1 17

‐ 1612

United States v. Robinson

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 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 21 st day of September, two thousand eighteen.

PRESENT:

JOHN M. WALKER, JR.,

DENNIS JACOBS,

GUIDO CALABRESI,

Circuit Judges

.

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

‐ v. ‐ 17

‐ 1612

JAMES ROBINSON,

Defendant

‐ Appellant,

BERNARD COUCH, JR., JONATHAN ANDERSON,

Defendants.

____________________________________2 FOR DEFENDANT

‐ APPELLANT: Daniel A. McGuinness, Adam D. Perlmutter,

Perlmutter & McGuinness, P.C., New York,

NY.

FOR APPELLEE: Nathan Rehn and Sarah K. Eddy, Assistant

United States Attorneys, for Geoffrey S.

Berman, United States Attorney for the

Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Scheindlin, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED

.

James Robinson was convicted by a jury in the United States District Court for

the Southern District of New York (Scheindlin, J.) of conspiracy to commit bank fraud.

See 18 U.S.C. § 1349. On appeal, Robinson challenges the sufficiency of the evidence as

well as certain evidentiary rulings. We assume the parties ʹ familiarity with the

underlying facts, the procedural history, and the issues presented for review.

1. Robinson argues that the evidence was insufficient to support his conviction

for conspiracy. Specifically, he claims that the only direct evidence of his intent to join

the conspiracy was the testimony of a cooperating witness named Kenneth Nadolny,

which (Robinson argues) the jury should have rejected on credibility grounds. The

argument fails easily.

A challenge to the sufficiency of the evidence fails if “ any rational [jury] could

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

States v. Persico, 645 F.3d 85, 105 (2d Cir. 2011) (internal quotation marks omitted).

Therefore we assess the evidence put before the jury by “draw[ing] all permissible

inferences in favor of the government and resolv[ing] all issues of credibility in favor of

the jury[‘s] verdict.” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011)

(emphases added). Our review is thus sharply circumscribed: “It is the province of the

jury [,] and not of the court[,] to determine whether a witness who may have been

inaccurate, contradictory and even untruthful in some respects was nonetheless entirely

credible in the essentials of his testimony.” United States v. O ʹ Connor, 650 F.3d 839,3 855 (2d Cir. 2011) (emphasis added) (internal quotation marks omitted). Accordingly,

we do not second

‐ guess a jury’s apparent decision to credit a witness’s testimony except

in extreme cases where the testimony was “incredible as a matter of law,” meaning it

was “incredible on its face” or it “def[ied] physical realities.” United States v. Truman,

688 F.3d 129, 139 (2d Cir. 2012) (internal quotation marks omitted). This is not an

extreme case.

In arguing that Nadolny’s testimony was incredible as a matter of law, Robinson

relies on an alleged lack of corroboration for some of Nadolny’s central assertions, his

supposedly combative demeanor on the witness stand, and a single inconsistency.

“The proper place for [such run

‐ of

‐ the

‐ mill] challenge[s] to a witness’s credibility is in

cross

‐ examination and in subsequent argument to the jury, not in a” request for post

‐

trial relief from a verdict. Truman, 688 F.3d at 139 (alteration, citation, and internal

quotation marks omitted). In Truman, we declined to find a witness’s testimony

incredible as a matter of law, despite substantially more pervasive indicia of

unreliability: the witness had been highly combative, refusing to answer any questions

on a key topic; his testimony had included various “inconsistencies”; his attorney had

conceded “that he had perjured himself” in a related state court trial; and the

government had “effective[ly] repudiat[ed]” his testimony. Id. at 139

‐ 40. On top of

that, he had breached a cooperation agreement with prosecutors and acknowledged his

history of criminal activity and substance abuse. See id. at 139. We nonetheless

vacated a grant of post

‐ trial relief that was based on the witness’s lack of credibility.

No different result is warranted here; the jury’s verdict finds sufficient support in the

record.

2. Robinson argues that the district court deprived him of a meaningful

opportunity to present a defense by prohibiting him (on hearsay grounds) from

testifying about exculpatory out

‐ of

‐ court statements purportedly made by two of his co

‐ conspirators.

As to testimony about co

‐ conspirator Kenneth Foote, Robinson’s counsel did not

contemporaneously offer a non

‐ hearsay basis for admitting the statements, but the court

identified one sua sponte after the defense had rested. The court then invited counsel to

recall his client to the stand in order to elicit the previously excluded testimony; but

counsel declined the offer.

