1 16-591-cr United States v. McCoy UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 22 nd day of May, two thousand seventeen. PRESENT: RALPH K. WINTER, REENA RAGGI, Circuit Judges , ALVIN K. HELLERSTEIN, District Judge

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee,

v. No. 16-591-cr ROBERT C. MCCOY, Defendant-Appellant

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: FREDERICK RENCH, Frederick Rench, Esq., PLLC, Clifton Park, New York. APPEARING FOR APPELLEE: STEVEN D. CLYMER, Assistant United States Attorney (Lisa M. Flet cher, Assistant United States Attorney, on the brief ), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York.

* Judge Alvin K. Hellerstein, of the United Stat es District Court for the Southern District of New York, sitting by designation.2 Appeal from a judgment of the United St ates District Court for the Northern District of New York (Mae D’Agostino, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on February 16, 2016, is AFFIRMED.

Defendant Robert C. McCo y was convicted in 2015 following a jury trial on counts of sexual exploitation of a child, see 18 U.S.C. § 2251(a), (c), while a registered sex offender, see id. § 2260A, and possession of child pornography, see id. § 2252A(a)(2), (a)(5)(B). Presen tly incarcerated on a statutory maximum sentence of 960 months’ (80 years’) imprisonment, wh ich was consistent with his recommended Guidelines sentence of life, McCoy argues th at government misconduc t denied him a fair trial and, in any event, his sentence is substantively unreasonab le. We assume the parties’ familiarity with the facts and reco rd of prior proceedings , which we reference only as necessary to explain our decision to affirm.

1. Prosecutorial Misconduct McCoy asserts that prosecutorial misconduct in rebuttal requires a new trial. To secure such relief, he must show misconduct that, “viewed against the entire argument to the jury, and in the context of the entire trial,” was so “sever e and significant” as to deny

a him “fair trial.” United States v. Sheehan , 838 F.3d 109, 128 (2d Cir. 2016) (internal quotation marks omitted). Such cases are “rare,” United States v. Caracappa , 614 F.3d 30, 41 (2d Cir. 2010), and arise only when im proper comments so infect the trial as a

whole as to result in a convic tion violative of due process, see United States v. Sheehan , 838 F.3d at 128; United States v. Ferguson , 676 F.3d 260, 283 (2d Cir. 2011) (stating that3 improper comments do not deny due proce ss “unless they constitute egregious misconduct” (internal quotation marks omitted )). In assessing whether improper comments have caused “substantial prejudice” requiring a new trial, we consider the severity of the misconduct, the curative measur es taken, and the ce rtainty of conviction

absent the misconduct. See United States v. Binday , 804 F.3d 558, 586 (2d Cir. 2015). The alleged misconduct falls into two ge neral categories, which we address in

turn. a. Arguments Regarding Victim’s Mother McCoy asserts that the government’ s rebuttal challenge to defense attacks—starting in the opening statemen t—on the character and credibility of his victim’s mother (“MS”) improperly denigrated defense counsel, inflamed jury passions, and amounted to prosecutorial vouching. 1 Because McCoy voiced no objection to this aspect of the rebuttal at trial, our review is for plain error. See United States v.

Williams , 690 F.3d 70, 75 (2d Cir. 2012); see also United States v. Marcus , 560 U.S. 258, 262 (2010) (stating that plain error requires (1 ) error; (2) that is clear or obvious; (3) affecting defendant’s substantia l rights; and (4) seriously impug ning fairness, integrity, or public reputation of judicial proc eedings). None is evident here. We have long recognized that rebuttal summations “are not detached expositions, with every word carefully constructed befo re the event,” and th at “because such arguments frequently require im provisation,” we will “not lightly infer that every remark

