17-1589-cr United States of America v. Oreckinto 

### 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 29 th day of May, two thousand nineteen. PRESENT: ROSEMARY S. POOLER, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN,* Circuit Judges.

_____________________________________ United States of America, Appellee , v. 17-1589-cr Andrew Oreckinto, Defendant-Appellant .

___________________________________ FOR APPELLEE: MICHAEL J. GUSTAFSON, Asst. U.S. Atty., New Haven, CT (Marc H. Silverman, Asst. U.S. Atty., New Haven, CT, on the brief ), for John H. Durham, U.S. Atty. for the District of Connecticut. FOR DEFENDANT-APPELLANT: TRACY HAYES, Asst. Federal Defender, for Terence S. Ward, Federal Defender for the District of Connecticut, New Haven, CT.

* Judge Richard J. Sullivan was a District Judge of the United States District Court for the Southern District of New York, sitting by de signation, at the time this case was heard.2 Appeal from a judgment of the United States Di strict Court for the Di strict of Connecticut (Meyer, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Andrew Oreckinto appe als from the May 15, 2017 judgment of the United States District Court for th e District of Connecticut convict ing him, following a jury trial, of theft from an interstate ship ment of cigarettes in violation of 18 U.S.C. § 659. We assume the parties’ familiarity with the unde rlying facts, the procedural hist ory of the case, and the issues presented for review. Defendant raises two claims on appeal: (1) that the government did not present sufficient evidence to prove that he stole an “interst ate shipment” under Section 659, and (2) that the government made improper statements and displaye d inflammatory and prej udicial images to the jury during summation. We address each claim in turn.
I. Sufficiency of the Evidence We evaluate challenges to the su fficiency of the evidence de novo. See United States v. Soler , 759 F.3d 226, 229 (2d Cir. 2014). “In so doing, we view the evidence pr esented in the light most favorable to the government, and we draw all reasonable infere nces in its favor.” United States v. Huezo , 546 F.3d 174, 178 (2d Cir. 2008) (quoting United States v. Autuori , 212 F.3d 105, 114 (2d Cir. 2000)). Accordingly, we do not disturb a jury’s verdict unless “t he evidence that the defendant committed the crime alleged is nonexisten t or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” United States v. Cuti , 720 F.3d 453, 461 (2d Cir. 2013) (quoting United States v. Espaillet , 380 F.3d 713, 718 (2d Cir. 2004)).3 Drawing all reasonable inferences in the government’s favor, we conclude that the government presented sufficient evidence at trial to prove the following facts. On March 19, 2011, Defendant broke into the New Britain Candy Company (“NBCC”) warehouse located in Wethersfield, Connectic ut, and stole approximately 8,000 cartons of cigarettes worth nearly $300,000. NBCC is wholly owned and operated by General Equities Inc., which also operates a chain of convenience stor es along the East Coast called Food Bag. NBCC is the “Food Bag fulfillment center” – that is, it “supplies all the products that you see in Food Bag[]” stores, including cigarettes, candy, and other grocery items. Gov’t App’x at 106–08. As of February 2017, there were 51 Food Bag locations: 35 in Connecticut , five in New York, five in Massachusetts, three in Florida, two in New Je rsey, and one in Pennsylvania. NBCC supplies products to the Connecticut, New York, Massachus etts, and New Jersey F ood Bag stores, but not the Florida or Pennsylvania Food Bag stores. NBCC does not manufacture any of its own ciga rettes but rather purchases them from two “major vendors” – Philip Morris and R.J. Reynolds – lo cated in “the Virginia/N orth Carolina area.” Id. at 109. When a shipment of cigarettes is de livered to NBCC, NBCC ope ns the shipment, cuts the 60-carton cases in half, and moves them to the mezzanine of the warehouse, where they are placed “in what’s called a slot, which is basically a roll rack that a picker can