United States v. Brown

540 F. App'x 31

• Court: Court of Appeals for the Second Circuit
• Decided: September 25, 2013
• Docket: No. 11-5116-cr
• Status: Published

Opinion

SUMMARY ORDER

Robert Anthony Warren appeals from a judgment of conviction entered on December 1, 2011, in the United States District Court for the Southern District of New York. We assume the parties’ familiarity with the facts and the issues raised on appeal.

First, there was sufficient evidence to support the inference that Warren knew that the tax refund checks that he was stealing were obtained through fraudulent returns. Reviewing a sufficiency challenge, “we need not find that every reasonable jury would have convicted [Warren]; we affirm ‘if we find that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Goffer, 721 F.3d 113, 124 (2d Cir.2013) (quoting United States v. Stewart, 590 F.3d 93, 109 (2d Cir.2009)). “The law has long recognized that criminal intent may be proved by circumstantial evidence alone.” United States v. Heras, 609 F.3d 101, 106 (2d Cir.2010). Moreover, Warren “lost ‘his right to have sufficiency assessed on the basis of the government’s presentation of evidence alone’ when he testified on his own behalf.” United States v. Tran, 519 F.3d 98, 105 (2d Cir.2008) (quoting United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir.1995)). Between Adams’s testimony and Warren’s testimony in his own defense, there was an ample basis for the jury to infer beyond a reasonable doubt that Warren knew that the easily identified U.S. Treasury checks that he was stealing were the product of fraudulent or false claims. The jury did not need to determine Warren’s precise knowledge of “the details of the conspiratorial scheme or the identities of all of the conspirators.” United States v. Hawkins, 547 F.3d 66, 71 (2d Cir.2008) (internal quotation mark omitted).

Second, the evidence missing from the government’s summary chart did not affect Warren’s substantial rights or “ ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Botti, 711 F.3d 299, 314 (2d Cir. 2013) (quoting Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Although some of the specific examples of Warren’s calling co-conspirators’ phones without a preceding call were erroneously listed on the summary chart, the existence of other such examples renders this error harmless and well beyond the reach of our plain error review. So too was the government’s misplaced reliance on the accuracy of its summary chart harmless (and a far cry from prosecutorial misconduct). See, e.g., United States v. Coffey, 823 F.2d 25, 27-28 (2d Cir.1987) (per curiam). Finally, Warren’s substantial rights were not impaired by the absence of an unrequested limiting instruction stating that the charts were not evidence. Because of the surfeit of other evidence of Warren’s guilt, he has not “demonstrate[d] that [any] error was prejudicial ... [by showing that] there is a reasonable probability that the error affected the outcome of the trial.” United States v. Marcus, 628 F.3d 36, 42 (2d Cir.2010) (internal quotation marks omitted).

Finally, there was no plain error in the government’s summation. See United States v. Williams, 690 F.3d 70, 77-78 (2d Cir.2012). First, “[w]e do not condone the prosecutors’ use of ‘we know’ statements in closing argument.... Nonetheless, the record ... confirms that the prosecutors used the phrase ‘we knov/ to marshal evidence actually admitted at trial and reasonable inferences from that evidence, not to vouch for witness veracity or suggest that evidence not produced would support a witness’s statements.” United States v. Younger, 398 F.3d 1179, 1191 (9th Cir.2005). Second, “it is not ordinarily improper for the prosecution to make temperate use of forms of the word ‘lie’ ... ‘to characterize disputed testimony* where credibility was clearly an issue.” United States v. Shareef, 190 F.3d 71, 79 (2d Cir.1999) (quoting United States v. Peterson, 808 F.2d 969, 977 (2d Cir.1987)). Finally, the government’s imprecision in characterizing Bailey’s testimony was insignificant; overall, “[t]he prosecutor’s jury summation did no more than marshal the evidence and draw reasonable inferences therefrom. This is permissible and did not deprive appellant[ ] of a fair trial.” United States v. Steinberg, 551 F.2d 510, 515 (2d Cir.1977).

We have considered all of Warren’s arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.