Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit
2-9-2009
USA v. Duronio Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5116
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation "USA v. Duronio" (2009). 2009 Decisions. Paper 1905. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1905
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-5116
UNITED STATES OF AMERICA
v.
ROGER DURONIO,
Appellant
On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Joseph A. Greenaway, Jr. (D.C. Criminal No. 02-cr-00933)
Submitted Pursuant to Third Circuit LAR 34.1(a) December 8, 2008
Before: McKEE, SMITH and ROTH, Circuit Judges
(Filed: February 9, 2009)
OPINION OF THE COURT
MCKEE, Circuit Judge. Roger Duronio appeals his conviction and sentence for mail fraud and computer
fraud. The district court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm.
I.
Inasmuch as we write primarily for the parties, we discuss only the factual and
procedural background necessary to our brief opinion.
A.
Duronio argues that the district court erred in denying his motion to dismiss the
indictment based on his claim that his due process rights were violated when UBS and its
agents, without the knowledge of the government, destroyed computer hard drives
belonging to a former colleague. Our review of the district court’s legal conclusions is
plenary. United States v. Ramos, 27 F.3d 65, 67 (3d Cir. 1994). We review factual
findings for clear error. Id.
The district court concluded that UBS and its contractor operated independently of
the government; the government did not have “ready access” to the disputed evidence,
and; even if UBS and its contractor were part of the government investigation, the
defense did not establish “bad faith.” The district court denied Duronio’s motion in an
unpublished Memorandum Opinion dated May 23, 2006. The court also denied
Duronio’s renewed motion to dismiss at the close of evidence and his motion for a new
trial based on the same issue. The district court has thoroughly and adequately explained
2 why Duronio’s challenge to the destruction of the evidence does not merit relief, and we
will affirm substantially for the reasons given by the district court.
B.
Duronio also argues that the district court and the prosecutor “deprived [him] of
due process of law” by denying his request for a “missing witness” instruction and by the
prosecution arguing that he was free to subpoena the supposed “missing witness.” The
witness in question was the co-worker whom Duronio argued was actually responsible for
“dropping” the logic bomb. We review the court’s decisions regarding jury instructions
for abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 156 (3d Cir. 2008).
Because Duronio did not contemporaneously object to the prosecution’s rebuttal
summation, our review of his challenge to that is for plain error. United States v.
Brennan, 326 F.3d 176, 182 (3d Cir. 2003).
We can not agree with Duronio’s contention that the co-worker was “peculiarly”
within the power of the prosecution simply because the witness refused to speak with
defense counsel. Graves v. United States, 150 U.S. 118, 121 (1893). The district court
correctly concluded that the co-worker was equally available to both parties, and there
was therefore no foundation for any missing witness instruction. Accordingly, refusal to
give such an instruction cannot amount to an abuse of discretion. United States v.
Vastola, 899 F.2d 211, 235 (3d Cir. 1990), vacated on other grounds, 497 U.S. 1001
(1990).
3 We realize that defense counsel was not willing to call the co-worker without
being able to interview him beforehand. However, that does not place the witness beyond
the reach of a subpoena nor render him unavailable. That circumstance merely speaks to
defense counsel’s understandable reluctance to call a witness who has not been
interviewed. It does not transform the witness into someone who is “unavailable” to the
defense. “A witness is not ‘peculiarly available’ to the government simply because the
witness chooses not to discuss the case with the defense.” United States v. Spinosa, 982
F.2d 620, 633 n.7 (1st Cir. 1992).
Nor was there any error in the prosecutor arguing in summation that Duronio could
have, but declined to, call the co-worker to testify. This was a direct response to
Duronio’s own suggestion that the Government should have called Duronio as a
prosecution witness. See United States v. Sblendorio, 830 F.2d 1382, 1392 (7th Cir.
1987) (“[T]he prosecutor may reply to an argument by the defense that the absence of
some witness counts against the prosecution.”). Having opened the door, Duronio can
hardly complain that the prosecutor decided to enter.
C.
Finally, Duronio next argues that “the prosecutor’s summation, which
mischaracterized the evidence and the defense, repeatedly impugned defense counsel’s
personal integrity, and vouched for the integrity of the prosecutor’s office, violated
defendant’s right to due process of the law and shifted the burden of proof to the
4 defense.” We again review for plain error because Duronio did not object. United States
v. Brennan, 326 F.3d at 185-86.
