1 14-1862-cr United States v. Stevenson 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 AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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 Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 17 th day of August, two thousand sixteen. PRESENT: REENA RAGGI, RICHARD C. WESLEY, CHRISTOPHER F. DRONEY, Circuit Judges.

---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 14-1862-cr ERIC STEVENSON, Defendant-Appellant , IGOR BELYANSKY, ROST ISLAV BELYANSKY, AKA Slava, IGOR TSIMERMAN, DAVID BINMAN, SIGFREDO GONZALEZ, Defendants. *

-------------------------------------- -------------------------------- APPEARING FOR APPELLANT: RANDA D. MAHER, ESQ., Great Neck, New York.

* The Clerk of Court is directed to amend the caption as set forth above.2 APPEARING FOR APPELLEE: PAUL M. KRIEGER, Assistant United States Attorney (Brian A. J acobs, Assistant United States Attorney, on the brief ), for Preet Bharara, United States Attorney fo r the Southern District of New York, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment of co nviction entered on May 23, 2014, is
AFFIRMED. Defendant Eric Stevenson, a former Ne w York State Assemblyman representing a Bronx district, stands convicted after a jury trial of (1) conspiracy to commit honest services wire fraud, see 18 U.S.C. § 1349; (2) conspiracy to commit federal programs bribery and to violate the Travel Act, se e id. § 371; (3) accepting bribes, see id. § 666(a)(1)(B); and (4) extortion under color of official right, see id. § 1951. On this appeal, Stevenson contends that (1) the deni al of a trial adjournment deprived him of effective counsel, (2) an a dverse evidentiary ruling violat ed the Confrontation Clause, (3) the evidence was insu fficient to prove guilt, (4) his tr ial counsel was ineffective in failing to raise an entrapment de fense, (5) the district court lacked authority to order the forfeiture of $22,000 and committe d error by ordering him to fo rfeit his pension funds, and (6) various procedural errors render hi s below-Guidelines 36-month sentence unreasonable. We address the last two points in an opinion simultaneously issued with3 this order. In here addressing all other points, we assume the parties’ familiarity with the facts and the record of prior proceedings, whic h we reference only as necessary to explain our decision to affirm. 1. Denial of Adjournment Stevenson argues that the district court ab used its discretion when , four days before trial, it denied a two-week adjournment to an attorney who, 22 da ys earlier, had been allowed to substitute for defendant’s court-ap pointed counsel on the express representation that he would be ready for trial on the schedul ed date. See United States v. Stringer, 730 F.3d 120, 127 (2d Cir. 2013) (reiterating rule th at denial of trial adjournment is reviewed only for abuse of discretion, wh ich will not be identified abse nt showing of arbitrariness substantially impairing defense). The argument fails because it was not arbitrar y for the district cour t to conclude that 26 days was a sufficient time for counsel to prepare. See United States v. Cronic, 466 U.S. 648, 661

− 66 (1984) (recognizing 25 days as suffici ent for attorney to prepare for defense of complex fraud case); United States v. Burgos, 579 F.2d 747, 750 (2d Cir. 1978) (affirming denial of continua nce where new defense counsel retained two weeks prior to trial); see also United States v. Martin, 740 F.2d 1352, 1360

− 61 (6th Cir. 1984) (affirming denial of continuance where defendant retain ed counsel 10 days prior to trial, despite complexity of case). In the ab sence of an arbitrary denial of a continuance, we need not here consider Stevenson’s claim of prejudice in the form of ineffe ctive assistance of4 counsel. See United States v. Miller, 62 6 F.3d 682, 690 (2d Cir. 2010) (requiring defendant to show both arbitr ariness and prejudice to secure reversal for denial of continuance). As explained infra at 7

− 9, Stevenson must pursue any ineffective assistance claim under 28 U.S.C. § 2255. United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975), cited by Stevenson, warrants no different conclusion. There, a continuance was denied when defense counsel died unexpectedly in the middle of trial. See id. at 1116–17. That is not analogous to this case, where counsel had 26 days to prepare for trial. Accordingly, we identify no abus e of discretion warranting vacatur. 2. Limit on Cross-Examination Stevenson complains of hi s inability to cross-examine Sigfredo Gonzalez about his use of a racial epithet in a recorded conve rsation. “We review evidentiary rulings, including a trial court’s decision to limit th e scope of cross-examination, for abuse of discretion.” United States v. White, 692 F. 3d 235, 244 (2d Cir. 2012). Although the Sixth Amendment guarantees a defendant the right to cross- examine the witnesses against him, “a judge may ‘impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudi ce, confusion of the issues, the witness’ safety, or interrogation that is repetitive or onl y marginally relevant.’” United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006) (quoti ng Delaware v. Van Ar sdall, 475 U.S. 673, 679 (1986) (recognizing court’s discretion to limit defense inquiry into “potential bias of a5 prosecution witness”)). We identify no abuse of discretion here because the district court’s determination that the epithet was not used in an obviously derogatory manner and, thus, that the recordings were more confusin g than probative, fell well within its discretion. See United States v. Rahman, 189 F.3d 88, 132 (2d Cir. 1999) (affirming limitation on cross-examination of government witness as to racial bias given “weak foundation” for bias claim and “even weaker basi s” to question credibility on this account); cf. Brinson v. Walker, 547 F.3d 387, 394 (2d Cir. 2008) (d rawing distinction be tween mere use of derogatory word and statements of such intense bias as to gi ve rise to reasonable inference that witness would fabricate testimony agai nst object of bias). Although Stevenson further contends that the district c ourt totally precluded him from otherwise cross-examining Gonzalez on racial bias, the r ecord does not support the argument. The district court stated only that it would not allow defense coun sel “to summarize portions of transcripts that have been excluded,” J.A. 471

