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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the

2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 1st 3 day of June, two thousand eleven.

4

5 PRESENT:

6 AMALYA L. KEARSE,

7 ROSEMARY S. POOLER,

8 GERARD E. LYNCH, 

9 Circuit Judges. 

10 __________________________________________

11

12 United States of America,

13

14 Appellee, 

15

16 v. 09-1210-cr

17

18 Germaine Lewis,

19

20 Defendant-Appellant.

21 __________________________________________

22 

23 FOR APPELLANT: Germaine Lewis, pro se, New York, NY.

24

25 FOR APPELLEE: Celia A. Cohen, Assistant United States Attorney,

26 of counsel, Loretta E. Lynch, United States

27 Attorney, Eastern District of New York, Susan

28 Corkery, Assistant United States Attorney, United

29 States Attorneys’ Office, Brooklyn, NY.

30

31
2

1 Appeal from a judgment of the United States District Court for the Eastern District of

2 New York (Vitaliano, J.).

3 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court be AFFIRMED.

5 Appellant Germaine Lewis, proceeding pro se on appeal, appeals the district court’s

6 judgment of conviction, following a jury trial. We assume the parties’ familiarity with the

7 underlying facts and the procedural history of the case.

8 We review claimed errors that were not objected to during a criminal trial for plain error. 

9 See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 734 (1993). To show plain

10 error, a defendant must demonstrate that: “(1) there is an ‘error’; (2) the error is ‘clear or

11 obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s

12 substantial rights, . . . ’; and (4) ‘the error seriously affect[s] the fairness, integrity or public

13 reputation of judicial proceedings.’” United States v. Marcus, 130 S. Ct. 2159, 2164 (2010)

14 (alteration in original) (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)). 

15 Appellant’s first argument goes to the sufficiency of the evidence against her. She

16 submits that purported inconsistencies between statements that Special Agent David Lum made

17 while investigating the crime, and subsequent trial testimony, call into question his reliability as

18 a witness. It was, however, for the jury to decide whether Lum testified credibly, see United

19 States v. Si Lu Tian, 339 F.3d 143, 150 (2d Cir. 2003), and defense counsel had ample

20 opportunity to cross examine Lum at trial. After listening to Lum’s testimony and assessing its

21 reliability, the jury was free to reject Appellant’s argument as to Lum’s reliability and to

22 conclude that Lum’s testimony was not inconsistent with his prior statements or even that he was
3

1 believable despite any alleged inconsistency. Appellant therefore failed to carry her “heavy

2 burden,” id. (internal quotation marks omitted), of establishing that the evidence against her was

3 insufficient. 

4 Nor was it plain error for the district court to decline to hold a hearing after the de

5 minimis contact between a juror, the Assistant United States Attorney, and Agent Gorra. In fact,

6 when defense counsel was advised of the contact, which amounted to no more than a request for

7 directions, defense counsel stated in open court that he had “[n]o objection, obviously,” to

8 continuing the trial without a hearing. In any event, such trivial contact could not have affected

9 the outcome of the case. See, e.g., Olano, 507 U.S. at 737-38 (finding that, absent a prejudicial

10 impact, plain error does not occur every time a juror has been placed in a potentially

11 compromising situation). 

12 Finally, Appellant submits that, because the district court’s in limine ruling precluded

13 reference to Appellant’s homelessness, the government should not have been permitted to

14 mention Appellant’s former street address. This argument is without merit. References to

15 Appellant’s former address, the admission of which Appellant’s attorney agreed to, did not

16 constitute plain error, because such references were relevant and not prejudicial. Relevant

17 evidence may be excluded where its probative value is substantially outweighed by the danger of

18 unfair prejudice, and the district court’s rulings regarding the admission of evidence are entitled

19 to considerable deference. See Fed. R. Evid. 403; Costantino v. Herzog, 203 F.3d 164, 173-74

20 (2d Cir. 2000). Here, the house address was material because, inter alia, it was the house where

21 Appellant and her mother committed the charged crimes and it was the address given on two of

22 the fraudulent tax returns and used in the corresponding records of the bank in which
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1 fraudulently obtained moneys were deposited. Nonetheless, the district court took precautionary

2 measures to ensure that Appellant and her mother were not unnecessarily prejudiced by evidence

3 regarding their previous residence, as demonstrated by its ruling that the Government could not

4 enter into evidence photographs of the house. It is therefore extremely unlikely that Appellant

5 was unfairly prejudiced by the limited references to her street address. As such, it cannot be said

6 that these brief references affected Appellant’s “substantial rights.” See Marcus, 130 S. Ct. at

7 2164. 

8 We have considered Appellant’s arguments, and find them to be without merit. 

9 Accordingly, the judgment of the district court is hereby AFFIRMED.

10

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13