1 14-2986-cr(L) United States v. Riccardi and Grasso UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 26 th day of June, two thousand fifteen. PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, REENA RAGGI, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. Nos. 14-2986-cr(L) 14-3018-cr(Con) RICHARD RICCARDI, LOUIS GRASSO, AKA Ronnie Petrino, AKA Luigi Grasso, Defendants-Appellants.

-------------------------------------- -------------------------------- APPEARING FOR APPELLANTS: SUSAN G. KELLMAN (Ezra Spilke, Law Offices of Ezra Spilke, PLLC, Brooklyn, New York, on the brief ), Law Offices of Susan G. Kellman, Brooklyn, New York, for Richard Riccardi. ROBERT A. SOLOWAY, Rothman, Schneider, Soloway & Stern LLP, New York, New York, for Louis Grasso.2 APPEARING FOR APPELLEE: SUSAN CO RKERY (Nicole M. Argentieri, Darren A. Laverne, Ryan Harris, on the brief ), Assistant United States Attorneys, for Kelly T. Currie, Acting United Stat es Attorney for the Eastern District of New York, Brooklyn, New York. Appeal from judgments of the United States District Court for the Eastern District of New York (John Gleeson, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgments entered on A ugust 5, 2014, and Au gust 6, 2014, are
AFFIRMED. Defendants Richard Riccardi and Louis Grasso stand convicted, after a joint trial, of robbery conspiracy and robbery, see 18 U.S.C. § 1951(a), and related firearms offenses causing death, see id. § 943(c)(1)(A), (j)(1). Bo th defendants argue that the district court (1) plainly erred in instructing the jury on th e robbery counts, and (2) abused its discretion by admitting evidence of un charged crimes pursuant to Fed. R. Evid. 404(b). Grasso also argues that the district court abused its disc retion by initially denying Grasso’s requests for additional defense funds pursuan t to the Criminal Justice Act of 1964 (“CJA”). See 18 U.S.C. § 3006A(e)(1). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we refe rence only as necessary to ex plain our decision to affirm.
1. Grasso’s Requests for CJA Funds Grasso argues that Judge Johnson, to w hom this case was originally assigned, committed reversible error in denying CJA funding for an in vestigator, paralegal, and3 associate attorney. See United States v. Ba h, 574 F.3d 106, 118 (2d Cir. 2009) (“The decision to grant or deny [CJA] funding . . . is committed to the disc retion of the district court.”). This argument merits little disc ussion because even if funds were improperly denied initially, the error wa s rendered harmless by Judge Gleeson’s subsequent grant of funds, along with a continuance of trial. See United States v. Sa lameh, 152 F.3d 88, 118 (2d Cir. 1998) (finding no error where district court initia lly denied request for CJA funds but later reconsidered and granted request in full). Grasso never argued that the continuance ordered was inadeq uate, nor does he now demo nstrate any concrete harm stemming from the delay in funding. Accordin gly, we “perceive no prejudice” from the initial denial of funds and, thus, “no ba sis for reversal” on this ground. Id.
2. Jury Instructions As defendants concede, because they did not object in the district court to the jury instructions they now challenge on appeal, our review is limited to plain error. See Fed. R. Crim. P. 30(d), 52(b); United States v. No uri, 711 F.3d 129, 138 (2d Cir. 2013). Under this standard, defendants must demonstrate (1 ) error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) calling into question the fairness, integrity, or public reputation of judicial proceedings. See United States v. Marcus, 560 U.S. 258, 262 (2010). They cannot ca rry this burden here. Defendants submit that the district court failed explicitly to define “robbery” by reference to two statutory elements: (1) that personal property was unlawfully taken or obtained from the person or in the presence of another; and (2) that the property was taken4 or obtained against the victim’s will, by actual or threatened force, violence, or fear of injury. See 18 U.S.C. § 1951(b)(1 ). Instead, the district court instructed the jury that “to prove the crime of robbery charged in Coun t Two, the government must establish two elements beyond a reasonable doubt. First, that the defendant or someone he aided and abetted robbed James Donovan at gunpoint. Second, that the ro bbery in some way obstructed or affected interstate commerce.” Riccardi App. 458–59. A jury instruction is erroneous if it fails to convey to the jury an essential element of the charged offense. See United States v. Quinones, 511 F.3d 289, 315 (2d Cir. 2007). Here, any error the district court committed by failing to defi ne “robbed” to include the unlawful taking of personal property from anothe r does not satisfy prongs three and four of plain error review because the evidence that property was taken from Donovan was “overwhelming and essentially uncontroverted. ” United States v. Gomez, 580 F.3d 94, 100–01 (2d Cir. 2009); see Neder v. Unit ed States, 527 U.S. 1, 18 (1999) (holding omission of element in jury instructions ha rmless where it is “clear beyond a reasonable doubt that a rational jury woul d have found the defendant guilty absent the error”); accord United States v. Nouri, 711 F.3d at 140 (“Where the error is an instru ction that incorrectly omitted an element of the offense, we will sust ain the conviction if we find that the jury would have returned the same verdict beyon d a reasonable doubt.”) (internal quotation marks omitted). As for the force requirement, the instruc tion adequately communicated that element to the jury by requiring a findi ng that Donovan had be en “robbed . . . at gunpoint.” This5 precluded a verdict of guilty base d on “any type of theft regard less of the threat or use of force.” Riccardi Br. 28. Thus, although th e instruction did not expressly track the statutory language, it “adequately inform[ed] the jury on the law.” United States v. Al Kassar, 660 F.3d 108, 126 (2d Cir. 2011) (int ernal quotation marks omitted). See United States v. Crowley, 318 F.3d 401, 415 (2d Cir. 2003) (observi ng that “this Court has never remotely suggested that it is mandatory for a trial court to use [particular] language in instructing a jury, or indeed that a trial court is required to go beyond [a] perfectly understandable English word”); see also United States v. Ganim, 51 0 F.3d 134, 142 (2d Cir. 2007) (“No particular form of words is required, so long as taken as a whole the instructions correctly convey the required legal principles.” (internal quotation marks omitted)). We thus identify no plain error in the district court’s robbery instruction.
