SUMMARY ORDER
This criminal action stems from a series of unauthorized credit card charges from Greenberg’s digital retail company, Classic Closeouts, LLC (“CCL”). Following a jury trial, Greenberg was convicted of all thirteen counts in the Superseding Indictment: wire fraud, in violation of 18 U.S.C. § 1343 (Counts 1-8); access device fraud, in violation of 18 U.S.C. §§ 1029(a)(5) and 1029(c)(l)(A)(ii) (Count 9); aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(l), 1028A(b), 1028A(c), and 1028A(c)(5) (Count 10); and money laundering in violation of 18 U.S.C. § 1957(a) (Counts 11-13). We describe in detail the facts and procedural history of this case in a concurrently published opinion.
On appeal, Greenberg brings six claims relating to: (1) sufficiency of the evidence; (2) the admission of lay opinion testimony; (3) comments made by the Government during summation; (4) jury instructions; (5) his Sentencing Guidelines calculation; and (6) the factual basis for the restitution order.
We have carefully considered the claims enumerated here and, after a thor-'
ough review of the record, we conclude that they are without merit. One issue, however, merits further discussion.
❖ ⅜ ⅜
Greenberg argues that he was deprived of a fair trial because of prosecutorial misconduct. Specifically, he claims that the Government made improper comments during its summation by (1) “repeatedly refer[ring] to ‘lies’ Greenberg made in written communications during the alleged fraud;” (2) “describing] defense counsel’s opening statements to the jury as either ‘a lie’ or ‘a bunch of lies;’” and (3) “bolstering] the credibility [of the] government’s witnesses by comparing their testimony with Greenberg’s constitutionally-protected decision not to testify at trial.” Greenberg Br. 49-50 (emphasis omitted). At the close of summations Greenberg objected and made a motion for a mistrial.
Judge Spatt denied the motion, noting that this “was one of the most innocuous closing statements [he] ha[d] heard.” App’x 614. The district court added: “There was nothing wrong with [the prosecutor’s] closing arguments. It was perfectly proper in all respects. In my view, maybe too proper.”
Id.
On appeal, Greenberg challenges this determination, arguing that “[i]n its closing arguments, the prosecution made inflammatory and prejudicial comments that deprived Mr. Greenberg of his right to a fair trial” Greenberg Br. 48. We review the district court’s denial of a motion for mistrial for abuse of discretion.
See United States v. Canova,
412 F.3d 331, 348 (2d Cir. 2005). “ ‘Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.’ ”
United States v. Elias,
285 F.3d 183, 190 (2d Cir. 2002) (quoting
United States v. Young,
470 U.S. 1, 11-12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Rather, a defendant seeking reversal on this basis must establish that “the prosecutor’s] comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ”
Darden v. Wainwright,
477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting
Donnelly v. DeChristoforo,
416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). To that end, the defendant bears a substantial burden because he must show that “the remarks caused the defendant substantial prejudice” to provide grounds for reversal.
United States v. Rosa,
17 F.3d 1531, 1549 (2d Cir. 1994). In considering whether prosecutorial misconduct caused “substantial prejudice,” we weigh three factors: “[1] the severity of the misconduct, [2] the measures adopted to cure the misconduct, and [3] the certainty of conviction absent the misconduct.”
Elias,
285 F.3d at 190. Here, we conclude that the comments Greenberg identifies do not rise to the level of a due process violation.
First, as to the prosecutor’s references to Greenberg’s “lies,” we conclude that the challenged conduct was in no way severely improper so as to amount to a
denial of due process. The Government’s repeated references to “‘lies’ Greenberg made in written communications during the alleged fraud,” Greenberg Br. 49, fall within the broad latitude that prosecutors are afforded during summation, and, in particular, are tailored, in this fraud prosecution, to the circumstances of the case, given Greenberg’s contradictory explanations regarding the unauthorized credit card charges.
