18-1181 U.S. v. Williams

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 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY 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 Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 13 th day of September, two thousand nineteen.

PRESENT: J OHN M. W ALKER , J R ., S USAN L. C ARNEY , R ICHARD J. S ULLIVAN , Circuit Judges

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_____________ _______________ _____________
U NITED S TATES OF A MERICA , Appellee,

v. No. 18-1181

S TEVEN W ILLIAMS , Defendant-Appellant.

_____________ _______________ _____________ FOR APPELLANT: T INA S CHNEIDER , Esq., Portland, ME.

FOR APPELLEE: L ARA P OMERANTZ (Rebekah Donaleski, Daniel B. Tehrani, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

.2 Appeal from a judgment of the United States District Court for th e Southern District of New York (Schofield, J. ).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on April 3, 2018, is
AFFIRMED.
Defendant-Appellant Steven Williams appeal s from a judgment of conviction entered on April 3, 2018, following a jury trial in the United States Di strict Court for the Southern District of New York (Schofield, J. ). Williams was convicted of conspiracy to distribute, or possess with the intent to distribute, cocaine and heroin, in violati on of 21 U.S.C. §§ 846 and 841(b)(1)(A). At trial, the government relie d on the testimony of three cooperating witnesses—Patrick Edwards, Louis Lombard, and Miguel Chavez—each of whom pleaded guilty to charges relating to their respective roles in the drug-trafficking conspiracy. The evidence at trial showed, generally, that th e conspiracy consisted of Edwards procuring heroin and cocaine in Los Angeles and shippi ng those drugs to Williams in New York. 1 Like Edwards, Chavez and Lombard were Los Ange les-based drug dealers. They testified to Edwards’s activity in the Los Angeles side of the bi-coastal conspiracy. Of the three cooperating witnesses, only Edwards testified to Williams’s personal involvement in the conspiracy. At trial, the prosecution questioned a ll three cooperating witnesses on direct examination about certain provisions of th eir cooperation agreements (the “truth-telling provisions”). The witnesses explained that these provisions required each to testify truthfully in order to receive government letters recomm ending reduced sentences in the witnesses’ respective prosecutions. On appeal, Williams s eeks to vacate his conviction on two bases. First, he challenges the prosecution’s elic itation of this testimony, arguing that the prosecution engaged in improper bolstering by introducing evidence of the truth-telling

1 Details of the conspiracy are set out in this Court’s decision in a related appeal, United States v. Edwards , 723 F. App’x 48 (2d Cir. 2018).3 provisions before the defense attacked the co operating witnesses’ credibility. Second, Williams argues that the prosecution’s emphasi s on these truth-telling provisions during its summation was improper vouching and constitu ted prosecutorial misconduct. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessar y to explain our d ecision to affirm. Because Williams did not object at trial to th e government’s questioning regarding the cooperation agreements’ truth-telling provisions, or to any relevant portion of the government’s summation, we review solely for plain error. United States v. Gaind , 31 F.3d 73, 76 (2d Cir. 1994). To establish pl ain error, an appellant must de monstrate: (1) error; (2) that is plain, meaning “clear or obvious, rather than subject to reasonable dispute”; (3) that “affected the appellant’s substantial rights, whic h in the ordinary case means it affected the outcome of the district court proceedings”; and (4) that “seriously affect[ed] the fairness, integrity or public reputati on of judicial proceedings.” United States v. Ghailani , 733 F.3d 29, 52 (2d Cir. 2013) (internal quotation marks omitted).

I. Bolstering Federal Rule of Evidence 608(a) provides th at “evidence of truthful character is admissible only after the witness’ s character for truthfulness has been attacked.” This Court
has therefore held that it is error for th e prosecution to inquire into the truth-telling requirements of a cooperation agreement—which ar e “used by the government primarily to bolster the credibility of a witness”—before th e defendant has attacked the credibility of a cooperating witness. Gaind , 31 F.3d at 78 (citation omitted).
Once a witness’s credibility has been challe nged, however, the government is free to elicit such testimony as rehabilitative evidence. United States v. Arroyo–Angulo , 580 F.2d 1137, 1146 (2d Cir. 1978). A credibility ch allenge sufficient to open the door to such rehabilitative evidence may come during the defense’s opening statement. Gaind , 31 F.3d at 78. Where an opening statement “sufficiently implicates the cr edibility of a government witness,” we have held, “testimonial evidence of bolstering aspects of a cooperation agreement may be introduced for rehabilitative purp oses during direct examination.” Id . (quoting United States v.4 Cosentino , 844 F.2d 30, 33 (2d Cir. 1988)); see also United States v. Quinones , 511 F.3d 289, 313 n.16 (2d Cir. 2007) (“Because defendants attacked the credibility of government witnesses in their opening statements, their challenge to the elicitation of . . . rehabilitative testimony on
direct rather than redirect examination is unav ailing.”). Moreover, if testimony on the truthtelling provisions of a witness’s cooperation agreement has been improperly introduced before that witness’s credibility has been challe nged, but the defense challenges the witness’s credibility later—for example, on cross-examinat ion, or during closing arguments—reversal is not necessarily required. See, e.g.
, Arroyo-Angulo , 580 F.2d at 1147 (holding that “the error in the timing of the introduction of the coope ration agreement [did] not require reversal,” given the “formidable assault which in fa ct was made” on the cooperating witness’s credibility later in trial).
As to the government’s primary cooperating witness, Patrick Edwards, the prosecution’s elicitation of testimony regar ding the truth-telling provisions of his cooperation agreement on direct examination was not premature. Williams’s defense counsel attacked Edwards’s credibility in his opening st atement, declaring, among other things, that Edwards’s forthcoming testimony would be “rid dled with inconsistencies” and would “not
make sense in terms of what is normal . . . in the [drug dealing] industry.” Tr. 40. 2 This line of argument opened the door for the governme nt’s introduction of rehabilitative evidence about Edwards’s credibility on di rect examination. There was th us no error in the timing of the government’s inquiry into the truth- telling provisions of Edwards’s cooperation agreement on direct examination.
As to Lombard and Chavez, the other c ooperating witnesses, the prosecution’s elicitation of testimony regarding the truth-te lling provisions of their respective agreements appears to have come before the defense a ttacked their credibility. Williams has not, however, demonstrated that the premature intr oduction of this credibility-bolstering testimony “seriously affect[ed] the fairness, in tegrity or public reputation of judicial proceedings,” as he must to pr evail on plain error review. United States v. Olano, 507 U.S. 725,

