United States v. Peirce

357 F. App'x 319
CourtCourt of Appeals for the Second Circuit
DecidedDecember 17, 2009
Docket09-0091-cr
StatusUnpublished
Cited by2 cases

This text of 357 F. App'x 319 (United States v. Peirce) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Peirce, 357 F. App'x 319 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Defendant-appellant Carol Peirce appeals from an amended judgment of the United States District Court for the Southern District of New York following her conviction and sentencing. Peirce was found guilty of all five counts alleged in the indictment. The district court sentenced her principally to 87 months of imprisonment. The court subsequently entered an amended judgment additionally ordering Peirce to pay $155,369.91 in restitution. We assume the parties’ familiarity with the factual and the procedural history of this case, as well as the issues on appeal.

I. The District Court Did Not Err in Admitting Evidence of Uncharged Conduct

Peirce argues that the district court wrongly admitted evidence of three uncharged acts to prove that she committed the charged offenses because any relevance the evidence had was outweighed by the risk that the jury would use the evidence as proof of her propensity to engage in criminal conduct — an impermissible use under Federal Rule of Evidence 404(b) (“Rule 404(b)”). When reviewing eviden-tiary challenges, this Court applies two different standards of review. If a contemporaneous objection was made at trial, this Court reviews evidentiary rulings for abuse of discretion. United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009). To find abuse of discretion, this Court “must conclude that the trial judge’s evidentiary rulings were arbitrary and irrational.” Id. If, however, a contemporaneous objection was not made, this Court reviews only for plain error. United States v. Johnson, 529 F.3d 493, 501 (2d Cir.2008). The plain error standard is more rigorous and can only be satisfied if there is “(1) error, (2) that is plain, and (3) that ‘affects substantial rights....’ If all three conditions are met, an appellate court may then exercise its discretion to notiee a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 501-02 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

We find no abuse of discretion with regard to Peirce’s first two Rule 404(b) challenges, namely that the district court erred by admitting evidence that she hired her husband and her friend’s company to complete electrical and construction work on behalf of the New York Presbyterian Hospital (“NYP”) Womens, Infants, and Children (“WIC”) program. When reviewing whether a district court properly admitted evidence of uncharged acts under Rule 404(b), this Court considers whether the evidence was: (i) introduced for a proper purpose; (ii) relevant to the charged offense; (iii) not substantially more prejudicial than probative; and (iv) admitted with a limiting instruction if requested. United States v. Rutkoske, 506 F.3d 170, 177 (2d Cir.2007). District courts have “broad discretion to admit evi *322 dence pursuant to Rule 404(b).” United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994).

The district court properly instructed the jury that evidence of uncharged bad acts may be used only for limited purposes, including, “opportunity and ability to engage in the alleged crimes;” “the existence of a common scheme, plan, or preparation;” and the fact that the “defendant acted knowingly and intentionally;” and not as evidence of the defendant’s criminal propensity. The evidence was relevant to the charged offenses because it bore on these factors. Moreover, the probative value of the evidence was not substantially outweighed by the risk of prejudice because the uncharged conduct was not “especially worse or [more] shocking than the transactions charged.” Mercado, 573 F.3d at 142.

As for Peirce’s third challenge, namely that the district court improperly admitted evidence that Peirce was told during an April 2003 union-grievance proceeding that NYP required her to use union employees rather than her accomplice’s company to provide housekeeping services, the defendant made no objection to this ground, and we cannot say that the district court committed plain error given the limited use of this evidence.

II. The District Court Properly Admitted the Summary Charts and Inspector Berry’s Testimony

Peirce challenges the district court’s admission of two summary charts depicting the personal charges that Peirce made using the WIC credit card and the accompanying testimony of United States Postal Inspector Eleanor Berry. This Court reviews a district court’s admission of summary charts or non-expert opinion testimony for an abuse of discretion. See United States v. Pinto, 850 F.2d 927, 935 (2d Cir.1988) (summary charts); United States v. Garcia, 413 F.3d 201, 210 (2d Cir.2005) (non-expert opinion testimony).

Here, the district court properly admitted the summary charts as pedagogic devices to help explain the WIC credit card charges to the jury. This Court has held that summary charts are admissible where all of the evidence contained in the charts is supported by evidence already admitted. United States v. Baccollo, 725 F.2d 170, 173 (2d Cir.1983). Because the WIC credit card records were admitted into evidence prior to the introduction of the summary charts, the district court properly admitted the summary charts to supplement Inspector Berry’s testimony relating to Peirce’s use of the WIC credit card.

The district court also properly allowed Inspector Berry to testify about the process used to create the summary charts. This Court has held that district courts must ascertain whether summary charts “fairly represent and summarize the evidence upon which they are based.” United States v. Citron, 783 F.2d 307, 316 (2d Cir.1986) (quoting United States v. O’Connor, 237 F.2d 466, 475 (2d Cir.1956)). Furthermore, we have reasoned that the party seeking to introduce the charts need not “provide detailed testimony stating the basis of each calculation.... All that is required is enough explanation to allow the jury to see how the numbers on a chart were derived from the underlying evidence put before it.” Id. at 317. To comply with this burden, the Government properly called Inspector Berry to testify about, inter alia, how she created the charts and any assumptions or conclusions that she made when crafting the charts.

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Related

Peirce v. United States
176 L. Ed. 2d 749 (Supreme Court, 2010)

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Bluebook (online)
357 F. App'x 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-peirce-ca2-2009.