See, e.g., United States v. Peterson,
808 F.2d 969, 977 (2d Cir. 1987) (noting that the use of the words “liar” or “lie” is not improper depending on context and whether the use is excessive or inflammatory);
United States v. Henry,
2015 WL 861743, at *5 n.5 (E.D.N.Y. Feb. 27, 2015) (finding that government’s use of the term “lies” 55 times in summation was not excessive or inflammatory “when viewed in context”). We thus discern no error in the prosecution’s references to Greenberg’s written communications.
Greenberg also raises the issue of the Government “describing] defense counsel’s opening statements to the jury as either ‘a lie’ or ‘a bunch of lies.’ ” Green-berg Br. 49 (emphasis omitted). The Government “[c]oneededly, in retrospect” admits that it “should have chosen different language to make its meaning clearer.” Gov’t Br. 52. In the broader context, however, these remarks referred to the substance of what defense counsel represented in his opening remarks regarding Greenberg’s position as to the source of the unauthorized charges, and were not meant to suggest that counsel himself was responsible. Such remarks were not sufficiently inflammatory to have plainly infected the entire trial proceedings—a point only underscored by the fact that the defense failed to object at the time.
Free access — add to your briefcase to read the full text and ask questions with AI
SUMMARY ORDER
This criminal action stems from a series of unauthorized credit card charges from Greenberg’s digital retail company, Classic Closeouts, LLC (“CCL”). Following a jury trial, Greenberg was convicted of all thirteen counts in the Superseding Indictment: wire fraud, in violation of 18 U.S.C. § 1343 (Counts 1-8); access device fraud, in violation of 18 U.S.C. §§ 1029(a)(5) and 1029(c)(l)(A)(ii) (Count 9); aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(l), 1028A(b), 1028A(c), and 1028A(c)(5) (Count 10); and money laundering in violation of 18 U.S.C. § 1957(a) (Counts 11-13). We describe in detail the facts and procedural history of this case in a concurrently published opinion.
On appeal, Greenberg brings six claims relating to: (1) sufficiency of the evidence; (2) the admission of lay opinion testimony; (3) comments made by the Government during summation; (4) jury instructions; (5) his Sentencing Guidelines calculation; and (6) the factual basis for the restitution order.
We have carefully considered the claims enumerated here and, after a thor-'
ough review of the record, we conclude that they are without merit. One issue, however, merits further discussion.
❖ ⅜ ⅜
Greenberg argues that he was deprived of a fair trial because of prosecutorial misconduct. Specifically, he claims that the Government made improper comments during its summation by (1) “repeatedly refer[ring] to ‘lies’ Greenberg made in written communications during the alleged fraud;” (2) “describing] defense counsel’s opening statements to the jury as either ‘a lie’ or ‘a bunch of lies;’” and (3) “bolstering] the credibility [of the] government’s witnesses by comparing their testimony with Greenberg’s constitutionally-protected decision not to testify at trial.” Greenberg Br. 49-50 (emphasis omitted). At the close of summations Greenberg objected and made a motion for a mistrial.
Judge Spatt denied the motion, noting that this “was one of the most innocuous closing statements [he] ha[d] heard.” App’x 614. The district court added: “There was nothing wrong with [the prosecutor’s] closing arguments. It was perfectly proper in all respects. In my view, maybe too proper.”
Id.
On appeal, Greenberg challenges this determination, arguing that “[i]n its closing arguments, the prosecution made inflammatory and prejudicial comments that deprived Mr. Greenberg of his right to a fair trial” Greenberg Br. 48. We review the district court’s denial of a motion for mistrial for abuse of discretion.
See United States v. Canova,
412 F.3d 331, 348 (2d Cir. 2005). “ ‘Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.’ ”
United States v. Elias,
285 F.3d 183, 190 (2d Cir. 2002) (quoting
United States v. Young,
470 U.S. 1, 11-12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Rather, a defendant seeking reversal on this basis must establish that “the prosecutor’s] comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ”
Darden v. Wainwright,
477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting
Donnelly v. DeChristoforo,
416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). To that end, the defendant bears a substantial burden because he must show that “the remarks caused the defendant substantial prejudice” to provide grounds for reversal.
United States v. Rosa,
17 F.3d 1531, 1549 (2d Cir. 1994). In considering whether prosecutorial misconduct caused “substantial prejudice,” we weigh three factors: “[1] the severity of the misconduct, [2] the measures adopted to cure the misconduct, and [3] the certainty of conviction absent the misconduct.”
