09-1210-cr United States v. Lewis 

### 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 “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 for the Second Circuit, held at the 1 Daniel Patrick Moynihan United States Courthouse,500 Pearl Street, in the City of New York, 2 on the 1 st day of June, two thousand eleven. 3 4 PRESENT: 5 AMALYA L. KEARSE, 6 ROSEMARY S. POOLER, 7 GERARD E. LYNCH, 8 Circuit Judges

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__________________________________________ 10 11 United States of America, 12 13 Appellee , 14 15 v. 09-1210-cr 16 17 Germaine Lewis, 18 19 Defendant-Appellant

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__________________________________________ 21 22 FOR APPELLANT: Germaine Lewis, pro se , New York, NY. 23 24 FOR APPELLEE: Celia A. Cohen, Assistant United States Attorney, 25 of counsel, Loretta E. Lynch, United States 26 Attorney, Eastern District of New York, Susan 27 Corkery, Assistant United States Attorney, United 28 States Attorneys’ Office, Brooklyn, NY. 29 30 312 Appeal from a judgment of the United States District Court for the Eastern District of 1 New York (Vitaliano, J.). 2 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREED that the judgment of the district court be AFFIRMED

. 4 Appellant Germaine Lewis, proceeding pro seon appeal, appeals the district court’s 5 judgment of conviction, following a jury trial. We assume the parties’ familiarity with the 6 underlying facts and the procedural history of the case. 7 We review claimed errors that were not objected to during a criminal trial for plain error. 8 See Fed. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 734 (1993). To show plain 9 error, a defendant must demonstrate that: “(1) there is an ‘error’; (2) the error is ‘clear or 10 obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s 11 substantial rights, . . . ’; and (4) ‘the error seriously affect[s] the fairness, integrity or public 12 reputation of judicial proceedings.’” United States v. Marcus , 130 S. Ct. 2159, 2164 (2010) 13 (alteration in original) (quoting Puckett v. United States , 129 S. Ct. 1423, 1429 (2009)). 14 Appellant’s first argument goes to the sufficiency of the evidence against her. She 15 submits that purported inconsistencies between statements that Special Agent David Lum made 16 while investigating the crime, and subsequent trial testimony, call into question his reliability as 17 a witness. It was, however, for the jury to decide whether Lum testified credibly,see United 18 States v. Si Lu Tian , 339 F.3d 143, 150 (2d Cir. 2003), and defense counsel had ample 19 opportunity to cross examine Lum at trial. After listening to Lum’s testimony and assessing its 20 reliability, the jury was free to reject Appellant’s argument as to Lum’s reliability and to 21 conclude that Lum’s testimony was not inconsistent with his prior statements or even that he was 223 believable despite any alleged inconsistency. Appellant therefore failed to carry her “heavy 1 burden,”id. (internal quotation marks omitted), of establishing that the evidence against her was 2 insufficient. 3 Nor was it plain error for the district court to decline to hold a hearing after the de 4 minimiscontact between a juror, the Assistant United States Attorney, and Agent Gorra. In fact, 5 when defense counsel was advised of the contact, which amounted to no more than a request for 6 directions, defense counsel stated in open c ourt that he had “[n]o objection, obviously,” to 7 continuing the trial without a hearing. In any event, such trivial contact could not have affected 8 the outcome of the case. See, e.g. , Olano , 507 U.S. at 737-38 (finding that, absent a prejudicial 9 impact, plain error does not occur every time a juror has been placed in a potentially 10 compromising situation). 11 Finally, Appellant submits that, because the district court’s in limine ruling precluded 12 reference to Appellant’s homelessness, the government should not have been permitted to 13 mention Appellant’s former street address. This argument is without merit. References to 14 Appellant’s former address, the admission of which Appellant’s attorney agreed to, did not 15 constitute plain error, because such references were relevant and not prejudicial. Relevant 16 evidence may be excluded where its probative value is substantially outweighed by the danger of 17 unfair prejudice, and the district court’s rulings regarding the admission of evidence are entitled 18 to considerable deference. SeeFed. R. Evid. 403; Costantino v. Herzog , 203 F.3d 164, 173-74 19 (2d Cir. 2000). Here, the house address was material because, inter alia , it was the house where 20 Appellant and her mother committed the charged crimes and it was the address given on two of 21 the fraudulent tax returns and used in the corresponding records of the bank in which 224 fraudulently obtained moneys were deposited. Nonetheless, the district court took precautionary 1 measures to ensure that Appellant and her mother were not unnecessarily prejudiced by evidence 2 regarding their previous residence, as demonstrated by its ruling that the Government could not 3 enter into evidence photographs of the house. It is therefore extremely unlikely that Appellant 4 was unfairly prejudiced by the limited references to her street address. As such, it cannot be said 5 that these brief references affected Appellant’s “substantial rights.” See Marcus , 130 S. Ct. at 6 2164. 7 We have considered Appellant’s arguments, and find them to be without merit. 8 Accordingly, the judgment of the district court is hereby AFFIRMED

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10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12

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