1 McCoy’s victim, KD, was seven years old when defendant began the sexual exploitation that conti nued until she was nine. The child was ten when she testified at trial.4 is intended to carry its most dangerous meaning.” United States v. Farhane , 634 F.3d 127, 167 (2d Cir. 2011) (alterations, citati ons, and internal quotation marks omitted). This is particularly so wher e the challenged rebuttal responds to defense attacks on “the integrity of the government’s case,” United States v. Sheehan , 838 F.3d at 128, and the credibility of its witnesses, see United States v. Wilner , 523 F.2d 68, 74 (2d Cir. 1975). Here, defense counsel stated or implied that MS was somehow responsible for any injury to her daughter because she had allowed the child to spend time with McCoy even after learning that he was a registered sex offender. Counsel furthe r asserted that, upon finding pornographic images of her child on McCoy’s phone, MS had not gone to the police but, rather, had punished her daught er. Counsel stated that pornography belonging to MS’s future husband was in the child’s home at the time at issue, and that MS’s then-12-year-old son had at one tim e possessed a cell phone belonging to McCoy, presumably implying that persons other than McCoy might be responsible for the pornographic images of KD found on McCoy’s device. Counsel also intimated that MS might profit from McCoy’s conviction by acquiri ng certain land. No evidence was ever adduced to support any of these assertions. Vi ewed in this context, we identify no error, much less plain error, in the government’s re buttal characterization of defense counsel’s arguments as “made up,” “scurrilous,” and an effo rt to shift the “blame to someone else.” App’x 253, 255. These were “hard blows” but not “foul” ones in response to

unsubstantiated defense assertions. Berger v. United States , 295 U.S. 78, 88 (1935);

accord United States v. Farhane , 634 F.3d at 168. Nor do we identify error in the government’s statement that, in a “court of la w,” “wild facts and wild allegations” are not5 evidence. App’x 253; see United States v. Millar , 79 F.3d 338, 343–44 (2d Cir. 1996) (concluding that characterization of defens e as “hog wash” and a “smoke screen” and suggestion that defense counsel was trying to “confu se” jurors or “lead them astray” were fair responses and not revers ible misconduct). Insofar as McCoy faults the government for arguing that MS’s prior convictions and purported bad parenting “ha[ve] absolutely nothin’, nothin’ to do with your deliberati ons in this case,” App’x 250, he cannot demonstrate plain error in light of the district court’s charge that its instructions overrode any attorney’s statement of law and that wi tness credibility was a legitimate subject for

deliberation.

United States v. Friedman , 909 F.2d 705 (2d Cir. 1990 ), is not to the contrary because the prosecutor there made a sustained attack on the role of defense counsel, including negatively contrasting those who “go out and investigat e drug dealers and prosecute drug dealers and try to see them brought to justice” with those “who defend them, try to get them off, pe rhaps even for high fees.” Id. at 707–08. By contrast to such statements, which en deavored to delegitimize any argument made by defense counsel, see id. at 709, the rebuttal statements he re responded to defense counsel’s specific attacks on the victim’s mother and were not unfair. Statements in rebuttal (1) observing that individuals—including defense counsel and the prosecutor—might act differently fro m MS upon first discovering evidence of their child’s sexual exploitation, (2) rhetoric ally asking jurors “[ w]hat decision do you make for your kid,” App’x 254, and (3) descri bing the difficulty a ten-year-old victim would face when testifying about her sexua l exploitation were prompted by, and6 responsive to, defense counsel’s suggestion that MS’s delay in reporting her discovery of pornographic depiction of KD to the police was suspicious. While the prosecutor in this case would be well advised not to inject hersel f into a case and to minimize her use of first-person pronouns, the statements here fell comfortably within th e leeway afforded in responding to a de fense attack on witness credibility. See United States v. Farhane , 634

F.3d at 168. Government statements that “[t]his is law enforcement, this is the criminal justice system at its best” and that “[e]veryone ha s come together for the children,” App’x 259– 60, raise more of a vouching concern. But these statements were made in referencing the testimony of witnesses from various child exploitation task forces who identified some of the children depict ed in pornography in McCoy’ s possession. Because the credibility of these witnesses was not put at issue—McCoy declined to cross-examine them—we conclude that the challenged statem ents did not cause prejudice, much less prejudice so substantial as to warrant reversal.