pick the cigarette from for a specific order.” Id. at 111. The cartons then remain in storage until they are ready for shipment to one of the Food Bag stores. No cigare ttes are sold directly to consumers at the NBCC warehouse. When a Food Bag store places a specific or der, the order is tr ansferred to NBCC’s mainframe computer, which generates a “pick list” – a list that NBCC workers use to “actually pick4 the product that’s being shipped.” Id. at 169. After the cigarettes are picked out, NBCC applies tax stamps to each carton, sends them out to N BCC’s delivery trucks, and creates an invoice for each order. Individual Food Bag stores are ultimately billed fo r each shipment. NBCC turns over its entire stock of cigarettes appr oximately once every week and a half. Defendant argues that the evidence compelled a finding that the interstate shipment of cigarettes from the Virginia and North Caro lina manufacturers to the NBCC warehouse in Connecticut terminated when NBCC took cu stody of the cigarettes. We disagree. In reviewing Defendant’s evidentiary challe nge, we begin by cons idering the relevant statutory text. See, e.g. , United States v. Carter , 801 F.2d 78, 81–82 (2d Cir. 1986). Contrary to Defendant’s argument, the text and purpose of S ection 659 strongly suggest that a shipment retains its interstate character even after it is moved from a truck to a temporary storage facility. First, Congress specifically include d “warehouse[s]” and “sto rage facilit[ies]” in Section 659’s list of entities from which “goods or chattels . . . which c onstitute an interstate or foreign shipment of freight, express, or other propert y” could be stolen. 18 U.S.C. § 659. Furthermore, we have repeatedly recognized that Congr ess enacted Section 659 “to protec t and promote the flow of goods in interstate commerce,” United States v. Berger , 338 F.2d 485, 487 (2d Cir. 1964), “and that the carrying out of this purpose is not to be hampered by technical legal conceptions,” United States v. Astolas , 487 F.2d 275, 279 (2d Cir. 1973); see also United States v. Bryser , 954 F.2d 79, 86 (2d Cir. 1992) (“We have long disagreed with crabbed in terpretations of this statute.”). Thus, “the determination that a shipment is interstate is es sentially a practical one based on common sense and administered on an ad hoc basis.” Astolas , 487 F.2d at 279.5 Undertaking this practical determination here in light of Section 659’ s text and purpose – and drawing all reasonable inferences in the gove rnment’s favor – we c onclude that there was sufficient evidence for a jury to find that Defendant stole the cigarettes while they were temporarily stored at the NBCC warehouse, and that the stolen cigarettes remained on an interstate journey from the North Carolina and Virginia cigarette manufact urers to the individual Food Bag stores located in Connecticut, New York, Massachusetts, and New Jersey. The evidence presented at trial, and outlined above, amply supports this finding. 2 In arguing otherwise, Defendant relies upon the clause in Section 659 that provides that “the waybill or othe r shipping document of such shipment shall be prima facie evidence of the place from wh ich and to which such shipment was made.” 18 U.S.C. § 659. However, while the shipping docume nts at issue here coul d certainly have been used as prima facie evidence that the NBCC warehouse was the cigarette shipment’s final destination, such prima facie evid ence can still be contradicted. See , e.g. , Prima Facie Evidence , Black’s Law Dictionary (10th ed. 2014) (definin g “prima facie evidence” as “[e]vidence that will establish a fact . . . unless contra dictory evidence is produced”). He re, the government contradicted the prima facie evidence by presenting evidence of NBCC’s role as a temporary storage point between the manufacturers and the individual Food Bag convenience st ores. In sum, a reasonable jury could have found that – bills of lading notwithstandi ng – the interstate shipment of cigarettes had not yet terminated upon its arrival at the NBCC warehouse.