− 72, and nothing in the record suggests that the district court would have pr ecluded more general questions about potential racial bias. Moreover, the prosecution acknowle dged that “[t]here is a proper way and an improper way” for Stevenson’s counsel to cross-examine on racial bias, and asked only that Stevenson be foreclosed from doing “it in a wa y that results in unfa ir prejudice to the government.” Id. at 471. Stevenson point s to no proposed cross-examination that did not rely on the excluded reco rdings or their transcript s that was foreclosed.6 Accordingly, we conclude that his ev identiary challenge is without merit. 3. Sufficiency of the Evidence In challenging the sufficiency of the ev idence supporting conviction, Stevenson bears a heavy burden because, alth ough our standard of review is de novo, we must view the evidence in the light most favorable to the government , “drawing all inferences in the government’s favor and deferring to the jury’s assessments of the witn esses’ credibility.” United States v. Pier ce, 785 F.3d 832, 837

− 38 (2d Cir. 2015) (int ernal quotation marks omitted). Under this “exceedingly deferential” standard, United States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008), Stevenson can pr evail only by showing that no rational trier of fact could have found the essential el ements of the charged crime proved beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Pierce, 785 F.3d at 838. Stevenson contends that the evidence failed to establish that he agreed to take or took (1) a bribe from Gonzalez or any codefendant or (2) official actions in exchange for such payments. The argument fails becaus e, as Stevenson acknowledges, Gonzalez testified to Stevenson’s accepta nce of corrupt payments, and well-established law allows a conviction to rest on “the unco rroborated testimony of even a si ngle . . . witness if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006) (internal quotation marks omitted). Here, Gonzalez’s testimony, far from bein g incredible on its7 face, was strongly corroborated not only by law-enforcement witn esses who supervised Gonzalez’s interactions with St evenson, but also by audio and video recordings on which Stevenson incriminated himself. More over, independent documentary evidence confirmed codefendant Rostislav Belyansk y’s $2,000 contribution to Stevenson’s campaign, which Stevenson faile d to disclose on mandatory campaign filings. We need not here detail further evidence to conclude th at a rational jury coul d find that Stevenson accepted corrupt payments. The evidence was also su fficient to support a rati onal jury finding both that Stevenson took official acti on and that he did so in exchange for these payments. Specifically, Stevenson proposed moratorium le gislation to the New York State Assembly as instructed by and to benefit codefendant s. Thus, Stevenson’s sufficiency challenge fails on the merits. 1
4. Ineffective Assi stance of Counsel Stevenson argues that counsel was ineff ective in failing to raise an entrapment

1 McDonnell v. United States, 136 S. Ct. 23 55 (2016), raised by St evenson pursuant to Fed. R. App. P. 28(j), warrants no different c onclusion. No reasonable jury could fail to find that the action here at issue—proposing legi slation—was an “official act” as clarified by McDonnell. Proposed legislation is nece ssarily a matter brough t before a public official, see id. at 2369, indeed, before the group of officials empo wered to enact such a matter into law. Further, a legislator who proposes legislation undoubtedly takes an action on the matter, see id. at 2370; he take s the essential action, without which enactment of the matter into law cannot occur. Accordingly, Stevenson’s jury-instruction challenge cannot survive plain error review . See United States v. Nour i, 711 F.3d 129, 138–40 (2d Cir. 2013) (concluding that defendant could no t satisfy plain-error st andard because there was no likelihood of different result ha d jury been prop erly instructed).8 defense. The preferred means for addressing ineffective assistance claims, particularly where further record development is necessary, is a motion pursuant to 28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 5 04 (2003); United States v. Kimber, 777 F.3d 553, 562 (2d Cir. 2015) (stating th at ineffective assistance claims will be decided on direct appeal only if “their resolution is beyond any do ubt or to do so would be in the interest of justice” (internal quotation marks omitted)). Here, the district court at sentencing explained that, even assuming that the government cooperator initiated the brib e scheme, the evidence of Stevenson’s predisposition was compelling. See J.A. 1363

− 64 (quoting Stevenson’s statement asking if bribing parties were “putting together a nice little package for me,” and another statement that co-sponsor of legislation also had “to get a cha-ching [i.e., payment], ya know”). In the face of this record, it would appear difficult for Stevenson to show that it was objectively unreasonable for counsel not to pursue an entrapment defense, see Strickland v. Washingt on, 466 U.S. 668, 687

− 89 (1984) (recognizing that counsel’s performance is objectively unreasonable only if it falls outside “the wide range of reasonable professional assistance” and canno t be considered “sound trial strategy” (internal quotation marks omitted)), or that St evenson was prejudiced by the decision, see id. at 692

− 94 (explaining that prejudice requires showing of “reasonable probability that, but for counsel’s unprofessional errors, the re sult of the proceeding would have been different”). Nevertheless, because the record is not fully developed as to counsel’s9 rationale for foregoing this defense, we do no t conclusively resolve the question now, but leave Stevenson to decide if he wishes to pursue it on a § 2255 motion. 5. Conclusion We have considered Stevenson’s remaini ng arguments and conclude that they are without merit. Thus, for the reasons stated in the court’s published opinion today, as well as in this order, we AFFIRM the judgment of the district court.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court