10- 930 -cr

Uni ted St ate s v . B oyd

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

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EPR ESE NTE D B Y C OUN SEL . 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 17 day of November, two thousand and ten. th 5 6 PRESENT: WILFRED FEINBERG, 7 BARRINGTON D. PARKER, 8 RICHARD C. WESLEY, 9 Circuit Judges . 10 1 1 12 13 UNITED STATES OF AMERICA, 14 1 5 Appellee , 16 17 -v.- 10-930-cr 18 19 ANTHONY BOYD, 20 2 1 Defendant-Appellant. 2 2 23 242 1 FOR APPELLANT: ANTHONY BOYD, pro se , Bruceton Mills, 2 WV. 3 4 FOR APPELLEE: JESSICA ORTIZ, Assistant United States 5 Attorney (Janis M. Echenberg & Daniel A. 6 Braun, Assistant United States Attorneys, 7 on the brief ), forPreet Bharara, United 8 States Attorney for the Southern District 9 of New York, New York, NY. 1 0 1 1 UPON DUE CONSIDERATION , it is hereby ORDERED , ADJUDGED , 1 2 AND DECREED that the district court judgment is AFFIRMED . 1 3 14 Defendant-Appellant Anthony Boyd, pro se , appeals from 15 the March 4, 2010 judgment of the United States District 16 Court for the Southern District of New York (Rakoff, J. ) 17 entered against him after a jury convicted him of two counts 18 of bank robbery, 12 counts of armed bank robbery, and 19 escape. On appeal, Boyd challenges the denial of his Rule 20 33 motion, the district court’s finding that the 21 presentation of forensic evidence did not violate the 22 Confrontation Clause, the admission of an in-court 23 identification, and the district court’s rejection of a 24 requested jury instruction. We assume the parties’ 25 familiarity with the underlying facts and the procedural 26 history of the case. 27 Rule 33 provides that “the court may vacate any judgment3 1 and grant a new trial if the interest of justice so 2 requires.” This Court reviews the denial of a Rule 33 3 motion for abuse of discretion. See United States v. 4 McCourty , 562 F.3d 458, 475 (2d Cir. 2009). “The ultimate 5 test on a Rule 33 motion is whether letting a guilty verdict 6 stand would be a manifest injustice.” United States v. 7 Ferguson , 246 F.3d 129, 134 (2d Cir. 2001). Motions for new 8 trials “should be granted only with great caution and in the 9 most extraordinary circumstances.” United States v. 1 0 Sanchez , 969 F.2d 1409, 1414 (2d Cir. 1992). 11 Here, Boyd’s contention that the Government fabricated 12 the DNA evidence against him is unsupported. He has failed 13 to provide any basis for his belief that, in either 1998 or 14 2008, his DNA profile had been entered into a searchable 15 database, and this contention is contradicted by the 16 evidence presented at trial. Boyd has also failed to 17 identify any evidence supporting his claim that the 18 Government’s DNA expert altered the test results in order to 19 inculpate Boyd. Instead, the expert’s testimony and report 20 indicate that the change made in the final report did not 21 affect the resulting DNA profile. Accordingly, the district 22 court did not abuse its discretion by denying these claims.4 1 See United States v. Gilbert , 668 F.2d 94, 96 (2d Cir. 1981) 2 (affirming denial of Rule 33 motion where defendant’s claim 3 of Government misconduct was based on “unsupported 4 speculation”). 5 As to Boyd’s Confrontation Clause argument, after having 6 reviewed the appellant’s contentions on appeal and the 7 record of proceedings below, we affirm for substantially the 8 same reasons stated by the district court in its thorough 9 opinion denying the Rule 33 motion. In any event, even if 10 Boyd’s right to confrontation had been violated, given the 11 strength of the evidence against him – including his 12 confession, witness testimony, surveillance video and 13 photographs, and physical evidence – any error was harmless. 14 We review the district court’s admission of 15 identification evidence for clear error. See United States 1 6 v. Finley , 245 F.3d 199, 203 (2d Cir. 2001). In this case, 17 we identify no error in the district court’s admission of a 18 witness’s in-court identification of Boyd. The witness 19 testified that she observed Boyd shortly before he covered 20 his face and committed the robbery, he was the only customer 21 in the bank at the time, her pre-identification description 22 was consistent with her identification of Boyd, and she was5 1 certain about the identification. In any event, even if the 2 admission of the identification was improper, any error was 3 harmless, given the strength of the other evidence against 4 Boyd. 5 Finally, the district court’s rejection of Boyd’s 6 proposed jury instruction was not improper. This Court 7 reviews the propriety of a jury instruction de novo . See 8 United States v. Abelis , 146 F.3d 73, 82 (2d Cir. 1998). 9 The “appellant has the burden of showing that the requested 10 charge accurately represented the law in every respect and 11 that, viewing as a whole the charge actually given, he was 12 prejudiced.” United States v. Dove , 916 F.2d 41, 45 (2d 13 Cir. 1990) (internal quotation marks and citation omitted). 14 “A jury instruction is erroneous if it misleads the jury as 15 to the correct legal standard or does not adequately inform 16 the jury on the law.” United States v. Walsh , 194 F.3d 37, 17 52 (2d Cir. 1999) (internal quotation marks and citation 18 omitted). 19 Here, the requested instruction was not a correct 20 statement of the law and was not supported by evidence in 21 the record. See United States v. Russo , 74 F.3d 1383, 1393 22 (2d Cir. 1996) (finding that defendant was entitled to a6 SAO-RH 1 jury instruction on defense theories for which there was 2 “any foundation in the evidence”) (internal quotation marks 3 and citation omitted); see also Dove , 916 F.2d at 45. Thus, 4 because the requested instruction did not “accurately 5 represent[] the law in every respect,” the court’s rejection 6 of the instruction was not erroneous. 7 We have considered all of the appellant’s arguments and 8 find them to be without merit. Accordingly, the judgment of 9 the district court is AFFIRMED . 1 0 11 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 16 17