24-567-cr United States v. Kauapirura
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of April, two thousand twenty-five.
PRESENT: JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 24-567-cr
EHRENFRIEDE KAUAPIRURA,
Defendant-Appellant.
------------------------------------------------------------------ FOR DEFENDANT-APPELLANT: SUSAN G. KELLMAN, Law Offices of Susan G. Kellman, Brooklyn, NY
FOR APPELLEE: HANNAH COOK, Attorney, Tax Division, United States Department of Justice, Washington, DC (David A. Hubbert, Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals and Tax Enforcement Policy Section, Katie Bagley, Joseph B. Syverson, Attorneys, Tax Division, United States Department of Justice, Washington, DC, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Diane Gujarati, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Ehrenfriede Kauapirura, who stands convicted of one count of filing a false
tax return, one count of assisting in the preparation of a false tax return, one
count of interference with the administration of the internal revenue laws, and
2 four counts of failing to file a tax return, appeals from a March 14, 2024 judgment
of the United States District Court for the Eastern District of New York (Gujarati,
J.) denying her post-trial motions and sentencing her principally to 33 months in
prison. Each of Kauapirura’s claims on appeal concerns a government report
summarizing the alleged improprieties of Internal Revenue Service (“IRS”)
Officer Latoya Coleman (the “Coleman Report”), who was a hearsay declarant
against Kauapirura at trial. We assume the parties’ familiarity with the
underlying facts and the record of prior proceedings, to which we refer only as
necessary to explain our decision to affirm.
As an initial matter, Kauapirura argues that the District Court erred in
construing her pro se post-trial motion only as a motion for judgment of acquittal
under Rule 29(c) of the Federal Rules of Criminal Procedure, rather than also as a
motion for a new trial under Rule 33. For purposes of this appeal, we consider
Kauapirura’s claims under the Rule 33 standard, “the ultimate test for [which] is
whether letting a guilty verdict stand would be a manifest injustice.” United
States v. Landesman, 17 F.4th 298, 330 (2d Cir. 2021) (quotation marks omitted); see
also id. (noting that courts have “broader discretion to grant a new trial pursuant
3 to Rule 33 than to grant a motion for a judgment of acquittal pursuant to [Rule]
29” (quotation marks omitted)).
Kauapirura contends that the Government failed to satisfy its obligations
under Brady v. Maryland, 373 U.S. 83 (1963). Although the Government disclosed
the Coleman Report to defense counsel well before trial, Kauapirura claims that
it should have redisclosed the report to her after she elected to proceed pro se.
We disagree. The Due Process Clause imposes on the Government “a
constitutional duty to timely disclose material, exculpatory evidence to criminal
defendants,” including “evidence that could be used to impeach a government
witness.” United States v. Kirk Tang Yuk, 885 F.3d 57, 86 (2d Cir. 2018). The
Government violates this duty when it “either willfully or inadvertently”
suppresses evidence favorable to the defendant, resulting in prejudice to her
defense. United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001). Here, however,
the Government never suppressed evidence favorable to Kauapirura. It
disclosed the Coleman Report to her then-defense counsel. Although
Kauapirura thereafter proceeded pro se, the Government was not obligated to
redisclose the report under the circumstances of this case. First, after being
terminated from representing her, Kauapirura’s attorney asserted in open court
4 that he would provide Kauapirura with the discovery materials. Second,
Kauapirura thereafter confirmed to the District Court “that she had received the
discovery materials from the Government and from her former counsel.” D. Ct.
Dkt. No. 47 at 1. We therefore conclude that the Government’s disclosure of the
Coleman Report satisfied its obligations under Brady.
Kauapirura next argues that the Government violated its obligations under
Napue v. Illinois, 360 U.S. 264, 269 (1959), by failing to correct the testimony of IRS
agent David Smith. “The Supreme Court has consistently held that a conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and
must be set aside if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.” Drake v. Portuondo, 553 F.3d 230,
241 (2d Cir. 2009) (cleaned up); see United States v. Monteleone, 257 F.3d 210, 219
(2d Cir. 2001). At trial, Kauapirura cross-examined agent Smith about Coleman’s
“personal problems.” App’x 69. Agent Smith testified that Coleman had
“financial difficulties” and “a family member . . . with extensive health issues.”
App’x 69. Although agent Smith did not mention the other facts alleged in the
Coleman Report, we see nothing in the record to suggest that the testimony he
provided about Coleman, or any of his other testimony, “was, in fact, false.”
5 United States v. Alston, 899 F.3d 135, 147 (2d Cir. 2018). Moreover, Kauapirura
was free to cross-examine agent Smith in greater depth about Coleman to elicit
more information. We therefore conclude that Kauapirura failed to make out a
claim that the Government offered or failed to correct false testimony under
Napue.
Kauapirura also argues that the District Court erred by failing to grant
Kauapirura’s post-trial recusal motion, and that the same error rendered her
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24-567-cr United States v. Kauapirura
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of April, two thousand twenty-five.
PRESENT: JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 24-567-cr
EHRENFRIEDE KAUAPIRURA,
Defendant-Appellant.
