United States v. Luciano Sorrentino, 72 F.3d 294, 2d Cir. (1995)

72 F.
3d 294
UNITED STATES of America, Appellee,

v.
Luciano SORRENTINO, Defendant-Appellant.
No. 395, Docket 95-1152.
United States Court of Appeals,

Second Circuit.
Argued Dec. 11, 1995.
Decided Dec. 26, 1995.
Barry S. Turner, New York City, for Defendant-Appellant.

Faith Gay, Assistant United States Attorney, E.D. New York, Brooklyn,
NY (Zachary W. Carter, United States Attorney, Peter A. Norling,
Assistant United States Attorney, of counsel), for Appellee.
Before OAKES, WINTER, and WALKER, Circuit Judges.
WINTER, Circuit Judge:
Luciano Sorrentino appeals from his conviction by a jury before Judge Raggi
for possession as a convicted felon of a firearm, in violation of 18 U.S.C. Sec.
922(g), and possession of counterfeit currency, in violation of 18 U.S.C. Sec.
473. He raises numerous claims of error, including a constitutional challenge to
the statute underlying his conviction for possession of a weapon. We affirm.
In September of 1992, the federal Bureau of Alcohol, Tobacco, and Firearms

(ATF) wired a confidential informant (CI), who then tape recorded Sorrentino
providing the CI with an Italian-made revolver and selling the CI $2000 in
counterfeit United States currency. Sorrentino was initially arrested on October
6, 1992. He was brought to the ATF office but then released. No charges were
filed at that time. On June 10, 1993, a complaint was filed and a warrant issued
for his arrest. On June 7, 1994, Sorrentino was arrested and arraigned. He was
charged in a four-count indictment on July 7, 1994. Jury selection was held and
his trial began on September 19, 1994.
The CI was not called as a witness at trial. Instead, the government played the
tapes of the CI's conversations with Sorrentino. The CI was made available to
the defense on the second day of trial, but he refused to talk to Sorrentino's
counsel. Sorrentino thereafter requested a missing witness charge, but Judge
Raggi denied the request, ruling that the CI was available to both sides.
Nevertheless, she allowed Sorrentino to comment in summation on the CI's
failure to testify and on his special relationship with the government.
Sorrentino contends first that Section 922(g), the basis for his conviction as a
previously convicted felon in possession of a weapon, is unconstitutional
because it is beyond Congress's authority under the Commerce Clause. We
disagree. Sorrentino relies upon the Supreme Court's recent decision in United
States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which
held that the Gun-Free Zone Act, 18 U.S.C. Sec. 922(q), prohibiting possession
of a firearm in a school zone, is unconstitutional as beyond the scope of the
Commerce Clause. However, Lopez held that the specific statute at issue in
that case "ha[d] nothing to do with 'commerce' or any sort of economic
enterprise" and could not "be sustained under our cases upholding regulations
of activities that arise out of or are connected with a commercial transaction,
which viewed in the aggregate, substantially affects interstate commerce," --U.S. at ---- - ----, 115 S.Ct. at 1630-31. Lopez further held that the statute under
review in that case, Section 922(q), "contains no jurisdictional element which
would ensure, through case-by-case inquiry, that the firearms possession in
question affects interstate commerce." Id. at ----, 115 S.Ct. at 1631.
The statute before us avoids the constitutional deficiency identified in Lopez

because it requires a legitimate nexus with interstate commerce. To obtain a
conviction under Section 922(g), the government must show that the weapon at
issue was "ship[ped] or transport[ed] in interstate or foreign commerce" or was
"possess[ed] in or affect[ed] commerce." 18 U.S.C. Sec. 922(g). In Scarborough
v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the
Supreme Court held that "proof that the possessed firearm previously traveled
in interstate commerce is sufficient to satisfy the statutorily required nexus
between the possession of a firearm by a convicted felon and commerce." Id. at
564, 97 S.Ct. at 1964. It further concluded that 18 U.S.C. Sec. 1202(a), the
predecessor statute to Section 922(g), was a legitimate exercise of Congress's
powers under the Commerce Clause because the Constitution requires only a
"minimal nexus that the firearm have been, at some time, in interstate
commerce." See id. at 575, 97 S.Ct. at 1968; see also United States v. Carter,
981 F.2d 645, 647 (2d Cir.1992) ("In the context of firearm control, it is well
established that for a firearm to fall within the Commerce Clause, it need only
have travelled previously in interstate commerce."), cert. denied, 507 U.S.
1023, 113 S.Ct. 1827, 123 L.Ed.2d 456 (1993).