Duronio made this argument in the motion for a new trial that was denied by the
district court. In rejecting the argument, the district court carefully examined each
disputed statement and found no prosecutorial misconduct. App. 26-36. Rather, the court
concluded that the prosecutor’s statements amounted to attacks on the defense theory and
strategy, not attacks on defense counsel. The court also found that the prosecution’s
statement did not attempt to shift the burden to the defendant, but focused the jury’s
attention on holes in the theory of the defense. We find no error, plain or otherwise, in
these conclusions.
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Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit
2-9-2009
USA v. Duronio Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5116
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation "USA v. Duronio" (2009). 2009 Decisions. Paper 1905. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1905
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-5116
UNITED STATES OF AMERICA
v.
ROGER DURONIO,
Appellant
On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Joseph A. Greenaway, Jr. (D.C. Criminal No. 02-cr-00933)
Submitted Pursuant to Third Circuit LAR 34.1(a) December 8, 2008
Before: McKEE, SMITH and ROTH, Circuit Judges
(Filed: February 9, 2009)
OPINION OF THE COURT
MCKEE, Circuit Judge. Roger Duronio appeals his conviction and sentence for mail fraud and computer
fraud. The district court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm.
I.
Inasmuch as we write primarily for the parties, we discuss only the factual and
procedural background necessary to our brief opinion.
A.
Duronio argues that the district court erred in denying his motion to dismiss the
indictment based on his claim that his due process rights were violated when UBS and its
agents, without the knowledge of the government, destroyed computer hard drives
belonging to a former colleague. Our review of the district court’s legal conclusions is
plenary. United States v. Ramos, 27 F.3d 65, 67 (3d Cir. 1994). We review factual
findings for clear error. Id.
The district court concluded that UBS and its contractor operated independently of
the government; the government did not have “ready access” to the disputed evidence,
and; even if UBS and its contractor were part of the government investigation, the
defense did not establish “bad faith.” The district court denied Duronio’s motion in an
unpublished Memorandum Opinion dated May 23, 2006. The court also denied
Duronio’s renewed motion to dismiss at the close of evidence and his motion for a new
trial based on the same issue. The district court has thoroughly and adequately explained
2 why Duronio’s challenge to the destruction of the evidence does not merit relief, and we
will affirm substantially for the reasons given by the district court.
B.
Duronio also argues that the district court and the prosecutor “deprived [him] of
due process of law” by denying his request for a “missing witness” instruction and by the
prosecution arguing that he was free to subpoena the supposed “missing witness.” The
witness in question was the co-worker whom Duronio argued was actually responsible for
“dropping” the logic bomb. We review the court’s decisions regarding jury instructions
for abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 156 (3d Cir. 2008).
Because Duronio did not contemporaneously object to the prosecution’s rebuttal
summation, our review of his challenge to that is for plain error. United States v.
Brennan, 326 F.3d 176, 182 (3d Cir. 2003).
We can not agree with Duronio’s contention that the co-worker was “peculiarly”
within the power of the prosecution simply because the witness refused to speak with
defense counsel. Graves v. United States, 150 U.S. 118, 121 (1893). The district court
correctly concluded that the co-worker was equally available to both parties, and there
was therefore no foundation for any missing witness instruction. Accordingly, refusal to
give such an instruction cannot amount to an abuse of discretion. United States v.
Vastola, 899 F.2d 211, 235 (3d Cir. 1990), vacated on other grounds, 497 U.S. 1001
(1990).
3 We realize that defense counsel was not willing to call the co-worker without
being able to interview him beforehand. However, that does not place the witness beyond
the reach of a subpoena nor render him unavailable. That circumstance merely speaks to
defense counsel’s understandable reluctance to call a witness who has not been
interviewed. It does not transform the witness into someone who is “unavailable” to the
defense. “A witness is not ‘peculiarly available’ to the government simply because the
witness chooses not to discuss the case with the defense.” United States v. Spinosa, 982
F.2d 620, 633 n.7 (1st Cir. 1992).
Nor was there any error in the prosecutor arguing in summation that Duronio could
have, but declined to, call the co-worker to testify. This was a direct response to
Duronio’s own suggestion that the Government should have called Duronio as a
prosecution witness. See United States v. Sblendorio, 830 F.2d 1382, 1392 (7th Cir.
