18-2228 United States v. Vanhise

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 PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY 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 States Courthou se, 40 Foley Square, in the City of New York, on the 10 th day of January, two thousand twenty.

PRESENT: D ENNIS J ACOBS , S USAN L. C ARNEY , M ICHAEL H. P ARK , Circuit Judges

.

_________________________________________
U NITED S TATES OF A MERICA , Appellee
,
v. No. 18-2228

M ICHAEL V ANHISE , AKA S EALED D EFENDANT 1,
Defendant-Appellant,

G ILBERTO V ALLE , AKA S EALED D EFENDANT 1, R OBERT C HRISTOPHER A SCH , AKA C HRIS , R ICHARD M ELTZ , AKA R ICK , Defendants.

_____________ _______________ _____________
FOR APPELLEE: C OURTNEY L. H EAVEY , Assistant United States Attorney (Won S. Shin, Assistant2 United States Attorney, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, N.Y.

FOR DEFENDANT-APPELLANT: E LIZABETH E. M ACEDONIO , The Law Offices of Elizabeth E. Macedonio, New York, N.Y.

K RISTEN M. S ANTILLO , Gelber & Santillo PLLC, New York, N.Y.

Appeal from a judgment of the United States District Court for th e Southern District of New York (Gardephe, J. ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on July 25, 2018, is
AFFIRMED

. Defendant-Appellant Michael Vanhise (“Vanh ise”) appeals from a judgment entered on July 25, 2018, following a 20 14 jury trial in the United St ates District Court for the Southern District of New York (Gardephe, J. ), convicting him of violating 18 U.S.C. § 1201(c) by conspiring to kidnap members of his family. On August 8, 2017, the District Court denied Vanhise’s post-trial motions s eeking a judgment of acquittal or, in the alternative, a new trial, unde r Federal Rules of Criminal Pr ocedure 29 and 33. On July 24, 2018, the District Court sentenced Vanhise pr incipally to seven years’ imprisonment. On appeal, Vanhise challenges the sufficiency an d weight of the supporting evidence and the denial of his motion for a new trial, which he based primarily on an argument of improper joinder. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, to wh ich we refer only as necessary to explain our decision to affirm the judgment of convicti on and the order denying Vanhise’s post-trial
motions.3 DISCUSSION

I. Sufficiency of the Evidence
We review a sufficiency of the evidence challenge de novo , “but defendants face a heavy burden, as the standard of re view is exceedingly deferential.” United States v. Baker , 899 F.3d 123, 129 (2d Cir. 2018) (internal quota tion marks omitted). A judgment of acquittal “can be entered ‘only if the evidence that the defendant committed the crime alleged is nonexistent or so meager’ that no ‘rational tr ier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. Taylor , 816 F.3d 12, 22 (2d Cir. 2016) (quoting United States v. Espaillet , 380 F.3d 713, 718 (2d Cir. 2004)). As we said in
United States v. Santos , “in a conspiracy case, deference to the jury’s findings is especially important . . . because a conspiracy by its very na ture is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.” 541 F.3d 63, 70 (2d Cir. 2008) (alteration in original) (internal quotation marks omitted)). The jury found Vanhise guilty of conspiring with his co-defenda nts, Richard Meltz (“Meltz”) and Christopher Asch (“Asch”), to kidnap members of Vanhise’s family. Vanhise argues that the evidence is in sufficient to show either a ge nuine agreement or his criminal intent. We are not persuaded.
First, Vanhise argues that insufficient ev idence was adduced at trial for the jury to find a genuine agreement among Vanhise and hi s co-conspirators to kidnap members of Vanhise’s family. See United States v. Iennaco , 893 F.2d 394, 398 (D.C. Cir. 1990) (“Exploratory and inconclusive or preliminary discussions an d negotiations are not sufficient to establish an agreement.” (internal quotation marks omitted)). Vanhise conten ds that the District Court rested its sufficiency decision on evidence suggesting that he met with Asch and discussed the future crime. According to Vanhise, th e in-person meeting occurred in Spring 2011, “nearly a year before March 2012,”—when Vanhise and Asch began emailing about kidnapping members of Vanhise’s family. Appella nt’s Br. at 39-40. Vanhise argues that the District Court incorrectly found that his in -person meeting with As ch in Trenton, New4 Jersey took place in early 2012. Vanhise contends, therefore, that the timing of the Trenton meeting, over a year in advance of the damning emails, made it “insufficient to establish an agreement” between Vanhise and his co-defen dants to kidnap his family members. Id