6
The statute invalidated in Lopez lacked this necessary element; the statute at
issue here clearly contains it. Lopez is thus entirely compatible with the
Supreme Court's earlier decision in Scarborough. Other circuits that have
considered the issue agree that Lopez does not undermine the constitutionality
of Section 922(g). See United States v. Bell, 70 F.3d 495, 497-98 (7th
Cir.1995); United States v. Hinton, No. 95-5095, 1995 WL 623876 (4th Cir.
Oct. 25, 1995); United States v. Shelton, 66 F.3d 991 (8th Cir.1995); United
States v. Mosby, 60 F.3d 454, 456 (8th Cir.1995); United States v. Hanna, 55
F.3d 1456, 1462 n. 2 (9th Cir.1995); United States v. Bolton, 68 F.3d 396, 400
(10th Cir.1995).
Second, Sorrentino argues that his prior conviction should not have been placed
in evidence before the jury. An element of the offense charged in Count One,
possession by a convicted felon of a weapon that has travelled in interstate
commerce, is, naturally, that the defendant be a convicted felon. Thus, the jury
must have evidence of a prior conviction in order to convict on this count. See
United States v. Gilliam, 994 F.2d 97, 100 (2d Cir.), cert. denied, --- U.S. ----,
114 S.Ct. 335, 126 L.Ed.2d 280 (1993). We have recognized that introduction
of a defendant's prior criminal record is needlessly prejudicial, "only when it
tends to have some adverse effect upon a defendant beyond tending to prove the
fact or issue that justified its admission into evidence." United States v.
Figueroa, 618 F.2d 934, 943 (2d Cir.1980). We have thus allowed defendants
who seek to avoid exposure of the details of prior crimes to stipulate to the
existence of a prior felony without identifying either the type of crime or factual
details. See Gilliam, 994 F.2d at 102-03 (citing cases). In the instant matter,
such a stipulation was made, and the court gave a proper limiting instruction.
There was thus no unfair prejudice.
Third, Sorrentino claims that, because of his first arrest in 1992--two years
before his re-arrest and indictment--his right to a speedy trial under both the
Sixth Amendment and the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., was
violated. He did not move to dismiss the indictment on these grounds, and we
therefore review his claim only for plain error. See Fed.R.Crim.P. 52(b);
United States v. Keppler, 2 F.3d 21, 23 (2d Cir.1993).
On these facts, the relevant inquiry is whether the speedy trial clock began to
run at the first or the later arrest. Beyond question, the clock began to run only
at the time of the second arrest. "[I]t is either a formal indictment or
information or else the actual restraints imposed by arrest and holding to
answer a criminal charge that engage the particular protections of the speedy
trial provision of the Sixth Amendment." United States v. Marion, 404 U.S.
307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). In United States v. Bloom,
865 F.2d 485 (2d Cir.), cert. denied, 490 U.S. 1027, 109 S.Ct. 1762, 104
L.Ed.2d 197 (1989), we held that an appellant's speedy trial right was not
violated by an almost two-year delay between arrest and indictment: "the key
Sixth Amendment issue is whether [appellant] was either arrested or subjected
to substantial restrictions for purposes of answering a criminal charge.... The
restrictions imposed after his prompt release were intended only to protect an
ongoing investigation and did not trigger Sixth Amendment rights." Id. at 491.
"[W]hen no indictment is outstanding, only the 'actual restraints imposed by
arrest and holding to answer a criminal charge' " engage speedy trial protection.
United States v. Loud Hawk, 474 U.S. 302, 310, 106 S.Ct. 648, 653, 88
L.Ed.2d 640 (1986) (quoting Marion, 404 U.S. at 320, 92 S.Ct. at 463). Here,
there was no restraint on Sorrentino's liberty and no charges were filed against
him following the first arrest. "Although delay prior to arrest or indictment may
give rise to a due process claim under the Fifth Amendment ... or to a claim
under any applicable statutes of limitations, no Sixth Amendment right to a
speedy trial arises until charges are pending." United States v. MacDonald, 456
U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Sorrentino's second
arrest in 1994 is thus the relevant one for constitutional purposes, and there was
no violation of his Sixth Amendment speedy trial right.
10
Under the Speedy Trial Act, a defendant's trial must begin within 70 days of
"the information or indictment, or from the date the defendant has appeared
before a judicial officer of the court in which such charge is pending,"
whichever is later. 18 U.S.C. Sec. 3161(c)(1). Further, a defendant must be
charged, by information or indictment, within 30 days of his arrest. 18 U.S.C.
Sec. 3161(b). Sorrentino's first arrest was not "for purposes of answering a
criminal charge," see Bloom, 865 F.2d at 491, and his 1994 arrest therefore
triggered the Speedy Trial Act clock. Because Judge Raggi granted an order of
excludable delay from September 12 to 19, only 67 non-excludable days
elapsed after the 1994 arrest. Sorrentino was charged 30 days after his June 7,
1994 arrest and arraignment. There was thus no Speedy Trial Act violation.
11
Fourth, Sorrentino claims that the admission of tape recordings of