1987) (“[T]he prosecutor may reply to an argument by the defense that the absence of
some witness counts against the prosecution.”). Having opened the door, Duronio can
hardly complain that the prosecutor decided to enter.
C.
Finally, Duronio next argues that “the prosecutor’s summation, which
mischaracterized the evidence and the defense, repeatedly impugned defense counsel’s
personal integrity, and vouched for the integrity of the prosecutor’s office, violated
defendant’s right to due process of the law and shifted the burden of proof to the
4 defense.” We again review for plain error because Duronio did not object. United States
v. Brennan, 326 F.3d at 185-86.
Duronio made this argument in the motion for a new trial that was denied by the
district court. In rejecting the argument, the district court carefully examined each
disputed statement and found no prosecutorial misconduct. App. 26-36. Rather, the court
concluded that the prosecutor’s statements amounted to attacks on the defense theory and
strategy, not attacks on defense counsel. The court also found that the prosecution’s
statement did not attempt to shift the burden to the defendant, but focused the jury’s
attention on holes in the theory of the defense. We find no error, plain or otherwise, in
these conclusions. Duronio also calls attention to a few additional comments not raised in
connection with his motion for a new trial. None of these constitutes a personal attack on
opposing counsel.
Similarly, we cannot agree that the prosecutor engaged in improper vouching in
making the following argument:
Let’s be clear, the government bears the burden of proof in this case. The defense does not . . . . That is a fact. That is something that we embrace, the government embraces. We do not shy away from bad information and bad facts. We don’t shy away from the fact there might be some [sic] out there. We don’t shy away from the fact that we do not have fingerprints. We’re not hiding that, concealing that. I’m not going to try to pin you to thinking like they do. I’m not. . . . Not hiding anything. It is what it is. Good, bad, or indifferent, the evidence is put before you.
App. 4292-93. Duronio claims this invited the jury to “rely on the prestige of the
prosecutor’s office to support a conviction and suggest[s] that [the prosecutor] had
5 superior knowledge of evidence disproving the alternative explanations [regarding the
source of the logic bomb].” That is a mischaracterization of the statements. We agree
with the district court’s conclusion that the comments were well within the bounds of
proper argument.
II.
Duronio also raises three claims of error in relation to his sentence. Again, we find
no merit in his arguments.
Duronio argues that the district court improperly calculated the aggregate loss
resulting from the total sum UBS spent on computer hardware in response to the logic
bomb attack in calculating the loss. The total loss calculated by the court resulted in an
eighteen point offense-level increase for Duronio.
Loss must be established by a preponderance of the evidence. United States v. Ali,
508 F.3d 136, 143-45 (3d Cir. 2007) (citations omitted). The district court’s finding was
amply supported by the record. The district court was not required to credit the value of
the new computers against the loss simply because UBS continued to use those computers
after the recovery effort ended.
The PSR recommended a two-level increase in Duronio’s offense-level pursuant to
U.S.S.G. § 2B1.1(b)(8)(C). It also recommended a separate, two-level increase for abuse
of a position of trust under U.S.S.G. § 3B1.3. The district court imposed both
6 enhancements without objection from Duronio. Now, however, Duronio argues that
those enhancements amounted to double-counting. Given the absence of a
contemporaneous objection, we review for plain error. Duronio ignores that these
enhancements were based on different characteristics of the crime - i.e., the sophistication
required to write and secretly install the logic bomb, and the fact that Duronio abused his
position and access to his employer’s computer system to commit the crime. The
precedent that Duronio relies upon to argue to the contrary does not convince us
otherwise.
Finally, while imposing sentence, the district court observed: “. . . Mr. Duronio,
having felt himself wronged, came up with an elaborate, detailed, complicated and
sophisticated scheme to, essentially, bring down the company.” App. 4627. Duronio
argues that this amounted to unsupported “fact-finding.” However, this comment and
other similar comments that Duronio relies upon are merely observations about “the
nature and circumstances of the offense and the history and characteristics of the
defendant.” 18 U.S.C. § 3553(a). Those observations are consistent with the guilty
verdict, and we do not find them improper or erroneous.
IV.
For the reasons stated above, the conviction and sentence of Roger Duronio will be
affirmed.
7 8