Elias,
285 F.3d at 190. Here, we conclude that the comments Greenberg identifies do not rise to the level of a due process violation.
First, as to the prosecutor’s references to Greenberg’s “lies,” we conclude that the challenged conduct was in no way severely improper so as to amount to a
denial of due process. The Government’s repeated references to “‘lies’ Greenberg made in written communications during the alleged fraud,” Greenberg Br. 49, fall within the broad latitude that prosecutors are afforded during summation, and, in particular, are tailored, in this fraud prosecution, to the circumstances of the case, given Greenberg’s contradictory explanations regarding the unauthorized credit card charges.
See, e.g., United States v. Peterson,
808 F.2d 969, 977 (2d Cir. 1987) (noting that the use of the words “liar” or “lie” is not improper depending on context and whether the use is excessive or inflammatory);
United States v. Henry,
2015 WL 861743, at *5 n.5 (E.D.N.Y. Feb. 27, 2015) (finding that government’s use of the term “lies” 55 times in summation was not excessive or inflammatory “when viewed in context”). We thus discern no error in the prosecution’s references to Greenberg’s written communications.
Greenberg also raises the issue of the Government “describing] defense counsel’s opening statements to the jury as either ‘a lie’ or ‘a bunch of lies.’ ” Green-berg Br. 49 (emphasis omitted). The Government “[c]oneededly, in retrospect” admits that it “should have chosen different language to make its meaning clearer.” Gov’t Br. 52. In the broader context, however, these remarks referred to the substance of what defense counsel represented in his opening remarks regarding Greenberg’s position as to the source of the unauthorized charges, and were not meant to suggest that counsel himself was responsible. Such remarks were not sufficiently inflammatory to have plainly infected the entire trial proceedings—a point only underscored by the fact that the defense failed to object at the time.
Greenberg next argues that the Government improperly “attempted to bolster the credibility [of the] [Government's witnesses by comparing their testimony with Greenberg’s constitutionally-protected decision not to testify at trial.” Green-berg Br. 50. He contends that the Government made what “amount[ed] to a direct comment on Mr. Greenberg’s failure to testify at trial.”
Id.
at 52. It is difficult, however, to understand how Greenberg makes this logical leap. Greenberg claims that the Government implied that he lied by saying that its witnesses should be believed because they withstood cross-examination. But the record does not support this implication. The Government was merely emphasizing the point that its witnesses had ably withstood cross, which is not itself impermissible. That Greenberg elected not to testify is of no matter—that choice does not render the Government’s remarks severely inappropriate.
We note that the district court mitigated any possible prejudice from the prosecutor’s remarks by instructing the jury on several points that are relevant to the conduct of which Greenberg complains. The district court explained to the jury that it had the sole role of determining the facts, App’x 616, and, critically, that statements of counsel are
not
evidence,
id.
at 617. It also explained the presumption of innocence, and specified to the jury that, under the Constitution, Greenberg had “no obligation to testify or to present any other evidence because it is the prosecution’s burden to prove the defendant’s guilt beyond a reasonable doubt.”
Id.
at 620. The court reiterated the point, explaining to the jury that it could “not attach any significance to the fact that the defendant, Daniel Greenberg, did not testify.”
Id.
Further, “no adverse inference against him” could be drawn “because he did not take the stand” and the jury could “not consider this against the defendant in any way [during] deliberations in the jury roorp.”
Id.
Thus, to the extent that there was any impropriety associated with the comments, particularly in light of the strength of the evidence presented to the
jury at Greenberg’s trial, the district court took sufficient measures to cure it.
See United States v. Modica,
668 F.2d 1173, 1181 (2d Cir. 1981) (“[I]f proof of guilt is strong, then the prejudicial effect of the comments tends to be deemed insubstantial ... ”). We conclude that the district court did not abuse its discretion in denying Greenberg’s motion for a mistrial.
We have considered Greenberg’s remaining claims and find them to be without merit. Accordingly, we AFFIRM the judgment of conviction of the district court.