2 The district court held that “the interstate sh ipment requirement of § 659 may be satisfied on the basis of evidence concerning the routine and normal practices of a business to ship all or a significant portion of its inventor y to out-of-state locations.” A ppellant Add. at 10. Because we conclude that the cigarettes at i ssue were part of a broader inters tate shipment originating at the cigarette manufacturers in Nort h Carolina and Virginia, paus ing at the NBCC warehouse in Connecticut, and concluding at the individual retail st ores where they were to be sold, we need not decide whether the district court er red in its broader statutory holding.6 Our conclusion is not altered by the fact th at it was NBCC – not the individual Food Bag stores – that placed the purchas e orders for the cigarettes from the North Carolina and Virginia manufacturers. Even though NBCC technically “owned” the cigarett es at the time of the burglary, the evidence demonstrated that such ownership was transitory. To repeat, NBCC took ownership of the cigarettes solely for the pur pose of storing them before transporting them to the Food Bag locations in Connecticut, New Yor k, Massachusetts, and New Jersey. As our sister circuits have explained, a middleman buyer’s in tent to reship goods can rende r those goods an “interstate shipment” while in the middleman’s possession a nd until they reach their final destination. See , e.g. , United States v. Skoczen , 405 F.3d 537, 544–45 (7th Cir. 2005) (holding that shipments remained interstate while being stored by th e United States Customs Service even though the Customs Service was a cosigne r on the bill of lading); United States v. Williams , 559 F.2d 1243, 1248 (4th Cir. 1977) (holding that a gasoline shipment remained interstate while it was in a “storage facility for a short period of time prior to its delivery to local distributors”); cf. United States v. Garber , 626 F.2d 1144, 1152 (3d Cir. 1980) (holding that sh ipments from Chile to Connecticut had not reached their “final destination,” and thus we re still “foreign” for purposes of Section 659, while paused in Philadelphia, in light of the shipper’s “ active pursuit” of alte rnative purchasers). Accordingly, on the record here, there was sufficient evidence to support the jury’s finding that Defendant stole an intersta te shipment of cigarettes in violation of 18 U.S.C. § 659.
II. Prosecutorial Misconduct Defendant also challenges his conviction on the grounds that the government made improper statements and displayed inflammatory images to the jury during its summation. Specifically, Defendant argues (1) that the pros ecutor misstated the law in summation when7 asserting that the theft “affected interstate commer ce” and that “the inters tate piece of the case” could be satisfied if the theft interfered with fu ture shipments, Appellant Br. at 39 (quoting Gov’t App’x at 755, 808); (2) that, also during summation, the prosecutor improperly showed the jury an image of the Defendant framed as their target, as well as an image of the Defendant with the caption “Guilty,” Appellant Br. at 41; Doc. No. 21-1 at 5–6; and (3) that such errors substantially prejudiced him. We review these claims de novo, see United States v. Daugerdas , 837 F.3d 212, 227 (2d Cir. 2016), and find no prejudicial error. A defendant who “seeks to overtur n his conviction based on alleged prosecutorial misconduct in summa tion bears a ‘heavy burden.’” United States v. Farhane , 634 F.3d 127, 167 (2d Cir. 2011) (quoting United States v. Feliciano, 223 F.3d 102, 123 (2d Cir. 2000)). The defendant must show not simply that a particular summation comment was improper, but that the comment, viewed against the entire argument to the jury, and in the context of the entire trial, wa s so severe and significant as to have substantially prejudiced him . . . such that the resulting conviction was a denial of due process. United States v. Williams , 690 F.3d 70, 75 (2d Cir. 2012) (internal quotation marks, alterations, and citations omitted). Further, because Defendant di d not object to the prosecutor’s statements during summation, we may not grant a new trial based on such statements “absent flagrant abuse.” United States v. Sheehan , 838 F.3d 109, 128 (2d Cir. 2016) (quoting United States v. Zichettello , 208 F.3d 72, 103 (2d Cir. 2000)). The prosecutor’s statements du ring summation fell well short of flagrant abuse. Even if the prosecutor misstated the law on one occasion by referencing “interstate commerce” as a proxy for the “interstate shipment” element, the prosecut or also repeatedly and properly instructed the jury that it had to find the existence of an inters tate shipment. Further, the prosecutor presented a8 proper interstate shipment theory to the jury, namel y, that the cigarettes were still on an interstate journey from the manufacturers to the individual Food Bag stores wh en they were stolen from the warehouse. Thus, even if the pros ecutor also referenced an errone ous interstate shipment theory, when “viewed against the entire argument to the jury, and in the context of the entire trial,” Williams , 690 F.3d at 75 (internal quotation marks omitte d), the prosecutor’s conduct did not result in substantial prejudice or am ount to a flagrant abuse. With respect to the s lides that the prosecutor showed to the jury during summation, we find no error, let alone prejud icial error. The slides at issue we re not unduly provocative, nor did they suggest that the jury should fi nd Defendant guilty simply because the prosecutor said so. Moreover, the district court specifically and correct ly instructed the jury that it was “appropriate for any party . . . to use this kind of demons trative exhibit in connection with their closing arguments,” and that the slideshow was “not evidence itself.” Gov’t App’x at 749; see United States v. Roldan-Zapata , 916 F.2d 795, 807 (2d Cir. 1990) (“In su mmation counsel are free to make arguments which may be reasonably infe rred from the evidence presented.”); see also, e.g. , United States v. Ruiz , 710 F.3d 1077, 1082–84 (9th Cir. 2013) (holdi ng that the prosecu tor’s use of a PowerPoint presentation during summation to argue that the defendant was guilty did not result in substantial prejudice). Thus, even if the prosecutor’s use of the slides was improper, any error did not substantially prejudice Defendant. We find that Defendant’s remaining argumen ts are without merit. Accordingly, we AFFIRM the judgment of conviction en tered by the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court