NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________________

No. 20-1266 _______________________

UNITED STATES OF AMERICA

v.

CLEMENT BOUGOUNEAU, Appellant

_______________________

On Appeal from the District Court of the Virgin Islands District Court No. 3-19-cr-00017-001 District Judge: The Honorable Curtis V. Gomez __________________________

Submitted Under Third Circuit L.A.R. 34.1(a) December 7, 2020

Before: SMITH, Chief Judge, CHAGARES, and MATEY, Circuit Judges

(Filed: December 24, 2020)

__________________________

OPINION * __________________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Chief Judge.

Clement Bougouneau “serviced” an automated teller machine (ATM) by stealing

$70,000 from it. He argues on appeal that the jury’s guilty verdict was based on insufficient

evidence and that the District Court improperly admitted evidence that prejudiced him. But

because the jury’s guilty verdict was supported by ample evidence, his sufficiency

challenge fails. Nor does his belated argument concerning his supervisor’s testimony show

prejudicial plain error: Bougouneau repeated the same testimony when he later testified at

trial. We will affirm.

I.

Bougouneau was employed by Ranger American, a security company that services

ATMs at Banco Popular, a bank with a branch in St. John. When the ATMs are serviced,

several procedures must be followed. For starters, two uniformed employees drive an

armored vehicle to the bank. The employees open the ATM and exchange full canisters

containing cash deposited by customers with empty canisters. Then, the two employees

deliver the full canisters to a cash depot on St. Thomas. A separate component of the

ATM—which the employees do not access—contains sealed cash cassettes that contain

stacks of $20 bills for ATM withdrawals. A cassette may be unsealed only with prior

authorization; if a cassette is accidentally unsealed, a report must be filed.

Despite these procedures, on Labor Day 2017—a day Banco Popular was closed—

Bougouneau, alone and in civilian clothes, drove his SUV to Banco Popular. Video

surveillance showed Bougouneau opening an ATM, placing the money from the full

deposit canisters into an envelope, and putting the empty canisters back into the machine. 2 Then, one-by-one, Bougouneau took three of the four sealed cash cassettes behind a door

in the ATM room which was out of the camera’s range. When Bougouneau reappeared

from behind the door, the cassettes’ seals were missing. He placed the unsealed cassettes

back in the ATM. Ranger American did not give Bougouneau prior authorization to

unseal the cassettes and he did not file a report after doing so. Most importantly, no

money was delivered to the St. Thomas cash depot.

The following day, the ATM ran out of cash. It should have contained $70,000

available for customers to withdraw. That evening, the ATM was boarded up in

anticipation of Hurricane Irma’s impending landfall. It remained unused for several

months during hurricane recovery. In November, Bougouneau, along with Ranger

American’s ATM Operating Manager, Lillian De Jesus, went to inspect the ATM. When

they opened it, they observed three empty cassettes with missing security seals.

Bougouneau was later charged with bank burglary under

(a) and

bank larceny under

(b). At trial, De Jesus testified as to ordinary ATM

servicing procedures, and specifically about the November ATM inspection. And she

also pointed out, when shown the Labor Day surveillance video, that the cassette seals

were in place before Bougouneau went behind the door and that they were absent when

he came back into view. She provided this testimony even though she was not physically

present at the bank on Labor Day and therefore lacked personal knowledge of what had

occurred. Bougouneau did not object, although he repeatedly objected to other aspects of

De Jesus’s testimony.

3 On three occasions outside of the presence of the jury, the District Judge sua

sponte reminded counsel that a witness should not comment on evidence unless she was a

percipient witness to an event, referring to De Jesus’s video narration. Each time, the

Judge asked, “What’s the Defense’s position?” or a question of similar purpose. JA 214.

Bougouneau responded only once when he told the Judge he had mistakenly objected to

De Jesus’s testimony under Federal Rule of Evidence 404(b) “but should have went into

[Rule] 602.”

The Judge said that if a Rule 602 issue arose, “the Court will do what it

has to, which is to instruct [the jury] to disregard those two statements.” JA 268. But

Bougouneau did not request that the Judge strike the testimony or provide a curative

instruction.

Bougouneau then took the stand. On direct examination, he admitted that he

removed the seals from the cassettes but denied stealing any money. The jury convicted

him on both counts, and Bougouneau timely appealed. 2

II.

Bougouneau now objects to De Jesus’s video narration, but he forfeited this

objection by not raising it before the District Court. Forfeiture is the inadvertent “failure

to make the timely assertion of a right.” Barna v. Bd. of Sch. Dirs. of Panther Valley Sch.

Dist.,

(3d Cir. 2017). On three separate occasions, the Judge raised the

potential impropriety of De Jesus’s video narration. Only once did Bougouneau say he had

intended to raise a Rule 602 objection but had mistakenly objected under Rule 404(b),

2 The District Court had jurisdiction under

and

. We have jurisdiction under

. 4 when actually he had not objected at all. By failing to request that the Judge strike De

Jesus’s testimony, even after an apparent invitation from the Judge, Bougouneau forfeited

any related claim of error.

But even when a claim of error has been forfeited, we may subject the claim to

discretionary review if there was a “plain error that affects substantial rights.” Puckett v.

United States,

(2009). When reviewing for plain error, we look for a

clear error that “affected the outcome of the district court proceedings.”

Even if the

District Court had plainly erred—which we doubt—Bougouneau cannot show that De

Jesus’s narration of the surveillance video affected the outcome of the proceedings.

Bougouneau himself testified that he removed the cassette seals, and therefore corroborated

De Jesus’s testimony.

Bougouneau also challenges the sufficiency of the evidence underlying his

conviction. When we review the sufficiency of evidence, we “view[] the evidence in the

light most favorable to the prosecution” and determine whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” United

States v. Caraballo-Rodriguez,

, 424–25 (3d Cir. 2013) (emphasis omitted).

Bougouneau contends he cannot be guilty of bank burglary—which requires entering any

part of a bank with intent to steal—because he entered the bank with intent to service the

ATM. But given the evidence, including that Bougouneau appeared alone at the ATM and

disregarded many of Ranger American’s servicing procedures on a day that Banco Popular

did not request his services, a rational jury could find that Bougouneau entered the bank

with intent to steal. 5 Bougouneau also argues he cannot be guilty of bank larceny because the offense

requires taking money in excess of $1,000 from a bank. He says the Government can’t

prove he took more than $1,000. Again, a rational jury could find that, since the ATM

should have contained $70,000 but was found to be empty, Bougouneau helped himself to

an amount in excess of $1,000.

Bougouneau admitted to removing the cassette seals, and there was sufficient

evidence for the jury to find him guilty of bank burglary and bank larceny beyond a

reasonable doubt. We will affirm.

6