. The date of the Trenton meeting, however , is not the only piece of evidence the Government adduced to establish an agreement. As the Court also noted, the Government “presented evidence of email conversations, phone conversations, and in-person meetings among Asch, Meltz, and [Vanhise] in which they devised a plan to kidnap [Vanhise’s] family members and prepared to do so.” United States v. Asch , 775 F. App’x 15, 17 (2d Cir. 2019). The in-person meeting, even assuming Vanhise is correct that it occurred one year ahead of conversations discussing plans to kidnap Vanh ise’s family members, still tended to support the reality of the agreement, in the face of a de fense that these individuals were no more to each other than companions in fantasy. We ca nnot conclude that no rational jury could have found that Vanhise, Asch, and Meltz conspire d to kidnap one or more members of the Vanhise family.
Second, Vanhise contends that the G overnment’s evidence did not provide a sufficient basis for concluding that he had th e specific intent to co mmit the object of the conspiracy—the kidnapping. Vanhise argues that this case is like United States v. Valle , where
we affirmed a district court’s conclusion th at the defendant did not have the requisite criminal intent and rather was fantasizing a bout committing a crime. 807 F.3d 508, 516-23 (2d Cir. 2015). In Valle , this Court concluded that the se paration between Valle’s online and offline worlds was persuasive evidence that the defendant’ s schemes were only fantasies. Id. at 517 (“[T]he fantastical elements of the chat s combined with the impersonal nature of the interactions provides pervasive and unmistakable indicia of deep fantasy.”). Here, however,
unlike in Valle , Vanhise’s interactions with his co-conspi rators were not limited to his online persona; instead, he formed real-world re lationships with them . They knew about each5 other’s lives, their real identiti es, and (as the District Court laid out in detail) were engaged in real-life interactions—or so a jury could rationally have found. 1

Vanhise’s own statements also evinced hi s intent to commit the kidnapping. For example, he repeatedly professed to both his co -conspirators his desire to abduct, imprison, hang, rape, torture, and kill his intended vict ims. In addition, when Vanhise discussed the rape and torture of his family members with an individual named “D N” online, Vanhise said that he was “very serious about this” and “want[ed] reality,” not fantasy. App’x at 550.
Vanhise also insisted that he wanted his wife “raped tortured and ha nged” and demanded to
know whether “D N” was “interested for real.” Id . We conclude that on this record, a rational jury could convict Vanhise on Count One, as this jury did.

II. Weight of the Evidence

This court reviews denials of Rule 33 motions for abuse of discretion. United States v.
Scotti , 47 F.3d 1237, 1241 (2d Cir. 1995). Rule 33 confers “broad discretion upon a trial court to set aside a jury verdict and order a new tria l to avert a perceived miscarriage of justice,” United States v. Sanchez , 969 F.2d 1409, 1413 (2d Cir. 1992), and, unlike a Rule 29 challenge, courts may grant a Rule 33 motion where the ve rdict is contrary to “the weight of the evidence,” United States v. Ferguson , 246 F.3d 129, 136 (2d Cir. 2001).
Here, for substantially the same reasons as are set forth by the District Court in its thorough and thoughtful decision, we conclude that the jury’s verdict against Vanhise is not contrary to the weight of th e evidence. The Government offe red substantial evidence that Vanhise and his co-conspirators formed a ge nuine conspiratorial agreement; that they intended to commit a kidnapping; and that they participated in overt acts in furtherance of the charged conspiracy. See United States v. Persico , 645 F.3d 85, 110 (2d Cir. 2011) (viewing