conversations between Sorrentino and the CI allowed inadmissible hearsay
evidence--the statements of the CI--to be introduced before the jury. We again
review only for plain error because Sorrentino did not raise this objection at
trial. The claim lacks any merit. Sorrentino's statements are not hearsay
because they are his own statements and were offered against him. See
Fed.R.Evid. 801(d)(2). The statements of the CI were not offered to prove the
truth of the matters asserted but only to render what Sorrentino said in these
conversations intelligible. There was thus no admission of hearsay evidence.

See Fed.R.Evid. 801(c); United States v. Guzman, 754 F.2d 482, 487 (2d
Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 788, 88 L.Ed.2d 766 (1986).
12
Finally, Sorrentino claims he was entitled to a missing witness charge with

regard to the CI. This claim is also meritless because the government produced
the CI for Sorrentino to call as a witness, if he wished, on the second day of
trial. If a witness is "equally available" to both sides, no instruction is
necessary, particularly where the unpresented testimony would be merely
cumulative. United States v. Torres, 845 F.2d 1165, 1169 (2d Cir.1988). In
view of the discretion accorded the trial judge in such matters, see id. at 117071, the requirement that Sorrentino show that any error was not harmless, see
id. at 1171, and the fact that Judge Raggi allowed Sorrentino to comment in
closing upon the CI's failure to testify and upon his special relationship with the
government, there is no ground for reversal. See id. at 1170; see also United
States v. Mittelstaedt, 31 F.3d 1208, 1215-16 (2d Cir.1994), cert. denied, --U.S. ----, 115 S.Ct. 738, 130 L.Ed.2d 640 (1995).
13
We therefore affirm.

United States v. Luciano Sorrentino, 72 F.3d 294, 2d Cir. (1995)

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72 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Barry S. Turner, New York City, for Defendant-Appellant.

In September of 1992, the federal Bureau of Alcohol, Tobacco, and Firearms

The statute before us avoids the constitutional deficiency identified in Lopez

1023, 113 S.Ct. 1827, 123 L.Ed.2d 456 (1993).

Fourth, Sorrentino claims that the admission of tape recordings of

conversations intelligible. There was thus no admission of hearsay evidence.

Finally, Sorrentino claims he was entitled to a missing witness charge with

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