Even assuming that the initial hearsay ruling was erroneous, Robinson’s claim

fails because the court’s curative measures permitted Robinson to present his defense

free of prejudice. District courts are empowered to “correct errors made in the course4 of trial while [they] still ha[ve] the opportunity to do so.” United States v. Burger, 739

F.2d 805, 810 (2d Cir. 1984). This authority includes the “discretion to reopen a case

after the defense has rested” so that previously excluded defense testimony can be

admitted. Id. at 809

‐ 10 (rejecting as “[un]persuasive” defendant’s claim that “the

belated admission of [the] evidence” would have prejudiced his case and that a mistrial

was required instead). An erroneous exclusion may be deemed cured even where, as

here, the defense

‐‐ as a matter of trial strategy

‐‐ declined the court’s offer to reopen. See

id. “We conclude that the district court’s offer to reopen the case was sufficient to

render harmless its previous error in excluding [the] evidence,” as “the belated

introduction of th[e] testimony [at issue] would not have been unfairly prejudicial.”

Id. at 810. Robinson cannot use an appeal “to evade the consequences of an

unsuccessful tactical decision.” United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.

1991).

Robinson also challenges the court’s exclusion of out

‐ of

‐ court statements

purportedly made by another co

‐ conspirator, Nadolny. The court did not extend an

offer to Robinson to retake the stand in order to introduce the previously excluded

Nadolny statements.

Again, Robinson’s counsel failed to offer a non

‐ hearsay basis for admitting the

statements, either contemporaneously or during the colloquy concerning Foote’s

statements and the court’s offer to reopen. See Fed. R. Evid. 103(a)(2). Accordingly,

any objection to the exclusion of the Nadolny statements was forfeited and our review

is only for plain error. See United States v. Yu

‐ Leung, 51 F.3d 1116, 1121 (2d Cir. 1995).

Robinson cannot prevail under that exacting standard.

“Th[e] [plain error] standard is met when (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant ʹ s substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affects the fairness, integrity

or public reputation of judicial proceedings.” United States v. Vilar, 729 F.3d 62, 70 (2d

Cir. 2013) (internal quotation marks omitted). Even assuming that the exclusion was

clearly erroneous, Robinson cannot establish that it “had a substantial and injurious

effect

. . . on the jury ʹ s verdict.” United States v. Groysman, 766 F.3d 147, 155 (2d Cir.

2014) (internal quotation marks omitted).

First, Robinson was permitted to introduce Nadolny’s out

‐ of

‐ court statements to

make substantially the same point he now claims he was not permitted to make.

Robinson contends on appeal that he was prohibited from offering statements made by5 Nadolny that would have provided the jury an “innocent explanation” for why he

accepted a stolen check from Nadolny. Appellant’s Br. 25. However, Robinson did

provide the jury such an explanation when he testified that Nadolny had told him that

the check was repayment for a loan and that the name on the check

‐‐ Undertone

‐‐ was

Nadolny’s company. Robinson fails to identify any additional information that he

would have adduced from Nadolny’s out

‐ of

‐ court statements on this point

‐‐ much less

information that would have swayed the jury

‐‐ and no such information is apparent in

the record. Robinson therefore fails to sustain his burden of establishing substantial

prejudice from the exclusion. See United States v. Bruno, 383 F.3d 65, 79 (2d Cir. 2004)

(“[T]he defendant

. . . bears the burden of persuasion with respect to prejudice [on plain

error review].”).

Finally, Robinson cannot establish that the jury’s verdict would have been

different if he had been permitted to offer further testimony about his supposedly

innocent receipt of the Nadolny check. Nadolny directly testified that Robinson was a

knowing participant in the conspiracy, and the jury evidently credited that testimony.

Even apart from Robinson’s handling of the Nadolny check, there was damning

testimonial and documentary evidence of his criminal activities. Substantial evidence

showed that Robinson, inter alia, created a forged letter to induce a bank to accept for

deposit stolen Undertone checks, directed an associate to deposit additional stolen

checks, and had regular contact with the other conspirators during the course of the

scheme. On this record, we cannot say that the introduction of arguably cumulative

evidence on a narrow point would have occasioned Robinson’s acquittal.

We have considered Robinson’s remaining arguments

‐‐ including his contention

that the court committed error by directing the invitation to reopen to Robinson’s

counsel rather than to Robinson himself

‐‐ and find them to be without merit. See

Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997). For the foregoing reasons, we AFFIRM

the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court