b. Out-of-Record Evidence McCoy argues that the district court e rred in giving a curative instruction in response to a statement in th e government’s rebuttal summati on, rather than granting his motion for a mistrial. McCoy had argued that the jury should not believe the testimony of a detective concerning an admission th at defendant had made to MS, which the

detective had heard transmitted on a recordin g device that MS was wearing when she confronted McCoy. In su mmation, McCoy argued that the detective should not be believed because the government could have enhanced the tape and introduced it into7 evidence. He insinuated that the evidence was withheld beca use it exonerated him. In rebuttal, the government disputed the insinu ation, stating that “we had a bad tape” and had tried, but were unable, to enhance its audio quality. App’x 256. McCoy objected to the government’s statement of enhancem ent as unsupported by record evidence, and moved for a mistrial. At sidebar, the govern ment both represented that the tape had been played to defense couns el, who had heard the admissi on, and claimed that defense

counsel had been told of the enhancement effo rts. The district court resolved the issue by sustaining defendant’s objecti on and giving a curative instruc tion, which instructed the jury not to consider the government’s statement.

We review the denial of a mistrial for ab use of discretion, which we will identify only where there is an error of fact or law or the denial “cannot be located within the range of permissible decisions.” United States v. Yannai , 791 F.3d 226, 242 (2d Cir. 2015). This is not such a case. The district court struck the government’s single-sentence reference to th e out-of-record fact and instru cted the jury that it could consider only facts in evidence in its deliberations. Before the jury, the government

conceded its error and reitera ted that the jury was limited to considering facts in evidence. McCoy points to no error in this instruction or to any reason for us to think that the jury did not abide by it. See United States v. Binday , 804 F.3d at 592 (upholding conviction where curative instruction “guard ed against precisely the prejudice” alleged). Moreover, because the improper statemen t concerned only the audiotape’s enhancement, not its purportedly incriminating content, it could not have materially affected the ultimat e outcome of the case. The di strict court therefore did not8 exceed its discretion in addre ssing the error thro ugh a curative instru ction rather than granting a mistrial. McCoy also faults the government’s res ponse to the defense argument suggesting that the government had not put the tape in evidence because it was exculpatory, specifically, the prosecutor’s characterization of the argument as “the most outrageous, scurrilous statement I [have] heard in 25 years of prosec uting cases,” and observation “[t]hat’s not at all what the United States Government is about.” App’x 255–56. Because no objection was raised at trial, we review only for plain error and identify none here. While the government’s response came close to vouching, which is to be avoided as to the general integrity of the prosecution as well as to the credibility of individual witnesses, see United States v. Newton , 369 F.3d 659, 681 (2d Cir. 2004) (recognizing danger of vouching is implying “imprimatur of the Government” and “induc[ing] the jury to trust the Government’s judgment rather than its own view of the evidence”), we identify no substantial prejudi ce where the record here show s that defense counsel, who had properly been given a copy of the tape in discovery, ha d no basis for arguing that it exculpated his client. A de fense counsel is under no obl igation to offer evidence and may certainly point to evidentiary omissions in urging the jury to conclude that the government has not carried its burden of proof. But he cannot urge the jury to speculate adversely as to the content of an item in the defense’s own possession that he knows does not support the urged conclusion. See United States v. Daugerdas , 837 F.3d 212, 227 (2d Cir. 2016) (“The prosecutio n and the defense are genera lly entitled to wide latitude during closing arguments, so long as they do not misstate the ev idence.” (internal9 quotation marks omitted)); United States v. Reyes , 660 F.3d 454, 462 (9th Cir. 2011) (recognizing impropriety of “propound[ing] infe rences that [counsel] knows to be false, or has very strong reason to doubt”); United States v. Salameh , 152 F.3d 88, 134 (2d Cir. 1998) (recognizing “b road latitude afforded both sides during summation” permits argument of reasonable inferences). In these circum stances, McCoy cannot credibly claim that the government inte ntionally mischaracterized his recording argument—using

could exonerate instead of may exonerate—to inflame th e jury’s passions. The

difference is consistent with the necessari ly improvisatory nature of rebuttal. See United States v. Farhane , 634 F.3d at 167; see generally United States v. Tocco , 135 F.3d 116, 130 (2d Cir. 1998) (“[W]here the defense summation makes arguments and allegations against the government, the prosecu tor may respond to them in rebuttal.”);

