11‐5116‐cr United States v. Robert Anthony Warren

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 25th day of September, two thousand and thirteen.

PRESENT: RALPH K. WINTER, JOHN M. WALKER, JR., RICHARD C. WESLEY, Circuit Judges.

UNITED STATES OF AMERICA,

Appellee,

‐v.‐ No. 11‐5116‐cr

ROXANNE BROWN,

Defendant,

ROBERT ANTHONY WARREN,

Defendant‐Appellant.

FOR APPELLANT: MARSHALL A. MINTZ, Mintz & Oppenheim LLP, New York, NY.

FOR APPELLEE: SERRIN TURNER, Assistant United States Attorney (Justin Anderson, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

Appeal from the United States District Court for the Southern District of New York (Denny Chin, Circuit Judge, sitting by designation).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

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,

(2d Cir.

2013) (quoting United States v. Stewart,

(2d Cir. 2009)). “The law

2 has long recognized that criminal intent may be proved by circumstantial

evidence alone.” United States v. Heras,

(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,

(2d Cir. 2008) (quoting United

States v. Aulicino,

(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,

(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,

(2d Cir. 2013) (quoting Johnson v. United States,

(1997)).

Although some of the specific examples of Warren’s calling co‐conspirators’

3 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,

, 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,

(2d Cir. 2010) (internal quotation marks omitted).

Finally, there was no plain error in the government’s summation. See

United States v. Williams,

, 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 know’ 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.

4 Younger,

(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,

(2d Cir. 1999) (quoting United States v.

Peterson,

(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,

(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.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

5