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17-1668-cr 

United States v. Snyder 

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 Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New 

York, on the 9th day of July, two thousand eighteen. 

PRESENT: DENNIS JACOBS, 

 REENA RAGGI, 

 PETER W. HALL, 

 Circuit Judges.

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United States of America, 

 Appellee, 

 -v.- 17-1668-cr 

 

Robert Snyder, 

 Defendant-Appellant.

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FOR APPELLANT: Daniel DeMaria, Esq., Merchant 

Law Group LLP, New York, NY. 

FOR APPELLEE: Grant C. Jaquith, United States 

Attorney for the Northern 

District of New York (Miroslav 

Lovric, Michael D. Gadarian, 

Assistant United States 

Attorneys, on the brief), 

Syracuse, NY. 
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 Appeal from a judgment of the United States District 

Court for the Northern District of New York (McAvoy, J.) 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 

AND DECREED that the judgment of the district court be 

AFFIRMED in part and REMANDED for the limited purpose of 

imposing a restitution amount consistent with this order. 

 

 Robert Snyder appeals from his judgment of conviction 

in the United States District Court for the Northern 

District of New York following trial on eight counts of 

child pornography-related offenses under 18 U.S.C. § 2252A. 

He argues the district court erred in denying his Federal 

Rule of Criminal Procedure 33 motion for a new trial based 

on a claimed violation of the Jencks Act, 18 U.S.C. § 3500 

(“the Act”). We assume the parties’ familiarity with the 

underlying facts, the procedural history, and the issues 

presented for review. 

 The United States Postal Inspection Service (“USPIS”) 

identified Snyder as a customer of Azov Films (“Azov”), a 

Canadian production company specializing in so-called 

naturalist and nudist movies featuring child pornography. 

Investigators interviewed Snyder at his home, where he 

admitted that he had purchased Azov materials through their 

website and downloaded videos to his computer. A search of 

Snyder’s residence uncovered DVDs with videos of nude 

children, computer hard drives with pornographic images of 

children, and an internet search history replete with terms 

indicating an intent to access child pornographic content. 

A grand jury returned an eight-count indictment charging 

Snyder with violations of 18 U.S.C. § 2252A(a) and (b) for 

accessing with intent to view, receive, and possess child 

pornography. 

 

 Snyder proceeded to trial, where USPIS Inspectors Bone 

and Connelly testified on behalf of the prosecution 

regarding the pornographic Azov materials ordered by 

Snyder’s, among other topics. At various points during and 

after the Inspectors’ testimony, defense counsel asked that 

the Government produce Inspector Bone’s trial transcripts 

and Inspector Connelly’s grand jury testimony in other 

Azov-related cases. The district court denied the requests 

from the bench as without “legal basis.” App’x at 283. 
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Snyder was convicted on all counts, and he moved for a 

judgment of acquittal and a new trial on the basis that the 

government failed to comply with its Jencks Act 

obligations. See Fed. R. Civ. P. 29 and 33. The district 

court denied the motion, ruling that: (1) testimony from 

other trials is not covered by the Act; and (2) even if the 

Government should have produced Inspector Connelly’s grand 

jury testimony, the missing material would not create a 

“significant chance” of “instill[ing] a reasonable doubt in 

a reasonable juror.” App’x at 467 (quoting United States 

v. Jackson, 345 F.3d 59, 77 (2d Cir. 2003) (internal 

citation omitted)). 

 We review the denial of a motion for a new trial for 

abuse of discretion. United States v. Robinson, 430 F.3d 

537, 542 (2d Cir. 2005). Federal Rule of Criminal 

Procedure 33(a) provides that “‘[u]pon the defendant’s 

motion, the court may vacate any judgment and grant a new 

trial if the interest of justice so requires.’” United 

States v. James, 712 F.3d 79, 107 (2d Cir. 2013) (quoting 

Fed. R. Crim. P. 33(a)). A “district court ordinarily 

should not grant a new trial unless it is convinced that 

the jury has reached a seriously erroneous result or that 

the verdict is a miscarriage of justice.” Smith v. 

Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 

1988); see United States v. Silver, 184 F. Supp. 3d 33, 52 

(S.D.N.Y. 2016) (on Rule 33 motion, “the question is not 

whether there was error in the evidentiary ruling, but 

whether there is ‘manifest injustice’ and a real concern 

that an innocent person may have been convicted”). 

 

 The claimed injustice is the Government’s violation of 

Section 3500. See generally Jencks v. United States, 353 

U.S. 657 (1957). That statute provides, in relevant part: 

 

After a witness [is] called by the United States ... 

the court shall, on motion of the defendant, order the 

United States to produce any statement ... of the 

witness in the possession of the United States which 

relates to the subject matter as to which the witness 

has testified. 

18 U.S.C. § 3500(b) (emphasis added). To trigger a 

production obligation, a witness’s prior statement “must at 
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least relate generally to the events and activities 

testified to before the statement must be produced[;]” 

statements which are “merely incidental or collateral” need 

not be disclosed. United States v. Pacelli, 491 F.2d 1108, 

1118 (2d Cir. 1974) (internal quotation marks omitted); 

United States v. Birnbaum, 337 F.2d 490, 497 (2d Cir. 

1964). Statements on the same general subject matter do 

not “relate” unless they deal with the specific “events and 

activities testified to on direct examination.” United 

States v. Cardillo, 316 F.2d 606, 615 (2d Cir. 1963); see 

also United States v. Mayersohn, 413 F.2d 641, 643 (2d Cir. 

