* The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation. 10-4910-cr United States v. Koschuk
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 16 thday of May, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges , 8 J. GARVAN MURTHA, 9 District Judge. * 10 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 17 -v.- 10-4910-cr 18 19 CHAD KOSCHUK, 20 21 Defendant-Appellant. 22 23 24 FOR APPELLANT: JULIA PAMELA HEIT, New York, NY. 25 26 FOR APPELLEE: ANTHONY M. BRUCE, Assistant United States 27 Attorney (W. Seth Calleri, Student Law 28 Clerk, on the brief ), for William J. 29 Hochul, Jr., United States Attorney for 30 the Western District of New York, 31 Buffalo, NY. 322 Appeal from the United States District Court for the 1 Western District of New York (Skretny, C.J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4

**AND DECREED**that the judgment of the United States District 5 Court for the Western District of New York be **AFFIRMED**
. 6 Appellant Chad Koschuk appeals from a judgment of the 7 United States District Court for the Western District of New 8 York (Skretny, C.J. ). Koschuk was convicted after a jury 9 trial of threatening to cause bodily injury to a witness 10 with the intent to retaliate against him for providing 11 information at an official proceeding and providing to a law 12 enforcement officer information relating to the possible 13 commission of a federal offense in violation of 18 U.S.C. § 14 1513(b). The district court sentenced Koschuk principally 15 to 18 months’ incarceration. We assume the parties’ 16 familiarity with the underlying facts, the procedural 17 history, and the issues presented for review. 18 Koschuk raises a number of arguments on appeal. He 19 first contends that the evidence was insufficient to convict 20 him of the charge. A criminal defendant challenging the 21 sufficiency of the evidence supporting a conviction bears a 22 heavy burden. United States v. Brown , 937 F.2d 32, 35 (2d 23 Cir. 1991). “[T]he relevant question [on appeal] is 243 whether, after viewing the evidence in the light most 1 favorable to the prosecution, any rational trier of fact 2 could have found the essential elements of the crime beyond 3 a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 4 (1979). From our review of the record, there was more than 5 sufficient circumstantial evidence from which a jury could 6 reasonably infer that Koschuk threatened Macken with bodily 7 injury and that Koschuk was aware that Macken was a witness 8 and had provided information about a federal offense to law 9 enforcement agents. See United States v. Draper , 553 F.3d 10 174, 180 (2d Cir. 2009). 11 Koschuk next claims that his statement to Macken enjoys 12 First Amendment protection. That argument is without merit. 13 True threats are not protected by the First Amendment. See, 14

e.g. , United States v. Malik , 16 F.3d 45, 50-51 (2d Cir. 15 1994). On the basis of the evidence presented to it, the 16 jury could conclude that Koschuck’s statements to Macken 17 constituted a threat of bodily injury. Notably, Koschuk’s 18 trial counsel conceded as much before the district court. 19 Similarly unavailing is Koschuk’s contention that his 20 conviction must be reversed on the basis of two unobjected21 to comments by the Assistant United States Attorney during 224 summation. "A defendant bears a substantial burden in 1 arguing for reversal on the basis of prosecutorial 2 misconduct in the summation." United States v. Caracappa , 3 614 F.3d 30, 41 (2d Cir. 2010). Generally, "[i]n 4 determining whether an inappropriate remark amounts to 5 prejudicial error, we look to the severity of the 6 misconduct, the measures adopted to cure the misconduct, and 7 the certainty of conviction absent the misconduct." Id

. 8 (internal quotation marks omitted). Where the defendant 9 does not object to the government’s summation, we will 10 reverse only for “flagrant abuse.” United States v. 11 Zichettello , 208 F.3d 72, 103 (2d Cir. 2000). To reverse a 12 conviction on the basis of the government improperly 13 commenting on the defendant’s failure to testify at trial, 14 the comment, viewed in context, must be “of such a character 15 that the jury would naturally and necessarily take it to be 16 a comment on the failure of the accused to testify.” United 17 States v. Pitre , 960 F.2d 1112, 1124 (2d Cir. 1992) 18 (internal quotation marks omitted) (emphasis added). We are 19 satisfied that the prosecutor’s comments did not run afoul 20 of these legal principles. 21
225 After a thorough review of the record, we find 1 Koschuk’s remaining arguments–including the argument that 2 his below-Guidelines sentence of 18 months’ incarceration is 3 substantively unreasonable–to be without merit. 4 For the foregoing reasons, the judgment of the district 5 court is hereby **AFFIRMED**
. 6
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10 11