United States v. Nicolo
421 F. App'x 57
| 2d Cir. | 2011Background
- Indictment on March 14, 2007 in WDNY charged Nicolo, Schwab, Finnman, and Roeder with conspiracies to honest services fraud, money laundering, and IRS fraud.
- Schwab pled guilty on February 29, 2008 to mail/wire fraud conspiracy and honest services fraud; the other three went to trial.
- Nicolo allegedly bribed Schwab, Town Assessor for Greece, NY, to obtain favorable tax assessments; Finnman arranged for Nicolo to prepare appraisals with kickbacks; Roeder and Nicolo allegedly conspired to defraud the IRS and filed false tax returns.
- Nicolo’s continuance motion was denied; court offered to accommodates breaks and trial delays for medical reasons.
- On appeal, issues included continuance, venue, ineffective assistance, prosecutorial misconduct, and evidentiary issues; Schwab’s waiver appeal was raised; Finnman Roeder joinder/severance challenged; Roeder challenged sufficiency and evidentiary rulings.
- Court affirmed Nicolo, Finnman, and Roeder convictions and dismissed Schwab’s appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Continuance denial violated rights | Nicolo argues district court abused discretion | Court properly exercised broad discretion | No abuse of discretion |
| Change of venue due process | Pretrial publicity tainted jury pool | Jury pool was impartial given voir dire | No due process violation |
| Prosecutorial misconduct | Closing remarks improperly invoked Fifth Amendment rights | Remedial measures cured prejudice | Not reversible error; trial fair despite remarks |
| Schwab appeal waiver validity | Waiver may be unenforceable due to Rule 11 issues | Waiver knowingly and voluntarily accepted | Waiver valid; Schwab’s appeal dismissed |
| Joinder and severance | Joinder/severance improper | Joinder proper; severance not required | No abuse; joinder proper and severance denial affirmed |
Key Cases Cited
- Rideau v. Louisiana, 351 U.S. 1 (Louis. 1963) (pretrial publicity can violate due process in extreme cases)
- Skilling v. United States, 130 S. Ct. 2896 (S. Ct. 2010) (limits of prejudicial publicity and voir dire in large urban settings)
- Donnelly v. DeChristoforo, 416 U.S. 637 (U.S. 1974) (limits on prosecutorial misconduct and need for limiting instructions)
- Zafiro v. United States, 506 U.S. 534 (U.S. 1993) (limits on jury prejudice and need for limiting instructions)
- United States v. Cusack, 229 F.3d 344 (2d Cir. 2000) (broad discretion on continuance decisions)
- Gomez-Perez, 215 F.3d 315 (2d Cir. 2000) (enforces appeal waivers when knowingly accepted)
- United States v. Amuso, 21 F.3d 1251 (2d Cir. 1994) (requires factual predicate for consciousness-of-guilt charge)
- Neder v. United States, 527 U.S. 1 (U.S. 1999) (materiality judgments reviewed for harmless error)
- Klausner v. United States, 80 F.3d 55 (2d Cir. 1996) (holding that failure to prove materiality in §7206 is harmless)
- United States v. Caracappa, 614 F.3d 30 (2d Cir. 2010) (standard for evaluating prejudice from prosecutorial commentary)