3. Uncharged Crimes Evidence Defendants fault the district court’s admission of evidence that (1 ) over a year after the charged robbery, law enforcement recovere d one 9-millimeter fire arm, one .38 caliber revolver (the same type of guns used in the robbery), and related ammunition from Riccardi’s residence; (2) Riccardi, Grasso, and cooperating witne ss Hector Pagan had previously engaged in marijuan a trafficking together; and (3) prior to the charged robbery, Pagan, Grasso, and others had robbed a marijuan a trafficker in Brookl yn. We review the district court’s evidentiary rulings for abuse of discretion, see United States v. Nektalov, 461 F.3d 309, 318 (2d Ci r. 2006), and we identify no such abuse here. Rule 404(b) permits the admission of unc harged crimes, wrongs, or other acts for6 purposes other than proving pr opensity. See Fed. R. Evid. 404(b); United States v. LaFlam, 369 F.3d 153, 15 6 (2d Cir. 2004) (adopting inclusio nary approach to Rule 404(b) evidence). Nevertheless, Rule 403 requires the exclusion of relevant evidence if its “probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. a. Gun and Ammunition Evidence The district court acted well within its discretion in concludi ng that the guns and ammunition were not being offere d to prove propensity but, rath er, as direct evidence of the charged robbery crimes as well as corro boration for Pagan’s testimony that Riccardi had provided him with the guns he used to commit the robbery. See United States v. Eppolito, 543 F.3d 25, 47 (2d Ci r. 2008) (“Where, as here, the indictment contains a conspiracy charge, uncharged acts may be admiss ible as direct evidence of the conspiracy itself.” (internal quotation marks omitted)); see also United States v. Scott, 677 F.3d 72, 81 (2d Cir. 2012) (“We have consis tently held other act eviden ce admissible to corroborate crucial prosecution testimony.” (internal quotation marks a nd alteration omitted). The government’s theory at trial was that Riccardi supplied the guns used in the robbery—the crucial fact disputed by Riccardi. Thus , Riccardi’s later possession of guns and ammunition in his home was direct evidence supporting this theory. Nor did the district court err in concl uding that the probative value of the gun evidence outweighed any unfair prejudice unde r Rule 403. Among other things, “the evidence did not involve conduct more serious than the ch arged crime.” United States v.7 Williams, 205 F.3d 23, 34 (2d Cir. 2000). Moreover, the district court’s careful and repeated limiting instructions bo th at the time the gun evid ence was admitted and in the final jury charge were sufficien t to ensure against any unfair prejudice. See United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002) ( noting that 404(b) prejudice “can be cured with proper instructions, and juries are presumed to follow their instructions” (internal quotation marks omitted)). b. Marijuana Trafficking and Prior Robbery Evidence Evidence of prior marijuan a trafficking by Riccardi, Grasso, and Pagan and of robbery by Pagan and Gr asso was properly admitted “to in form the jury of the background of the conspiracy charged, in order to help explain how the illegal relationship between participants in the crime develo ped, [and] to explain the mutual trust that existed between coconspirators.” United States v. Diaz, 1 76 F.3d 52, 79 (2d Cir. 19 99) (internal quotation marks omitted); accord United States v. Merca do, 573 F.3d 138, 14 1 (2d Cir. 2009). Grasso argues that because th e jury heard that Pagan, Ric cardi, and Grasso had met while participating in a prior extortion conspiracy , the challenged mariju ana/robbery evidence was impermissible “piling on” that “served only to augment Grasso’s ostensible criminal propensities in the minds of jurors.” Gras so Br. 40. While this argument was properly weighed by the district court, we cannot conc lude that rejection of the argument was an abuse of discretion. In a co nspiracy as brief as this on e—only two months passed between the meeting at which the charged robbery sche me was first discussed and the executing of the robbery—the challenged 404 (b) evidence permitted th e jury to understand the8 longstanding nature of the coco nspirators’ relationship of trus t and, therefore, their ability quickly to enter into the char ged conspiracy and to execute the robbery. Finally, the district court’s clear limiting inst ructions ensured against any unfair prejudice. See United States v. Downing, 297 F.3d at 59. Accordingly, we identify no error warranting reversal. 4. Conclusion We have considered defendants’ remaini ng arguments and conclude that they are without merit. Therefore, we AFFIRM the judgments of the district court.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court