United States v. Rivera , 971 F.2d 876, 883 (2d Cir. 1992) (stating that defense argument may “open the door” to otherwise improper rebuttal). In sum, because the statements McC oy challenges—both those to which he objected and those to which he did not—were e ither adequately cured, not improper or, in any event, without substantia l prejudicial effect, he is not entitled to a new trial.

2. Substantive Unreasonableness of Sentence

We review the substantive reasonablene ss of a sentence under a “particularly deferential” abuse-of-discretion standard, United States v. Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012), 2 which we will identify “only in ex ceptional cases where the [district]

2 Although McCoy did not raise his substantive reasonableness challenge to the district court, we have not yet decide d whether plain error review ap plies to such an unpreserved challenge. See United States v. Thavaraja , 740 F.3d 253, 258 n. 4 (2d Cir. 2014). We10 court’s decision cannot be located within the range of permissible decisions,” United

States v. Cavera , 550 F.3d 180, 18 9 (2d Cir. 2008) ( en banc ) (internal quotation marks omitted), that is, where a sentence “was shoc kingly high, shockingly low, or otherwise unsupportable as a matter of law,” United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009). Here we review what is effectively a life sentence. At the outset, we note that such a sentence was McCoy’s recommended Guidelines sentence, accounting for the age of his victim, his sexual contact with her, th e fact that she was in his custody and care, and his repeat conduct among aggravating fact ors. A sentence within a Guidelines range will rarely satisfy the stringent cr iteria required to demonstrate substantive

unreasonableness. See United States v. Wagner-Dano , 679 F.3d 83, 95 (2d Cir. 2012). McCoy nevertheless asserts that hi s sentence is unreasonable, citing United States

v. Brown , 826 F.3d 51 (2d. Cir. 2016). That opinion, however, was subsequently vacated, and the case now offers him no support. See United States v. Brown , 843 F.3d 74, 82–84 (2d Cir. 2016) (holding that 60-year sentence for first-time sex offender was not substantively unreasonable). McCoy also argues that imposing the maximum sentences here ignores the “qualitative differences” among child sexual e xploitation offenses and leaves no room above his sentence for those who inflict greater harm. The argument fails in light of the district court’s careful explanation for why it deemed the statutory maximum sentences “not greater than necessary” in this case. App’x 338. We will not repeat that need not here decide that question because, regardless of the standard of review, McCoy’s challenge fails on the merits.11 explanation here. Suffice it to say that the district court ac ted well within its discretion in concluding that Mc Coy committed the charged crimes while on probation for a prior child pornography possession crime and under going treatment to he lp him resist such impulses. Instead of resisting, however, he engaged in the more serious crimes here, made all the more serious by hi s bullying of a very young vic tim and his betrayal of her family’s trust. While McCoy sought a 35-year sentence to afford him some dignity in his old age, the district court reasonably recognized that McCoy had failed to accord dignity to his victim, who nevertheless mani fested exceptional courage in confronting and testifying against McCoy at trial. On this record and in light of the district court’s explanation, we conclude that the challeng ed sentence, while severe, is nevertheless “within the range of permissible decisions,” United States v. Cavera , 550 F.3d at 189 (internal quotation marks omitted)), and, theref ore, not substantively unreasonable so as to require resentencing. 3

3. Conclusion We have considered McCoy’s remaining arguments and conclude that they are without merit. Accordingl y, the judgment of the di strict court is AFFIRMED.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court

3 McCoy’s age and a hip injury requiring su rgery while in custody warrant no different conclusion, as McCoy does not argue that th e district court failed to consider these factors.