1 As we explained in Asch , 775 F. App’x at 18, the evidence here went far beyond internet chats and emails. Instead, Vanhise and his co-conspirators met in person. Vanhise used his real name and shared details of hislife with his co-conspirators. While Valle’s communications online were replete with lies, Vanhise and his coconspirators shared truthful inform ation about their lives. For instance, Vanhise to ld Asch in August 2012 that he was getting divorced, and that his wife was staying with her sister. He also to ld Asch that his wife was pregnant and that she had previously attempted suicid e. All of this information was true and could have reasonably suggested to the jury th at Vanhise understood Asch and Meltz to be his co-conspirators in a criminal plot that he intended to commit.6 the evidence “as a whole” to determine that the district court did not abuse its discretion in denying a Rule 33 motion). Vanhis e has offered no persuasive re ason for concluding that his
conviction after trial constituted a miscarriage of justice. We conclude, therefore, that the
District Court did not abuse its discretion in de termining that the jury’s verdict as to Vanhise was not against the weight of evidence.

III. Severance

This Court reviews denial of severa nce motions for abuse of discretion. United States v. Diaz , 176 F.3d 52, 102 (2d Cir. 1999). In light of the strong preference to conduct a single
trial for defendants who are indicted together, Zafiro v. United States , 506 U.S. 534, 537 (1993),
we will reverse a district court’s denial of a severance motion only if a defendant can “show prejudice so severe that his conviction constituted a miscarriage of justice,” United States v.
Rosa , 11 F.3d 315, 341 (2 d. Cir. 1993). Vanhise urges that he was denied a fair tr ial because of prejudicial spillover from evidence admitted at trial against his co-defenda nt, Asch, in a separate count of conspiracy to kidnap an undercover agent , with which Vanhise was not ch arged. The evidence at issue included numerous torture devices, su ch as a stun gun and leg-spreader. Vanhise contends that this evidence was “so inherently prejudicia l that no limiting instruction c[ould] cure the prejudice.” Appellant’s Br. at 45. We have long held that “the fact th at evidence may be admissible against one defendant but not another does not necessarily require a severance.” United States v. Rittweger
, 524 F.3d 171, 179 (2d Cir. 2008) (internal quota tion marks omitted). This is especially so where the charges against the defendants are “straightforward and the jury is properly
instructed to consider the evidence against each defendant separately.” United States v.
O’Connor , 650 F.3d 839, 859 (2d Ci r. 2011). Here, the charges under Counts One and Two— conspiracy to commit a kidnapping—were “straightforward,” see id. , and “adequately distinct,” United States v. Hernandez , 85 F.3d 1023, 1029 (2d Cir. 1996). Second, the District Court’s jury instructions cured any potential prej udice from the joint tria l. Over the course of the trial, the court instructed the jury that sp ecific evidence was admitted solely against Asch7 and could not be considered against Vanhise. See Rittweger , 524 F.3d at 179 (rejecting claim of spillover prejudice where the dist rict court “gave limiting instru ctions throughout the trial”). Vanhise provides no basis to depart from th e general assumption that “juries follow the instructions they are given.” United States v. Agrawal , 726 F.3d 235, 258 (2d Cir. 2013). Finally, as the District Court aptly noted, a jury could have easily found the evidence of Vanhise’s own guilt as to Count One—that he targeted his own family members for kidnapping, rape, torture, and murder, and shared their name s, photographs, and location with coconspirators—to be just as disturbing as the physical evidence admitted against Asch as to Count Two (if not more so). See United States v. Vanhise
, No. 12-CR-847 (PGG), 2017 WL 3425750, at *47 n.29 (S.D.N .Y. Aug. 8, 2017). We therefore c onclude that the District Court did not abuse its discretion in denying Va nhise’s motion for a new trial based on his argument of prejudice from improper joinder.

* * *

We have considered Vanhise’s remainin g arguments and conclude that they are without merit. Accordingly, the ju dgment of the District Court is AFFIRMED

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court