1969) (denying a Jencks Act request for production of 

statements that do not specifically relate to a witness’ 

direct testimony). 

 Where, as here, the district court denies a motion to 

produce material sought by the defense under the Act, the 

material is preserved and made available to the appellate 

court so the appellate court may determine if the trial 

court’s ruling was sound. 18 U.S.C. § 3500(c); Cardillo, 

316 F.2d at 614-15. If the reviewing court determines that 

the Government failed to produce Jencks Act material, 

“[t]he legal standard to be applied in determining whether 

a new trial should be granted ... depends on whether the 

suppression was deliberate or inadvertent.” United States 

v. Hilton, 521 F.2d 164, 166 (2d Cir. 1975). “[I]f the 

Government’s failure to disclose is inadvertent, a new 

trial is required only if there is a significant chance 

that this added item, developed by skilled counsel, could 

have induced a reasonable doubt in the minds of enough 

jurors to avoid a conviction.” Id. 

 

 As to Inspector Bone, while other “circuits have held 

that prior trial testimony is not within the scope of the 

Jencks Act because the witness statements” are not “in the 

possession of the United States” within the meaning 18 

U.S.C. § 3500(b), see United States v. Chanthadara, 230 

F.3d 1237, 1254-55 (10th Cir. 2000) (collecting cases), 

this court has not ruled on the issue. As to Inspector 

Connelly’s grand jury testimony in a Rhode Island child 

pornography prosecution involving Azov Films (the “Silva” 

case), such testimony may be covered by the act, see 18 

U.S.C. § 3500(e)(3), but only if it sufficiently relates to 
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Connelly’s direct testimony at Snyder’s trial.1 See United 

States v. James, 609 F.2d 36, 48 (2d Cir. 1979). We need 

not decide whether the Silva grand jury testimony triggered 

a production obligation--or whether Inspector Bone’s trial 

testimony is subject to the Act--because Snyder’s claim 

fails on other grounds. 

 

 In any event, Snyder has not shown that any error would 

entitle him to a new trial. See United States v. Frank, 

520 F.2d 1287, 1292 (2d Cir. 1975). The standard for 

granting a new trial varies depending on whether the 

Government’s failure to produce was inadvertent or 

deliberate. United States v. Gonzalez, 110 F.3d 936, 943 

(2d Cir. 1997). Here, the prosecution offered testimony 

from the postal inspectors; defense counsel moved to strike 

the testimony; and the trial judge denied the motions on 

the express ground that there was no Jencks Act obligation 

to produce those materials. The Government was therefore 

never under order to produce the requested transcripts, and 

Snyder does not allege subterfuge or fraud in the 

Government’s conduct. Under these circumstances, the 

Government cannot be said to have “deliberately suppressed” 

the transcripts when it believed in good faith, and with 

the blessing of the court, that the material was not 

covered by the Act. See Hilton, 521 F.2d at 166; see, 

e.g., United States v. Peterson, 116 F. Supp. 2d 366, 368 

(N.D.N.Y. 2000). 

 

 Snyder must therefore show that “there is a significant 

chance that [the contested transcripts] could have induced 

a reasonable doubt in the minds of enough jurors to avoid a 

 

1 The Government provided Inspector Connelly’s grand jury 

testimony from the Silva matter to the panel under seal. 

Both the Silva grand jury testimony and Connelly’s direct 

testimony at Snyder’s trial featured material from Azov 

Films, but there is no evident relationship between the 

content of the two testimonies beyond that broadly similar 

theme. See Cardillo, 316 F.2d at 615; United States v. 

Nosworthy, 475 F. App’x 347, 353-54 (2d Cir. 2012) (summary 

order) (“We decline to embrace a reading of the Jencks Act 

that would require the disclosure of information from an 

entirely unrelated case just because it involved a broadly 

similar—and far from uncommon—fact pattern.”). 
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conviction.” Jackson, 345 F.3d at 77 n.14. In other 

words, there must be a reasonable probability that had 

defense counsel received the trial and grand jury 

transcripts, “the result would have been different.” 

Gonzalez, 110 F.3d at 943. Nothing in Inspector Connelly’s 

grand jury testimony in Silva suggests bias that could be 

drawn out on cross-examination, nor would the testimony be 

likely to undermine the evidence supporting Snyder’s 

conviction. And Snyder has not established that any other 

information retrieved from publicly available trial 

transcripts in another Azov matter would have been 

favorable to the defense. See Jackson, 345 F.3d at 77 

n.14. In sum, the district court did not abuse its 

discretion in denying Snyder a new trial. 

 Snyder also challenges the district court’s restitution 

order as non-compliant with the requirements of Paroline v. 

United States, 134 S. Ct. 1710 (2014). The Government has 

consented to a limited remand for the district court to 

conduct a Paroline analysis and explain the rationale for 

its restitution order in light of the Paroline factors. 

 

 For the foregoing reasons, and finding no merit in 

Snyder’s other arguments, we hereby AFFIRM the judgment of 

the district court in all respects except for the 

restitution award, and REMAND for the limited purpose of 

allowing the district court to determine the proper amount 

of restitution in a manner consistent with this order. 

 FOR THE COURT: 

CATHERINE O’HAGAN WOLFE 

CLERK OF COURT