1

 The Clerk of the court is directed to amend the caption as above. 

10-4883-cr (L)

United States v. Curanovic

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 for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York the 16th 2

3 day of January, two thousand thirteen.

4

5

6 Present: PIERRE N. LEVAL,

7 ROSEMARY S. POOLER,

8 REENA RAGGI,

9 Circuit Judges.

10 _____________________________________________________

11

12 UNITED STATES OF AMERICA,

13

14 Appellee,

15

16 -v- 10-4883-cr(L); 10-5317-cr(con); 

17 11-257-cr(con); 11-3327-cr(con)

18

CHRISTOPHER CURANOVIC, JOHN FRANZESE, JOSEPH DIGORGA1 19 ,

20

21 Defendants-Appellants.

22 _____________________________________________________

23

24 Appearing for Appellants: Robert A. Culp, Garrison, NY, for Christopher Curanovic

25 Richard B. Lind, New York, NY, for John Franzese

26 Raymond L. Colon, New York, NY, for Joseph DiGorga

27

28 Appearing for Appellee: Rachel J. Nash, Assistant United States Attorney for the Eastern

29 District of New York (Loretta E. Lynch, U.S. Attorney; Amy

30 Busa, Cristina M. Posa, Assistant United States Attorneys, on the

31 brief) Brooklyn, NY

32
2

1 Appeal from the United States District Court for the Eastern District of New York 

2 (Cogan, J.).

3

4 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

5 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

6

7 Christopher Curanovic appeals from his convictions on racketeering conspiracy in

8 violation of 18 U.S.C. § 1962(d); Hobbs Act robbery conspiracy, in violation of 18 U.S.C. §

9 1951(a); the unlawful possession of a firearm in connection with that robbery, in violation of 18

10 U.S.C. § 924(c)(1)(A)(i); extortionate extension and collection of credit and conspiracy to

11 commit those crimes, in violation of 18 U.S.C. § 892(a) and 894(a)(1); and extortion and

12 extortion conspiracy in violation of 18 U.S.C. § 1951(a). Curanovic was sentenced principally to

13 114 months’ imprisonment and five years supervised release, along with restitution in the

14 amount of $2,000. Joseph DiGorga appeals from his convictions on one count of racketeering

15 conspiracy in violation of 18 U.S.C. § 1962(d); along with extortionate collection of credit

16 conspiracy and extortion conspiracy. He was sentenced to concurrent terms of 51 months’

17 imprisonment and three years supervised release. John Franzese appeals from his convictions on

18 racketeering conspiracy, extortion conspiracy, extortionate extension of credit conspiracy and

19 extortionate collection of credit conspiracy. Franzese was sentenced to concurrent terms of 96

20 months imprisonment and three years’ supervised release. We assume the parties’ familiarity

21 with the underlying facts, procedural history, and specification of issues for review.

22

23 Defendants argue that the district court committed plain error in admitting transcripts of

24 conversations among non-defendants recorded by cooperating witnesses, including government

25 exhibits 211E, 211F, 213 and 228. We reject the government’s assertion that the conversations

26 included no inadmissible hearsay and were admissible as background. We agree with the

27 defendants the district court should not have admitted the transcripts into evidence. However,

28 with respect to exhibits 211E, 211F, and 228, the district court reasonably found that none of the

29 defendants timely objected to the admission of these exhibits. Defendants were required to object

30 to exhibits 211E and 211F at the time they were admitted, see Fed. R. Evid. 103(a). The

31 defendants were obligated to object to exhibit 228 once it appeared that the government was

32 offering the evidence for more than background, the limitation agreed to before trial, see Fed. R.

33 Evid. 103 advisory committee’s notes (“If the court changes its initial ruling, or if the opposing

34 party violates the terms of the initial ruling, objection must be made when the evidence is offered

35 to preserve the claim of error.”). Instead, defendants waited until after the government rested its

36 case to object. 

37

38 This failure to timely object limits our review to one for plain error. United States v.

39 Diaz, 176 F.3d 52, 83 (2d Cir. 1999). To constitute plain error, “there must be (1) error, (2) that

40 is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court

41 may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously

42 affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United

43 States, 520 U.S. 461, 466-67 (1997) (citations, internal quotation marks, and alterations omitted). 

44 Defendants’ challenge to exhibits 211E, 211F, and 228 fails the plain error test because any

45 evidentiary error did not impugn the fairness or integrity of the trial. As for exhibit 213, the

46 government conceded that defendants timely objected to its admission, and thus we review for

47 harmless error. Defendants’ challenge fails the harmless error test because, in light of the other
3

1 record evidence of guilt, admission of exhibit 213 did not have a “substantial and injurious effect

2 or influence in determining the jury’s verdict.” United States v. Estrada, 430 F.3d 606, 622 (2d

3 Cir. 2005) (internal quotation marks omitted). 

4

5 We find no grounds for overturning Curanovic’s conviction for use of a firearm during

6 the commission of a robbery. In cases where a gun is not recovered, the government may be

7 able to make out its case that a gun was used based on eyewitness testimony. United States v.

8 Jones, 16 F.3d 487, 490 (2d Cir. 1994). The testimony offered here more than satisfied the

9 government’s burden. Moreover, we find no abuse of discretion in the district court’s decision

10 not to allow Curanovic’s proposed expert witness to testify. 

11

12 We have examined the remainder of the arguments raised by defendants and find them to

13 be without merit. The district court did not abuse its discretion in the plethora of evidentiary

14 rulings challenged by defendants. Moreover, defendants were not entitled to psychological

15 evaluations and reports of the United States Marshal Service generated as part of the Marshal

16 Service's Witness Security Program. The district court committed no errors in sentencing.

17 Accordingly, the judgment of the district court hereby is AFFIRMED.

18

19

20 FOR THE COURT:

21 Catherine O’Hagan Wolfe, Clerk

22