2 “Tr.” refers to the trial transcript, which is found in Volumes I and II of the Appendix.5 732 (1993) (internal quotation marks omitted) . Whether the jury credited Lombard and Chavez’s testimony had little bearing on Willia ms’s conviction, as even Williams’s defense counsel acknowledged at trial, when he declared to the jury on summation, “I’m not going to attack what Mr. Chavez had to say because I su bmit to you what Mr. Chavez had to say was believable. What Mr. Lombard had to say, belie vable. What Mr. Edwards had to say, a far different story.” Tr. 676. Williams makes no argument on appeal as to why the premature inquiry into the terms of Chavez’s and Lombar d’s agreements affected the outcome of his case, in the face of his attorney’s concessi on that Chavez and Lombard’s testimony was
credible.
Thus, although the prosecution may have e rred by prematurely introducing the truthtelling provisions of Chavez’s and Lombard’ s cooperation agreements, Williams has failed to demonstrate that the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (internal quo tation marks omitted). His challenge on this ground therefore fails.

II. Vouching
Williams urges next that the government improperly vouched for its cooperating witnesses in its closing arguments by declaring that the cooperators “knew that if they lied, they would get caught,” Tr. 672, thereby suggestin g that the prosecutors had “the ability to
divine the truth” as to the witnesses’ testim ony. Appellant Br. at 18. It has long been established that prosecutors may not “vouch fo r their witnesses’ truthfulness” or otherwise express their “personal belief or opinion as to the truth or falsity of any testimony or evidence or [the] guilt of the defendant.” United States v. Modica , 663 F.2d 1173, 1178-79 (2d Cir. 1981) (internal quotation marks omitted). The government may, however, “reply with rebutting language suitable to the occasion” wh en defense counsel “impugns its integrity or the integrity of its case” or “attack[s] the pros ecutor’s credibility or the credibility of the government.” United States v. Thai , 29 F.3d 785, 807 (2d Cir. 199 4) (internal quotation marks omitted).6 Reversal of a conviction on grounds of im proper vouching is justified only if a prosecutor’s improper remark “causes the defendan t substantial prejudice by so infecting the
trial with unfairness as to make the result ing conviction a denial of due process.” United States
v. Carr , 424 F.3d 213, 227 (2d Cir. 2005) (quoting United States v. Shareef , 190 F.3d 71, 78 (2d Cir. 1999). Where, as here, the defendant did not object at tr ial, and we review for plain error, we will reverse a conviction onl y in instances of “flagrant abuse.” Id. (quoting United
States v. Zichettello , 208 F.3d 72, 103 (2d Cir. 2000)).

In Carr , we rejected a defendant’s argument th at the government improperly vouched for a cooperating witness in circumstances very similar to those presented here. 424 F.3d at 227-28. There, the government had stated that the cooperating witnesses “ha[d] to tell the truth to [the jury], most importantly. Beca use if they don’t tell the truth, then the government doesn’t write them their letter.” Id . at 228. We reasoned that “[t]he agreements did . . . require that the witnesses ‘tell the tr uth’ to benefit from them,” and that this statement was a “permissible referen ce to the evidence in the case.” Id. The government also speculated on the cooperating witnesses’ motivations to tell the truth, in light of the truthtelling provisions in their cooperation agreements. Id . at 229. We found this speculation to be a permissible “simple, common-sense argument,” not vouching. Id

. Several of the statements Williams challeng es here are akin to the statements we found permissible in Carr and likewise do not constitute vouching. In Carr , we did find that some of the challenged statements might be vouching because they arguably were not supported by evidence in the record. Id . at 229-30. We concluded, however, that any error was insignificant when “read in the context of the trial as a whole,” id. at 230, throughout which “the defense continually sought to un dermine the credibility of the government’s
witnesses.” Id. at 227. As in Carr , Williams invoked the witnesses’ cooperation agreements throughout the trial, attempting to erode their credib ility. Even if the remaining statements that Williams challenges could be construed as references to eviden ce outside the record,
such statements did not cause Williams substantia l prejudice or rise to the level of flagrant
abuse.

* * *7 We have considered Williams’s remainin g arguments on appeal and conclude that they are without merit. For the foregoing re asons, the District Court’s judgment is
AFFIRMED

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FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court