southern District of New York (Keenan, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court be and hereby is AFFIRMED.
Robin C. Smith, Brooklyn, NY, for Defendant-Appellant.
Joshua A. Goldberg, Assistant United States Attorney (Celeste L. Koeleveld, Shane T. Stansbury, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
SUMMARY ORDER
Defendant Victor Lorenzana appeals from a judgment of conviction entered January 23, 2007 (Keenan, J.), following a jury trial, convicting him of conspiring to commit armed robbery and attempted armed robbery of persons engaged in narcotics trafficking; committing Hobbs Act robbery; using, carrying and possessing a firearm during and in relation to a crime of violence or drug trafficking crime; conspiring to distribute and possess with intent to distribute five kilograms and more of cocaine and one kilogram and more of heroin; and money laundering. Lorenzana was sentenced to 87 years' imprisonment, five years' supervised release, and a $900 special assessment. We assume the parties' familiarity with the facts and procedural history of this case.
On appeal, Lorenzana first argues that he was deprived of his right to be present at all material parts of his trial when he was not personally included (although his attorney was present) in side-bars during voir dire and during the district judge's in camera questioning of a juror before deliberation. Even assuming that the sidebars and in camera questioning were material parts of his trial, Lorenzana and his lawyer failed to object to his exclusion and therefore waived any right he had to be present at those parts of his trial. Sec. United States v. Gagnon, 470 U.S. 522, 529, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) ("If a defendant is entitled under Rule 43 to attend certain `stages of the trial' which do not take place in open court, the defendant or his counsel must assert that right at the time; they may not claim it for the first time on appeal."); United, States o. Peterson, 385 F.3d 127, 138-39 (2d Cir. 2004). Lorenzana further contends that his counsel was ineffective in failing to apprise him of what happened during the sidebars and in camera, questioning, and that the district court should have held a hearing on this claim of ineffective assistance. The district court determined that no hearing was necessary, however, based on an affidavit of Lorenzana's trial counsel, the implausibility of Lorenzana's assertion, and its finding that Lorenzana was not credible. We conclude that the district court did not abuse its discretion in so determining. See United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995) ("We will not reverse the . . . refusal to conduct an evidentiary hearing absent an abuse of discretion.").
Lorenzana next argues that the jury instructions regarding the interstate commerce element of the Hobbs Act robbery counts were improper under United States v. Parkes, 497 F.3d 220 (2d Cir. 2007), because the instructions removed that element from the jury's consideration. We agree. In United States v. Gomez, 580 F.3d 94, 98, 100 (2d Cir. 2009), we held that an almost identical instruction was in error. This error, however, is subject to harnless error analysis. We "consider the weight of trial evidence bearing on the omitted element; and if such evidence is overwhelming and essentially uncontroverted, there is no basis for concluding that the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." Id. at 100-01 (quoting United, States v. Guevara, 298 F.3d 124, 126-27 (2d Cir. 2002)). To sustain Lorenzana's conviction, we must determine that the jury would have returned the same verdict beyond a reasonable doubt. See id. at 101.
We conclude that the error here was harmless. Under the Hobbs Act, only "a very slight effect on interstate commerce" need be shown. United, States v. Wilkerson, 361 F.3d 717, 726 (2d Cir. 2004) (internal quotation marks omitted). Here, the government introduced evidence that the victims of one of the robberies sold drugs in Connecticut, New Jersey, and Maryland, and that Lorenzana and his crew used the proceeds of the drug robberies to travel out of state. Moreover, the targeted drug dealers trafficked in cocaine and heroin, drugs that cannot be produced in New York. See Gomez, 580 F.3d at 101-02. Accordingly, we conclude the jury would have returned the same verdict beyond a reasonable doubt.
We have reviewed Lorenzana's remaining arguments and conclude that they lack merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.