------------------------------------------------------------------ FOR DEFENDANT-APPELLANT: SUSAN G. KELLMAN, Law Offices of Susan G. Kellman, Brooklyn, NY
FOR APPELLEE: HANNAH COOK, Attorney, Tax Division, United States Department of Justice, Washington, DC (David A. Hubbert, Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals and Tax Enforcement Policy Section, Katie Bagley, Joseph B. Syverson, Attorneys, Tax Division, United States Department of Justice, Washington, DC, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Diane Gujarati, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Ehrenfriede Kauapirura, who stands convicted of one count of filing a false
tax return, one count of assisting in the preparation of a false tax return, one
count of interference with the administration of the internal revenue laws, and
2 four counts of failing to file a tax return, appeals from a March 14, 2024 judgment
of the United States District Court for the Eastern District of New York (Gujarati,
J.) denying her post-trial motions and sentencing her principally to 33 months in
prison. Each of Kauapirura’s claims on appeal concerns a government report
summarizing the alleged improprieties of Internal Revenue Service (“IRS”)
Officer Latoya Coleman (the “Coleman Report”), who was a hearsay declarant
against Kauapirura at trial. We assume the parties’ familiarity with the
underlying facts and the record of prior proceedings, to which we refer only as
necessary to explain our decision to affirm.
As an initial matter, Kauapirura argues that the District Court erred in
construing her pro se post-trial motion only as a motion for judgment of acquittal
under Rule 29(c) of the Federal Rules of Criminal Procedure, rather than also as a
motion for a new trial under Rule 33. For purposes of this appeal, we consider
Kauapirura’s claims under the Rule 33 standard, “the ultimate test for [which] is
whether letting a guilty verdict stand would be a manifest injustice.” United
States v. Landesman, 17 F.4th 298, 330 (2d Cir. 2021) (quotation marks omitted); see
also id. (noting that courts have “broader discretion to grant a new trial pursuant
3 to Rule 33 than to grant a motion for a judgment of acquittal pursuant to [Rule]
29” (quotation marks omitted)).
Kauapirura contends that the Government failed to satisfy its obligations
under Brady v. Maryland, 373 U.S. 83 (1963). Although the Government disclosed
the Coleman Report to defense counsel well before trial, Kauapirura claims that
it should have redisclosed the report to her after she elected to proceed pro se.
We disagree. The Due Process Clause imposes on the Government “a
constitutional duty to timely disclose material, exculpatory evidence to criminal
defendants,” including “evidence that could be used to impeach a government
witness.” United States v. Kirk Tang Yuk, 885 F.3d 57, 86 (2d Cir. 2018). The
Government violates this duty when it “either willfully or inadvertently”
suppresses evidence favorable to the defendant, resulting in prejudice to her
defense. United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001). Here, however,
the Government never suppressed evidence favorable to Kauapirura. It
disclosed the Coleman Report to her then-defense counsel. Although
Kauapirura thereafter proceeded pro se, the Government was not obligated to
redisclose the report under the circumstances of this case. First, after being
terminated from representing her, Kauapirura’s attorney asserted in open court
4 that he would provide Kauapirura with the discovery materials. Second,
Kauapirura thereafter confirmed to the District Court “that she had received the
discovery materials from the Government and from her former counsel.” D. Ct.
Dkt. No. 47 at 1. We therefore conclude that the Government’s disclosure of the
Coleman Report satisfied its obligations under Brady.
Kauapirura next argues that the Government violated its obligations under
Napue v. Illinois, 360 U.S. 264, 269 (1959), by failing to correct the testimony of IRS
agent David Smith. “The Supreme Court has consistently held that a conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and
must be set aside if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.” Drake v. Portuondo, 553 F.3d 230,
241 (2d Cir. 2009) (cleaned up); see United States v. Monteleone, 257 F.3d 210, 219
(2d Cir. 2001). At trial, Kauapirura cross-examined agent Smith about Coleman’s
“personal problems.” App’x 69. Agent Smith testified that Coleman had
“financial difficulties” and “a family member . . . with extensive health issues.”
App’x 69. Although agent Smith did not mention the other facts alleged in the
Coleman Report, we see nothing in the record to suggest that the testimony he
provided about Coleman, or any of his other testimony, “was, in fact, false.”
5 United States v. Alston, 899 F.3d 135, 147 (2d Cir. 2018). Moreover, Kauapirura
was free to cross-examine agent Smith in greater depth about Coleman to elicit
more information. We therefore conclude that Kauapirura failed to make out a
claim that the Government offered or failed to correct false testimony under
Napue.
Kauapirura also argues that the District Court erred by failing to grant
Kauapirura’s post-trial recusal motion, and that the same error rendered her
sentence procedurally and substantively unreasonable because it tainted her
sentence with the perception of bias. We review recusal decisions for abuse of
discretion. See United States v. Rechnitz, 75 F.4th 131, 142 (2d Cir. 2023). It
appears to be uncontested that the District Judge had previously served as a
federal prosecutor who declined to pursue criminal charges against Coleman for
her alleged improprieties. Kauapirura principally contends that the District
Judge’s objectivity in the present case could thus “reasonably be questioned.” 28
U.S.C. § 455(a). We disagree. The District Judge’s personal connection to
Kauapirura’s case through Coleman was, at best, “indirect.” United States v.
Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Recusal is typically “not required on
the basis of remote, contingent, indirect or speculative interests.” Rechnitz, 75
6 F.4th at 147 (quotation marks omitted). We conclude that the District Judge’s
discretionary decision not to recuse fell “within the range of permissible
decisions.” City of New York v. Golden Feather Smoke Shop, Inc., 597 F.3d 115, 120
(2d Cir. 2010) (quotation marks omitted).
We have considered Kauapirura’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court